Select Committee on Procedure Minutes of Evidence

Examination of Witnesses (Questions 1 - 19)




  1. Minister, may we welcome you very much to the Procedure Committee. We are very grateful to you and Mr Simon Judge for coming to help us with our inquiry, which is all to do, as you are well aware, with Section 82 and the original justification for it. All the Members of the Committee will be asking questions. I hope we do not keep you long. May I begin by putting the first question to you. Can we begin by exploring why the Government originally sought Section 82 powers. In your memorandum you say that this was to avoid delay in setting up new IT systems. We probably understand that explanation. However, you also admit that, and I quote: "a lack of Parliamentary time for paving legislations has not in the past caused delays." Was there any reason why these powers should not have been sought in the traditional way through a paving bill?

  (Angela Eagle) First of all, thank for your welcome. The second thing to say is that the Department first became aware of some of the practical difficulties surrounding business modernisation, if I can call it that—very complex and very large systems, of which the DSS has very many—during the passage of the JSA Act and also the Pensions Act in the previous Parliament, the 1994 to 1996 era. In the middle of that, the Treasury produced a clarification of the 1932 Public Accounts Committee Concordat, which made it clear that the way in which the Department had been preparing for major modernisation and change in the past was no longer in line with the spirit or even the letter of the 1932 Concordat. JSA is the obvious example of this. Therefore, the Department became aware that it could not make the assumptions that it had made in the past about how it could spend money in anticipation of a major change in primary legislation, in order to ensure that change could be effected in a coherent and timely fashion in the way that it had been doing in the past. What we then did was to look at the procedures and how we could stay not only within the spirit but also the letter of the 1932 Concordat which, in 1995, when the Treasury clarified it, became a much stricter interpretation than had been thought. That is where the beginning of this issue came for DSS. We have probably, more than any other Government Department, large complex IT systems, which service a very large programme of work. If I could give you some examples of how big we are and, therefore, how complex change can be. We have 460,000 visitors to our offices a week. We have 3.1 million phone calls a week. We issue 15 million order book foils a week. One million giro cheque payments. 2.5 million ACT payments. We spend £2 billion a week in money that we give out to people. So our systems are very, very large, very complex. Large numbers of people, some of whom are the most vulnerable in society, depend on us being able coherently to modernise our systems. So it became clear to us, and certainly to the Department prior to this Government coming into office, that there was between an 18-month and two-year kind of time you needed to plan and implement IT change in a coherent fashion. When we looked at how the Concordat worked, in the absence of having a special new way of dealing with it, we would have had two choices: either to rush implementation, which would put at risk the coherence of IT strategies, the testing mechanisms, and make the whole project much more risky; or an even longer period of time between when a bill becomes law and when it could coherently be implemented operationally with a reasonable amount of risk. Given that the Department looked at the ways it might be able to make progress—and it looked quite rightly at paving bills as you have mentioned—it also looked at making a call on the contingency reserve. Now the contingency reserve, it was decided, was for highly unusual expenditure in times of national emergency, and certainly would not be an acceptable procedure to use in this context. With paving bills, there were several issues. One, again you have correctly identified from our evidence to you, the written evidence, that they have to compete with Parliamentary time like everything else. Not only is Parliamentary time scarce, but so is Parliamentary Counsel's drafting time. The main reason why we did not like the idea of paving bills, was that the Concordat is not a legislative requirement. It is an agreement between the Treasury and the Public Accounts Committee. Using legislative time to overcome it for purely administrative expenditure did not seem to us to be, if we were going to do it a lot, a reasonable use of Parliament's time. We took Parliamentary Counsel's view on this as well. They said it would be an "inappropriate use of Parliamentary time", which is why we developed the Section 82 powers.

  Chairman: Thank you for that answer. You will clearly appreciate, Minister, that this Committee is a Committee of the House concerned that the House should not be bypassed in any way and that the procedures of this House should give the House an opportunity of, as it were, refusing this expenditure if it was not in agreement with it. But we want to continue this line of questioning and I am going to ask Keith Darvill to follow up my opening question.

Mr Darvill

  2. While accepting the pressures which you have outlined and indeed contained in the evidence, the Report that you have provided; Minister, do you accept that there are no close precedents for the grant of powers under Section 82, bearing in mind the important balance which the House needs to strike between evidence and scrutiny?
  (Angela Eagle) Can I say firstly that I am an ex-Member of the Public Accounts Committee myself and I take Parliament's right to have proper oversight of financial expenditure extremely seriously. I would not be a supporter of Section 82 powers if I thought it diminished, in any practical way, Parliament's right to oversee public expenditure, certainly because I take that seriously. I do not think that is an issue between us. The second thing to say— Your question was?

  3. Do you accept that there is no close precedent?
  (Angela Eagle) This is a power which is unique for the DSS at the moment. Yes.

  4. Do you not consider then that this may be opening up the flood gates for Government to provide for similar provisions in other legislation?
  (Angela Eagle) I hope I have explained the peculiar nature of the DSS. There are not many Departments that have the operational size that we have; that have such a scale of operations; and that have a legacy of very old and failing computer systems which we need to replace in a coherent fashion over the next period of time, whilst ensuring that we can continue with this huge volume of delivery work that we do in ensuring that welfare payments, large amounts of money, are delivered to the people who are entitled to them week in, week out. Clearly other Departments might wish to make arguments but I would say that another feature of the DSS, which ties us in a certain way with the Concordat, is that most of what we do is done by primary legislation. If we are going to have a programme of welfare modernisation, by its nature we are going to have to be changing primary legislation; be planning and organising to deliver new types of services; and get ourselves in a position where we may want to use Section 82 powers. So I would say that I am not surprised that this power is unique to the DSS, at the moment, because of the nature of what we do.


  5. Are you saying that had you had the adequate investment in the past, you had had IT systems in place, you would not need a Section 82?
  (Angela Eagle) No. What I am saying is that we are in a position where we are doing a huge programme of modernisation and change, much of which will involve us in changing primary legislation. The child support changes are the first such example of that. Given our legacy of old systems, it is likely that we are going to be having to do a great deal of IT procurement in the future, which may involve us having to organise our preparations in a way that we have had to with the Child Support Act, but we will use Section 82 powers only when we think they will be necessary, and we will come to Parliament in the way that this procedure lays down, to share our information and approach with you and ask for Parliament's permission to spend these amounts of money ahead of Royal Assent, if we think that is necessary to deliver the changes in a timely and coherent fashion.

Sir Paul Beresford

  6. In your opening statement you said that it is a huge Department. We all agree. It is a huge amount of expenditure, which we all agree. It has a record on IT which is pretty hairy.
  (Angela Eagle) I think I would agree with you about that.

  7. That record goes back quite a while, and has not been improved since the last election. Yet you are using a short cut on something that is so important that I would have expected it to be able to find Parliamentary time. It certainly would be of Parliamentary interest in the House and yet despite all of this you are running through a Section 82. It is a back-door technique.
  (Angela Eagle) I do not think it is a back-door technique. It is a perfectly open and transparent technique. It recognises that life has changed since 1932 when the Concordat was first put in place, when all of our systems were clerical. First of all, the system was a lot smaller but also the way we did our business then, I am told, (I was not around at the time), was clerical. Now we are in a different position post IT, of massive IT/IS projects, procuring them, having private sector involvement, being in a position which is totally different from the one which would have faced Government in 1932 when the Concordat was developed. What Section 82 is, it is actually a parallel track to enable us to do work which was done on the JSA Bill before Royal Assent but not in the spirit of the 1932 Concordat. Section 82 exists because when the Treasury tightened up what the interpretation of the Concordat was in 1995, the DSS realised that the way it had been working, the introduction of the Pensions Bill, as it was then, and the JSA Bill, as it was then, was not in line with the spirit of that. So Section 82 is a way of creating a potential chance to have a parallel process to make the preparations that are technical, that are IT related, that are contractually related, prior to Royal Assent happening.

  8. I understand that from your side, Minister. If I can think back a few years and if I had been a Minister in your situation, I would have looked on it as a very much easier way of putting things through. The other way of looking at it, from our point of view, is that the equivalent of IT requirements must be found and needed in the Treasury. They are not using Section 82. They have similar demands from Inland Revenue and Customs and Excise, I would imagine, yet they have not used Section 82. You, as a Department, have such a poor record that this does smack of trying to slip it through the system.
  (Angela Eagle) No. Firstly I think Section 82 is an open and transparent procedure. As a Minister, officials gave evidence to the Social Security Select Committee on the draft report which went before both Committees. The Report was laid before the House. We had a debate before the House. I do not think it is a back-door method in that way. Having been the Minister who was giving evidence on the Report itself upstairs when it was published, we were more accountable for the money we were spending ahead of Royal Assent, paving the way for this, than we would have been with a paving bill.

Mr Drew

  9. Surely you have a problem here? Whether or not Section 82 is the right way forward in the process of how Parliament scrutinises, obviously there was a guillotine. Now, as you quite rightly say, it was discussed in Committee but it is not the same thing as being discussed on the Floor of the House. As my colleague says, there are large-scale IT projects in the public sector, by their very nature difficult to work with. With the benefit of hindsight, would it not be appropriate to discuss this properly through the Department?
  (Angela Eagle) In my experience we do not have a great deal of complex debate about IT procurement in ordinary Committee stages. We talked far more about what was going to be happening and in detail of what was going to be happening in the Social Security Select Committee and the Committee upstairs which looked at the final Report than, in my experience, we ever did on the JSA Bill, on which I served as a Member of the Opposition. Because it focuses on this period of time between Royal Assent and when work has to begin to be effective in both negotiating a contract and incurring some of the small-scale expenditures prior to Royal Assent, we concentrated on that area of planning far more with Section 82 powers than one would ever do with a paving bill.

  10. Could I be clear about this because obviously I am a bit confused. We know it was guillotined on the Floor of the House. Was this ever discussed?
  (Angela Eagle) What was guillotined?

  11. We did not get to discussing Section 82 formally. Was it ever discussed in Committee in terms of procedure?
  (Angela Eagle) No, I think that is what you are doing here. The Committee asked you to do that. We discussed the issue itself, the expenditure of the money, and what it was for. The key period for Section 82 powers is the period between when Royal Assent will be and, of course, we do not know when that will be until we get it.


  12. May I interrupt you, Minister. I think the point we are trying to get at is because of the use of the guillotine, both on the Floor of the House and in Committee, the merits of using Section 82 were not discussed. That, I think, is the point that David Drew was getting at.
  (Angela Eagle) I was trying to give you some flavour of my experience of the use of the power, having been the person who was involved in the first use of it. Clearly, that is all I can do as somebody who got involved in laying these Reports before Parliament and going through the procedure. People will have their own views as to whether Section 82 powers are appropriate or inappropriate. I am saying that from my experience of taking the first use of that power through its procedures, it was transparent, it got us involved and me involved as a Minister, the Members of the Select Committee involved, in far more detailed discussions and sessions on what was going on and what was being done with this money and when, than any other procedure that I have got involved in.

  13. You are failing to answer the question which I think we are sensibly putting. Do you not, as a Minister, think that it was regrettable that the operation of the guillotine prevented a discussion, either on the Floor of the House or in Committee, on the merits of using this way of allowing the Government to proceed with the expenditure of a substantial sum of public money?
  (Angela Eagle) Obviously guillotines which prevent discussion on any procedural change are regrettable, yes. If that is what you want me to say.

  14. It is not what I want you to say but your response to the question which is important.
  (Angela Eagle) It is always better to discuss procedural changes than not. I do not disagree with that.

  Chairman: Thank you.

Mr Illsley

  15. Following on questions to the Minister, as David has pointed out, there are two aspects to this. First of all, whether Section 82 is the appropriate mechanism to deal with what the Department wants to do in getting agreement to spend the money before the Royal Assent. Secondly, whether Section 82 of the Bill, when it came before the House, was adequately debated; and whether it would have got such an easy passage perhaps if there had been a debate on the Floor of the House, or whether it would have been criticised as Henry VIII clauses in bills, which give excessive powers within a piece of legislation. What I wanted to ask you was: at the time of safe passage of Section 82, the passage of the Bill, were the Department aware of any Members who had talked to others, to express opposition or state they wanted this raised on the Floor of the House? Was there any feel within the Department that it was going to be a difficult clause to get through the House?
  (Angela Eagle) I was not one of the Ministers who did the Welfare Reform and Pensions Bill which contains this section. I am not aware that there were any of those issues or points made but I am quite happy to go back to the Department and check with the record of those Ministers who did do the Welfare Reform and Pensions Act, which is the one we are talking about, to check whether any such representations were made.

  Chairman: We thank you for that, Minister.

  Mr Beith: The Chairman of the Social Security Select Committee at the time.

  Chairman: Of course, as I expect the Minister is aware, next week we will hear evidence both from the Chairman of the Public Accounts Committee and, of course, the Chairman of the Social Security Select Committee, so we will have the opportunity of putting those matters then. Thank you, Minister.

Mrs Fitzsimons

  16. Having served on the Public Accounts Committee, you will be well aware of the Chair of the Public Accounts Committee and what he has told us: that he thinks this is a regrettable diminution of the powers or effectiveness of Parliamentary scrutiny on that expenditure. Now, having served on that Committee, you referred earlier to the reality of what Parliamentary scrutiny is, and that this does not really change it much. In fact, you have said it enhances it. Could you flesh out for the Committee why you think this is not a diminution.
  (Angela Eagle) Section 82 is ahead of Royal Assent so it is a way, with Parliamentary approval, of being able to run some of the initial preparatory work that you always have to do with a complex change in parallel with the bill. So clearly there is a risk of nugatory expenditure if the bill were to be defeated or lost or abandoned. Clearly Parliament has got to do what it can to minimise that risk. I might say that Departments do what they can to minimise that risk as well. If I have money as a Minister that I want to spend on things, I do not want to see it going down the drain. I want to see it being used and spent effectively. The point at issue is the period between when the preparatory work has to begin in a Department, in order to deliver the change in a timely fashion, and when the Royal Assent can be got. Now when the Bill was going through the House with the child support reforms, which is the only use of this power to date, we did not know when Royal Assent would be. We hoped it would be in summer. We had to plan for the potential that it would be now, in October or November. Now when evidence was taken from officials about this, those periods were the ones we were talking about, and that only. Without Section 82 powers we would have seen a delay of four months until the preparatory work that we could do—to contract with our primary supplier, Affinity, to completely give us a new child support computer system to support the changes to the child support calculations and regimes -we would have had to put that off four months at best if we had got Royal Assent in summer, but up to eight months if we had only got Royal Assent in October. This would have meant we could not, within the spirit of the 1932 Concordat, do any work, begin to train our staff, any of the work that we have to do to cleanse the data which is on the old computer, so that we can put it on to the new computer in a better way. Without Section 82 and staying within the spirit of the Concordat, which we absolutely want to do as a Department, that would have delayed the implementation of the child support reforms if we had got a summer Royal Assent, which we did, by four months. If we had been unable to get a summer Royal Assent, (we only made it by one day), it would have been eight months. We have announced that the child support reforms are going to be put in effect from April 2002. The computer which we are talking about for this expenditure will be available at the end of December 2001 for us to start migrating the data over in preparing for April. With that delay of four to eight months, the actual implementation of child support reform would have been put off by the same period. Now when one thinks that the Green Paper on child support reform[1] was actually published in 1998, we are talking then about a six- to seven-year period before you can get through an entire change in Government policy with primary legislation and then put the actual changes into place operationally. Clearly this Committee has to think about that. We have to think about the balance between getting legislation on to the statute book and then being able to put it into effect. People want the child support reforms put into effect. They have been enacted. Even with Section 82 powers, there is an issue about enacting legislation and then operationally in complex areas being unable to put this it into effect for years afterwards.

  Mrs Fitzsimons: I was just going to further that. I understand that absolutely, but the Chair of the Public Accounts Committee is arguing that there is an implication that there was a previous ability to scrutinise expenditure that now does not exist. What you are explaining is that this is not the case because of Section 82.

Sir Paul Beresford

  17. May I add to that. Minister, you have given a very nice answer but it was not an answer to the question asked. The question was asked: do you accept that there has been a diminution in the effectiveness of Parliamentary scrutiny of expenditure? You have explained why you did it, not to answer the question.
  (Angela Eagle) I do not accept there has been a diminution. As I said earlier, Section 82 does allow more of a focus on any expenditure that might happen ahead of Royal Assent. Clearly there is a danger that if the bill was not enacted, for that period of time, any expenditure spent then would be nugatory. Clearly, if one takes a very, very strict view of what Parliamentary scrutiny is about—not a penny of money should be spent at all ahead of Royal Assent—then you could, if that is your interpretation, say it is a diminution. I am saying Section 82 does give Parliament enough powers and enables us to be as transparent and open as we possibly can be at the time about what we are going to be spending this money on in this period. I do not regard that as a diminution. It is matter of opinion. Clearly people have their own opinions.

  Chairman: Before I ask David Drew to come in with the next question, can I suggest to Mr Judge, Head of Departmental Finance and Planning, that if he wants to come in at any time, obviously we are very happy that he should do so. The Minister is batting a very fierce attack and responding very positively. David.

Mr Drew

  18. I understand this question of special pleading on behalf of the DSS, and that it would not in any way diminish the power that you put forward, Minister, but it is not beyond the rhyme and reason of the Home Office to come forward with a similar argument in terms of asylum and immigration computer mechanisms; whilst the Treasury, I am sure, would find every reason to say that their latest computer ideas need special enforcement for the different ways which they might need to bring forward a business case. Now we know what the Chairman of the Public Accounts Committee has said so far, and no more. Are you happy that this is not something that any other Department could, in due course and at the time, argue very forcefully that they need a Section 82 in place as well?
  (Angela Eagle) I cannot speak for any other Department. We made the case for the DSS and I have made the case because of the structure of the DSS: the fact that a lot of our work services are dependent on primary legislation, which gets us into the Concordat area, the complexity of trying to modernise old computer systems. I suppose I would say that each case, any potential future case ought to be looked at on its merits, but it is not for me to speak for other Government Departments about what they may or may not be planning to do, or may argue in the future. But, yes, it is possible for any Department to argue that Section 82 type powers ought to be available to it and it is then possible for Parliament to take a view on that.

  19. Could I ask you, has any other department got a concordat that they could refer back to and see this as a natural sequitur?
  (Angela Eagle) The PAC concordat applies across all departments to all Government expenditure and is between the Treasury and the Public Accounts Committee, so it applies across the board.

1   Note by witness: The Green Paper on child support reform, Children First: A New Approach to Child Support, (Cm 3992) was published in July 1998. Back

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