Mr.
Reed: I agree with the hon. Gentleman that it is not a
binary equation. Given that we all accept that it is not a binary
equation, that we all recognised on Second Reading that it is about
priorities and that there is flexibility within any democratically
elected Government’s portfolio for choosing priorities, surely
there can be no grounds for objecting to this being a statutory
obligation?
Mr.
Gauke: In a way, the hon. Gentleman is perhaps arguing for
some clarification, which is what the amendment seeks to provide. If I
understand it correctly, it seeks to make it clear that meeting the
targets is subject to the fiscal responsibility Bill—assuming it
comes into force. What the hon. Gentleman argues for is fine—we
can meet the terms of the fiscal responsibility Bill, because it is not
just about money, and I do not disagree with his essential analysis.
The amendment is trying to explore what would happen if we were in a
similar position to our current one in 10 years’ time. When
faced with an obligation, would the Government be able to say,
“Hold on, getting our deficit down is very important.”? I
think the amendment makes it clear which one would
prevail. 3.30
pm If
we have two separate obligations going in different directions, I am
not entirely sure what the judges are supposed to do. Do they just pick
the one that they like most? Do they pick the most recent one? As I
understand it, subsequent legislation is seen to be superior
to—overrides—previous legislation, but it does not always
work like that. For example, going back a long time to when I was an
undergraduate, if I remember correctly the European Communities Act
1972 is an implied term in every piece of legislation passed since the
Act, so unless the legislation expressly overrides that Act, it is
subject to it—that is what the Factortame line of cases
established. I do not think that that applies here, but there is
potential uncertainty.
I wonder
whether this is an opportunity for the Minister to save some legal fees
for the likes of the Child Poverty Action Group, or whoever might
subject the Government to judicial review, and provide some clarity as
to how the two pieces of legislation—one before us and one
promised—will hang together. That clarity would be useful in
understanding exactly how the Bill works.
Mr.
Timms: I could not help but notice as the hon. Member for
Beverley and Holderness opened the debate that the new era he announced
to us this morning—the one in which he will not be overstating
his case—has not started yet, although I look forward to it. I
found myself firmly in agreement with one point that he made—his
antipathy to the use of split infinitives. I share that with him, but I
am afraid not a great deal else.
The essential
point is that the goals of fiscal responsibility and eradicating child
poverty are not incompatible—we have to achieve both. The
targets will certainly have to be achieved in a fiscally responsible
way. If that was not possible, the long-term sustainability of our
child poverty commitment would not be delivered. The
strategy—when it is published within 12 months of Royal
Assent—will need to set out how that will be achieved, and how
the targets will be delivered in a fiscally responsible way. Those
goals are consistent with clause 15, which requires the Secretary of
State to take into account fiscal and economic circumstances. I shall
argue, when we come to the stand part debate, that that obligation is a
strength of the Bill because, in fulfilling it, the Secretary of State
will need to take the likely impact on public borrowing into account
when preparing a strategy to meet those targets. The clause requires
the Secretary of State to
have regard to those responsibilities when setting out his proposed
action for meeting the targets. The
fiscal responsibility Bill will require the Government to reduce the
budget deficit year on year to ensure that national debt remains
sustainable in the medium term. That is, and must be consistent with,
the Secretary of State’s obligation to take into account the
impact of child poverty measures on public borrowing. The publication
of annual reports will provide a transparent accountability framework
to enable regular monitoring and scrutiny of progress. Those
accountability arrangements will ensure that we continue to make
progress in a sustainable way. That was always going to need to be an
obligation and a characteristic of the strategy when it was produced.
The hon. Gentleman made a perfectly fair point. The requirement is
highlighted by the announcement of the fiscal responsibility Bill, but
that would always have to have been a part of the strategy.
This Bill
allows us to plan to meet both those obligations, so I hope the hon.
Gentleman will accept my reassurances on that point and feel able to
withdraw his amendment.
Mr.
Stuart: What can the Minister tell us about
enforceability? I spoke a lot about it—he is humorous about the
new era of me understating my case, which he and I devoutly wish to see
begin, but perhaps not today. The point about the unenforceability of
this and other statutory targets is not just mine—it may be a
minority point of view in Parliament, but not in the legal community.
The Minister needs to take the issue
seriously. I
go back to Harriet Townsend, the barrister who said, in the context of
the Climate Change
Bill: “Notwithstanding
the potential for judicial review, both
the” duties “to
ensure compliance with the five yearly budgets would, in my opinion, be
ultimately unenforceable in the
courts.” That
was the legal view. I know there was a lot of to-ing and fro-ing on the
topic during the Climate Change Bill, but could the Minister bring us
up to date with the Government’s legal position? Have the
Government taken counsel’s advice on legal enforceability? That
goes to the heart of my
amendment. There
are two questions: mine, about enforceability; and secondly, about how
that enforceability works when we have, potentially, legislation
pointing in different directions, one direction requiring a reduction
in government expenditure and another an increase. Although the
Minister has a capability—nay, a facility—to sound
reasonable while saying things that are indefensible to my mind, while
I have exactly the opposite ability at many times, I would be
interested to hear from him on both those
points.
Mr.
Timms: Let me attempt to tackle that point. The courts can
respond in a variety of ways in relation to judicial review. The hon.
Gentleman mentioned a declaration, which a court can make; a court
could quash an order, require a Government to set aside a particular
policy decision, issue a prohibiting order forbidding an action, or
issue a mandatory order requiring a particular course of action. The
courts have many measures at their disposal if they seek to determine a
judicial review against the Government on either of the Bills under
discussion.
Mr.
Stuart: I take it from the Minister’s answer that
he is seriously suggesting that a court would use any such powers. The
main focus of the Bill is incomes. I think that Ministers have accepted
and agreed that when we get towards the end of the period, the
long-term issues around improving children’s centres, early
intervention, lack of attainment in families at an early age and so on
go out of the window, at least in terms of meeting a target that is
fixed in time. Does the Minister believe that the courts—or
anyone—could enforce action against Government on the child
poverty target in the early years? That is my first
question. Secondly,
the only time that I could conceive of a court starting to use any of
the fairly strong measures that the Minister talked
about—barring or insisting on certain activity by the
Government—would be right at the end. My hon. Friend the Member
for South-West Hertfordshire has tried putting counterfactuals to the
Minister before, with limited success in gleaning a full answer, but if
the legal duty existed now, would the Minister expect a court to insist
that the £4.3 billion or whatever is spent by Government in
order to meet the 2010 target? Does the Minister seriously expect that
sort of thing to happen in future? If he does not, that would suggest
what Jeff Rooker said during consideration of the Climate Change
Bill: “It
is not just about the punishment in the event of failure; it is about
trying to change institutional behaviour through a change in the
law.”—[Official Report, House of Lords, 27
November 2007; Vol. 696, c.
1209.] That is
a rather vague concept, but I have always found Jeff Rooker an honest
and straightforward Minister and I think that he was effectively
saying, as best he could, that the target was not enforceable. He hoped
that, by putting it in statute, it might be taken a bit more seriously
by the civil servants and others than it would otherwise, but it is not
a legally enforceable
target. I
beg to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Amendment
made: 46, in
clause 15, page 9, line 24, leave
out ‘them’ and insert
‘the Scottish Ministers or, as the case may
be, to the Northern Ireland departments’. —(Helen
Goodman.) The
effect of this amendment is that, in relation to Northern Ireland,
clause 15(3)(a) refers to the Northern Ireland departments in general,
rather than to the Office of the First Minister and Deputy First
Minister. See Member’s explanatory statement for amendment
34. Question
proposed, That the clause, as amended, stand part of the
Bill.
Mr.
Gauke: I shall be brief because the points I wanted to
make in the clause stand part debate I made with regard to amendment
61. There are two key elements to the pressure placed on Ministers by
the Bill. The expression, “Holding the Minister’s feet to
the fire”, has been used on more than one occasion. Kate Green
of the Child Poverty Action Group, for example, said in evidence to
us: “Of
more importance to us is that the Bill gives public profile and a
political push to the issue and ensures that there is constant progress
and momentum.”——[Official Report, Child
Poverty Public Bill Committee, 20 October 2009; c. 34,
Q80.] Her
focus was on that, although, of course, she acknowledged the
possibility of judicial review. I am nervous that Ministers, in seeking
to achieve a range of
objectives, are held accountable to Parliament, but decisions may be
made ultimately by the judiciary. There is a difficult tension between
keeping deficits down and wanting to raise benefits to meet child
poverty targets. The Government, including the Financial Secretary, are
wrestling with that dilemma on a daily basis, in preparation for the
pre-Budget
report. There
are other areas of tension. Returning to evidence provided by Kate
Green, she raised concerns about a tension between welfare reform and
meeting the targets. That is difficult, as there is cross-party
consensus on the need for welfare reform to do more to end a culture of
dependency. That involves sticks and carrots—the exact
composition of the sticks and carrots is a finely balanced judgment. It
is possible to imagine circumstances in which Ministers take one view
of the right course of action and the judiciary another. I worry about
too many powers being passed on to the judiciary rather than
democratically elected politicians. It is a concern.
Perhaps most
significant is the issue that we return to with clause 15: the economic
and fiscal circumstances. It is reasonable for the Government to
include the clause. I know it has received some criticism. In all
honesty, a Government must always act in accordance with economic and
fiscal circumstances. My general criticism of the Government is that
they have not done enough of that over recent years with regard to the
public
finances. The
Minister almost implied that the constraint on the targets—if
there is, in reality, much of a constraint—would always be
there. Governments always have to act responsibly or should do so, and,
ultimately, we do not object to the
clause. 3.45
pm
Steve
Webb: Whereas we
do. A
clause stand part debate allows us to question what might happen if the
clause was not part of the Bill. Presumably, clause 15(1)(a) means that
the Secretary of State might be reckless. The probable Chancellor might
decide to have no regard for economic or fiscal circumstances,
taxation, public spending or public borrowing. The idea that, when
forming policy, a future Chancellor might have no regard for public
spending, taxation or public borrowing is a tad
unlikely.
Mr.
Stuart: This one
would.
Steve
Webb: All right. Let me put it another way: the
proposition that clause 15 would make a blind bit of difference to
whether a future Chancellor had regard for public borrowing or public
spending is unlikely. Assuming that the Financial Secretary anticipates
his colleagues and successors in that role, I am sure that he would not
suggest that they would behave in such a manner. I am not clear about
the restraining impact of subsection (1)(a). In a sense, such a measure
is unnecessary under that subsection and it is inappropriate under
subsection (1)(b), which deals with the child poverty
commission. We
might say that we are talking only about a bunch of academics, but even
they will presumably have regard for such matters when making a
recommendation about tackling child poverty. We must assume that we
have followed the personal specification under schedule 1
and that they are a body of fine people with knowledge of the
formulation, implementation and evaluation of poverty, and experience
of research into child poverty and work with
children. The idea that they just head off to another planet without
regard for the environment in which they work seems implausible, but we
do not want them to self-censor. We want the child poverty commission
to say something a bit uncomfortable occasionally—something that
might require serious public spending or taxation—and it will
then be for Ministers to
decide. We
do not want the child poverty commission internalising such matters or
pre-empting the political judgment of priorities—that is not its
job. Its job is not to weigh up the relative merits of spending money
on nuclear weapons or child poverty, but to advise on cost-effective
ways of tackling child poverty. The Government can then judge between
alternative strategies for that or other issues on which they want to
spend money. I cannot see how clause 15 would ever be used. Will
someone take the Secretary of State to court for not being fiscally
responsible in his approach to child poverty? That is pretty
implausible. We have already heard how difficult it is to enforce the
entire Bill, let alone the clause. Will we take action in law against
the child poverty commission for being a bit irresponsible? What is the
clause doing? Why is it in the
Bill? In
what circumstances could the clause be used? In evidence to this
Committee and, indeed, to the Work and Pensions Committee, the Minister
said that he would go away and think about the matter. I should be
interested to know how that lunch time went. My underlying worry is
that we have a binding target. The right hon. Gentleman assured us that
it is not undermined by clause 15. Perhaps we ought to have a
metaphorical clause 15 in all Bills requiring such things of everyone
and all people. Why do we have the clause in this Bill, when such a
measure could fit into any Bill? That is odd. What is it about the Bill
that makes the Government want to add such a provision to it? Unless we
are given a convincing reason for its inclusion, we cannot agree with
it.
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