Grand Committee
(12 years, 5 months ago)
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Arrangement of Business
(12 years, 5 months ago)
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The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)
My Lords, I begin by reminding the Committee that if there is a Division in the Chamber while the Committee is sitting, we shall adjourn as soon as the Division Bells are heard and resume 10 minutes thereafter.
Civil Aviation Bill
(12 years, 5 months ago)
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Lord Bradshaw
Lord Bradshaw
In moving Amendment 1, I shall speak also to Amendment 10. These amendments relate to the surface access to the airports, which is of course very important, not just for people who fly but for people who work there and residents. So I am not entering a plea especially for airline passengers but for everybody who uses those modes of access in getting there.
Some figures published this morning show that pollution arising from aeroplanes is reducing quite sharply as bigger and more efficient aeroplanes take over. That brings into focus the need to tackle the higher level of both noise and atmospheric pollution that comes from surface access to airports. I want to stress the point that we must do something about surface access. I know that there are many ideas about it—it is probably becoming more important than the aircraft themselves.
I do not intend to turn this debate into an argument about the third runway in Heathrow, but I want to draw attention to the large amount of spare runway capacity that exists or is planned to exist at Gatwick, Stansted, Birmingham and Luton airports and in other regions of the country. The four airports that I mentioned particularly affect the south-east. If it were exploited, that would reduce the clamour about demand at Heathrow, which is being fed mainly by BA and BAA which have substantial financial interests in it. I am particularly anxious about the damaging and expensive campaign that they are running, which suggests that London is not open for business. I think that they are trying to hijack any debate and the forthcoming White Paper to try to concentrate on what they see as the problem—how they can get more planes at Heathrow, which in turn will give them more income.
Regional airports could well take up the challenge as Gatwick has done since it was divested from BAA. Noble Lords will probably be aware that Gatwick now has two direct flights to China, one to South Korea, one to Nigeria and one to Hong Kong. That is only the beginning to building up an international business, and I believe—and I have been to several airports—that Birmingham, with all the committed money being spent there, will offer passengers a wide range of possibilities when they travel. For example, most airport users or people who use the lines, cite the fact that Stansted Express is not a very good, efficient or comfortable way in which to get to London. In fact, if you consider the Lee valley, the whole service needs revision. It needs money spent on the infrastructure, and it is one of the areas that I hope the Government may have something to say about in the high-level output statement for the railways which I believe they are due to publish next month.
The impact of HS2—if it is built—on Birmingham airport would be huge and would bring it within 38 minutes of London, which is equivalent to what Gatwick is now and what Heathrow is for most people. The real point that has been made to me, particularly by people at Gatwick, is that passengers from airports do not mix well with passengers who are commuting on a regular basis. For example, if trains emanating from Brighton arrive at Gatwick full of commuters and a lot of Americans with heavy luggage who have never been here before are on the platform, they cannot be accommodated comfortably on the service that is provided. That is why I was pleased to see the debate yesterday in the House of Commons on this matter. It was raised by Henry Smith, the MP for Crawley, who said that it is very necessary that the whole question of access to airports is brought into focus. It is definitely on the radar of the department. In this debate, reference was made to the fact that the new Southern franchise will be let, and it will be up to the franchisees what they want to do. I think they might need a little guidance. It is not just the train services; it is the trains themselves because many of the trains in use on the railway are pretty unsuitable for people with heavy luggage.
If I am correct, it is only the regulated airports that need any requirement for improvements to be included in the regulations. This is so that they can be included within their regulatory asset base. I do not want any situation to arise in a regulated airport where any airline might legally escape paying its share of any improvements that are made to surface access. I hope the Minister can give me an assurance that once this change is made everything will go into the RAB.
Licensed airports, which are a different lot, can do whatever they consider to be commercially attractive. In many cases, this will mean help with investments by other transport providers to produce mutually beneficial schemes and from local authorities keen to promote regional airports. These airports do not need the regulator to intervene, as I see it, so the intervention may come from government or from local authorities which are keen to invest in improvements. Birmingham airport stressed to me that it feels that if the huge spare capacity it has is used, it would bring a lot of development with it. In that case, you have an airport that is willing to accommodate any improvement.
I hope the Minister can give me the assurances that I seek and will endorse the fact that the improvement of surface access is extremely important and is becoming more so as time goes on. I beg to move.
Lord Soley
The noble Lord might be surprised that I am not entirely unsympathetic to what he is trying to achieve but I do not think that he is trying to achieve it in the best way. I will not focus on his comments about Gatwick managing to be a hub or otherwise, although I think that if you told the people around Gatwick that we were to move Heathrow’s operation there, they might be a little less enthusiastic than the airport owners.
I think the noble Lord is right that there is a problem about surface access to airports generally. However, it is not my view that the CAA is the best organisation to do this—the Minister will tell us what he thinks. This flags up the problem which a number of us have referred to over many years: we lack an effective regional government structure in Britain that could provide the surface transport necessary around airports, as well as some of the other regional infrastructure that we need. The noble Lord is right that we end up doing things in a hit-and-miss way, with a bit here and a bit there, and then join it up afterwards. Heathrow Express came in but was that really the best idea when we had Crossrail coming? There are a lot of oddities in there. In my judgment, and I will be interested to hear what the Minister says on this, if we asked the CAA to suddenly become the organisation that has to comment on and recommend surface infrastructure we, will need a much larger organisation than the current CAA.
Lord Berkeley
We have heard two interesting speeches. I have a lot of sympathy with the amendment but what concerns me is starting off on the basis that this would add to the regulatory duties in Clause 1. Regulatory duties are terribly important issues for a regulator to take into account. I have had certain experiences with the Office of Rail Regulation over the years. Reminding it of its duties can be a good way of making sure that it remembers and acts on them.
Of course, Clause 1(2) says that the CAA must carry out its functions,
“in a manner which it considers will promote competition in the provision of airport operation services”.
I am not clear on what we are talking about when it comes to competition. This is something that will recur in later amendments. Is it competition between those airports included in the scheme in the south-east, or all airports, or competition for the provision of services within an airport? If it is the latter, this seems a big sledgehammer to crack a nut. When the Minister replies, maybe he can put me right on that.
There is also the issue that my noble friend Lord Soley raised on surface access and whether the CAA is the best organisation to do this. He might be right or wrong but there is a similar concern with ports and airports: who pays for the infrastructure and who decides? I thought that the general policy of successive Governments was that the private-sector operator of an airport or port invested within the boundary of the facility and then expected the state, local or regional authorities, or someone, to contribute to the cost of access, except when there was a Section 106-type agreement. We certainly got into a knot in the ports sector. Sometimes there was state aid available for some things and sometimes there was not.
We got into a right old knot with Heathrow over the years. BAA contributed to the cost of building the Heathrow Express line and operating the trains. It did not seem to want the Heathrow Express trains to go down the Crossrail tunnel, which most people would have thought would have made a very good piece of public transport planning, so it will not go down it. I was told by some people from BAA yesterday that the reason for that—they confirmed this—was that the most important customers who use the Heathrow Express, particularly in first class, do not like going into tunnels because their BlackBerry does not work. They would rather go from Paddington to Canary Wharf in a taxi, where they can still play with their BlackBerry. Frankly, that is a farcical argument. It was suggested that if there was a first-class carriage in Crossrail and it went straight to Heathrow, people might use it. This attitude will adversely affect the future public transport and surface access into Heathrow. I hope it will change its attitude; it has certainly said that it will look at the situation.
Lord Trefgarne
I apologise to the noble Lord, Lord Bradshaw, for not being in my place when he began his remarks. I missed about 90 seconds.
I recognise the importance of surface access to the major airports and I acknowledge that to Stansted, for example, it is not as good as it should be. I hope it can be improved. However, I am reluctant, for the reasons expressed by the noble Lords, Lord Soley and Lord Berkeley, to impose this duty on the Civil Aviation Authority. I hope the noble Lord, Lord Bradshaw, will not press his amendment.
Lord Clinton-Davis
The lack of clarity on this point has been demonstrated today by my noble friend and by some noble Lords opposite. It is not permissible that this situation should prevail. I hope that the Minister will be able to demonstrate that the issues that have been raised will be tackled by the Government in due course. It is totally unsatisfactory that this position should be allowed to remain.
Lord Jenkin of Roding
My noble friend will know that I have been pressing him to consider, in the context of HS2, the possibility of an extension around north London to reach the possible future hub airport in the Thames Estuary. This issue has been pressed not least by Foster + Partners, whose imaginative scheme is now the front runner for a Thames Estuary airport. Of course, communications and surface access will be important problems there.
While I have sympathy with what my noble friend Lord Bradshaw said about the desirability of improving surface access, that could not conceivably be a function of the CAA. I agree with those who have argued that. It must be a function for the Department of Transport because, after all, it concerns the railways.
Lord Jenkin of Roding
I think the local authorities would have some difficulty planning together an orbital railway joining up the HS2 to HS1, with a branch to a potential Thames Estuary airport. It is a very imaginative scheme.
Having lived with the concept of a Thames Estuary airport for about 20 years, the first proposal put forward for it envisaged an orbital rail link around the north of London. In which case, therefore, you do not have a situation where people have to come right into London and cross from one station to another in order to get out to their airport. There is a substantial issue here; however, as I said a moment ago, I cannot see that this could be a function of the Civil Aviation Authority. It has issues that go much wider than what falls within their level of responsibility. One would suspect also the competence of the advice that they have—it must be from my honourable friends in the Department for Transport.
Perhaps I could ask one question. I have asked my noble friend if he would meet some of the people who are proposing to put forward the case for the extension of the HS1—HS2 to go around the north of London—and he has undertaken to consider whether that would be appropriate. I hope I do not misrepresent him. I wonder whether he is yet able to give me an answer: can he meet those who have done a great deal of work on this subject and would be able to offer very valuable advice that may well not be available within the Department for Transport itself?
It cannot be right for Ministers to keep at arm’s length, as it were, outside expert evidence that could greatly improve the quality of their decision-making. It arises only peripherally from this amendment, but we are talking about surface access, and therefore it is highly relevant.
While I am in some sympathy with my noble friend’s amendment, I am not able to support it for the reasons that I and others have mentioned, that it cannot possibly be the responsibility of the CAA to have to make provision for surface access in the way that the amendment suggests.
Lord Berkeley
Before the noble Lord sits down, perhaps I may press him a little further on what he said with respect to the proposed airport in the Thames Estuary—that it could apply anywhere. As the Government want, and as is suggested in this Bill, the airports are effectively in competition with each other. If they then want to expand, they will have to apply for planning permission in some way or another, then demonstrate what transport plans they have, and who will pay for them. That will then go back to the Government, who will decide which development happens where according to whether they are prepared to pay for the transport links. Is that the way the noble Lord thinks it should happen?
Lord Jenkin of Roding
Certainly, the question of paying for it would have to be considered in some detail. The great advantage of the Foster + Partners proposal as put forward is that they recognise that this would be financed not by the taxpayer but by investment which they would attract perhaps from around the world. There should be a great deal of investment interest in a project of this kind. The noble Lord, Lord Berkeley, is absolutely right, of course, that when this goes to the IPC or its successor, this is precisely the sort of thing that would need to be demonstrated, along with all the other things that the planning system requires. If, however, the Department for Transport is unable to meet the proponents of such a scheme, it will start with not one but two hands behind its back. That is why I have pressed my noble friend to say that in the context of the HS2 consultation he will meet the people concerned, and I very much hope that his officials will feel that it is appropriate for him to do so.
Lord Davies of Oldham
My Lords, the Minister’s worst nightmare must have been fulfilled from this opening debate—namely, because the Committee has, quite appropriately, addressed itself to what the amendment says about surface transport, and of course that then gives a wide range of exciting prospects on how we could improve surface transport. I will put my three penn’orth in if I may. Manchester Airport is very eager that the metro should be part of its facilities. It is some distance away at present. The airport is certainly prepared to face a proportion of the costs. We have heard the anxieties and proposals for the necessary improvement to surface transport to our airports expressed in very cogent terms. The danger is that that will open up a very wide-ranging discussion, as we have heard.
The Minister may have the obvious consolation, which the noble Lord, Lord Jenkin, and I identified, that most of these issues cannot possibly be covered by an extension to the remit of the CAA. We are largely talking about transport projects of the greatest significance, linking our major centres of population to our airports through improvements, which are certainly necessary to all the London airports. Apart from Birmingham, which already boasts excellent rail communication and has great expectations for HS2, all airports recognise that the ease with which people can arrive at them is absolutely critical to the experience and choice of travelling by air. However, as the noble Lord, Lord Jenkin, indicated, I doubt that this substantial range of transport issues is meant to be laid at the door of the CAA. I imagine that the Minister, while commenting constructively, as I hope he will, in response to Members of the Committee on ideas for improving connections, will say that this is not a matter with which we can directly charge the CAA.
Earl Attlee
My Lords, as we have heard today, surface transport access is a very important concern for our major airports—not just regulated ones but non-regulated airports, too. I am grateful to my noble friend Lord Bradshaw for enabling us to debate this topic today.
My noble friend is certainly correct to say that without good transport access, it will not be possible for our airports to maintain their strong position compared to their European counterparts, and that we must ensure that people using our airports have access to a range of options for getting to and from them. That is why the Government have put a heavy emphasis on the importance of high-quality public transport to our airports. It is one of the reasons why Thameslink will deliver considerable improvements to access at Gatwick. It is why HS2 and Crossrail will, in the future, deliver important improvements at Heathrow, and it is why the upgrade of London Underground will further enhance access to Heathrow.
My noble friend Lord Bradshaw touched on the problems of the Gatwick Express. When I visited Gatwick Airport, the management certainly made that point to me very strongly.
Your Lordships will also be aware that the Government are seeking to invest in improving access to non-regulated airports through regional growth funding, including, for example, by upgrading junction 10A of the M1 near Luton and through realigning and tunnelling a section of the A45 to facilitate the extension of Birmingham Airport’s runway. The Government recognise the vital contributions that regional airports make to local economies and that regional connectivity is important, as explained by my noble friend Lord Bradshaw.
The amendments seek to expand the scope of CAA’s primary duty for its airport economic regulation functions to meet this point. Specifically, the primary duty is expanded by putting the provision of surface access links on an equal footing with airport operation services. Given the importance of surface access, I sympathise with the thinking behind this amendment. It is important that regulated airports can invest in surface transport access in so far as their unregulated counterparts would be able to do so.
Lord Jenkin of Roding
I seek an explanation for this point, which my noble friend has also made to me in private. If the department is engaged in a consultation, why on earth should a Minister who is answerable for the department not meet some of the people who would have valuable advice to offer on a proposal, which they wish to put forward? How can it possibly be right for a department to conduct a consultation and shut itself off from outside expert evidence? I do not understand my noble friend’s explanation.
Earl Attlee
My noble friend makes very good points, and they are the ones put to the Permanent Secretary at the department. However, I have to accept the advice that I am given.
Lord Berkeley
How can the department consult with outside bodies if it does not meet any outside bodies?
Earl Attlee
My Lords, Ministers spend all their time consulting with outside bodies. However, at some point they are advised that it is inappropriate to meet them. I have agreed with my noble friend that I will take this up with the Permanent Secretary.
The noble Lord, Lord Davies, mentioned Manchester. The noble Lord will recognise that Manchester is not a regulated airport. If it decided to contribute to a surface access scheme, it could recover the costs from its customers if the market would bear it. However, that is of course a commercial matter for the airport.
Clause 19(6) provides that “a price control condition” may be made,
“by reference to the amount charged for particular goods or services”,
or,
“to the overall amount charged for a range of goods or services”.
Clause 19 does not specify the mechanics of setting the price control and leaves the CAA with flexibility to take whatever approach seems most appropriate within the framework provided by Clauses 1 and 18(1). Specifically, this flexibility, combined with the provision in Clause 21(1)(f) which states that licensed activities may relate,
“to activities carried on outside the airport area”,
will not prohibit the CAA from taking into account costs from outside the airport area, such as from rail links, where appropriate when setting a price control.
However, given the importance of this issue, the Government will reflect on the debate and specifically will consider further whether any extension to the primary duty to make special provision in respect of rail and road links to the airport is necessary or desirable. I hope that I have provided my noble friend with the reassurance he seeks, particularly that the Government will consider the amendment further and if appropriate bring forward an amendment on Report.
Lord Bradshaw
I just add the fact that the airport is often the primary reason why the surface links are needed but many people benefit from them. I am not suggesting that the airport should pay the whole cost but a proportion. If its regulatory asset base is linked to that, the airport needs to make sure that it can collect money from the airlines using the airport. I am most anxious that the cost of the facilities should be a charge on the airlines as well as any another beneficiaries. I am not saying that the airlines should pay the whole but a proportion of the cost of the new facilities. With that, I beg leave to withdraw the amendment.
Lord Rosser
Lord Rosser
This amendment and Amendment 13 relate to the Civil Aviation Authority’s general duty and the Secretary of State’s general duty, as set out in Clauses 1 and 2 of the Bill. I will direct my comments to the Civil Aviation Authority’s general duty though the argument is the same in respect of the Secretary of State’s general duty.
Under Clause 1(1), the CAA must carry out its functions under Chapter 1 of the Bill,
“in a manner which it considers will further the interests of users of air transport services regarding the range, availability, continuity, cost and quality of airport operation services”.
Subsection (2) goes on to say that:
“The CAA must do so, where appropriate, by carrying out the functions in a manner which it considers will promote competition in the provision of airport operation services”.
This amendment adds to the end of that,
“but only where this will not conflict with its ability to carry out its functions in a manner set out in subsection (1)”.
In the absence of any definition of what “where appropriate” in subsection (2) is intended to mean or how it is to be interpreted in the context of the Bill, there appears to be an assumption in subsection (2) that promoting competition in the provision of airport operation services will further the interests of users of air transport services. Promoting competition does not necessarily further the interests of users of air transport services regarding range, availability, continuity, cost and quality because it can lead to a reduction in range, availability, continuity, cost and quality in a bid to either reduce costs or sustain profit margins, or achieve both objectives.
The amendment seeks to ensure that the requirement to promote competition,
“by carrying out the functions in a manner which it considers will promote competition in the provision of airport operation services”,
does not apply where the Civil Aviation Authority considers that to do so would conflict with its primary responsibility of furthering,
“the interests of users of air transport services”.
It would surely be unacceptable for the CAA to have to carry out its functions in a manner that it considers would promote competition when to do so would conflict with what is presumably its key responsibility to further the interests of air transport services, as set out in subsection (1), rather than the interests of the providers of airport operation services. That would defeat what appears to be a declared objective in the Bill for the Civil Aviation Authority as set out in subsection (1).
I hope the Minister will accept the amendment. However, if he does not intend to do so, I hope that he will indicate the current wording in the Bill which will prevent the CAA having to carry out its functions in a manner which it considers will promote competition in the provision of airport operation services if it felt that to do so would conflict with its duty to carry out its function in a manner which it considers will further the interests of users of air transport services. The answer may be that the Government simply believe that promoting competition cannot not be in the interests of users of air transport services, which would be a remarkable view. Alternatively, it may be that the Minister will say that the words “where appropriate” in subsection (2) give the Civil Aviation Authority the power to decide that it will not promote competition in the provision of airport operation services because to do so would conflict with its duty under subsection (1) to carry out its functions in a manner which it considers will further the interests of air transport services. If that is the case, the Minister should give a detailed explanation of what the words “where appropriate” mean in the context of the provisions of subsections (1) and (2) and how they should be interpreted and applied by the Civil Aviation Authority. I beg to move.
Lord Soley
I have sympathy with my noble friend. However, I do not have any answers to the problem. It is very difficult. A clause such as Clause 1 imposes certain duties on an organisation—in this case the CAA—which is a normal format in Bills that become law. However, what troubles me about such clauses—and it is not only in this one, although it happens here too—is that there is a lack of clarity, as my noble friend has pinpointed.
Subsection (3)(b) has the catch-all phrase that,
“the need to secure that all reasonable demands for airport operation services are met”.
There is one of these provisions in almost all the Bills of this type that I know. It is put in in case we have forgotten something that the CAA may want or ought to do. It covers just about everything from whether the coffee machine works to whether you have good services in other more fundamental ways.
I wonder at times whether we are being clear with the operator. Presumably the CAA is happy with the clause—I assume that it is; I have not heard anything to the contrary—but I wonder about the clarity of its operation if this becomes law, as it almost certainly will. Does the CAA have enough clarity to know what its duties are if someone challenges it? A catch-all phrase such as that in subsection (3)(b)—that the CAA has to meet the reasonable demands for airport operation services—means that it can say in certain circumstances that it does not think that a particular demand is reasonable. It could rely on the phrase if it received a legal challenge from someone or some organisation.
It is a general point but sometimes we are casual with our legislation and put in catch-all clauses and subsections. We are saying to the operator that it can do what it likes within certain limits. It may be challenged in law, although that is unlikely, and this clause is there in case it is needed. It is a catch-all clause and my noble friend is right to raise this matter as a lack-of-clarity issue.
Lord Jenkin of Roding
I am puzzled by the amendment. It is absolutely at the heart of an economic regulator’s job in the general context of government policy, as it has been under successive Governments, that you can give an organisation, perfectly properly, a duty to promote competition. Indeed, in the past, competition between the various airports has been a major feature of our airport structure. We will come later to the relationship between the CAA, the Competition Commission and the other bodies that are required by statute to promote competition. However, it does not seem in the least inappropriate that the Bill should state at the very beginning that the general duties of the CAA should include one to promote competition.
The noble Lord, Lord Rosser, asked what the meaning of the words “where appropriate” was. I give an example from the debate on the previous group of amendments. Does competition mean competition only between airports or competition between terminals in the same airport? I would have had no difficulty whatever in arguing that it should not conceivably be competition between the terminals of the same airport, which are under the same management and which one would expect to be run in such a way as to provide the best complementary service for the entire airport for the benefit of users and freight operators. Therefore, it would be quite easy to say that of course competition between terminals would not be appropriate, while competition between airports certainly should be. As I say, we will come later to how that might be applied and enforced.
However, subsection (2) as originally drafted is perfectly reasonable. When I read the amendment that noble Lords had tabled to the subsection, it aroused in me the very unworthy thought that perhaps they do not think that competition is good for users. Competition must be absolutely at the heart of the benefit to users, for the purposes of both the quality of service and keeping costs down. That is what it is about. If the noble Lord wishes to press his amendment when we get to Report stage, I have to say that I would be firmly opposed to it.
Earl Attlee
If the amendments sought to include a requirement that the CAA must promote competition only where it is consistent with the interests of passengers and owners of cargo, I would thoroughly agree with their intent. However, the presence of the words “where appropriate” in the primary duty in Clause 1(2) already achieves the intent of the noble Lord, Lord Rosser. Any further changes are therefore unnecessary. The noble Lord asked me for a definition of “where appropriate” but neither the CAA nor the appeal bodies would have any difficulty in working out what it means.
Broadly speaking, the primary duty provides for the CAA to carry out its airport economic regulation functions in a way that will further the interests of passengers and owners of cargo. The primary duty also states that the CAA must do so, where appropriate, by promoting competition in the provision of airport operation services. This means that it will not be appropriate to promote competition if it is not in the interests of passengers and owners of cargo. Clearly, the CAA will have to balance the issues listed in subsection (1)—for instance, cost and quality. There is a balance to be struck and it is the duty of the CAA to strike it on behalf of passengers and owners of cargo. As the noble Lord, Lord Rosser, recognised, these duties would also apply to the Secretary of State. Therefore, the intent of the amendment is already implicit in the primary duty and any further changes would be superfluous. I hope that this provides your Lordships with the reassurance required and that the noble Lord, Lord Rosser, will withdraw his amendment.
Lord Rosser
I thank the Minister for his response and my noble friend Lord Soley and the noble Lord, Lord Jenkin of Roding, for their contributions to the debate. I think that the noble Lord, Lord Jenkin, rather misunderstood the wording of the amendment or what I said. I did not seek to remove from subsection (2) the words that related acting in a way that promoted competition. The purpose of my amendment was to make sure that there could not be a conflict between subsections (1) and (2) by making sure that if there was a conflict, subsection (1) would prevail. That was designed so that activities would be carried out in a way that would be beneficial to the users of air transport services.
In his response, the Minister has taken one of the lines that I had suggested he might take in the contribution I made—namely, that he has argued that the words “where appropriate” in subsection (2) already achieve the objective that I sought to achieve with my amendment. In other words, that if it is considered that there is a conflict between subsections (1) and (2), then—as I understand it from what the Minister has said—the Civil Aviation Authority, using the words “where appropriate”, would be able to argue that subsection (1) took priority, because that is the primary responsibility. If I have understood the Minister correctly—and what he said as to how this should be interpreted is now on the record—then I beg leave to withdraw my amendment.
Lord Rotherwick
“( ) the need to secure that the reasonable needs and interests of general and business aviation are promoted and safeguarded,”
Lord Rotherwick
My Lords, I beg to move Amendment 3. I shall speak also to Amendments 9 and 11—the latter of which seeks to introduce a new clause after Clause 1. First, I would like to apologise to the Minister for not being able to speak at the Second Reading; and, secondly, I declare my interest as a private pilot and an aircraft owner. I also declare an interest as a director of the Light Aviation Association, which serves the interests of sports and recreational powered flying in the UK, and as vice president of the General Aviation Alliance, a body that co-ordinates regulatory interests of various UK aviation associations, thus representing a co-ordinated position for their pilots, aircraft owners and operators. Moreover, to demonstrate that the LAA is not a pressure group, but a body that knows of what it speaks, the LAA is itself a regulatory body, exercising functions delegated to it by the CAA in respect of a huge range of general aviation aircraft.
This Bill does not provide us with a comprehensive new legal framework to replace the whole of the Civil Aviation Act 1982. Some may lament the fact, given that this is the first Bill to address this area of policy in a generation. It is not as though the ground has not been prepared. Considerable effort has been expended in recent years in examinations and analysis of the role and function of the CAA in preparation for a more comprehensive piece of legislation.
The Bill before your Lordships’ House is, regrettably, limited in its scope. Its principal focus is on the economic regulation of major airports, but it goes little further, placing new duties on the Civil Aviation Authority in respect of airline passengers and owners of air cargo. Unfortunately, these new regulatory duties will, if enacted in their present form, ignore other sectors of UK aviation. Consequently, the Bill may, in fact, sow the seeds of potentially damaging developments that would impact on those other sectors. In particular, they will have potentially serious implications for the growth and sustainability of the general and business aviation industry and community, which contribute so much to the economy of the UK, and which have the potential to contribute so much more to helping us, as a nation, to move out of our present predicaments. If airport regulation is framed for the benefit of the air transport user, as it is in the Bill, the inevitable consequence will be the creeping exclusion of the other sectors of civil aviation and general and business aviation.
This trend is already evident. I travel widely as a private pilot and find that the provisions for general and business aviation in many other countries put ours to shame. I am therefore bringing forward simple and straightforward amendments to protect and promote general and business aviation and to ensure that this important sector continues to use our major airports. This objective can be ensured by giving the CAA a specific duty to consider general and business aviation in its regulation of major airports.
General and business aviation is important. It includes any civilian aircraft operation other than a commercial air transport flight operating to a schedule. It represents a multi-billion pound industry in the UK, from executive business jets through flying training and air ambulances to private aircraft operators and pilots. A 2009 study by PricewaterhouseCoopers on the total value of this sector found that its contribution to the UK economy was £3.7 billion, equivalent to 0.2% of UK economic activity, with around 50,000 people directly employed. The review also identified that of the 27,000 UK-registered aircraft, only 4% were commercial air transport aircraft.
We have a Bill before us—the first in a generation, although I hope it will not be the last—that neglects 96% of UK-registered aircraft and concerns itself with only those few airports that enjoy a dominant market position. It does not address the needs or interests of the general and business aviation community or make any attempt to regulate the activities of the majority of the airports on which this important sector depends.
The Parliament of the European Union recently issued a valuable resolution, 2008/2134, which I commend to the Minister and to the Committee, calling on member states to adopt policies promoting growth and sustainability in general and business aviation. The Government have, as yet, made no significant response to this resolution. However, this Bill is a perfect vehicle. It provides the opportunity, with some slight amendment consistent with its general principles, to make a worthwhile start. This would entail recognising in legislation that general and business aviation has a place at our airports and that its needs and interests should be promoted and sustained by the CAA alongside those of air transport users.
The amendments I propose to Clause 1 are modest and a reasonable modification of the regulatory functions of the CAA, yet they have the potential to bring about a substantial improvement in the operating environment for general and business aviation, which would reap rewards for business, industry, UK competitiveness and the financial health of the country. It will not be lost on my noble friend the Minister that the amendments merely extend the functions of the CAA in respect of operators of dominant airports. I regret that the narrow scope of the Bill precludes an amendment to include all airports, which would be ideal. Although amendments that I would prefer to have tabled are outside the scope of the Bill, they are within its spirit and philosophy.
I urge my noble friend the Minister to reflect on the work that has gone before and on the resolution of the European Parliament. I urge him also to recognise the opportunity that this Bill offers to put general and business aviation interests on the government agenda and send a long-overdue message to the European Parliament and business community that the UK is open for aviation business in all its diversity. I hope my noble friend the Minister will see the benefits this would bring to the country. If he is unable to accept my amendments, I hope that I will be able to offer my services and those of the LAA to him and his officials so that we can work together on this and secure a Bill for the general and business aviation industry, and for the community, that is fit for the future and holds the promise of a brighter one. I invite the Minister to accept this offer, in his usual accommodating fashion, to facilitate the further discussions that will be of mutual benefit.
Lord Berkeley
My Lords, I do not know what the scope of general and business aviation covers but what about the increasing number of hot air balloons that go around the country? Some are quite high; some are propelled, some are not; some make noise—I do not think it is as serious a problem as surface noise, to which the noble Lord, Lord Bradshaw, referred earlier—but they should not go anywhere near airports. What regulation is there for them if they get near airports and in the air generally? It is probably a problem for air traffic control.
Lord Hunt of Chesterton
My Lords, I support the amendment as part of my philosophy of more than 20 years of noting that public servants in Britain who work in agencies—I used to run the Met Office in civil aviation—do not have as part of their job description a requirement to help British commerce and industry. The leader of the Conservatives today said that growth in this country will only come about from businessmen and entrepreneurs. He is wrong. It will also come about from civil servants working with industry to create environments in which these things happen.
It is quite extraordinary that in no case is the job description of any civil servant such that he is judged at the end of the year on how he has done in his service and also promoted industry. This is a good example. The role of the CAA is enormously important for industry. Surely part of the role of the Secretary of State will be to define the terms of reference of the director of the CAA in that direction. The amendment takes us in that direction.
Lord Trefgarne
My Lords, I strongly support Amendments 3 and 9, and perhaps Amendment 11 as well. Like my noble friend Lord Rotherwick, I have a connection with what used to be called the Popular Flying Association, of which I was once the president. Indeed, in that capacity, on one famous occasion, I was lucky enough to fly the then Aviation Minister to open the PFA annual rally. Who was the Aviation Minister? He was none other than my noble friend Lord Goschen, and I am glad to say that we were met with tumultuous applause. As I recall, the only problem was some very nasty weather, about which I had to go to see the noble Lord, Lord Hunt, at the Met Office because we felt that we had not really had proper warning. Happily, all the matters were properly resolved eventually.
General aviation is a very important part of the aviation industry and of aviation activity as a whole. It is quite properly regulated by the Civil Aviation Authority, including the hot air balloons to which the noble Lord, Lord Berkeley, referred. Indeed, a few months ago, I had the privilege of flying in one. I must warn your Lordships that it is very exciting and great fun, except the landing. You usually end up in a heap on the grass, but that is for another time. However, general aviation is crucial. Amendments 3 and 9, which were tabled by my noble friend Lord Rotherwick, are important and relevant, and I hope the Minister will be sympathetic, at least, to the aspirations of those amendments, or perhaps will even agree to them.
Viscount Goschen
My Lords, I support the thrust of the amendments tabled by my noble friend Lord Rotherwick. I should also make a mildly spurious declaration that I hold a private pilot’s licence and am the operator of an aircraft, although I can assure the Committee, much to its relief, that I have no intention of going near an economic regulated airport, any more than a hot air balloon would.
My noble friend is right to draw attention to the economic importance of the heavier end of general business aviation. A great deal of economic value is tied up with the importance of being able to move business leaders around the country quickly and, indeed, between countries. To do that, access to major airports is required. My noble friend also drew the Committee’s attention to important areas, such as medevac or ambulance flights. One can also think of traffic monitoring flights, the importance of the maintenance sector and so forth. It is true that general aviation, in particular, business aviation, has been squeezed out of the major airports.
My noble friend is not trying to do anything prescriptive. He is not trying to ensure that a certain share of slots or capacity is accounted for by business aviation. That would not be appropriate. All he is trying to do in his carefully worded amendments and in his remarks in support of them is to draw the Government’s attention to the economic importance of this specialist field. It is easily overlooked. It is not a populous field. Most members of the general public are not going to come across general business aviation flights, but that is not to say that they are not extremely important. My noble friend was right to draw the Committee’s attention to its notable scale. I think he said that this sector is worth £3.7 billion to the economy and employs 50,000 people, so it is important that in determining its regulation the CAA should at least take account of the important interests of this field. It is very easy to portray it as cigar-smoking fat cats coming to appear on television game shows including, perhaps, Members of your Lordships’ House, but in fact we are really talking about the ability for business investment to be drawn into the country. Many business leaders travel by executive aircraft to access our centres of commerce around the country as efficiently as possible. I support my noble friend’s amendments, and I look forward to hearing the Minister’s response.
Lord Jenkin of Roding
My Lords, I am astonished that there is no regulation of general aviation of the sort that is covered by my noble friend’s amendment. If that is right, I cannot understand why the CAA should not have some general role. Air taxis are presumably within the definition that he encounters. There was a time when I had to fly from my home in Essex to Liverpool several times a month, and much the easiest way was to take an air taxi from Stansted Airport, which we used frequently. On one occasion, the pilot suggested that I take over the controls, which lasted for about 10 seconds because I did not have a clue. I look forward to hearing my noble friend’s response to the amendment.
Turning to the question of the noble Lord, Lord Berkeley, I, too, have had one or two very interesting trips in a hot air balloon. As Secretary of State for the Environment, I had to decide on the planning requirements for tethered balloons, which are often used for advertising. I was confronted by two very strong opposing views. Some people said, “These are perfectly horrible and should be strictly controlled”, while others said that it was a harmless form of advertising. I split the difference and said that no planning permission was needed if the balloon would be there for only 14 days or fewer. Everybody seemed satisfied with that and I have never heard any more about it.
Landing in a hot air balloon is very exciting. The important thing is not to get off too quickly or it will disappear up into the air again, which can be very disconcerting. However, it is a splendid sport and I have never forgotten the occasion when I was staying officially at Leeds Castle. Very early one still morning, there was a rally of hot air balloons. I was invited to it by American Express, which had a very large balloon. We took off and had the most marvellous flight. However, before we left, we carefully and quietly climbed up the side of Leeds Castle, where my wife was leaning out of the window in her nightgown. I was able to bid her farewell, almost touching but not quite. We had a very skilful pilot and I hugely admired how he managed the hot air balloon. Again, it seems that the CAA should have some regulatory role in this.
Lord Jenkin of Roding
I am assured that it does, so that is fine. No doubt my noble friend will explain that.
Lord Davies of Oldham
My Lords, given that the Bill has been through the other place without this debate being advanced there to any degree, we are grateful to the noble Lord, Lord Rotherwick, for his introduction of these amendments. I will be very interested in the Minister’s response. We can all see that the primary responsibility of the CAA in respect of regulated airports means that any aspect of general aviation may be pretty low in its priorities, although some aspects of business aviation have other advantages to the country. However, I must counter some of the rosier views of general aviation with an obvious point. The last time that private flying came to the attention of the general public was in the case of the individual who went up in his private aircraft each night to avoid a day on British soil counting against him and affecting his tax returns. So there is another side to private aviation.
I am very guarded about this but I have some sympathy with the points that the noble Lord, Lord Rotherwick, put forward. He may have over-egged the pudding with all three amendments. I will be most interested in the Minister’s response to Amendment 3. It merely asks that these interests are promoted and safeguarded, which seems a fairly minimal requirement.
Earl Attlee
My Lords, these amendments propose the inclusion of new secondary duties that take account of the interests of general and business aviation. I accept that the Bill is limited in scope. It seeks primarily to provide for better regulation of our airports and is not designed to be a comprehensive overhaul of our legislation. Having carefully considered these amendments, I cannot accept them, as they are unlikely to yield significant benefits but could unfortunately introduce unnecessary ambiguity into the Bill.
Despite the amendments being carefully drafted, a technical difficulty arises because of the absence of any definition or description of what is meant by “general and business aviation”, so the amendment may introduce undesirable uncertainty. I am sure that all noble Lords in the Committee understand what we mean by it, but not in legislative terms. I will ensure that I am briefed on the EU declaration that my noble friend Lord Rotherwick mentioned.
There are also policy difficulties with the proposed amendment. One policy intention behind the Clause 1 duties is for the CAA to be provided with a set of clear and unambiguous duties, promoting the interests of passengers and owners of cargo in the provision of air operation services. It follows that the number of secondary duties should be as small as is reasonably practicable. The new framework for economic regulation would apply to airports with significant market power—currently, Heathrow, Gatwick and Stansted. General and business aviation interests will be covered when the flight includes passengers. For example, when a corporate flight is carrying business passengers, the primary duty will extend to the passengers as they will comprise users of transport services. It appears that the only cases where the interests of general and business aviation will not be taken into account are when the flight carries neither passengers nor cargo, other than cargo carried by the pilot. A secondary duty to take into account the reasonable interests of general and business aviation is unlikely to make a material difference, having regard to the very small percentage of such flights to regulated airports.
The Bill recognises that conflicts may arise between the interests of different users of air transport services. In such cases, the CAA has very wide discretion to decide whose interests it should further. Against this background, we do not think that it is appropriate to give specific prominence to the interests of general and business aviation or indeed any other specific sector. For all airports, when demand is higher then capacity for finite take-off and landing slots, this is generally reflected in the fees charged. In a competitive market, an airport operator is likely to prefer to receive flights with large numbers of passengers over those with fewer passengers when this enhances its profits. The Bill will not impact the mechanism for setting airport charges at airports not deemed to have substantial market power, which is the vast majority of airports and airfields used by the general aviation community. This is a further policy reason not to pay special regard to general and business aviation.
However, the Government absolutely recognise the valuable contribution of the general and business aviation sector. The CAA’s Strategic Review of General Aviation in 2006 estimated its contribution to the UK economy at £1.4 billion per annum, a little less than the PWC report referred to—probably because different tests were applied—but still a very significant sum none the less. As noble Lords have observed, it delivers important services such as search and rescue, mail delivery, life-saving organ transport, law enforcement, aerial survey and environmental protection flights, as well as underpinning the training of future pilots. It also has growing economic importance for the European manufacturing industry. I would like to take this opportunity to pay tribute to my noble friends Lord Rotherwick, Lord Trefgarne and Lord Goschen, who miss no opportunity to promote the needs of general aviation.
The noble Lord, Lord Berkeley, mentioned hot air balloons. I like seeing hot air balloons in the summer in the countryside, but my wife has declined to take a ride in one for the reasons that noble Lords have identified. The noble Lord, Lord Berkeley, will know that aviation safety is covered by other legislation but is policed by the CAA as the safety regulator.
The Government are currently developing a long-term strategy for sustainable aviation in the UK. A formal consultation document is due to be published later this summer, when the general aviation community and other aviation stakeholders will be invited to comment. However, I believe that these amendments would create unnecessary ambiguity and ask my noble friend to withdraw or not to move them at the appropriate point.
Amendment 11 seeks to introduce a new clause after Clause 1 that would place a requirement on the CAA to publish a statement of policy setting out how it plans to carry out its functions as set out in Clause 1. I understand that the intention of this amendment may be to be ensure transparency in the CAA’s exercise of its new duties. The Bill as drafted provides a clear primary duty to end-users that the CAA supports. However, there are several reasons why I do not think this amendment will work in practice. First, the amendment as drafted requires the CAA to prepare and publish the statement of its policy with respect to carrying out its functions under Clause 1. However, the CAA has no functions under Clause 1; rather, Clause 1 sets outs the way in which it must carry out its functions under Chapter 1. The amendment as drafted would appear to have no effect. In view of this, I hope the noble Lord will withdraw his amendment.
Lord Rotherwick
I thank all noble Lords who took part in this debate and I thank the Minister for his response, although it was not very helpful and rather disappointing. He was not able to offer me much comfort for my amendments. Bearing in mind what he said about consulting later on promoting and safeguarding airports, it would certainly be helpful to sit down with him and his Bill team to find out whether we could get additional comfort.
Earl Attlee
My Lords, I would be delighted to continue to work closely with my noble friend on the issue of general aviation.
Lord Rotherwick
I am very grateful for that because it has taken us a generation to have vehicle for this and we do not want to miss it. Perhaps I could talk to him a bit later. I am interested in our not giving a negative statement to the European business community, saying that the UK is not open for aviation in all its diversity. As saturation takes up the three main airports, and then the next five, there needs to be an aviation infrastructure left for the rest of the aviation community to flow into. I thank the noble Lord for all his help on this and beg leave to withdraw.
Baroness Worthington
“( ) the need to ensure that the holder of a licence under this Chapter complies with applicable planning laws,”
Baroness Worthington
My Lords, in moving Amendment 4, I will speak also speak to Amendments 6, 7, 13A and 69, which have been grouped under the title of environmental amendments. I seek to reinstate environmental duties into the Bill. These amendments are not new and were tabled in the Commons. We have received some responses from the Government that have quite frankly been disappointing. The Bill, as noble Lords will know, started out under the previous Government. When we issued our consultation document in 2009 and our decisions document in December of that year, we made very clear that we intended to use such a Bill to introduce an environmental duty on the CAA.
It was, therefore, with great regret that we noticed that the current Bill does not contain such a duty. We understand that the Minister in the Commons Committee has given reasons why she believes that it should not be included, although it is rather odd for the so-called greenest Government ever to renege on or move away from environmental commitments. We would have thought that they would take every opportunity possible to introduce these duties, so it seems a little odd and the reasons given are not convincing.
The first reason given is that a primarily economic regulatory Bill is simply not the place to put environmental regulations. To that, I simply say that there are obvious precedents for creating environmental duties within economic regulatory instruments. Other bodies that have an impact on the environment such as the ORR, Ofgem, Ofgas and Ofwat all have secondary duties to take into account environmental concerns and sustainable development. As an example I will read the duty put on Ofgas, which has a duty to,
“have regard … to the effect on the environment of activities connected with the conveyance of gas through pipes … and to contribute to the achievement of sustainable development”.
It is, obviously, primarily an economic regulator, but it has, nevertheless, an environmental duty, because it is an activity that brings with it environmental issues. I do not see, therefore, that that reason holds, and it would be very good to hear from the Minister on whether the Government accept that there is no real difference between the CAA and other economic regulators, and to get an explanation of why it cannot also have an environmental duty.
The other reason given in response to some of these amendments might be that they apply only to the dominant airports. That is why we have included Amendment 69, which will come later, ahead of Clause 100, to give a general duty. We agree that it should not just be a matter for the dominant airports, but should be across the industry.
Yet another reason given for not accepting these amendments is that they are simply not needed. In fact, there are many people who disagree with that. When we were in government, we did not agree; as I have stated, we made it clear that we would put such duties into the Bill. Also, the Department for Transport’s press release of November 2011 did not seem to agree either. That—rather erroneously, as it turns out—stated that such a duty would be included, so it seemed odd that when the draft Bill was published it did not contain these environmental duties. Most recently, in January 2012 the Transport Committee made it clear that it also believed that it should be included. It stated:
“Without giving the CAA a supplementary duty on the environment in relation to its economic regulation role, there is some risk that airports may be reluctant to invest in improving environmental performance. Whilst, as the Minister says, there may be ‘absolutely no doubt’ about measures taken to comply with statutory environmental obligations, there remains a doubt about whether the costs of discretionary measures, such as improved public transport access, can be recovered by airports in charges to airlines”.
The crucial point is that we need to take discretionary spending into account here. There will be examples—civil groups such as Airport Watch have provided them—where airports may want to undertake voluntary measures to improve their environmental performance, but will seek to recover those costs. We need to maintain the CAA’s flexibility to allow them to do this. It is a very important point. We do not want to see a race to the bottom through cost-cutting at the expense of environmental measures. It is, therefore, important that these duties are established and, as I said, many people agree with us on this.
I turn now to Amendment 6, which relates not to the broader environmental duty to have regard to the environment, but is more specifically to do with carbon budgets. In this debate about aviation we cannot ignore the fact that this sector has a considerable environmental impact, that climate change is a real problem, and that there is cross-party consensus that we need to tackle it. So it is clearly important that we enlist all those sectors that contribute to our carbon budget to help in reducing it. It is absolutely imperative that we follow the advice of the Committee on Climate Change on including aviation in our carbon budgets. Having done that, we then need an industry and regulatory body that has environmental concerns and the meeting of those carbon budgets at its heart.
Lord Bradshaw
While not unsympathetic to what the noble Baroness, Lady Worthington, said, I think that the amendment in my name, which is shorter, takes up most of the points that she made and with which I agree. When the Minister replies, I would like him to be certain that the Marshalled List is correct. It says, “Page 2, line 12”. I am not sure that that is right. It would be a very small adjustment but it may not have been carried through correctly to the Marshalled List.
Lord Clinton-Davis
I am in entire agreement with what my noble friend said. The impression that might be given is that the unions involved in aviation and aviation interests are unmindful of the environmental situation. A great deal of work has been done on environmental progress, as I well know, having served as president of BALPA for 29 years. I recall meetings of BALPA over the years, and this issue predominates in its influence on events. I know that a great deal of work has been done by aircraft manufacturers, who are not unmindful of their ill effects on the environment and take them into account. The next generation of aircraft will improve the effects of aviation on the environment in future—and so it will go on. This ought to be taken into account in the amendments being moved.
It is right that some emphasis should be given to the work being done on the environment and that it should be included in the legislation. What I can say without any possibility of contradiction is that the use of the word “environment” is not simply a byplay on words but the sign of a real concern, which has been expressed by British Airways, in particular, but also by other aviation interests. It would not be sensible for any aviation interest, whether the companies concerned or the trade unions, to suggest that they are not mindful of the ill effects of aviation on the environment. They are, and it figures very largely in what they have to say on this issue.
Lord Soley
I am also sympathetic to these amendments. If I was asked to choose one particular amendment, it would be Amendment 6, because it links up the key organisations, the National Air Traffic Services, the Committee on Climate Change and the department. It is better if we pinpoint what we want the CAA to do and whom it should work with on this, so that we get an overall approach. I support what my noble friends Lady Worthington and Lord Clinton-Davis said; he has great and long experience in this regard.
The reality is that if you had asked the aviation industry 10 or 15 years ago, it would not have taken climate change anywhere near as seriously as it should have done. But it has woken up, and woken up fast. Because the aerospace industry is such an important scientific and technological driver, it has begun to leap ahead. So you now find, as the Minister will know from our several conversations when I have provided him with information on alternative fuels, most notably algae, that it and other drop-in fuels are actually good for the environment. There is real movement there. The new design of aircraft has made them much quieter and more powerful, so you get the A380, which requires a runway that is half the length of that required by the old 747, even though it was much smaller. It is quieter because it is quieter anyway and its fuel efficiency is particularly good. The effect of the emphasis by the aviation industry on improving has been great, and the airport operators have emphasised it too. I think I mentioned at Second Reading that when I spoke at the Airport Operators Association conference in about 2004, very few of them saw trying to reduce emissions from ground operations as a high priority. They now do, and they give it enormous importance. Look at what has been done at Heathrow with electric vehicles. They are all making efforts. However, I always put a cautionary note here because when we talk about electric propulsion, whether for trains, cars or any other operations, we have to remember that electricity in this country is predominantly produced from coal, oil and gas with some nuclear, so it is not as clean as we sometimes like to pretend it is.
Nor are we as good on noise. At Second Reading I mentioned the noise of the trains that went through my former constituency at 100 miles an hour, barely 50 or 100 feet from people’s front and back doors. That went on throughout the night 365 days a year. I have lived next to such railway lines, I have lived under the Heathrow flight path for over 30 years and I have lived by major roads in Glasgow, so I have experience of all of them. In many respects, aviation noise is a bit easier if it is reduced from time to time by runways and flights being switched.
Going back to the comment by my noble friend Lady Worthington on the emissions problem, some of the predictions that have been made about aviation in 50 years’ time are wildly wrong because they are based on the assumption that there will be no scientific development. If you take the scientific development that has been achieved now, leaving aside fuels and just looking at efficiency, you will get nowhere near the figures predicated in the horror scenarios. I say this as someone who has been worried about climate change for years—I wrote my first article on it in the early 1980s—but I have also seen how the green movement got things badly wrong on Brent Spar. It ignored the scientific advice on that and on nuclear power, which I saw as essential to get us out of the hole we were in.
I do not want to turn this into a long debate on the environment, but I want to say, as my noble friends Lady Worthington and Lord Clinton-Davis have said, that if we give the CAA a duty to work with NATS, the department and the Committee on Climate Change we are getting quite a good link-up. We all know about the problem of air traffic control centres in Europe— I mentioned this at Second Reading, so I shall not speak about it at great length—but we have 10 times more than North America for a similar amount of airspace. There is a great fight in Europe about who has to close an air traffic control centre. Believe it or not, no country wants to close one, so we end up flying in doglegs across Europe, which increases fuel use. There is some very encouraging work being done on this, but it would be useful to have in the Bill a requirement to work with the organisations, especially that contained in Amendment 6, which is the amendment I prefer on this.
Earl Cathcart
I shall speak to the last three amendments in this group as they follow naturally from what I said at Second Reading. I support Amendments 7 and 13A—Amendment 13A has been substituted for Amendment 12—and will deal with them together as they are identical. It must be right for the CAA to have a duty to have regard to the impact of airports on the environment and local communities.
Chapter 1 sets out new arrangements for the economic regulation of dominant airports in the UK. These new arrangements were largely designed by Professor Cave, who the then Secretary of State appointed in 2009 to propose a new regulatory system for the UK’s airports. The Bill almost entirely follows his advice. I say “almost” because Cave recommended that the CAA, in its role as economic regulator, should have a supplementary duty,
“to have regard to the effect on the environment and on local communities of activities connected with the provision of airport services”.
This is missing from the Bill. As we heard at Second Reading and from the noble Baroness, Lady Worthington, every other comparable UK regulator has some form of statutory environmental duty. Why should there be an exception for the aviation industry, especially in view of the serious impacts that airport operations and air transport services can have on the environment and local communities?
Baroness McIntosh of Hudnall
I do not think that I will detain the Committee long because I could not possibly put my arguments better than they have just been put by the noble Earl, Lord Cathcart. He has made every single point that I wanted to make, succinctly and elegantly, which is marvellous for the Committee and not so bad for me.
I support these amendments, which were moved very ably by my noble friend Lady Worthington. In particular, I want to support Amendment 69 for the very reasons that the noble Earl, Lord Cathcart, gave. I felt that he put the points in exactly the way in which they needed to be put. This amendment would provide the CAA with a general duty, which would meet the objections that it would somehow be to the disadvantage of the regulated airports if they were subject to a particular kind of scrutiny by the CAA that was not going to be applied to the airports that are not regulated.
I declare an interest in that, very stupidly, I have chosen to live under two flight paths. I live in north Essex, under the flight path into Stansted, and in Dolphin Square, under the flight path into Heathrow. This was not good planning on my part, but it gives me the ability to make one particular point that the Minister knew that I might raise to do with noise.
Environmental issues can be understood very broadly or quite narrowly. What has been interesting about the whole debate this afternoon, from the outset, is that it has all been drawn towards this issue of environmental impacts. The first amendment from the noble Lord, Lord Bradshaw, which talked about surface access, was actually talking about the impact on passengers and local communities of insufficiently well developed infrastructure, which is an environmental impact. Noise is too, and my noble friend Lord Soley is quite right that if you live next to a railway line that goes all night, that is also disturbing. However, living under a flight path where so-called night flights really only stop between midnight and 4 am means that you lose a lot of sleep. There are a great many people who are adversely affected by that. That does not necessarily include me, as I am fortunate enough to be able to cope. However, people who are very ill, very young children or people who suffer from sleep disorders are going to be very adversely affected if noise pollution is not controlled effectively.
Emissions, which my noble friend Lady Worthington talked about with great authority, as one would expect her to do, are less easy for people to understand in their daily lives. You are not aware, on the whole, of the sort of damage that is being done to you as an individual by the aeroplane that is going over your head emitting toxic fumes that you cannot smell but which sure as heck are there. The same is true of the impact of surface transport around and in airports. The whole range of impacts that can be broadly said to be environmental is very wide, and I find it very hard to understand why the Government have so far resisted giving the CAA the general duty that Amendment 69 would give it. It gives rise to a slight suspicion that they may be susceptible to the wrong kind of pressure, possibly from the aviation industry—who knows?—rather than giving what most noble Lords in this Committee today appear to accept is proper consideration to the wider social and environmental impact of that industry’s activities.
I do not think, as my noble friend Lord Clinton-Davis appears to believe, that the industry is unmindful of its environmental impact. I do not think that at all. Having lived under the flight path into Stansted for 10 years, I am aware that a huge amount of work has gone on in the development of aircraft, in respect of both noise and emissions and that there is a strong wish on the part of the industry, in its own interests and in those of the wider community, to continue developing, for example, better fuels, which my noble friend Lord Soley mentioned, and engines and airframes that are less likely to produce excessive noise.
I do not believe that in some way this is an opportunity to bash the aviation industry or not to accept that it has done a great deal already. However, there is much more to do. The danger that we stand in if the CAA does not have the kind of strengthened position that this amendment would give it is that the competition between airports that was talked about in earlier amendments will give rise to reluctance on the part of the industry to accelerate that work as quickly as it otherwise might. It will also, as the noble Earl, Lord Cathcart, has already mentioned—
Lord Clinton-Davis
Beyond the work of the CAA, does my noble friend recognise that without any prompting the aviation industry and the trade unions concerned with aviation are all mindful of the ill effects on the ground? Is it not appropriate that a tribute should be paid to them for the work they have done and will do in future?
Baroness McIntosh of Hudnall
I believe I just did exactly that. As I already said, I am very well aware of the work that the industry has done and will continue to do in both its own interests and those of the wider community. I merely say that the aviation business is very competitive. There are strong pressures—which I do not suggest are venal in any way—on the airlines to compete with each other and on the airports to compete with each other. If the CAA was not properly equipped with the right regulatory powers, those pressures could lead to some of the reduction in environmental impacts that we would like to see not being achieved either as quickly as we would like or at all.
It seems to me that Amendment 69 in particular is quite modest. I did not draft it. I simply observe that it looks fairly straightforward. As the noble Earl, Lord Cathcart, remarked, it is deliberately structured so as not to place an onerous duty on the CAA but to place an obligation on it where appropriate to exercise this particular power. The point that the noble Earl made about the protection that it offers the CAA is very important. Could the Minister explain to the Committee on what grounds—other than in the difference between the regulated and unregulated airports—the Government have resisted and I fear may continue to resist this particular amendment?
Lord Jenkin of Roding
I will be very interested to hear my noble friend’s response as to why the obligation contained in earlier legislation has not been repeated in the present Bill. I do not want to repeat what others have said. I, too, feel that Amendment 69 is likely to be the more acceptable of those in the group. One consequence if such an obligation were imposed is that it would go a long way to answer the question that I put to my noble friend at Second Reading on what Clause 84 is about. Clause 84 obliges the CAA to give all sorts of information. When I asked my noble friend at Second Reading what that meant, he said the Bill was,
“designed to require the CAA to publish such … information as it considers appropriate to draw passengers and freight owners into the Government’s wider efforts to address the environmental impact of aviation”.—[Official Report, 13/6/12; col. 1378.]
If the CAA does not have any sort of duty, I find that a very difficult paragraph to understand. Of course, as my noble friend Lord Cathcart said with eloquence, and as has been moved by the Opposition Front Bench, if the CAA had that duty then that would fall into place. It would be quite right, if it had that duty, that it should publish that information. The information by itself, without a duty, seems a pretty off way of drafting the legislation.
My noble friend the Minister was extremely good at answering several of the points that I raised at Second Reading but he did not quite have time to answer them all and he did not answer my question about what that paragraph in the Explanatory Note meant. I merely mention this as a consequence of the amendments to restore a duty to have regard to the environmental consequences of aviation and of the airlines.
Lord Berkeley
My Lords, as my noble friend Lady Worthington said in her opening remarks, it is useful to reflect on some of the industries which are regulated in this respect and to reflect that these industries have, for their own rights and reasons and in order to comply with the regulator’s duty, made big improvements in the areas of emissions, noise, water, energy and construction. The rail industry has been required to reduce its diesel emissions, as has the road sector. I am not sure that it will be quite as easy to persuade some ship owners to change their fuel but the European Commission is intent on doing so. I am sure that it will happen one day and that it will be either voluntary or forced upon them. As my noble friend Lord Clinton-Davis said, the air industry has made significant improvements.
It would be odd if the Bill did not contain a requirement or duty on the CAA to take into account environmental matters. That does not mean that the air industry is particularly bad at doing so but there is evidence from other industries that, because of these regulatory duties, they probably try a little harder and in a way that they would not do otherwise.
I am inclined to support Amendment 69 but it is very important that we include something here so that there is commonality with some of the other regulators’ duties to consider environmental issues, and to encourage airports and the airline industry to go that little bit further.
Many noble Lords will recall the debates when the third runway was last on the agenda about the emissions from Heathrow and whether they were over the limit. Were they caused by emissions from the M4 running past on the north side or from the M25? There were many debates—I do not want to go into who was right and who was wrong—and one solution was to put the M4 in a tunnel. I cannot see the point of that because emissions will still take place in a tunnel and will have to come out somewhere. They might come out further away but, to me, that would be cheating. Again, this concerns the idea of the noble Lord, Lord Bradshaw, of including surface access, which I am sure will come up again.
However, matters have improved since then in the quality of emissions from the air and road industries. It is essential that something along the lines of the amendments is included in the Bill.
Earl Attlee
My Lords, the issue of aviation and the environment was raised by several noble Lords during Second Reading. I am pleased to return to the matter again and to give further consideration to this important subject. I have not tabled a government amendment because I am reluctant to pre-empt the Committee’s consideration of this topic. However, I hope that when we have finished the Bill the noble Baroness, Lady Worthington, will not be disappointed.
The noble Baroness almost fell into the trap of being political. She will know that we take environmental issues very seriously indeed and that that is why the coalition Government will not agree to a third runway at Heathrow. It is clearly for environmental reasons, particularly noise. This was referred to by the noble Baroness, Lady McIntosh. Perhaps the noble Baroness, Lady Worthington, will state what her party’s policy is with regard to the third runway at Heathrow. Does she or does she not support it? I can assure your Lordships that I have listened to the points raised today and that I shall carefully read Hansard.
The point was raised about the drafting of the amendment. Yes, Amendment 13A was substituted for Amendment 12 on the Marshalled List.
Many noble Lords asked why other economic regulators have an environmental duty but not the CAA. Other economic regulators apply economic regulation across most or all of their respective industries, but the CAA regulates only the three London airports, as observed by my noble friend Lord Cathcart. Why should Manchester not be subject to environmental regulation while Gatwick is? If the CAA had an environmental duty, no noble Lord has explained to me, by way of example, what it would do with it that is not already done by some other means.
My noble friend Lord Jenkin asked about the publication requirements in Clause 84. We are not quite there yet but I will write to my noble friend and, if necessary, he can table an amendment to Clause 84.
Lord Clinton-Davis
The noble Earl has referred to Clause 84, which is highly desirable apart from one feature. It would be helpful to allude to that now. Why does the CAA have to divulge environmental information only if it considers it appropriate?
Earl Attlee
My Lords, it is for the CAA to work out whether it is in the public interest to publish the information.
I recognise the value of noble Lords’ contributions, particularly those of the noble Lords, Lord Clinton-Davis and Lord Soley, and my noble friend Lord Cathcart. They made very important points and some of the technical points made by the noble Lords, Lord Clinton-Davis and Lord Soley, were very interesting. I share the concerns about the environmental impacts of airport operations and wider aviation. The coalition takes the environmental impacts of aviation very seriously, as I have explained.
Each of these amendments seeks to add to the Bill supplementary duties that relate to environmental or planning issues. Amendments 4, 5, 6, 7 and 13A seek to add supplementary duties to the CAA and the Secretary of State’s airport economic regulation functions, whereas Amendment 69 seeks to add an overarching duty for all the CAA’s functions, including airport economic regulation. This would create a tension with the CAA’s primary duty in Clause 1(1).
I turn first to the amendments that would provide the possibility of the CAA having an overarching environmental duty. The idea is not a new one. The previous Government consulted on a general environmental objective for the CAA, along with parallel proposals for a general consumer and safety objective. No clear support for a general environmental objective was evident. This flowed from Sir Joseph Pilling’s review of the CAA. The responses to the consultation were mixed and did not show clear support for a general environmental objective. For example, concern was expressed about ensuring a clear boundary between environmental policy, which was seen as the role of the Government, and the role of an expert aviation regulator, where safety was seen as the priority. After all, the Environment Agency is the body responsible for regulating environmental issues.
Lord Soley
I am looking again at Clause 84. The Minister has indicated that he wants to help the Committee on this issue. When he responds on this at a later stage, will he consider whether Clause 84(2) could apply to all airports? It states:
“The CAA may publish guidelines and advice with a view to reducing, controlling or mitigating adverse environmental effects on civil aviation in the United Kingdom”.
In a way, it refers to the whole of the UK and I am not sure why, with a bit of tweaking, Clause 84 could not cover some of the points that we have made.
Lord Jenkin of Roding
May I follow up the point that the noble Lord, Lord Soley, has just made? My noble friend invited me earlier to table amendments when we get to Clause 84. I do not wish to amend Clause 84, but I need to know the context in which the information requirements and powers that will be given by that clause will operate. If, as has been suggested by other Members of the Committee, there should be a duty on the CAA, perhaps the clause is all right. If we are to reach the next stage of the Bill without having a government amendment on the Marshalled List that says what is happening to the general power, it is quite difficult to know what to do.
My interpretation is that while my noble friend has rehearsed some of the questions and objections, he is not shutting his mind to this. The possibility remains, therefore, that there will be a government amendment before Report, in which case we can look at Clause 84 in the light of that government amendment. However, if there is no such government amendment by that time, it is very difficult to see what else you could do to Clause 84. The point I made is that these things hang together.
Earl Attlee
My Lords, I assure the Committee that I have a very well thought-out speech. I believe that the upcoming aviation policy framework, due to be adopted by March 2013, represents a more proportionate and effective way for the Government to address the environmental impacts across the aviation sector as a whole. As I have said, this Government take seriously the environmental impacts of all airports. With regard to the other amendments, several of these have been extensively debated in the other place, and the Government’s position on these remains unchanged.
First, I turn to Amendment 4. As your Lordships will be aware, the previous Government decided to include a similar duty to that contained in Amendment 10. However, in practice the supplementary duty would have no substance, so the Secretary of State decided in July 2010 to omit it. This is because the duty as drafted would appear to require the CAA, in discharging its primary duty, to take account of the licence holder’s obligation to comply with planning obligations. It is not for the CAA, as an economic regulator, to enforce planning law through licence conditions. In so far as a licence condition purported to require the licence holder to breach planning law or otherwise act in breach of planning law, it would appear to be unlawful. Regardless of whether the CAA had this explicit duty or not, the CAA will need to have proper regard to the airport’s obligation to comply with all applicable legal obligations, including planning law.
Amendment 6, in the name of the noble Baroness, Lady Worthington, covers climate change. While important, this is also unnecessary because other policies seek to achieve it. Separately, the Government have committed to producing a sustainable framework for UK aviation that supports economic growth and addresses aviation’s environmental impacts. In addition, there are other policies, such as the European Union Emissions Trading System, which was mentioned by the noble Baroness when she touched on efficiency issues. Furthermore, this amendment would appear to go beyond airport economic regulation and it is unclear how the CAA would go about fulfilling this duty—a point I made earlier.
However, the Government have some sympathy with the thinking behind the remaining amendments—that is, Amendments 5, 7 and 13A. In particular, this debate allows us to acknowledge the importance of allowing appropriate investment at airports to mitigate their environmental impacts and those of activities associated with them. Without a doubt, this Government support the idea that airport operators—whether or not they are subject to economic regulation—should be able to invest in appropriate environmental measures. This concern was frequently raised in the House of Commons. However, obligations should not be put on some airports but not others depending on their economic regulatory status.
Our position is that a licensed airport operator should not be unable to recover, through the regulatory settlements, costs arising from undertaking environmental investment where an unregulated competitive airport would choose to incur similar costs for similar purposes and be able to recover those costs. After all, the overall aim of economic regulation is often cited as delivering the outcomes that would otherwise occur in a competitive market. Therefore, it is my belief that environmental investment that is in the passengers’ interests in the provision of airport operation services should be included in an airport’s regulatory settlement. This is a point on which more clarity could be provided in the Bill.
However, I am hesitant to accept these amendments today because I believe that it would be desirable to specify some or all of the environmental effects to which the CAA must have regard. Furthermore, we need to ensure that the drafting does not have the capacity to create distorting effects by putting greater obligations on regulated airports relative to non-regulated airports. With the assurance that I will consider these matters in detail ahead of Report, I hope noble Lords will be willing to withdraw Amendment 4, and not press Amendments 6 and 69. However, I am willing to consider Amendments 5, 7 and 13A—
Lord Berkeley
The Minister gave a very interesting speech and I congratulate him. He mentioned some or all environmental issues, but is that not moving into a rather dangerous area of lists and what goes into a list? Are you going to include bats but not tadpoles, or noise and things like that? I hope that he will take into account that it is very dangerous to produce lists of these things because you might leave things out or add things in that you subsequently do not want.
Earl Attlee
The noble Lord makes a very good point, and I am sure that my officials will not let me go too far. However, I am willing to consider Amendments 5, 7 and 13A in greater detail, with a view to returning to the matter on Report. I would find further meetings with noble Lords extremely valuable.
While I appreciate the spirit in which noble Lords have proposed these amendments today, as I have said, there are a few reasons why I am hesitant to accept them now. Interested parties have made it clear that the CAA should not be the environmental regulator. If such duties were to be imposed, I also believe it would be desirable to specify some or all of the environmental effects to which the CAA must have regard. With the assurance that I will consider this matter in detail ahead of Report, I hope that the noble Baroness and other noble Lords will be able to withdraw and not to press their amendments.
Baroness Worthington
I thank the Minister for his comments. I am encouraged that he anticipates that I will not be disappointed and that he will consider further a number of the amendments. I come back to a few of the things that he mentioned. It would seem odd not to introduce such a duty because it would apply to only 55% of the market and not 100%. Clearly, 55% is better than nothing. I know that he will say that it is about competitive distortions, but let us be honest—I think that the noble Earl, Lord Cathcart, made this clear—those three airports have a distinct advantage over the others in terms of scale. They are off the scale in comparison to the other airports. There are many other environmental regulations that have this differentiation between the smaller and larger, dominant operators. There are often lots of de minimis thresholds put into regulations to account for the difference in scale. I really do not see that as a problem, and I urge the Government to go through with the 55% if they are very keen on environmental issues, which they say they are.
I wonder—and this may be something that we can meet about—whether Amendment 69 does not help to address this question by creating a more general duty that would cover all of the CAA’s operations. I can understand the question of how CAA would operationalise it, given that it does not license the other operators, but I am sure that it is not beyond our wit to be able to work through that.
The Minister talked about planning and said that he could not understand what it would be used for. I echo the noble Earl, Lord Cathcart, in saying that we are trying to prevent a legal challenge and to give the CAA cover if it chooses to apply its discretion and include discretionary spending within the regulated asset base. So it would be used as a defensive measure against being forced not to include environmental measures. There are other things that relate specifically to planning. Often planning approvals include Section 106 agreements—additional obligations to which a developer voluntarily agrees. So they might not be caught within a very strict interpretation of the law, because they are very often quite loosely worded. So there are some questions there about planning.
I pay tribute to my noble friends and other noble Lords who have contributed to the debate. It has been a good debate and I am very encouraged. We all recognise, as my noble friends Lord Clinton-Davis, Lord Soley and Lady McIntosh have accepted, that the aviation industry should not be singled out for not embracing the environment. It clearly does move forward on a voluntary basis. That is exactly what we are trying to say here: we want to enable and allow this voluntary move towards a more efficient, cleaner and more environmentally responsible industry. We do not want this Bill to stop that. That is a very important point. We are not saying the sector does not wish to move. I am sure it does, given all the pressures that it is under.
My noble friend Lord Berkeley raised the point, which we have made before, that other sectors are regulated with environmental duties. He specifically mentioned rail as an example. Rail often competes directly with the aviation sector when it comes to short-haul flights and it seems odd that rail should have an environmental duty but aviation not. The noble Lord, Lord Jenkin of Roding, raised some very important points about other elements of the Bill, in particular Clause 84 and how that relates to the duties that we hope will be created. My noble friend Lord Clinton-Davis talked about the fact that the aircraft and aviation industry wish to respond. I hope I have captured most of the contributions and I thank the noble Earl for his encouraging words. I look forward to something being brought forward by the Government and beg leave to withdraw my amendment.
Lord Rosser
Lord Rosser
My Lords, this is an opportunity to debate a rather more mundane amendment compared with the ones we have just been discussing. This amendment and Amendment 14 in the group delete the references in Clause 1(4)(b) and Clause 2(5)(b) to the principle in the general duties of the Civil Aviation Authority and the Secretary of State respectively that,
“regulatory activities should be targeted only at cases in which action is needed”.
Clause 1(4)(a) and Clause 2(5)(a) both state that,
“regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent”.
It is not entirely clear why either Clause 1(4)(b) or Clause 2(5)(b) is needed. Under subsections (4)(a) and (5)(a), regulatory activities should be carried out in a way that is proportionate, but surely it would not be proportionate if those regulatory activities were targeted at cases in which action was not needed. To do so would surely not be proportionate and would therefore be outside the terms of subsections (4)(a) and (5)(a). If the Minister is not inclined to accept my point that the subsection that this amendment deletes is unnecessary, it would be helpful if he could indicate why and also give some examples of regulatory activities that would be proportionate even though they were being targeted at cases where action was not needed. I beg to move.
Lord Berkeley
My Lords, this is an important pair of amendments because surely the regulator is independent and should therefore be able to make its own decisions about whether it carries out an investigation and, if so, what action it takes following the transparent, accountable, proportionate and consistent rules. If both paragraphs (b) mentioned in these amendments are included, I can see some companies being regulated starting legal challenges to suggest that they do not need to be regulated and that it is going to be very expensive for them and asking why should they answer this question. I understand that the Government have a deregulation agenda and are trying to get rid of unnecessary regulations, quangos and everything else, but this indicates that the company being regulated will be able to put pressure on the regulator in an unsatisfactory way. It is quite clear from paragraph (a) that,
“transparent, accountable, proportionate and consistent”,
set out how it would do it. Paragraph (b) is rather dangerous. It will be difficult for the CAA not to get involved in it, and I am not sure why it needs to be there. Perhaps the Minister can explain.
Lord Clinton-Davis
On the face of it, paragraph (b) is otiose. I have dealt with several cases in the sub-committee investigating legislation, of which I am a member. It is incumbent upon the Minister to say why this provision is included.
Lord Empey
Does the Minister feel that these two paragraphs could leave the CAA open to judicial review by disgruntled operators? They are adding something unclear with the definition of what is and is not needed. It may be intended to prevent overzealous application of restrictions on operators, but these days, one always has to look at the potential for judicial review, and I suspect that the way this is drafted might leave the CAA open. It might be possible to amend the first paragraph to meet the needs of the Government, but I hope the Minister will address the legal issue.
Earl Attlee
My Lords, I must admit that I am puzzled by these amendments. I take it that they are merely probing amendments, but they are certainly not mundane. They seek to weaken the principles that the CAA and the Secretary of State must have regard to when discharging their economic regulation functions. Specifically, they seek to remove the need to have regard to the principle that regulatory activities should be targeted only at cases in which action is needed. To this extent, the amendment may inadvertently facilitate or encourage excessive regulation, and I am sure that the Committee will agree that that is clearly not desirable. I ask noble Lords to oppose these amendments today because they would remove provisions in the Bill that strengthen the adherence of the CAA and the Secretary of State to good economic regulation practice.
This first amendment seeks to delete one of the principles that the CAA must have regard to in performing its duties under subsections (1) and (2) of Clause 1, which sets out the CAA’s general duty. That principle is that,
“regulatory activities should be targeted only at cases in which action is needed”.
The second amendment makes the same provision for the Secretary of State’s duties.
The principles set out in Clause 1(4) and Clause 2(5) are those that the Better Regulation Task Force defined in 1997 as in keeping with good regulation. They were that good regulation should be transparent, accountable, proportionate, consistent, and targeted.
These principles are not in the Bill by accident. They are a well recognised starting point and one looks to encourage those responsible for economic regulation to apply them appropriately. Having provisions in legislation that reflect these principles is sensible and makes clear what is expected of regulators. It is not only desirable but good practice to have these provisions to encourage the CAA to discharge its Clause 1 functions in a manner that discourages unnecessary regulation.
It is known that economic regulation is an imperfect intervention. It should be used only where an unregulated market fails to deliver competitive outcomes. However, used appropriately, it can be an effective tool. The provisions in Clauses 1(4) and 2(5) ensure that this is the case in the Civil Aviation Bill. Furthermore, as an experienced regulator, the CAA is not troubled by having regard to the principles set out in Clause 1(4)(b). Indeed, it considers it sound regulatory practice, as do the Government.
Lord Clinton-Davis
It would be convenient for the Committee if the Minister would say that he will have another look at this particular provision because, notwithstanding what he has said, it is not sensible.
Lord Berkeley
Perhaps I may press the Minister a little more on the text in paragraph (b). On what basis does the CAA or the Secretary of State decide that action is needed? Surely they have to investigate before they can come to a conclusion. It seems a circular process.
Earl Attlee
Yes. However, we are talking about the principle of regulation that you do not do things that are unnecessary: you target your effort at a problem. If there is not a problem, you leave it alone.
The noble Lord, Lord Empey, asked whether the subsections could leave the CAA open to JR. These are secondary, subordinate obligations to which the CAA must have regard. Provided the CAA turns its mind to these matters and considers them, it will, prima facie, have complied with the obligation.
Lord Rosser
My Lords, I thank the Minister for his reply and other noble Lords who have taken part in this brief debate.
The Minister said that he will look at Hansard to see what point I was making. To reiterate, the question I am raising is: what is the necessity for the two paragraphs that my amendment seeks to delete? Paragraph (b) states that,
“regulatory activities should be targeted only at cases in which action is needed”.
That comes after paragraph (a), which states that,
“regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent”.
I appreciate that the Minister has said that he will look at the question and respond but, to reiterate the question that I asked, how can something be proportionate if it is a regulatory activity targeted at a case in which action is not needed? Surely, by definition, if regulatory action is not needed and you take regulatory action, that cannot be proportionate.
I am happy to leave it in the context that the Minister will look at the point I have raised and respond to me. I would be grateful for that. I am asking a genuine question. We are all interested in making sure that there is no unnecessary verbiage in legislation, which is the point I am making about the two paragraphs that the amendment proposes should be deleted. However, in the context that the Minister will look at the issue and write to me, I am happy to withdraw the amendment.
Lord Berkeley
This is by nature a probing question. I apologise to the Committee for not having been here at Second Reading. I am confused and I am sure that the Minister can help my confusion. We are talking here about an economic regulation of possibly three airports around London. Clearly there are issues of competition for businesses within specific airports, and from the way I read it that is clearly in the Bill. I am slightly surprised that there is nothing in it—that I can see—about competition between airports. If Stansted is sold, you will have three different owners of the three major operators, as well as Luton. We are talking about economic regulation and I would have thought that the Bill must include, in addition to the things that are there, regulation of slots and charges and consideration of dominant position. I know that we will come on to that last issue later.
What is the market in which the dominant position is supposed to be considered? The noble Lord, Lord Bradshaw, in his remarks on Amendment 1, listed a number of airports within the London or south-east area. I think that he forgot Southend International, which is now marketing itself as an international airport, and Manston and other similar airports. It is a question of how these would be considered. What is within the scope of the CAA on these issues given that we have dominant areas and dominant airports? As I read it, there are the three main airports around London that we have just mentioned, but Luton is pretty big and there are others. It seems odd to put this into the legislation without some explanation. An explanation would help me, but I apologise if this has already been explained at Second Reading.
Earl Attlee
The noble Lord mentioned slots. These are regulated by the world slot guidelines and, in Europe, by the EU slot regulations. They are implemented by Airport Coordination Limited in the UK. The Government do not and cannot have a role in slot allocation.
Lord Berkeley
If there appears to be a dominant position in slots, does that come under the CAA or the Government? Is there any competition authority, or is it completely outside?
Earl Attlee
My Lords, that is clearly a competition issue. I am not certain about it but I will write to the noble Lord.
Clause 5 defines what comprises a “dominant airport area” and a “dominant airport”. Under subsection (3), “airport area” means an area that consists of or forms part of an airport, including land and buildings. This provision is included to allow for the possibility of there being more than one operator at an individual airport. This could be the case if, for example, an airline acquired or leased a terminal building. As there can be more than one airport area at an airport, it follows that there can be more than one operator of an airport area at an airport.
Subsection (1) states that an airport area is dominant if the CAA has made a determination that the market power test is met in relation to the area and publishes a notice to that effect. Subsection (2) provides that an airport is dominant if all or part of its core area is a dominant area or part of a dominant area. Subsection (4) describes what comprises a core area. Broadly speaking, the core area includes runways and associated facilities, passenger terminals and cargo processing areas. It follows from that that non-core airport areas include car parks with pedestrian access to the terminal building, or the forecourt of a passage in the terminal, including pick-up and drop-off points. Therefore, if the only dominant airport area at airport X comprised the pick-up and drop-off points, airport X would not be a dominant airport because no part of the core area would comprise or be included in a dominant area. We should remember that the core area is the runways, associated facilities, passenger terminals and so on.
In such circumstances, no part of the airport could be subject to regulation. The underlying thinking is to ensure that no part of an airport should be subject to regulation unless some part of the core area is dominant. This construction is required to prevent unnecessary regulation where there is a problem only with peripheral areas. This distinction between core and non-core airport areas is necessary to ensure that the CAA regulates ancillary airport operation services only where some or all of the core area of the airport is dominant; it is unable to exercise regulatory control over core areas where only non-core areas are dominant.
Allowing for more than one operator at an airport differs from the approach used in the Airports Act 1986, which refers to an airport operator as,
“the person for the time being having the management of an airport, or, in relation to a particular airport, the management of that airport”.
That Act does not include provision about cases in which there is more than one operator of an airport. I make clear to the Committee that there are no powers in this clause to introduce intra-airport competition. Rather, the clause allows for the possibility that competition may be introduced within our airports—for example, inter-terminal competition. These provisions are included to keep open the option of competition within airports in future.
The Competition Commission has previously expressed interest in this concept and suggested that the,
“legislation … should allow for terminals to be developed or redeveloped and to be operated separately from runway facilities, where appropriate”.
While the Competition Commission has no present intention to impose such intra-airport competition, it is supportive of keeping the option open for the future. We therefore need to ensure that the regulatory framework is capable of operating in the event that inter-terminal competition becomes a feature of the UK airport sector. By including it in the Bill, we avoid the need for a future Government to have to return to Parliament for fresh primary legislation.
Lord Berkeley
I am grateful to the Minister for that very clear, if somewhat complex, explanation. If I have it right, a core area has to include the landing and take-off runways. I cannot see how more than one landing and take-off runway can be owned in one airport. If Heathrow separated the ownership of the north and south runways, then you would have some competition. However, if the core area has to include the landing and take-off, surely it would be impossible to have competition within any of the airports in the south-east. Have I misunderstood this? I would be grateful if the Minister could explain further.
Earl Attlee
I do not know whether or not the noble Lord has misunderstood. I suspect that he will have to read what I have said very carefully in order to understand it.
Earl Attlee
Earl Attlee
My Lords, I shall speak also to Amendments 16 and 23. These three amendments are being taken together. Collectively, they will ensure that the CAA must have regard to the extensive guidance and advice published by the EU and UK competition authorities, for example the Office of Fair Trading.
We have been reflecting on comments made in the other place regarding the definition of “substantial market power” in the Bill. In particular, during debates in Committee in the other place, points were made that there could be some uncertainty regarding how the CAA might assess “substantial market power”. Although we believe that the definitions and specific meanings of the terms relating to market power that are used in the Bill are clear, we see merit in providing more clarity that the CAA must have regard to relevant competition guidance when carrying out the market power test.
Clause 6(1) states that market power test is met in relation to the airport area only if the CAA is satisfied that tests A, B and C are all met by the operator of that airport area. These tests are designed to ensure that operators of airport areas are subject to economic regulation only if under test A,
“the … operator has, or is likely to acquire, substantial market power in a market, either alone or taken with … other persons”,
under test B, general,
“competition law does not provide sufficient protection against the risk that the … operator may engage in conduct that amounts to an abuse of substantial market power”,
and under test C,
“the benefits of regulating the … operator … are likely to outweigh”
the costs.
On a previous amendment, I was asked what the market is. A market for airport operation services could be as narrow as the baggage handling services at Heathrow Terminal 5, or as wide as airport operation services at airports in London and the south-east. Other examples of airport operation services include the provision of airport facilities for car parking, facilities for shops and ground handling services.
The term “substantial market power” in test A is the term used in the current criteria that the Secretary of State applies when making designation decisions on whether an airport should be subject to price control. It is well understood and accepted in this context. The previous Government consulted on the wording of this limb and the other limbs of the test for whether an airport should be subject to economic regulation. In light of that consultation, we see no reason to change the wording. In carrying out test A, the CAA expects to follow the guidelines published by UK competition authorities—for example the Office of Fair Trading and the European Commission—for the assessment of market power. This amendment will put that beyond doubt. These are generic guidelines for use in any industry and provide a useful starting point for assessing the degree of competition faced by an airport. I beg to move.
Lord Berkeley
I am grateful to the noble Earl for that explanation. I have a couple of very simple and quick questions. I assume that when he says there is an issue about being subject to price control, he is talking about baggage handling, car parking and things like that rather than the price of slots, which I think he said is outside everything. I would be grateful for his confirmation of that.
Lord Davies of Oldham
The Minister will, no doubt, give an answer to that in just a moment. I am grateful to him for these amendments. As he said, there was considerable anxiety in the other place when discussing the concept of the dominant market. I am still trying to get my head round the position in respect of baggage at Heathrow being a dominant market, but will take the Minister’s word for that. I certainly accept the other extreme he put forward: all the airports in the south-east. We appreciate that, with these amendments, the Minister has helped to reassure us over the anxieties that were expressed in the other place. We all appreciate that it is not easy to get to this definition and that considerable efforts have been made. At first, I thought the cross-reference to the European Commission looked a bit like overkill, but the Minister is making sure he has belt and braces with regard to this, in response to the challenges that were made in the other place. I am quite sure my colleagues there will join me in thanking him for these amendments and accepting that they go a considerable way to allaying past anxieties and help the Bill.
Earl Attlee
The noble Lord, Lord Berkeley, is right that it is not the price of slots. The price of slots has an economic value, but it is not regulated.
Viscount Younger of Leckie
My Lords, I believe this is a convenient moment to adjourn this Committee until Monday at 3.30 pm.
House of Lords
Young People: Parenthood
(12 years, 5 months ago)
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The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, the Government are committed to supporting good parenting, but we do not believe that it is the Government’s role to tell parents exactly how to raise their children. As such, we are funding services that offer advice and support to all parents, but we do not plan to prescribe how or what skills schools need to teach their pupils, or to test pupils’ knowledge about parenting when they leave school.
Lord Northbourne
My Lords, I am grateful to the noble Lord for that amount of comfort, but does he not agree that responsibility for the quality of parenting in our society is basically shared between the parents of the child and the state in its various forms and through its various agencies? It is essential that parents should understand the responsibilities for which they are responsible. The obvious place for them to learn that is in secondary school as they grow up. However, as the noble Lord confirmed when I asked a Question on 17 May, the Government are determined that secondary schools should not be obliged to teach parenting skills. I hope that I can persuade the Government to think again on this subject, both on the question of whether those skills should be taught in school, and secondly on the urgent need for a cadre of teachers to be developed that is skilled in dealing with that subject.
Lord Hill of Oareford
My Lords, I agree very much with the point the noble Lord, Lord Northbourne, makes about the importance of parenting. He is absolutely right that schools can play an extremely important part in helping to prepare young people and helping them to understand some of the issues that he discusses. Our difference of opinion is over the degree of prescription that there should be. As he knows, rather than adding things to the national curriculum, we are trying to take things out of it, partly to provide more space for the teaching of these sorts of issues that he refers to.
Baroness Walmsley
My Lords, while welcoming the Government’s recent statement that they intend to try to ensure that when a family breaks up, both parents have the opportunity to fulfil their parental responsibilities to the child—after all, that is the child’s right—will my noble friend the Minister confirm that in any legislation the safety and best interests of the child will remain upfront and centre?
Lord Hill of Oareford
My noble friend is exactly right in both her points. We should try to have a legislative framework whereby the involvement of both parents in the upbringing of children is made as easy as possible. She is absolutely right that the core and underlying interest in all this legislation is to make sure that the interests of the child are at the heart of whatever arrangements one makes.
Baroness Armstrong of Hill Top
My Lords, is the Minister able to reassure the House that any of the money that is being committed to spending on vouchers for parenting will be spent exclusively on evidence-based programmes that we know work?
Lord Hill of Oareford
I believe that the parenting trials to which the noble Baroness, Lady Armstrong, refers are being delivered by well established and well respected providers. It is important that what is provided is, as far as possible, evidence-based. I take that point. If I can find out more information about who the providers operating the trials are, I will make sure that the noble Baroness has it.
Lord Cormack
Could we gently say to our young people in schools that the best preliminary for parenthood is marriage?
Lord Hill of Oareford
We should say many things to young children in schools. For all education, my starting point would be the importance of English and maths. A decent grounding in those matters is most likely to lead children to have successful lives, and many of the desirable outcomes that we all want from education are more likely to appear.
Baroness Butler-Sloss
My Lords, while I accept that English and maths are extremely important, does the Minister accept that the public have an interest in the upbringing of children, because if children are not well brought up we pay for it in all sorts of ways? Consequently, in so far as citizenship or anything akin to citizenship is taught in schools, will the Minister not consider whether parenting should be part of citizenship?
Lord Hill of Oareford
Certainly, I agree with the noble and learned Baroness’s underlying point that we all have a shared interest in making sure that children are brought up as well as possible. It is a point that the noble Lord, Lord Northbourne, made as well, so we have a common interest. On the specific point about citizenship and the content of that within the curriculum, as the noble and learned Baroness will know we are looking at the whole question of the national curriculum. I will relay her point to my honourable friend Mr Gibb for him to reflect on.
The Lord Bishop of Liverpool
My Lords, is the Minister aware of the Children’s Society’s Good Childhood report in which parenting features considerably? Is he further aware of the number of primary schools that already offer parenting courses for pupils’ parents? Is his department able to tell us how many schools across the country offer such parenting classes?
Lord Hill of Oareford
I do not know how many schools offer that and I do not know how easy it would be to find out, but I will certainly ask the question. I am aware of how much work is being done in primary and secondary schools and the way in which many schools, particularly primary schools, are finding ways of bringing parents into schools and educating them at the same time as the children. I agree with him on the importance of schools developing ways of encouraging that.
Lord Brooke of Alverthorpe
My Lords, given the changes in the benefits regime and the ideas being floated over the past few days about further changes that will affect in particular young people and their lifestyles, and given what the Minister has already said about not moving on parenting advice, will he say whether there is any intention to draw these changes to the attention of young people? Will he also say whether some thought might be given to giving some well placed advice on servicing tax liabilities and responsibilities at some point, too?
Lord Hill of Oareford
My Lords, it seems to me that all those matters could be considered and taught within the existing PSHE framework in schools.
Poverty: Developing Countries
(12 years, 5 months ago)
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Lord Loomba
To ask Her Majesty’s Government what steps they are taking to support widows who live in poverty in developing countries.
Lord Loomba
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I take the opportunity to declare an interest as founder and chairman trustee of the Loomba Foundation.
Baroness Northover
My Lords, widows and their children are among the poorest and most vulnerable in societies across the world. The Government have put girls and women at the heart of their development assistance. We provide targeted support to widows at country level and through programmes supporting women’s economic, social and political empowerment more broadly.
Lord Loomba
I thank my noble friend the Minister for her Answer and I am grateful for the consideration that the Government have given to this Question. However, the Answer does not tell the whole story. Does the Minister recall that the UN has designated 23 June as International Widows’ Day as a global day of action to end all discrimination against widows, to facilitate wide economic empowerment, and to enable them to enjoy their full human rights? Does the Minister accept that part of future aid budgets relating to women should be ring-fenced for widows who suffer discrimination and disadvantages?
Baroness Northover
My Lords, I pay tribute to my noble friend for all his work in this area, in particular through the Loomba Trust, which supports widows and their children in many developing countries, and for his work in securing that UN designated day for widows on 23 June. I recognise his point about double discrimination. Although it would not be appropriate to ring-fence money specifically for widows, it is extremely important that we identify in-country those women who are suffering from that double discrimination in the way that he indicates so that they can be supported.
Lord Bilimoria
My Lords, ever since the inception of the Loomba Foundation in 1988 by Raj Loomba, I have chaired its advisory council. On International Widows’ Day on Saturday, 23 June, the Deputy Prime Minister, Nick Clegg, made the best speech that I have ever heard him give.
Lord Bilimoria
In that speech, he asked why no one had highlighted the plight of widows around the world until Raj Loomba did all those years ago. Can the Minister tell us what the Government’s priorities are, where DfID is concerned, in the billions of pounds of aid that we give every year to help the 245 million widows and the 500 children, particularly with the education of poor widows’ children around the world?
Baroness Northover
I am glad that the noble Lord heard yet another stunning speech from my right honourable friend the Deputy Prime Minister. Of course, my right honourable friend was quite right, as is the noble Lord, that the Loomba Foundation has done a huge amount in emphasising the particular challenges faced by widows through double discrimination. As my noble friend mentioned in the previous Question in relation to the United Kingdom, it is absolutely right that education is so important in terms of children’s prospects. We recognise that internationally as we as we do nationally. We are especially aware that when somebody is widowed or loses their partner for any other reason, it is girl children in particular who suffer. That is why DfID emphasises the support of girl children.
Lord McConnell of Glenscorrodale
My Lords, about 40 per cent of adult women in the eastern Congo are widows. Many of them have suffered from sexual violence during the conflicts that have occurred in that region. What are the Government doing as part of our bilateral aid programme to the DRC to ensure that the rights of those widows to shelter, security and in particular to land are able to be used by them in a way that gives them the opportunity to rebuild their lives following the conflicts in that area over the past 30 years?
Baroness Northover
The noble Lord is right. DfID does indeed identify the particular problems of widows in the DRC and has programmes to support them. Again, he is right that widows often lose their land when widowed, and one of the programmes that DfID is carrying out not only in the DRC but elsewhere is to support the rights of women in that situation to land when widowed.
Baroness Gardner of Parkes
My Lords, I think it is a very good thing that the Government are supporting—
Baroness Gardner of Parkes
We have not had a question from the Conservative Benches.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, I think that it is the turn of my noble friend Lady Gardner.
Baroness Gardner of Parkes
Returning to my point, I was for many years the chairman of the UK branch of PLAN International, which has a programme of helping to educate children and also provides great help to widows in many countries. I am glad that the Minister mentioned that the Government are doing what they can but one very big problem arises in countries where all inheritance goes to a male relative. Women find that they suddenly have nothing because their husband’s brother or one of their husband’s brother’s sons has inherited everything. I hope that she will press the Governments of the world on this matter. I think that Uganda has changed this law and that has made a dramatic difference to women. Will she press Commonwealth countries and other countries in general to look into this further?
Baroness Northover
My noble friend is right, and it follows on from the previous Question about equal rights, whether to land or other property. I do not know what hereditary Peers would make of that. Nevertheless, that is what we support.
Baroness Kinnock of Holyhead
My Lords, can the Minister give at least some detail of specific DfID policies designed to tackle the abuse and discrimination faced by widows of all ages, their children and their grandchildren, for whom they are often also responsible? The Minister mentioned focusing on women and girls but are the challenges faced by widows an integral part of DfID’s policy? Finally, what specific data does DfID have on the situation of widows and their daughters, and will she place those data in the Library of the House?
Baroness Northover
I will answer the noble Baroness in detail through a letter but I can tell her and noble Lords that DfID has programmes in Rwanda, Pakistan, India and the DRC, as well as elsewhere, targeted specifically at widows. However, given the time, I shall write to her with many more details.
Armed Forces: Discrimination
(12 years, 5 months ago)
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Lord Tunnicliffe
To ask Her Majesty’s Government what is their assessment of the levels of discrimination against serving and former members of Her Majesty’s Armed Forces.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)
My Lords, the Armed Forces covenant sets out the principles that those who serve in the Armed Forces, whether regular or reserve, those who have served in the past and their families should face no disadvantage compared with other citizens and that special consideration is appropriate in some cases, especially for those who have given most, such as the injured and the bereaved. Any discrimination against members of the Armed Forces community is to be abhorred, and we will continue to be alert to any cases which are brought to our attention. I believe that the vast majority of the population are hugely supportive of those who defend them.
Lord Tunnicliffe
My Lords, I agree with the Minister about that wide support. Saturday is Armed Forces Day. It will be a day of celebration. Never in recent times has the level of approval of the Armed Forces been so high. Nevertheless, despite the efforts of both parties, some members of the Armed Forces still have problems. The splendid report of the noble Lord, Lord Ashcroft—I never thought that I would find myself saying that—found that in the past five years 20% have suffered verbal abuse, 5% have suffered violence or attempted violence, 18% have been refused service in hotels, pubs and elsewhere when wearing the uniform in the UK, and more than 25% have been refused a mortgage, loan or credit card. My right honourable friend Jim Murphy, the shadow Secretary of State, wrote to the Secretary of State on 27 May to urge him to hold cross-party talks on how to end discrimination against our Armed Forces and their families, including the option of introducing new legal protections for the services community. Will the Minister assure the House that this request will receive the fullest possible consideration?
Lord Astor of Hever
My Lords, we thank my noble friend Lord Ashcroft for his very helpful report and are reassured by the high level of support for the Armed Forces that he mentions. The report provides pointers to areas requiring attention. We believe that education rather than legislation is the most effective way to combat discrimination. We can lead this if we work together on a cross-party basis in Parliament to celebrate the contribution of our Armed Forces. An example of this is having troops marching into Parliament on their return from Afghanistan and being given refreshments and tours by MPs and noble Lords. This is the initiative of the All-Party Group for the Armed Forces. In his letter to Jim Murphy, the Secretary of State said:
“I would welcome a discussion with you on how we can ensure that everything we do in Parliament emphasises our cross-party support for the Armed Forces and the people who serve in them”.
Lord Addington
My Lords, does my noble friend agree that it is not now that is the problem, as the Armed Forces have a high profile since they are engaged in combat and we have casualties coming back? We must do something that guarantees that we continue to take an interest when this conflict is over because discrimination usually increases during times of ignorance. Peace in Afghanistan may well bring this.
Lord Astor of Hever
My Lords, my noble friend makes a very good point. The problem exists not just in the present but in the future. I entirely agree with him.
Lord West of Spithead
My Lords, the worst discrimination I ever suffered was shortly after meeting my wife, when she told me that the two most useless things in a sailing boat are an umbrella and a naval officer. Joking aside, the Minister referred to education. We need to educate young people about the importance of the services and one of the best ways of doing that is the cadet forces. Are we going to put more effort into getting CCF and other units into a broader spectrum of schools to try to encourage this?
Lord Astor of Hever
I am grateful to the noble Lord for that question. The answer is yes, we are working very hard on that and we may have more to say on the issue in the days to come.
Lord Selkirk of Douglas
My Lords, what advice and guidance would the Minister give to service personnel who find themselves in difficulties as a result of direct discrimination?
Lord Astor of Hever
My Lords, first, I would tell them to get in contact with their chain of command, which will work closely with the civil police or other bodies, as appropriate, to address any problem. I understand one of the problems that they encounter is with mortgage lenders. Service personnel facing credit-rating difficulties because of time spent abroad should approach prospective mortgage lenders, and all prospective landlords or letting agents, to instruct their credit reference-checking agencies to undertake a manual check of the individual circumstances.
Baroness Dean of Thornton-le-Fylde
Does the Minister agree that discrimination can take many forms? With the repositioning of Armed Forces personnel from Germany over the coming years, one area of concern may well be about the opportunity for their children to have access to the schools that their parents want them to go to and to get on the doctor’s list in the area that they wish. Does he agree that we may need to review the covenant, which is an extremely good initiative, to ensure that the families of Armed Forces personnel are not indirectly discriminated against?
Lord Astor of Hever
My Lords, the noble Baroness makes a very good point about children’s education and doctors. This is an area that we are looking at very closely.
Lord Astor of Hever
My Lords, I agree with my noble friend. A great deal can be done by local communities. Community covenants are voluntary statements of mutual support between the civilian community and its local Armed Forces community in the form of a written pledge. These local partnerships are usually made between the Armed Forces in an area and the local authority and joined by local business organisations, charities and other public bodies as appropriate.
Care Homes
(12 years, 5 months ago)
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Baroness Wheeler
To ask Her Majesty’s Government what action they will take in the light of the finding of the Care Quality Commission’s recent unannounced inspections of care homes and treatment centres for people with learning disabilities, that around half of those inspected were not meeting essential standards of care.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the CQC’s findings show unacceptable levels of care. On Monday a Department of Health report set out 14 national actions to improve care and support for people with learning disabilities or autism and behaviours that challenge. All parts of the health and care system have a role to play in driving up standards, stopping abuse and transforming local services.
Baroness Wheeler
My Lords, in its inspection of care homes and assessment centres in the light of the serious abuse and appalling standards of care at Winterbourne View hospital for people with learning disabilities, the CQC found that of the 150 inspections it carried out, independent healthcare providers were twice as likely to fail to meet the required standards as NHS providers. How does the Minister account for that? Can he say specifically what steps he will be taking to ensure that clinical commissioning groups tackle the problems the commission found over lengths of stay in services, failure to review care plans so that residents can be moved on to community-based services, and the very worrying overuse of restraint of patients?
Earl Howe
My Lords, it is true that CQC inspectors found that for the kind of services they inspected, there was more non-compliance in services run by the private sector. But the information the CQC gathered for its report does not enable it to analyse the reasons for that. I would simply say that all providers of services, whether in the independent sector or the NHS, need to ensure that they comply with essential standards. The noble Baroness summarised a number of the areas where the CQC found failings and I endorse her view that there is a fundamental failing across the system, not just in providers but in terms of commissioning as well. The examples of poor care show up a fundamental need for commissioners to review commissioning plans and care plans, and make sure not just that the providers are capable of offering and providing care to the right standards but that they are actually doing so at the right level for the patients and service users they look after.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
The noble Baroness, Lady Campbell, is trying to get in.
Baroness Campbell of Surbiton
My Lords, in 2008 the Joint Committee on Human Rights produced a shocking report which highlighted some of the most degrading experiences endured by adults with learning disabilities in health and residential care settings. Four years on we are debating the same human rights abuses—this time highlighted by the CQC report, which shows excessive use of restraint and seclusion in assessment and treatment facilities. Will the Minister assure us that he will return to the JCHR and CQC reports and tell us what measures the Government will take now to protect the liberties and safety of this highly vulnerable group so that we do not sit here again in four years debating how we have failed for a third time?
Earl Howe
The noble Baroness’s remarks will resonate with many noble Lords. We have been here before. One of the emerging issues from the review is around poor practice on the use of restraint, as she rightly mentioned. CQC inspectors found that only 73% of locations met requirements on physical intervention or restraint. There was ineffective monitoring of restraint data and learning from incidents. Staff were not always trained and restraint was not always delivered in line with the care plan. There are real lessons to be learnt by providers about the use of restraint. We have flagged this up as one of the actions that we will take in the department to work with the Department for Education, the Care Quality Commission and others to drive up standards and promote best practice in the use of positive behavioural support and ensure that physical restraint is only ever used as a last resort. The report published on Monday is an interim report and we will be publishing a final report later in the year.
Baroness Barker
My Lords, does the Minister agree that this report calls into question the role of local safeguarding adult bodies? What are they doing now while people are being mistreated in a way that the CQC has uncovered? Does the Minister think that it is time to revisit the legal bases of those organisations?
Earl Howe
My Lords, my noble friend is right to call that matter into question. My department will be working with the NHS Commissioning Board Authority to agree by January next year how best to embed quality of health principles in the system using NHS contracting and guidance. Those principles will set out the expectations of service users in relation to their experience. We are taking a range of other action—the 14 national actions to which I referred in my initial Answer—which I would suggest my noble friend looks at. We are clear that there is a need not just for providers but for everybody in the system to focus on their responsibilities and to work together to drive up standards in the way that we all wish to see.
Baroness Browning
My Lords, given the number of years that have passed since we saw the Mencap report Death by Indifference, and the fact that these reports show an inadequate level of improvement, I find myself in the strange position of asking my noble friend if he would please reconsider a proper register, professionally supervised by those working in the care industry?
Earl Howe
My Lords, as my noble friend knows, we committed in the Health and Social Care Act to facilitate a voluntary register for care workers and health workers. We believe that the system should be tried before we think about any statutory regulation. However, I understand the urgency and strength of feeling around this issue and it is a matter that we will keep under regular review.
British Waterways Board (Transfer of Functions) Order 2012
(12 years, 5 months ago)
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Lord Taylor of Holbeach
That the draft orders laid before the House on 29 February be approved.
Relevant documents: 58th Report from the Merits Committee, Session 2010–12; 43rd Report from the Joint Committee on Statutory Instruments, Session 2010–12; 1st and 4th Reports from the Secondary Legislation Scrutiny Committee, considered in Grand Committee on 25 June.
Justice and Security Bill [HL]
(12 years, 5 months ago)
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Lord Wallace of Tankerness
That it be an instruction to the Committee of the Whole House to which the Justice and Security Bill [HL] has been committed that they consider the Bill in the following order:
Clause 1, Schedule 1, Clauses 2 to 15, Schedules 2 and 3, Clause 16.
European Union (Approval of Treaty Amendment Decision) Bill [HL]
(12 years, 5 months ago)
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Lord Owen
My Lords, I know that other important business awaits so I will be very brief. However, there is a procedural question of some importance under the European Union Act 2011, which we are discussing, and the Explanatory Note relating to referendums.
Treaty referendum is becoming a very live subject now that the Finance Minister of Germany has announced that there could be a referendum on a rather more urgent timescale than has been considered—presumably in relationship to the single European banking supervision system which is being proposed by some people. However, my point goes much wider than that. Under the circumstances, it is possible for a Minister under the simplified revision procedure to make a statement under Section 5 of the Act that, although a transfer of power from the UK to the EU falling within Section 4 of this Act has taken place, the proposed change is considered not significant. There are circumstances in which it might be very urgent, during the present crisis over the eurozone, for the British Government to give powers, and I think that they have overall adopted a very conciliatory attitude to those members of the eurozone to the effect that we do not wish to stand in their way on making changes that we may not ourselves wish for but which are related purely to the eurozone. So it is quite possible that a decision might come that is not considered significant in terms of the Act, but if passed by this House would allow the European Union treaties to be amended and action to take place urgently. That might be helpful.
However, in the same circumstances, the Government, not using the 2011 Act, might consider that the implications of these changes are of such importance that they wish to call a referendum under the general powers, although not in a way that would stop the rest of the European Union living under the treaty amendments they had agreed. When the Bill comes back on Third Reading, will it possible to clarify the not-significant clause in a helpful way towards the European Union? We could also hold our own referendum under different legislation which, if you like, would deal with our own political problems but would not stand in the way of a resolution to the eurozone crisis, which we might all agree might be necessary in a matter of days.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)
My Lords, the noble Lord has raised wider issues of great importance, ones that your Lordships will no doubt wish to debate. Indeed, it is possible that he may have an opportunity to raise them at Third Reading. However, this Bill is concerned merely with amending Article 136 of the Lisbon treaty, and there being no amendments to it on Report, I beg to move.
Arrangement of Business
Baroness Anelay of St Johns
My Lords, it has been agreed that the Statement which is about to be given by my noble friend Lord Strathclyde should follow the extended procedure for Back-Bench contributions. Perhaps I may remind the House that this means that after my noble friend has made his Statement and the Leader of the Opposition has made her speech, my noble friend will respond to her. At that point we shall have 40 minutes for the Back-Bench speeches—
Baroness Anelay of St Johns
Questions—I am prompted on an absolutely correct point. We want to include as many participants as possible in this debate, and I know that many noble Lords are keen to ask questions. In Statements we normally ask two questions for elucidation; we do not make speeches.
When we reach the 40 minutes for questions, it has been decided that it would be helpful to the House if we followed the normal procedure for extended debates whereby the first person to ask questions will be the Convener of the Cross Benches, followed thereafter by a right reverend Prelate. Today I understand that it will be the right reverend Prelate the Bishop of Leicester. Following him will be my noble friend Lord Dholakia, and then the noble Lord, Lord Richard, as the chair of the Joint Select Committee.
The Countess of Mar
My Lords, in the light of the importance of this subject, can the proceedings in Grand Committee be suspended while the noble Lord makes his Statement?
Baroness Anelay of St Johns
My Lords, I am glad to be able to announce that, as will shortly be made clear on the annunciator, the proceedings in Grand Committee will not go ahead until 4.45 pm, which permits those noble Lords who intend to take part in the first day of the Committee stage of the Civil Aviation Bill to be present in the Chamber.
House of Lords Reform Bill
(12 years, 5 months ago)
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The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, the Government have today published our response to the report from the Joint Committee on the draft House of Lords Reform Bill of last Session. We have reflected, and we are now in a position to introduce a Bill. The House of Commons has today given a First Reading to a House of Lords Reform Bill introduced by the Government and copies are available in the Printed Paper Office. The Government, after a White Paper, joint pre-legislative scrutiny and many debates, have taken the next step in the legislative process and put the proposals before Parliament. The Government will ask another place to give the Bill a Second Reading before the Summer Recess.
The development of the Government’s Bill has benefited from the detailed scrutiny of the Joint Committee on the draft House of Lords Reform Bill so valuably chaired by the noble Lord, Lord Richard. The Government are grateful to the Joint Committee for its report. We have considered its report and we have accepted many of its conclusions and recommendations.
I hope it might be helpful for me to set out the key respects in which the Bill introduced today differs from the original draft Bill, and to identify the central elements of the Bill that have not changed. The Joint Committee and the Government are in agreement on key features of our proposals. We are agreed that 80% of members of the reformed second Chamber should be elected on the basis of proportional representation; that the reformed House should be smaller than the current House of Lords; that Members should serve for a single 15-year, non-renewable term; and that there should be no change to the powers and functions of the two Houses.
We have none the less made a number of significant changes to the Bill we have introduced today. The draft Bill recommended reducing the size of the House to 300 Members. The Joint Committee recommended 450 Members, and we have accepted its recommendation. The Joint Committee also recommended that the 90 appointed Members should not necessarily be expected to attend the reformed House every sitting day. The committee argued that allowing individuals to maintain relevant professional expertise would strengthen the reformed House, as it does the present House. The Government have accepted this recommendation, and consider that the same logic should apply to elected Members. To reflect this, the Bill provides that IPSA must pay Members according to their level of participation in the work of the House.
On the recommendation of the Joint Committee, we have also significantly altered Clause 2 of the Bill. It is no longer a declaratory statement that nothing in the Bill affects the primacy of the House of Commons, the powers of each House and the conventions. Instead, it now clarifies the continuing application of the Parliament Acts in the context of a reformed second Chamber.
A further substantial change intended to provide a clear differentiation between the role of MPs and that of elected Members of the reformed House is that the areas from which elected Members will be returned are now larger regions rather than the smaller electoral districts proposed in the White Paper. Using these regions means that there will be a larger number of seats in each district, which in turn would have led to significant practical issues if an STV system had been used. The Government share the Joint Committee’s view that the complexity of the electoral system is an important consideration, and that voters should have the option of simply voting for a party. The Government therefore consider that the most appropriate electoral system for the reformed House in Great Britain is a regional, semi-open list, and that is what is now proposed.
In many other respects the draft Bill and the Bill introduced today are the same. Elections to the second Chamber will happen in thirds to coincide with general elections. There will be a transitional period with existing Members leaving in thirds, as each set of elected Members arrives. Membership of the reformed second Chamber will no longer be linked to the peerage. There will be a continuing role for Church of England bishops, but in reduced number. A statutory Appointments Commission will make nominations for the 20% of appointed Members who would be expected to be non-party political. The Bill includes provision for Members of the House to be able to resign, it provides for disqualification from membership of the House, and it gives the House a power to suspend or expel Members.
Finally, the fundamental principle behind the Bill has not changed. The Government believe that those who make the laws of the land should be elected by those to whom the laws apply, and that a democratic mandate—obtained through direct elections—would afford the House greater legitimacy and thereby enhance the House’s ability to perform its core functions of revising legislation and holding the Executive to account.
I am conscious that Members around the House have taken a close interest in the cost of the Government’s proposals for reform. As promised, the Government have today published their full cost estimates alongside the impact assessment for the Bill. These, too, have been placed in the Printed Paper Office.
I hope that this overview has served to highlight the main respects in which the Government’s proposals have evolved since the publication of the draft Bill and the publication of the Joint Committee’s report on that Bill. I reiterate the Government’s thanks to the noble Lord, Lord Richard, and the other noble Lords who served on the Joint Committee, whose report has had a significant influence on our final proposals.
I said before that there is only one way to test whether a consensus on the second phase of reform of this House exists or can emerge, and that is to introduce a Bill and allow Parliament to take a view. Today, that process is under way.
Baroness Royall of Blaisdon
My Lords, I thank the Leader of the House for making a Statement to your Lordships' House on the Government’s revised House of Lords Reform Bill, which has been introduced today in the other place and given a First Reading. I am grateful, too, for an advanced sight of the Statement. I thank the Leader and the government Chief Whip for offering to extend to 40 minutes the normal period for Back-Bench contributions to the debate today.
This country is facing enormous difficulties. We are in a double-dip recession; we have no economic growth; unemployment, especially youth unemployment, remains high. The Governor of the Bank of England did not mince his words yesterday when he spoke of the depth of the economic crisis. Further efforts will be made this week at the EU summit to try to resolve the eurozone crisis. We need jobs and we need growth; we need a change of economic strategy. Those are the country’s priorities and those are the Opposition’s priorities. What are the Government’s priorities? Apparently, they centre on further reform of your Lordships’ House. Not only is reform of your Lordships’ House not at the top of the priority list of the people of this country; it is not even at the bottom of the priority list. In fact, it is not on the list at all, because it is not a priority. Even the most positive polling figures suggest that less than a fifth of the people of this country regard further House of Lords reform as in any way urgent. Yet this is what this Government have placed at the heart of their legislative agenda; this is what the Government are focusing on today. Why are the Government making reform of your Lordships' House such a priority in the light of the economic challenges facing us?
We do not from these Benches say that constitutional reform is unimportant. From 1997 onwards in government, we brought forward a serious programme of constitutional reform, including major changes such as devolution in Scotland, Wales and Northern Ireland. Constitutional reform, including further reform of the House of Lords, goes to important questions about how Britain is governed. We on these Benches did not seek a Bill on further reform of your Lordships' House to be included in the Government’s legislative programme, but it has been; it is there; and we as the Opposition must respond to it.
Labour’s commitment to a fully elected second Chamber was explicit in its manifesto at the last general election. Labour has a long commitment to reform and has enacted that commitment. We want to see reform, but we want to get that reform right. For the Labour Party, that means a fully elected second Chamber. It means getting the powers and role of the House of Lords right, not only in itself but in relation to the House of Commons. We believe, too, that the issue is of such importance that it should be put to the people of this country in a referendum, a commitment which is strongly supported by the public according to opinion-poll evidence.
We will want to examine in detail the Government’s revised version of the House of Lords Reform Bill. The first version of the Bill, published last year, was a bad Bill. We thought so; the Joint Committee on the Bill thought so; and the alternative report from the Joint Committee’s minority group thought so. Pretty well everyone thought so, apart from the Deputy Prime Minister.
The Government are proposing their revised Bill in the face of serious and searching criticisms of their first attempt. We will need to consider how far this version gets in dealing with the very big questions which need to be resolved, including those about the primacy of the House of Commons. The Government’s revised Bill today attempts to shore up in various ways the wholly discredited Clause 2 of the original Bill, on Commons primacy, by scrapping the provision entirely and replacing it with a statement in the Bill about the applicability of the Parliament Acts. The Bill also repeals the preamble to the Parliament Act 1911. Are there any further constitutional implications of repealing the preamble? I look forward to hearing the views on this issue of the noble Lord, Lord Pannick, and of my noble and learned friend Lord Goldsmith.
On the applicability of the Parliament Acts, can the Leader of the House explain why, in the Government’s response to the report of the Joint Committee, which has also been published today, they refer on page 7 to their response to recommendation 84 of the Joint Committee, on the Parliament Acts, when their responses to the recommendations go from 82 to 86, without recommendation 84 being included at all? That is interesting.
There are also questions about the powers of the second Chamber; about the exact proportion of elected Members, the length of their terms, whether they should be renewable; about the system of election; about the relationship between the Lords and the Commons, about the position of this House in relation to the outcome of a referendum in Scotland on independence; about the place of bishops or other religious representation; about transitional arrangements, and about the costs of the Government’s reforms.
On the question of costs, the Government have, as the Leader of the House said, finally published the costings today on their revised proposals. I note that these include provision for a number of allowances for Members of an elected House, including an accommodation allowance and a staffing allowance. The costings do not, however, include the cost of elections for the House, put separately by the Government at £85.7 million for each of the elections proposed. Will the Leader tell the House what the Government believe the total net cost of all their proposals will be?
Can the Leader of the House explain to Members of your Lordships’ House what the position will be in an elected House in relation to remuneration? The Government have been briefing the media heavily in the past few days that Members of the new elected House will not be paid a salary but will instead have a daily allowance before tax of £300. However, new Section 7A of Clause 46 of the Bill specifies that,
“members of the House of Lords are to be paid … on a monthly basis in arrears”.
Will the Leader of the House clarify which is correct?
Of huge importance to my party and to the Joint Committee, the revised Bill does not contain a referendum. There is little logic in a position which says that we have referendums to decide whether we have city mayors, but not to decide whether to alter radically the composition and structure of our Parliament. We shall see whether the Government’s present non-inclusion of a referendum in the Bill survives whatever parliamentary processes the Bill faces. However, can the Leader of the House say why he believes that 55%—according to the latest opinion poll—of the people of this country are wrong in wanting to have their say on these matters in a referendum?
On these matters, Labour, whether in the other place or in your Lordships’ House, will seek as an Opposition to scrutinise, amend and improve the Bill during its passage through Parliament. Lords reform is a serious issue and we expect the Government to take Parliament seriously, too, in considering it. That is why we want to see proper scrutiny of the Bill in the other place, where it will be taken first. That is why we will oppose in the other place the proposed timetable for the Bill, which would, effectively, guillotine debate. However, we are a party in favour of reform, which is why Ed Miliband also announced yesterday that Labour in the Commons will be voting for a Second Reading of the Bill. For a Bill about which we have real reservations, this is an unusual step for an Opposition. There is indeed plenty of precedent for legislative proposals being opposed at this stage.
For example, in 1999, the party opposite, including 11 members of the current Cabinet, proposed and voted for a reasoned amendment and against the Second Reading of the Labour Government’s 1999 House of Lords Bill on hereditary Peers. We know that there are members of my party, both in this House and the other place, who would wish to vote against the Bill for reasons of principle. I respect those who hold this view, but the shadow Cabinet, of which I am a member, disagrees with them, and Labour will vote for a Second Reading in the other place later this month.
Baroness Royall of Blaisdon
It is next month, forgive me. It is not July—hell.
We know, too, that there are great differences of opinion—vast gulfs of opinion—between the constituent parties of the coalition, and within the ranks of the Conservative Party, both in the other place and in this House. As the Prime Minister said in the other place earlier today, there are those in all parties who oppose further reform of the House of Lords, just as there are those who support further reform. We shall see how those differences emerge as the Bill goes through its Commons stages.
It is likely that those stages will be protracted. The Bill is, I suspect, many months away from coming before this House, if indeed it manages to get out of the Commons. Given the dates for Second Reading in the other place, it is likely that the House of Commons will go into Committee on the Bill when it sits in September. Recently the noble Lord the Leader of the House all but issued as a threat the possibility that this House would have to sit in September to deal with the Financial Services Bill. Can I inform him that in order to deal with a range of matters, such as the Government’s legislative programme and their record on jobs and growth, we on these Benches would welcome sitting in September when the Commons will be deliberating on this Bill. I ask the Leader of the House to arrange now that this House should indeed sit in September to consider these important matters.
On the overall matter of further reform of your Lordships’ House, there are wide differences of opinion across the House. That was clearly demonstrated right across the House in the days of debate we have had on the issue recently, both in considering the report of the Joint Committee and the alternative report and in the days devoted to the constitutional issues during the debate in this Chamber on the gracious Speech. However, what was also demonstrated in those debates was a seriousness about this issue—a determination that it should be considered properly, and a clear intention to scrutinise fully whatever proposals the Government place before Parliament. Can the Leader of the House give us a commitment that if this Bill does get to your Lordships’ House, the Members of this House will have all the time they need to scrutinise the proposals fully and properly?
We have revised proposals before us today. In this House we have time—possibly a good deal of time—to consider these proposals while they are in the House of Commons. That is what I expect that many individual Members of this House will wish to do. For our part, both in the other place and, if necessary, in your Lordships’ House, we will ensure that the Government’s proposals are properly debated, properly considered, properly questioned and properly scrutinised. That is the job of the Opposition; and starting from the publication of the Bill today, that is the job that we will be getting on with.
Lord Strathclyde
My Lords, having read what Mr Miliband said in support of the prospect of reform, I was surprised by much of what the noble Baroness said this afternoon. I was very impressed with what Mr Miliband said yesterday. He pledged the Labour Party’s support for the Second Reading of the Bill, even before he had had an opportunity to see it. Perhaps when he has read it, he will decide to support a programme Motion to rush it through the House of Commons and into this House as quickly as possible.
The noble Baroness asked whether this should be a priority. It has been hanging around for so long that we have to get around to it at some stage. It started in 1998-99 as a great priority of the previous Government. They published their last White Paper in 2008. I dare say that if the Labour Party had won the election it would have brought forward a Bill. This coalition has decided that it is time to bring this debate to an end and to ask Parliament what its view is, and it is right that we should do so.
There is also the bizarre suggestion that when important things are happening, Parliament cannot decide on other important issues. It is worth reflecting that on 6 and 7 June 1944, the House of Lords was debating the all-important Butler Education Act on Second Reading. Of course, getting growth into the economy is important, but that is not going to be done just in Parliament; it is going to be done by businesses and entrepreneurs up and down the country.
The noble Baroness reiterated the Labour Party’s view that what is most important in reform is that the House should be 100% elected. Respectfully, we disagree, as did the Joint Committee. Although she did not say that the powers between the Houses should be codified, I think that is what she meant. Again, respectfully, we disagree. She said that there should be a referendum. We see no case whatever for a referendum on the issue. Parliament should decide. It would cost £80 million to have a referendum on this issue, which was included as part of all three main parties’ political manifestos. I urge the Opposition to have more confidence in their manifesto, which is only two years old. I hate to point out to noble Lords opposite that there were no referendums in 1958 or 1999, when the composition of the House was changed, and we see no case for one now.
On the question of primacy, it is true that the Joint Committee had a substantial debate on Clause 2, helped by the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Pannick, and the Government reflected on that. That is why we have changed the Bill in this way. This is in part because this Bill is about the composition of a reformed House of Lords and the transition arrangements for getting there. It is not about the functions, powers and role of the two Houses, which we would like to see remain unaffected by that change. The Bill clearly states that the Parliament Acts of 1911 and 1949 will continue to apply after the introduction of elected Members.
The Parliament Acts underpin the primacy of the House of Commons in statute. They limit the legislative power of the Lords and ensure that any Administration with a majority in the Commons can ultimately pass legislation without agreement of the House of Lords. We are not aware of any further constitutional implications of repealing the preamble to the 1911 Act.
On the questions of cost raised by the noble Baroness, Lady Royall, she rightly pointed out that the cost of election was excluded from the cost of the House; it stands at £85.7 million every five years. We believe that at the end of the transition period the projected additional annual cost of the House of Lords will be £13.6 million. Of course there will be other associated costs during the course of transition. As for pay, there is something inherently useful about the current arrangements whereby Peers have a daily allowance, and we wish to replicate that through a per diem salary that would be paid monthly in arrears but would be assessed on daily attendance in this House.
In the course of the next few months, there will be many opportunities to discuss some of these issues, but it is also right for the House of Commons now to take its view. I have no idea when the House of Commons is going to discuss these issues, and whether it will be early or late in the autumn. We also have work to do and we should get on with that before dealing with the Bill when it gets to us some time in the winter.
Baroness Royall of Blaisdon
My Lords, for the avoidance of doubt can I say explicitly that if my Government had been in power now and had faced the economic situation which the country faces now, this would not have been at the top of our priorities and we would not be discussing this Bill in the House of Commons today?
Lord Laming
My Lords, I will be brief. I, too, thank the Leader of the House for repeating this Statement on a Bill that will clearly repay careful study, and for agreeing to this extended time of questioning.
It was entirely understandable that the new coalition Government introduced a full and challenging legislative programme that required an extended first Session. Inevitably some of that legislation was controversial. Does the Leader agree that every one of those Bills was carefully scrutinised in this House? Does he agree that, thanks to the hard work of colleagues from all around the House, each one of those Bills was greatly improved, so much so that during the period of scrutiny the Government had time to reflect on points that had been made and brought forward very many changes to their own legislation? As a starting point, does the Leader agree that this House has demonstrated time and again its ability to fulfil its responsibilities in the scrutiny and improvement of legislation?
Secondly, does the Leader agree that the House has changed greatly in recent years, and that time and again it has shown its willingness to change? Indeed, across the House there is agreement that further incremental change is still there for the taking.
Thirdly, will the Leader accept that my colleagues and I welcome that the Bill will endorse that 20% of the membership of the House will be appointed, but will he assure the House that the appointed Members will be genuinely independent and without any party political allegiance?
Lord Strathclyde
My Lords, I am grateful for the Convenor’s questions. Of course I agree with him: the House of Lords, not just since the general election but broadly since 1999, has done a good job of scrutiny and worked well on Bills. I have put on record many times that this is not about the current effectiveness of the House of Lords, which is recognised as having done its job extremely well and having improved legislation. The Government’s view is to improve the legitimacy of the House—indeed, to strengthen its ability to hold the Government to account and to challenge the decisions of the House of Commons.
On the noble Lord’s second question, yes, the House has changed substantially throughout the 20th century, most recently in 1999, and has always accepted such changes. Many of my colleagues in the coalition regard the transitional period as being extremely long. There was no transitional period, or not a very big one, in 1998-99, but there will be a substantial one for the new House to get used to the new arrangements over three electoral cycles.
I confirm that the 20% appointed Members will be appointed by a statutory Appointments Commission, as laid out in the Bill, and will be non-party political Members of this House.
The Lord Bishop of Leicester
My Lords, I am grateful to the Leader for his clarification of the Government’s proposals. We on these Benches recognise the need for some reform of this House, and welcome the opportunity that the Bill will give for a thorough debate about the future of Parliament. In particular, we are pleased to see that the Government endorse the Joint Committee’s recommendation on the continuing contribution of the Lords spiritual to a reformed House, albeit that the decision to raise the proposed size of the House to 450 from the original proposal of 300 suggests that the proportion of Bishops, at the number of 12, may be too low if the total number is revised upwards.
We have always said that we will assess the proposals on the basis of what makes for the good governance of Britain. I therefore raise two questions. First, as a member of the Joint Committee, I remained puzzled throughout the course of its work about how the Government’s expressed desire for a more assertive House could be squared with the confident assertion that a reformed House could be relied upon to exercise the necessary self-restraint required to guarantee the primacy and effectiveness of the House of Commons. Will the Leader help us to be as certain as he appears to be that the Parliament Act will prevent the serious risk of dysfunction in the relationship between the two Houses?
Secondly, as your Lordships will be aware, the Church of England has always argued for diverse religious representation in this House so that it properly reflects the diversity of civil society as a whole. The Government appear not to have accepted the Joint Committee’s recommendation that it is necessary for the Bill to make explicit reference to the inclusion of major faiths in a reformed House. How is it proposed that the Appointments Commission can ensure that a reformed House will reflect the religious heritage and cultural diversity of Britain today?
Lord Strathclyde
My Lords, I reiterate a view that I have long held and which the Government also hold: the Lords spiritual play a valuable and important role in the House and make an important contribution. The right reverend Prelate wonders about the numbers. I think it was the Joint Committee that suggested a reduction to 12 Bishops. The proposal in the Bill is that there should be five named Bishops and Archbishops, and then seven others chosen by the Church of England.
On two key questions of self-restraint and how this can be achieved, of course nothing can be guaranteed. It depends on the House evolving, and its new relationship with the second Chamber, which either will or will not change. It will be up to the new House, and the House of Commons, to decide how best to govern itself.
On the second question the right reverend Prelate raises, he is right to point out that we have not accepted that there should be an explicit condition on the statutory Appointments Commission to put in Peers of other faiths and make sure they are represented. There is no such view on the current Appointments Commission, yet it works extremely well. Other faiths have been introduced into the House, and I hope that that will continue.
Baroness Anelay of St Johns
My Lords, I did explain at the very beginning and I repeat that it has been the custom of these extended debates for a senior member of the Liberal Democrat Benches to speak after the noble and right reverend Bishop. It was my error in saying “my noble friend Lord Dholakia”. I apologise; I should have said “my noble friend Lord Tyler”—which I did say—followed by “the noble Lord, Lord Richard”.
Lord Tyler
My Lords, my noble friend Lord Dholakia is not able to be here, and I have been asked to respond. I am very sorry if I am holding up the noble Lord, Lord Richard, because I am looking forward very much to his response. He and other members of the committee will agree that the Government have in the main responded to our report.
Has my noble friend the Leader noted very intriguing variations in consistency on this issue? He will have noted, I think, that David Cameron and George Osborne voted for the 80/20 hybrid House as long ago as February 2003, as indeed I did. However, a great many others seem to have changed their minds since. I particularly welcome—and I think that other members of the Joint Committee will join me in this—the fact that the Government have taken such trouble with a very robust and comprehensive analysis of the cost projections to lay to rest the otherwise very speculative scaremongering expenditure estimates that were given to us previously. That is very helpful. That also responds to the report recommendations.
May I ask my noble friend the Leader to expand in due course, not necessarily now, on the true comparison between the Government’s proposals in this very useful document on the projection of cost and what would otherwise happen if the Government’s proposals did not go through? If the size of the House continued to expand, the cost of this House would of course also increase dramatically.
Lord Strathclyde
Yes, my Lords, we most certainly can. My noble friend is entirely correct. There has been a very robust analysis of the cost, including an examination of what the cost might have been if no reform had taken place—it would increase substantially. I said in reply to the Leader of the Opposition that the net cost in the first year after transition would be an extra £13.6 million per year, and I stand by that amount. I am very happy to write to my noble friend about how the costs have been robustly examined. I think the House will find that when it looks at the Explanatory Memorandum and the reply to the Joint Committee of both Houses, it will see very clearly how those costs have been reached and how they are substantially different from the ones proposed by the noble Lord, Lord Lipsey.
Lord Richard
My Lords, it was indeed a privilege and a pleasure, although perhaps not a treasure beyond measure, to have been asked to chair the Joint Committee. It was a fascinating experience, and I greatly enjoyed it. We exposed a very large number of issues in the course of it, some of which I am happy to say the Government have taken on board. It is now proposed that the size of the House should be 450 rather than 300. That is thoroughly sensible. However, the main issue that the Joint Committee spent a great deal of time on was raised by the noble and right reverend Prelate the Bishop of Leicester: namely, the primacy of the House of Commons and the relationship between the two Houses.
The Government are quite right to put in the provision clarifying totally the issue of the Parliament Acts. There was a lacuna there, and it was clearly pointed out to the Joint Committee by the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Goldsmith. The Government have put that right, and that is to be welcomed, but I am not sure whether merely dealing with primacy in that way, and only in that way, in the Bill will be sufficient. I ask the Leader of the House whether he will look at this issue of primacy again, and at whether there are ways in which one could perhaps not exactly buttress the primacy of the House of Commons but at least harden it.
There was one Joint Committee recommendation which the Government did not accept, and I would be grateful if the Leader of the House could tell me why. It came originally from the Cunningham report, and was that you could not codify the conventions dealing with the relationship between the two Houses and that you should not put them in statute. That I entirely agreed with. On the other hand, as we suggested, each House could almost simultaneously pass resolutions in identical terms spelling out what that relationship is and what the conventions underlying that relationship were. In other words, you would have a concordat spelt out in two documents between the two Houses that would set out the basic relationship between the two. I am not suggesting that that is immutable and can inevitably last in perpetuity, but I do say that although you cannot guarantee the primacy of the House of Commons in perpetuity—it cannot be done—you can produce a set of proposals that make it far more likely that that primacy will last than if you do not have those proposals in the Bill.
The Government should therefore perhaps look again at whether you cannot harden that part of the relationship between the two Houses, and I ask the noble Lord to look at it.
Lord Strathclyde
My Lords, the noble Lord is of course entirely correct that a large part of his report and the evidence that he received was on precisely this point about powers and primacy. There is a difference of opinion. My view, and the Government’s view, is that we should not worry too much about this at this stage. There is no need to do so. What could be a potential outcome of this? We could end up with an elected House having less power than the current House. That would be completely absurd. In the Bill, the Government have protected the current rights and privileges of the House of Commons and the House of Lords and have asserted that the Bill is about composition and not about powers at all.
The noble Lord, Lord Richard, has made an entirely sensible observation: that one way around this is to look again at the conventions that exist between the two Houses, and to ask each House to pass some sort of resolution. Well, maybe that is exactly what will happen, but there is no need for it to happen now or before Royal Assent of this Bill, or indeed before 2015, which is the anticipated date of the first elections. However, it is certainly a suggestion that a successor House may well wish to look at sensibly.
Lord Harries of Pentregarth
My Lords, I appreciate the way that the Government have taken on board the main principles of the Joint Committee. I note that the Bill now overlaps in most significant respects with the recommendations of the royal commission chaired a few years ago by the noble Lord, Lord Wakeham, but with one significant difference. The Wakeham commission allowed for the possibility of at least a few experienced politicians being appointed to the new second Chamber. How does the Leader of the House envisage providing, under the Bill, for people who have perhaps stood for election to the House of Commons two or three times and who would not necessarily be tempted to stand again for election to this House but who have a huge amount to offer in the way of political experience and wisdom? If there was no such provision in a new Chamber, would he not say that this was a significant loss?
Lord Strathclyde
My Lords, the noble and right reverend Lord, Lord Harries, makes two valuable points. First, he is entirely correct that there is a firm line of thought between the conclusions of the royal commission chaired by my noble friend Lord Wakeham, the White Papers produced by the Labour Party when it was in government, the draft Bill and, indeed, the Bill that we have published today. That is why I have said that very little is new in all this; the noble and right reverend Lord is entirely correct. The second point that he raises is more difficult and more intriguing. It is right that unless former distinguished Members of the House of Commons were prepared to stand for election under their party label, we would lose some of that expertise. Having said that, I do not think that it would be beyond the terms of reference of the statutory Appointments Commission to select a small number of most eminent politicians—a very select few—who might be interested in serving the nation and this House without a party political label.
Lord Howe of Aberavon
My Lords, my noble friend will surely remember that it is only a few years ago that the Public Administration Select Committee of the House of Commons concluded that the principal cause of today’s widespread public disillusionment with our political system is the virtually untrammelled control by the Executive of the elected House of Commons. The committee reached important conclusions. First, that there is a need to ensure that the domination of Parliament by the Executive, including the political party machines, is reduced and not increased and, secondly, that,
“the second chamber has to be neither rival nor replica … but genuinely complementary”,
to the Commons, and therefore, “as different as possible”. On that very sound basis, coming from the other place, would my noble friend take note of the fact that the principle underlying this Bill is one which will have to be examined critically and seriously, because it is fundamental to the good working of this constitution as we have enjoyed it for so many years?
Lord Strathclyde
My Lords, I agree with my noble and learned friend that this Bill should be fully examined and I know that it will be. I agree with the examples that he uses: the control of the Executive in another place, the domination of Parliament by the Executive and the need for differences between this House and the House of Commons. However, I come, and the Government have come, to a different conclusion. I see these reforms as strengthening this House by giving it the authority of the electorate to be more assertive and occasionally to be more beastly to the House of Commons, to hold it to account and to challenge the decisions that it takes. This House will be able to do that far better having been elected than simply having been appointed.
Lord Lipsey
My Lords, I have no wish to extend discourtesy in public life, as the Deputy Prime Minister, Nick Clegg, did when he described my costings of the Richard report as complete nonsense. I will not apply those words to the Government’s costings. However, would the noble Lord the Leader of the House accept that their costings of £220 million omit a large number of costs that will certainly arise under the Bill—for example, the costs of election—and therefore do not stand a moment’s close scrutiny? If he will not, will he agree to refer those costings to an independent referee, such as the Institute for Fiscal Studies, which can examine their costings of their proposals and my costings of the Richard report, and give the public the correct assessment of the costs that they will have to pay through their pocket as VAT, income tax and so on?
Lord Strathclyde
My Lords, the underlying assumptions and cost projections are in the public domain today. I fully expect that they will be given robust scrutiny by the IFS, the TaxPayers’ Alliance, the Labour Party and anyone else who wishes to examine them. Of course, the Government will reply to any questions raised on costs, which I believe have been reached in a robust manner.
Lord Deben
My Lords, does the Minister accept that the decision to have a list system will mean that this House would be in effect appointed by the political parties in many cases? The people they would appoint would be those who would not in other circumstances be chosen for this House. Many of those who work in this House would not wish to fight an election in those circumstances. This proposal makes for the worst conceivable kind of appointment to this House. That is why, above all, we should look at this Bill extremely carefully and, I hope, recognise that that which is, although illogical, is better than that which would just be fatal.
Lord Strathclyde
My Lords, apart from powers, one of the key areas will be the electoral system, which is different from the one originally proposed in the draft Bill. It is different from what was suggested by the Joint Committee, although the committee suggested some improvements to the original system on which this is based. Under this system, it is difficult for independents to be elected, which is why we have reserved 20% of the House to independents who will be put here through the statutory Appointments Commission. It is beyond doubt that it is a proportional system. Therefore, there will be no natural majority for any Government, which will preserve one of the strengths of this House.
Lord Reid of Cardowan
Will the Leader of the House at least consider that, after the White Paper and all the deliberations, consultations, and discussions he has made a bad Bill worse? First, as has just been pointed out, the new senators will be less independent than originally proposed because not only will the list system make them more loyal to parties but they will have to be determined on the list by the party leaders. Secondly, they will be more likely to intervene in the legislative process and the work of the House of Commons because they will have no constituency work to do and can spend all their time dealing with matters of politics and legislation.
Thirdly, I am sceptical about the cost. I do not know what the Leader of the House would think of any new company which starts up with 450 employees and bases its overheads and costs assessment on the hope that they would not turn up to work, which seems to be what he is doing. Above all, will the Leader of the House explain—if he knows it but Members of the other House do not—that you cannot ring-fence by regulations or by law the natural dynamic of politics? If you choose 300 senators with constituencies 10 times as big but with no constituency work for a term three times as long, whatever the regulations that will become through the dynamic the primary House. If there is scepticism from the Members of the House of Commons about this cast-iron guarantee that they have been given, will he refer them to the cast-iron guarantees that were given by Mr Straw that the Freedom of Information Act would be ring-fenced so that it did not apply to MPs allowances?
Lord Strathclyde
My Lords, the noble Lord says that Peers elected under this new system will be even less independent. We are not calling them senators at the moment: we are not calling them anything. I think that the Bill calls them Members of the House of Lords, but they will not necessarily be Lords.
The noble Lord’s charge is that they will be less independent than they are today. I am not sure that that holds water at all. At the moment, Peers get appointed by their party leaders and presumably act accordingly. Under this arrangement they will be elected by the electorate, but once they are here they will not need to be reselected to stand again because it will for one term only. Do I agree with the noble Lord that they will intervene in improving scrutiny of legislation? I think they will. This Bill is now in the House of Commons. It is up to Members of the House of Commons to decide whether the noble Lord is right and whether that will aid the scrutiny of legislation or improve it. I believe that it will improve it and that elected Members of this House will be more assertive than the current House.
Lord Woolf
My Lords, I hope that the Leader of the House will agree that there has been a long tradition that when Law Lords retired they made a significant contribution to the deliberations of this House and that it is an important tradition to maintain. Will he tell me whether the special position of the Law Lords has been given consideration in the present Bill? It seems to me that it will be very difficult—if not impossible—for former Law Lords to become Members of this House through the appointment system.
Law Lords do not retire at a particularly youthful age. If the application for appointment to this House is to be made subsequent to their retirement, as one would expect, the prospects of obtaining Law Lords in this House is going to be remote. I understand that at present the appointment of independent Cross-Bench and other Members is at the rate of four a year. That will be reduced to two a year, which is hardly consistent with dealing with a category of that sort.
Lord Strathclyde
My Lords, I have every sympathy with what the noble and learned Lord says because I am one of many who voted against the constitutional vandalism of tearing out the Law Lords from this House five or six years ago. However, it is a bit like toothpaste; you cannot put it back into the tube. I think we miss the Law Lords and I think they probably miss us, which is why the noble and learned Lord is suggesting that we should find a way back. I have to tell the noble and learned Lord that there is no guarantee that they would be appointed by the Appointments Commission. However, I do not believe that because they are old they are of no further use to Parliament and to the nation, and after 2015 it may be that particularly eminent Law Lords will still be appointed.
Lord Cormack
My Lords, my noble friend has repeatedly told the House that at the last general election all parties had some form of commitment to election of this House in their manifestos—they were markedly different, I would remind him. That being the case, no elector in this country had the opportunity of expressing concern on this issue. How, therefore, in all logic can someone who prides himself on his democratic credentials—namely, Mr Clegg—possibly argue against the validity and fairness of a referendum on this very important constitutional subject?
Lord Strathclyde
My Lords, my right honourable friend the Deputy Prime Minister is really not at all convinced that there is a strong case for a referendum on this matter. Earlier, I said that the cost of a referendum would be around £80 million. At a time of economic austerity, this seems—
Lord Strathclyde
It is all very well noble Lords laughing at this. The public will see that they are laughing at a huge amount of public money being spent on a referendum when all three parties and the coalition manifesto said that there should be reform of this House.
Baroness Symons of Vernham Dean
On the contrary, I think that noble Lords were probably laughing at the transparent inadequacy of the answer. We now see on page 36 of the Bill the enormous constituencies that are proposed for electing Members of this House. There are eight of these huge constituencies and it will take the votes of millions of people to send Members to your Lordships’ House in the future. Does the noble Lord the Leader of the House really think that people sent here for 15 years with the backing of millions of votes are going to defer to Members of the House of Commons, who will be sent to represent constituencies with electorates of no more than 80,000 on a minute proportion of the votes for only five years? Self-evidently, Members of this House will be much more powerful than colleagues at the other end of the Corridor. I hope that the noble Lord will answer that in terms of how it will automatically affect primacy. I do not think that Members of this House will go on deferring to the Members of that House in the way that we do while we are unelected and they are elected.
Lord Strathclyde
My Lords, I agree with some of what the noble Baroness says: I think that elected Members will probably defer less than is the case with the current House. That of course is something that the House of Commons will need to take into account when it comes to its conclusions on this, and it is right that it should do so. There would be no point in doing this if this House were less assertive than it currently is. The fact that Peers will have been elected will give us an authority and legitimacy that we do not have at the moment. However, I think it will be argued by Members of the other place that the House of Commons has ultimate legislative supremacy because of the provisions of the Parliament Acts, because the Government of the day is formed from the party or parties that can command a majority in the House of Commons and because the House of Commons has control of financial matters. These are the protections for another place.
Lord Forsyth of Drumlean
My Lords, I strongly endorse what the noble Baroness, Lady Symons, has just said. Certainly, if I am elected to this House, I shall be very assertive. However, looking at the way that the list system operates, I am not sure that the Prime Minister will put me on the list, thereby completely destroying the independence of this House, upon which our constitution depends. I say to my noble friend that it is very important that this debate is conducted in accurate terms. I therefore ask him and his colleagues to desist from saying things which are simply not true; for example, the assertion, as contained in the Statement, that those who make the laws should be elected. This House does not make the laws; the other place makes the laws. Nothing gets passed into law without the agreement of the other place. If this is the principle upon which the Government are founding their ridiculous Bill—that those who are elected must make the laws—then does the reverse apply? If it does, how on earth can the primacy of the House of Commons be maintained?
Lord Strathclyde
My Lords, I have made the point about the primacy of the House of Commons and I stand by it. Of course it is an essential principle of democracy that those who make the law should be elected and of course it is true that this House makes the law, as we are going to be doing later this afternoon. My noble friend is right. No law becomes law without the agreement of the House of Commons. This afternoon, this law cannot become law without the agreement of the House of Lords.
Lord Williamson of Horton
My Lords, I am aged 78 and I expect personal decomposition before we ever agree on the composition of this House. I welcome what is in the Bill about the independent Members and the statutory commission but I raise one single question. How can the noble Lord the Leader of the House justify the phrase in the Bill that,
“present party political activity or affiliation does not necessarily preclude selection”,
as an independent Member? I do not think that that is right.
Lord Strathclyde
My Lords, I think the whole House would agree that the noble Lord looks to be in robust health and I wish him continuation of that for very many long years. The line he takes is the point made by the noble and right reverend Lord, Lord Harries. It is our view that non-party political Members will be appointed. There may be a case for saying that former eminent politicians who have no interest in continuing a party political role could be selected by the Statutory Appointments Commission, but it is a statutory commission and not one which is guided by party politicians.
Lord Pearson of Rannoch
My Lords, why did the Government ask Her Majesty the Queen to appoint a record number of new life Peers, all of whom are of course personally very welcome, so that we now have a record number of some 660 life Peers? Why did they do that when they were already planning to reduce us so drastically, perhaps to some 300? What has the Government’s logic been in this process?
Lord Strathclyde
I do not think that there is any difference. We decided there should be a transition arrangement over three parliamentary terms. That will give the existing House, including any new Peers appointed since 2010, the opportunity to remain here until 2025 if they survive that long and if they survive the process of transition.
Lord Howarth of Newport
My Lords, will the Leader of the House reconsider the reply that he gave just now to the noble Lord, Lord Forsyth? Will he accept that there are few, if any, who dispute the principle that those who make the laws of the land should be elected by those to whom the laws apply? But in the interests of ensuring that the Deputy Prime Minister does not mislead the House of Commons or the country, will he undertake to find an opportunity to explain to the Deputy Prime Minister that Members of the present House of Lords do not make the laws of the land but confine themselves to advising those who do—the elected Members of the House of Commons? Therefore, the whole project of this Bill is based on a fallacy, and a dangerous fallacy at that, because it would confuse and diminish the present clear-cut accountability of the Government to the people through their elected representatives in the House of Commons.
Lord Strathclyde
My Lords, all I can say is, you could have fooled me. I have seen the noble Lord robustly defend or indeed attack a piece of legislation in this House. But I meet with the Deputy Prime Minister very regularly and I shall draw the noble Lord’s remarks to his attention.
The Minister of State, Ministry of Justice (Lord McNally)
I think we will hear from the noble Baroness, Lady Saltoun.
Lady Saltoun of Abernethy
My Lords, what makes the Government think that, if this House is to continue to do what it is doing at present, 300 Members will be sufficient to service the committees and the offices that have to be serviced? I have worked out that 300 would not be nearly enough and that it would take 450 Members to do the job. Would the noble Lord care to comment?
Lord Strathclyde
I am delighted to end on a high note. The noble Lady is entirely correct in her assumption. That was also seen by the noble Lord, Lord Richard. The Government took that advice and there will now be not 300 Members but 450.
Crime and Courts Bill [HL]
(12 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Pannick
Lord Pannick
My Lords, in moving Amendment 117, I shall also speak to Amendments 118, 131 and 132, which address an issue of constitutional concern. The Bill would allow the Lord Chancellor to sit as a member of the appointments commission for the posts of Lord Chief Justice and president of the Supreme Court. The amendments would deny the Lord Chancellor such a role. The amendments are also in the name of the noble Baroness, Lady Prashar, former chairman of the Judicial Appointments Commission, the noble and learned Lord, Lord Woolf, a former Lord Chief Justice, and the noble Baroness, Lady Jay of Paddington, who is the distinguished chairman of the Constitution Committee, all of whom I am pleased to see in their places.
At present the Lord Chancellor can ask the appointments commission to think again about a proposed appointee, but the Lord Chancellor is not a member of the commission. The Constitutional Reform Act 2005 rightly recognised the need for a clearer separation of powers between the Executive and the judiciary. The change proposed by the Government would regrettably go back on that and it would have substantial disadvantages. First, it would increase the danger of political partiality in the appointment of a senior judge. I recognise, as I am sure will all noble Lords, that the present Lord Chancellor would not contemplate acting in such a manner, but even Mr Kenneth Clarke cannot continue in political life for ever. He is already above the retirement age for judges—a matter that we will be discussing later this afternoon. It would be highly undesirable to give a future Lord Chancellor the power so actively to influence the appointment of the senior judiciary.
The second disadvantage is that the Government’s proposal would undermine the appearance of political independence of the senior judiciary. There is a real danger that a new president of the Supreme Court or a new Lord Chief Justice would be undermined in the eyes of the public by being seen as the Lord Chancellor’s man or the Lord Chancellor’s woman. That would be most regrettable. Appearances matter in this context. There is a third disadvantage, which is that the Judicial Appointments Commission would inevitably find it more difficult to conduct an objective assessment of the rival candidates if it has the Lord Chancellor as one of its members. Indeed, the Bill implicitly recognises the dangers involved because it provides that the Lord Chancellor, if he does sit as a member of the appointments commission, may not chair it. It is unnecessary to give the Lord Chancellor the power to sit on the appointments commission with all the dangers that I have identified.
The Lord Chancellor undoubtedly has a proper interest in the appointments process and needs to work with the Lord Chief Justice. The Lord Chancellor and the Government need to have confidence in the president of the Supreme Court. However, the Lord Chancellor’s and the Government’s interests are fully met by the ability of the Lord Chancellor to be a consultee during the appointment process and by the current position which gives him the right of veto.
Your Lordships’ Constitution Committee, of which I am a member, conducted an inquiry into judicial appointments, on which we reported in March. The conclusion we reached in that report has been repeated in our report on the Bill, which was published on 18 June. In each of those reports, we stated, in relation to the role of the Lord Chancellor in the appointment process that any closer involvement—that is, closer than currently exists,
“risks politicising the process and would undermine the independence of the judiciary”.
I beg to move.
Baroness Prashar
My Lords, I endorse the comments made by the noble Lord, Lord Pannick. I expressed my concerns about this provision in the Bill at Second Reading, so I will not repeat them this afternoon. However, following the Second Reading debate, the noble Lord, Lord McNally, very kindly copied me into the letter he sent to the noble Baroness, Lady Jay of Paddington, which explains in more detail the Government’s reasoning behind the proposed change. I read it very carefully and I am not convinced by the rationale it advanced. The issue in question is the appropriate involvement and accountability of the Lord Chancellor. In my experience, the current arrangements work fine. If the consideration or rejection of the recommendation is based on clear and sound reasons, this presents no difficulty. Indeed, it helps to concentrate the minds both of the selection panel and the Lord Chancellor. It is very helpful to the parties concerned. Furthermore, the Lord Chancellor has appropriate involvement in the course of the selection process as he is consulted at relevant stages.
Under the proposed changes, the Lord Chancellor might choose to sit on a panel and lose his veto or choose not to sit on the panel in order to retain his veto. On what basis will the Lord Chancellor make that decision? I fear that his decision to sit on the selection panel will raise questions and suspicions which may not be healthy—both for the selection process and for the perception of why the decision has been made. I am therefore concerned both on constitutional and practical grounds. I do not see why we need to disturb the finely crafted balance of accountability and involvement that was arrived at in 2005.
Lord Goodhart
My Lords, the role of the Lord Chancellor is very different from that which existed before the 2005 Act came into effect. We have no certainty at all that future Lord Chancellors will take an equivalent role to that of the noble and learned Lord, Lord Mackay of Clashfern, who was an outstandingly strong and determined Lord Chancellor. The role of Lord Chancellor is now entirely different because it is, in effect, as ordinary a role as a Minister of the Government. It is not a role equivalent to that of the Lord Chancellor before the 2005 came into force.
Lord Woolf
My Lords, I agree entirely with what has been said so far about the inappropriateness of altering the Lord Chancellor’s position from that contained in the 2005 Act. I do not propose to repeat the reasons for that, since they have already been given. I will try to identify, however, one or two further reasons why the same conclusion should be reached.
The relationship between Parliament and the judiciary is central to the operation of our constitution and the Lord Chancellor’s ability in the future. I endorse what has been said about the present Lord Chancellor and I recognise his good motives, but the constitution as devised by the noble and learned Lord, Lord Falconer, and myself, first in the concordat and then in the Constitutional Reform Act 2005, referred specifically to the role of the Lord Chancellor being limited to giving either an affirmative response or applying a veto. That was done because it needed to be clear beyond peradventure that he had the responsibility of saying no to a recommendation of the Judicial Appointments Commission, if anyone was to do so. Because of that, if he did not exercise that power, the situation would be one where it could not be said afterwards that the Government of the day had not given consent to an appointment which was in fact made.
Secondly, there is a provision in the Constitutional Reform Act 2005 which provides that if the Lord Chancellor decides to exercise his veto, he has to do so openly and give reasons for it. If he is a member of the commission responsible for the appointment, the part that the Lord Chancellor plays will not be known. The experience in other jurisdictions is clear. One of the problems of having an independent appointments commission is that deals will be done. For example, if the Lord Chief Justice and the president are both up for appointment at the same time, it is only human nature for the commission to come to a decision. If the members of the commission do not all agree, they will give the Lord Chancellor either the Lord Chief Justice or the president, as long as they have the other appointment. That would be highly undesirable.
For example, it can be seen clearly in other jurisdictions that the Executive can control what the judiciary does if it can only achieve a senior judge who is sympathetic to its cause. I will cite but one example. One could assign a judge who is regarded as giving unhelpful decisions to parts of the jurisdiction that are unattractive in which to operate. So far, that has not happened here. We do not want to make it easier for it to happen than is the position at the present time.
My final point is this. The amendment must be looked at in conjunction with the amendment we considered on Monday whereby the Lord Chancellor would give up any responsibility for the appointment of the great majority of judges. We are going to have a situation where he does not exercise any powers in regard to a large number of judges and, in addition, he does not openly take an active part in the appointment of very senior judges. I suggest that such a position would be a retrograde one, and therefore the amendment is one that the Committee should look upon favourably.
Baroness Jay of Paddington
My Lords, I am pleased to follow the noble and learned Lord in the constitutional points that he and others have made in supporting this amendment. The noble and learned Lord, Lord Woolf, summed it up very well in his Second Reading speech when he said that if this provision in the Government’s Bill went through, the Lord Chancellor would be in a position of giving advice to himself, which in itself is anomalous, if nothing more.
As other noble Lords have made the constitutional points most effectively, I wonder whether I could raise just an administrative question with the Minister. It seems to me surprising that the Government should propose such a potentially flexibly arrangement for the Lord Chancellor in relation to these very senior appointments as it seems to be the Lord Chancellor’s personal choice whether he takes part in a selection panel or not. As far as I can make out from reading the Bill, this may mean that he decides to sit on appointment body “A” but not on appointment body “B”. A question arises about the consistency of the appointing panel’s approach. There is also the rather bizarre question about what happens if the Lord Chancellor decides that he will not be a member of that panel and the panel has been constituted, as we understand it, in the legislation. Who replaces him, how is that replacement chosen, and to whom is he responsible? For all the reasons that noble Lords have given, I suggest that this is both constitutionally and administratively inappropriate. That is why I would be very happy to support the amendment of the noble Lord, Lord Pannick, should he ask the Committee to give an opinion on it today.
I make one further point to reinforce the point which the noble Lord, Lord Goodhart, was making about the change in the Lord Chancellor’s position. This was confirmed in the hearings that the Constitution Committee held on this matter by the present office-holder himself, the right honourable Kenneth Clarke, when he said:
“I think that we will have a Lord Chancellor who is not a lawyer. The lawyers that we have, including me, will not be as senior and distinguished as they used to be ... A better understanding of my role would be to describe me as Secretary of State for Justice”.
That seems to underline the points about potential politicisation, which other noble Lords have made.
Baroness Butler-Sloss
My Lords, I agree entirely with what has already been said but I wonder whether I might add another point. I refer to a situation where a Lord Chancellor is not a lawyer or a very senior person but perhaps wants to make his mark in the political world and is much more overtly political than the present Lord Chancellor, who is very distinguished in his own right in the law. I ask the Minister to visualise the meeting of the commission. The Lord Chancellor is a member of the commission. He has a role as the Secretary of State for Justice, but he is only a single member among a number of people. Either he is going to be very powerful and he is going to override what everybody else wants, or he is not going to be very powerful, and he is going to be very dissatisfied with not being able to carry the commission with him. Either way would be extraordinarily unsatisfactory for someone who is head of the administration of justice in running the courts and has some responsibility for the judiciary. It is yet another point that leads me to support the amendment of the noble Lord, Lord Pannick.
Baroness Kennedy of The Shaws
My Lords, I too wish to support the amendment of the noble Lord, Lord Pannick. I see this part of the Bill as being one of those ideas which starts with good intent but has risks attached to it: it is the law of unintended consequences. I can understand that those who have looked at the appointment of senior judiciary and have seen the absence of women, for example, have thought that perhaps if somebody—the Lord Chancellor—were sitting on that panel, he would be able to represent more vociferously public concerns about the way in which appointments are recreating the same people. I can see that that was the intention of giving a role to the Lord Chancellor in the current appointment procedures.
However, we must be very conscious of the risks. We should be concerned about the way in which this could be detrimental to our constitutional arrangements and could be the beginning of a much more politicised role for the Secretary of State as Lord Chancellor sitting on such committees. I say this because, regarding the slide to such things, we always say, “Oh, it could not happen here”. I have just heard the decision made in Europe today that the new judge to be appointed to the European Court of Human Rights will not be the preferred candidate coming forward from Britain. The person appointed was pushed by the Conservatives in Europe and supported by Russia and Serbia. The best candidate, Ben Emmerson, one of our most distinguished human rights lawyers, did not get that role because of politicking of the ugliest kind. He was considered to be too protective of human rights.
We should be ashamed of what has happened in that appointment process and we should be aware of what happens when politics enters the fray in judicial appointments and how it can often lead to unsatisfactory outcomes. I raise this as a warning because it happens all too easily. The best candidate has been lost to the European Court of Human Rights and it has happened because of an ugly form of politicking.
Baroness Falkner of Margravine
My Lords, I fear that I will be in a minority of one, which is always a rather brave position, but it is important to put another perspective. That is what the House of Lords is very good at, so I rise to put that other perspective.
The Government’s position is essentially about whether the so-called nuclear option is the way forward or, as I would put it, whether the power to reject after the process, or influence, is the right way forward. I should have declared at the outset that I, too, am a member of the Constitution Committee, but I was not a member when its most excellent report on judicial appointments came out earlier this year.
I note the Constitution Committee’s recommendations in this regard. It states that the Lord Chancellor’s inclusion on a selection commission risks politicising the process, an argument which we have heard today. I draw noble Lords’ attention to the text of that report, which shows that the committee’s witnesses were in two camps; it was not a straightforward matter even at the time. There were those who thought that the current system was the only way to preserve the independence of the judiciary and there were those who believed that the political angle was invariably part of the greater balance of considerations. Among those who felt that the Lord Chancellor should have an increased role were Lord Justice Goldring, Jack Straw MP, a former Lord Chancellor, and the noble and learned Baroness, Lady Hale.
Even when resisting greater involvement, the Constitution Committee states at paragraph 25 of its report that it is important to maintain the connection between Parliament, the Executive and the judiciary partly so that,
“the government cannot entirely wash their hands of what is happening”—
I believe that those were the words of the noble and learned Lord, Lord Woolf—
“and partly to enable the Lord Chancellor better to defend the judges from attack by taking responsibility for the system which appointed them”,
which I believe were the words of the noble and learned Lord, Lord Falconer. The issue then is the extent to which the independence of the senior judiciary will be compromised if the Lord Chancellor sits as a non-chairing, non-voting member of the selection commission. We are talking of two instances only. We are talking of the positions of the President of the Supreme Court and the Lord Chief Justice.
Six years to evaluate the current system is a very short time—I am talking about the six years since the Constitutional Reform Act—but, in the longer term, a given Lord Chancellor may wish to exercise the right to reject or ask for reconsideration of a nomination. We also need to remember, in that context, that this Lord Chancellor, whoever he or she may be, will get only one name coming forward. He will not have a choice of three candidates, hierarchically or non-hierarchically ordered, and make a judgment as to which of those two or three might be the best candidate. He will have the very stark choice indeed of exercising the nuclear option—rejection—and I suggest that, as things stand under the Constitutional Reform Act, it would be virtually impossible to exercise that nuclear option. The noble and learned Lord, Lord Woolf, himself explained to the House that you have to give your reasons in writing for doing so.
Baroness Prashar
To describe the question of rejection or reconsideration as “the nuclear option” is not really appropriate because it is part of the process. I would use the word influence. In fact, the Lord Chancellor has the opportunity to discuss the process, is consulted at appropriate times during the process and is able to give a view of the kind of person he or she would like. So it is not right to call it a nuclear option. He has the opportunity to be involved and have a say in the process.
Baroness Falkner of Margravine
I am afraid that, unusually, I have to disagree with the noble Baroness, Lady Prashar. It is widely referred to as a nuclear option—we could call it the veto, perhaps, but it is very well known that it is a veto and a very final kind of veto, in that not only does one exercise the veto—if one chooses to do so—but one has to give reasons in writing for arriving at that decision. It is a very tough position to take. The pool from which the candidate would be drawn is so small and so intimately known to one another—the judges of the Supreme Court, for example—that a rejection would be known and would, indeed, indicate a significant level of political interference. It would inevitably get out that a veto had been exercised and people would draw their own inferences as to what had happened. I suggest that that would indicate a huge level of political interference. It would probably leak to the media; there would be wide speculation in and around the legal profession. It would truly be seen, I am afraid, as a nuclear option.
The reality of this provision is that it gives power to several other entities, but not to the individual who is, in the words of the Constitution Committee report, at paragraph 26, responsible and,
“accountable to Parliament for the overall appointments process”.
Baroness Butler-Sloss
Taking up what the noble Baroness, Lady Prashar, said, as I understand it this is not just a question of a name going to a Lord Chancellor who has no idea what has gone on before. If there was to be the slightest doubt that this candidate was not suitable, there would have been enormous discussions at a much earlier stage. It is almost inconceivable that somebody would go forward who was known to have reasons for not being acceptable and unless those reasons are such that the Lord Chancellor felt that he could say that, they ought to have been known already.
This does not work in isolation; the judges and the Lord Chancellor discuss a large number of matters extremely carefully over quite a long time. There is no isolation of the Lord Chancellor and his team from the senior judiciary and the appointments commission which is discussing this. I think that the noble Baroness is assuming that the Lord Chancellor is in an ivory tower, not knowing anything until the name comes to him. That is not the position.
Baroness Falkner of Margravine
I say to the noble and learned Baroness that if that non-transparent process that she describes, which sounds like the old game of clubbing together to fix it all up, is indeed accurate, there should be no reason for the amendment. In that case, if it is all so chummy, why not have the Lord Chancellor sit on the panel?
The power to veto seems to contradict Section 3(6)(a) of the Constitutional Reform Act 2005, which places a statutory duty on the Lord Chancellor to defend the independence of the judiciary. Not for the first time, one part of an Act—the duty to defend the independence of the judiciary—sits uneasily with the process as defined. Moreover, the process requires the Lord Chancellor to put his reasons in writing. I have already commented on that. It would be far better in increasing transparency and enhancing accountability for the Lord Chancellor to be a member of the selection commission —listening, participating and evaluating the candidate being questioned, without a veto over the appointment—than, after the fact, disagreeing with the selection commission.
In conclusion, I touch on the point made that either a very powerful Lord Chancellor would sit on the commission panel and influence it to go in the direction that he wanted; or, if the Government got their way, that the Lord Chancellor, having sat on the selection panel, could not persuade the panel of his views on an individual candidate and would be deeply dissatisfied because he did not carry the selection panel with him.
I argue that his potential for dissatisfaction would be greater if he had not exercised the veto and was therefore stuck with someone he found it difficult to work with. In fact, it could be said that he would take greater responsibility for working with a candidate with whom he did not entirely agree if he were on the selection panel and had been overruled. He would have been part of the decision-making, he would have been there and heard the argument why the majority of the commission wanted to go in a certain direction and would therefore have to suck it and see. On that basis, I have a lot of sympathy with the Government on the amendment.
Lord Thomas of Gresford
My Lords, going back some 25 years, I remember being warned in 1987: “You realise, don’t you, that Mrs Thatcher has never appointed anybody as a High Court judge who has been overtly political?”. I was about to stand for the 1987 election. I stood; I lost for the eighth time; but that did not dissuade me. My point is that then, how the system worked was completely opaque. You did not know what recommendations were being made. You did not know when you had scored a black mark. I recall a close colleague once seeing his file in the Lord Chancellor’s Department, which said in terms that he had fought and lost eight elections as a Liberal candidate—he was so close a colleague that he had been mixed up with me. I am sure that that held him back for a long time from obtaining the appointment that he ultimately did.
I was slightly shocked to hear that we still have a non-transparent system whereby the Lord Chancellor is consulted and becomes involved in the appointment of judges, although there is nothing formal about it. I did not know that. It is opaque. The Bill makes it absolutely transparent that the Lord Chancellor will play a part, and I think it is very good that he should. He should listen to other people who are high in the profession and to what a lay person thinks of a particular appointment. His view may change. I do not think that the Lord Chancellor would necessarily dominate such a selection committee, certainly not if he has a political angle. There may be a toing and froing of views within that committee but we will know that it is happening because he is on it. Consequently it will be a far more satisfactory system than what we have heard is happening now: the Lord Chancellor, without it being in any statute, is involved in some way. That is wrong and I think that the Bill is preferable.
Lord Falconer of Thoroton
I was rather appalled by the mischaracterisation by the noble Lord, Lord Thomas of Gresford, of what the noble and learned Baroness, Lady Butler-Sloss, said. My experience as Lord Chancellor, when not making the appointments, was that I remained regularly in touch with the judiciary. If I had not remained regularly in touch with the judiciary on issues such as the funding of courts and the difficulties that the judges were facing, I would have regarded myself as not performing my job as Lord Chancellor correctly. If you are a Lord Chancellor—or now, Secretary of State for Justice—who does not know the leadership of the judiciary, that would be a very bad thing. Indeed this idea expressed by the noble Lord, Lord Thomas of Gresford—that it is in some way a sort of secret-sounding basis—is wrong. I am sure that his misunderstanding was not deliberate. He was looking back to a time 20 years ago when he was looking for a position.
This side of the Committee supports the amendment tabled by the noble Lord, Lord Pannick. We earnestly ask the Government to think again about this provision. Perhaps I may explain why we take that view. The basis of the settlement reached and approved in the Constitutional Reform Act 2005 was that the time had come for the appointment of judges to be clearly depoliticised. The justification for the process that then existed was that although the Lord Chancellor was Labour or Tory and appointed by the Prime Minister, he nevertheless had especial independent roles that made it possible for a political appointment to appoint the judiciary.
We in the then Government took the view, supported by the Liberal Democrats and endorsed by both Houses of Parliament, that in a period of time and a generation where people had to have complete confidence that the judiciary was not being appointed on a political basis, there needed to be a structure in which people would have confidence that you were appointed on your merits as a respected judge. That was the basis of the constitutional settlement reached. Those who considered it in detail were of the view—and I agreed with this view—that the state, the Executive, had to have a stake in the appointment of judges so that there was part of the Executive in Parliament that would defend the system and defend the appointments. That is why the Lord Chancellor has the power to veto some appointments and to reject others.
It is incredibly important for the standing of the judiciary and the separation of powers that that essential separation—that essential constitutional settlement—not be affected. The proposal made by the coalition goes right to the heart of that constitutional settlement. Bringing the Secretary of State into the process would not even have the redeeming feature of the old-style Lord Chancellors, which is that they had an independent role as a judge as well as being a politically appointed Minister. What Ken Clarke said about his role—my noble friend Lady Jay has quoted it—exactly reflects what the constitutional settlement envisaged; namely that he should be a member of the Cabinet with a particular statutory duty as imposed in Section 1, but essentially a political Minister without anything else to distinguish him from other Ministers in the Government. The two roles that we are talking about here are the president of the Supreme Court and the Lord Chief Justice. The president of the Supreme Court is probably the most important judge for the whole of the United Kingdom. The Lord Chief Justice is undoubtedly the most important judge for England and Wales.
The proposal envisages that the commission appointing the president of the Supreme Court should consist of one person who is not legally qualified, one judge of the court, one member of the Judicial Appointments Commission for England and Wales, one for Scotland and one from Northern Ireland, and, if he chooses, the Lord Chancellor. I know Ken Clarke well and admire him greatly. I have absolutely no doubt that, in a group such as that, he would have no difficulty in ensuring that his choice was obtained. The noble Lord, Lord McNally, is shaking his head, but I tell noble Lords that Ken Clarke’s choice would prevail. It would not just be a matter of appearance; it would be a matter of actuality. Go forward in time and imagine someone not of the ethical quality and standard of Ken Clarke as Lord Chancellor. For example, there is the example given by the noble Baroness, Lady Kennedy of The Shaws: “I don’t want the best lawyer; I want the person who is most against the Human Rights Act”. That is a perfectly conceivable position for a Lord Chancellor to take.
Baroness Falkner of Margravine
That is absolutely not what I said; that is a mischaracterisation entirely. I said that if a Lord Chancellor exercised a veto and rejected a candidate and, as he would have to, gave his reasons for doing so in writing, given that it is such a small and intimate community, not only would everyone else know that this had happened but inevitably it would leak into the legal papers. That is what I was saying. I was not saying that the transparency would come from the leak but that huge damage would be done by that happening.
Lord Falconer of Thoroton
As I understand it, the noble Baroness, Lady Falkner, is saying that gossip would be the way that transparency would come. No? Explain again.
Baroness Falkner of Margravine
Forgive me. I am describing what could potentially happen; I am not saying that that would be transparent. All I am trying to say is that very few vetoes are exercised. There are vetoes in other positions as well—the Prime Minister has the power of veto over several other appointments, for example—but apparently they are seldom used; I could find the figures for the noble and learned Lord. I think that one of the reasons why they are so infrequently used is the damage that it might do if it got out that they had been used.
Lord Falconer of Thoroton
I think that there is a misunderstanding here. As I understand it, the noble Baroness is saying that when the veto is used it is kept secret. It is not, so there is no question of gossip. The Lord Chancellor is willing to use that veto where appropriate. I have no problem with that and it does not cause difficulty. In the proposed system, there would be no transparency about the role that the political Minister had played; indeed, it would be assumed that he or she was the person who had dominated the process. It would profoundly undermine the settlement. At the moment, I can see no benefit from it. I have not had the pleasure and privilege of reading the letter that was sent to the noble Baroness, Lady Prashar. I have heard the speech of the noble Baroness, Lady Falkner, which was very persuasive in many respects. However, I am unable at the moment to see the basis for departing from a constitutional settlement that is intended to ensure the sanctity of the process. It is an independent process in which one is judged on one’s merits, and it keeps politics out of it except for the exercise of a transparent veto.
Lord Thomas of Gresford
Would the noble and learned Lord not agree that it was not the best moment in the appointment of the judiciary, and that it does appear that political influences were coming into the question of who was to be appointed? Would it not have been better for the difficulties and the problems between the Lord Chancellor and the appointments commission to have been sorted out in a committee, such as that proposed in this Bill?
Lord Falconer of Thoroton
Game, set and match to this side. As I understand it, the noble Lord is asking whether it is so wrong that people might think that political influences have been brought to bear on the appointment, because the Lord Chancellor, performing a constitutional role, says explicitly “I don’t want”, or “I am thinking of vetoing”, the choice that has been made on legal merits. As I understand it, the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Falkner of Margravine, are saying, “Let’s keep all the political influences secret”. The noble Lord is shaking his head; I am not sure what he has in mind.
Lord Thomas of Gresford
I am not saying that. I am saying that had the Lord Chancellor been able to discuss in a committee—such as that is proposed—the merits of the particular candidate, we would not have had something which did not do the judiciary any good.
Lord Falconer of Thoroton
If the Lord Chancellor said “I want this candidate” and persuaded everybody, none of that would have been apparent. People would doubt the independence of the appointment from the political situation, or the political influences on the position. Do not be under any illusion; if the Lord Chancellor proceeds with this proposal, those people who have had dealings with the constitutional settlement will think that he is, without properly understanding it, going against the basis of the constitutional settlement which the noble Lord, Lord McNally, worked so hard to get through. As he said on Monday, the noble Lord, Lord Goodhart, was one of the main Liberal Democrat architects of the constitutional settlement, as was, as he also acknowledged on Monday, the noble and learned Lord, Lord Woolf. What on earth is the reason for so undermining the political independence of the judiciary?
For these reasons we support the amendments that are being made. If, as I think is unlikely, they are put to the vote today, we will support them. I earnestly ask that the Minister reconsiders the Government’s position on this, and the Lord Chief Justice’s position. It would be a really bad idea if people thought that a Conservative or Labour Secretary of State for Justice, not the Lord Chancellor, had appointed the Lord Chief Justice and the president of the Supreme Court.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I am grateful to those who have taken part in this, which is an interesting and important debate on a very important constitutional issue. I am not sure that I share the analysis of these proposals. As I said before, the Lord Chancellor is determined to defend the separation of powers and the independence of the judiciary. We are committed to the constitutional settlement that was brought in by the noble and learned Lord, Lord Falconer, when he was in office. But, as I said earlier, we are making proposals which, with the passage of time, improve on that settlement. The debate today is part of that.
Interestingly enough, I was flicking through Hansard for Monday evening. The noble and learned Lord is always passionate and eloquent, but he was particularly passionate and eloquent then. He was urging us not to take the Executive out of decisions on appointments in the lower courts. Well, that is what it says.
Lord McNally
Yes. Perhaps the noble and learned Lord would like to turn to column 112 of the Hansard of 25 June when, as I say, he was quite passionately making the case for the Executive being involved.
Lord Falconer of Thoroton
Indeed I was. The noble Lord, Lord McNally, was agreeing with me that the way you do it is to have an independent process of appointment which the Executive must endorse, or not, so that there is somebody responsible in Parliament to defend it. Does the noble Lord agree with that approach?
Lord McNally
The noble and learned Lord was saying that the Executive should be kept in the process. The noble and learned Lord is marvellous; he spends half his interventions twisting the words of people who disagree with him, and when anybody tries to put him right, he starts protesting.
Of course the Lord Chancellor is accountable to Parliament. That is central to the settlement. He is responsible to the public for the overall process of judicial appointments and the effective working of the judicial system. It is important, at this very senior level of the judiciary, that as well as possessing first-rate judicial skills, candidates for the leadership roles are alive to the management and administrative issues that affect the administration of justice and are able to work with the Government on developing the system. This is an area where the view of the Lord Chancellor is likely to be of particular importance. This is therefore a legitimate role for the Lord Chancellor to play in the most senior judicial appointment.
I know that the noble and learned Lord has a kind of sense of ownership of the constitutional settlement.
Lord McNally
Well, if he is happy to change it, perhaps he will listen to the argument for making just the smallest tweak in the perfect construction that he left for us. That means that it should be balanced appropriately against judicial and lay input into the process. It should respect, as I have said, the independence of the judiciary.
Lord Falconer of Thoroton
Lay input is how you get management experience, I agree. What is wrong with the non-legally qualified person, the member of the Northern Ireland commission, the member of the Scottish commission and the member of the English commission? There is a quite substantial balance of lay people already.
Lord McNally
We had a very vigorous discussion about this when we had a second go in front of the Constitution Committee. Looking at those three top jobs—the presidency, the Lord Chief Justice and the Lord Chancellor—I was struck by the fact that it is not just judicial excellence but a whole fingertip interrelationship that makes those three jobs work. That is why the Lord Chancellor is arguing, and I am convinced of this—it is not just a matter of me saying, “The Government believe”—that an input into the selection process at the selection board—
Lord Woolf
I speak as one of the three the Minister refers to. Does he not agree that there is a danger of those three being too cosy? That would be in a situation where they do not feel that they can take a separate line from the Lord Chancellor, who controls the resources and is particularly powerful. All I can say is that if he does take that view, he should remember that my very distinguished predecessor, on one particular occasion, refused to see the Home Secretary of the day and the Home Secretary was deeply offended. That was because he did not think much of that sort of cosiness, which I know to the Minister is very attractive. With my experience, I am bound to say that he is wrong. He should listen; there are times to be cosy and times not to be cosy. That is something that needs to be taken into account.
Lord McNally
This is my problem as a simple lad dealing with these Silks. I have never used the word “cosy” about the relationship. I have had a chance look at the relationship in the last two years; the last way I would describe the relationship between the Lord Chancellor, the noble and learned Lord, Lord Judge, and the noble and learned Lord, Lord Phillips, is “cosy”. It is businesslike; it is working; but it has an interrelationship which I think is important.
Giving the Lord Chancellor a role in these appointments is not new. As has been said, he already has a role in deciding whether to accept or reject the recommendation of a selection panel. The question is, therefore, how should that input be realised? I understand the different views put forward in the debate, but the Government’s view is that, for these two most senior appointments, given their significant role in the administration of justice, the most appropriate way of achieving this input is to allow the Lord Chancellor to sit on the panels. He can then consider the views of other panel members, submit his own views and engage with the panel members in a meaningful discussion about candidates.
The current system allows the Lord Chancellor to veto a selection panel’s recommendations. This is in itself a major role, but may be viewed as something of a nuclear option—that is what it says in my briefing notes. I think that that option is the one that could only be used in exceptional circumstances and with potentially a heavy price for the relationship with the judiciary and perception of political interference. I do not necessarily agree that these perceptions would be justified, but they are certainly factors which would inhibit the use of the veto. In place of the veto, Schedule 12 provides for a more effective engagement.
A fear has been expressed that this would give the Lord Chancellor disproportionate influence and that the present Lord Chancellor would dominate the proceedings. Perish the thought. Being on the panel, or even having that Lord Chancellor on the panel, would not necessarily mean that the Lord Chancellor would ultimately get his way on the individual appointed, but it would mean that he would have the opportunity to be engaged in the process and make his views known to the other panel members. We are talking about a panel of heavy hitters—a lay chair, plus senior members of the judiciary and appointment commissioners who are strong and independent-minded individuals. They will not simply fall into line with the Lord Chancellor of the day. The Lord Chancellor would have an opportunity to make his case but could also be persuaded of a contrary case by other panel members. However, where the Lord Chancellor does make a persuasive case of the merits of a particular candidate, this could be weighed in the balance in the same way by other panel members.
There are, of course, other possible ways of securing the input of the Lord Chancellor, but we do not consider that any are as effective as our proposal. We could, for example, allow the Lord Chancellor to select a candidate from a shortlist, or through some form of parliamentary hearing. However, we consider that the risk of politicisation of the process from these options is far more acute.
Another option would be to consult the Lord Chancellor at the start of the process. There is nothing wrong with that, but we consider that this is not as effective as having the Lord Chancellor be a member of the panel and be able to put forward his views, listen to the views of others and engage with them in a meaningful way.
Baroness Butler-Sloss
I wonder whether the Minister could answer a point that he has not yet answered, which has been made by several people. There is a perception that if the Lord Chancellor is on the panel, the appointment will be politicised. For those who do not know the process but see that the Lord Chancellor has been one of those who has appointed the Lord Chief Justice, there will be a perception, certainly among lawyers and much more widely, that the Lord Chancellor has had a very large part to play in making that person the Lord Chief Justice and that it would be the sort of person who would suit him.
Lord McNally
I was about to come to the interventions of the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Prashar. I do not think that my noble friend Lady Falkner got it wrong at all, despite her being bullied by the noble and learned Lord, Lord Falconer.
Lord Falconer of Thoroton
I apologise to the noble Baroness, Lady Falkner of Margravine, who I have never thought of as someone who it was possible to bully. However, if the noble Lord, Lord McNally, was under that impression, that just goes to show how wrong perceptions can develop.
Lord McNally
Turning to the other noble Baronesses, to get them going as well, there did seem to be a suggestion of, “Don’t worry, because the present system already has the nudges, nods and winks that will get”—
Baroness Prashar
I do not want to go into detail but, as the noble Lord knows, I had the privilege of being involved in some of these selection processes. When a selection panel is set up, there is a proper, transparent way of consulting at the appropriate time. There were no nudges and nods. In my initial submission, I said that I think that the present system works because, if there is a rejection or a reconsideration, it focuses the mind and is done in an open way. It is the inability of the people to be discreet that muddies the water. It is a most gossip-ridden world. In other worlds, when appointments are made, people respect confidentiality. However, the process was very open and transparent. Therefore, there is no question of nudges and nods.
Lord McNally
If it is such a gossip-ridden world, the better it would be to have the Lord Chancellor fully and transparently in the process. I am afraid that all that one can say is that strong opinions are held.
Baroness Jay of Paddington
I am a non-lawyer who, I am glad to say, was not part of the constitutional settlement in 2005. If the noble Lord described himself disingenuously as a simple lad, I am even worse as a simple laddess. I am trying to get a vision of this construct that the Minister has explained of either my noble and learned friend Lord Falconer or the present holder of the office of Lord Chancellor, the right honourable Kenneth Clarke, being subdued members of a totally egalitarian panel on which the merits of the candidates are discussed in a constructive and totally relaxed way, and the subdued and reticent Lord Chancellor finds himself in a minority. Should the panel recommend that Judge X becomes a member of the Supreme Court, the Lord Chancellor, having been this subdued and reticent member of the panel, could feel that it is wrong. What, then, are the prospects for effective working between them?
Lord McNally
Quite often in politics, in the law and in other parts of life, one finds oneself working with someone whom you do not particularly like. The difference this time is that there would be no political veto to that committee’s decision. It is worth putting on record that this would be a Lord Chancellor withdrawing his veto from those appointments. Yet, with his silken sophistry, the noble and learned Lord, Lord Falconer, implies that this is an extension of political power. It is just the opposite of the extension of political interference.
Lord Falconer of Thoroton
I was not implying it; I was saying it expressly, because that is plainly what is happening.
Lord McNally
It is simply not true, and anyone who is looking at this sees that it is a move away from a politician being able to exercise a veto to a politician transparently taking part in a process. If the Members of this Committee cannot see that, we will presumably withdraw it or take it back.
Lord Beecham
What, in the experience of the past seven years, has revealed defects in the present system?
Lord McNally
It has been the feeling that the retention of a veto in this matter was keeping in the political process.
Lord Falconer of Thoroton
So why is a veto being kept for every other member of the Supreme Court, every member of the Court of Appeal and every member of the High Court?
Lord McNally
I have explained before that this unique triumvirate is very important, and that that is why we have adopted a very distinctive way of making this selection. I am not sure how far I can take the Committee, except perhaps to read from the letter that I wrote to the noble Baroness, Lady Jay, which the noble and learned Lord, Lord Falconer, said he had not had the pleasure of sharing. In that letter I said: “At the present the Lord Chancellor decides at the end of the selection process whether to accept or reject the name put forward by the panel or to ask for the panel’s decision to be reconsidered. In practice, under these current arrangements it may be difficult to make use of the veto in these high-profile cases without risking perception of politicisation of the process. This difficulty was acknowledged by Lord Phillips and others in their evidence to your committee”—that is, the committee of the noble Baroness, Lady Jay. “The Government therefore considers that allowing the Lord Chancellor to sit on the panel will enable his accountability to be exercised in a more direct and effective way. You will, of course, be aware that the Lord Chancellor’s involvement as a member of the selection panel was supported in evidence to the Constitutional Committee by both the Lord Chief Justice and the president of the UK Supreme Court”. So I am not isolated in this view.
Lord Goodhart
My Lords, is it not more difficult for the Lord Chancellor to object to someone publicly rather than to discuss the appointment in a group of which he is a member? Does that not mean, therefore, that if the Minister tries to remove the person, he will do so only if there is very strong evidence to show that it is an unsatisfactory appointment, whereas if he is part of a group, the other members of the group might be more likely to go along with what the Minister says at that point?
Lord McNally
I have to say that if I was a member of a body charged with selecting a Lord Chief Justice or a president of the Supreme Court, no Lord Chancellor, however strong willed, would make me change my views unless his arguments were extremely persuasive; and I would expect the same respect for my views. We are not talking about a group of pussycats; we are talking about some very senior figures with great experience. I can see that those who have attended this Committee do not agree, but the simple fact is that we consider that our proposals strike the right balance in providing both the legitimate accountability for the executive in these roles and an independent and transparent process. They take away a political veto and put in its place a transparent involvement in a selection. I have set that out very clearly for the Committee.
Baroness Neuberger
I am sorry to ask the Minister this, but surely the presence of the Lord Chancellor on a committee of selection is a political statement in itself. It is worrying that the Minister should say that it removes a political presence. It just moves the position from what is a very public veto if, at the end of an independent process, the Lord Chancellor decides that he does not wish to go along with a recommendation to something that is less public but just as political. I find that really worrying, and I know that I am on record as saying that it is a constitutional disgrace.
Lord McNally
That is the noble Baroness’s opinion, but, again, she is suggesting words that I never used. I did not say a “political presence”. What I said was that, to me, the political veto was the intrusion into the process. It has been acknowledged by a number of contributors that if the Lord Chancellor is not in this narrow world where the decision and the selections are made, he will be the elephant in the room. This process gives the Lord Chancellor the chance to have an input in a selection but, as opposed to what the noble Baroness, Lady Neuberger, suggested, he will not have a veto. When the panel makes its decision, there will be no political veto. I should have thought that that would be welcomed by this Committee.
Lord Martin of Springburn
Perhaps I may ask the Minister about one point on which I would like clarification. It has been fascinating to listen to both sides of the argument. The Minister mentioned a lay chairman or chairwoman. From what walk of life would a lay chairman or chairwoman come?
Lord McNally
I shall have to take advice on that. I should have thought that he or she would come from the court of cardinals. I am not sure, but it would undoubtedly be a chairman or chairwoman of distinction and merit who had experience in these matters.
Lord Woolf
Might I suggest the former chairman of the commission, who is present here today.
Lord McNally
I saw her shifting slightly and thought she was going to volunteer to come back to the job.
Baroness Prashar
I thank the Minister for giving way. I now want to turn to another point on which I and the noble Baroness, Lady Jay, asked a question. The provision states that the Lord Chancellor “may” sit on the panel. If that is the case, on what basis will he decide to sit on the panel? If he decides to do so, will that not send a different signal? Will it not suggest that there is a reason why he wants to sit on the panel or a reason why he decides not to do so? I think that that will create an unhelpful perception.
Baroness Jay of Paddington
The noble Baroness, Lady Prashar, mentioned that I also raised a point on this matter. If the Lord Chancellor decides not to sit on one of these panels, does he not retain the right of veto, and that therefore the disappearance of the veto, on which the Minister has been relying so greatly, is not in fact universal?
Lord McNally
No. I am very grateful to the noble Baroness because I should have clarified this point. The Bill says that the Lord Chancellor “may” be a member, but we intend to bring forward regulations setting out that the Lord Chancellor “will” be a member of the panel. This will not be able to be changed other than by a new regulation, which will be subject to affirmative procedures and agreement and to the agreement of the Lord Chief Justice and the president of the Supreme Court.
Lord Falconer of Thoroton
I would be rather averse, as would this House, to the constitution being changed in this way by regulations.
Lord McNally
I take note of what the noble and learned Lord says. I am merely saying what the intention is. Clearly—
Lord Falconer of Thoroton
I say that it is a deceptive question for the reasons that underlay the question of my noble friend Lady Jay. We thought that sometimes you would and sometimes you would not, but apparently you are always going to be a member of the panel.
Baroness Butler-Sloss
I am sorry—this is only my second intervention but it is my last one. Something as important as this should not be put in a regulation. Why can there not be a government amendment on Report so that we know where the Government stand?
Lord McNally
I shall take that question back. In the mean time, the Government’s case has been set out. The trouble with the noble and learned Lord, Lord Falconer, is that he listens only to himself and is then convinced by all the arguments that he hears. I have listened to others in the Committee. We are in the debt of the noble Lord, Lord Pannick, for stimulating such a debate. However, if he wants to divide the Committee, I am reasonably confident that he will lose.
Lord McNally
Try me. I think that the issues that have been raised are such that it would be better to have another run at them on Report.
Lord Thomas of Gresford
My Lords, before the Committee sat I informed the noble Lord, Lord Pannick, that I was fairly relaxed and neutral about his amendment. However, the more I have listened to the argument, the more I have come down on the Government’s side. I recall the very unseemly row when the former Lord Chancellor’s veto was exercised in relation to an appointment, and I believe that I put down a Parliamentary Question. I think that he reversed his decision before I got the Answer, but I certainly tabled a Question about it. There was a furore at the Bar and I was approached by many people to do what I could to defend the reputation of a person who was considered to be the best judge in a particular division. It was extremely unseemly and the Lord Chancellor backed down. What did that say? He had given his veto and then he withdrew it and the appointment went ahead. All these matters should have been sorted out but not in such a public way as to damage the reputation of the person concerned and damage the reputation of the Lord Chancellor, if it needed to be damaged any further. It did not resolve the situation.
I have heard the debate and, as I understand it, the Lord Chancellor does have discussions behind the scenes with the Appointments Commission. That is what was said in terms by the noble Baroness, Lady Prashar. I do not think that that is right. I think we should have an open system. She said that it was open and transparent. It was not—I did not know about it, although I was sufficiently involved to put down a Parliamentary Question about the matter in issue.
Lord Falconer of Thoroton
How would the discussions between the Lord Chancellor and the other members of the committee that the noble Lord envisages be transparent?
Lord Thomas of Gresford
The fact that it is happening is transparent. That is where the argument can be held and not in public, which damages people’s reputations. The noble Lord said that the Lord Chancellor will always have his way. What sort of a pushover does he think these people in the commission are that they will simply bow down to a political figure? I do not believe that the chairs of the Judicial Appointments Commission in Northern Ireland, Scotland, England and Wales are going to follow a political lead because the Lord Chancellor does not like someone on political grounds. He may have some knowledge that does not involve the politics of the matter and that would persuade the other members of the commission, but I do not think that he would persuade them on political grounds, which is what the noble and learned Lord, Lord Falconer, said. He nods. Perhaps he was a very persuasive Lord Chancellor in private.
Lord Falconer of Thoroton
Under the new system, I would have the power. That is the point.
Lord Thomas of Gresford
He had the veto, although I do not think that he ever exercised it.
Lord Falconer of Thoroton
I never exercised the veto, although my successor considered it and everything was open.
Lord Thomas of Gresford
Why did he exercise it? We do not know. Did he say so at the time? He did not say, “For political reasons I do not want that person as the head of the division”. He did not give us his reasons. It was not discussed with anybody. He just vetoed that appointment and it was unfairly damaging to the person concerned.
Lord Pannick
I am grateful to the Minister, who says that he has been listening. I am sure that he has been, and I have listened to what he has said. I will certainly want to reflect, as I am sure the House will, on what the Minister described as a very important debate—and he is right. This goes to the heart of the relationship between the Executive and the judiciary. The Minister said that it is important to keep the Lord Chancellor in the process because the Lord Chancellor is responsible to Parliament and these are appointments at the very apex of the system. The Minister is right and no one disputes that the Lord Chancellor must have a role. The question is whether that role is best fulfilled as a member of the appointments commission.
The Minister and the noble Baroness, Lady Falkner of Margravine, emphasised that the veto is a nuclear option. There are two points to make about the Lord Chancellor’s existing powers. First, the fact that the veto is so difficult to exercise in political terms is highly material to the influence that the Lord Chancellor currently has. We need to be very careful about expanding the political role of the Lord Chancellor, or at least the political potential for involvement, through an appointments commission process. The second point, which has been made very forcefully by noble Lords who know how the system works, is that the Lord Chancellor at present does not just have a veto which is difficult to exercise. He can and does make his views known to the appointments commission during the process of consideration for appointment to these posts. There is nothing improper or secret about that. It is not a question of nudges and winks. It is called consultation. Plainly, the Lord Chancellor is entitled to be consulted by the special appointments commission that is going to appoint to these highly important posts. If the current system has defects, the alternative proposed by the Government is far worse, for all the reasons that have been pointed out, and no more transparent.
I will certainly reflect on this debate and I am sure the whole House will want to reflect on the matter and return to it on Report. I hope that the Government will reconsider this question over the summer and I am sure that if, as we have been told today for the first time, it is the Government’s intention that the Lord Chancellor will sit on the appointments commission, it is highly desirable that the Bill expressly makes that clear so that we all know what the Government intend on this matter of fundamental constitutional concern. For the moment, I beg leave to withdraw this amendment.
Lord McNally
Lord McNally
My Lords, I can be relatively brief with this group of amendments as they are essentially technical in nature. Amendment 123 modifies amendments to paragraph 11 of Schedule 12 to the Constitutional Reform Act 2005, which concerns the appointment of the vice-chairman of the Judicial Appointments Commission. As drafted, paragraph 19 of Schedule 12 to the Bill amends the 2005 Act to provide that the Lord Chancellor may, with the agreement of the Lord Chief Justice, make regulations to provide for the appointment of the vice-chairman. On reflection, while we continue to believe that greater flexibility is needed for determining the composition of the Judicial Appointments Commission, provisions about the chairman and vice-chairman are matters which ought to appear in the Constitutional Reform Act 2005. This amendment restores the requirement that the vice-chairman must be a judicial member. As now, the vice-chairman will continue to be the most senior judicial member of the commission. Determining which judge is the most senior will be done by reference to regulations made by the Lord Chancellor with the agreement of the Lord Chief Justice.
Amendment 123 also retains the current restriction that the vice-chairman cannot deputise for the chairman in relation to his or her role on selection panels relating to appointments to the most senior judicial offices. This is because in these instances the role necessitates a lay rather than judicial member. Additionally, the vice-chairman will be unable to exercise the functions of chairman where the function is one specified in regulations to be made by the Lord Chancellor with the agreement of the Lord Chief Justice.
Amendment 124 amends paragraph 27 of Schedule 12 to the Bill so as to add to the list of judicial appointments below the High Court for which responsibility for making a decision on a selection by the Judicial Appointments Commission is to be transferred from the Lord Chancellor to the Lord Chief Justice. The appointments in question are those for a senior district judge or chief magistrate and a deputy senior district judge or chief magistrate. The other amendments in this group, namely Amendments 119, 122, 125 to 130 and 133, make minor and technical changes to the provisions in Schedule 12. I can provide further details of these amendments if needed. I beg to move.
Lord Pannick
“8A Section 35(3) of the Constitutional Reform Act 2005 is repealed.
8B A judge of the Supreme Court shall vacate that office on the day on which he attains the age of 75.”
Lord Pannick
My Lords, this amendment is in my name and the names of the noble Baroness, Lady Jay of Paddington, and two former Lord Chancellors, the noble and learned Lords, Lord Irvine of Lairg and Lord Mackay of Clashfern. It concerns the retirement age for judges of the Supreme Court. The Judicial Pensions and Retirement Act 1993 lowered the retirement age for the judiciary from 75 to 70, with an exception for those first appointed to judicial office before 31 March 1995. There is a strong case for raising the retirement age back to 75 for Supreme Court judges.
Judges are joining the Bench at a later age than their predecessors. It then takes time for them to rise up the career ladder to reach the Supreme Court, typically in their early to mid-60s. Since those appointed to the Supreme Court are, by definition, the very best of our judges, it is particularly unfortunate that we are disposing of such valuable resources after they have served a short time in office. This argument is specific to the Supreme Court. It is not the case that if the retirement age for Justices of the Supreme Court was to be raised to 75, the same must follow for the magistracy and for all levels of the judiciary in-between. The fact of the matter is that judicial wisdom and experience at the highest level is being lost to our courts, although not to the field of arbitration where retired judges from the Supreme Court are very much in demand for much higher fees than the Lord Chancellor’s department is prepared to pay.
There is no basis for concern that judges tend to lose their mental and physical powers after the age of 70 and up to the age of 75. It is important to recall that these judges are not hearing exhausting witness trials but considering stimulating points of law. Nor is there any basis for concern that a retirement age of 75 in the Supreme Court would result in a court that is less attuned to modern society. Experience is to the contrary. The Appellate Committee of this House and now the Supreme Court are far more innovative than the Court of Appeal, where the average age of the judges tends to be a decade younger.
Nor is there any basis for concern that a retirement age of 75 would hinder the promotion of diversity, an important value that we discussed last Monday. Despite most of the members of the Supreme Court retiring at 75 in recent years—the same was true of the Appellate Committee—there has been a steady flow of vacancies. The appointment of only one woman to the Appellate Committee and to the Supreme Court and of no one from the ethnic minorities, regrettable though that is, has been caused by the perceived lack of suitable candidates and not by any lack of vacancies. Indeed, increasing the age limit to 75 may well enhance the prospects for appointing more women, as so many female judges and lawyers have taken many years out of their careers for family care reasons and may find it more difficult than men to rise to the top by their early 60s.
In our report in March, your Lordships’ Constitution Committee recommended that the retirement age be increased to 75 for Supreme Court judges and for Court of Appeal judges. We advised increasing the retirement age because,
“proven judicial quality and experience are at a premium in the development of the law”.
This amendment focuses only on the Supreme Court because the arguments are especially strong at that level. I look forward to hearing from the Minister the Government’s view on this important topic. I beg to move.
Lord Hart of Chilton
I support the amendment for the reasons given by the noble Lord, Lord Pannick. I must declare two interests. First, I was a member of the Constitution Committee and heard the evidence and, secondly, some of my best friends are between the ages of 70 and 75. The evidence showed that there was a real risk that we were losing substantial talent from the Supreme Court. There was one particular example of losing someone just at his prime. It would be wrong for the Supreme Court to lose people of enormous proven energy and ability when they have just got into the driving seat of their full power, and to lose talent of that sort when people have risen to that point with only a limited time available to them in the Supreme Court itself.
Lord Gilbert
I hope that the Minister will explain why there should be any compulsory retirement age for Justices of the Supreme Court. I see no justification for it.
Baroness Jay of Paddington
My Lords, I do not accept my noble friend’s comments. As the noble Lords, Lord Hart of Chilton and Lord Pannick, said, we went into this in some detail in the Constitution Committee. For all the reasons advanced very eloquently by the noble Lord, Lord Pannick, I support the amendment, particularly because of the potential for increasing diversity both in the Supreme Court and, indeed, further down. Both noble Lords have expressed the potential for opening up more opportunities for people who have come through what is described as the non-conventional career path to reach the top of the profession. I—and many members of the Committee —have a personal interest in the concept that 70 is the new 50, so 75 should be the new 55.
Baroness Butler-Sloss
My Lords, if 70 had been the retirement age for Supreme Court judges, particularly the judges in the House of Lords, we would have lost Lord Bingham before he even got to the House of Lords. We would have lost the noble and learned Lord, Lord Phillips, the present president of the Supreme Court, who goes at 75. He is almost the last of those who are entitled to stay until 75. The first solicitor to get to the Supreme Court, who was of enormous value to it, left after 18 months because he was caught by being aged 70. He was as valuable as the noble and learned Lord, Lord Phillips, but he went at 70.
The Supreme Court is losing people who cannot even get there, or who get there for 18 months if, as has already been said, we allow time for people to get through the High Court and the Court of Appeal to the Supreme Court. I think only two judges have gone straight through and one judge came straight from the Bar. Normal process means that we are losing people who are extremely valuable. This has been brought up in Question Time on a number of occasions and the Government really should be looking at it. The previous Government were asked to look at it but, if I may say so, they pushed it to one side. It would be very good if this Government would take it up.
Baroness Bottomley of Nettlestone
This has been a most exhilarating debate. I hope that the Minister will be able to use this experience to talk to other colleagues in government about why, for example, a non-executive director on a board has to have annual re-election once over 70. Recently, an Oxbridge college appointed a principal who is 72 and the articles of association had to be changed. I declare an interest because the late Lord Bingham’s son is the best person who works for me in my professional activity so I am, of course, brainwashed in this regard. I never thought of the Lords as pioneers of radical equality measures but I feel that this debate has great potential for professional groups across the economy and society, and certainly across government.
Lord Thomas of Gresford
My Lords, I support the amendment for all the reasons that the noble Lord, Lord Pannick, gave. However, I would suggest an alternative. If we are not going to go to 75, the alternative is to appoint judges to the Supreme Court who have not gone through the processes of the High Court, the Court of Appeal and so on. We have the power now, apparently, to appoint people to the Supreme Court who have not been in the Court of Appeal. It was interesting that, on Monday, the noble and learned Lord, Lord Lloyd of Berwick, said, “Of course, members of the Supreme Court will have come from the Court of Appeal”. I do not think that that is necessary. I think that the pool should be broadened. There are people in academic life and lawyers at the Bar who would be appropriate as members of the Supreme Court. The age of 70 is ridiculously low. If it is to stay at that, people should be appointed in their 50s—early 50s perhaps—to the Supreme Court without having to go through the cursus honorum required at present.
Lord Falconer of Thoroton
My Lords, I strongly support the amendment for the reasons given by the noble Lord, Lord Pannick, the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Jay, and the noble Lord, Lord Thomas of Gresford. It is an important amendment on a matter that is already causing difficulty. The loss of the noble and learned Lord, Lord Collins, from the Supreme Court was a direct result of the reduction in the retiring age. The Government now have an opportunity to do something about that, because this is a legislative opportunity.
Lord McNally
My Lords, this is probably the last Chamber on earth where Ministers should be defending a retirement age of 70. I have listened very carefully to what has been said. I understand and sympathise with some of the frustrations. The noble and learned Lord, Lord Falconer, just referred to the case where someone comes to senior judicial office for a very short term. I also acknowledge that, in many cases, those judges would be able to continue beyond the age of 70 in terms of their intellectual sharpness. In such cases, they can be a costly loss to the judiciary. I am not sure that I go as far as the noble Lord, Lord Gilbert, in advocating no retirement age at all—I have always been a strong supporter of a retirement age for this House. However, that goes into a different issue. I see that the noble Lord is about to come up for air.
Lord Gilbert
I am much obliged to the Minister for making reference to my remarks. All I can say is that I have listened to the debate with great care and I have not heard a single reason put forward for a retirement age for judges. Everyone says 70, 75, 80, 85—just picking figures out of the air. It is a nonsense. I am not a candidate for a position in the Supreme Court, but I see no reason at all why there should be any statutory limit for a candidate aged over 85 like me. Could we have a reason?
Lord McNally
As I said, this is hardly the audience for arguing or expecting support for retirement at 70. Indeed, sometimes when the noble and learned Lord, Lord Woolf, tells me about his itinerary for the following week, I realise that his idea of retirement is something quite different from that of most normal people. I am well aware that people can make a contribution.
The amendment is astute in singling out the Supreme Court, as it is in this court—which may be the pinnacle of a long career—where taking up office is more likely to occur when a judge is in his or her 60s. This can give rise to particularly unfortunate individual cases where a judge’s term of office may be rather shorter than we would have liked to see. I understand the arguments and the case that has been made. However, these individual cases need to be balanced against the bigger picture and the advantages of a uniform retirement age of 70 across the whole of the judiciary.
Mandatory retirement ages for judicial office-holders have played an important role in ensuring that the judiciary is, and is seen to be, independent. Quite rightly, once appointed to a salaried position, it is difficult to remove a judge from office before retirement. This, of course, is constitutionally correct and removes any risk of unwarranted interference from the Executive. While many judges may be able to continue to work, and to contribute as fully as ever, beyond the age of 70, that will not always be the case. Without the mandatory retirement age, if a judge beyond 70 insisted on continuing, there would be no way of removing him even where his colleagues considered that he was no longer quite as sharp as he used to be. Therefore, a standard retirement age, set at the right level, is needed. I do not think that anybody disagrees with that principle.
The Government consider that 70 is the right level. Indeed, this is at the higher end of international comparisons. It is also important in this context to consider the impact on public confidence in the justice system. The age of 70 strikes a balance between the desire of judges wishing to serve and the public interest in sustaining a judiciary that is fully effective in discharging its responsibilities. The amendment seeks to make a special case for the Supreme Court, so that the mandatory retirement age should be increased to 75. However, the reasoning for the age of 70 applies to judges of the Supreme Court as it does to other judges. People are people, whichever court they are sitting in. The age of 70 is, in our view, the right one—notwithstanding that it may seem premature in individual cases.
The retirement age also contributes to the need to bring in newer judges. Turnover in the senior judiciary is not significant as many judges remain in post until retirement. Given the statutory limit on the numbers of judges who can sit in senior courts, in particular the Supreme Court which is limited to just 12 judges, the opportunity to promote talented members of the judiciary from the lower courts is limited. Extending the retirement age to 75 in the Supreme Court would further limit movement from the Court of Appeal, which would, in turn, reduce opportunities for promotion to the Court of Appeal and have a trickle-down effect through the courts. This would also have the effect of delaying some of the positive impact on diversity, which that we would otherwise see through promotions from the lower courts.
Furthermore, it would be very difficult in practice to sustain a different retirement age just for the Supreme Court. Court of Appeal judges would be very likely also to make the case for extended retirement. A Court of Appeal judge who considers himself or herself a good candidate for appointment to the Supreme Court may find it difficult to accept that he or she had to retire at 70 if the Supreme Court were made up of judges who would automatically go on for another five years. If the age of retirement for the Court of Appeal were also extended, then why not the High Court and so on? If there is a clear business need, it is still possible for judges to continue to serve over the age of 70. Following retirement, members of the Supreme Court may go on to the supplementary panel. As a member of that panel, they might be asked to act as a judge of the Supreme Court. This enables the court to continue to make use of their experience and knowledge —but on a short-term basis.
I have listened to the contributions of the noble Lords and to the plea of my noble friend Lady Bottomley against ageism. Although the Government will keep this under review, we consider, for the reasons outlined, that the current mandatory retirement age of 70, together with the arrangements for sitting ad hoc after retirement, provide a careful balance between using experience, ensuring that the quality of the judiciary is maintained at all levels and ensuring the advancement of fresh talent. I also consider that differential retirement ages of different courts may be very difficult to sustain. We will keep this under review but, in the mean time, I ask the noble Lord, Lord Pannick, to withdraw his amendment.
Lord Pannick
My Lords, I am grateful to the Minister for saying that he will keep this matter under review. I hope that that means that it will be actively looked at before we return to the matter, as I am sure that we will, at Report. My answer to the question asked by the noble Lord, Lord Gilbert, about why we should have retirement age at all, is to point out the considerable difficulty of saying that someone is past it—particularly if they have tenure in the post. That is an extremely difficult task to perform in relation to individuals sitting on the Bench. That is why we have a mandatory retirement age. I have no difficulty with that. As I indicated, I am concerned that the retirement age of 70 is too high. However, I would say to the noble Lord, Lord Gilbert, that if he looks at the New York Times of 16 September 2010, he will see that Judge Wesley E Brown was sitting in the United States district court at the age of 103. The article describes how a tube under his nose feeds him oxygen during hearings. Sadly, Judge Brown has since died, but he did continue to an age much greater even than 75.
I do not accept the argument that the retirement age needs to be mandatory across the judiciary. I would hope that we could move to recognising the special position of the Supreme Court for all the reasons given by myself and other noble Lords. I certainly do not accept the argument that public confidence in the judiciary would somehow be undermined were judges to continue to the age of 75. I am not aware of any recent example of the public lacking confidence in our judges on the Appellate Committee—now in the Supreme Court—because they were between the ages of 70 and 75. It has already been indicated that some of the best and most valuable work of those senior judges, led by the late and much lamented Lord Bingham of Cornhill, was done between the ages of 70 and 75. That work would be lost.
Nor do I accept that there is any problem about new talent coming through because there are many vacancies for positions in the Supreme Court. However, the central point is that we are losing the best of our judges at too early an age. I hope that the Minister and the Lord Chancellor will reflect on this matter over the summer, but in the mean time, I beg leave to withdraw the amendment.
Lord Pannick
“In section 64(1) (encouragement of diversity) after “under this Part,” insert “and the Lord Chancellor and the Lord Chief Justice in performing their functions,”.”
Lord Pannick
My Lords, Amendment 121 is another amendment arising out of the report of the Constitution Committee. It has been tabled in my name and those of my noble friend Lady Prashar, the noble Baroness, Lady Jay of Paddington, and the noble and learned Lord, Lord Woolf. As your Lordships know from our debates on Monday, under Section 64 of the Constitutional Reform Act 2005, the Judicial Appointments Commission has a duty to,
“have regard to the need to encourage diversity in the range of persons available for selection for appointments”
to the Bench. As those debates indicated, this is an important provision because it rightly recognises that the high reputation that our judiciary deservedly enjoys may be damaged if we do not do something about the paucity of women and members of the ethnic minorities being appointed to judicial office. The task, as Section 64 recognises, is to identify ways of bringing to the fore the many highly skilled women and members of the ethnic minorities in the legal profession so that they can be considered for appointment on their merits. The point of this amendment is that that vital task should not just be imposed on and performed by the Judicial Appointments Commission.
As your Lordships’ Constitution Committee explained in its report, the Lord Chief Justice and the Lord Chancellor have leadership roles, the former as the head of the judiciary and the latter as the Minister responsible to Parliament for the appointments process. They should each have a statutory duty to promote diversity. This is no criticism of the real efforts made by the current Lord Chancellor and Lord Chief Justice, both of whom take this responsibility seriously. However, they will not always be in post. We are legislating for the future, so it is vital that the legislation should identify the importance of promoting diversity and that all those in leadership roles should have a statutory duty in this respect.
The noble and learned Lord, Lord Falconer of Thoroton, and the noble Lord, Lord Beecham, have tabled Amendment 121AA. The noble and learned Lord will speak to his amendment, but as I understand it, the amendment has a similar purpose and effect. It is more detailed, and of course I will give it my support.
Amendment 121A, tabled in my name and that of my noble friend Lady Prashar, is simply a probing amendment. It arises out of a concern that on the proper interpretation of Sections 63 and 64 of the Constitutional Reform Act covering appointment on merit and “Encouragement of diversity”, those provisions might apply to the appointment of all other judges, but not to judges of the Supreme Court. The drafting concern is simply that Part 3 of the 2005 Act deals separately with the Supreme Court while Sections 63 and 64 are in Part 4. I would ask someone to give some thought to whether there is any substance in my concern. There may not be and this is only a probing amendment. I am not asking the Minister to deal with this today, so perhaps he may prefer to write to me. I beg to move.
Baroness Prashar
My Lords, I support the amendment and that tabled by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Beecham, because this duty should be extended to the Lord Chancellor and the Lord Chief Justice. I will say at the outset that I strongly refute the comments I have heard elsewhere that this will be perceived as gesture politics. I do not think that it will be, because it is a joint endeavour. Promoting diversity is a matter for the Lord Chancellor and the Lord Chief Justice as well as the JAC. They have a part to play and they need to take meaningful action, so this duty should be extended to both of them.
What has been the result of this disparity? My experience as the chairman of the JAC was that one heard a lot of warm words, but they were not often followed by purposeful action. Moreover, all the criticism about slow progress was directed at the JAC, which became a convenient fig leaf for senior politicians and interest groups. Too much attention was paid to the selection process. There was an almost forensic examination of each stage of the process, whereas the barriers which were outwith the responsibility of the JAC received very little attention. That left the JAC exposed and some of the structural obstructions were not dealt with as speedily as they should have been. There were endless debates about the JAC’s processes and a disproportionate amount of time was spent on making minor changes to the selection process, which in the long run may not have had a major impact. However, they detracted attention from the other substantial changes for which, as I keep saying, the responsibility lies elsewhere.
If the JAC drew attention to the changes that were needed in order to widen the pool and improve diversity, in my view they were not often given the consideration they deserved. If there was a duty on the Lord Chancellor and the Lord Chief Justice, they would have been much more focused on them. Perhaps I may give two examples. There is the issue of non-statutory eligibility criteria in vacancy requests. An analysis made by the JAC as early as 2008—I hasten to add that this was done after the noble and learned Lord, Lord Falconer, had left—found that a key factor in limiting the ability of the JAC to make a significant contribution towards improving diversity was the usual requirement for the Lord Chancellor to stipulate in vacancy requests to the JAC that candidates for salaried judicial posts should have had previous fee-paid experience. This was a real barrier to a large number of potential candidates, such as members of the employed Bar and, of course, solicitors. The JAC argued for this factor to be made “desirable” rather than “normally required”. However, there was a reluctance to change. These concerns were formally raised by the JAC in response to the consultation on the Green Paper The Governance of Britain, in 2008, after two years’ experience of working with these requirements, by which time the commission was able to analyse their impact. I give that as an example of something that obstructed progress towards diversity.
Let me give another example. In 2008 an agreement was reached that every post in the circuit Bench selection exercise which the JAC was due to run should be open to part-time working, but potential candidates said that while the commitment was welcome in principle, it was not sufficient to encourage them to apply without an indication of an acceptable part-time working pattern. That is quite important. After considerable discussion, it was agreed that each circuit would make two posts available for part-time working. It took an enormous amount of time to arrive at this arrangement. These were seen as concessions to the JAC, and not a joint effort to promote diversity. The JAC always felt that it was a tiresome body which was constantly asking for concessions. It should have been a joint endeavour. If everyone had been involved and had had the same responsibilities, they would have given closer consideration to the JAC.
Other changes that the JAC proposed were rejected on the grounds of so-called business needs. Business needs always trumped diversity considerations, and the lack of purposeful engagement was frustrating. It was compounded by the fact that all the criticism about the slow process, both by the interest groups and the politicians alike, was directed at the JAC. I could go on because I feel very strongly about the amendment, and totally reject any assertion that this is gesture politics. I very much hope that the Government will consider the amendment.
Lord Deben
My Lords, I would like to continue the effort that I have tried to make over past days to ensure that these decisions are not made merely by the legal world itself. I find this debate very peculiar indeed. I cannot think of a business which is worth its salt that does not insist that the chief executive has a responsibility for these matters. I sit as chairman of a number of companies, and in every case I have a personal responsibility for health and safety. I think it is important and I think that I have to take that responsibility. The direct responsibility is for the chief executive.
I know that it hurts many of a traditional kind in the legal profession for me to make comparisons between the Lord Chief Justice or the Lord Chancellor and such mundane people as chairmen and managing directors. However, it seems to me not an unreasonable parallel, and therefore I find this whole debate—as I found a debate in an earlier Session—to be really peculiar indeed. It should be the other way round: one should start off by saying that there are responsibilities of this kind lying on the shoulders of those who direct the whole shebang. One should not go half way down it—I am being rude now—and say, “It does not arrive up here, it comes down somewhere here”. One can repeat it, of course. It is perfectly reasonable to say, “It is also to be done here”, particularly if one has some suspicion that it is not being done lower down quite as well as one would like. However, one really cannot in any reasonable way exclude those who set the tone from issues which are the tone.
I very much accept the noble Baroness’s comment about this not being gesture politics. It is not gesture politics, because we are saying that we need to get rid of the fundamental view that merit is an easily definable thing and that it is terribly easy to say that somebody has got half a point better than somebody else. That is not what happens in business. We all know that when one looks at a number of people, one sees that they have differing contributions to make. One can say, “Yes, I have two people here who, on balance, both have the same contribution to make, as people”. The next question is: what are they making a contribution to? One says, “Let me make an assessment of what they are contributing to”. If, in most cases, they are making a contribution to what I would call a community, a panel or a group, then I might say that they are equal, but that this particular person makes less of a contribution to the whole than the other person, who would do more for the whole. That is the argument behind these elements of the Bill.
This is not a matter of tokenism, but a matter of reality, and it should be seen as such. If it is a matter of reality, it cannot be restricted to people lower down the pecking order. It must start with people at the top. I therefore beg the Government not to come back with the usual civil servant explanation to the effect that, “These people do this anyway, they are of a very high standing. We could not imagine them thinking in any other manner and, my goodness, why could you?”. I would reply that the present Lord Chancellor is an old friend of mine and a man of impeccable standards in this way. However, he still ought to be under the law; it still ought to be part of the way we present it.
It is really important simply to say that this is not a minor matter to be applied to people lower down, but a central matter to be applied from the top, because it is too important to be particularised. The only way not to particularise it is by saying that the chaps or girls in charge must take this responsibility. I very much hope that on this occasion the Government will see that this is a very reasonable amendment, that it could be taken without any difficulty at all, and that it could in fact be seen to be valuable step.
Lord Woolf
My Lords, just for the sake of the record and having put my name on this amendment, I make it clear that I support it for the reasons so admirably given by those who have spoken, including the noble Lord, Lord Deben. If I may say so, he showed remarkable acuity as somebody who is not a lawyer in contributing to this debate.
Baroness Neuberger
My Lords, perhaps I may add to the debate as another non-lawyer. Indeed, I totally agree with the noble Lord, Lord Deben, and I very much hope that the Government will take this on board. I know that the Minister has himself been involved in the judicial diversity task force, of which the Lord Chief Justice and the Lord Chancellor are in fact members. One of the criticisms that the Advisory Panel on Judicial Diversity has made since it reported two years ago is that progress by that task force has in fact been remarkably slow. Although it has met, not a great deal has happened. I know that the Minister feels much the same. It therefore seems to me all the more important that there be a statutory duty on the Lord Chancellor and the Lord Chief Justice, as well as on the Judicial Appointments Commission, to promote diversity. I really hope that the Government will take that on board.
Baroness Butler-Sloss
As a former judge I very strongly support the amendment by the noble Lord, Lord Pannick. I would particularly like to endorse what the noble Lord, Lord Deben, said, with which I entirely agree. It is a very good thing when we get some non-lawyers reminding us, but he can be assured that former senior judges support him on this.
Baroness Jay of Paddington
My Lords, like the noble and learned Lord, Lord Woolf, I rise really for the sake of the record and because my name is on this amendment. As the noble Lord, Lord Pannick, said in introducing the amendment, this was one of the very strong recommendations that the Constitution Committee made in its report on judicial appointments. The Minister has referred to his kindness in coming once again to speak to the Constitution Committee between Second Reading and Committee. He gave a very strong indication —and I do not think I say anything inappropriate—that he was favourably disposed to matters which we suggested counted as leadership matters in the question of diversity. He will remember the remarks he made on Monday when we spoke again about gesture politics in relation to another amendment, where he said that this was not about gesture politics, but about leadership and political leadership. I hope he will be consistent in his reply on this amendment.
Lord Falconer of Thoroton
My Lords, in 1997 I had the privilege of becoming the Solicitor-General. The first speech I made outside Parliament was in Nottingham, and the person who preceded me on that occasion was Mr John Selwyn Gummer, now Lord Deben. He said in his speech, “We are so lucky to have Charlie Falconer here. He is going to make a speech, it’ll have been written by his officials. It’ll be inspirational, but not so inspirational that you would want either legislative change or any additional expenditure of money”. It was exactly the same point as the noble Lord, Lord Deben, made just now: there is an important point in these amendments, and there needs to be an active and continuing role for the head of the government-end of the story, the Lord Chancellor, and the head of the judicial-end, the Lord Chief Justice, as well as the head of the appointments commission, in looking at the detail of issues and actually taking active steps to ensure the ability to promote diversity.
I am very grateful to the noble Baroness, Lady Prashar, for giving practical examples of what the Lord Chancellor can do. The Lord Chief Justice is able, for example, to make arrangements for working conditions which will promote diversity. The Judicial Appointments Commission will be actively seeking to promote diversity, all the more so now that the tie-break provision is likely to be in the Bill. The effect of our proposals is that everybody is in it together in promoting diversity. I very much adopt the approach of the noble Lord, Lord Deben: it is a basic requirement for the head of an organisation that is appointing people, whether they be judges or any other group. I hope that the Minister will feel able to embrace the basis of those proposals.
Lord McNally
My Lords, Amendment 121, in the name of the noble Lord, Lord Pannick, would extend the duty in Section 64 of the Constitutional Reform Act 2005. The duty requires the Judicial Appointments Commission to have regard to the need to encourage diversity in the range of persons available for selection for appointments. The amendment would extend this duty so that it applied also to the Lord Chancellor and the Lord Chief Justice.
Similarly, Amendment 121AA, tabled by the noble and learned Lord, Lord Falconer, introduces a new duty on the commission, the Lord Chief Justice and the Lord Chancellor, albeit in slightly different terms. Rather than a duty to encourage diversity in the range of persons available for appointment, the amendment sets out a duty to promote diversity in the judiciary. In addition, it sets out a requirement for an annual report on performance of the duty.
The Government have given a firm commitment to improve diversity within the judiciary. We consider that a diverse judiciary, reflecting modern society, will enhance confidence in the judicial system. However, we do not consider that the extension of the duty to promote diversity in Section 64 of the Constitutional Reform Act, or the new duty suggested by Amendment 121AA, would make any difference in practice.
I understood what the noble Baroness, Lady Prashar, meant when she said that these matters should not be turned into gesture politics. Since becoming a Minister, I have made it a personal commitment to attend every meeting of the judicial diversity task force in the hope that my presence will put a little speed into the process that we are trying to carry through.
The Lord Chancellor and the Lord Chief Justice, when exercising their public functions—other than those relating to judicial decision-making in the case of the Lord Chief Justice—are already subject to the public sector equality duty under the Equality Act 2010. This means that when either is exercising public functions in relation to the judiciary, the public sector equality duty applies.
I followed the intervention of the noble Lord, Lord Deben, and for a time thought that he was on my side in arguing that, where responsibilities already exist, it is not necessary to rewrite them. The duty of the Lord Chancellor and the Lord Chief Justice is set out in Section 149 of the Equality Act 2010 and provides that a person exercising functions of a public nature must have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by the Act; advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not; and foster good relations between persons who share a relevant protected characteristic and persons who do not.
It is true that the Equality Act duties are not in the same terms as the duty in Section 64 of the 2005 Act or the proposed new duty in Amendment 121AA. Parts of Section 149 of the 2010 Act refer to persons with protected characteristics. This does not have any bearing on what steps, for example, we should take to encourage more solicitors to apply for judicial office. However, it is also clear that this duty contains the key elements of advancing equality of opportunity that we are normally concerned with when discussing diversity; that is, issues of gender, race, disability and sexuality.
The duty of course applies to the Lord Chancellor not just in relation to judicial diversity but in any functions of a public nature that he exercises. We consider this general duty to be a better approach than attempting to multiply separate legislative duties on the Lord Chancellor in different areas. This debate has already given an indication of that with the various duties proposed by different amendments.
We are often told by this House that we overlegislate, but there is also a tendency to want to put every specific duty in every Bill. We endorse the Constitution Committee’s comments on the importance of leadership and understand the reasoning behind the amendments, but we believe that the existing duties in the Equality Act 2010 are sufficient to keep us up to the mark in this context. Extending the existing duties to include both the Lord Chancellor and Lord Chief Justice would add nothing of practical value in increasing the diversity of the judiciary. Nor would it add anything to a commitment clearly made and embedded in the Bill.
Lord Deben
If it is necessary to state these things in particular for some parts of the system and it is not thought to be otiose, why is it not necessary to do it at the top of the system and thought to be otiose in those circumstances? Either you leave it entirely and rely on the general demand or you apply it to both cases.
Lord McNally
I will ponder on that, but I also ask the Committee to ponder on the Pannick amendment. The noble Lord’s proposal to write specific responsibilities into the Bill makes a regular appearance when we are legislating—I think that it is the second time that he has done it anyway and that makes it regular. The argument is usually the same; it is a please-stop-beating-your-wife amendment. These duties are embedded in the Bill and in the roles of both the Lord Chancellor and the Lord Chief Justice.
Lord Falconer of Thoroton
The Minister is making some serious points. I am surprised by the proposition that the Equality Act would already require the Lord Chancellor or the Lord Chief Justice, for example, to promote among young people and black and minority-ethnic groups a greater willingness to apply to be lawyers, because that is partly what trying to increase the pool involves. Is the Minister really saying that that obligation, to get more people to apply at a much younger age to learn to be lawyers, is already covered by the Equality Act?
Lord McNally
The Equality Act invites the Lord Chancellor and the Lord Chief Justice to apply the principles of the Equality Act to the job that they are doing, which is the point that I thought that the noble Lord, Lord Deben, was making: that if one is doing a job that is covered by the Equality Act, one should be carrying out the responsibilities in which those duties are embedded. I think that is true.
Amendment 121A also relates to the duty in Section 64 and to Supreme Court appointments. It would ensure that the Section 64 duty to encourage diversity in the range of persons available for selection applied to those appointments. The amendment would also provide that Section 63 of the Constitutional Reform Act should apply to Supreme Court appointments. This would have the effect that those appointments would be solely on merit, that the person should not be selected unless he or she is of good character and that where two persons are of equal merit, one can be selected over the other for the purpose of increasing diversity.
Before turning to the detail of the amendment, I should first say that diversity is, of course, important at all levels of the judiciary, up to and including the Supreme Court. In fact, it is particularly important at the higher levels, as female judges or judges from an ethnic minority can act as powerful role models for those at a more junior level in the judiciary. Indeed, due to their higher public profile, they may also act as a role model for younger people considering a legal or judicial career and may be a powerful symbol to the public at large with regard to the perception of the judiciary reflecting our society. We are supporting diversity at this level in the measures that we are taking in the Bill to enable flexible working arrangements at the highest level, including the Supreme Court.
Turning now to the detail of the amendment, and starting with the application of Section 63, the objective here is to apply the tipping-point provision in these cases. Section 159 of the Equality Act 2010 contains a provision to allow a person to be preferred to another on the basis of a protected characteristic, such as gender or race, when they are equally qualified to be appointed. In relation to judicial appointments in England and Wales, our view is that it is not clear that the tipping-point provision in the Equality Act can apply, because Section 63(2) specifies that selection must be solely on merit. This use of “solely” may be seen as precluding the use of the Equality Act test. That is why the Bill brings forward the new tipping-point provision in Section 63(4) so that it can apply to judicial appointments, selection for which is within the remit of the Judicial Appointments Commission, notwithstanding the use of “solely”.
In relation to appointments to the UK Supreme Court, however, there is no provision that appointment must be “solely” on merit. Section 27(5) of the Constitutional Reform Act specifies that appointment must be on merit. However, other considerations apply, in particular Section 25(8), which specifies that in making a selection the selection panel must ensure that the candidate has knowledge and experience of practice in the law of each part of the United Kingdom. As there is no reference to “solely”, we consider that there is no bar to the Equality Act tipping point applying to Supreme Court appointments without the need for further legislative change.
In relation to the application of Section 64 to the UK Supreme Court, I have already set out the commitment to encouraging diversity in the Supreme Court, but for the reason that I have already outlined in relation to Amendment 74, I do not consider that a statutory duty would add anything to this. In addition, in this case any statutory duty would also need to reflect the UK nature of the Supreme Court, so the current amendment, by placing this duty on the Lord Chief Justice of England and Wales and the Judicial Appointments Commission, would not be appropriate.
I understand where the noble Lord, Lord Pannick, and other noble Lords are coming from. We have a summer to consider these things, but I also hope that noble Lords who have been involved in legislation will know that these declaratory commitments that overlay existing commitments are not always as helpful as has been suggested. I hope to assuage the concern of the noble Baroness, Lady Prashar, by saying that we will look at the case that has been made this evening. As I say, at the moment we are not minded to accept the amendments, but with the promise that this debate will be among my summer reading I invite the noble Lord, Lord Pannick, to withdraw his amendment.
Lord Pannick
My Lords, that is a very disappointing response. Promoting diversity is one of the greatest challenges facing the legal system and it is quite unacceptable that when a statutory duty to promote diversity is already imposed upon the Judicial Appointments Commission, that same duty should not be imposed, as the noble Lord, Lord Deben, puts it, on those who have leadership roles in the legal profession. I am not persuaded at all that there are other statutory duties under the Equality Act, which do not seem to me to cover the same ground. Indeed, if they did it is incomprehensible why there is a specific statutory duty on the JAC under Section 64.
Lord McNally
I hear the disappointment in the noble Lord’s voice. I would hate this debate to end with any idea that I personally, and the Government, am not committed absolutely to furthering diversity in the legal profession and the judiciary. I have said that I will take the debate away—I may even take it to the individual noble Lords concerned—and consider what we do when we come back.
Lord Pannick
I am grateful to the Minister. I was about to say that I do not doubt for a moment the Minister’s personal commitment to diversity. I have heard him speak about it on a number of occasions, and he feels as passionate about it as others. The question is whether the Government’s position can move. I hope, for all the reasons that have been expressed in this debate around the House, that the Lord Chancellor and the Minister will look at this again over the summer and that progress can be made. I have no doubt that if there is no progress, no movement from the Government, the House will return to the matter on Report, but for now I beg leave to withdraw the amendment.
Lord Falconer of Thoroton
“Judicial appointments13A After section 65 of the Constitutional Reform Act 2005 insert—
“65A Additional guidance
The Lord Chancellor, after consultation with the Lord Chief Justice, the Treasury Solicitor and the chairman of the Judicial Appointments Commission, shall issue guidance as to the circumstances in which those employed by the Government Legal Service, the Crown Prosecution Service or any other government legal office may apply for any of the judicial office or tribunal posts, which are in the remit of the Judicial Appointments Commission.””
Lord Falconer of Thoroton
My Lords, this amendment seeks to probe the Government’s attitude to the appointment of judges from the Government Legal Service, the Crown Prosecution Service and any other prosecution body in effect employed by the Government. We suggest in the amendment that the Lord Chancellor issue guidance as to the circumstances in which members of any government legal office may apply for either a judicial office or a tribunal post; those judicial offices and tribunal posts being ones that are covered by, or within the remit of, the Judicial Appointments Commission.
We have in mind two particular thoughts. First, members of the Crown Prosecution Service are limited from applying for judicial office because they cannot sit as recorders because they deal with crime—they cannot sit as recorders anywhere, as we understand it. Are we being deprived, as a result of that perhaps unnecessary limitation? Since members of the Bar and solicitors who practise in the criminal area are well able to sit as recorders, why should the same situation not apply to those employed by the Crown Prosecution Service?
Secondly, I cannot find what, if any, the limitations are that apply to people in the Government Legal Service applying either for part-time or full-time office as a judge. People in the Government Legal Service are a very diverse—in the sense that we have used that word in this debate—group of people of very great talent who make up a pool from whom very good judges could be selected. I would be grateful if the Minister would indicate the Government’s attitude towards appointments to the judiciary from prosecution services and the Government Legal Service and whether they intend to issue new guidance to make the position clear.
Lord Pannick
My Lords, I strongly support the amendment. If we are serious about promoting diversity on the Bench, this is an area where there is real potential to make substantial progress. That is because there is a pool of highly talented female lawyers and ethnic minority lawyers in government legal service. The Constitution Committee gave the figures at paragraph 126. The figures are striking. In the Treasury Solicitor’s Department, more than 50% of senior civil servants are women and 15% of those at senior Civil Service pay band 1 are from ethnic minorities. In the CPS, women form 75.9% of Crown prosecutors and 63.9% of senior Crown prosecutors. Ethnic minority lawyers form 21.7% of Crown prosecutors and 18.3% of senior Crown prosecutors.
No doubt there are social and economic reasons why so many talented female lawyers and ethnic minority lawyers work not at the independent Bar, although many of them do, but in government legal service. I very much hope that the Government will accept the amendment so that consideration can be given as to how the legal system takes advantage of that pool of talent and ensures that the regrettable statistics of the limited number of women and ethnic minority lawyers on the Bench can be transformed.
Baroness Prashar
I, too, support the amendment. The JAC wrote to the then Lord Chancellor about this in 2008. If we are committed to promoting diversity, it is vital that some movement takes place. There has been no progress on this over the past few years. If the responsibility was taken seriously by the Lord Chancellor, there would have been some movement.
Baroness Butler-Sloss
My Lords, I, too, support the amendment. There is an overlooked pool of potential future judges—or of what used to be called chairmen of tribunals, who are now judges. It is time that that group in government service of one form or another was seen as a potential. The point made by the noble Lord, Lord Pannick, about the numbers of both women and ethnic minorities is significant. I support the amendment.
Lord McNally
My Lords, I am very grateful for the amendment, because it allows me to clarify an important area: those who work in government legal services, the Crown Prosecution Service and other government legal offices. The intervention of the noble Lord, Lord Pannick, is extremely helpful, because it puts on record what a rich seam there is to be mined in those public appointments, and counterpoints the point that I have made several times from this Dispatch Box: that the public service has managed to make far more progress in promoting diversity over the past decades than has the private. We may learn lessons from that.
The Government are keen that members of the employed legal professions should take up judicial roles for which they are eligible, as like noble Lords, we are of the view that this could be a useful route to increasing diversity as well as ensuring that the Government can attract the best lawyers.
However, it has been the policy of successive Lord Chancellors that Crown Prosecution Service and other government lawyers when holding judicial office do not sit on cases involving their department. For CPS lawyers, this means that they cannot sit as recorders in the criminal courts, as the overwhelming majority of cases are prosecuted by the CPS.
Under the previous Administration, in 2003 the restrictions on applications by government lawyers were relaxed partially, and CPS lawyers became eligible for appointment as deputy district judges in magistrates’ courts. However, this was still on the basis that they did not sit on CPS-prosecuted cases, and therefore few roles are available.
The policy is based on the need to comply with Article 6 of the European Convention on Human Rights, which provides that litigants are entitled to be heard in front of an independent and impartial tribunal. Given those constraints, we need to think more creatively around the concept of a judicial career and how experience in one area can support subsequent appointment to judicial office in another area.
Opportunities are available for government lawyers to apply for judicial office. The published Judicial Appointments Commission programme for 2012-13 includes more than 300 vacancies for fee-paid office, which would be open to government lawyers to apply for. It is therefore important to communicate those opportunities available to government lawyers and to encourage them to take up judicial roles for which they are eligible—not least as this could be another useful route to increase diversity in the judiciary.
I am personally committed to playing a part in raising awareness of these opportunities. I recently met the Treasury Solicitor to discuss the best way to communicate them. I am also happy to consider any suggestions for changes to the current restrictions that apply to government lawyers to see whether we can go any further than the current practice—without, of course, infringing the rights to an independent and fair trial. When I met the Treasury Solicitor, I said that I was willing to write articles, go to seminars, or whatever, to raise the profile and awareness of those opportunities. As this is a probing amendment, I hope that the noble and learned Lord will believe that we are responding in this area and withdraw it.
Lord Falconer of Thoroton
I will certainly carefully consider what the Minister said. At the moment, he has given no reason why not to publish guidance that Parliament can consider. I invite him to consider whether guidance could be published regularly so that the issue is looked at with much more of a searchlight than at the moment. I will consider what the Minister said, in exchange for him agreeing—he is nodding—to consider what I said. I beg leave to withdraw the amendment.
Lord Falconer of Thoroton
Lord Falconer of Thoroton
My Lords, this is a short point about the Judicial Appointments Commission. Schedule 12 allows for equality between judicial members of the Judicial Appointments Commission and everyone else. I want to change that to make it clear that the judicial members will always be in the minority. As noble Lords will know, no one holds the judges in more admiration than me. One thing that is clear in the current process is that the judges’ views on appointing judges are very well expressed. Part of the reason for having the Judicial Appointments Commission was to bring in other people to the appointments process. I would like there to be judges on the Judicial Appointments Commission, but I would not want them to be, as it were, a blocking equality. I would be perfectly happy if they were in the most substantial minority. That is what I wish to reflect in the amendment.
Lord McNally
My Lords, if I could short-circuit debate on this, this is a very interesting proposal. I would like to take it away, consider it and bring it back on Report.
Lord McNally
“19 (1) Paragraph 11 (vice-chairman) is amended as follows.
(2) In sub-paragraph (1) (most senior judicial member is vice-chairman) for “Commissioner who is the most senior of the persons appointed as judicial members” substitute “most senior of the holders of judicial office who are Commissioners”.
(3) In sub-paragraph (2) (meaning of seniority for the purposes of sub-paragraph (1)) for the words after “sub-paragraph (1)” substitute “seniority is to be determined in accordance with regulations made by the Lord Chancellor with the agreement of the Lord Chief Justice.”
(4) In sub-paragraph (3) (exercise by vice-chairman of functions of chairman) for the words from “other” to the end substitute “other than—
(a) any functions as a member of a commission convened under section 26(5) or (5A) or of a panel appointed under section 70(1), 75B(1) or 79(1) (including functions of chairing such a commission or panel), and(b) any functions specified in regulations made by the Lord Chancellor with the agreement of the Lord Chief Justice.””
Lord McNally
“Senior District Judge (Chief Magistrate) designated under section 23 of that Act
Deputy Senior District Judge (Chief Magistrate) designated under that section
(3A) In Table 1 of Part 1 omit the entries for the following former offices—
Senior District Judge (Chief Magistrate) designated under subsection (2) of section 10A of the Justices of the Peace Act 1997
Deputy Senior District Judge (Chief Magistrate) designated under that subsection”
Lord McNally
“(b) in paragraph (c) for “(3)(c)” substitute “(3)(d)”.”
“(6) In Table 1 of Part 2 omit the entry for the following former office—
Justice of the Peace appointed under section 5 of the Justices of the Peace Act 1997”
Lord McNally
“(2A) In paragraph 3(1) (removal from office) before the “or” at the end of paragraph (b) insert—
“(ba) a person who is a deputy judge of the Upper Tribunal (whether by appointment under paragraph 7(1) or as a result of provision under section 31(2)),”.”
Lord McNally
Lord McNally
Arrangement of Business
(12 years, 5 months ago)
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Baroness Northover
My Lords, because the Question for Short Debate of the noble Lord, Lord Mawson, will now be taken as last business the time limit for the debate can become 90 minutes rather than 60 minutes. Speeches can therefore be limited to nine minutes except for the speech of the noble Lord, Lord Mawson, and the Minister’s speech, which will remain limited to 10 and 12 minutes respectively.
Regeneration
Lord Mawson
To ask Her Majesty’s Government whether they have plans for a co-ordinated approach towards regeneration, in particular in the new metropolitan districts emerging in north-west England and east London and, if so, what they are.
Lord Mawson
My Lords, I am conscious that a number of people who will be speaking in this debate have not yet arrived because there has been a change of time. I hope that they will arrive during the speech that I am about to make so that we can proceed as on the Order Paper.
When I first arrived in east London 30 years ago the Isle of Dogs was a waste land. At that time the financial centre of Canary Wharf did not exist. The culture of the public and voluntary sectors was anti-business. A dependency culture was rife and the councils running the surrounding boroughs of Newham, Tower Hamlets and Hackney were, I think it is fair to say, basket cases. Over the past 30 years, major changes have taken place and east London has been transformed. Because of the focused leadership of the noble Lord, Lord Heseltine, and others taking part in this debate, a phoenix is now rising from the ashes and east London is once again becoming a global destination and a centre of enterprise, innovation, finance and business. It is increasingly being recognised as a powerful engine of the British economy as it had been, before the demise of the docks, for several hundred years previously.
It was a privilege to take the Commercial Secretary, the noble Lord, Lord Sassoon, and the noble Lord, Lord Jones of Birmingham, by boat last week down some of the 6.5 miles of waterways across the Lower Lea Valley. My colleagues and I showed them all that has been achieved in a relatively short period of time and the potential that still exists if we continue to focus our attention and commitment. This trip is one of a number of water tours that I have been hosting over the past few years as chairman of the all-party group exploring regeneration, sport and culture, showing Members of your Lordships’ House and the other place the scale of development and investment opportunity in east London. Many of your Lordships who have made the journey east by boat with me have been surprised to see the rate of development, the scale of land and the potential for further investment in east London.
While chairing the APPG I was fortunate to make a voyage of discovery myself when the group’s secretary, the right honourable Hazel Blears MP, invited me to spend a day in Media City, Salford. What I saw there mirrored the developments in east London. I was shown pictures of former derelict docks and waterways that since the 1960s had been deserted. I learnt about a shared industrial history built around waterways. I also saw a modern experience of enterprise and regeneration in the midst of our poorest communities. I will let others who know far more about the north-west talk about what is happening 200 miles north. Suffice to say that these two areas of significant economic, cultural and social growth provide this country with important financial and business opportunities in a time when growth is ignored at great peril.
The purpose in raising this debate today is to make sure that these two important areas of growth are placed firmly on the map of the UK. They present the nation with development nodes that are nationally and internationally significant, now and in the years ahead. They require a sustained, co-ordinated and thoughtful response from the Government if they are to fulfil their true potential.
With only a few weeks to go until the Olympics begin, I will now focus my remarks on east London. For those of us who live and work in east London we know that the Olympics are actually not the biggest show in town, but a fantastic catalyst helping us join the dots of development nodes down the Lower Lea Valley. These are well advanced in Greenwich and the O2 in the south, at the expanding City Airport and the growing international conference centre at Excel—of which I am sure the noble Lord, Lord King, will say more—in the global business district at Canary Wharf, in Canning Town with £3.7 billion of investment, and further north in Poplar with a £1 billion housing and regeneration scheme with which I and my colleagues are involved. Here I must declare an interest.
At the Westfield shopping centre in Stratford across the River Lea we witnessed 1 million shoppers in the first week of opening. Stratford now has a new international station with a Eurostar platform. The Tech City concept at Old Street enhances east London as a rapidly developing science and technology hub. Sitting in the middle of all this activity is the Queen Elizabeth Olympic Park that will hold five new villages and a commercial district. Again, I must declare an interest as a director of what is now called the London Legacy Development Corporation. This is a new city, a metropolitan district arising in the east of London that has profound implications for the capital. These development nodes are connected by the 6.5 miles of waterways. It was the late Reg Ward, the life force behind the Canary Wharf development, who many years ago described the Lower Lea Valley as a water city. If you fly into City Airport and look down you will see exactly what he meant.
As we prepare for the Olympic Games in east London we are 25 years into what is a 50-year regeneration journey. The opportunity to present to the world the investment opportunity is great, but the task is not complete. Continued focus and leadership in both central and London government beyond the Olympics are crucial if we are to ensure that the momentum created by the Games is not dissipated afterwards.
Underlying the regeneration and investment priorities in east London is the ambitious overarching objective of convergence, or narrowing the gap. The agenda aims to tackle inequalities by closing the socio-economic gap between east London and the rest of the capital within 20 years. This is an aspiration that unites all six Olympic host boroughs and has support from the Mayor of London and national government. In Newham, along with this desire for convergence with the rest of London, goes the desire to be financially sustainable and become a net contributor to the UK economy. Ideas about convergence alone will not bring investment. The area needs a unique London identity like Wembley, Kew or Westminster if we are to attract international investors. Hence the “water city” vision for what are the historic docklands.
The 2012 Olympic and Paralympic Games have helped to kick-start this sustainable objective. For example, Westfield shopping centre estimates that the Games brought forward its investment in Stratford City around five to seven years earlier than would otherwise have occurred. This added between £1.1 billion and £2.2 billion to the London economy. Oxford Economics found that with a skills mix matching the London average, growth in east London could generate an additional GDP of £7.3 billion a year by 2030 and improve the public finances by about £5 billion a year.
I would like to take this moment to refocus our attention on east London and alert the House to the bigger growth picture there that has significant implications nationally. The London Borough of Newham and University College London are currently exploring the establishment of a new campus for UCL. In terms of urban regeneration, the Olympic legacy and the future competitiveness of the UK, this development is of immense local, national and international importance. Of equal significance is the Royal Docks Enterprise Zone, for which the Mayor of London, the London Enterprise Partnership and the London Borough of Newham have high ambitions. The Royal Docks will be a world-class business destination for the knowledge economy through the creation of a science and technology hub within a high quality environment in which to live and work. This hub would complement the Prime Minister’s “tech city” vision. If this is successful, Britain has the opportunity to be a world leader in science and technology.
What threatens this future vision of east London? We all know that world-class infrastructure is crucial to maximising UK growth potential yet, despite over £1 billion of public investment, Stratford International station currently has no international services. There is support from East Anglia, the Midlands and beyond for the station to play a role for both HS1 and HS2, to increase business between the UK and the Continent. Disappointingly, the Government have not as yet confirmed Stratford’s role in the UK’s high-speed rail network, and so risk the benefits that this could bring to the UK.
Another area of concern is insufficient capacity on existing river crossings to meet current demand. Without this issue being comprehensively addressed, the Olympic host boroughs warn that it will be a significant barrier to achieving convergence. The major missing element in the Mayor of London’s crossing package is the absence of a firm commitment to a fixed-link crossing at Gallions. The Silvertown tunnel could provide necessary resilience to the Blackwall Tunnel, but this will do little for the regeneration of key sites, such as in the eastern Royals, Beckton, Woolwich and Thamesmead. For this, the Silvertown tunnel needs to be complemented by a river crossing at Gallions, a catalyst for economic development.
The fundamental danger, of course, is that when the Games are over the uninitiated will feel that they have now done east London and it is time to move on, yet that is precisely the time when the opportunity is at its greatest. To ensure that the vision for a fully regenerated east London is realised, that our national focus is maintained and that the microdetails of infrastructure are addressed, my first question to the Minister is: who is the person in Government today with responsibility for driving these changes through to the end after the Olympics have finished? Who is going to work through until Sunday evening and get out of bed on Monday morning to develop this national regeneration project with international implications? My next question to the Minister is: how will the Government ensure a co-ordinated response from across government departments to the new opportunities that I have outlined, linking this with other emerging growth areas nationally? This matter is bigger than the interests served by London government alone.
It is my view that by fully regenerating areas of potential growth, like the Lower Lea Valley, we will be making a significant contribution towards our immediate and future national economy. I realise that some noble Lords may have heard me reference these issues at the Second Reading of the Financial Services Bill last week but I see no harm in reiterating the point. Now is the time to co-ordinate all our efforts and ensure that east London is fully regenerated. We need to end on a full stop, not a comma.
Baroness Hughes of Stretford
My Lords, I congratulate the noble Lord, Lord Mawson, on securing this important debate and thank him for his references to my home area of Greater Manchester. I welcome the opportunity to contribute and do so not only as a trustee of the Lowry Theatre, for which I declare an interest, but from a longstanding involvement, as a former local authority leader and Member of Parliament, in the regeneration of the dockland area of the Manchester Ship Canal that is now Salford and Trafford Quays.
The story of the regeneration of this area could not been told without the vision, doggedness and commitment of many people, too numerous to name but to whom I pay tribute. It is a pleasure to see my honourable friend at the Bar today because she was certainly one of them. However, it is a story that has not yet ended. While the area has been transformed physically from derelict dockland to exciting and gleaming media city, there is much yet to do to realise the potential for local people in skills, jobs and opportunities, matching the outstanding physical regeneration with the social regeneration that will transform people’s lives. In this, the chief executive Julia Fawcett and her excellent team at the Lowry are leading the way.
The Lowry was in fact one of the first regeneration projects on Salford Quays and has undoubtedly been the seed around which one of the most vibrant cultural and media destinations in the world is now crystallising. The £160 million capital investment from lottery funds has not only produced this world-class arts facility but catalysed phenomenal further regeneration, predominantly from the private sector, to the tune of £650 million in the MediaCityUK development. With the Lowry at its heart, the media city is now also home to the Imperial War Museum North, BBC North, the University of Salford and over 60 diverse production, service and ancillary companies. With ITV Granada currently constructing its production facility on Trafford Wharf, this constitutes an altogether impressive and dynamic constellation of media and digital entrepreneurship. This is testimony to the development, not only on the quays but throughout the north-west, of expertise and innovation in the creative and digital industries which has the potential to rival the best in the world, provided that it is nurtured and supported. Of that, I will say more in a moment.
From the outset, the Lowry has had three equally important core objectives and is matching commitment to outstanding theatre and visual arts content to the commitment to using its assets to create opportunities for local people, especially young people, with a constant focus on reaching those groups who are more disadvantaged or who would not normally gravitate to an arts environment. This distinctly Lowry approach is one that I believe many organisations should emulate.
I shall give noble Lords some examples of what this means in practice. Walkabout is the Lowry’s flagship community engagement programme, which has so far engaged around 8,500 residents. Inspired to Aspire is an initiative that uses the inspirational environment and people of the Lowry and the wider quays to encourage and nurture aspiration with disengaged young people and provide formal and informal entry routes into employment. Working with a network of referral agencies, including schools and colleges, the Lowry provides significant numbers of young people who are NEET or at risk with opportunities in volunteering, short-term placements and, where possible, apprenticeships and full-time employment. The young carers project provides creative experience for young carers to promote positive changes in their health and well-being, as well as a platform to raise awareness about their roles and the issues that affect them.
A recent development in partnership with others is the successful bid for a university technical college at MediaCityUK. The UTC will focus on digital and creative industries and performing arts alongside entrepreneurship, and will contribute to the massive growth potential of these industries in our region. It will ensure that local young people can access the opportunities that this growing sector brings, linking new industrial demand to its local community. This is of crucial importance, as I am sure noble Lords will appreciate, in an area that is significantly challenged by deprivation, unemployment and social problems. All this activity is on a financial model that raises £7 through its own activities for every £1 of public subsidy. I hope to invite noble Lords to an event here later this year to hear more about the Lowry’s social regeneration work.
I want to mention another project, this time on the east of Manchester, which is similarly pioneering innovation in the creative and digital sectors and is equally committed to using its capacity and assets to develop the talents and opportunities for local people. The Sharp Project is home to over 70 digital entrepreneurs and production companies that make, manipulate or move around the world digital content. The £16.5 million development, partly funded by Manchester City Council and ably directed by Sue Woodward, is fantastic and I encourage Members to see it if they can. It is based in a 200,000 square foot warehouse and offers exciting, flexible and affordable space for offices, production and event space for companies, thereby helping to grow the creative digital sector in our region. Over the past year the Sharp Project has produced award-winning TV output and accommodated over 400 people in employment, either directly or as freelancers. Set up to run alongside the project is SharpFutures, an independent social enterprise supported by Manchester City Council to ensure there is a social return on investment, and SharpFutures exists to nurture and grow talent and capacity in the digital and creative sectors by opening up and building capacity, particularly in deprived communities.
I do not have time to do more than mention the cultural hub at the other end of the ship canal which is Liverpool, former capital of culture, but no doubt the noble Lord, Lord Storey, will do so. However, all of this together testifies to the critical mass of expertise in our region in this exciting new sector, and the tremendous potential for Greater Manchester and the north-west to become a global hub for creative and digital entrepreneurship. However, this has not happened by accident. Nor will this potential be fully realised without drive and support. Local partners, public and private, have already demonstrated their commitment and ability not only to achieve regeneration and new economic activity but to harness those benefits for local people. Others, including the Government, must now rise to the challenge.
Will the Minister address three issues? First, reflecting the comments of the noble Lord, Lord Mawson, and particularly now that the regional development agencies have been abolished, where will the oversight, drive and momentum be coming from in Government to identify these opportunities for growth, and to remove the barriers to progress?
Secondly, the creative and digital industries depend crucially on connectivity. The noble Lord, Lord Mawson, asked about High Speed 2, and I share his concern. Equally important is superfast broadband. What commitment do the Government have to enable these areas to have priority access to superfast broadband? Will the Government support Salford’s bid for the Urban Broadband Fund? Will it also support the Greater Manchester Combined Authority’s bid for ERDF in support of the Greater Manchester broadband plan?
Finally, I have stressed the leading examples of the Lowry and Sharp in contributing not only to the growth of this new economic sector, and thereby to the UK economy, but to narrowing the socio-economic gap in our region. Not all of our participants are as committed as this. For example, the record of the BBC in MediaCityUK so far is poor, with only 26 of the 680 new jobs created by the move north going to local people. This is not good enough. There is no reason why all organisations, especially those funded with public money, should not have the explicit objective of investing in the skill, development and training that will enable local people to compete successfully for new jobs. This needs a strong lead from government. I would be very grateful to hear from the Minister what commitment the Government have to promoting and monitoring this kind of social regeneration, which can transform people’s lives.
Lord King of Bridgwater
I join the noble Baroness in paying tribute to the noble Lord, Lord Mawson, for introducing this debate, and for the enthusiasm and energy with which he chairs the all-party group on this hugely important subject. As the noble Lord rightly said, I am going to concentrate on east London, where I am mainly involved, but I could not help reflecting while the noble Baroness was speaking that when he asked, “Who is the Minister who goes to bed on Sunday night and gets up early on Monday morning ready to concentrate?”, I used to be that Minister. One of my responsibilities was to decide what to do about Manchester Exchange railway station, which was crumbling away. The pillars were rusting, so were we going to put a lot of money in—£250,000—without having any idea of what we were going to do with the station? I know it is now a very successful exhibition and conference centre, and I am very pleased that the extravagant decision which I took then has worked out so well.
I also feel I know quite a bit about MediaCityUK, because I served on the Communications Committee of this House under the noble Lord, Lord Fowler, in which we reviewed the charter of the BBC. The right reverend Prelate the Bishop of Manchester showed his total partiality at all times when interviewing BBC people to ensure that they were going to move to Manchester and Salford, where MediaCityUK now is. I feel as though I have been there before.
However, I want to speak about east London, because I have had a strange involvement with it. I worked with Michael Heseltine as a Minister when we first came into Government—he is now my noble friend Lord Heseltine, of course—and his energy and enthusiasm was considerable. The first thing we did when he became Secretary of State was to get in a helicopter and fly over the whole of that dockland area. There were 5,000 derelict acres within a mile and a half of some of the most expensive real estate in the world, which was the City of London. After our helicopter flight, we came down and got into a bus with some of the most militant left Labour leaders of the various boroughs that existed in that area who were absolutely determined that nothing interfered with their own sovereignty over those areas. From that came: the Local Government, Planning and Land Act; the creation of the London Docklands Development Corporation; the creation of two most remarkable chairmen and deputy chairmen in the shape of the late Sir Nigel Broackes and the late Lord Mellish, who many of your Lordships will remember as the deputy chairman. He took on the hard left at some pain to himself, and with real difficulty, because he saw the benefit it was going to bring, and the life that he could bring to an area that was so totally derelict at that time.
It did take considerable investment. Having set up the development corporation and given it the planning powers for the area of the Docklands that had previously derived from five different councils that could never agree on what should happen, one figure sticks in my mind. The investment required in one particular area meant we were spending £500,000 per acre—a lot of money on those days—to deal with the contaminated land problem, before you could even start thinking about any construction. Subsequently there was Canary Wharf and the various other wonderful developments that exist there. I remember also on the housing side that we lined up five different volume house builders and gave them each land to build 500 houses. I do not want to dwell on Labour but they were all Labour boroughs at that time, of a complexion that I hope the Labour Party has now well left behind in its present creation. They said to us, “People do not want to own their own houses. They like being council tenants and we look after them.” That, of course, was the source of the power of much of the leadership of those councils. When the opportunity arose to buy 2,500 houses for sale and with preference given to the people living in those London dockland boroughs, the queue down the road on show day was a mile long, formed of people who were determined to have the chance they had never had before of owning their own homes.
Subsequently, when I came out of government, because of my previous involvement in the Docklands area I was approached to look at the possibilities of 100 derelict acres on the Royal Victoria Dock. I did not really know the Royal Docks very well at that time. They were one of the wonders of the world in Victorian and later times with a 1,000-acre estate and 250 acres of enclosed water—the largest enclosed water space in the world—where 150,000 people worked in their time. This was hallowed land for all those people who had worked in the docks for generations in east London. It was also derelict. When I first went to the 100-acre site on the north of the Royal Victoria Dock, the only living things I saw were two foxes. Now, after much pain and struggle, if you go there now you will find a million square feet of exhibition space, a 5,000 seat convention centre, six hotels and three DLR stations. At this very minute, the Crossrail line is starting to be dug that will come right through and surface at the Royal Victoria site.
It is rather appropriate that we are having this debate. Tomorrow the Emirates Air Line, which is the cable car that runs from the O2 to the ExCel centre, will open. It owes a great deal to the enthusiasm of the mayor, who managed to persuade the Emirates airline that it was a wonderful thing to have its name on it and to put up the money to help to build it. That will be another asset to the site.
It is interesting to see the challenge. Picking up on the point made by the noble Lord, Lord Mawson, having gradually got that critical mass together, east London is where it is all now happening. When we started out on this venture, and I talked about the possibility of an exhibition centre and we talked about the Royal Docks, there was a tremendous west London bias in this great city of ours and people said, “Nobody will ever go there”. A lot of people said, “Where is it?”. They thought that it was somewhere near Southend. There was quite extraordinary ignorance. Even now, you will find quite a lot of people in London who have never been to Canary Wharf, and hardly know that it is there. It is now the great growth area, as the noble Lord, Lord Mawson, said. That whole area, with the Olympics, other developments, London City Airport, the university and with Tech City, brings a critical mass together.
I was delighted to see, because I obviously have to declare an interest with my involvement in ExCel, that while when we started on the convention centre London was 19th in the world for its share of international convention business, in our third year we had already gone from 19th to ninth. We are now seventh in the world; that is competing with Atlanta, Munich, Barcelona, Paris and the major cities of the world. This is a great opportunity. It will grow because the other merits of London mean that it must be in the top three. Now that we have a major convention centre, I hope that we shall see not only business for the convention centre but the added value—the multiplier—and benefit that it brings in, perhaps by bringing in a medical convention with 20,000 or 30,000 consultants and their families.
The particular pleasure that we all have is that it is taking place in the most deprived London borough, Newham, with the co-operation of a very energetic Labour Mayor of Newham, Sir Robin Wales, who has done an outstanding job for his borough. Yet there is so much else to do. Standing on the balcony of ExCel, for the past 20 years I have looked out at the other side of the dock. There is a site with nearly 100 acres that have lain derelict. They were owned by the LDDC, then by English Partnerships, then by the LDA, then the GLA. This is a failure to get the drive together. Now we see the opportunities.
My concern, shared by practically every noble Lord in this House, is how we are going to earn our living in the world in the future. One of the things that we have to do where we see opportunities for growth is to make them work. It is not a question of which Minister will be responsible for this, because we have got a mayor. Where you have a mayor, you have an extra dimension. Cities which fail to choose to have a mayor are missing out in a big way because that is where the opportunities will come. I hope that we shall see the sort of leadership that the mayor has shown to be possible in east London reflected across the other cities of our country, which we know need that growth so badly at present.
Lord Storey
I am grateful to the noble Lord, Lord Mawson, for initiating this debate. We are talking about new metropolitan districts. I come from a very old metropolitan district or, as we now call it, the Liverpool City Region. Liverpool itself celebrated its 800th birthday in 2007. As the noble Baroness, Lady Hughes, reminded us, the following year it became the European Capital of Culture.
Liverpool at one stage was regarded as the second city of the then British Empire. It lost its way very much in the 1970s and 1980s. The 1980s were a very difficult time for Liverpool. There were huge job losses: Tate and Lyle, Dunlop and Triumph Motors. Thousands of people were losing their jobs. That impacted, of course, on the social fabric of the city. It also impacted on the political fabric of the city.
Liverpool suffered other problems. There were the so-called Toxteth riots. There was the portrayal of Liverpudlians; they became the butt-end of humour and jokes. Liverpool went through a very difficult time. As the noble Lord, Lord King, reminds us, I remember Michael Heseltine coming to the city. He got a helicopter and flew over Merseyside to look at it. He got the civic leaders together. He got the business leaders together. I was a young councillor, the chair of education, at the time. You could actually see the way Michael Heseltine changed his views on these great northern cities.
I was elected leader of the city council in 1998. I was lucky in my first year to go to New York and Dublin, two cities which also turned themselves around. I remember talking to the civic leaders and asking, “How have you turned yourself around and regenerated your cities?”. The answer was the same in New York as it was in Dublin. It was one word: “confidence”. You have to create confidence in your city. Governments and councils do not create regeneration or jobs. They create the conditions for businesses to flourish, to create the wealth, to create the jobs. They said, “You will know that you have been successful when you can count the cranes on the skyline”. I became obsessed by this. I would drive into the city centre, counting the cranes to see whether we were changing the city around.
The next thing I realised was that you had to look at the things that were unique to that city and make it work. We worked closely with Manchester—I worked with Richard Leese—looking at the areas with which we could be compatible and the areas that were distinctive to our cities. We looked at Liverpool and thought, “Gosh, here is a city which at one stage was in the top four retail destinations in the UK”. It had slumped out to the bottom 20. Thanks to a £1 billion private investment from the Duke of Westminster, we created Liverpool ONE, which was at the time Europe’s largest retail and leisure development: 1 million square feet. We are now back in the top five retail destinations.
We looked at our universities and thought, “Gosh, these are top, world-class universities with real talent and expertise. How do we bring them into the regeneration of the city?”. We did that. We worked with them. For example, we worked with the Liverpool School of Tropical Medicine, a world leader, to link with the pharmacy industries in the city. Thanks to Bill Gates, who gave huge amounts of money to develop serums for third-world countries, we used their expertise. With the other two universities, we created a science park which has gone from strength to strength.
We then looked at other things that were special. Liverpool has a river. You did not see any cruise liners coming along the river. Yet the cruise liner industry was prospering throughout the UK. So we used European Objective 1 money to create—we have to be careful what we call this—a cruise liner facility. We could not call it a terminal, because it might upset Southampton. That worked. The present council is looking at a cruise liner terminal: a turnaround facility. To make that happen we have had to pay back to the Government £7.6 million. That £7.6 million was European Objective 1 and Northwest Regional Development Agency money, so I ask the Minister whether she will look at that money coming back to Liverpool for other regeneration projects, as that was what it was originally for.
We looked at music and the conference business. Liverpool has a culture of music. At one stage it was classed the “capital of pop”. Why the capital of pop? We had more number one chart-toppers than any other city in the world. I bet there has never been a quiz in the House of Lords. Do any noble Lords know what the first number one was? It was “(How Much Is) That Doggie in the Window?” by Lita Roza. Paul McCartney came to the city and we had to create an outside concert arena. We built a conference and arena centre and that has gone from strength to strength. So I think that regeneration is about creating the conditions for businesses to succeed; creating, if you like, as Michael Heseltine did in the 1980s, a vision and a plan of where the city should go.
I should also like to pay tribute, at the opposite end, to the noble Lord, Lord Prescott. He established the first regeneration company in Liverpool, which brought together local authority and business. It was strange sitting next to Terry Leahy, for example, who was one of the directors of Liverpool Vision. Again, they put together a plan of how the city could create the conditions for regeneration.
There are lessons for the new metropolitan districts to learn. Those lessons are very simple indeed. It is not about Governments saying, “One size fits all”; it is not about Governments telling us what should be done. We have done that in the past, where Governments say, “This is what you must do: inner city partnerships or urban aid”. Cities are unique; they have unique conditions, unique problems and unique solutions. Nor is it about the sort of government which was the fad of the previous Government and which seems to be happening now, where you bid for everything, and it is a bit like a beauty parade. The noble Lord, Lord Greaves, reminded us of this earlier. Now the beauty parade often involves celebrities, so that Mary Portas comes and looks at our high streets. It should not be like that; it should be about what can work for that city and those people.
The other thing I want to say is that it is not just about the physical environment of the city. It has to be about the people themselves. Cities have to “skill up” their young people. If one talks to any business, the message that comes out loud and clear is that young people need skills. I have been talking to two different businesses. Cammell Laird shipbuilders has suddenly blossomed again. It was a world-class shipbuilder, which collapsed and closed down. A group of senior staff started a small ship-repairing business, which has grown and grown and now has a turnover of £400 million. It is now looking to become even bigger than that. When one asks the company, “What is holding you back?” it says, “We need the skills. We have our own apprenticeship course. We take on 20 apprentices per year. It is a four-year course and we pay for it ourselves, But we still need more people with those skills”.
Last week in Manchester I talked to people in the textile industry. Manchester University has the only textile manufacturing degree course left in the country. Everybody who goes on that course can get a job. Yet the textile industry would like to expand that course and develop the industry. When one talks to companies they say, “We need the skills”.
I agree with the noble Lord, Lord Heseltine, when he said in this Chamber that he was,
“very critical of the past 100 years of government responsibility for education. Our industry depends on world-class results if it is to create and sustain first-class jobs”.—[Official Report, 22/3/12; col. 1052.]
How right that is. Equally, however, Governments have been responsible for chopping and changing education. So—I am going to shut up.
The Lord Bishop of Birmingham
My Lords, I stand in place of the right reverend Prelate the Bishop of Liverpool, who is unavoidably detained and cannot attend your Lordships’ House tonight. I hope that I will be an adequate substitute, having been the bishop of Birkenhead, where I had an excellent view of Liverpool for six years of the first part of this century. I was also chair of the Wirrall local strategic partnership, which wrestled with some of these issues, and I now chair the Birmingham social cohesion process under a new government in Birmingham which is trying to look mayoral—and we will see how it goes.
I am delighted that the noble Lord has tabled this Motion, not least because he himself has pioneered models of regeneration that have transformed neighbourhoods into communities. We have heard a lot tonight about these large, multibillion investments, which as a former businessman I fully appreciate and think are absolutely vital. At the same time, however, our experience over the past few years in the north of single regeneration bids, which were largely business-led, and the new deals for communities, which were largely community-led, has been that both produce results. They both produce some of the things that we have been talking about in terms of skills and new investment. However, it is our conviction that they have to be held together—that the regeneration must be twin-engined, if you like, with leadership from both the business world and the community. We have touched on this in some of the speeches tonight. Of course business is vital to creating jobs and to sustaining the welfare of families and communities, but community also is vital—for unless local people are involved, there will be no ownership, no pride, no transformation and perhaps, echoing the noble Lord’s statement, not even any confidence.
I am delighted to hear that Cammell Laird is now back in business. This will be an enormous attraction to the local people living in the river streets of Birkenhead, who found it so difficult to move anywhere further afield when that shipyard closed years ago.
We have not yet mentioned—perhaps I dare to mention—local enterprise partnerships. I understand that in the Liverpool city region, the LEP is advancing rapidly, with strategies for low-carbon economy and sustainable action plans. This perhaps broadens the picture but also takes us into that sense of wider responsibility as we try to achieve growth today. The north-west is the most renewable energy-rich region in the country and is capitalising this asset. Of course we also have the knowledge economy—some of these things have already been referred to—tourism and the motor industry, all being promoted vigorously by the Liverpool city region LEP.
If we go further back—I think that these have already been mentioned—the regional development agency in the north-west recognised the importance of engaging the local community as well as business in the regeneration of the region. I hope that the Minister might comment on whether the engine of renewal that brings both community and business together might be reignited by the LEP. I give as examples investment in the Florence Institute for the regeneration of Toxteth; investment in Mersey Forest to transform blighted urban areas which might not quite benefit from even as wonderful an investment as Liverpool ONE through the Grosvenor Estate; and investment in Faiths4Change, which engages faith communities in transforming local environments. These and other such initiatives enable areas to be even more attractive, not just for local residents but for businesses.
There is an inextricable link between economic and community regeneration. I trust and expect that this will be reflected in the boards of our LEPs and their strategies for growth and regeneration.
Lord Greaves
My Lords, I too would like to thank the noble Lord, Lord Mawson, not least for adding the critical words “north-west” into his Question, which allows some of us to make a bigger debate than it might otherwise have been. I am grateful for that. I will declare a slightly extended interest—and I will explain why, because my interest leads me into what I am going to say. Many people have been bragging about what has been going on in their areas. I can brag for Pendle until the day I die. I am not going to do that; I am going to set out some of our difficulties at the moment. Nevertheless, I declare my interest as an elected member of Pendle council, which is a small district council in east Lancashire, so it is not a metropolitan area. It is an area of 19th century cotton towns; they are no longer cotton towns, there is very little left, but that is what the area is, surrounded by our wonderful Pennine countryside. Towns in the area, such as Accrington, Burnley, Nelson and Colne, have the problems of metropolitan councils and inner cities but the resources of small districts. That is a serious problem that areas like ours around England have.
Regeneration tends to be focused on the big cities and metropolitan areas. The concept of city regions was not invented by the coalition Government; it became the vogue quite a few years ago. But from our perspective, it is a concept which has flaws as a universal model. I am not in any way denigrating the vital role that big cities play throughout England, which is where we are talking about, or in Wales and Scotland. The major regional centres, after London and the south-east, have been the great success story of England in the past couple of decades. For all the problems that they still have, places such as Manchester, Newcastle, Leeds and Norwich have gained status and economic importance. For example, Leeds’ financial importance is far greater than it used to be. I am in no way saying that that is a bad thing. In particular, these cities are a counterbalance to the tendency otherwise of London and the south-east to suck in resources, growth and development. Again, I totally recognise all the problems that there are in the East End and other parts of London.
There are two problems with regarding the city region concept as applicable to everywhere else in the country. There are areas where it does not sensibly work. Areas need to be looked at in a different way. For example, you could say that Cornwall and Devon are perhaps part of the Plymouth city region. However, that is not a sensible way of looking at the economy, the communities and the way that the Cornubian peninsular works.
To regard a huge swathe of places around Greater London, the south-east and further on simply as part of the London city region, which they clearly are, is not enough. It is not enough to say to Hastings or Brighton that their problems can be solved and their needs tackled by considering them as part of the coastal area of the London city region. Their problems are much greater than that and are more complicated. Of course, if we are not careful, there is a problem in city regions that the big city centre can suck in all the growth and resources as well as a large proportion of the people. There is a natural tendency for that to happen.
In my view, one of the jobs of the Government is to act as a countervailing force against that. There are also areas which, with the best will in the world, do not fit into city regions. Which city region do West Cumbria, Whitehaven, Workington and Barrow belong in? City regions do not make sense when you are considering the future of those areas. East Lancashire—or Pennine Lancashire, if that is how you like to call where I live—is on the fringe of perhaps the Manchester city region or the Leeds and Bradford city region. But it does not make a great deal of sense to look at our future simply by considering our relationship to those big cities—welcome as it is to have the news from the Government that the Todmorden Curve will be built and Burnley can have a regular railway service into Manchester.
My noble friend Lord Storey used the words “government fads”. One of the problems is that Governments have fads. When there is a change of the Government, the old fads are thrown out. Housing market renewal brought huge resources. It was flawed but people were getting a grip on it and it was nothing like as bad as the press that it got. In my area, it brought in £10 million a year to each district local authority area, which certainly in Burnley and Pendle we were using in sensible ways. That suddenly stopped and it has caused chaos. There are huge problems of schemes being half finished and a need to look around for resources to finish them. It causes problems for people who were promised things but who now find that they will not happen.
That does not only happen when a new Government are elected; it also happens when the Secretary of State changes and so on. They bring in new fads. One of the latest fads, which my noble friend mentioned, is the Mary Portas scheme. The work that she has been doing is excellent and helpful, and it helps people to think. But the competition for pilots leaves a great deal to be desired. There were 371 bids and 12 pilots have been approved, one of which was in Nelson, Pendle. We are quite good at such things, and we are very pleased to have that money and to have those resources. But 371 places have put in the time, effort and cost of making the bids, but only 12 have been approved, with another 15 to come.
Empty housing is a huge problem in areas like ours. All the ways in which we were trying to deal with this under the previous Government have been largely pushed aside. We now have the empty homes fund—for which Pennine Lancashire and East Lancashire generally bid—and we have won some of that as well. In Pendle, it will result perhaps in £3 million or £4 million-worth of new investment in different ways, working in partnership with landlords and housing associations, to tackle the problems of empty housing in our area. A lot of it will be in the ward that I represent on the council, so I am not totally against this kind of thing.
The things for which you can bid for money and the ways in which you can get resources change with the Government and the Secretary of State. That is not an efficient way to do things. The old way is stopped, with all the inefficiencies that are involved in doing that, and then you have to start again with the new way. Bidding takes an enormous amount of resources. There are some pros, including getting people to think, and good ideas are spread around. Sometimes when schemes are worked out, people find that they can do them anyway. A large amount of waste is involved in these schemes.
We have to get back to an acceptance that regeneration is not just about cities and city regions. It is also about smaller places, such as the Barrows, the Workingtons, the Whitehavens, the Great Yarmouths, the Hastings, the Accringtons, the Burnleys and the Nelsons and Colnes of this world. I am a great believer that the purpose of government resources is to provide a basis for getting funding from the private sector and other areas, and for providing a way in which the local economy can work. In simply doing it all, the multiplier effect is huge. We have to get back to the principle that government resources are handed out and provided objectively on the basis of need and not on the basis of slightly bogus competitions according to the latest fads of Ministers.
Baroness Howe of Idlicote
My Lords, it has been fascinating to listen to the personal experiences of noble Lords who have been involved in the development and creations in their areas over recent years. Of course, I particularly want to congratulate my noble friend Lord Mawson on tabling the debate. It is important to hear how the Government see their plans for the future, especially as to how the legacy aspect of these operations is developing now that we are so close to the start of the 2012 Games. In this House, we are very lucky to have noble Lords who have been involved in competitive sport and now are very active in the entrepreneurial side of this whole area of development.
I will confine my comments to the east London 2012 Olympics and Paralympics site and its proposed legacy, although, of course, the major relocation of the BBC to the Salford area will have an effect on the reporting of the Olympics. In addition, the major reconstruction already achieved in that metropolitan district, which includes the University of Salford and other areas that have been mentioned, is already providing new jobs and attracting considerable business investment interest.
However, East London is the area that I know best. We have always had a London home south of the river and currently live just off the Old Kent Road, which is very close to the Peckham Settlement, which my old school supports and of which I have been president for nearly 40 years. The East End—particularly Poplar, which contains areas of considerable deprivation—is where I have made most of my more active volunteering efforts, especially governing and managing many schools in that area as well as doing juvenile court work.
Some 30 years ago I was invited to visit an exciting new project in Poplar, in an area where most of the inhabitants were recent immigrants. The East End of London has always seen a flow of immigrants in that particular place, but certainly in this area the inhabitants were pretty recent. It turned out to be a completely different concept, pioneered by a new vicar, who, on arrival, found that his church congregation consisted of two old ladies, with water dripping through the light bulb. Within a very short time he had turned the church into a very different, active community centre, albeit retaining a religious centre for worship purposes.
Somehow this vicar had raised money to build small, friendly houses with gardens to complement the area’s endless blocks of council flats. He improved considerably all the open spaces and, most importantly of all, raised money to build a medical centre, which meant that the local people, not the local authority, could choose the doctors and nurses who worked there. Workshops, too, were set up where skills were learnt and, indeed, passed on to immigrants, who had brought different skills into the country. Setting up new small and medium-sized businesses was encouraged. It was clearly an innovative and very successful regeneration model that has subsequently been followed in many other parts of the country. Unfortunately, I did not meet this remarkable vicar at that time, but it was no surprise when, in 2007, he joined us in your Lordships’ House as my noble friend Lord Mawson, of Bromley-by-Bow.
To return to the 2010 London site, some of your Lordships may have been on the exhilarating trip that we were offered by British Waterways some six months ago to go and inspect progress. We set off from Westminster Pier, bouncing along at high speed in three or four rubber boats. We reached the Isle of Dogs in record time and turned left into the canal network. The canals were far from clean; there was even a rumour that they should be covered up and hidden during the Olympic Games. True or false, the far more sensible, and clearly money-making, approach was under way: that they should be cleaned up and used for transport and organised tours. Certainly our tour showed the remarkable progress that had already been made, with many of the buildings to house competitors already up, as well as the main stadium and the Olympic swimming pool. In addition, the river banks and other open spaces, recently planted, were beginning to show the green grass coming through. I imagine that the massive amount of rain that we have had during our so-called summer has had a great effect on improving that still further.
By now the scene is very far advanced. That is why it is right to concentrate on the east London legacy prospects. It is sad, of course, that the recent financial horrors meant that practically no private investment was originally available for investment in that basic Olympic site. However, there is already increasing interest from overseas businesses wishing to be part of this considerable future growth potential, although, as we have heard, there is clearly a need for the Government to ensure that our own business entrepreneurs are equally aware and do not miss out on what are quite clear opportunities.
Canary Wharf already contains an example of a modern enterprise zone, and there are plans for building a new metropolitan district close by. When you think that the architect Piano has just completed the brilliantly inspired, iconic sky-scraper building known as the Shard, you will begin to see the potential for inspiration for other designs. There is also, as we have heard, the planned expansion of City Airport.
It is clear that overseas business entrepreneurs are seeing the site’s exciting possibilities. Above all, we must ensure that the local people, particularly the children and the schools in this part of London, inherit and really benefit from a significant part of the promised legacy. There will be a continued demand for premises for athletic events, but much more than that can be passed on. There is great potential for this area. It is a vital part of London that is close to Europe and the global world that we now live and compete in, as others have mentioned, so it is very important that we move in this direction. If that is the plan and that is how the Government are thinking of promoting all these areas and doing their vital best for the people who live in that area, I hope that we will hear about it, not just this evening but well into the future.
Lord McKenzie of Luton
My Lords, I, too, am grateful to the noble Lord, Lord Mawson, for initiating this short debate. I might have been even more grateful had he included Luton, and possibly Pendle, on his list of places, because it would have enabled some of us to join in the passion, advocacy and knowledge that has been displayed this evening by people in respect of the areas that they know best and that they have been involved in for many years.
The noble Baroness, Lady Howe, talked about east London and the Old Kent Road, and the involvement of faith communities in regeneration. She also touched on issues of diversity, which is something that we know quite a lot about in Luton but that perhaps has not featured as prominently as one would have thought, since it is a common feature to pretty much all the areas that we have talked about this evening. I think the noble Lord, Lord Greaves, is right to say that regeneration is not just about cities. I well recognise the problems that might be inner-city problems of resources that are not necessarily at a city level. As the noble Lord would not consider Brighton to be part of Greater London, neither would we consider Luton to be part of Greater London. However, he did touch on the issue that has been an integral part of regeneration for some time: the need to bid for resources. When there are, I believe, 371 bids for support for Mary Portas’s project but only 12 approved, that cannot be a particularly efficient way of proceeding.
The right reverend Prelate the Bishop of Birmingham —substituting in part, I think, for the right reverend Prelate the Lord Bishop of Liverpool—took us back to SRB programmes and the New Deal for Communities. I remember the New Deal for Communities in Luton; it created a furore because it could be focused only on an area of some 4,000 households. We had pockets of deprivation, and trying to work out which one got it was really quite difficult and traumatic. Nevertheless, the right reverend Prelate rightly focused on the twin engine of business and community for growth. I am pleased that the leap that he is aware of is proceeding rapidly. It has been a mixed picture across the country, as I understand it. Perhaps the noble Baroness might update us on that.
The noble Lord, Lord Storey, talked with passion and knowledge about Liverpool and the difficulties of shaking off a sometimes negative image. People will remember the riots—we had riots in Luton—which is somehow the image that is carried forward, whatever good work and regeneration are otherwise going on. Like him, we used to look at cranes in the sky as a measure of how well we were doing.
The noble Lord, Lord King, reminded us about east London and Canary Wharf, which is a fantastic development. In part it mirrors what happened in Manhattan. All the action was at Wall Street and no one thought of developing the centre until the Rockefeller Center was created, which has been hugely successful. The noble Lord made an interesting point about housing and home ownership. I partly recognise the point that he made, but I wonder whether people would be in exactly the same position now. A lot of houses have been swallowed up and have not been replaced, and young people in particular are finding it very difficult to get a house even to rent. I think that the noble Lord was right: this is about vision. That seems to be the common feature, whatever the story regarding regeneration. That featured in the contribution of my noble friend Lady Hughes, particularly in relation to Salford Quays, which was a driver for significant private sector investment in Salford. I think that the strap-line was “aspire to inspire”. A quite strong statistic is £7 of investment for every £1 of public subsidy.
The noble Lord, Lord Mawson, talked about the major change that he had seen in east London. A phoenix rising from the ashes was the expression that he used, with six and a half miles of waterway. Sadly, in Luton the River Lea stays mostly underground, but perhaps we can work on that. The noble Lord is right to say that east London has been put firmly on the map of the UK. Obviously what happens post the Olympics is going to be very important.
During the remainder of the time that I have, I should like to concentrate on the Government’s role in and approach to regeneration generally, not necessarily specifically in the areas that have been touched upon. As to what regeneration actually means, I would adopt the Select Committee’s definition of it being,
“a long term, comprehensive process which aims to tackle social, economic, physical and environmental issues in places”,
of deprivation,
“where the market has failed”.
Of course, it encompasses, but is not limited to, growing the local economy. The question posed by the noble Lord, Lord Mawson, is whether the Government have plans for a co-ordinated approach that would encompass the north-west as well as east London. As I understand it, the position is that the Government have no plans to publish a national regeneration strategy of any sort and therefore do not necessarily approach these matters in a national strategic way.
I do not propose to comment further on the detail of the specific challenges, progress, successes and disappointments of the regeneration of either east London or the north-west, because we have heard from others fantastic testimony to what has been achieved.
It is understood that the Government set their face against a national strategy because they consider that regeneration should be a matter for determination at the local level, and their role is to provide the means for local communities to do this. From what the noble Lord, Lord Storey, said, I think he would agree with that approach. We support a true localist agenda, but it does not have to be inconsistent with a national strategy. We can support many of the individual tools, flexibilities, options and powers that are being provided to local communities, although some of them are as yet untested. We will be spending time over the next few weeks examining whether the business rate retention scheme, as proposed, is an effective incentive for local authorities to promote growth. Tax increment finance is something that we have supported, although the Treasury looks to be restricting local freedoms in this regard for TIF 2. We have supported enterprise zones.
As we have heard, local leadership is vital, although the Government seem to have misread the mood in major cities in equating this with directly elected mayors. I do not think that that is a point that the noble Lord, Lord King, would necessarily agree with; he would see it as a missed opportunity.
The general power of competence for councils and the prospect of a transfer of public functions to major cities is also something that we have supported through the Localism Act. We have a shared aim of encouraging powerful and innovative cities to lead their areas. It is early days for the new planning system. Whatever the challenges, at least the regional spatial strategies provided a strategic setting. It remains very difficult to see that the duty to co-operate is a sufficiently robust alternative when it comes to those sensitive but sometimes vital planning decisions.
Anyone who has got close to regeneration projects will know of—we have heard about it this evening—the importance of community support and engagement, and the need for capacity-building. Therefore, we support the Government in continuing to seek to put the community and community groups at the heart of regeneration. This is nothing new. However, the ability of communities to respond is clearly being hampered by cuts to regeneration funding and the savage cuts to local authority budgets. The Select Committee report mentions that many of the community groups most closely involved in regeneration are uncertain about their future.
Funding will always be difficult, but it has been the speed of withdrawal that has created special problems. We have seen the demise of RDAs and the termination of the working neighbourhoods fund and the local enterprise growth initiative. It is acknowledged that there are new funding streams, but the Select Committee suggests that these—the new homes bonus, the regional growth fund and the investment in rail—are perhaps not focused primarily on regeneration.
There is concern that, by concentrating on growth and the provision of levers to facilitate this, the Government are skewing the regeneration effort and not doing enough to tackle the broader and multifaceted issues that comprise deprivation—issues that affect the north-west, east London and, indeed, all parts of the UK. Notwithstanding their commitment to localism, they should produce a national regeneration strategy that encompasses the broader issues of health inequalities, skills gaps, the prevalence of crime, worklessness and poor housing: a strategy that shares the benefits of community engagement, partnership working, local leadership and working with the private sector—indeed, a proper strategy for regeneration.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, I expected this to be a well informed and interesting debate. If I may say so, it is an unusual debate for this House, and it is one that perhaps we ought to repeat more frequently. I thank the noble Lord, Lord Mawson, for having generated it. I acknowledge immediately, as many others have done, that it is his own role, particularly in the East End of London, and his own experience that make him such a powerful voice in these areas. I also thank all other noble Lords who have taken part in the debate.
Although the speeches have concentrated mainly, as one would expect, on the north-west of England and on east London, the question was: what are the Government going to do about the co-ordination of regeneration? The question of the national strategy crops up immediately. The reason why we are not interested in a national strategy is that it imposes a one-size-fits-all concept. What we need to do is make sure that the levers and mechanisms are in place to ensure that a strategy can be localised. I want to spend a few minutes saying what the Government have done over the past few years to lay the groundwork for regeneration and to provide the catalysts.
Twenty-four planned enterprise zones have been set up and they are already engaged in supporting business growth and creating jobs. Noble Lords have mentioned the importance of skills and training and that will be part of enterprise zones. I totally agree that skills and training are vital to the future of commerce and local areas. The enterprise zones employ special business rates. Local enterprise partnerships, mentioned by the right reverend Prelate the Bishop of Birmingham and the noble Lord, Lord McKenzie, are beginning to work very well. As always with new things, some will do better than others, but many enterprise partnerships are now fully engaged with local authorities, businesses and civic leaders across the country and they are involving their local communities. I want to emphasise this all the time. Regeneration is about local and local people, communities, businesses and authorities need to be taking the initiative in what has to be done while having the background to be able to do it.
We are supporting small businesses by cutting bureaucracy and addressing their challenges. We are supporting housing regeneration with a commitment to bringing empty homes back into productive use. We are still investing over £6.5 billion in housing, including over £2 billion to make existing social homes decent, and we are continuing with the programme of investment through the European regional development fund. More than 45,000 jobs have been created or safeguarded and nearly 10,000 businesses have been created already. So there is plenty for people to build on and I want to reassure noble Lords that the Government are fully committed to regeneration and see it as essential, both in city areas and, as the noble Lord, Lord Greaves, said, in rural areas, which in many ways often need as much help as the city areas.
However, the Government do not believe that they should dictate to local authorities. One of the things that has gone wrong in the past is that it is all being done on top of them. We want to make certain that local authorities and local enterprise partnerships know what their community wants and needs and then that they have the tools to deal with it. We do not want to plan and prescribe but we do want to help local people to get things done. It would be fair to say that in the north-west and in east London there has been and is really strong leadership. I have had the pleasure of going up to the north-west to Manchester, Sheffield and Liverpool within the past year or so and I am astounded at the progress that has been made there and the changes that have come about. Some of that has been to do with European funds, some has been to do with government funds and a whole lot has been to do with the leadership that has made sure that those local areas are put to rights, replacing the industries that have gone and starting to look to the future.
There is an extraordinary scale of regeneration taking place, particularly in the north-west and the Olympic area. In both the areas being discussed today a large part of what has happened has been based on sport. Manchester hosted the Commonwealth Games 10 years ago and east London, of course, is doing the Olympics now. In east London the Government have made significant long-term investment and are supporting a transport infrastructure as well as the developments delivered by the London Thames Gateway Development Corporation and all the other developments. My noble friend Lord King rightly drew attention to the fact that all this started with the noble Lord, Lord Heseltine, and the noble Lord, Lord King, himself. They were great visionaries determined to see things change. That again was the catalyst.
The Olympic host borough unit is a good example of how joint working between boroughs and agencies can bring about change. It is developing a concerted plan to tackle the long-standing deprivation in the boroughs affected, especially raising the skills and education of local people, and the long-term worklessness that has blighted families for too long. I think that proper attention was given to the mayor of Newham who has been very instrumental in what is going on.
The challenge on convergence and the idea that within 20 years communities that host the 2012 Olympic Games will have the same social and economic chances as their neighbours across London is embedded within the strategic regeneration framework. There is a clear action plan to achieve this. It distils an existing set of strategies created by local agencies and the Government into a coherent common agenda to get local residents into jobs and to extend their life expectancy. It is not an ethereal concept as working towards convergence has brought about tangible success stories—not just the schools, health centre and multi-million pound retail centre within the park but the regeneration of Stratford High Street, to which the noble Lord, Lord Mawson, referred, the improvements to the public realm, and the development at Strand East. Convergence is demanding but not easy to achieve.
The handing over of the Olympic park is another example of how the Government have helped facilitate an alliance between the mayor and the Olympic host boroughs, enabling him to set up the London Legacy Development Corporation. That will be the carry on after the Olympics and it is really important that the legacy of the LLDC does its job. We will all have to ensure that it does—as I am sure it will. It is under the eye of the mayor now and it will be very much in his interests that it is satisfactorily completed.
Turning to the comments of the noble Baroness, Lady Hughes, about the north-west, I think that I said how impressed I was by what has been going on there. She asked a couple of specific questions, one of which was about broadband. I am fumbling around with too many bits of paper here. I cannot give the exact position on broadband but the European regional development fund has recently been opened up and the north-west is one of the areas that will benefit in terms of broadband. I am not certain when it will start but I will let the noble Baroness know. Money is available for that and it should come round in the not too distant future. There is not only Manchester; there is the Sheffield enterprise zone. The right reverend Prelate the Bishop of Birmingham referred to Liverpool and other places and the regional development areas there. The noble Lord, Lord Storey, painted a brilliant picture of Liverpool and what has happened to it. It has one of the finest marine areas which is becoming such a success story. I am not in the least pessimistic about what is going on. In fact, I am enormously encouraged because not only is regeneration being galvanised but it will carry on because local people will want to ensure that their particular areas are improved.
I have about a minute and a half so I shall quickly deal with issues raised. The noble Lord, Lord Mawson, asked who is responsible when the Games end. Of course, that is the Mayor of London. It will be entirely within his remit and the new London Legacy Development Corporation particularly. On the issue of international trains not stopping at Stratford, we know there is an aspiration that they should, but a decision to do so is clearly a business case. If that is made out, I hope that one or two will stop there. There are lots of aspirations for Thames crossings and I am sure we will all be sitting on the cable car to make sure that we can get from one place to another.
I agree with the right reverend Prelate the Bishop of Birmingham that the twin-engine approach is right. We need to improve skills and life chances alongside physical regeneration. I have said that and it is obvious to me that there is not much point in having new buildings if we do not give employment and training to local people. I have been handed a note telling me that I have run out of time. It says, “Time up!”, so if I have not dealt properly with any of the points raised and questions asked, I will write to noble Lords. I am sorry that we have not quite had time to wind up the debate in the best way possible, but I thank all noble Lords again for a fascinating hour and a half.