WEDNESDAY 23 OCTOBER 2002
Mr Archy Kirkwood, in the Chair
Memorandum submitted by Child Poverty Action Group
Examination of Witness
MR STEWART WRIGHT, Legal Officer, Child Poverty Action Group, examined.
(Mr Wright) I certainly hope it has. I cannot see anything, in terms of the objective facts, to suggest that it does not have a future. Certainly the Government's own statements announcing its review was put on a positive basis about what SSAC's role is. I would certainly say that from CPAG's perspective - and I think that is probably the view of all welfare rights organisations - for the reasons you have already touched upon about the importance of the work that SSAC does, that what the review should lead to is SSAC, firstly, being recognised for the important role it does currently play in relation its work on work and pensions matters, but, secondly, and in particular, that its remit should be expanded to include tax credits. If the review leads to any other conclusion than that, then I think claimants, the Department (or Government, because it is now two departments) and, if I may say so with respect, Members of Parliament, will be worse off.
(Mr Wright) I think it would be putting it too high to say it is part of a trend. I sincerely hope and I believe that that was the worst case example of the dealings of the Department of Social Security (as it then was) with SSAC. There have been other instances though, at around that time, where wrong information was given to SSAC by the Department. For example, when changes were made to the contrived tenancy rules in relation to housing benefit, the statement which was made to SSAC at that time by the DSS (as then was) said that genuine tenants would not lose out - I am paraphrasing slightly. As a High Court judge in a case called Painter recognised, that was simply manifestly untrue. The whole purpose of the change was to ensure that categories of tenancy, whether they be genuine or contrived, were simply shut out from housing benefit entitlement. However, that attempt at misleading, if I can put it as that (and I accept entirely that is quite pejorative and it may have been entirely accidental) did not have the consequences that the other case you spoke of did have, because what in fact happened was that SSAC recognised the importance of the subject matter of housing benefit and were already consulting on that matter. I think it was in the context of that consultation process that they then got this wrong information from the Department. I cannot, from memory, say whether SSAC recognised it was wrong and said to the Department "Hang on, you have got this wrong", but I am sure that will be revealed from the SSAC report on the draft regulations which were put before them. But it did not have the consequence which arose in the particular facts of the Howker case because it never even got to consultation because they were misled to think the regulations were going to be of no effect.
(Mr Wright) It was not in any way trying to suggest that the members of the committee did not have a wealth of experience, including legal expertise, but the reality, as was revealed by the Howker case, was that very misleading information was given to the committee which, if I can use as neutral a phrase as possible, was accepted and not picked up on. The reality is that SSAC, as I am sure they will tell you, have a vast array of regulations given to them all the time and the structure of their work is such that they can consult on some regulations but by its very nature there are so many regulations that they are not going to be able to consult on all of them. They have therefore got to be in a position to make the choice about which regulations are important and which are not. That has a number of consequences, which I will come on to later as well, but when they have this whole array of regulations coming, they have to say "Do we need to consult or not?". One of the systems they had in place at the time of the Howker case was the Department saying "Well, you do not need to, because it is actually not important. These are neutral, in effect. No claimant is going to lose out". Understandably, if you have got members of the committee who are not looking at this all the time and, maybe, are not looking at things in detail, they - as the court found in that case - are perfectly entitled to accept that advice from the Department. The point I make about the need to have a legal adviser is that if you are faced with this vast array of legislation, and if it was to include tax credits, with lots of delegated legislation - and the Committee will be very well aware of the amount of delegated legislation that comes out from the Department for Work and Pensions - it is certainly not going to be practical for Professor Ogus to actually sit down and deal with all of it, I would suggest. You need to have a legal adviser looking at that. To be quite frank, you either have to have a system where you can be absolutely confident that, for whatever reason - be it at one extreme malicious or, at the other extreme, purely accidental - the Department will never give wrong information to SSAC, or SSAC has got to be in a position to have its own confidence that it will know, as far as the committee itself is concerned, that the regulations do X or do Y. That is why I suggest there is at least an arguable case for them having their own legal adviser.
(Mr Wright) From an outside perspective I would be suggesting possibly, yes - certainly in terms of the legal adviser because it does not have one. Certainly if it were to be accepting tax credits I think its resources may clearly have to call for an addition. One of the points I mention in the paper was that there used to be relatively regular meetings with the voluntary sector groups by SSAC, not in relation to any particular piece of legislation but critically, in my view, to allow SSAC and the voluntary organisations to, if you like, set an agenda or look at what the agenda is going to be in the coming months, so that when SSAC is sitting considering all the various regulations that they are going to, perhaps, have to consult on or not they have got an idea about what the voluntary sector thinks is or is not important, and that might inform their view on whether to consult on it. Certainly from CPAG's perspective, those meetings have dropped off, and very roughly speaking we have not had a meeting like that for the last 18 months to two years with SSAC. That may be for resource reasons. I cannot say whether it is or is not because it has not been suggested to us that it is for resource reasons but it may well be for resource reasons. In terms of the actual legislation which SSAC has consulted on, over say the last two or three years, I think it would be fair to say that although you may be able to quibble at the margins, in the main the regulations where they have actually called for a formal referral to them and then consulted on, have been the most important ones. So that on its own would suggest that resourcing is not necessarily a problem. Of course, from a claimant's perspective I would want them to be resourced so they could, as a matter of course, consult on far more regulations. Bearing in mind the amount of regulations that do come out, I think the ones that they have focused on - and I mentioned two in the paper - have generally been the most important.
(Mr Wright) No. For present purposes, no. It may well be that a strong case would be made for broadening the expertise of the committee were it to look at tax credit matters, for example. I would not say, at the moment, just focusing on work and pensions matters, that the breadth of experience of the committee and its numbers needs to be looked at. There is a danger that if you increase the membership it becomes less effective. Equally, if you decrease the membership it becomes less effective because it may be held in less high regard because the views of its membership may not be reflective of a broad cross section of the population.
(Mr Wright) Yes.
(Mr Wright) To be quite frank, although I have not expressed that view in the paper, I would adhere to that view. The perception behind that is that the view is sometimes taken that things can be done behind closed doors as opposed to completely transparently. I think there is always going to be a balancing exercise. I think one of the other papers touched upon the past history of SSAC where under a previous government it could be seen as being, on almost everything, directly confrontational, and that important relationship between the secretary of state - because SSAC is essentially there to advise him or her - and the committee did not break down completely but it became very strained. So you do need to have a good working relationship with the secretary of state. Again, to be frank, that means that the secretary of state needs to respect you. He does not necessarily need to like you.
(Mr Wright) Formally, constitutionally, it pays a lot of attention.
(Mr Wright) Realistically, I would have to say that there are a number of very stark recent examples where the Government has not paid any attention, or has not paid special attention - in my view - to what SSAC said on its consultation exercises. However, in the final analysis ----
(Mr Wright) One of the examples I talked about was the disability living allowance regulations, the most recent set of draft regulations, I think, which SSAC actually consulted on. The unanimous view of, I think, 71 of the consultees that SSAC got views from was that this was a bad idea. SSAC did, in my view, a very good and very powerful report expressing those views but then adding its own views, which chimed with those views as well. In practical terms, what happened was the regulations were put out over the Easter recess, they were done under the negative resolutions procedure, but by way of some pretty intense lobbying by welfare rights organisations those regulations were eventually voted on in committee but the Government had a majority on the committee. That is the practical reality. The Government was very committed to those regulations going through, and I do not think much would have happened in that particular situation. I think it benefited members of other parties to have the report, and it should have benefited the members of the current Government party, on the face of it, none of the members of that party said anything at that particular debate, other than the minister. That is a political reality. The reality is that the Government, once it had an agenda on that, and, as I say, a perfectly legitimate agenda, SSAC expressed very trenchant views against that, but the Government in the end said "Well, we have passed it through". One does not want to be overly cynical and say "We will, disregard what SSAC says because we are always going to do it", but on the other hand there have been cases - and the other example I give is about housing benefit regulations - where, actually, the force of the criticism made meant that - and, also, as an aside, the fact that they had not bothered to consult with their own colleagues in the Department for the Environment - the Government backed down on the regulations.
(Mr Wright) Yes. I want to be quite careful. Both of those examples are quite transparent examples because consultation took place, a report was made, the Government said why they either were not going to accept the report or drop the regulations altogether. Everyone could see that. The behind-closed-doors perception - be it right or not - deals with all the other important things about what regulations you might consult on. However, SSAC also has got its own independent ability just to advise the minister on anything, they do not have to wait for a set of regulations to come to it.
(Mr Wright) I think it has been helpful. My own particular knowledge of the detail is quite limited. If I can answer it in a slightly different way and say that if one looks at what is currently going on in relation to tax credits, the Inland Revenue is consulting on an informal basis with SSAC on certain delegated legislation that they have made and are proposing to make, that has no transparency about it whatsoever. I have explained some of the reasons in the paper for it, but the problem with that is that, to be frank, nobody knows it is going on other than the Inland Revenue and SSAC. SSAC has not, as far as I am aware, sought to then ask for views from the voluntary sector on those tax credit proposals. So those informal relationships simply do not work. Well, they may work to an extent but as far as transparency is concerned and as far as good government is concerned and, ultimately, as far as accountability is concerned, they are nowhere, because this Committee will not know what has happened and Parliament will not necessarily know what has happened. It is instructive that in the debate on the Tax Credits Bill when the Minister said "There are these informal arrangements" and someone then asked "Well, where can we get hold of the reports of SSAC on these informal consultations?" the Minister did not know.
(Mr Wright) Yes.
(Mr Wright) I think they have to be a necessary consequence of each other. Fundamentally, it is because there is no statutory structure in place. Even if SSAC were to be consulting with wider bodies (and I have to say here, as I say, that my perspective is through CPAG, and they have not consulted with us on tax credit issues in any way) so what? What does that go to? It does not mean that the Members of Parliament then get a report before them when the draft regulations are laid. The Inland Revenue can throw its SSAC report in the bin. Legally, there is no requirement ----
(Mr Wright) Absolutely, yes.
(Mr Wright) It is not the whole thing. The problem with tax credits is that it is entirely informal. So you have the tail wagging the dog syndrome. With the current situation, clearly, the informal meetings between the Secretary of State and the committee or the chair of the committee are very important, but that is from the perspective of SSAC having a statutory remit. So in that situation the tail is not wagging the dog. In this situation you have got an informal arrangement entirely.
(Mr Wright) I have read the Minister's responses, both in the Commons and what was said in the House of Lords. Frankly, I have no idea. I cannot make head nor tail of it. The argument seems to be, firstly, the Inland Revenue did not like it. Well tough. They do not like it. The Inland Revenue, understandably in some areas, like broad areas of discretion. They like to have long negotiations with ICI about when they will eventually collect Income Tax - in the next six months or nine months or whatever - and that works in that field. However, there is a culture within the Inland Revenue about not liking too much formality. That does seem to form part of the answer. The other part of the answer was "Well, we have this informal arrangement and that is all right". Well, it is not all right because that entirely depends, for example, on the Inland Revenue deciding to consult with SSAC. SSAC cannot say to them "You need to consult with us on this; we would like you to consult with us on this", and the Inland Revenue saying "We cannot be bothered. You have given us five bad reports in the last six months, we are not going to consult with you ever again". Nobody can do anything about that. The Act of Parliament does not require any consultation whatsoever. Thirdly, the Parliamentary draftsman says it will not work that way; but if there is a will then they will get it done. I did find the responses given, frankly, quite incredible - in the proper use of that word.
(Mr Wright) I think what could happen is that there could be, if you like, a working memorandum or something like that agreed between SSAC and the Inland Revenue which, in a sense, might try to mirror what is in the Social Security Administration Act. So it would not be legally binding, necessarily, it would not have that formal, legal quality to it, but at least people would be able to see the basis on which the Inland Revenue would pass information to SSAC and then what SSAC does with that. Does the Inland Revenue then expect to consult on that? If it does, who is going to pay for that? Who is going to give SSAC the resources for that. Then what is done with the report? Is it just stuck in the House of Commons Library, or is it actually appended to the draft regulations, or whatever? The informal arrangements, from my reading of what other Members were saying in those debates, was that nobody knew about them; nobody knew where the reports were. So that, at the very least, needs to be addressed, because if there is no statutory basis for doing it you can at least try and ensure there is some transparency about it and some degree of formality about it.
(Mr Wright) I cannot answer that. I can try and proffer an answer. Part of the answer might be that because CPAG has been intimately involved in the Howker case there may have been a concern about having meetings during the passage of the Howker case. SSAC have been sensitive to that. You will see in their own report they said their view is that they cannot talk about that because it is sub judice. I think, quite frankly, that is wrong because you can talk about that, but be that as it may, I think that may be reflective of a concern on their part. So it is possible that they have been meeting with lots of other organisations. All I can say is I do not understand that that is the case and they certainly have not met with us.
(Mr Wright) I think it is very important. One very obvious example is that when the Social Security Act 1998 came into effect and the decisions on appeals regulations were promulgated fairly shortly afterwards, they did not go through that process and everybody is getting it in the neck now because the system is a mess in places. That does not necessarily mean that SSAC, with the best will in the world, could have made sure it was not a mess, but that did happen. So you do now find that there is a lot of very important detail which gets promulgated within the six-month period - not necessarily to avoid going to SSAC, because it needs to be got there - so I think it would be important for those provisions to go to SSAC.
(Mr Wright) I think that suspicion may be justified. Certainly if one takes a relatively long view and believes what one hears, in terms of briefings, that tax credits are the way forward for everything, then if you accept the logic of the argument that tax credits cannot go to SSAC, then SSAC is going to disappear at some point in the future. Again, in a sense, it comes back to the transparency point, that because one does not know what is going on at quite a number of stages of the process of consultation, other than the formal consultation stage, it is difficult to see what the relationship is between the Government and SSAC, how the Government is treating SSAC. I know of that suspicion. I think quite a lot of people hold to that suspicion, not least, perhaps, because, in truth, the Government, on the face of it, on tax credits have simply given no thought to having any consultation process whatsoever. One assumes that intelligent civil servants who are dealing with the matter knew about SSAC and, therefore, it was a positive decision rather than an accidental one. If that be right, then you can see that there is perhaps a view that SSAC is to be sidelined - which, as I said at the outset, I think is completely wrong. Not least, with the greatest of respect, because MPs, who have very, very busy schedules, need to actually see, on the preambles and draft regulations, whether SSAC consulted on it or not.
Chairman: Stewart, that is very valuable. Thank you very much for your evidence, and we shall suspend the Committee temporarily.
Memoranda submitted by Mr Robin Wendt CBE and Sir Peter Barclay CBE
Examination of Witnesses
MR ROBIN WENDT CBE, Former member of the Social Security Advisory Committee, SIR PETER BARCLAY CBE, Former Chairman of the Social Security Advisory Committee, examined.
Chairman: Can we reconvene the Committee and welcome Mr Robin Wendt, who is a distinguished former member of the Social Security Advisory Committee, and Sir Peter Barclay, a former chairman of SSAC, who have both kindly agreed to join us. We have had the benefit of some written material from them as well. I think you have, between you, spent some 20 or more years on the Social Security Advisory Committee and in many other related distinguished fields as well, and we are very grateful to you for taking the time to join us this morning. Can we go into some questions?
(Sir Peter Barclay) I would say, in brief, that there would be, as the last witness was saying, a cessation of a trusted way of bringing totally independent opinions into the making of policy in the Department. As a result, I think there would be a great reduction in the general understanding of what effect any new regulations would have and a lack of confidence, which I mentioned in my submission, in the effectiveness of the process.
(Mr Wendt) Yes. I think that the great benefit of SSAC, certainly at the present time, is that it contains a body of people who are not necessarily themselves expert in the social security field but, nonetheless, have a range of ability, expertise, knowledge and professionalism, and so on, which enables them to bring to bear a genuinely independent and as informed as it can be judgment on the issues that are put in front of SSAC. I think it is arguable, not just in relation to the DWP but the policy making process in Government generally, that it must always tend to benefit rather than not benefit from the existence of a group such as SSAC. You could, as I said in my evidence, if you wished to do so, apply the SSAC model more widely. So I agree with Sir Peter that while, clearly, SSAC is not essential, if it were not there then the Government would not be able to benefit from this kind of helpful advice, as a result of which, as is widely recognised, the Government sometimes but not always modifies its view and does something "better" than it would otherwise have done. To me that is the main benefit. None of this is necessary but it is highly desirable. I think SSAC also is a very useful conduit for organisations like the CPAG and others to feed their views into a consultative process. That, however, is a separate and, I think, secondary point, as far as I am concerned.
(Sir Peter Barclay) First of all, it was entirely my experience, over the years that I was Chairman, that it depended on the personality and the knowledge of the relevant secretary of state. We had a blissful time for four years under a man who is now Lord Newton, who knew more about the social security laws and administration than anybody else, including officials. It was with him that the full influence of SSAC and its complete protection was realised. I shall not mention any other names. I was wondering whether I would dare to mention, but I will, that at the other end of the cycle was a situation where there was so much dislike of SSAC that a meeting of senior officials was called by the secretary of state in question to discuss the abolition of the committee, which would have required major legislation. The officials met at 10 o'clock in the morning and there was no secretary of state, and his private office said he was at Downing Street. They went on waiting and waiting and, finally, a telephone call came through saying that the secretary of state was no longer the secretary of state, he had resigned or been asked to resign. So that, to me, was a very useful tool to wave in the face of subsequent secretaries of state who tangled with the committee. But that is a rather flippant point.
(Sir Peter Barclay) Is there such a thing as being off the record?
(Sir Peter Barclay) I will not be pursued by the secretary of state in question then.
(Mr Wendt) I think this business about private nods and winks, and all this kind of thing, can be overstated. I would tend to the opposite point of view, that in principle most of the major operations of SSAC are, so to speak, on the record. Evidence is submitted, a report is written and the secretary of state is required to respond to that report. All of those documents are, in principle, available to the public and, in the case of SSAC reports, ministerial responses are published, as are the kind of gratuitous pieces of advice that the committee chooses to give. So I think that is actually the main characteristic of what SSAC does and the way that it operates. It is true that SSAC, particularly through its chair, occasionally gives informal advice and suggestions to the secretary of state. You may wish to question the current chairman about that but my feeling would be that that mode of work is very much secondary to SSAC's main business, which is conducted in public. I personally can think of no good reason why, for example, most of the business of SSAC could not be transacted before the public exactly as you are conducting your business this morning. It is not really like that for most of the time, we are dealing with the kind of issues that are perfectly well-known publicly and most of the points that are made are the kind of points that most informed and sensible people would make. I just urge the Committee not to overdo this private business. I am sorry to go on.
(Sir Peter Barclay) I would like to clarify what I said earlier because I was conscious, for all the nine years I was Chairman of the committee, of walking a tightrope. The tightrope was the place where the pressures from poverty lobbies - as we used to call them - and all the voluntary organisations, trade unions and so on pressed upon the committee in various ways on one side, and officials and ministers pressed on the other. If you actually wavered towards one side or the other it would be a clear breakdown in the way the thing worked, and presently it is working effectively. So there is not any clear, to my mind (subject to what is said by my successor) difference in that situation on the tightrope. What is very threatening - I read with great concern - is the whole tax credit point, which has been made. I regard it as extremely serious that a huge expansion in welfare spending, and it is of enormous proportions - I think the figure is something like £12 billion - has already gone into tax credits over territory which I would have regarded as very much the territory of SSAC. The informal arrangements, to me, are totally unsatisfactory.
(Mr Wendt) On the original question, I do not think there is a trend, I think it is a function of the style and personality of the minister; ditto of the secretary of state; ditto of the chairman of SSAC; ditto of the SSAC secretariat. All these things interact to produce a given relationship at any one time.
(Mr Wendt) Certainly, and for one particular reason which may not have been adduced before, which is simply that social security is based on a very rigid system of entitlement, and law and detailed regulations. The Inland Revenue operates in a completely different way, and if it is going to take responsibility for large chunks of what hitherto has been social security, it must be encouraged, in my view, to develop a kind of entitlement consciousness or mentality. I think the existence of a body like SSAC, operating in its territory would be a very strong incentive towards that.
(Sir Peter Barclay) I do not honestly know what the situation is, at the moment, but we had, and I negotiated, a budget for research. It was only a small budget and it could only be secondary research in terms of literature reviews and so on, but it was enormously valuable to us. It was on more than one occasion the basis of what I would call the self-generating reports which we produced. So I would be concerned if that budget - if there is still a budget - has been reduced.
(Mr Wendt) I think it probably has tailed off, frankly, over the years. I think it is always going to be difficult for an organisation like SSAC, with very, very small resources and working directly in support of it, to become a major player in the research field. As Sir Peter has said, the committee was able to do a certain amount of research. It did have a budget but it really was pretty small. So I think there is an issue as to whether SSAC really ought to be in the business of research. If it is going to be then it needs to be much better resourced for that specific purpose than it is at the moment.
(Mr Wendt) As Sir Peter was saying, in the context of the committee's role in giving advice spontaneously on broad policy issues, I think there is a case for a research capability in that connection, but I do not think that SSAC should set itself up as some kind of major player in social security research.
(Mr Wendt) You may want to ask the chairman in more detail about that. All I would say, from my time on the committee, is that maybe once a year the committee really attempted to get hold of an issue that it thought was important and to proffer a view to the secretary of state of the time on that issue. I think that has been useful and important, and I very much hope that it will continue.
(Mr Wendt) I suspect due almost entirely to what you might describe as pressure of business, pressure of events. There is always something else for the committee to consider; some new set of regulations to be attended to, partly because the committee is simply not resourced to carry out extensive monitoring exercises which, if they are going to be done, really have to be done well in a kind of informed and well-researched way, and partly because the Department still does not appear to be terribly pro-active itself in monitoring. I suspect it does some but there is no sense that the Department is itself spending loads of time monitoring what is actually going on, because again they have moved on to new things. So I think there is a general issue about monitoring of developments which is not exclusively linked to SSAC and what it might be doing. I personally continue to be disappointed that there has not been more progress over the last six years.
(Mr Wendt) Yes, I do, but I suspect the lead has got to come from within the DWP rather than from the committee.
(Mr Wendt) Probably not, but it was a role that the Secretary of State was keen for the committee to take on. It acquired an additional member of staff in the secretariat for that purpose and those of us on the committee spent many hours poring over drafts of leaflets and documents and all that kind of thing. It was time-consuming, but I think it was worthwhile in the sense that quite a lot - interestingly, in comparison to what is sometimes said about the committee's ability to influence what goes on - of notice was taken of what we, hard-working committee members said about draft leaflets. I think myself it is more important for SSAC to work on regulations and policy, but given the Secretary of State has asked the committee to take on that role and it has agreed to do so, it is a job that has to be done and needs to be done well, and I think is working.
(Mr Wendt) The monitoring.
(Mr Wendt) I was not seeking to contradict myself, but by "monitoring" I mean that somebody somewhere attempts to analyse and describe what is going on in terms of the operation of a particular set of regulations - which means collecting hard data and all this kind of thing, drawing conclusions from it, and so on. I was using research in reply to Anne Begg in a different sense. She, I think, cited the work the committee did in relation to mental health, for example, which I suppose you could describe as being more of an academic kind of research; picking up an issue and researching it to try and reach some conclusion. That is the distinction I am trying to draw, and I would maintain the view, I think, that in my sense of these terms the monitoring role is potentially more worthwhile than the research role.
Rob Marris: Thanks.
(Sir Peter Barclay) They certainly were vitally important in my day and, presumably, are now, mainly because you pick up things which no amount of formal machinery would allow you to do. Just odd remarks by someone working in a far distant corner of a huge office. You go up to them and ask "What are you doing?" There emerges the most frightful issues which are then expanded on in a private letter going through to the Department. So intelligence gathering is extremely important for the committee, but it is also important for the staff so that they do feel, at least, that there is somebody there who will pass on what they think.
(Sir Peter Barclay) A can of worms. Seriously, I would be inclined to think that there are other bodies more generally who could give us evidence. We used -- and I am sure still do -- to have regular meetings with those involved in race relations. There were one or two institutions where they were right at the very top of the current concerns of the then DSS.
(Sir Peter Barclay) It is a bit of both but much more of what you have just mentioned than something that we may be able to garner from our visits or wherever.
(Mr Wendt) It would involve the Committee in a completely different way of working than it has hitherto practised. It would certainly mean an entirely different style of relationship with the Department itself which might or might not be a good thing. I would be, like Sir Peter, a bit chary about that suggestion.
(Sir Peter Barclay) On the tax credits, I have already shot my bolt on that one. I feel very strongly on that point. On the other side of the Department is the whole question of work and the workings of the new offices, I do not feel able to comment constructively. It is a new world to me.
(Mr Wendt) I agree with Sir Peter on the tax credits issue. I do not however think that that additional responsibility will of itself require any change -- for example, in the membership of the committee, bearing in mind as I said earlier on that they are not supposed to be experts in social security or tax. Their contribution is slightly different to that. I guess that the present committee could deal just as effectively with tax credits as it can with existing social security. There is another issue which I did allude to in my own note to the Committee about what I have called looking after consumers' interests, which I gently pointed out is not in the remit of any existing DWP committee. I do think that is an issue that does require some thought.
(Mr Wendt) I am not necessarily arguing that it should be fulfilled by SSAC because SSAC has quite enough to do already. There are issues for individuals as consumers in their dealings with the system: what the officers are like, how they are treated, quality of written communications that they receive and so on, which affect by definition millions and millions of people, but there is no forum of an official kind at the moment in which these issues can be addressed. If bodies of that kind can exist for electricity, gas and the postal service and so on, it is at least arguable that there should be something comparable for the social security system.
(Sir Peter Barclay) It was a great privilege.
Chairman: Thank you very much indeed and we look forward to seeing how the future evolves.
SIR THOMAS BOYD-CARPENTER, KBE, Chairman of the Social Security Advisory Committee, and MS GILL SAUNDERS, Secretary to the Social Security Advisory Committee, examined.
(Sir Thomas Boyd-Carpenter) You very kindly referred to the fruitful relationship that we have enjoyed with yourself and the Select Committee. Could I, from our perspective, echo that and thank you for the continuing attention that you have paid to us over your tenure, both in this committee and its predecessor? We have valued that enormously and found it extremely helpful. I am most grateful that you have found the time in your programme to conduct this small inquiry. You referred to the Quinquennial Review. Yes, it has formally started. I have not yet met the professor leading that, but I hope to in the next ten days or so. I welcome that it is being held.
Chairman: I am certain you have nothing to hide but I am also tempted to say that the very fruitful relationship that we both have is entirely untransparent because most of it is over sandwiches and very productive lunches. Let us go to some questions about the current role and your scrutiny of the regulations.
(Sir Thomas Boyd-Carpenter) It reflects two things. Firstly, the fact that a lot of things that used to be SSAC business are no longer because they now form either part of the contributions regulations or tax credit regulations and therefore they are Inland Revenue business. Secondly, it may be symptomatic of the amount of work the Department is doing by primary and secondary legislation. If a lot of work is done through primary legislation in the first six months of regulations, by definition, less will come to us. Because the Department has had a very active period in primary legislation, by definition, we have a rather low period in dealing with longer term regulations. This is partly cyclical and the Department is going through the stages of being very active in primary terms; and partly a more distinct trend that you have already identified. There is a move of more and more of what used to be regarded as SSAC business to the field of tax credits.
(Sir Thomas Boyd-Carpenter) It is a judgment reached by the committee and we all bring to it different factors, I think. The obvious issue we will consider is: is it substantive? Is it a major change? Is it likely to affect a lot of people? Is it one that is so complex that there are likely to be threads that may be difficult to identify, on which consultation is necessary? Is it one where the committee has the relevant expertise, or is it one where it is clear that it needs a lot of external input? This judgment is reached by discussion in the committee. I will arrive at the meeting with my own ill-formed opinion that we are likely to ask for a formal referral on A and B but we will not on C and D. I may well, through discussion with officials during that meeting, reach a completely different conclusion. Even the secretariat, who I suspect keep a book on this as to which we are going to consult on, and which we are not, are not always right. We reach this judgment through discussion, with the experience and input of all the individuals. I was heartened when it was said that we normally get this right.
(Sir Thomas Boyd-Carpenter) Some of the letters are in our stewardship report at the end of the year. For some of them, that might be inappropriate. There will be situations, for example, when a set of regulations are either brought fully formed or in draft and we may say, "We think these are very silly. Go away and think again." If the Secretary of State then does so and other regulations come, I do not think we would necessarily share that particular experience more widely because what has happened has happened. We retain the right of, and we may well ask for, a formal referral. That fact itself becomes public. Where we do make substantive recommendations to the Secretary of State in this way or produce short reports on issues, they do feature either in full or by reference in the annual stewardship report that we produce, so to that degree they do take place in public, but I think there will be normal, informal exchanges which it would not be appropriate necessarily to disclose.
(Sir Thomas Boyd-Carpenter) Yes. If the Secretary of State takes it on board it becomes policy. The advice has been taken and why should we refer this any further?
(Sir Thomas Boyd-Carpenter) No, because the way the Act is framed is that we provide advice to the Secretary of State, and it is up to the Secretary of State to decide whether he will accept or reject it, all or in part. He has to, on the face of it, report to Parliament his commentary on what he is going to do about it. He has to publish it. There have been one or two occasions in the past where he has decided to withdraw the regulations in toto. He still nonetheless publishes the report which may have led to that decision. Given that we are an advisory committee in the first instance to the Secretary of State, I think it is right that he should have the first crack at it. You and your colleagues have the second opportunity to see what his reaction to that has been and to look at both sides of the argument and decide whether you wish to intervene.
(Sir Thomas Boyd-Carpenter) I am not sure that would be necessarily more productive in producing an active result. It might reinforce the possibly entrenched position. If we have raised points of substance which give the Department real cause for concern, I think it is probably sensible that they should have time to reflect on those and decide how best to handle them. Our comments, when they are published by the Secretary of State -- and indeed there are debates on the subject -- do raise considerable public interest and that itself does put pressure on governments. Governments are very conscious of this, and my sense is that no government likes to have to defend what seems a rather difficult position to defend in public. The comment that "even your advisory committee disagrees on A and B", is quoted fairly frequently in these debates and that is a really quite powerful incentive. I am not sure if one is looking for producing the best effect for the people affected by the regulations that to start stumping up pressure in advance of a sensible reaction would be beneficial. I think it might have precisely the opposite effect.
(Sir Thomas Boyd-Carpenter) To an extent, we have our independent legal advice in that we have access to the Treasury Solicitor as opposed to the departmental solicitor. We can seek independent government legal advice separate from that available to the Department. We can, of course, deliberate in private and we do deliberate in private on occasions. We may choose to have officials present; we may ask them to leave. As to the suggestion of a separate legal adviser on the secretariat, I am not persuaded that that would enhance our position. We have two legally qualified members on the committee currently. One of them wrote the book, so it is difficult to get more than that. The elaboration and complexity of the law on social security, as you know, is vast. The risks of unintended consequences are always equally vast. I do not think any one individual as a member of the secretariat would actually significantly reduce that. Despite what may have been suggested earlier, we go in enormous detail through those regulations and I remember impassioned debates over the position of a comma at various stage in various regulations, so we do pay attention to whether they deliver in legal terms the purpose for which they are intended. I do not think we would do a better job as a result of one individual attached to the secretariat.
(Sir Thomas Boyd-Carpenter) It very much does its best. We heard reference earlier this morning to the committee being misled in one particular instance. I am absolutely clear in my own mind that we have never been deliberately misled, but it is perfectly possible, through the complexity of the issue, for individuals to make honest mistakes as to the practical consequences. Tracking through with the vast variations that there are, as to whether there will be unfortunate consequences to a particular number of individuals, we can all make errors. I am certain the Department does its best. They may on occasions get it wrong. We equally can get it wrong. No one is perfect in this system. It may be subsequently that the Commissioners will interpret the law and say that we both got it wrong and things will have to be referred back. Given the system with the labyrinthine complications that it has, I am afraid this is always going to be a risk.
(Sir Thomas Boyd-Carpenter) The arrangements are formal to the extent that they are reflected in the exchange of letters between officials, but what they lack is clearly the underpinning position of a legal scrutiny such as applied to those regulations carried out by the DWP. It was an arrangement that we reached with the Inland Revenue not on tax credits but on the transfer of the Contributions Agency a year or so before, which was the first significant transfer of business from that which had been with the DSS in those days to that which then became Inland Revenue. We entered into this with the full help and support of the Commissioners of the Inland Revenue themselves, who did not have to volunteer for this particular privilege but did so. The arrangements do work imperfectly. They are informal because they do not have a statutory basis. They do not work to - and this is no fault of the Inland Revenue -- a satisfactory timescale. The way in which the Inland Revenue seems to prepare its regulations, and the timescale it needs to satisfy its ministers is extremely short. Therefore, when we see any Inland Revenue regulations, we normally turn them round pretty well on the hoof. It allows us to pick up some points in an informal fashion but it does not allow us to give them the care and attention that we would to DWP regulations. It is not therefore anything like as good an arrangement. That said, we have learned quite a lot from it in the process, because one of the previous witnesses made the point that the Inland Revenue's approach to issues is very often very different from the Department. Sometimes the Inland Revenue approach is a lot better and a lot simpler and there are occasions when we have gone back to the Department and said, "Why can you not do it like the Revenue? We think they have found a better answer than you have", so there is a feedback in that way, but no, it is not a satisfactory arrangement.
(Sir Thomas Boyd-Carpenter) Can I try and separate some of those out? It was rightly said that our previous research budget was very small. It allowed us to do little more than literature surveys. That is not to say that some excellent work was not done, but it was quite small scale. With the pressures that were put on our budget, this went about five years ago. In exchange, we got the right to be consulted over the Department's overall research programme and we do meet, at intervals, the Department's head of research and say, "We think you ought to look at issues A and B." We have on the committee, as you know, some very distinguished researchers in their own right who are worth listening to on that particular issue. Everyone regrets the loss of a budget in any circumstances, but I do not think that has made an enormous difference. We still do quite a lot of proactive work but it is small scale. They are "think" pieces rather than research pieces. We have done over the last two or three years a very useful piece on transitional protection, who should have transitional protection, what criteria should you apply when you are moving from one system to another? We have done some work on social inclusion which was reported in our last stewardship report and which did attract a certain amount of public interest in that way. We have done a certain amount of work which we fed into the Department on the boundaries between information giving and advice, tied into our general interest in information policy. To what degree is it the role of the Department to tell the consumer what the rules are, and to what degree should they actually offer advice? It is not as easy a question as it might sound at first. We have done think pieces of that nature. We continue to do those. That is very much part of our role. I am sure we could always do more. Time does supervene and some of the changes that have been going on within the Department and the reorganisation may have meant that in the last couple of years our focus has been more on observing those changes, seeing the delivery of the new system of Jobcentre Plus and The Pension Service and on the information and advice area; but that does not mean that the think pieces are dead. There is another one lying in draft form on my desk which I will not disclose at the moment because it is not advanced enough yet to do so, but they do continue to be developed.
(Sir Thomas Boyd-Carpenter) The constraints are not such as to make it impossible to do it. As in many organisations, there are always priorities and we have been giving priority particularly to the information and advice area and to the observing of the transition of the Department. Clearly, in periods where we are doing a lot of formal referrals and consultations, that crowds out other work, particularly for the secretariat, because there is quite a lot of pure logistic work and considering several hundred submissions to the committee itself is very demanding. There are always going to be resource constraints, but not to the extent that this is going to rule out doing small think pieces. What we are not equipped to do any more is research projects on quite the scale that they may have been done a few years ago.
(Sir Thomas Boyd-Carpenter) I am torn about that, because I think there is always a danger that they might be something and nothing, not big enough to be really good. I think one could possibly do a bit more than we do in that way, but one needs to look very carefully and I would like to take advice from people more competent than I am on the conduct of research. What is the step change where you can do something worthwhile as opposed to playing with the issue, frankly.
(Sir Thomas Boyd-Carpenter) We have had an interim response which is to say, "Thank you very much. We are thinking about it." We are waiting for a more substantive response, but in a way it is not an easy question. Too quick an answer would run the risk of being superficial. I am quite glad they are not hurrying to reply.
(Sir Thomas Boyd-Carpenter) No. I may have been luckier in my secretaries of state than Sir Peter.
(Sir Thomas Boyd-Carpenter) They have all survived meeting me. I have dealt with four secretaries of state. They have been uniformly courteous and have listened. I would just pick up on the point of representing the views of the lobby groups. We listen very carefully to their views, but we do not feel compelled to synthesise and represent them. We represent our own views, which are informed and greatly improved by listening, but we put those over. I have never felt that we have been inhibited in expressing those views. All the secretaries of state I have dealt with have realised that there will be occasions when we say quite formally and publicly, to you amongst others, "We think you have got it wrong." Secretaries of state do not enjoy having that said to them but they have said, "We understand that that is what you are going to do." Nobody has tried to lean on me and say, "Do not do it" or, "You will regret it" or anything like that. I have never had that sort of atmosphere. Maybe I have been in a fortunate period in that way. I can see that situations could arise where, if one was saying this once a month, the atmosphere would deteriorate. I have not felt the need to do so. That time may come, but it has not been like that fortunately during my time as chairman.
(Sir Thomas Boyd-Carpenter) When we write in a semi-formal fashion, those letters are subsequently published in the stewardship report and, as you saw, the social inclusion paper was effectively covered by a letter to the Secretary of State saying, "This is what we have been thinking." Those are transparent and make clear that this is what we are thinking and this is why we are thinking it. If we are operating more informally in the relationship with the secretary of state, there would be a loss because transparency, in a funny way, would not be increased. I think, if we were going to operate in that very public fashion with the secretary of state, he or she in turn might be less open with us. It is useful to be able to have a very open, clear dialogue on issues that have not reached that stage of formal public exchange. What I would not want to do is to achieve a situation where ministers or senior officials felt that they could not open their hearts to us in confidence, knowing that we would respect that confidence while they were trying to formulate some quite difficult decisions as to where and how they go for the future.
(Sir Thomas Boyd-Carpenter) We are at the moment spending too much time looking at individual trees and not enough at the wood. We do give a disproportionate amount of time, in an attempt to try and give an assurance that the quality of material is adequate for purpose, looking at individual documents. I do not think we have yet reached that stage of confidence in the Department's work that we can do that. I am more concerned to look at the overall shape of the wood and we have been in discussions with the Department on the formulation of an overall communication strategy. What is the fundamental obligation of the Department to individuals? What is the best way of discharging that? How much effort and time should officials at all levels be giving to ensure that people know what they are entitled to do? How should one respond to new electronic means of communication? Those are rather more macro strategic issues, where we do not have real communications expertise, with one or two exceptions on the committee. We have a general knowledge and that is a continuing important role. I hope we will get to a situation in the not too distant future where we dip into a few of the individual leaflets, where either the Department is particularly concerned about things or we wish to do a sampling just to see that the Department has got this really right; but for a whole mixture of reasons, not least the fact that the organisations are changing so rapidly, we are not yet in a position where we are so confident that we can go to this rather lighter touch scrutiny. I hope we will be.
(Sir Thomas Boyd-Carpenter) Yes. A lot of this does take place. We are not the only people who are consulted. In preparation of a lot of the leaflets, users' advice is taken. We have particularly urged this should happen. For example, leaflets intended for people with learning disabilities need very expert advice and the Department takes that sort of expert advice. We have very much encouraged that process. What we add is the informed, layman's judgment on it. Because we look across the whole of the spectrum, we may see contradictions from different areas, or lack of reference between different areas and say,"Hey, what you say there could be misinterpreted." I think there is still a bit of that and, in a way, people who are closer to the specific issue may not always have that breadth of observation. They need to be complementary, not alternative.
(Sir Thomas Boyd-Carpenter) I would agree with Sir Peter and Robin. They are absolutely essential. It is terribly important for us to understand how the policy intentions are being translated on the ground. Without actually going there and seeing the difficulties of implementation, you could have no sense of that. You pick up from visiting the genuine difficulties of delivering the service and that is very helpful. I try at least once a year to visit Northern Ireland and the very different system there always provokes a whole series of thoughts. Very often, one comes back and says, "Frankly, they do it better there. Why not try this?" The visits are genuinely welcomed. People are glad to show off what they are doing and the new Jobcentre Plus and Pathfinder managers and officers are genuinely and justifiably proud of the change they made and they want to tell people about it and they do. I hope we are not too much of an imposition but I think it is a very important part of what we do.
(Sir Thomas Boyd-Carpenter) We produce a report and it goes to the office concerned. We are a little careful. What we do not want to do is cause enormous embarrassment to the local manager there. If the local manager writes saying, "I have been terribly let down by headquarters", we do not want to drop him or her in it by having circulated that report, so we have to be quite sensitive. We certainly write to other committee members and we identify points to look for as a result. We say, "Hey, I found this in this particular office. Could the rest of you on your next visit keep an eye out to see whether this is a local problem or a more general problem?" If we pick up anything of serious importance, we do feed that into officials pretty rapidly thereafter.
(Sir Thomas Boyd-Carpenter) No, it certainly was not deliberately excluded. It must have been a mistake on our part, to be honest. We do have a series of contacts both at national level with the major voluntary organisations and we also try at a local level, particularly when we hold our two day meeting out of London, to include a meeting with local representatives. I know in Scotland and Wales, in particular, our members who come from there and, equally, Northern Ireland do try to keep contact with the appropriate organisations in each constituent part of the United Kingdom. We have found these contacts a little more difficult to sustain more recently. The problem is resources, but not our resources. The problem seems to be the resources within the voluntary sector organisations who seem to find it more difficult to come to meetings and we have to push a bit harder. The CPAG mentioned that we have not had a meeting with them for some time. The last meeting we had was at our instigation and we went to them. We tried this spring to hold an open forum which we invited a lot of those organisations to come to and frankly we had to cancel it for lack of support. Not enough were able to do it. I think this may be a more general problem that at national level, in particular a lot of very distinguished organisations in the voluntary sector are feeling the pinch and have not got the staff and time to devote to this sort of meeting. That does worry me. We continue working at it.
(Sir Thomas Boyd-Carpenter) I hope that is not so. There is a lot of day-to-day contact between the secretariat and the policy officers at national level. That continues on a fairly frequent basis. What is more difficult is for them to find the time to come to one of our meetings or set up a two to three hour meeting. There is a lot of telephoning. Because we have had, for reasons I tried to describe earlier, fewer consultations recently it may be that that has dropped us down their visibility level. If we move again into a period where there are a lot of major consultations, that will change, but these things will go cyclically.
(Sir Thomas Boyd-Carpenter) One has to bear in mind that we are commenting on something that has been carefully worked out as a policy judgment by Government with a lot of civil servants working very hard to develop it. If we found things wrong with every one of them, I would be seriously worried about the advice the Department was getting internally. One would not expect a 100 per cent hit rate on all this. It is perfectly reasonable for us to offer our advice. Some of the issues are matters of fact; some are matters of judgment. For example, we think this will be more damaging than an alternative. Inevitably, it can only be our independent judgment. We are not necessarily always right and ministers may take a different view. I am not disheartened. I would be disheartened if I felt there was a knee jerk reaction, automatically objecting to everything we said. It does not feel like that. I feel that there are occasions when we may secure partial changes and there will be occasions always when I feel our advice has been sensibly considered. I feel that, provided we are drawing it to your attention and that of your colleagues, and provided you also have an opportunity to comment, that is appropriate.
(Sir Thomas Boyd-Carpenter) I suppose one could never be totally confident of that. How would one know?
(Sir Thomas Boyd-Carpenter) I do not have that sense. The social security debate has itself moved very significantly over the years. I think you, Chairman, have spoken of the Supplementary Benefits Commission. If you think of the sort of atmosphere that existed at that time and the focus on social security at that time, the world has changed greatly, and inescapably the stature of SSAC has changed. That is not an attempt to sideline us; it is just that the debate over social policy and social issues has other prime foci. I feel that within our own field, we are as well listened to as we were. I am concerned that, with the growth of the delivery of welfare through a tax credit system rather than a benefit system, the situation continues to be dynamic and, as we said in our submission, there will come a point where the critical mass of what we look at will be so small as to say, "Yes, we are de facto sidelined." I do not think it is a Government policy to sideline SSAC. It is a consequence of much wider policy decisions that could have that effect.
(Sir Thomas Boyd-Carpenter) Yes. The original purpose of setting up the committee was to look over a certain area of activity. By definition, a certain amount of that activity is transposing itself outside our statutory remit, and a judgment therefore has to be reached as to whether people wish to preserve that overall remit, which would involve primary legislation so to do, or to accept that and say that that is how the world is. That is an issue that needs to be addressed, which is why I welcome both your inquiry and the Quinquennial Review.
(Sir Thomas Boyd-Carpenter) I am grateful for that. When I said I did not think we were being sidelined, I think we both agreed that there is not a conscious policy decision: "Let us sideline SSAC." I am saying that the process that is continuing at the moment, the transfer of the delivery of the benefit system to tax credits, is progressively eroding the cover of issues that were hitherto in the purview of SSAC. That inevitably sidelines it in that sense, because more and more of what were major policy issues -- the transfer of children's tax credits, the working family tax credit - will progressively do that. As you rightly say, we cannot give the sort of scrutiny to the regulations concerned with tax credits for the reasons we have described earlier. I think we are particularly heading into that situation now. I think there is a judgment for ministers collectively as to whether they feel what we do is valuable and maybe a judgment that this Committee needs to reach if they feel, as you suggest you do, that there will be a loss to Parliament and the world outside, but that would require a conscious decision by ministers collectively that our constitution, our legal position, would have to be adjusted. I think we are rapidly hitting that point. This is why I said at the beginning of this process that I welcomed the Quinquennial Review. The Quinquennial Review seems to me precisely the mechanism by which this judgment should be reached. You have seen the terms of reference of it and that seems to be precisely the method by which ministers collectively, under the supervision of the Cabinet Office, should reach a conclusion to this particular issue. I am delighted. It could not happen, from my point of view, at a more opportune time.
(Sir Thomas Boyd-Carpenter) Not so. We have.
(Sir Thomas Boyd-Carpenter) I think I agree with what you are saying, but I do not think it is appropriate for us to take on the monitoring role under the Race Relations Act. I do not think the Department should put its own responsibilities into commission with us on that, and if they need expert advice on the legal discharge of their obligations from that point of view there are people much better qualified than us. We do very much pay attention to the issue of the delivery of services to ethnic minorities in our visits, and I mentioned that we have been to Oldham recently, and I am going shortly to another area where there is a very large ethnic minority community. One of the issues that we do look at is whether services are being successfully delivered to people who are disadvantaged in any form, including whether they are disadvantaged by their ethnicity or by language. One of the issues that we have been addressing, among other things, in our information scrutiny is the capacity to deliver to people whose first language is not English or Welsh, both of which are always very well covered. I do not think that a specific monitoring role would be appropriate in quasi legal terms, but it is an issue that we do pay attention to and have and will continue to do. We have, as a result of some of these visits, made suggestions and recommendations to the Department.
(Sir Thomas Boyd-Carpenter) Thank you. Could I echo your tribute to our Secretariat, without whom us part-timers would not stand a chance.
Chairman: Thank you.