Report (2nd Day)

Public Bodies Bill [HL] – in the House of Lords at 3:06 pm on 28th March 2011.

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Schedule 1 : Power to abolish: bodies and offices

Amendment 20A

Moved by Lord Warner

20A: Schedule 1, page 16, line 23, leave out "Youth Justice Board for England and Wales."

Photo of Lord Warner Lord Warner Labour 3:07 pm, 28th March 2011

My Lords, I rise to move the amendment in my name and those of the noble Lords, Lord Ramsbotham and Lord Elton. The right reverend Prelate the Bishop of Ripon and Leeds intended to add his name to the amendment but just missed the deadline for the Marshalled List. I am sure that the House will want to hear his views on this matter at a later stage.

Across the Benches Members of this House are saying that the Government are wrong to seek the abolition of the Youth Justice Board. The same position appertained in Committee, with no speaker supporting the Government and five former Ministers, including three from the coalition Benches, saying that the Government were wrong about this. I will not repeat all the arguments made in Committee other than to remind the House that a series of independent reviews have said that the Youth Justice Board has done a good job, with the PAC recently saying that there was no foundation to the Government's case for abolition.

The nub of the Government's argument is that the YJB has done its job and youth justice can be left to local youth offending teams and Ministry of Justice civil servants and Ministers. The five former Ministers made it clear in Committee that leaving this specialist programme delivery work to generalist civil servants who move from job to job carries no credibility in terms of good government. Depending on locally financed YOTs, unaided at this time of severe financial retrenchment, is a recipe for youth justice sinking once again to the bottom of the pile, in terms of priorities, which is why the Youth Justice Board was set up in the first place.

Since the Committee stage, four of us-the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Linklater, the noble Lord, Lord Elton, and myself-had a meeting with the Minister and his colleague, Mr Crispin Blunt, who is responsible for youth justice matters. It would be a masterpiece of understatement to say that this was not a meeting of minds, despite the best endeavours of the noble Lord, Lord McNally, who, throughout this sorry saga, has tried to retain a balanced and helpful stance. Particularly worrying has been the absence of any sensible ministerial response to the incisive questioning of the noble Lord, Lord Elton, on why ministerial powers under the Crime and Disorder Act 1998 for holding the YJB to account are insufficient for discharging ministerial responsibilities to Parliament and the public.

In Committee, I teased the noble Lord, Lord McNally, about falling into bad company. I have to say that the more I learn of the Government's thinking on this issue, the more it seems not unlike the stories of Richmal Crompton in Just William andthe Black Hand Gang. It is at about that level of intellectual competence. In Committee, several Members set out the YJB's success in reducing reoffending and the entry of juveniles into the criminal justice system. Since then, new figures on reoffending have been placed in the public arena. They show a further reduction in the number of juvenile reoffenders by 0.4 per cent in one year between 2008 and 2009-a number that continued in that downward trajectory throughout 2009.

Alongside these achievements, the YJB has significantly cut the number of young people going into custody. The board's abolition puts all this at risk. Given my considerable experience in this area, I say that the abolition of the YJB is likely to mean an increase in the number of young people being placed in custody unnecessarily-at great cost to the taxpayer and likely damage to young people.

The Government have totally failed to make the case for the abolition of the YJB and we should ask them to think again by passing the amendment. That is my overwhelming preference, and it is in the best interests of vulnerable young people and of the public purse. However, if it turns out that we are unable to achieve this, the second amendment in the group, Amendment 21B, becomes important, because it prevents the YJB's functions disappearing into the maw of the Ministry of Justice and, probably in reality, into the maw of NOMS, without any clear focus on youth justice issues. Having a separate agency with two independent non-executives is better than any ministerial warm words, particularly when one realises that the Ministry of Justice has accepted this model for prisons and the Courts Service. We should retain the Youth Justice Board and its name should be removed from Schedule 1. I beg to move.

Photo of Baroness Hayman Baroness Hayman Lord Speaker

I have to inform the House that if the amendment is agreed, I cannot call Amendment 21B, by reason of pre-emption.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I rise to speak to the amendment and to echo what the noble Lord, Lord Warner, said about Amendment 21B. I am conscious that one cannot repeat arguments made in Committee. I, too, remember the remarkable unanimity around the Committee.

I am grateful, as before, to the noble Lord, Lord McNally, for the efforts he made to continue the discussion. I am only sorry that I could not attend that meeting, but from what I have heard about it, and from a letter that the Minister wrote to the noble Lord, Lord Elton, which I hope he will forgive me for quoting, I believe that what is at the heart of the Government's proposal is a fallacy that for years has influenced the consistent failure of the criminal justice system-namely, that policy and operations are one and the same thing, rather than one being the practical deployment of the other. This was brought home to me when a senior official told me that she wished that I would stop talking about strategy. "We don't need strategy; all we need is strategic direction," she said. I asked what that meant. "Top down, of course," she said. That is nonsense. Having something said from the top down does not make it either strategy or strategic direction.

I do not dispute that the youth justice system, like any other system, requires cross-departmental working based on one strategy and binding on all concerned. I do not dispute that the Minister for Prisons and Probation, Crispin Blunt, the Permanent Secretary, Sir Suma Chakrabarti, or the director-general of the justice policy group, Helen Edwards, are committed to leading and maintaining a dedicated focus on youth justice within the Ministry of Justice, and to ensuring that the necessary skills and expertise are retained. However, these are inward and invisible signs relating to the production of policy that they are responsible for overseeing. What is also needed, as in all effective systems, are outward and visible signs of the delivery of policy in the form of operations that must also be overseen.

This confusion between policy and operations is reflected in Crispin Blunt's letter to the noble Lord, Lord Elton, in which he argues that,

"it is not efficient or sensible to have this unique oversight of part of the offender/potential offender journey through the justice system ... A unique body for one part of the journey does not help overall policy formulation ... Bodies for every group deserving of special oversight (women, foreign nationals, BME, addicted, mentally ill, learning disabilities, young adults etc) would not improve but complicate matters. My time and that of senior officials would be spent even more managing these relationships, not trying to make a coherent system work for all".

Very few people undertake a journey through the justice system. The majority undertake a journey through only one part, which is why separate programmes need to be made for these parts within the whole. Tell the chief executive of a business that it is not efficient or sensible to have separate departments for finance and sales. Tell the chief executive of a hospital that there is no need for special oversight of surgery, paediatrics, mental health or pharmacy because that complicates matters. Tell the headmaster of a school that you do not need separate maths, science or language departments because it takes too much time to manage the relationship between them. Tell the Chief of the General Staff that you do not need directors of armour, artillery, engineers, communications or medical services because their expertise does not help overall policy formulation. Come on.

This discloses a complete lack of understanding of how systems work in the real world. Systems work where every element within them is co-ordinated into a coherent whole, based on a binding strategy-and where each, as well as the whole, is separately led. Ministers and senior officials who suggest that they might have to spend time managing relationships between different parts are disclosing that their system is incoherent. If there was a proper chain of responsibility and accountability, they should only have to deal with someone who was responsible and accountable to them for making the system work. That person will require machinery to enable him or her to do that, but its working will be nothing to do with Ministers or senior officials. If it is, they are guilty of the prime sin of senior managers, which is micromanagement. They are responsible for ensuring that the whole is directed: in other words, for ensuring that everyone knows what is to be done. They are not responsible for the minute details of process-in other words, the minutiae of how-which regrettably has become the practice in the recent past because so few Ministers and senior officials, well versed in how, seem to know how to do the what.

The Youth Justice Board may not be the complete answer to the operational part of the youth justice system, as has been freely acknowledged. Looked at holistically, it includes prevention as well as cure and after-care, and much of its responsibility rests with local government. If it is to be made to work effectively, bearing in mind how many different departments and organisations are involved, it must have an overarching strategy and a coherent structure in which someone is responsible for oversight of policy and someone for oversight of operations, as every other working organisation has.

It may be that after the consultation on the Green Paper Breaking the Cycle, the Ministry of Justice will decide to manage the youth justice system differently. But, until that discussion has been held, and until the operation structure to sit alongside the announced policy structure is confirmed, it makes little or no sense to do away with the body that should not only play a key role in those discussions but which has been responsible for introducing the acknowledged success stories, such as the youth offending teams, the reduction in numbers in custody, the reduction in the reconviction rate and providing direction to the previously undirected children's custody provision. However committed, no Whitehall Minister or official could have achieved that.

These are testing times for the criminal justice system with cuts coming on top of already inadequate provision. I know that the Public Bodies Bill results from the Government's obsession with the alleged plethora of public bodies that seem to be obfuscating responsibility and accountability. However, here it is a Whitehall ministry and not a public body that is guilty of obfuscation. Obviously the Government cannot do away with the ministry but they can do away with the proposal-as they have done, thankfully, for the Security Industry Authority and Schedule 7. I believe that when they think through how the minutiae of a coherent youth justice system is made from so many different elements, they will be thankful that they retained a Youth Justice Board that is responsible and accountable for making it work. I therefore very much support the amendment.

Photo of Lord St John of Fawsley Lord St John of Fawsley Conservative 3:15 pm, 28th March 2011

With the leave of the House, I hope that I may ask this question. Does the Minister have any idea why we are not having a Statement on the events of Friday, which has prevented many of us expressing our wholehearted support for the bravery and wisdom of the police and the staff of this House in handling that situation?

Photo of The Earl of Listowel The Earl of Listowel Crossbench

I echo the many tributes paid in Committee to the Minister and his colleague, Crispin Blunt, for the Government's overall policy in this area. I strongly support and welcome the amendments from my noble friend Lord Ramsbotham and the noble Lord, Lord Warner. I fear that in this area I am forced to disagree with the Government's direction of travel.

On the matter raised by my noble friend about strategic leadership in this area, the children involved have very complex needs. As vice-chair of the All-Party Parliamentary Group on Children and Young People in Care, I am well aware that a quarter of these children will have come out of local authority care. Indeed, 50 per cent of the girls have been in local authority care. With the reduction in numbers of children coming into custody, we are left with a hard core of young people with even more complex and challenging needs. I should also say that I am a patron of Voice, an advocacy charity for young people, which goes into secure training centres and young offender institutions.

I was glad to hear of the discussions that have taken place since the Committee stage. The Government will be bearing in mind the contributions of the noble Lord, Lord Newton of Braintree, and the noble Viscount, Lord Eccles. We heard in Committee that more than 1,000 fewer young people have been taken into custody in the past three years. To keep a young person in a young offender institution costs £120,000 a year; to keep a young person in a secure training centre costs £160,000 a year; and to keep a young person in a local authority secure children's homes costs more than £200,000. Therefore, many hundreds of thousands of pounds are saved by the successful regime of the Youth Justice Board in reducing the numbers of children in custody.

That money is being reinvested in making the secure estate more effective at rehabilitating young offenders. I recently visited the Wetherby young offender institution and was particularly interested to see its Keppel unit, which is for the most vulnerable young people. I see the right reverend Prelate nodding to indicate his knowledge of the unit. There, for instance, the boys have showers in their own rooms. Normally there are collective showers, but that easily gives rise to bullying and intimidating behaviour. The boys are extremely proud to have a shower of their own; they arrange their shampoos of various kinds. They also have a very good relationship with the prison officers because the ratio of prison officers-so often criticised by my noble friend when he was chief inspector in previous reports on prisons for young people, with a large number of young people for a few prison officers-has been turned around at Keppel. That is so important to the rehabilitation of those young people.

I fear that I am speaking for too long, but the issue has been raised of the need for strategic leadership in this area. Secretaries of State and Ministers have too much to do to give full attention to that needy group of young people and to make the difference in their lives. The chairman of the Youth Justice Board can do just that and has been doing so. She invited the children's directors and chief executives of the local authorities in the north-east of England, in Manchester, Stockport, Rochdale and Wigan, to visit the young offender institutions to see for themselves what happens there. I spoke to one of the deputy chief executives following his visit. He could now see clearly his responsibility as the leader of a local authority to help resettle those young people, because the holy grail of success in this area is what happens when young people leave custody. They need to be found appropriate accommodation. Following the Youth Justice Board chairman's work, there is now a consortium in the north-east; those local authorities are working together. They have hired the charity Catch 22 to supervise proper accommodation for those young people.

I strongly support the amendments and hope that the Minister will consider accepting them today.

Photo of Lord Woolf Lord Woolf Crossbench

My Lords, I hope that your Lordships will forgive me, because I have not spoken to the amendment at earlier stages; it was not possible for me to do so.

I echo what has already been said about the care which the Government have taken to reconsider other parts of the Bill and to take into account comments made by those who have had certain experience in the area. I am sad indeed-because I thought that the result might be otherwise-that, so far, the Government have not felt able to change their approach towards the Youth Justice Board.

I speak from personal experience in various capacities, which perhaps I should declare. One is from my concern with criminal justice as, first, a barrister and then a judge. The second is because I have recently become chairman of the Prison Reform Trust. The third, and most important in this context, is because I was involved in-indeed, I led-the Strangeways investigation and report. I have over many years been so disappointed that initiatives which have proved themselves to be successful have not been able to grow and develop to fulfil their full possibilities. My experience goes back to the time before the Youth Justice Board's creation and before its leadership by the noble Lord, Lord Warner.

I can only say to the House, as sincerely and as emphatically as I can, that this initiative has been wholly salutary. It managed to change the whole approach to a part of the criminal justice system-and, if I may say so, perhaps one of the most difficult and important parts of the criminal justice system-in a way which gave new hope to all those who were concerned for this area of our justice system. The best test of the innovation is to ask, "Did it work?". I would not say that it was always perfect-no change would be-but the balance sheet would show a huge improvement as a result of the Youth Justice Board.

I would urge as strongly as I can that the House consider the importance of this matter, as I am sure that the Government intend to do. However, it would be sacrilege if, whatever the motives put forward, we took out of the criminal justice system something that works, and introduced something that has not worked and has not been tried. I therefore hope that before such a result is brought about, there will be at least the pause for which the noble Lord, Lord Ramsbotham, has asked, to see how matters are dealt with in the Green Paper. I have to say that it really would be sacrilege to rush in and do something which is untried when the experience indicates that we cannot afford to do without the positive influence of the Youth Justice Board.

Photo of Baroness Linklater of Butterstone Baroness Linklater of Butterstone Liberal Democrat 3:30 pm, 28th March 2011

My Lords, it gives me enormous pleasure to follow my hero, the noble and learned Lord, Lord Woolf, who never speaks anything but words of the deepest wisdom.

Since we last debated the future of the Youth Justice Board, the folly of the Government's plan to dismantle it seems ever more misjudged, unnecessary and worrying. It is misjudged because the work of the YJB is highly specialist, dealing as it does with the most damaged, difficult and needy children in our community, who must be managed by people with specific experience and expertise, as they have. Children are not-as I said in Committee-small adults and should definitely not be managed by civil servants from NOMS in the MoJ who just do not have the expertise and whose work is with adults, not children.

It is unnecessary because, as we heard so eloquently in Committee from the noble Lord, Lord Elton, the ministerial powers of oversight, responsibility and accountability, which has been an area of central concern to the Minister, Crispin Blunt, are already in place in statute, giving him the power to make changes, decisions and appointments and other wide-ranging powers of overall control.

It is worrying because the desire to abolish the YJB betrays a determined failure by the Government to appreciate just how important, effective and significant this work is with children and young people who offend or are at risk of offending. This work by the YJB over the past few years has resulted, as we have heard, and as the most recent figures show, in a further drop in reoffending by young people. It is an extraordinary achievement.

This failure is exacerbated by a wish to make a decision which is driven by administrative concerns, convenience and cost-cutting-the input side of the balance sheet-rather than recognising and valuing the outcomes now being seen by the YJB, whose work has truly taken off in the past few years and is now achieving real results in terms of properly embedding and co-ordinating the youth offending teams, reducing reoffending and offending through prevention and diversion schemes, joint publications of inquiries, the oversight of the setting of maintenance of standards of professional practice, and much more.

This Bill has rightly concerned itself with rationalising those public bodies which have developed over the years with bureaucracies growing, mopping up precious government resources and duplicating effort which could be absorbed in existing government departments. The tests against which an organisation is validated therefore are that it performs a specific, necessary public service, independently establishes facts and is politically impartial. The YJB's success against these tests is beyond doubt, just as its value is clear to the many bodies with which it works, several of which were quoted in Committee. I will add the words of the Children's Commissioner, who represents the voice of children in this country. She says:

"It is imperative that responsibility for the custodial component of the youth justice system is held by an agency that understands and appreciates the distinct and special needs of children and young people, particularly those who are vulnerable".

It is because these tests are clearly being met and because of its track record of success and the considerable savings that are being made to the Exchequer through the success of diversion and prevention work, as well as because of the judgment of specialists in the field, that I believe that the YJB clearly should not be abolished.

Furthermore, the YJB itself is quite prepared to look at how to accommodate itself to the administrative thrust of government thinking. It is quite able to see a modus vivendi within the MoJ as an executive agency, with its specialist focus maintained, its separate identity from NOMS and its ability to work at arm's length from government, just as NOMS and other organisations already do. It is a mystery to me why this option has been resisted so far by the ministry and why it appears that my dear noble friend the Minister and, particularly, his colleagues in the Commons are hell-bent on reinventing the wheel in the name of some perceived convenience. The idea that the work of the YJB could be taken over wholesale by Ministers and senior officials is totally unrealistic, particularly when it has taken the YJB years to reach its current levels of expertise. We have already heard from the noble Earl, Lord Listowel, about the marvellous Keppel unit at Wetherby YOI. It demonstrates the extent to which specialisms within the specialist provision of the children's estate are so necessary. It is probably saving lives in the process. I just hope and pray that we are not being served notice that other groups in the criminal justice system not currently at issue but seriously important, including women and the mentally ill, can expect no future special attention, and that the reports of the noble Baroness, Lady Corston, on women and of the noble Lord, Lord Bradley, on mental health, whose recommendations have had wide support, are now to be shelved.

We should acknowledge around this House and in the country at large our overriding duty of care for the youngest in our society who need us most and should remember our responsibilities to our most vulnerable children by ensuring that their needs can continue to be met by the very organisation which has the knowledge and skills. To do otherwise would be a serious dereliction of our collective duty. I wholeheartedly support the amendment.

Photo of Lord Beecham Lord Beecham Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Health)

My Lords, I start by tendering an apology to the Youth Justice Board and to your Lordships' House for a figure I gave in an earlier debate concerning the number of deaths of young offenders in custody. Those figures had improved substantially in recent years, but I was not aware of that fact. That improvement was in good part, of course, due to the efforts of the Youth Justice Board.

One might have thought that a Bill that deals with part of the justice system would rest upon a sound evidential base. Where is evidence to support the proposal contained in this Bill for the abolition of the Youth Justice Board? Such evidence as there is appears to point entirely the other way. As my noble friend Lord Warner and others have said, the reduction of about one-third in the number of young offenders in custody, in those who reoffend and in those who do not come before the courts at all because of policies of prevention and diversion, is testament to the successful approach of the board. That has been supported by a number of reports. The noble Earl, Lord Listowel, referred to the work of the Youth Justice Board in conjunction with local authority services, which was acknowledged as far back as 2004 when the Audit Commission reported.

Of course, the Audit Commission is also under sentence at the moment, although we have yet to see legislation about that. Even at that stage, the Audit Commission reported:

"The new structures work well. The YJB sets a clear national framework ... and takes a lead role in monitoring progress".

It also emphasised the role of the young offender teams. It stated that they,

"are critically placed between criminal justice, health and local government services to co-ordinate and deliver services to young offenders and the courts".

A report commissioned by the previous Government concluded:

"Overall, the YJB earns its place as a crucial part of a system which aims to tackle one of the most serious social policy issues in this country".

Most recently, there have been reports from the National Audit Office and, as my noble friend Lord Warner, mentioned, the Public Accounts Committee in terms of the recent statistics on the reduction of offending by young people. In a report published only three months ago, the National Audit Office declared:

"The Board ... has been an effective leader of efforts to create and maintain a national youth justice system with a risk based approach, and in recent years key youth crime indicators have been falling substantially".

The Public Accounts Committee report, which was published only six weeks ago, concluded:

"The youth justice system has been successful in reducing the number of criminal offences ... an achievement in which the Youth Justice Board has played a central role".

It continued:

"The planned abolition of the Youth Justice Board has arisen from a policy decision and not as a result of any assessment of the Board's performance".

The board has brought together a whole range of organisations and institutions working in youth justice. It has developed a substantial programme of secure estate commissioning. Indeed, it has been so successful that it decommissioned 900 places recently. Value for money is certainly very much part of its agenda. A range of other initiatives has been taken. Those initiatives range from the piloting of YOTs, as we have heard, to the delivery of the persistent young offenders' pledge to halve the time from arrest to sentence, working with the parents of young offenders and much else besides.

Against that background, it is disconcerting that the Government still are unclear about how the functions of the board will be discharged in the future. In particular, there is widespread concern in your Lordships' House and beyond about the potential transfer to the National Offender Management Service, which deals with adult offenders. NOMS, to put it mildly, has a chequered record. I would invite the Minister in his reply to assure the House that, if the amendment fails-I certainly hope that it will not-it would not be the Government's intention to transfer the Youth Justice Board's functions to the National Offender Management Service.

As my noble friend Lord Warner indicated, should the amendment fail, as a backstop, an agency would be a better solution. But given the pressures on the department, its ministerial members and the officials working within it, it is inconceivable that the Young Justice Board's functions would be adequately discharged if they are simply transferred into the department. The independence, to a degree, that even an agency status would confer and, in particular, the separation of youth justice from adult justice and NOMS must be a precondition of any organisation of our services for young offenders.

Photo of The Bishop of Ripon and Leeds The Bishop of Ripon and Leeds Bishop 3:45 pm, 28th March 2011

My Lords, I, too, support Amendment 20A. It is the experience of a number of Members of this Bench that the Youth Justice Board has been among the most effective of the executive agencies since 1997. I also thank the noble Lord, Lord Warner, for his persistence in helping us to explore the qualities of the board and the opportunities that it has taken to encourage work with both young offenders and those in danger of becoming young offenders. From the perspective of this Bench, that experience has been held together by the right reverend Prelate the Bishop of Liverpool, who is very sorry that he is unable to be with us today to continue the debate.

Many of us have experience of YOIs and the work being done in them, overseen and encouraged by the Youth Justice Board. The board is ideally placed to help young people through programmes such as the Youth Inclusion Programme and the use of youth offending teams. It has been at the forefront of encouraging the restorative justice procedures about which we have spoken often in this House and which deliver high levels of victim satisfaction as well as positively influencing offending behaviour.

The oversight and commissioning of custody places for young people are highly specialised activities. I do not know whether other Members of your Lordships' House have visited Wetherby Young Offender Institution, but it was good hear the noble Earl and the noble Baroness speak of developments there because it is on my patch and I know it quite well. One gains a real sense that it is exploring ways forward for the young people in its care-I would say the same of the other YOI, that at Deerbolt near Barnard Castle. The young people there need the specialist attention which the Youth Justice Board can and does provide. I, too, do not argue that the Youth Justice Board is perfect and I have on occasions argued with it, but I know that it offers specific attention to those young men who often have both disrupted and disruptive lives.

Surely the YJB is among those public bodies which continue to make a real difference to the health of our nation. If the Minister, to whom I, too, am grateful for his own part in wrestling with this issue, is not moved by that fact, will he not accept that, in purely financial terms, this body is saving millions of pounds in terms of the number of young people who are being kept out of our young offender institutions as well as of those within them who are being helped and encouraged towards a future life out of the criminal system?

Photo of Lord Newton of Braintree Lord Newton of Braintree Conservative

My Lords, I am feeling rather good because, in the course of the past 20 minutes or so, I have given way, modestly, to every other section in the House, including the Bench immediately in front of me. So I think that I deserve some credit, and I am looking for it particularly from the right reverend Prelate.

I have only a modest speech to make, which is why I refrained earlier. I want just to make it clear to my noble friend on the Front Bench that those of us who expressed some concern at the previous stage have not melted into night but retain some concern. In my experience, which is not inconsiderable, even civil servants have a completely different mindset if they are serving a dedicated outfit, whatever is said about its independence, outside the department than if they are simply part of the department's mainstream. It is an underestimated argument in some of these debates.

Lastly, I ask again a question that I asked on the previous occasion, and I shall try to do so even more crisply-it is the question that the noble Lord, Lord Warner, and others have adumbrated: if youth justice was, by common consent, a mess before and has been made better by the Youth Justice Board, what is the case for believing that it will stay better if it goes back pretty much to where it came from in the first place?

Photo of Lord Elton Lord Elton Conservative

My Lords, I have moved behind my noble friend not to threaten him but because my voice is very uncertain and I think that otherwise he will not hear what I have to say. I start with an observation on the contribution of the noble Baroness, Lady Linklater. She rightly said that we owe it to the young people who commit grievous crimes to do the best for them and to give them proper, constructive lives. However, I would say that we also owe that to the communities that they wreck and threaten and the families that they disrupt, and to a large extent that is the rest of us. Therefore, this is a popular, not a specialist, subject.

My second prefatory remark is that I was glad to notice that the other amendment in the group, Amendment 21B, has not really been dealt with because, to my mind, it is no substitute. If your Lordships, in the regrettable event of this amendment not being conceded or carried, were to accept that amendment, it would be wise but they would be gaining one slice, or at most two, out of a yard loaf. I shall keep it as short as that.

What have been, and are being, advanced as the reasons for getting rid of the YJB? The first one that we had right at the beginning was that Ministers should be directly responsible for what happens to young people in custody. To encapsulate what I have said before, Section 41 and Schedule 2 of the Crime and Disorder Act 1998 specifically say that the Minister is to decide who the members of the YJB are, who is to be the chairman, and who is to be sacked-and he can sack them with or without reasons, according to what is appropriate. That legislation says exactly what the YJB will do under 12 headings and in great detail, which one might think would tie the Minister's arm behind his back. However, we then find that he can alter, add to, remove or change all the members at will with a statutory instrument. The Minister says what the members do, whom they do it to, how they do it, what they get for doing it and what they can spend on doing it, and, with those powers and those in local government legislation, he is capable of transferring those functions away from himself or, under the schedule, sharing them.

The second argument was that Ministers should be responsible publicly for what they do. The Minister is responsible for everything that I have set out, and also, under paragraph 8 of Schedule 2 of the Crime and Disorder Act, he has to lay before Parliament the YJB's annual report so that Parliament is aware, in detail, of what he has been doing and can ask him to defend it-or praise him, if that be the case, although I notice that it is rare that when Parliament wants to praise the Minister it has a debate on an unnecessary measure.

According to the letter quoted by the noble Lord, Lord Ramsbotham, the board members have full responsibility for the purchase of secure accommodation for children. I should tell your Lordships that I had that responsibility when I was a Minister in the Department of Health and Social Security. I shall detain noble Lords no longer other than to say that I heartily wish that I had had the YJB. It would have been a godsend to have had the Youth Justice Board with its insight and understanding of what was going on.

The next thing we were told was that the YJB is ineffective. A great deal has been said already about the change in offending rates and volumes and reoffending rates and volumes. All those are remarkably good figures, as your Lordships can remind themselves when they read Hansard, but in all respects they compare favourably with what is going on in the adult system, which is what this was drawn from in the bad days gone by.

It is argued that this is a single issue body. The noble Lord, Lord Ramsbotham, has shown what single issue bodies are and they are not this: they are on the list that he gave about foreigners, the illiterate, sick, mentally ill and so forth. All those are single issues and affect single people, but being a teenager under the age of adulthood as recognised in statute is common to them all. This is a general issue of supreme importance.

I happen to have been a teacher. I taught in schools and colleges and noble Lords should not doubt that the behavioural and emotional responses of young people and adults are different. They have to be managed with tricks out of different boxes. We are talking about a specialism of enormous value to this country, which has produced enormous benefits already, which continue.

I have been told-and I dare say that other noble Lords have been told by the Minister-that the YJB's job has been done and it should hang up his boots, thank you very much. To say that when the offending rates and numbers in custody are all still coming down is a matter of profound pessimism. Surely we must want this to go on. It has been said that the bureaucratic approach of the Youth Justice Board has always been an impediment although it was admitted that that had reduced in recent months. But it has been reducing over the past two years, so that is also an incomplete argument.

We have been told that this is part of the great national programme of localism. In fact, that has not been mentioned yet but I anticipate, with many apologies, what my noble friend on the Front Bench is likely to say to us. The Government are already committed to localism and to the youth offending teams. The youth offending teams are what determine the level to which functions can be delegated. The Government already acknowledge the need for what they call light-touch performance monitoring of them. Anyway, Her Majesty's Government propose to take all the powers back into themselves. What on earth is localist about that?

It is argued that the expertise of the Youth Justice Board will be preserved in the department when it gets there. I do not doubt my noble friend's word or that of his right honourable colleagues, but they cannot foresee or commit themselves to who will replace those people when they retire, are promoted or simply, sadly, die. If they are part of the Civil Service, they will be replaced by people recruited from the Civil Service, which does not mean that they will necessarily have any of this expertise at all.

My last point in this overlong speech is about cost. I remind your Lordships that in the adult system in the past 10 years the population in prisons has increased by 32 per cent at a cost of £36,000 per head per year at current prices. Over the same period, the number of juveniles in custody has reduced by 27 per cent-almost as much. They are more expensive. My figures are slightly different to those given by the noble Earl, Lord Listowel, because his have yet to be reviewed by the National Audit Office. Screening out all that, I reckon that it represents a saving in one year of £58,174 million. If that rather notional figure does not satisfy your Lordships, the decommissioning of 900 places, to which the noble Lord, Lord Beecham, referred, has saved £38 million net. I should add that administrative costs were reduced by 10 per cent as well.

When a car is running sweetly and the engine is doing what it should, you do not go to the garage and ask them to lift up the bonnet and take a piece out of the engine. This is not a bolt-on extra. This is something that has grown up with and caused the youth justice system to develop as it has, under the care of Ministers-which I greatly acknowledge. In supporting this amendment, which I do with fervour, I am trying to save my noble friends from making a catastrophic mistake.

Photo of Baroness Armstrong of Hill Top Baroness Armstrong of Hill Top Labour 4:00 pm, 28th March 2011

I intervene briefly to give a practical example of the value and the practical work of the Youth Justice Board. I do not see how it could be fulfilled by the department.

When I was a Member in another place, a prison in my constituency subsequently became one of the first secure training centres for young people. It was commissioned by the Major Government and my Government, I am sorry to say, decided to go ahead with the contracts that had been agreed. When the contracts were first put into place, there was an American contractor, and the thing was a disaster. I had a phone call from the local police chief, who said, "You've got to come-we have to work out what we are going to do. My people are being called in every day and the kids are ending up in the cells because the secure training centre simply cannot handle them".

One of the real problems-I do not know whose idea it was-was to have children aged from 12 to 15 there. Quite honestly, they could not handle prison. One thing that you have to do when you go into prison is to recognise that the better you behave the sooner you will get out. They simply were not able to make decisions like that; they were ripping up their rooms and all the area outside. The Youth Justice Board had to come in, of course. I talked to Ministers and the Youth Justice Board sent someone for nearly a year, virtually full time, to help the organisation to sort out what it was doing and to enable it to build up a group of people who could provide education. The whole idea had been that inmates would receive more intensive education while they were there-and it just was not happening.

I heard some very salutary stories and had salutary experiences in that period. The Hassockfield STC is now run by a different organisation. No one would say that it was trouble-free-I am sure that the Minister has heard of Hassockfield-but it is doing much better than it was. Part of that is because the Youth Justice Board got hold of it and persuaded Ministers that you could not put children as young as that into a prison environment. It was intended as a prison environment, because somebody thought that it would be a good shock for them at that age. It did not work, and all sorts of things went on that should not have gone on. It is still being used but it is being used for an older age group. I still have concerns, but I know that the regime is now much more aware of what it needs to do to work effectively with young people. That would not have happened without the Youth Justice Board encouraging very clearly another organisation to take over. I do not believe that civil servants in the Ministry of Justice would be able to do that; they would not have the expertise or training, and they would not have the professionalism of the woman from the Youth Justice Board who went in and worked at Hassockfield virtually full time for a year.

I hope that the Minister understands that this is not a party-political thing and should not be. It is about how we get the most effective way of working with young people, even the most troubled, who end up at the moment at something like a secure training centre. I hope that the Minister will find a way of thinking again.

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Liberal Democrat

My Lords, like the noble and learned Lord, who is a former Lord Chief Justice, I did not speak in Committee and I hope that my intervention at this stage will be forgiven. However, this has been an astonishingly informed debate and all those who participated have demonstrated immediate experience of the working of the youth justice system and the Youth Justice Board in particular. I rise as someone who has not had that direct experience in England, although I have observed at reasonably close quarters the working of the children's panel system in Scotland. I commend that to my noble friends as a system that works remarkably well in dealing with the care of troubled children and the prevention of crime.

However, an outside voice can sometimes be helpful in these debates, particularly as, if neither of these amendments is carried, the matter will go to another place where there will unquestionably be knowledge about the youth offending system but not the same direct, immediate experience. I served for 17 years on the Public Accounts Committee and the argumentation that that body has produced, as recently as six weeks ago, appears to be profoundly important in the context in which this measure is being introduced. Inevitably, because the board is one of a number of bodies being wound up, this is seen in the context of economy and value for money. Many of those who have already spoken in this debate have questioned whether value for money will in fact be achieved by drawing these decisions into the department itself.

I do not believe that the implication that Ministers will give it closer insight is sustainable. Ministers are enormously busy and rely heavily on having their attention drawn to weaknesses in a system or in its administration. If the emphasis is to be all on localism-and the place for localism is certainly not being contested by me-it seems highly improbable that there will not necessarily be that experienced oversight of the workings of the youth offending teams, which have had some years to test themselves. It is quite possible that those who have the job of overseeing these matters within the department will feel a need to defend the stance taken rather than a need to spot uncertainties, inefficiencies and unsuitable behaviour.

I recognise that the Public Accounts Committee has not infrequently had the experience of dealing with bodies of this kind within the Civil Service. Ultimately, however, it tends to admit that the accounting officer is responsible for answering the questions. In turn, that might lead to a statement that the real responsibility lies with the policy-maker: that is to say, the Minister. The actuality is very different. The case made by the noble Lord, Lord Ramsbotham, for separating out these functions and having clear responsibility for administration separated from the Minister responsible is unanswerable.

It seems to me that there will be much greater transparency if the Youth Justice Board is preserved. Good and bad examples will surface and lessons can be learnt from both. If this is all done within the department, I fear that the issues will become muddied and unclear. The progress that has been made in bringing about a reduction in recidivism and offending among the young and the economic advantages for the community that have stemmed from fewer numbers in custody, not to speak of citizens' general concern to live peacefully in the community with young troubled people, has definitely been assisted by this relatively new innovation.

I hope the Government will give this real further consideration. We have had lengthy debates on this already and I do not believe that there has been sufficient opportunity for extensive consultation with all those involved. I know that the Youth Justice Board has taken a very positive role in dialogue with the Government, but this is something that extends right across the country. People from all ranks of society are affected by it, and consequently it is not something that should be rushed. It is not broken, so we should not seek to repair it.

Photo of Viscount Eccles Viscount Eccles Conservative

My Lords, I spoke in Committee and I have not had the benefit of any discussions between Committee and Report. Like everyone else, I await with great interest the reply from my Front Bench. However, I am reminded that there are two amendments in this group and I think it has been notable that only the noble Lords, Lord Warner and Lord Ramsbotham, have actually referred to Amendment 21B in any depth or detail. The noble Lord, Lord Elton, did not put his name to Amendment 21B, so I assume he does not support it.

I suppose the question that we are facing is how much independence should be provided to those who think through and monitor youth justice. There is a very widespread feeling in the House, which I share, that a fairly high degree of independence is desirable. In the discussion, it seems to me that the Youth Justice Board is the good boy and NOMS is the bad boy. That does not seem to be an inevitable outcome of running the Prison Service, but is what has come across. What has also come across to me as I have listened to the debate is that the Youth Justice Board is not quite the clear distinction between policy and operations which the noble Lord, Lord Ramsbotham, put across to us. Many other people have been involved in improvements, which have been referred to, alongside the efforts of the Youth Justice Board.

This is an enabling Bill; nothing happens as a result of this Bill becoming an Act until a Minister lays an order in front of Parliament. Parliament, at that time, as we shall see later in the Bill, can reject that order. Some people feel that the secondary legislation procedures are such that it is not likely that Parliament will reject an order, but I do not agree. The power is there, so when an order is laid we should not give up the idea that we vote it down. As this is an enabling Bill, nothing happens until an order is laid. The question then becomes: do we believe, as in tennis, in sudden death? Amendment 20A is a form of sudden death, Amendment 21B is a form of giving a degree of independence to an executive agency, and neither of these sections in the Bill, if that is what they become, commits Ministers to lay an order at all. There is therefore still a great deal of time before the Government come to an irrevocable decision. I very much hope that my noble friend on the Front Bench will deal with that matter in some detail.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Labour 4:15 pm, 28th March 2011

My Lords, I suppose that I, too, should declare an interest as someone who has practised in the field of family law dealing with children for the past 34 years and who has had the privilege of being one of Her Majesty's deputy High Court judges of the Family Division.

On the last occasion that we met to discuss this issue, the noble Lord, Lord McNally, told me that I had been shooting at an open goal. Well, the goal has not got any narrower. However, if I may respectfully say so, I think that the nature of this debate has been slightly different from that of the debate that we had last time. There is now a degree of sadness and almost disbelief that there has been no material change in the approach taken by the Government. At the end of Committee, the noble Lord, Lord McNally, said, in essence, "Give me time. Don't shoot me today. Postpone the execution until Report. Give me time to think again and to persuade my Government". The noble Lord, Lord Warner, with the generosity of spirit for which he is renowned, did so; as noble Lords will remember, he said that recidivism could be addressed and that there was still time for repentance. However, there always comes a time when repentance appears not to have transpired and the judge has to make a decision.

The House has now spoken twice. It is important that in this debate there was not one dissenting voice urging on the Minister the wisdom of going forward with the current plan. If I may respectfully say so, I think that it was poignant to hear the noble and learned Lord, Lord Woolf, say that this was-he used a strong word-"sacrilege". Why is that? Those who spoke on the last occasion and who have spoken today struggled and suffered in order, together with the young people, to try to create a system that is able to deliver change in a material way. The system that we had before the Youth Justice Board was agreed by all not to have worked. It was expensive and dysfunctional and it produced poor outcomes. For all its flaws, the Youth Justice Board has created something of real merit and worth.

When we talk about costs, we need to think about the real cost of the demolition of the Youth Justice Board. It does not come in money; it comes in the pain, injury and suffering that will flow not to us but to the young people who have been so advantaged by the board's work. As the noble Lord, Lord Elton, said so eloquently, it comes in the pain that will be inflicted on us all if vulnerable young people and their dysfunction are not dealt with robustly, carefully and successfully.

This House has a choice. There is a moment when we get to say to the Government and to the other place, "This far and no further". I repeat what many have said. This is not an issue over which the House has divided on political lines. Every person who has spoken has done so with the same voice, because this House cares passionately about young people and about reducing the pain that is caused to them. We should look at the YJB's work not just in terms of the reduction of recidivism among young people. We just need to glance at the fact that there has already been an encouraging sign that the reduction in juvenile crime is effecting a reduction in the reoffending figures that we now see for young people between 18 and 20 and between 20 and 24. The noble Lord knows well that 13 to 24 is the most active age group for criminal behaviour. Therefore, reducing the number of those who enter the criminal justice system, and then reducing reoffending, is very significant.

There is evidence that accountability from a ministerial point of view is delivered very successfully by the method that we currently have. On the previous occasion, the noble Viscount, Lord Eccles, and the noble Lord, Lord Newton, made that point so powerfully; it is not about removing ministerial accountability because that ministerial accountability currently exists. We need strong, national, co-ordinated accountability through a dedicated body, and that dedicated body is the Youth Justice Board. We know how difficult it is to create a piece of machinery that works. The Youth Justice Board works. It works in its current form. The opinion of the House is clearly that it should remain in its current form. An executive agency would be the least bad option if it has to go, but it is certainly not the preferred option.

I gain comfort from what the noble Viscount, Lord Eccles, has said. We need to understand him as saying: "If we lose today, we will come back and defeat you-we hope-on another day, but through a statutory instrument". I would not like to put the House through that pain. I invite the House to vote on this issue, if my noble friend presses his amendment, and say decisively that it does not agree with the removal of the YJB. If the Government need real encouragement to think again, we should ask them to do so by voting in favour of the amendment, as we on these Benches will do in, I hope, great numbers.

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

My Lords, I thought of leaving a long pause to wait for one of my supporters to stand up and make his or her speech. At the end of my remarks I will not appeal to the noble Lord, Lord Warner, not to test the opinion of the House. I did that in Committee because I thought that it would be useful to allow my colleagues to read his speech before coming to a conclusion. Rather than just reading the speech, perhaps seeing the result of the vote-whichever way it goes-will also be an opportunity for them to do so.

At the start of the remarks of the noble and learned Baroness, Lady Scotland, she echoed the noble and learned Lord, Lord Woolf. Using the word that they both used, the House is being asked to vote on sacrilege. Essentially, that is the case for the prosecution: we are about to destroy something of real merit. That is certainly not the intention of the Government. We do not intend to dismantle the youth justice system. We want to build on what has been achieved over the past 10 years. I agree that this debate has been dominated by well informed, experienced speakers who care passionately about youth justice. My experience in my department is of finding similar qualities in the people dealing with this. It is not a matter of uncaring bureaucrats and caring Peers; those qualities exist across the board.

The noble Lord, Lord Warner, suggested that what has happened sounds like an episode of "Just William". Unlike Violet Elizabeth Bott, I promise that I will not "scweam and scweam and scweam" if things go wrong. As with earlier debates, I will report back the result of this one to colleagues. However, I will not hold noble Lords in suspense: my brief does not allow me to make any concessions today.

The noble Lord, Lord Ramsbotham, slightly overeggs the pudding in that the separation between strategic and operational matters is not as clear as he made out. I think that the noble Viscount, Lord Eccles, made that point. There is real benefit in the department and the Minister providing strategic leadership while retaining the real success of the MoJ-the holistic, local response to youth offending. In referring to the situation in young offender institutions and advocacy, the noble Earl, Lord Listowel, may have been trying to return to a matter raised in Committee. We recognise that advocacy and social work provision in youth offender institutions is important. There are legal responsibilities on local authorities and prison governors to safeguard and promote the welfare of young people in custody but we realise that responsibility for funding these services is complex. We have been working on a solution and I expect that I and my colleague, Mr Crispin Blunt, will receive official advice on funding soon. I will write to the noble Lord later this week or next week, putting forward solutions on that point, which he raised in Committee.

I echo the noble Earl's tribute to Frances Done and her chief executive. They have behaved exemplarily throughout in steering the organisation through a period of uncertainty while maintaining the high quality of service which we expect. It is interesting that the noble Earl mentioned the need for local authority initiative. The thrust of the policy the department is putting forward in these new arrangements is that we keep the best of the localism of the youth justice system but encourage local authority initiative and co-operation even further.

I suggest to the noble and learned Lord, Lord Woolf, that undoubtedly the YJB has had an impact but that the holistic approach of the youth offending teams may best explain the success gained during the past 10 years, which has been mentioned on a number of occasions. I emphasise again that we are not going to abandon the lessons learnt in the past 10 years but will build on them. It is worth pointing out that youth policy is not the only policy that the MoJ looks after. I think that the noble Baroness, Lady Linklater, and the noble Lord, Lord Beecham, mentioned this. One might equally ask whether one needs a similar arm's-length body for women, the mentally ill or an educational training body. I see lots of nods across the House. Perhaps that is where we have an ideological difference-"When in doubt set up an arm's-length body, or, if not, a tsar"; that was very much part of another age. It is worth pointing out that Ministers and departments can be responsible for distinctive policies that they can pursue successfully, without necessarily setting up an external body to help them to do that.

On the point made by the noble Lord, Lord Beecham, I can give him an answer. I think I have said previously that all Ministers are birds of passage. The noble Lord, Lord Elton, also mentioned that. However, it is certainly not the intention within our new structure that the YJB be absorbed into or placed under NOMS.

I pay tribute to the contribution of all faith groups, and of the leadership of the Church of England and the right reverend Prelate the Bishop of Liverpool, to counsel and service in our prison and youth systems. However, I ask the right reverend Prelate the Bishop of Ripon and Leeds to look at our Green Paper on the rehabilitation revolution, because that fits in a lot with what we are trying to do in our approach across the board to the treatment of offenders and to reoffending.

The noble Lord, Lord Newton, said that he had not melted into the night. Knowing him so well, I honestly never thought that he would do that. Again, I emphasise that I do not believe that separation is strength in the way that some noble Lords advocated; nor is this going back to where we were 10 years ago. The attack on the policy has relied very much on a concept of going back to where we were. That is certainly not the intention.

The noble Lord, Lord Elton, rightly reminded us that we are talking about not only the kind of concern for young offenders to which the noble Baroness, Lady Linklater, and the noble Earl, Lord Listowel, referred, but our responsibility to the victims of youth crime to make sure that we are getting this right. The noble Lord, Lord Elton, with great precision, seems to have set out ministerial powers that are clearly considerable but fall short of being able to abolish the body.

We have never claimed that the YJB was ineffective, but we claim that removing a layer from the system is not vandalism. I was interested in the intervention of the noble Baroness, Lady Armstrong, and the example she gave of advice and intervention. Again, I doubt that that kind of expertise or professionalism would be absent under the proposals we put forward. However, I welcome her view that this is issue is not party-political. One has to look only at the list of noble Lords who have spoken to know the breadth of cross-party views on it.

The noble Lord, Lord Maclennan, referred us to the Scottish panel system. I recently visited Edinburgh and talked with the Scottish Minister of Justice about that country's approach to youth justice, which has aspects of some value that we could study. I also heed his warning that it would be wrong for the department to become defensive rather than proactive about its responsibilities. I do not believe that this will be so under the system that we are putting forward. There is an important function for the YJB in commissioning the secure estate. However, it is important that this responsibility should be taken within the department, with the Minister taking direct responsibility for it.

The noble Viscount, Lord Eccles, said that this was not the end of the story. Certainly, whichever way the vote goes later this afternoon, the statutory instrument will still be debated. However, it would be unfair to those who work in youth justice to suggest that, if the Government were to carry the day today, there would be another opportunity to change policy at the statutory instrument stage-although technically that is true.

As I hinted, I cannot concede on the abolition of the Youth Justice Board. Nor am I able to accept that the establishment of an executive agency would be appropriate or proportionate. As I said in Committee, there were good reasons to establish the YJB at arm's length from the Government. This enabled it to lead the national rollout of youth offending teams and to establish a dedicated, secure estate for young people. However, a decade on, that work is done and we can handle within the MoJ the residual responsibilities of the board, while leaving alone the thrust of youth justice at the operating level of the YOTs, where it has been extremely successful.

It is not true that we have not consulted. We have had 13 youth justice seminars across England and Wales as part of our Breaking the Cycle Green Paper. Early responses to that paper indicate that what is wanted is strategic leadership, cross-government working, a dedicated focus on youth justice and fewer central burdens on the YOTs. These responses are all in accordance with our proposals to bring the functions of the YJB into the Ministry of Justice.

I am not sure that either eloquence or a peroration will work on this issue. I hope that I have met the points that were made and explained how people can come honestly to a different view. It is not-I hope that here the case for the prosecution has been dismissed-a callous act of vandalism by the Government. There is an honest difference of opinion in the House about how to build on the success of the past 10 years of the YJB. However, honest differences can exist in a framework of mutual respect, and I hope that that will remain. I certainly respect and appreciate the many contributions that have been made to this debate today.

Photo of Lord Warner Lord Warner Labour 4:30 pm, 28th March 2011

My Lords, I am grateful to everybody who has spoken in this debate. There have been many powerful speeches this afternoon, particularly from the right reverend Prelate the Bishop of Ripon and Leeds, and the noble and learned Lord, Lord Woolf. My experience of the utterances of the senior judiciary, whether serving or retired, is that they do not use words like sacrilegious and sacrilege lightly, so the Government would do well to reflect on what the noble and learned Lord said.

The Minister says that he wants to build on the work of the Youth Justice Board. If I thought that he was going to do a loft conversion I would not be too bothered about this, and I certainly would not have moved this amendment. However, he has sounded consistently like a man on the phone to the JCBs, and it is that which has caused great concern, however much tribute he gave to the work of the YJB in the past.

I do not think that we have learnt much more about the case that the Government can marshal on this decision to abolish the YJB. The Minister has been honest and straightforward about it but I emphasise that he and the Government will find that, if they abolish the board, the cost of custody and the cost to the system will rise substantially. I do not think that anyone who has spoken in favour of the amendment wants the Government to be under any misapprehension -that will happen if they get rid of the board and take the functions inside the ministry. It will not only cost the taxpayer more but will do a lot of damage to a generation of young people who get into the criminal justice system and who are both troublesome and very troubled. I have heard the arguments and I wish to test the opinion of the House.

Division on Amendment 20A

Contents 225; Not-Contents 162.

Amendment 20A agreed.

Division number 1

See full list of votes (From The Public Whip)

Amendment 21 not moved.

Amendment 21A withdrawn.

Amendment 21B not moved.

Amendment 21C

Moved by Baroness Whitaker

21C: Schedule 1, page 16, line 36, at end insert-

"(4) Notwithstanding the future of the Library Advisory Council for England, in exercising his responsibility under the Public Libraries and Museums Act 1964, the Secretary of State shall ensure that he has sufficient independent advice for him to enable local authorities to manage their public library duties effectively."

Photo of Baroness Whitaker Baroness Whitaker Labour 4:55 pm, 28th March 2011

My Lords, in speaking to Amendment 21C, I take it as given that the immense value of libraries to our culture, economy and well-being is understood. It was agreed by all sides in Committee, not least by the Minister. The problem is that local authorities often cannot manage the cuts without unnecessarily damaging their libraries. They might think that libraries are a soft option to cut or might not see them as very important, or those who benefit might not be well enough organised to mount enough of a protest, although there have been some stupendous outcries, and rightly so.

This amendment would put beyond doubt that the Secretary of State in exercising his duty,

"to superintend, and promote the improvement of, the public library service", under the Public Libraries and Museums Act 1964 will have the independent and expert resource to help local authorities manage these difficult decisions in the interests of better libraries. Of course departmental officials will be competent and conscientious, and I pay tribute to those with whom I have been discussing this amendment, but with the best will in the world, they are not necessarily going to include among their number the most up-to-date and expert librarians, nor are they independent.

Our public libraries matter enormously. We must ensure that the Secretary of State gets the best advice in keeping them the remarkable asset they are. I beg to move.

Photo of Viscount Falkland Viscount Falkland Crossbench

My Lords, I do not think there is any point in rehearsing what I said when the noble Baroness moved her amendment in Committee. I think all noble Lords understand the value of public libraries to all those in the community who have been fortunate enough to be introduced to books. The trouble addressed in the amendment tabled by the noble Baroness is that you can have libraries, such as the one I visited this morning in the borough of Merton, which, to use common parlance, tick all the boxes. Not only was the library very full and animated, light and airy, well equipped and with a highly articulate staff, it was full of volunteers from the community. I do not think we need lessons from anybody about what constitutes a big society. We already have one. Anybody who goes into a well run public library will see that it already exists.

The problem addressed by the noble Baroness-I hope that the Minister will be able to give me some encouragement on this-is that you have good libraries, not-so-good libraries and some that are, frankly, very run down. The interesting thing I learnt this morning when I went into this very well run library and spoke to three highly articulate people who worked for it was that nobody seemed to have heard of the body being abolished. That drove me to ask the noble Baroness what she intended to do with her amendment. I hope the Minister will agree that what good libraries are doing needs to be promulgated widely so that libraries that are not doing well know the standards they can and should reach, and have some idea of how they can do so and can bring in volunteers to give their services to the community. I hope that in her reply the Minister will be able to give satisfaction to the noble Baroness, Lady Whitaker, and other noble Lords who are interested.

Photo of Lord Newton of Braintree Lord Newton of Braintree Conservative 5:00 pm, 28th March 2011

My Lords, I shall speak briefly. I think that in the amendment in the name of the noble Baroness, Lady Whitaker, lurks a wider point that has affected the House's attitude to large parts of this Bill. It is acknowledged-it was certainly implied in the speech made by the noble Viscount-that there remains a need for spreading good practice and for an advisory role of some kind in order to preserve and enhance library services around the country. I do not know whether the Government accept that but I do know that, for a variety of things, we have been told that these bodies do things which need doing but that they will be done in a different way. It is just that we do not yet know how they will be done. I have sought to address that more general point in one or two of my later amendments.

While, on the whole, I hope that the noble Baroness will not press her amendment-I have been bad enough today already-I hope that she will get a constructive response. Around the country-my observation is only in eastern England-wildly variant policies towards libraries are being pursued by different local authorities. I am not sure that I really believe in a complete postcode lottery for libraries any more than I do for anything else.

Photo of Baroness Bakewell Baroness Bakewell Labour

My Lords, I have not spoken on the subject of libraries previously and I support the noble Baroness in her amendment. My point follows on from what the noble Lord has just said and it is about local authorities rather than libraries. Local authorities have a spread of responsibilities which, particularly now, are accentuated by the burden of cuts that they have to impose. There is an opportunity for them to see libraries as an easy touch. There is a myth abroad that libraries are the territory of the well heeled, middle class who regularly read books but who, in their own lives, buy the books that they want and then patronise the users of libraries by pretending that they are concerned. That is by no means the case.

The evidence of the use of libraries across the country is extremely varied from one library to another and from one part of the country to another. It is also varied in the use that is currently being made of libraries by the public. Libraries have long ceased to be only rows of books for the middle classes. They are used by mothers with buggies full of children and large areas are set aside to serve such people. They are used for story telling by informed librarians and teachers who spread the idea of reading stories among young people, thus giving them an appetite for creativity and reading for the rest of their lives. They are used by people who want to read newspapers but cannot afford to buy them. They are used by the old to find company and some interest in life. They are used by the local community to consult documents issued by agencies, government bodies and local authorities.

The spectrum of people who use libraries needs to be understood by local authorities. Who will make that available to them? We need an advisory council which can come across with the information that will help them make the right decision. The body to which this amendment refers does that.

Photo of Baroness Jones of Whitchurch Baroness Jones of Whitchurch Opposition Whip (Lords), Shadow Spokesperson (Culture, Media and Sport)

My Lords, I thank my noble friend Lady Whitaker for pursuing this issue today and for allowing noble Lords from all sides of the House to emphasise the vital role that libraries continue to play in their community. Once again, the debate has highlighted the major disquiet that many people feel that their cherished local libraries will not survive the squeeze of local government cuts. This is at the heart of the problem because there is a sense that no one in government is championing their cause. You could say that libraries are an orphan service looking for shelter at a time of economic uncertainty and so far have not found it. On the one hand, policy for libraries still lies with DCMS-I am sure that the Minister will once again speak warmly of the important service that libraries provide-while, on the other, the money to fund the library service lies with DCLG, whose overriding obsession seems to be to cut budgets at any cost.

The Government are already taking steps to abolish the only other national library advisory body, the Museums, Libraries & Archives Council. Now, the only national body able to speak up for the service is to be subsumed into the Arts Council, with a real fear that it will disappear for good.

I do not feel in a position to judge the success of the Advisory Council on Libraries, but I agree with my noble friend Lady Bakewell that libraries around the country are already going through a revolution, opening up their venues to new forms of learning and studying, providing essential access to information and making the links between books, music, theatre and the wider arts. Staff are doing a magnificent job in redefining the service for the 21st century so that libraries remain relevant and loved by their local community.

How can we be reassured that the Arts Council will retain the professional knowledge to give the advice that libraries will need if they are to flourish? How can we be sure that the Arts Council will champion the service when it has so many other priorities? Is this amendment not just a small gesture to reassure libraries at least that the department is serious about protecting their interests at a time of such uncertainty in the rest of the sector?

Photo of Baroness Rawlings Baroness Rawlings Lords Spokesperson (Department for Culture, Media and Sport), Baroness in Waiting (HM Household) (Whip)

My Lords, I am grateful to all noble Lords who have spoken. I thank the noble Baroness, Lady Whitaker, for tabling the amendment and for giving the Government the opportunity to make it absolutely clear that we are committed to the effective management of library services. Consequently, we totally support the underlying spirit of what is a probing amendment. I thank the noble Baroness also for her openness to constructive dialogue on this issue. It has led to a position where the department is under no illusions about the importance of this issue in your Lordships' House and where the Government can provide clear reassurances about how advice is provided to local authorities.

It is worth me making clear from the outset that we believe that existing legislation provides sufficient protection for library services. The Public Libraries and Museums Act 1964 requires the Secretary of State to superintend, and to promote the improvement of, the library service provided by local authorities in England and to make certain that local authorities fulfil their duties as defined by the Act. The noble Baroness, Lady Bakewell, made a good point about local authorities. That is why we are pressing for improvement.

Ministers are committed to fulfilling their statutory duties. The Secretary of State is providing important practical help and advice for libraries and contributing to the improvement and development of the sector through the Future Libraries Programme. The programme was announced in July and is led by the Museums, Libraries & Archives Council and the Local Government Association. They support more than 30 local authorities participating in the programme to explore options that will help them to deliver more efficiently the front-line services that communities want and need. In line with the decentralisation agenda, the programme encourages local authorities to find their own solutions to the challenges that they face.

The noble Baroness, Lady Jones, felt that there was no support for libraries. I say to her with due respect that she is mistaken, as the goal of the Future Libraries Programme is to share insights from the 10 pilot projects. This will allow local authorities to identify ways in which effective and efficient services can be maintained by taking a longer-term and more strategic approach to the way that libraries are improved. In addition to the Future Libraries Programme, the Museums, Libraries and Archives Council promotes best practice and provides support and guidance to local authorities. Arts Council England will assume responsibility for improving and developing library services following the abolition of the Museums, Libraries and Archives Council. We will work with Arts Council England and Local Government Improvement and Development to continue to make the best-quality advice available and accessible to support local authorities. We will be discussing a new programme of projects to drive the improvement of library services.

This Government are acutely aware of the statutory obligations needed to improve library services and to make certain that local authorities have the advice and support that they need to deliver an effective service. The noble Viscount, Lord Falkland, is right: there are good ones and bad ones, and I reiterate the need to make the improvements. This obligation and this Government's commitment already exist without the addition of a further statutory duty such as that proposed in the noble Baroness's amendment, and therefore I hope that she will feel able to withdraw it.

Photo of Baroness Whitaker Baroness Whitaker Labour

My Lords, I thank all noble Lords who have spoken. They have all added appreciably to the debate. I also thank the Minister for her broadly supportive response. I would rather that there were more in the Bill but I accept that much is going on, and the combination of the MLA and the Local Government Association sounds a very powerful one. The Minister gave very interesting information about the 10 pilot projects. I hope that she will communicate the results to the House, as that would help to reassure us. I beg leave to withdraw the amendment.

Amendment 21C withdrawn.

Clause 2 : Power to merge

Amendment 22

Moved by Lord Taylor of Holbeach

22: Clause 2, page 1, line 15, leave out "Subject to section 16,"

Photo of Lord Whitty Lord Whitty Labour

I beg your Lordships' pardon.

Amendment 22 agreed.

Amendments 23 and 24 not moved.

Schedule 2 : Power to merge: bodies and offices

Amendment 25

Moved by Lord Taylor of Holbeach

25: Schedule 2, page 17, line 14, at end insert-

"Group 5

Competition Commission.

Office of Fair Trading ("OFT")."

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach Conservative 5:15 pm, 28th March 2011

My Lords, now we are on Amendment 25 and I am sure that the noble Lord, Lord Whitty, will be pleased that we have an opportunity to debate it. I am much relieved, as my notes for Amendment 22 had long since disappeared.

Government Amendment 25 would add the Office of Fair Trading and the Competition Commission to Schedule 2 to the Bill, which, as noble Lords will remember, deals with mergers. The purpose of the amendment is to provide a vehicle through which to take forward a merger of these bodies, and it responds to a commitment made in our debate in Committee.

I should remind noble Lords that the Government are also minded to transfer most of the consumer enforcement functions and resources of the Office of Fair Trading to trading standards, and advice, information and education functions and resources to Citizens Advice. For that reason, the OFT will need to remain in Schedule 5 in order to facilitate the transfer of most of these functions prior to the expected order to merge. A number of points relating to the consumer landscape were raised by noble Lords in Committee and I am happy to answer questions that may occur in today's debate.

In Committee, the noble Lord, Lord Dubs, asked for more detail about the Government's proposed consultation. I can inform him that the Government published their proposals for consultation to merge the competition functions of the Office of Fair Trading and the Competition Commission and on other changes to the competition regime on 16 March. I do not know whether noble Lords have been able to obtain a copy, but it is a substantial document of 172 pages, covering the breadth of that particular aspect of government. The consultation will run for three months. The Government hope for as wide an engagement as possible, including holding seminars and specific meetings focused on specific issues. The Government intend to issue in May a further consultation document covering a model for the consumer landscape.

Growth matters now more than ever. Businesses-particularly SMEs-and consumers have been hit hard by the economic crisis. Reform is now important to create the right environment for business to create and enter new markets-reducing barriers to entry and encouraging rivalry between firms to promote lower prices and better quality products and services. There is longer-term potential for growth through benefits reaped from innovation that stems from greater competition in the market place.

Competition is the cornerstone of growth, innovation and consumer choice. The UK competition regime is regarded as one of the best in the world. But it can and should be even better. That means that we also need to have a strong regime to promote effective competition in markets. The Government believe that creating one, powerful Competition and Markets Authority would ensure a more dynamic and flexible use of competition tools and resource and a single advocate for competition in the UK and internationally and would end duplication for business.

The proposals in the consultation document include: creating a single, powerful advocate for competition to ensure a dynamic and flexible use of tools to promote strong and fair competition; increasing business confidence through faster decision-making, ending duplication and giving more predictability of competition processes and decisions; reducing barriers to entry by making it easier for the competition authority to tackle anti-competitive mergers and reforming anti-trust provisions to increase deterrence of anti-competitive and abusive behaviour; delivering faster results for consumers by shortening end-to-end studies and investigations into markets where lack of competition is giving consumers a raw deal; reducing the SME burden by introducing an exemption for small mergers from the merger control regime; and giving small business a voice in an extended super-complaints process to spotlight market features that harm small companies.

Those proposals are an excellent opportunity to strengthen and streamline the competition regime to deliver better outcomes for consumers and increase business confidence. The Government want to strengthen and improve the UK's competition regime in order to promote growth, innovation and competition. The proposed merger of the OFT and the CC is about creating one, single competition authority that is dynamic and efficient and retains the best aspects of those bodies. The proposed transfer of the OFT's consumer functions to organisations better placed to ensure enforcement against rogue traders and businesses and give consumers the advice that they need is important to ensure action can be taken at a local level. The Government are consulting on all these proposals. I beg to move.

Photo of Lord Borrie Lord Borrie Labour

It would be churlish of me not to welcome the 172-page document that has been issued. I have been one of those who has suggested that one common feature of the Public Bodies Bill is that whole lists of organisations covering every conceivable subject were inserted into schedules, in nearly all cases without any explanation as to why or how their functions would be replaced or where we were to go from here. It was a rushed job. Among the bodies listed when Schedule 7 existed-and I am glad that the Government have got rid of it-were the Office of Fair Trading and the Competition Commission.

The Minister said several months ago when we first touched on this, at Second Reading and in Committee, that the intention was to merge those two bodies. Then it became clear that they were not being abolished but somehow brought together. I say "somehow" because it is only now, or 10 days ago, that we have had the 172 pages of explanation. Delighted though I am to see that document, it still raises the issue of how the Government still want by this amendment to insert the Competition Commission and the Office of Fair Trading into the schedule when they have not yet had the outcome of the consultation. In other words, the Government still want to determine the future and merger of these two bodies before they have received the answers to the question that the consultation paper very fairly raises of what the advantages or disadvantages would be of a merger.

It is not appropriate in this debate to raise large numbers of issues about that very lengthy document, and I hope there will be other occasions on which to do so. However, in relation to the Office of Fair Trading, which is to become part of the Competition and Markets Authority, a number of provisions in the first eight or 10 sections of the Enterprise Act 2002 list a whole lot of functions for the Office of Fair Trading-to promote consumer interest, to educate and inform consumers and to have various other functions. The Minister might say that some of those functions will go to Citizens Advice and some will go to trading standards offices. That might be so. However, as a debate on this Bill and the loss of the National Consumer Council indicated, the Minister explained that Citizens Advice would be adequately resourced to be able to substitute for what the NCC now does. The suggestion in the consultation paper to which the Minister now refers indicates that the consumer functions of the OFT are to disappear, as are the consumer functions of the National Consumer Council. Am I right in thinking that that is the result of bringing together the competition functions of the OFT and the Competition Commission?

Furthermore, how are the new bodies to function? I am interested to find that the consultation document seems to further the idea that has been working well for 40 or 60 years of a two-stage investigation. The main first investigation, the prosecutorial investigation, was done by the first government department, and then the OFT when it came into existence. The second stage investigation was of a more quasi-judicial type, with experts from different parts of business and the professions brought together in panels to determine individual cases. That range of expertise to be drawn upon by the Competition Commission has generally been thought of, internationally, as a very helpful procedure. As far as I read it-I hope that this is broadly correct-it is intended that the panel system should continue but it is suggested that more people should be full-time rather than part-time. I have generally thought that the very part-time nature of the Competition Commission's panel members is their plus point, because on every day of the week except for one, or perhaps two, they are in their own business, profession or work and bring that in to inform their work as members of the Competition Commission when investigating cases.

I then noticed that it is intended that the actual employees-the economists, lawyers and civil servants within the Competition Commission-are to operate as teams not just at one stage or at the second stage but right the way through. That might be because there is a conflict in the mind of the Government. It might be to do with wanting to save money, which you do if only one team operates on the same case throughout instead of moving from one to another. Yet it also makes it more difficult, surely, for the second stage to be truly independent of the investigation. To make a rather crude analogy, you have the work of the court getting mixed up with the work of the investigators and the police.

I have those various doubts and questions, but then I, like everyone else who has it, has only just received the consultation paper. I think the noble Lord said that we have two or three months to go through it and give our answers but why, here and now in March when the consultation paper has only just gone out, are we as the House of Lords being asked to determine in this Bill that there shall be a merger of these two bodies?

Photo of Baroness Kingsmill Baroness Kingsmill Labour

My Lords, I support much of what my noble friend Lord Borrie has just said. I have always been in favour of a merger of these two bodies and am pleased to see that the Government are thinking of bringing that about. I have received the consultation paper and I have not yet come to terms with all the points therein. This is a merger that, on the face of it, has a lot to commend it-as I said, I have always supported it-but I feel that the devil is in the detail and that there is much detail to be determined.

From what I have seen in the consultation paper, the one aspect that I regret is the separation of consumer protection from competition issues. When I was at the Competition Commission, our primary and overriding rule was the public interest. We felt constantly that we were protecting the interests of consumers. It is regrettable to separate out those consumer interests and consumer protection from the competition regime. While it is very good that it is proposed that the panel system should be retained, the balance between that panel of, if you like, independents and the professionals who are fully employed must be carefully regulated. I also agree that the part-time nature of the role is one thing that enables its independence and expertise to be maintained.

We also ought to be looking at the separation of the two roles or stages within the competition regime. The first stage is a sort of triage: how serious, how big and how important is this, and what are the main issues? It is important to have that first stage, and it is fundamental to the fairness of the whole procedure that, once that triage stage has happened, it should move on to another panel that looks at it afresh, having had the triage diagnosis to enable it to do so. From my point of view as an ex-regulator and as one who is now on the boards of many companies that have undergone and are undergoing competition investigations, business needs certainty and speedy results. We must ensure that the merged body produces both. If it does, as a result of the consultation document that emerges, that could be a very good thing.

I continue to have a number of questions about this and I think it is a shame that this merger should be regarded and looked at in the context of the Public Bodies Bill. It deserves a piece of legislation of its own and should not just be shovelled in with the consultation document, with such a short time to consider it. Having said that, it is, on the face of it, an appropriate merger.

Photo of Lord Dubs Lord Dubs Labour 5:30 pm, 28th March 2011

My Lords, the Minister promised us a consultation document when we debated this in Committee, and we have to welcome the consultation document even if we cannot resist saying, "Decide first and consult afterwards". I suppose if the Minister says that the consultation will be on the detail, that is fair enough.

Since we last debated this issue, I have had a chance to talk to people who know a bit about Citizens Advice and trading standards, and there is a lot of concern as to whether trading standards will be able to manage it, partly because of the cuts in resources to local government and partly because of the question of how trading standards people somewhere in a town such as Carlisle manage to deal with a complaint against British Airways or some other large organisation. Are they well enough geared to take on some of the big boys when they are a small trading standards body in a moderately sized town in the north of England? The balance is not the same as it would be between the Competition Commission and British Airways or between the OFT and British Airways.

However, I am most concerned about the central issue. Of course I welcome the merger of the OFT and part of the Competition Commission, although I am worried about the other parts. I wonder how the process will work. Certainly there will be a detailed input into the consultation process from people who know a lot about it, but what chance will Parliament have to look at the results of the consultation? What chance will we have to influence the new body through legislation? I agree entirely with my noble friend Lady Kingsmill when she said it ought to have legislation of its own. After all, these bodies were set up through primary legislation. The issues are large enough and important enough to merit a proper debate, with the chance for us to amend the legislation and use the experience that we have, together with the result of the consultation, to see how we can make it better. As I understand it-I hope I am wrong-the Government will simply consult, although they might publish the results of the consultation, and then the legislation will happen through an order that will be unamendable. I fear that Parliament will not be able to play its part and we shall lose some of the benefits of the process that primary legislation gives us.

Photo of Lord Whitty Lord Whitty Labour

My Lords, my apologies for my premature intervention earlier. I will not repeat everything that my colleagues have said, but we have a potential dilemma here. People are in broad terms in favour of a merger, subject to certain caveats, but the consultation paper indicates that the total approach to competition policy and consumer policy in which this new merged body would operate has yet to be determined. Many of the options in the paper-changes in the mergers procedures and in the relationship between the new Competition and Markets Authority and the sector economic regulators-would indeed, as my noble friend Lord Dubs implies, normally require primary legislation. Changes in the ability of people to raise super-complaints probably do not require primary legislation but the implication of giving that right to SMEs is that some of this is about monopsony and oligopsony as well as monopoly and oligopoly. That certainly requires some explanation and some primary legislative change.

The reality is that the arrival of this document a few days ago indicates that the Government's strategy of introducing a new competition institution by the merger of these two bodies can be properly assessed by Parliament only if you have the totality of the change to the competition regime as a whole. It ought to have been a principle of this Bill that bodies whose basis will require primary legislation should not therefore be dealt with solely on the basis of secondary legislation provided for by this Bill. We saw a smaller example of this the other night when the Government withdrew in effect the proposals for the Security Industry Authority, which will require primary legislation to change to where the Government wish to go.

There is a bit of a constitutional issue here that the Government should be aware of. In general, it is a good idea and I do not propose to oppose it, but the Government are in a bit of a dilemma here and in reality we will have to have a competition Act before we can deliver the new body that the Government are envisaging.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, it is important that this is just a preliminary stage to enable this consultation to happen and, if the results of the consultation are sufficiently clear, to go forward with an order that is, as I understand it, amendable-my noble friend will correct me if I am wrong but I think I am right. If one had to do a lot of these exercises through full primary legislation, not only in competition but in all the other areas that this Bill covers, one would have no time in Parliament to do anything else. A review of this kind requires some mechanism of this sort, and we have endeavoured to make the mechanism as close and as secure as we can. It would be a pity to lose this opportunity to do what might be possible in this way, and, so far as I am concerned, putting this into the Bill at this stage is a step in the right direction.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach Conservative

My Lords, I thank all noble Lords who have spoken because I think this has been very useful debate. I emphasise the point made by my noble and learned friend that by inserting these bodies into Schedule 2 we are not predetermining their merger; we are facilitating their merger after a consultative process. Indeed, although statutory instruments are not normally amended in this House, an enhanced procedure in this Bill will enable a full consultative process to take place on the statutory instruments that might be brought before Parliament.

More to the point, the whole process has been evidenced in the foreword, and if noble Lords have got no further than page 1 they will see the foreword by my right honourable friend the Secretary of State Vince Cable in which he talks about the wish to be transparent and open about this process. Indeed, it is in the Government's interest because the contributions made by noble Lords today have been remarkably powerful and useful. I hope all noble Lords who have spoken will feel free to involve themselves in the whole consultative process, because every single one of them will bring their experience to this regime.

I welcome the comments made by the noble Baroness, Lady Kingsmill, about the strategic objective-trying to get a unified Competition and Markets Authority in place with a primary purpose to be decisive, well informed and speedy. Business demands that of us. We live in a highly competitive world, but we can help ourselves and our fellow industrialists and businessmen by the way in which we construct markets and make sure that they operate in the country's economic interest and in the consumer's interest. Although the consumer interest part is being transferred-it will be much more heavily based in trading standards and Citizens Advice-the regime will be co-operative; trading standards officers will still feed in abuses of the market that have become apparent during their investigations.

The noble Lord, Lord Dubs, wondered whether small trading standards departments would be able to take on large organisations. With the backing of competition law, it does not matter how small the authority might be; the power of the law in this regard means that no business, however large, can afford to ignore it. Any systemic abuse through the structure of trading conditions is just the sort of thing that the new authority will take up and investigate at speed.

I am pleased that the idea of the panels is being welcomed. It is part of the detail in the consultation. In many ways, it would be wrong to use this speech to try to predetermine the outcome of that consultation, but there are in the consultative documents steers and guides, at least, to the sort of outcome for which the Government wish. I am moving my amendment today with the idea of facilitating that outcome. Parliament's role will be to scrutinise both the consultation and anything that is produced under the Bill.

Amendment 25 agreed.

Amendment 26

Moved by Lord Newton of Braintree

26: Schedule 2, page 17, line 14, at end insert-

"Group 5

Administrative Justice and Tribunals Council.

Civil Justice Council."

Photo of Lord Newton of Braintree Lord Newton of Braintree Conservative

My Lords, until about an hour ago I had intended and expected to wind up this speech by claiming a concession from the Government as a reward for good behaviour. Unfortunately, we have just had the debate and vote on the YJB, so my chances of any kind of reward for good behaviour have gone up in smoke. Nevertheless, I hope for a reasonable and positive response from my noble friend.

It is clear to me that the House is fed up to the back teeth with this Bill and would like to see the back of it. Everybody wants to make progress and I will try to fit my speech to that. It is four months since we last debated the Administrative Justice and Tribunals Council and probably five months since we started to talk about this wretched Bill, so I understand the desire to get on.

Four months ago, we debated the inclusion of the Administrative Justice and Tribunals Council in Schedule 1. An amendment in the name of the noble Lord, Lord Borrie, to take it out of the schedule was defeated. I know that I cannot reopen that debate and I am not seeking to; rather, I am looking through these amendments, which I hope people will have realised are designed to add the justice councils to Schedule 2 and other schedules, to give the Government other options. I hope that the Government will feel that that is a reasonable add-on. It does not detract from the fact that the AJTC remains in Schedule 1, so that, if the Government want to bring forward an order to abolish it, they are quite at liberty to do so-my amendments would not prevent it.

I hope that my mentioning the Civil Justice Council, which was originally included in Schedule 7, has not upset the judges, but I am slightly disturbed by the fact that all the judges on the Cross Benches appear to have fled since the earlier debate. I emphasise that my intention is in no way to threaten the Civil Justice Council but to see whether we can make a more rational disposition of advice on justice matters across the board.

In passing, I observe that my confidence in Ministers has been encouraged by some of the things that have happened since the earlier stage, when I was, frankly, most irritated by the clearly spurious and flimsy arguments that they were using or causing to be used. At least they are now admitting that, in effect, the primary motivation is to save money. The Secretary of State says in a letter, after various preliminaries, that any change of the kind that I am proposing in the Bill-and, as far as I can see, any other change-is,

"undesirable as it would mean that we would not make the savings from the AJTC's abolition that we are planning for".

At least that is straightforward. I can understand it and even relate to it. I was for most of 10 years a Social Security Minister, including three years as Secretary of State. I know what it is like to have the Treasury breathing down your neck, demanding whatever it is that it demands; you know that you are going to have to do some unpleasant things. I recognise that, but what I cannot quite stomach is the notion that, as a country, we are now so impoverished that we cannot spend a little money in this field related to justice between the citizen and the state. Are we really now that poor?

I also cannot accept the argument that everything that the council does could be done-this echoes earlier debates-just as well by the Ministry of Justice. I asked previously what would happen when people made representations about, for example, the effect on tribunals of proposals for legal aid made by the same Secretary of State. How would any part of the ministry take an objective view on that? That would all be part of department policy and the ministry would just have to straddle both horses. I do not accept that the ministry will be able to do some of the things done by the council or, indeed, by the former Council on Tribunals-I see my predecessor on that body, the noble and learned Lord, Lord Archer of Sandwell, in his place.

For me, the main point is that, although the Ministry of Justice now takes what are labelled as administrative justice decisions, the responsibilities for those run right across government. For example, the AJTC is taking a big interest in getting things right first time-improving initial decision-making-which we would all like to see. That is something for every department in Whitehall. The MoJ does not have responsibility for ombudsmen, although, according to its latest pronouncements, it has ambitions to learn a bit more about the subject. The Cabinet Office has that responsibility, although it has not been every effective in that respect, as different government departments have had all sorts of different policies, to the extent that there have been competing ombudsmen in the same field. Even now, the DCLG has proposals in the Localism Bill about ombudsmen that have enflamed more or less the entire ombudsman world. Where does that leave the Ministry of Justice? Will it attack the DCLG? Has it had any influence on those proposals? I doubt it. I simply do not believe that the MoJ can do what it says on the tin.

That links with my second point. Why preserve the Civil Justice Council, which I am in favour of, and the Family Justice Council, which I am also in favour of, but abandon the one council which is concerned with justice between the citizen and the state and which has a 50-year-plus track record of bringing about improvements in that area? Let us be clear: we are not talking here about great judicial reviews or developers seeking to get their plans past a planning refusal. We are talking about hundreds of thousands of social security claimants, people claiming disability benefits, people who are under compulsory orders going to mental health tribunals and a whole range of others. I have the figures here-I was going to cite them but I will not-and the figures, particularly for those who are on social security and disability benefits, are rising all the time, partly because of the economic problems that we have. Why is this the Cinderella? Given that we are talking about the interests of many of the least articulate and most vulnerable people in our society, this is totally in conflict with coalition rhetoric.

Photo of Lord Archer of Sandwell Lord Archer of Sandwell Labour 5:45 pm, 28th March 2011

Since the noble Lord was kind enough to tempt me to my feet, would he agree that many local tribunals and public bodies lead lonely lives, and that the great contribution of a central body is that it can collect and disseminate experience and best practice? If that were missing, everyone's performance would suffer.

Photo of Lord Newton of Braintree Lord Newton of Braintree Conservative

I agree. It tempts me to extend my remarks a fraction further to a point I had omitted. The Ministry of Justice knows nothing-and, frankly, as far as I can judge, cares less-about large amounts of administrative justice that relates to local authorities, including, in education, school admissions and exclusion appeals. Many people may regard this as trivial but it also includes the whole area of decriminalised car parking. These are things that affect citizens. They have nothing to do with the Ministry of Justice but they amount to important areas of administrative justice.

I made the point in my earlier speech-I will not repeat it in extenso-that the terms of reference of the Civil Justice Council are, in effect, identical to those of Administrative Justice and Tribunals Council. I will make a few further points before I conclude. Notwithstanding the disappearance of the CJC from Schedule 7 to the Bill, the Government have already cut its secretariat and merged it with that of the Family Justice Council. In respect of the various procedure rule committees, including tribunals, all of which were in Schedule 7, the Government have already put all the secretariats into the same team. They argue that this makes better use of resources. It probably does. However, my amendments simply go with that flow. They create the possibility of what I regard as rational alternatives to abolition, but they do not prevent the Government going for abolition if that is what they continue to want to do. Even if I cannot claim a reward for good behaviour, I can claim a response to rationality, reasonableness and a powerful argument.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My noble friend bemoaned the fact that the judges had all fled, but the noble Lord, Lord Elystan-Morgan, is still there.

Photo of Lord Newton of Braintree Lord Newton of Braintree Conservative

I apologise to both my noble and learned friend and the noble Lord, Lord Elystan-Morgan. I had in mind those who contributed to an earlier debate. If they all now chip in to support me, I shall give them brownie points as well. My noble and learned friend Lord Mackay might help, too. I beg to move.

Photo of Lord Howe of Aberavon Lord Howe of Aberavon Conservative

I do not rise for brownie points, which I probably deserve in no circumstances whatever. I am rather alarmed that my contribution to this discussion, in support of what my noble friend said, is founded on my experience almost exactly half a century ago. I make no apology for that. It takes me back to the second half of the 1960s, when the electors of Bebington decided to give me four years leave from the other place, during which time I concentrated on my practice at the Bar. Two of the most important matters with which I was involved concerned the very issues that my noble friend has just talked about-issues affecting real people in the face of difficult circumstances.

For nine months I represented the colliery managers in the Aberfan tribunal inquiry, conducted by Lord Edmund-Davies and his expert wingmen. He did not consider the matter alone but with expertise to help him. Every one of those people whose actions were being criticised, or whose grievances were being represented, were represented by counsel before that administrative tribunal.

Not long after that, I was invited by Kenneth Robinson, who was then Minister for Health in the department presided over by Richard Crossman, to conduct an inquiry into alleged misconduct and mishaps at the Ely Hospital in Cardiff. That gave me some insight into the way in which administration in search of justice can get up to some very curious things. I had three advisers-one consultant psychiatrist, one hospital board member and one senior nurse. We set out by saying, "Please may we announce our existence to the public so that we can call for evidence?". "No, no", came the answer to that. However, we decided that we would not start our work without it, and were able to make that announcement and continue with our inquiry. We were not given any counsel to the tribunal, as such. There was no official solicitor to help us in an investigation, so I had to perform the task of being both chairman of the inquiry and interrogator and, therefore, quasi-prosecutor. It was not exactly comfortable.

At the end of our inquiry, which did not take very long, we produced a report and submitted it to the Welsh health authority for publication, as we thought. However, we were told that it would certainly not be published and we were asked whether we could make a rather different version of the report that we had first filed, confining it to facts and not judgments. Happily, I had a Cambridge acquaintance who was special adviser to Richard Crossman. Many in this House may remember him-Brian Abel-Smith. I was able to convey that strange news to where it mattered and we were then able to produce an alternative version to the one that we were compelled to produce in the first instance. Richard Crossman did not hesitate to publish the full version of that report. Anthony Howard, whose recent death we all mourned, in writing about Richard Crossman said that that publication was,

"perhaps the bravest action of his political career".

Certainly, I like to think that it was something that made a major contribution to the consequences of our inquiry, about which I make no boasts or gestures whatever. We were doing a job and were allowed to do it, but we had to wrestle at various stages to get the framework right.

Since then, I have been involved in different ways in other comparable inquiries and have witnessed others. One in which I was involved most tenaciously for some time was that presided over by the noble and learned Lord, Lord Scott-Lord Justice Scott as he was then. Two other inquiries followed soon after that one. One was presided over by Lord Justice Phillips, now the noble and learned Lord, Lord Phillips, and the other by the noble and learned Lord, Lord Hutton. In those tribunals there were no wingmen, as I have put it, sitting on either side of the noble and learned Lords; they had to conduct the tribunals on their own. In the tribunal of the noble and learned Lord, Lord Scott, no representation was allowed on behalf of any of those people giving evidence to or being judged by the tribunal. That was notwithstanding my submissions as former Foreign Secretary on behalf of the many diplomats whose conduct was being scrutinised, or the interventions of the noble Baroness, Lady Symons, who was then in charge of the First Division Association.

As I say, I believe that Lord Justice Hutton had no legal representation, and certainly no wingmen, to help him. On the other hand, the noble and learned Lord, Lord Phillips, had the full range of expertise alongside him and full representation by lawyers throughout the case. I give those examples without wishing to criticise the principal actors in them as they illustrate the diversity of the different judgments that have to be made when deciding what kind of tribunal to set up, how to formulate it, what tasks to give it and so on. For that reason I was conscious throughout those proceedings of the opinions being offered-sometimes not soon enough-by the Administrative Justice and Tribunals Council. I subsequently wrote a piece in the Political Quarterly, from which I wish to quote. It states:

"A number of studies have now been done (or recommendations been made in individual reports) about the factors that have to be taken into account by the appointing minister (or other authority), as well as by the leader of an inquiry. And all these data have now been re-summarised and drawn together in one place within government. That will help, of course. But I am convinced that one thing more remains to be done. We need to ensure the continuous availability of a small corpus of people with experience of this work (not just in one department), who can be thoroughly consulted by those involved in shaping any fresh inquiry. For the necessary decisions often have to be taken under pressure and at speed. In such circumstances, paper-borne wisdom is no substitute for experience ... It is this practically tested know-how which has to be accessible whenever it is needed".

It is against that background that I intervene in the debate on this amendment because it seems to me that the council presided over for many years by my noble friend Lord Newton is an organisation which certainly deserves to survive in one form or another. It may be possible to change it or to shuffle it into different places but it has met a very important need and has accumulated wisdom over the years from diverse sources. The Government should proceed with the utmost caution in handling the future of this organisation. They should in particular pay attention to the submissions made by my noble friend Lord Newton of Braintree.

Photo of Lord Borrie Lord Borrie Labour 6:00 pm, 28th March 2011

I congratulate the noble Lord, Lord Newton of Braintree, on devising a way of trying to ensure some sort of future for the Administrative Justice and Tribunals Council after my failure in Committee to secure a vote against abolition. I failed by nine votes despite the support of several Law Lords present on that occasion and of the noble and learned Lord, Lord Howe of Aberavon. I remember that on one occasion when we debated this matter the noble and learned Lord, Lord Woolf, stressed the very point just made by the noble and learned Lord, Lord Howe of Aberavon, on the significance of the work done by the Administrative Justice and Tribunals Council for ordinary people in this country. Often that work is much more important for ordinary people than that done by the courts of our land. The noble and learned Lord, Lord Woolf, emphasised the tribunals to which the noble Lord, Lord Newton, has referred and added in employment tribunals. You could hardly have a more significant set of judicial bodies than employment tribunals when dealing with the troubles of ordinary people such as unfair dismissal cases.

The Government narrowly won the vote on this issue in Committee but in seeking to defend the Ministry of Justice from the queries that some of us had raised the only answer they could provide was that the relevant tasks could be carried out by the Ministry of Justice. Of course, the Ministry of Justice has a great deal to contribute on policy and other areas of administrative justice but it cannot replicate the advice and role of independent people from outside the department who have a range of experience. That experience can be tapped individually by the department; indeed, I think that the ministerial representative said that. However, if this council disappears, you will not get a group coming together and discussing among themselves the important issues of administrative justice. They will merely be seen individually by an appropriate department civil servant and we may or may not hear the results of that discussion. Therefore, I again congratulate the noble Lord on bringing forward the amendment and hope that he will press it to a vote.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Labour

My Lords, since the noble and learned Lord, Lord Mackay, does not seem to be tempted by his noble friend's invitation I rise to respond on behalf of Her Majesty's loyal Opposition. Not surprisingly, we wholeheartedly support the amendment moved by the noble Lord, Lord Newton. I take this opportunity to commend the noble and learned Lord, Lord Howe, for his powerful intervention and for the work that he did in relation to the Ely inquiry. The House will know that that was seminal to the material changes regarding mental health which came after it.

I invite the noble Lord, Lord McNally, to consider carefully whether he cannot accept the amendments spoken to so ably by the noble Lord, Lord Newton. As we heard from the noble Viscount, Lord Eccles, in regard to the previous substantive debate that we had on the Youth Justice Board, this is enabling legislation. Notwithstanding the fact that the Administrative Justice and Tribunals Council can be abolished, there is nothing to stop Her Majesty's Government thinking again. They are not bound to abolish it. If they want to abolish it, they should think carefully about how it can still be merged, used or modified in regard to other bodies. I invite the noble Lord to think again about this matter. If Parliament decides that there is to be no independent voice, it is very difficult to see how some of the challenges that have been so forcefully laid out by the noble Lord, Lord Newton, will be responded to.

The noble Lord, Lord McNally, will know the position in relation to legal aid which was touched on by the noble Lord, Lord Newton. As the Administrative Justice and Tribunals Council has recently said in its response to the Ministry of Justice consultation document Proposals for the Reform of Legal Aid, some material difficulties arise in this regard. Your Lordships will know that in its response the council opposed the proposed cuts to legal aid for administrative justice. It gave the example that welfare benefits legal aid cost £28.3 million in 2009-10, representing less than 0.18 per cent of the £16 billion value of benefits that are unclaimed every year. The success rate of legally aided clients in these areas is more than 90 per cent. The council believes that the Government bear responsibility for causing many of the appeals in the administrative justice system through poor decision-making, poor communication, delay and overly complex or incomprehensible rules. Not only will the legal aid cuts affect individual claimants, they will contribute to increasing work and delays in courts and tribunals that are already under pressure. How will such a challenge to the department that is also responsible for legal aid be made, made independently, and by whom? The value of an independent critical eye will remain present. Therefore, merging, modifying or otherwise dealing with this issue remains of critical importance.

I understand what has been said previously about the utility of the council's work no longer being identified, but we have not had an answer to the question posed in Committee by the noble Lord, Lord Newton, and again now, regarding how the department responsible for all these administrative issues will deal with issues such as these. The difficulty will remain. The challenges are likely to be much more honed, because the issues that administrative justice touches upon in its remit, in terms of everyday lives, become increasingly broad. I invite the Minister to consider very seriously indeed merging the council with another body, modifying the constitution arrangements under Schedule 3, or modifying the funding or transferring the functions-but not to expunge them in their entirety.

The noble Lord will know that acceding to these amendments would not oblige the Government to do all or any of those things. They would be given the power and opportunity to do so if they, in their inimitable wisdom, decided, on mature reflection, that the same was necessary.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, in view of what has been said, perhaps I may take this opportunity to indicate that this amendment is eminently supportable and that I hope the Minister will respond positively to it. I felt that I did not want to make two speeches; I thought that I had made one already. Anyway, that is my position.

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

My Lords, that convinces me only that the noble and learned Lord, Lord Mackay, can resist anything except temptation.

The noble Baroness gave some reasons why the Government should give themselves time to think on these matters. She pointed out that this is only enabling legislation, but, as I said in the previous debate, it is better that we have some clarity in what we wish to do. We are aware that the proposed changes to legal aid will put pressure on parts of this sector of justice, and that is why a concerted effort has to be made to drive up the quality of original decision-making. It is the departments and public bodies that make the original decisions that have the primary responsibility to ensure the quality of decision-making. However, this work with the decision-makers will continue, so as to improve getting it right first time. To drive up standards, we will seek to spread lessons learnt among relevant decision-making bodies.

The noble Lord, Lord Borrie, gave the game away when he said that the amendment and the consequential amendments were a perfectly legitimate and ingenious way of asking the House to reconsider a decision it had already made in Committee. However, the department has never hidden the fact that one of the reasons for the decision was saving money. However, as in the recent debates, almost throughout the Bill, opponents to what the Government propose seem to put enormous emphasis on the benefits that arm's-length bodies can deliver and give no credit at all to the fact that one of the beauties of our system was that one check and balance on the delivery of policy was the direct line of responsibility running from Ministers in their departments through to the Floors of both Houses. We do not accept the idea that all these things have to be done by arm's-length bodies, nor do I accept that the Ministry of Justice knows nothing and cares less about the wider issues of administrative justice. It is unfair to keep on throwing these attacks on civil servants who, in my experience, show an extraordinary commitment in their areas of expertise and are extremely willing to speak truth to power.

I appreciate that the noble Lord, Lord Newton, is passionate about retaining independent oversight of the administrative justice system and that this has motivated this group of amendments. I recently met the noble Lord, Lord Newton, and the noble and learned Lord, Lord Howe, and faithfully took back their messages to the Secretary of State for Justice. Although I acknowledge their experience and knowledge in this area, and I am also grateful for their recognition that the Government have to make tough decisions, their argument did not carry weight with the Secretary of State. I even gave the Secretary of State the advice of the noble and learned Lord that you abolish in haste and repent at leisure-advice that came from his experience with the Metrication Board in the early 1980s.

It is probably no surprise that I have to tell noble Lords that the amendments do not fit with the Government's decision to abolish the AJTC. I should, however, reiterate that our policy is the right one. The AJTC is relatively expensive for the job it does; the context in which it operates has changed enormously since the council and its predecessor, the Council on Tribunals, were founded; and this in turn makes the exercise of its functions outside central government unnecessary and, in fact, a duplication of efforts and resources.

In the case of the Civil Justice Council, I have to say that it is a little odd in the context of this particular Bill that a non-government amendment is tabled to put a body back into the Bill, rather than to take it out. Although I understand why the noble Lord, Lord Newton, has done this, I do not agree that the Civil Justice Council should be in the Bill simply to preserve the functions of a body proposed for abolition. The Civil Justice Council was deemed to perform a function that should remain unchanged; the AJTC was not.

I should like to respond first to Amendment 26. It would enable a merger of the Administrative Justice and Tribunals Council and the Civil Justice Council, and replace them with a new body, or abolish one body, with the remaining one taking some or all of the other's functions. This amendment would not allow the Government to abolish the AJTC and to keep the Civil Justice Council as it is-which is our intention. A merger is not desirable. Putting civil justice and administrative justice together provides too wide a range for one body to cover, and the focus of each is different. Tribunals are distinctive in character from the courts, and we are keen to preserve that difference. There are not sufficient overlaps between the two areas to make the whole manageable.

There are further difficulties-in particular, the difference in jurisdiction. The Civil Justice Council covers England and Wales, but the AJTC's remit extends to Scotland. There are also differences between the ways in which the two bodies are set up. Appointed members of the AJTC are remunerated, whereas Civil Justice Council members are not. In addition, even if the policy was sound, the secretariat that supports the Civil Justice Council would not be in a position to take on additional work without an increase in resources. In addition, even if the increase were relatively modest, the resource could not be funded without jeopardising other areas of the ministry's work.

I turn now to the rationale for abolishing the AJTC. When we considered the reforms to arm's-length bodies we looked at all relevant factors including value for money. The AJTC costs about £1.3 million a year. This may not seem a large sum in the context of the ministry's overall budget, but the Civil Justice Council's budget is £312,000-for a body whose work directly supports the practical operation of the courts. I accept that the Civil Justice Council's functions are similar to those of the AJTC. When we looked at functions, we looked not only at statutory functions but at how the bodies worked in practice. Much of the Civil Justice Council's work, such as the production of advice on the technical aspects of civil costs and policy, and pre-action protocols, directly supports the courts. As noted, the cost of the Civil Justice Council is extremely modest. It has unpaid members and little in the way of secretarial support compared with the AJTC. Taking this into account, as well as the technical emphasis of its work, we concluded that the Civil Justice Council should remain.

The Government's policy takes account also of the changes that have taken place since the AJTC was set up. The most significant is the establishment of the Unified Tribunals Service. We consider the AJTC to be no longer vital because the unified service provides a coherent system of tribunal's administration and judiciary for the tribunals within it. For this reason, we do not need the AJTC's tribunal's oversight function. We should keep in mind that the AJTC is an advisory body; it is not an executive body, a regulator, a judicial body or a tribunal.

Our policy is to reduce duplication of effort and resource, and I do not share the view of the noble Lord, Lord Newton, that we would be taking a retrograde step if we were to abolish the AJTC. I have faith that the Ministry of Justice can work effectively with other government departments, and with other administrations and bodies outside the remit of the Tribunals Service, to ensure oversight and to develop a coherent policy on administrative justice. I appreciate the concerns of the noble Lord about the responsibility for administrative justice policy being spread across several government departments. However, the Ministry of Justice is committed to enhancing its role in wider administrative justice issues and will work closely with the AJTC while it still exists, and with other government departments that have an interest in this area such as the Cabinet Office, which leads on ombudsman policy.

The Government resist Amendment 26, which would merge the two bodies. Amendments 30, 32, 37, 45 and 47 would allow orders to be brought forward to modify the constitutions, funding or functions of the AJTC and the Civil Justice Council. The Government oppose these amendments for the same reason. There is not sufficient reason for us to depart from our original view, endorsed by the House in Committee, that the AJTC should be abolished. It should also not be merged with a body that we wish to retain in its current form. I hope that, in the light of these explanations, the noble Lord will withdraw his amendment.

Photo of Lord Newton of Braintree Lord Newton of Braintree Conservative 6:15 pm, 28th March 2011

My Lords, a number of points have been made. If I attempted to answer them all, I would rerun both the speech I made a while back and the one I made four months ago. Perhaps I may emphasise three points. First, I am not arguing that we should go on with a body costing the sums that the Minister referred to and should instruct it exactly as we do at present.

Secondly, if my remarks were taken as in any way being rude to civil servants, that was not my intention. I have a high regard for them and have worked with many of them. However, they do not want to touch some quite important tribunals in the local authority field with a barge pole-and nor do they know much about them. These are important parts of the system of administrative justice, as are the ombudsmen.

Thirdly, I turn to the geographical points that were made. The AJTC covers not the whole of the United Kingdom but the whole of Great Britain. It has a separate Scottish committee. Since 2007, it has had a separate Welsh committee, voted for by the House. I cannot be certain what will emerge, but there is a strong possibility that Wales and Scotland will decide to maintain their committees while England gets rid of anything similar that it has. That would not make sense.

I find myself in a position that I neither expected nor wanted. There has been a slight flavour in one or two conversations that I have had that those of us who are pushing these issues are simply trying to defend the work that we did over-in my case-10 years. Obviously, that is in my mind. However, if I test the opinion of the House, it will not be for reasons of amour propre but because it would be wrong to do what is proposed. We need to do more to protect the standards of administrative justice and, in particular, the interests of those relatively less well off and vulnerable people who are to a large extent the subjects and users of the system.

I am a bit disappointed that nobody from the Cross-Benches joined in, but I am profoundly grateful to the noble and learned Lord, Lord Howe of Aberavon, for his consistent support; to the noble Lord, Lord Borrie, for his support once again; and ultimately to my noble and learned friend Lord Mackay, who at least made a friendly comment, although I am not sure where it will take him-I am a very friendly towards him too, I might say.

My last comment is about the Minister's suggestion that the noble Lord, Lord Borrie, gave the game away by referring to the process that will be required to pass an order under Schedule 1, or indeed any other schedule. Much of the first part of the debate on the Bill was taken up with my noble friend Lord Taylor of Holbeach introducing safeguard after safeguard on consultation, the parliamentary process and amendability in certain respects, to reassure people that this would not just be a stroke of the ministerial pen. If a game has been given away, frankly, it was by my noble friend Lord McNally who said, "We don't want to prolong all this uncertainty, do we? We can't really have all this upset again by debating an order and possibly not passing it".

It does not stand up with what the Government have said, and what is now enshrined in the clauses of the Bill-with all the consultation and the rest of it. I am not sure that my noble friends will thank me and I do not particularly want to do it, but I shall not feel happy with myself unless I test the opinion of the House.

Division on Amendment 26

Contents 198; Not-Contents 191.

Amendment 26 agreed.

Division number 2

See full list of votes (From The Public Whip)

Amendment 27 had been retabled as Amendment 34A.

Clause 3: Power to modify constitutional arrangements

Amendment 28

Moved by Lord Taylor of Holbeach

28: Clause 3, page 2, line 11, leave out "Subject to section 16,"

Amendment 28 agreed.

Amendment 29 not moved.

Amendment 29A

Moved by Lord Wigley

29A: Clause 3, page 2, line 37, at end insert-

"( ) To the extent that this section may be applicable to Sianel Pedwar Cymru ("S4C"), only subsection (2)(a) to (c) and (g) and subsection (3)(a), (b) and (d) shall apply."

Photo of Lord Wigley Lord Wigley Plaid Cymru 6:41 pm, 28th March 2011

My Lords, I declare my interest in matters relating to S4C, as I did in Committee. I beg to move Amendment 29A in my name and to speak to the other amendments: in particular, Amendment 34B in the name of the noble Lord, Lord Roberts of Conwy, and Amendment 40, in the name of the noble Lord, Lord Roberts of Llandudno.

I shall not speak at length, as I spelt out the general arguments in relation to S4C in Committee. Our concerns expressed at that time remain. They were particularly eloquently expressed during Committee by the noble Lord, Lord Morris of Aberavon, the noble and learned Lord, Lord Howe of Aberavon, the noble Lords, Lord Elystan-Morgan, Lord Richard and Lord Rowlands, and, at that time, by the noble Lord, Lord Roberts of Llandudno, himself. I look forward to hearing his comments tonight. The Government have tabled no amendments to assuage the feelings we expressed.

In many ways, the amendments are being taken tonight in the wrong order. Amendment 40 would remove S4C from Schedule 4, and essentially, from the Bill. That is what most of us from Wales want. Amendment 34B would bring S4C into Schedule 3 -something which many of us regard with trepidation, because that gives the Minister the power to apply the provisions of Clause 3 to S4C; and the powers are extremely wide ranging. It would allow the Minister to modify the constitutional arrangements of S4C in how employees exercise its functions, the power to employ staff, how it runs its committees and how it is accountable to the Minister. All those seem little short of giving the Minister powers by order to micromanage S4C.

Amendment 29A is moved not only to get my retaliation in first, but to cope with the unfortunate eventuality that the amendment of the noble Lord, Lord Roberts of Conwy, should be carried and that S4C becomes part of Schedule 3. Amendment 29A restricts the power given to the Minister to subsection (2)(a) to (c) and (g) and subsection (3)(a), (b) and (d). That would still allow the Minister to be involved with the appointment of the chairman-as he apparently is very much at the moment. It would allow changes to the body and to the offices. It would still allow the powers with regard to reports and accounts, which are perfectly normal requirements in the circumstances, but it cuts out the temptation to micromanage S4C.

I shall be very interested to hear the justification of the noble Lord, Lord Roberts of Conwy, for inserting S4C into Schedule 3. Clearly, the Government did not think that those powers were necessary-otherwise they would have put them in the Bill or tabled a government amendment at this stage-or are the Government leaving their dirty work to a trusted pair of hands, who has bailed them out on so many occasions in Wales over the years? As I said, I would rather that Amendment 34B were not moved at all, or, if it is, that it is defeated. Equally, I urge that Amendment 40, to which I have added my name, should be carried. If it is rejected by the Government, it should be taken to a vote.

All the amendments deal with one simple matter. S4C should never have been in the Bill. The independence of S4C will be critically undermined, as it will be beholden to the BBC Trust for the bulk of its funding, which the Government, without prior consultation, have moved to the licence fee. He who pays the piper calls the tune. S4C will be at the mercy of the BBC Trust for its resources. Its independence will be further eroded by the Minister's indication that BBC staff will sit on S4C's management board-not just on the authority, but on the management board. As such, the BBC will have a preferential position compared to the independent programme producers with whom it competes for S4C's commissions.

The Minister has kindly suggested that S4C can keep its logo. Well, thank you very much indeed, if that is all that independence means. I emphasise that S4C's independence is not philosophical or ephemeral; it is a hugely practical issue. S4C competes against BBC Wales for television rights for sporting and other events. How is it to do so if BBC staff are locked into its management? If it is not meant to compete, how can it be said to be independent in programme content?

I want S4C to be taken lock, stock and barrel out of the Bill. I urge noble Lords to support Amendment 40, to oppose Amendment 34B and to support Amendment 29A if Amendment 34B carries. If Amendment 29A carries, I humbly ask that the noble Lord, Lord Roberts of Conwy, not move his amendment, as the will of the House will clearly be on our side, not his. I beg to move.

Photo of Lord Roberts of Conwy Lord Roberts of Conwy Conservative 6:45 pm, 28th March 2011

I speak to Amendment 34B. In the course of Committee debate on S4C, I suggested that the reorganisation of the S4C authority's governance might make it advisable to include S4C in Schedule 3, as a body whose constitutional arrangements might be modified by order.

I thought that there was tentative empathy with that view in government, and that that was why S4C was originally included in the now defunct Schedule 7, allowing for transfer to another schedule. I cannot see how the Government can fully implement the commitments given by Ministers to Parliament and others without modifying the structure of S4C. That is why I tabled Amendment 34B to include S4C in Schedule 3.

My noble friend Lord Crickhowell has added his name to the amendment. Unfortunately, he cannot be here this evening because he is taking his wife to hospital outside London, but he has left me with a note of apology to your Lordships. As he played a central role in the creation of S4C and, as a director of HTV, later worked to ensure its success, the House will understand his disappointment at his inability to be here. He has encouraged the Government to accept the amendment. He feels very strongly that the financial assurances given by the Government-given practical effect by the company's inclusion in Schedule 4 -combined, if my amendment is passed, with the ability to create an appropriate and effective management structure put in place after wide consultation inside and outside Parliament, is the best way to guarantee a strong future for Welsh language television.

He also thinks that to remove S4C from the Bill, with all the uncertainties that would be created by the need for primary legislation to replace the existing statute, would be a profound mistake.

I should perhaps add that S4C's current structure and composition are governed by Chapter VI and Schedule 6 to the Broadcasting Act 1990, as amended, and-particularly as to funding-by the Broadcasting Act 1996, which contains the requirement that the Secretary of State increase its funding annually by reference to the retail prices index. Most of us on all sides of the House at least understand the Government's view that that requirement cannot be met in our current, straitened financial circumstances-which is a euphemistic way of referring to the horrendous deficit that we inherited. It is simply no longer sustainable, and RPI appears to have been abandoned across the governmental board in favour of the consumer prices index.

The Secretary of State, very cleverly, has at least agreed alternative funding arrangements for S4C, predominantly from his department for the first two years-2011-12 and 2012-13-and then from the licence moneys collected by the BBC Trust in the following two years. These new funding arrangements will be subject to an order under Schedule 4, where S4C also appears, and subject to public consultation and special affirmative procedure as prescribed in Clauses 10 and 11, which are absolutely essential reading and make considerable changes in order-making as most us have known it.

The new funding arrangements require the inclusion of S4C in Schedule 4, whereas an amendment in this group proposes the withdrawal of S4C from that schedule. If that amendment succeeds, as the noble Lord, Lord Wigley, suggested it should, the future funding of S4C will be left in limbo, on the edge of a black hole. However, my guess is that when the Bill finally becomes law, S4C will still be in that schedule. There is no satisfactory alternative to the funding arrangements proposed by the Government. We have not heard a single suggestion for alternative arrangements.

This would leave the Government with a number of organisational commitments to fulfil, and I am not at all certain that all those can be met by reliance on and within the terms of the existing broadcasting legislation from 1990 onwards. That is one of the main reasons why I should like to see S4C included in Schedule 3 -to help the Government meet their commitments. The nature of the commitment was spelt out by the DCMS in an exchange of letters between the Secretary of State, the chairman of the BBC Trust and the chairman of S4C towards the end of last year. I detailed these commitments in Committee. They are also contained in a concise form in a DCMS briefing document of 16 December which refers to,

"a strong and independent Welsh language TV service", with all that that entails by way of editorial and commissioning independence, accountability, distinctive brands and so on. It is not at all clear to me how all that can be achieved without an order under Schedule 3.

Another reason for S4C's inclusion in Schedule 3 is that the authority and the management board have not distinguished themselves in recent years. There has been a damaging divisiveness between them, which most of us who are of Wales know about. Possibly this is a result of the fact that S4C is a curious animal-not a quango, but a corporate body, regulator and programme provider at the same time, as Sir Jon Shortridge, former Permanent Secretary at the Wales Office and the National Assembly, says in his report on the governance of S4C. The authority and the management also pursued what is to me still a puzzling policy of separateness from 2006 onwards, and possibly that might be due to the fact that they were trying to follow the BBC charter of that year which separated the trust from the executive board of the BBC.

The accountability function of the BBC Trust for the licence fee moneys it collects and will spend in part sustaining S4C as well as the World Service is a new ingredient in the melting pot. How I wish that that money could be diverted through DCMS, but I sense that that cannot or will not be done at this stage. Also new is the relationship between S4C broadcasting and devolved areas of government, especially relating to the Welsh language, culture and education. Clause 10, which refers to Welsh Ministers and their functions in these associated areas, is highly relevant in this context. The Welsh Ministers must be consulted when an order is proposed. All these matters, I maintain, should be reflected somehow in the constitution of S4C, which they are not at present. So S4C requires inclusion in Schedule 3.

A fresh constitutional order under Schedule 3 sorting out the membership of the authority and its composition, its duties and responsibilities and, possibly, the shape of the management board-although I respect what the noble Lord, Lord Wigley, says about the detail; we do not want too much detail, although certainly the management board should be somewhere included-would be a very helpful and salutary measure. The consultation and consequential procedure required under Clauses 10 and 11 would also enlighten the Welsh public-who have been much misled in this matter-over the couple of years ahead, as well as government, and enable all interested parties to have their say. It might add a new dimension, indeed, to devolution.

With a revitalised constitution, S4C would once again achieve the excellence it formerly enjoyed and provide a service which met the needs of Welsh-speaking viewers and the many, of all ages, keenly aspiring to learn the language of heaven. This is a challenge to the Secretary of State to rise to the occasion, as I am sure he will over the months ahead. For the moment, I hope that my noble friend on the Front Bench will spell out the Government's intentions once more and inspire trust in the Government and her department to provide a sound basis and proper framework for the future of S4C.

Perhaps I may say a brief word on later amendments, especially Amendment 40. Let me make it clear that I am trying to save S4C, as I did before its birth-as did the late Gwynfor Evans, who threatened to fast to death on this account. We were on the same side, which may come as a surprise to many young people today. Some extremists now say that the Government are intent on killing off S4C. There is not a shred of evidence to support that. S4C has never appeared in Schedule 1 alongside the bodies that may be abolished.

All that we are concerned about really is S4C's funding, which can be rearranged under Schedule 4. If S4C is withdrawn from that schedule, where does that leave its future funding? I would not like to rely on Clause 80 of the 1996 Act and its annual RPI increase. It has not been operated for the coming year, and it is not expected to work for the following year either. The withdrawal of S4C from Schedule 4 deprives the Government of the right to submit a draft funding order for consultation with interested parties, including S4C, Welsh Ministers and both Houses of Parliament, and then, if there is no bar to progress, to proceed to a final order that regularises the position and assures S4C of its funding for four years, subject to parliamentary approval. If this does not happen, what happens to S4C? It will be left in limbo, at the mercy of events and subject to all the financial pressures of exigencies that might arise. That would be a killer punch for a television channel. I beg those inclined to listen to the populist, demagogic cries from outside and who wish to see S4C withdrawn from Schedule 4 to think again. If there was another, alternative, practicable and sure way forward, all well and good, but there is none. None is on offer. I am trying to save the baby that is S4C. Let us not throw it from a safe cradle to an uncertain fate on a cold floor.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour 7:00 pm, 28th March 2011

In the interests of brevity, I shall make just two points. There must be a meaningful and transparent financial arrangement between the BBC and S4C if S4C is not eventually to be swallowed up by the much larger BBC. Think of the tale of Jonah and the Whale. Mark Thompson says that he is the custodian of the licence fee. He does not own the licence fee. It is the licence fee payers' money. If it has to be funnelled through the BBC, if there is no top-slicing-and I suspect the Minister would lose that battle-I shall make one practical suggestion; we are all familiar with legislation staging that money cannot be spent without the consent of the Treasury. Let us borrow from that and say that any money that goes via the BBC to S4C must go with the consent and approval of the Secretary of State. I suspect that that will get over most of the accounting problem, and it will underline the Secretary of State's responsibility to ensure independence and financial independence for S4C.

My second point is about the appointment of the chair, which was referred to in the Minister's letter and which I raised at the meeting with him. I think he has fully taken the point on board. Both sides of the House will have some experience of appointments in Wales. I am proud of the appointments that I made when I was Secretary of State from Lady White to the Land Authority to Lord Gibson-Watt to the Forestry Commission. They were personal appointments. The Minister and his good intentions will be judged by the kind of person who is appointed to the chair of S4C. He or she must be a figure who is respected throughout Wales, with a proven track record in administration and who can stand up for S4C and Wales and not become a sort of BBC toy-boy or toy-girl. At every appointment, there will be a parade of those who have served and graced our quangos in Wales. I can assure the Minister that they are the same lot every time they come. They go round and round. I suggest that the Secretary of State is bold and considers someone with at least some experience outside Wales and a deep knowledge of Welsh and Welsh affairs. Our nation, knowing that person's track record, would have some confidence in his or her stewardship. The Minister might well have to reach out to find some such person. I know such a person is there. Please do not give us the old retreads from the old quangos who have not done particularly well in Wales.

Photo of Lord Roberts of Llandudno Lord Roberts of Llandudno Liberal Democrat

I shall speak to Amendment 40, which stands in my name. In so doing I remind folk, possibly those who do not have much experience of Wales, of how essential S4C is for Welsh-speaking people. If it were withdrawn it would be as though the BBC were withdrawn from the English-speaking people. Some 600,000 people speak Welsh, and the popular Welsh serial "Pobol y Cwm" attracts 500,000 viewers every week. It is no small fry; it is an important part of the life of so many people.

I shall not take very long, but I shall ask the Minister for assurances on a number of issues. The first is that funding will be guaranteed and ring-fenced for the entire period until 2016. That assurance would set my mind at rest. The BBC charter-at Article 47, I think-limits the way in which it can rechannel the fees, which may only go to some organisation within the remit of the BBC. It is not possible to do any top-slicing with the present charter. In December 2016, we shall have a new charter, so we will have an opportunity, if needed, to revise the BBC charter as far as Wales is concerned.

The second assurance I ask for is that the board of S4C will have a notable majority of people from within Wales and that in no way will the BBC try to have the majority of people on that board. I regret that the executive of the BBC will have any outside input at all, but if Parliament decrees that that is necessary, I ask for an assurance that there will be a majority of people of Wales who understand Wales.

The third assurance I request is that S4C will have total editorial and programming independence with 100 per cent Welsh input. If I can get that, it will be very helpful.

The fourth assurance is that any new governance structure for S4C will be enshrined in a dedicated agreement, a formal declaration, laid in Parliament. It will then become the law of the land. The relationship between S4C and the BBC will be seen as a partnership, and not that S4C is a subsidiary of the BBC. The current level of independent production companies will be retained. I have spoken to some in the past few days, and they are afraid that their input will be less and that they might, as one in Caernarfon already has, not be able to meet the challenges of the present time. We should also look again at the Welsh Assembly's role and responsibility in relation to S4C, especially after the referendum in Wales four weeks ago, following which the Assembly now has full control over topics and issues in 20 devolved areas. Possibly within a few years when the financial situation is better, S4C could become a matter that is devolved to the Welsh Assembly.

Finally, if we are not in Schedule 3, how will that affect our ability to change and to have our own governance? I should be very grateful for assurance from the Minister on that.

For me, the essentials are: secure funding over a long time; editorial independence; looking to a new charter, under which funding can be altered; and a total commitment to the Welsh language. I look forward very much to hearing what the Minister has to say on those matters.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

My Lords, the noble Lord, Lord Roberts of Conwy, has, in a most endearing way, explained to the House how by the purest coincidence it so happened that many months into this Bill he had an idea in relation to Clause 3, which had not commended itself in any way to Her Majesty's Government, but which somehow or another now has been thoroughly and enthusiastically espoused by them. I will say no more about that matter.

However, I think that the submission is one which the House would accept. Clause 3(2) has nine paragraphs attached to it. The totality of the provisions would give a Minister massive, almost dictatorial, powers in relation to the reconstitution of any one of the bodies included in the Bill. If a Minister wishes to do so-I am sure that the noble Lord, Lord Taylor of Holbeach, would not wish to do so-he could exercise utterly emasculated consequences upon S4C. However, if he does not wish to do so, is there any reason why the very limited powers-indeed, in one or two cases they are almost cosmetic powers-referred to in the amendment of my noble friend Lord Wigley should not be accepted? It seems to me that there is an irrefutable logic in relation to that.

I shall speak briefly about the other matters. We have rehearsed these arguments time and again but I have the impression that it is very much the exercise of the rocking horse. There is a great deal of movement but not much forward progress. I speak now as a Welsh-speaking Welshman and as one who can well represent the views of the ordinary persons in Wales who regard the Welsh language as their own language, even though four-fifths of them do not speak it. The problem is that there is a huge chasmic gap between what Her Majesty's Government say and desire-I accept the total genuineness of the noble Lord, Lord Taylor, and his team in this matter-and what is legally possible.

Three of areas of independence are crucial: financial independence, corporate independence and editorial independence. In a letter dated 25 March, which was sent to many of us, there is a guarantee with regard to editorial distinctiveness. It seems to me that there is a world of difference between distinctiveness and independence, a matter into which the noble Lord might wish to look. To me, distinctiveness is much narrower than independence.

As regards financial independence, it would be marvellous if there could be a direct transfer of a part of the fee. The Government would get a quid pro quo-or, one might say, an £80 million quid pro quo. There is a huge restraint on them in the way in which that fee can be spent. If that fee passes through the conduit of the BBC, of course the BBC becomes the accounting agent. But there is way out. The noble Lord, Lord Roberts of Conwy, said that there was not. In June 2006, an agreement between the BBC and the Secretary of State was published and it has formal status. Following that, a few months later, in October 2006, the charter of the BBC was completed. It seemed therefore that there was every intention that the preceding agreement of June 2006 should in some way operate upon the charter. That agreement of June 2006 makes it clear that the Minister, in relation to the licence fee, is entitled to withhold such sum or sums as he sees fit. In other words, they would never go to the BBC at all. I should be most grateful if full thought could be given to that.

The noble and learned Lord, Lord Morris of Aberavon, raised the corporate independence of S4C in this structure. If you have an informal relationship, all is well. There is already an informal relationship. The BBC is responsible for producing 10 hours per week of programmes in the Welsh language, which is no problem at all. But once a structure is set up, one corporation has to dominate over the other corporate bodies. There cannot be a situation whereby they are at arm's length and equal. That point has already been made by my noble friend Lord Wigley.

That is the situation. Well meaning guarantees are being given by the Government, but they are in no way bankable because of the technical, legal difficulties. The problem can be overcome only by tackling those difficulties in a specific way so that the undertaking given is realistic and bankable.

Photo of Baroness Morgan of Ely Baroness Morgan of Ely Labour 7:15 pm, 28th March 2011

My Lords, I am extremely sorry that, despite the impassioned pleas by this House on the issue of withdrawing any reference to S4C from the Public Bodies Bill, the Government have ignored any suggestions to this end and are continuing their unrelenting pursuit of weakening this important channel in Wales. Let us remind ourselves that S4C was born after years of bitter struggle. One cannot deny that the channel is being weakened. It certainly had a massive impact on the language community and on life in Wales, not least the dramatic contribution of slowing the decrease in the number of people speaking Welsh to the point where for the first time in history we can see an increase.

We have moved from a position where S4C was established through statute with guaranteed long-term funding to a position where, under Schedule 4, it may see its funding cut so dramatically as to make it nigh on impossible to run the channel or, under Schedule 3, be modified at the drop of a hat without reference to anyone. One of my greatest concerns about the way in which the Government are handling this matter is the obvious ignorance of what they are dealing with.

The Secretary of State has suggested that the skills and expertise of the BBC will help to protect S4C's independence. He talks as if there is no current relationship with the BBC and suggests that it might be helpful to have the BBC on board as it is able to reach wide audiences and deal with niche programming. Anyone in Wales who has the faintest idea of how the channel works knows that some of the most popular programming on the channel is and has been delivered by the BBC since its inception. We all know this. Why do the Government not know it? We are confident that the skills and experience of the BBC could continue to make a valuable contribution to the channel but there is a massive difference between this and editorial independence, which is essential in order to retain pluralism in the media in Wales and which is already extremely restricted.

At the very least, we need an idea of what the future governance structure will look like. What will the relationship be between the BBC trustees and the S4C board? Who will have the final word? Will there be permanent representatives of the BBC on the S4C board? Will S4C be granted total editorial control? Will the BBC have a veto on the board or will it be a minority voice? Will there be a reference to S4C in the new BBC charter? Are we supposed just to trust the Government that they will do this? What will they say? Where are the assurances? As the accounting body, the BBC would be responsible for funding. It simply would not be able just to hand over the cash and hope for the best. What does independence mean in these circumstances?

This morning, on the school run-I am sure that not many noble Lords are doing that these days-I ran into a cameraman who works on S4C programming now and again. He told me that a camera costs £60,000 and that he would not be investing now because he does not know what the future looks like. This kind of insecurity is already hitting investment and is having a damning effect on the media industry in Wales. The amendment suggested by the noble Lords, Lord Roberts and Lord Crickhowell, would leave S4C in an even more vulnerable situation than under the Government's initial suggestion, which dealt only with the financial situation. Including a reference to S4C in Schedule 3 would allow any future Government to modify profound constitutional arrangements without any accountability in future and at the stroke of a pen. I urge the Government to think again.

Photo of Lord Crickhowell Lord Crickhowell Conservative

I hope that the House will forgive me for not having been present for the debate. I understand that my noble friend Lord Roberts of Conwy has explained that I had to take my wife to hospital as she is going to have a hip operation very early tomorrow morning.

Most noble Lords who know me will realise how anxious I have been to take part in this debate. I do not think that anyone can question my credentials as far as S4C is concerned. I was one of its creators. I wrote the Conservative election manifesto for Wales before the 1979 general election in which we committed ourselves to a form of Welsh language broadcasting. I engaged in the battles that followed and persuaded my right honourable friend Willie Whitelaw as he then was, later Lord Whitelaw, to change the way forward and to make sure that we sent out the Welsh language on a single channel. At the same time, I engaged with my noble friend Lord Roberts of Conwy on a major exercise to safeguard, strengthen and encourage the Welsh language in Wales. My actions were then followed up by my successor Secretaries of State, working with my noble friend, so I think that it is right to say that no political party has done more for the Welsh language than the Conservative Party. Therefore, when assurances about the future of the language are given by Ministers on behalf the Conservative Party they should be treated with respect.

After I had left the Welsh Office, I was for many years a director of HTV, eventually its chairman. During the early days, we helped to sell S4C's advertising and provided a considerable quantity of its programming; we worked closely with it. We also had something else to do during the later time that I was a director of HTV. We had moved from the years in which people said that television companies had a licence to print money to the years when, week by week and month by month, advertising revenue was collapsing. We had to live in era where we had to adjust our organisation and programming to a rapidly changing world.

The Government have not only given long-term assurances that they are determined to secure the future of S4C but have set out a financial programme and budget for the next four years which I believe give S4C, with its reserves and with the management capability that I hope will be assisted in a number of ways in the future, a sound foundation on which to move forward during the next three or four years.

If we take S4C out of the Bill, we are left with the legislation as it is in a situation where it is quite clear that reductions in expenditure will have to be made. The existing Bill does not give S4C any safeguard. I imagine that there would have to be a new clause in a Finance Bill, but I cannot believe that it is beyond the capability of the Government to ensure that savings are made, as they are being made in every other public body-and, indeed, most private ones.

So I was not so concerned about the inclusion in the Bill of S4C in relation to financial arrangements, but, until very recently, I was concerned about the organisational and structural issues that have been raised with great eloquence by many noble Lords, including my noble friend Lord Roberts of Conwy. They have asked very reasonable questions about who will ultimately be responsible, who the accounting officers will be, and so on. Anyone who remembers my involvement in the tragic drama of the Cardiff Bay Opera House will understand why I perhaps more than anyone understand all too clearly the difficulty when you have one body providing finance and the other being responsible for managing a project. What happened then was that the Cardiff Bay Development Corporation, which was providing the finance, decided that it could second-guess the judgment of the trustees who had been set up with the job of organising and managing the project, and disaster followed.

I see the potential for that kind of disaster if we get wrong the structural organisation of S4C. That is why I very much welcomed the suggestion of my noble friend Lord Taylor of Holbeach, which led to my noble friend Lord Roberts of Conwy, supported by me, putting down an amendment to include S4C in Schedule 3. That will enable us, over the next three or four years, during the period when finance has been provided, to have the widespread consultation that people have very reasonably demanded both inside and outside Parliament. Under the revised structure of the Bill, the matter would then have to be approved by both Houses of Parliament. We would have the opportunity-towards the end of that four-year period, we would be into the next revision of the BBC charter-to work out a solution without rush and without taking S4C out into a black hole by removing it from the Bill, which would be a disastrous way forward. The proposal would provide a combination of finance and structural change and the ability to consult, which should and can enable us to provide a sound future for S4C.

Sometimes people seem to imply that the structure that we now have is somehow sacred, despite the fact that some of the recent management failures by S4C might suggest that changes in structure would be a very good idea. But there is nothing sacred in the present structure. It is not the structure that was put in place in 1982. At that time, the finance was provided largely from the independent television companies. I think that it was my right honourable friend, as he then was, David Mellor, who introduced the changes that led to the present structure. I do not believe that the structure is what matters; what matters is the future of strong Welsh language television broadcasting. No one is more concerned to see that that continues than me. It is because I believe that we now have a way forward that can guarantee a strong future for Welsh language television broadcasting that I will vote against any amendment that takes S4C out of the Bill and will support the amendment moved by my noble friend Lord Roberts of Conwy.

Photo of Lord Grade of Yarmouth Lord Grade of Yarmouth Conservative 7:30 pm, 28th March 2011

My Lords, I declare a past history of relationships with S4C through my involvement at Channel 4 and later at the BBC. While I cannot speak with the passion of a Welsh language speaker, of a Welsh inhabitant or of somebody of Welsh birth, I have always supported S4C whenever I have had the opportunity and have been involved. I am sure that the archives-because that, sadly, is where my support now sits-will demonstrate that I have always supported the ambitions of S4C and its contribution to the culture and life of these islands.

That said, I regret that I cannot support the amendment. I am listening to this debate as a broadcaster who has in various guises seen various free-to-air public service broadcasting bodies be picked up by the roots more often that the petunias in my garden, be pruned, re-examined, replanted and repotted, with attempts to kill them off and so on. I have been listening to the fear and worry in noble Lords' minds. However, from where I sit and from my experience, I can say that S4C occupies the most privileged position in British broadcasting that is possible to imagine, and the idea of introducing a greater level of accountability and transparency seems perfectly reasonable. Obviously, the devil lies in the detail and change creates uncertainties. However, I am sure that the uncertainties will be ironed out.

I am in some confusion surrounding the independence of S4C. I have heard a number of noble Lords express concerns about its future independence, but then I hear that the solution is to give the money to the Treasury to dole out or to give it to the DCMS-the Government of the day-to look after. I cannot imagine anything more likely to undermine the independence of a broadcaster than being in the hands of the Treasury and the DCMS. I am trying not to sound in any way antagonistic towards S4C, which I believe in passionately. I wish there were a Yiddish channel for the language that is dying out in my culture, but there is not. S4C is a very, very important part of Welsh sovereignty and identity and so on. It deserves to be protected and it deserves public money, but the price you pay today for that privileged position is greater accountability and transparency.

I am sure that the Government are hugely sensitive to the issues that surround broadcasting. I would be very comfortable if my future depended on the BBC Trust. It understands the independence of broadcasting and it exists to create an independent BBC. I can think of no greater guarantor of the independence of S4C than the BBC Trust. Therefore, with great regret, I cannot support the amendment and I commend the words of my noble friend Lord Crickhowell.

Photo of Baroness Gale Baroness Gale Opposition Whip (Lords)

My Lords, I agree that this has been another great and passionate debate. There have been contributions from many noble Lords who are steeped in the language and culture of Wales and have great knowledge of S4C's history and of how it is run. I am sure that the Minister will have taken note of what has been said.

First, I thank the Minister for arranging a meeting with the Secretary of State, the right honourable Jeremy Hunt. It gave interested Peers the opportunity to discuss their concerns about the Government's proposals for S4C. I believe that all the Ministers and the Secretary of State were made aware of the very strong feelings that Welsh Peers have regarding this matter.

I am sure that over the past few days many noble Lords have, like me, received numerous e-mails from a range of people and organisations in Wales expressing their fears and concerns about the future of S4C. The people who wrote to me were not extremists; they were from organisations such as the National Eisteddfod of Wales, Merched y Wawr, Urdd Gobaith Cymru and a number of churches. I also received letters from a number of individuals, and everyone was very concerned about the Bill as it stands. It seems that very few people in Wales agree with the Government's proposals regarding the future of S4C, although they all recognise that there are problems which need to be addressed, as some noble Lords have mentioned. Of course, funding issues, too, have to be looked at.

In Committee, we mentioned that the four leaders in the Welsh Assembly made very sensible suggestions in their letter to the Prime Minister, calling for an independent inquiry commissioned by the Welsh Assembly and the Westminster Government. However, that suggestion seems to have been ignored-if there was a response, we are not sure what it was. The Minister, the noble Baroness, Lady Rawlings, said in Committee that it had not been practical to have in-depth discussions with all interested parties ahead of the announcement, and that the timetable reflected the Government's desire to put the UK finances in order. Later, she said:

"We have had lengthy dialogues with Cardiff to secure the future of S4C within the BBC partnership with DCMS funding".-[Official Report, 9/3/11; col. 1640.]

Can she say something about those discussions in Cardiff, as we are not sure how they went? Who took part, what was the outcome, and are the discussions continuing? I feel that if more discussions had taken place earlier, the general feeling that the Government have not been listening could have been dealt with.

In a letter to the noble Lord, Lord Wigley, Jeremy Hunt said that the Government are committed to the future of Welsh language programming and to S4C as a strong and sustainable Welsh TV service with editorial independence. He said that a change to the funding model did not represent any threat to S4C as an independent service. I hope that the Minister can give positive answers today in order to alleviate the concerns expressed by noble Lords. I emphasise that all the organisations and individuals in Wales who have written to a number of us are concerned. They believe that S4C should be taken out of the Bill. They have great knowledge of what is going on in Wales and of how S4C operates, and they all want to see it taken out of the Bill. As I said, these people are not extremists.

Everyone who has spoken today has said that they support S4C and wish to see it continue. The one desire is to maintain a strong Welsh language television channel in Wales for the benefit of all who live in Wales and who value the language and culture. The people of Wales need some reassurance that that will happen. The amendments in this group would go some way towards achieving that, especially if S4C were to be removed from Schedule 4.

I hope that the Minister can give some assurance on the independence of, and funding for, S4C. I repeat that we would like to see S4C removed from Schedule 4. We look forward to the Minister's response, bearing in mind what has been said today and that the people of Wales will be listening to what she says. We support the amendment of the noble Lord, Lord Wigley.

Photo of Baroness Rawlings Baroness Rawlings Lords Spokesperson (Department for Culture, Media and Sport), Baroness in Waiting (HM Household) (Whip)

My Lords, we have had another full and passionate debate today, and it is clear that this is an incredibly important issue. Once again, noble Lords on all sides of the House have demonstrated the depth of feeling and commitment that exist on this issue, and I know that the Government share that. I make it clear at the start that Her Majesty's coalition Government remain fully committed to Welsh language television broadcasting, as I said in Committee and in response to earlier questions. We recognise the immense value that it has to the culture, economy and people of Wales and the role that it plays in preserving and promoting the Welsh language. I want your Lordships to be under no illusions about the Government's primary objective for S4C, which is to protect Welsh language television for the long term. I repeat that: it is to protect Welsh language television for the long term. I am afraid that we beg to differ with the views of the noble Baroness, Lady Morgan, which I hope to explain further in my response.

Since our last debate, in Committee on 9 March, I, along with the Secretary of State for Culture, Media and Sport, my noble friend Lord Taylor and the Minister for Wales, have met several noble Lords to discuss S4C and to listen to your Lordships' concerns. We had a very helpful discussion and I am grateful to all noble Lords who attended for their insightful and constructive approach. Their views have been invaluable and I appreciate the frankness and sincerity of their contributions to the debate. It was clear that, while our views differed on some methods of reform, we fundamentally shared the view that S4C must be protected as an independent channel, secured for the long term.

I will take some time today to try to give specific assurances wherever I can to all of the concerns that have been raised. I make no apologies for speaking at length on this issue, for it is one that the Government feel passionately about and one that merits the invaluable attention of your Lordships' House. In doing so, I will speak to Amendment 29A in the name of the noble Lord, Lord Wigley; Amendment 34B in the name of my noble friend Lord Roberts of Conwy; Amendment 40 in the name of my noble friend Lord Roberts of Llandudno; and Amendment 41 in the name of the noble Lord, Lord Elystan-Morgan. I also clearly state from the outset that the Government intend to support Amendment 34B to add S4C to Schedule 3.

I will first talk about the funding of S4C, which so many noble Lords asked about. There has been almost universal acceptance that S4C, like any organisation in receipt of public money, must operate within the economic context in which we find ourselves. Cuts to the funding of S4C are inevitable and the existing, index-linked funding arrangement is simply untenable. The cut to S4C is exactly in line with the cut to the Department for Culture, Media and Sport. Quite simply, that represents the fairest solution. As well as the funding that S4C will receive from the Government and the BBC over the next four years, it will also receive around £20 million per year worth of programming from the BBC, which your Lordships will agree is not an insignificant sum.

A number of noble Lords asked for the funding for S4C to be secured for a longer period. I assure the noble and learned Lord, Lord Morris, that the Government have secured ring-fenced funding for S4C for the entire comprehensive spending review period up to March 2015. The noble and learned Lord asked for ring-fencing up to 2016, but we support it up to 2015, give or take a few months. That should be welcomed in the current fiscal climate and goes beyond the security given to many other bodies. Beyond the spending review period, the Government are committed to making certain that the new partnership arrangement will guarantee a level of funding that is sufficient to allow S4C to deliver its public service remit, as enshrined in legislation.

I reiterate the Government's commitment to have a full review of the scale, scope and funding of S4C before the end of the spending review period, once the new partnership has had time to bed in, as my noble friend Lord Grade said. The long-term performance of the channel should be determined by its success rather than by how much money it receives. That success will be defined following the review which will be shaped by the people of Wales.

During our debate on 9 March, noble Lords suggested that initial decisions on S4C were taken without meaningful discussions with those in Wales who have a legitimate interest. We acknowledge that the Government moved fast on the decisions during the comprehensive spending review and were unable to consult with everyone. My noble friend Lord Roberts of Conwy stressed that Clause 10 now makes it a statutory requirement to consult before orders are brought forward, and that requirement specifies the need to consult Welsh Ministers on matters that relate to Wales. I assure your Lordships' House and my noble friend Lord Roberts that there will be a full public consultation on the governance arrangements of S4C and that the views of the Welsh Assembly Government and other interested parties will be part of this process, as requested by my noble friend Lord Roberts of Llandudno in Committee.

This is also what lies behind our support of Amendment 34B in the name of my noble friend Lord Roberts of Conwy to add S4C to Schedule 3. When the Bill was introduced, it was not clear that the powers in Clause 3 would be needed to facilitate the new partnership with the BBC. However, it is now clear that, to make this partnership work in practice, there will need to be some modest changes to the constitutional arrangements of S4C. I am pleased that my noble friend Lord Crickhowell is with us after all this evening, especially as he is so knowledgeable about and experienced with S4C. I am sure that we all wish Lady Crickhowell a swift recovery.

By using the powers in the Public Bodies Bill, we are guaranteeing that our proposals must be subject to consultation and we are ensuring that any changes will be subject to the scrutiny process associated with orders under this Bill. This process, as noble Lords will be aware, stipulates that any order must be accompanied by an explanatory document setting out the findings of a consultation process, along with giving Parliament the option of an enhanced affirmative procedure, which builds in time for a Select Committee to consider the detail of the order. That represents a very real check on the Government's power, and it provides a safeguard that, in practice, prevents the Government from delivering policy that runs contrary to the views of Parliament.

In that respect, adding S4C to Schedule 3 makes the Government's intentions clear, guarantees that consultation will be carried out and secures the requisite scrutiny of the detail when the order is laid before Parliament, as desired by my noble friend Lord Roberts. The Government would also welcome continuing to work constructively with noble Lords as the partnership develops and as the Bill passes to the other place. This is a significant and sincere offer as I genuinely believe that the expertise in your Lordships' House will be positive for the future of S4C. My noble friend Lord Grade made all that very clear in his eloquent speech and I thank him for his support.

To answer the noble Baroness, Lady Gale, if S4C is not contained in Schedule 3, we may not be able to affect the whole of an agreement reached on a partnership between S4C and the BBC. Conversely, if S4C is in Schedule 3, the partnership can take place as agreed and documented as clearly as possible.

The Government cannot, however, accept Amendment 29A from the noble Lord, Lord Wigley, on the extent to which Clause 3 applies to S4C. I can understand the motivation behind the noble Lord's amendment and, in principle, the Government agree with the proposition that not all powers in Clause 3 should be used in relation to S4C. However, in practice, Amendment 29A could actually compromise the reform of S4C, the need for which has been stated a number of times during this debate. It is important that the new chairman of S4C is given full opportunity to assess the detail of what is being proposed and full opportunity to make a contribution to the discussions. I agree totally with the suggestion of the noble and learned Lord, Lord Morris, regarding the importance of choosing the new chairman. I know that the Secretary of State is taking this personally very seriously. It will therefore be some time yet before the discussions are concluded and we can say with certainty exactly how Clause 3 would be used.

As regards the logo, I assure the noble Lord, Lord Wigley, and your Lordships' House that we have no intention of changing the name of S4C and we can say with some certainty that the whole of Clause 3(3) will not be used in relation to S4C. Conversely, the power in Clause 3(2)(f) to amend S4C's governing procedures and arrangements, excluded under Amendment 29A, are likely to be required to implement changes following the conclusion of discussions between S4C and the BBC.

Many noble Lords have asked whether the funding from the licence fee can be given straight to S4C without any accountability to the BBC. What we are trying to achieve is a partnership with the BBC, and such a move would undermine this. The Government are clear that the BBC Trust is the right organisation to ensure that licence fee funding achieves value for money. It is therefore right that the money, ring-fenced as it is, goes to S4C via the BBC. The proposals set out in the licence fee settlement letter make it clear that there must be a genuine partnership with S4C and the BBC, mutually agreed by both the BBC and S4C. This is a critical point. The letter also makes it clear that, within this partnership, S4C must remain an independent service with independent commissioning and scheduling, and with a distinct editorial voice. This cuts to the heart of the issue. The partnership with the BBC should not be misconstrued as a merger or a takeover. No-it is a partnership that will protect the very things that noble Lords on all sides of the House are seeking to protect by having this thoughtful and passionate debate.

I assure noble Lords that the editorial independence of S4C from government, the Welsh Assembly and the BBC is assured. I should also add that the BBC's current obligation to provide programming to S4C will remain, as will S4C's existing relationship with the independent production sector.

Amendment 40 would remove S4C from Schedule 4, which would prevent us from putting S4C on a more sustainable footing for the future. Breaking the link to RPI is important from a financial perspective, but creating a partnership with the BBC, and in turn securing S4C's funding via the licence fee goes, hand in hand with this, and we need to do it all to secure a strong future for Welsh language programming. If the Government were not able to use the Public Bodies Bill to change S4C's funding arrangements, S4C would not be able to rely on the security of licence-fee funding. As many noble Lords, including my noble friend Lord Crickhowell, said, S4C will benefit from this security, particularly as the Government are determined to break the link with RPI.

Amendment 41, tabled by the noble Lord, Lord Elystan-Morgan, would require any changes to S4C made under Clause 4 to be preceded by an amendment to the BBC charter. The Government agree with the motivation behind this amendment-that there is absolute clarity about the governance structure for S4C within the new partnership. The only difference between us is the mechanism by which we secure this clarity. It is more appropriate to codify the terms of the partnership in a dedicated agreement between the Secretary of State and the BBC, a document laid in Parliament, which enshrines the governance structures agreed with S4C and will set out exactly how S4C will remain an independent service. It would be inappropriate to amend the high-level BBC charter outside of its 10-year review cycle.

Several noble Lords, including the noble Baroness, Lady Morgan, have raised the issue of governance under the partnership, and I can confirm that the BBC will not have a majority on either the S4C board or the S4C executive. Furthermore, the BBC representatives need not necessarily be BBC Trust members but could be individuals nominated by the BBC Trust. I cannot guarantee, as some noble Lords have asked, that there will be no BBC appointees under this new partnership. But let us not forget that these terms will have been agreed during negotiations between S4C and the BBC. It will be S4C itself which will have negotiated the terms of this partnership. It was suggested that the payment of money by the BBC to another body would make that body a subsidiary of the BBC. This is absolutely not the case. Neither is there any intention of removing S4C as a statutory body, nor merging it with the BBC. S4C's current public service remit, as enshrined in legislation, will remain and the Secretary of State will continue to exercise powers of appointment over the chairman and the S4C authority. The relationship will be on the basis of a partnership and not of a BBC subsidiary.

Finally, I suggest again that protecting S4C as an independent service, with independent commissioning and scheduling, and with a distinct editorial voice is absolutely at the heart of this coalition Government. It is a challenging market and savings must be made, but be under no illusions. This Government will do whatever it takes to protect S4C for the long term. These changes have been proposed for the benefit of Welsh language television. This is the goal that we all share and so I would therefore ask the noble Lord to withdraw his amendment.

Photo of Lord Wigley Lord Wigley Plaid Cymru 7:45 pm, 28th March 2011

My Lords, the House has listened with considerable interest to the more substantial reply that we have had tonight, compared with the one we had in Committee. None the less, a number of issues remain unclear and some quite unsatisfactory. We still have not had the bankable commitments that my colleagues and I have sought on the ongoing financial independence. We all appreciate that RPI could not continue and in Committee we invited the Government to bring forward some alternative formulae-perhaps 2 per cent of the BBC licence fee-so that there was a sort of ongoing commitment, even though at a different level from that which obtains today. If there was a need for ongoing commitment when the previous legislation was passed, by what virtue is that ongoing commitment not needed in the present circumstances? People could argue that it is needed even more now.

If I understand correctly, we heard that money will be ring-fenced up to 2015-16 but that is a commitment in name which is not in any Bill. There is no mechanism for the safeguards and no assurances on where they will be enshrined. I do not know whether the Government will bring something forward for Third Reading on that; time will tell. Neither have we had any clarity on why the Government are so anxious to secure the provisions of Amendment 34B. It is a pig in a poke. Certainly, there may be things that need to be done but no limit is being given by the Government and no self-denying ordinance as to how far they will take it. The assurances we are given are that there will be consultation. I noted with much interest that consultation is to be based on Clause 10(1)(e), which says:

"the Welsh Ministers, if the proposal relates to any matter, so far as applying in or as regards Wales, in relation to which the Welsh Ministers exercise functions".

Perhaps we should be reassured that Welsh Ministers will therefore be exercising functions with regard to S4C. That is the only interpretation we can have from what the Minister said, but perhaps she was inadvertently misleading the House where that was concerned.

Noble Lords:

Oh!

Photo of Lord Wigley Lord Wigley Plaid Cymru

No, if the Minister wants to intervene to correct me, I will by all means give way. But if she does not-no-I repeat that the provisions of Clause 10(1)(e) are in regard to those matters,

"to which the Welsh Ministers exercise functions".

At present, they do not exercise functions with regard to S4C. If the consultation is based on that, presumably they will in future. That would be an interesting development.

I am afraid that the Minister has not answered what I regard as a critical point. It is the involvement of BBC nominees and people on the executive function of S4C, taking decisions in circumstances where S4C is adjudicating between various bidders for commissions -independent producers outside on one hand, and the BBC on the other, in competition with each other. If the BBC is to be involved in that mechanism, how on earth can that possibly be fair? Independence means independence, not having people sitting at the table where those decisions are being taken.

I am not sure what position the noble Lord, Lord Roberts of Llandudno, will take on Amendment 40. However, if there is no greater clarification on how those mechanisms are to be assured, I hope that if he does not move it tonight, he will certainly do so at Third Reading. As for my amendment, we have not had the assurances that we need with regard to it and I beg the House to support me in the Division Lobbies.

Division on Amendment 29A

Contents 162; Not-Contents 197.

Amendment 29A disagreed.

Division number 3

See full list of votes (From The Public Whip)

Schedule 3 : Power to modify constitutional arrangements: bodies and offices

Amendment 30

Moved by Lord Newton of Braintree

30: Schedule 3, page 17, line 16, at end insert-

"Administrative Justice and Tribunals Council."

Amendment 30 agreed.

Consideration on Report adjourned until not before 9.15 pm.