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The issue has been discussed at length with the Department of Health, Social Services and Public Safety in Northern Ireland. Although there is a provision in the order to take away the reporting requirement, the Executive Minister for Health has asked that we delay implementation until new safeguarding legislation for child protection is in place. As I said earlier, that is expected next year. In the mean time, I can say that it may not be appropriate in many instances to report and criminalise normal consenting sexual activity between competent young people. Northern Ireland Office officials will continue to work closely with Northern Ireland health department officials and the Public Prosecution Service on the production of guidance to remove any anxiety of the noble Baroness and others. This guidance will of course be published.
On the noble Baronesss point about the need for mandatory guidance under the order, there will be further consultation on guidance with key stakeholders and others. The guidance will be issued prior to the enactment of the legislation. Although that may not be mandatory, it will be done seriously and inclusively because of the need to have the advice and minds of many stakeholders and organisations to help to frame the guidance so that it is both practical and useful. Northern Ireland Office officials will of course contribute to the development by the Department of Heath, Social Services and Public Safety of any guidance on child protection issues.
The noble Baroness also asked about guidance on the handling of cases of children who sexually harm. This is a very important issue, but our view is that legislative provision for a body of law on sexual offences is not the place for provisions that deal with how the criminal justice system interacts with children who display sexually harmful behaviour. I assure her that procedures are already in place which the agencies follow when handling such cases. There will also be opportunities to consider this issue in future inter-agency discussions on guidance.
The noble Lord, Lord Tebbit, made a point about the order in Northern Ireland. As I have said, the nature of the voting is such that it would not have passed through the Assembly anyway. I understand that the committee voted 5:3, so the vote was not unanimous, but I do not argue with the fact. I mentioned in my speech that the committee had made that point. I quoted its chairman. I gave an analysis of those in the consultation who came out in public in favour. Contrary to what some noble Lords have said, this is not a moral issue. We are dealing with criminal law. This is not about influencing teenage sexual activity. It is as simple as that.
I answered the point about cross-community voting. My answer may not be satisfactory, but it is the one that I gave to my noble friend Lord Clarke. I am very grateful to him for giving me notice of his question. The cross-community voting system would not mean that there is majority support for this in the Assembly.
Earl Ferrers: My Lords, the noble Lord said that we are dealing with the criminal law, and that is that. With respect, however, it is not that; it is the way in which the law affects individuals. Although he cast a number of organisations in favour and organisations against, there are not only organisations but people. The people voted very differently.
Lord Rooker: With respect, my Lords, we are talking about the criminal law, not the issue of morals. The order is about the safety of young people. We have taken a judgment that, at 16, people would be informed enough to make those decisions. As I have said and as has been discussed, with parental consent 16 is the age at which one can marry. The organisations that I listed work with and advise young people day in and day out in Northern Ireland. It is not as though they do not have any locus or standing; they certainly do. I do not seek to claim great numbers one way or the other; I do not have the evidence for that.
Lord Maginnis of Drumglass: My Lords, will the noble Lord clarify what appears to some of us to be the rather strange statement that the law is not based on morality, but that it is abstract and technical and that morality does not come into it? That is what he is telling us.
Lord Rooker: My Lords, it is, in this respect. We are dealing today with non-consensual sexual activity, a criminal offence at certain ages and different activities at different ages. I have set those out and will not repeat them. Sixteen is one of the ages that has been referred to. The view is not a moral one. We are not simply saying that 16 is the age at which people should engage in sexual activity; that is not what the age of consent issue is about at all, and it is not what the order is about. That is where one can get hares flying that give a totally false impression.
Lord Morrow: My Lords, I thank everyone who has contributed to the debate. It is not my intention to respond to everything that has been said. I will simply say that the House has an opportunity tonight to give a voice to the people of Northern Ireland on an issue to which more than 70 per cent of them are opposed. I wish to test the opinion of the House.
Baroness Noakes: I wish to speak to the Question whether Clause 48 should stand part in order to raise questions about how the compliance regime will work in practice. Compliance is to be handled by the Pensions Regulator and Clause 48 amends the duties of the regulator so that it must maximise compliance with the auto-enrolment provisions of the Bill. The regulator has no existing expertise in this form of compliance work and there are concerns among the employer bodies about how it will work in practice. There is a need to reassure the business community that the compliance regime will be targeted at those who seek to avoid the employer duties and that the burden placed on employers who meet the duties is minimal. For example, the CBI believes that businesses should not be required to register with the pensions regulator the fact that they intend to comply with the Act because the Act applies to all employers without limit, so there is no need for the regulator to seek out positively its own population.
Currently, the regulator has registers of schemes and not, of course, of employers. It would be a major task to set up a register. Will the regulator require separate registration which, as I have said, bodies such as the CBI think would be very onerous, or will the regulator receive information from HMRC which, through PAYE and NIC systems, knows the details of all employers in the system? Can the Minister say how the regulator expects compliance to work? Will it be risk-based? When will the regulator publish its compliance proposals? We agree with the CBI that simplicity is the
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The Bill will have a big impact on small and medium-sized enterprises in general and on very small businesses in particular. I have already spoken to the issue of the cost of implementing auto-enrolment for SMEs and micro-businesses. However, that group, which is very large numerically, will pose particular challenges in terms of compliance. Who will be responsible for alerting SMEs to their obligations under the Act and for ensuring that those employers are aware of their compliance duties? Will it be the regulator? The regulator will be something of an alien being to most SMEs. The SMEs are more used to dealing with HMRC through PAYE and NIC compliance.
It would seem to us, and it would certainly seem to some of the bodies which have made representations to us, that the Government ought to ensure that the contacts and expertise of HMRC are used to the maximum extent possible when implementing this Bill. By giving the regulator duties, it is not clear that that will happen. Most employers do not want to become noncompliant, but in the early days of the new system mistakes are likely to be made, especially by SMEs that generally struggle with regulatory burdens placed on them. What approach will the regulator take to achieving compliance in that group?
Lastly, I need to raise the issue of costs. Clearly, the Pensions Regulator will need to be funded for the start-up costs of the new compliance regime as well as the ongoing costs. How will the Government ensure that those costs are borne not by existing contributors to the regulators coffers but are borne by the whole group of employers? Does that mean that everyone will receive an annual bill from the regulator? How much is that likely to be for different sizes of businesses? What about start-up costs? Will the Government use their powers to pay grant in aid for those costs, or will they be recovered from employers over time?
The Minister will understand that there is considerable concern among the business community not only about the details of compliance and what the regulator will do, but also about how the financial burdens of compliance will fall in practice. I hope that he can shed light on this issue.
Lord McKenzie of Luton: I am grateful to the noble Baroness for giving me the opportunity to speak to Clause 48. It provides the Pensions Regulator with an additional statutory objective to maximise compliance with the new duties arising under Chapter 1 of Part 1. As previously discussed, we have tabled Amendment No. 103C to extend that objective so that it also covers the regulators enforcement roles in relation to the prohibited recruitment conduct in Clause 49, and the proposed prohibition on inducements at Amendment No. 106A.
Clause 48 amends Part 1 of the Pensions Act 2004 to ensure that the new compliance functions of the Pensions Regulator are covered by its statutory objectives. The additional objective will define and communicate
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We do not want to disrupt the regulators vital and successful regulatory role or its current objectives, which include protecting the benefits of members of all work-based pension schemes. That protection will extend to members of the personal accounts scheme. The regulators new compliance functions will therefore supplement its existing functions, rather than replace them. We will work closely with the regulator to minimise the impact of this work on its current role.
The noble Baroness asked precisely how the regulator will exercise its new powers. Like her, we are confident that the majority of employers will comply with their new duties, but need an efficient and effective compliance regime underpinning the reforms.
The compliance regime that will be enforced by the Pensions Regulator will be crucial to the overall success of these pension reforms. As I indicated earlier today, we are proposing a three-stage compliance regime comprising educating, enabling and enforcing. The initial focus is on educating and enabling employers to meet their new duties.
This Bill sets out a framework of powers that enable the regulator to take proportionate, graduated compliance action where those initial steps fail. Action to combat non-compliance will start with statutory notices, moving to fixed penalties and then escalating penalties if non-compliance persists. This provides a flexible sanctioning toolkit in line with the recommendations of the Macrory review. We have also built on analysis of other regulatory regimes.
The noble Baroness asked whether all employers would be required to register. The answer is yes, they would. Clearly, information will come from HMRC about the range of employers out there, but there will be a requirement for all employers to register. She talked about small employers who will not have heard of the Pensions Regulator and she asked what we will do to help them comply. It will be the Governments role to oversee the delivery of consistent and coherent information to support the introduction of the reforms, and this will help to raise awareness among all employers that the Pensions Regulator will educate and enable employers in order to help them to meet their new employer duties. The intention is to provide tailored messages to specific segments of the employer population so that, for example, small employers receive messages that are appropriate to them. Employers will have the opportunity to explain their circumstances and obtain support at every stage. Only where there is persistent or serious non-compliance will proportionate penalties be applied.
The noble Baroness asked about the funding arrangements and the costs of this. As noble Lords will be aware, at present the Pensions Regulator is generally funded by a levy on pension schemes, and the general levy funds the activities of the pensions
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