Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Lord Geddes)
My Lords, as is customary on these occasions, I must advise your Lordships, although I am sure that everyone is aware of it, that if there is a Division in the House, the Committee will adjourn for 10 minutes.
Neighbourhood Planning (Referendums) Regulations 2012
Baroness Hanham
That the Grand Committee do report to the House that is has considered the Neighbourhood Planning (Referendums) Regulations 2012.
Relevant document: 3rd Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, the Localism Act introduced neighbourhood planning which enables communities to have a far greater say in deciding the future of the areas where they live and work—deciding, for example, where homes, shops and offices are built and which green spaces should be developed or protected. Parish councils and designated neighbourhood forums can use these powers to produce neighbourhood plans, which can become part of the statutory development plan for the local area as long as they meet certain conditions such as being in general conformity with the strategic policies of the local plan and neighbourhood development orders that again, subject to meeting basic conditions, can grant planning permission, removing the need for planning applications where development is consistent with the order.
Parish councils and community organisations could also use these powers to introduce a community right to build order, a type of neighbourhood development order that enables communities to bring forward small-scale, site-specific, community-led development.
Once a neighbourhood plan or order has passed independent examination and met certain legal tests, the Localism Act requires that the plan or order should be put to a referendum of the electors in the area concerned. The referendum is important in retaining the credibility of the principle that the community is in the driving seat of planning at the neighbourhood level. A referendum will give everyone in the community the opportunity to have their say and demonstrate evidence of community support in a manner which cannot be demonstrated through a petition or consultation.
The Neighbourhood Planning (Referendum) Regulations 2012 are not about the principle of whether a referendum should be held. This principle has already been established in the Localism Act which gained Royal Assent in November 2011. The purpose of these regulations is to provide for the conduct of referendums in relation to whether a neighbourhood plan, a neighbourhood development order or a community right to build order should come into effect. These regulations follow existing practice and largely replicate the Local Authorities (Conduct of Referendums) (England) Regulations 2012, which the House has recently considered. Council election officers are familiar with those.
Lord Jones
I am grateful to the Minister for giving way. Before our proceedings are ended, is it possible for her to indicate what the situation shall be in Wales, in the knowledge that, decisively, these matters are regarding England?
Baroness Hanham
May I answer that question before we finish?
We consulted the independent Electoral Commission, which undertook a public consultation on the referendum questions set out in Schedule 1 and on the ballot papers. As a result, the Government have adopted the questions and the form of the ballot papers exactly as recommended by the commission. Provision has been made, if appropriate, for combining polls for neighbourhood planning referendums and elections. The decision on whether to combine polls is at the discretion of the counting officer in discussion with the returning and counting officers of any other polls.
We already have more than 200 front-runner communities taking forward the new neighbourhood planning powers. The Neighbourhood Planning (Referendums) Regulations provide for the final step in the process by ensuring that the wider community has the final say on whether the plans or orders come into legal force. The regulations set out the necessary rules for ensuring effective administration of such referendums, in which the electorate can have confidence. They follow a well tried practice and will help ensure efficient, effective and consistent administration of any neighbourhood planning referendum. I commend the regulations to the Committee.
Baroness Eaton
My Lords, I thank the noble Baroness for the clarity with which she presented the regulations. As your Lordships will be aware, councillors play a central role to facilitate, encourage and champion local people becoming involved in planning. The LGA, of which I am a vice-president, has consistently supported the principles of neighbourhood planning as a tool available to local authorities, but has also highlighted the unnecessary bureaucracy of the Localism Bill.
These concerns have not prevented the LGA from working very constructively alongside DCLG and member councils on more than 200 front-runner pilots to test out the neighbourhood planning approach. Throughout the passage of the Bill, the noble Lord, Lord Best, strongly argued that neighbourhood planning referendums would be wasteful, expensive and divisive. I agree with him and the LGA on this matter. With 241 clauses and 25 supporting schedules, the size of the Localism Bill is quite something. In keeping with that scale of detail, these regulations add a further 122 pages of prescription to the 38 pages of detail on neighbourhood planning already found in the Act. It is disappointing that the new regulations are so lengthy, indicating Whitehall’s control over the minutiae of how the localist agenda works on the ground.
What are the problems with referendums? The first is expense. Actions with Communities in Rural England estimates that the cost of parish polls will range from £300 to £8,000. In line with this figure, the LGA estimates that running a referendum on the neighbourhood plan will cost in the region of £5,000. In the current economic climate this level of public expenditure is a core reason why it can be argued that referendums should be avoided it unless they are expressly required by local people, whereupon the cost could be justified.
Secondly, the process is wasteful. Local referendums are time-consuming, complex and expensive. A referendum would be important where there was a local disagreement, but surely they should not be required as a result of national diktat.
Thirdly, local referendums can be divisive. Local experience has proved that community-led planning works most effectively when it is based on consensus building, consultation and discussion. It would be far more appropriate to hold referendums only as a last resort if consensus could not be reached through other means.
Schedule 1 to the regulations details the questions that should be asked in a referendum. While the questions are clear and accessible, by their nature they give communities an either/or option. This reinforces why a referendum is not the most appropriate tool for community decision-making on a neighbourhood plan that may deal with a number of issues. Confusion could easily occur where respondents agree with some but not all parts of a proposed plan.
It is crucial that neighbourhood planning is not considered as the only mechanism for community involvement but is presented as one of a range of measures sitting alongside tried and tested local approaches.
Lord Shipley
My Lords, I shall say a word or two about legitimacy and the ballot box. Development plans and orders and community right to build orders are extremely important matters, and decisions made on each of them have to be legitimate and to be seen to be so. I understand my noble friend Lady Eaton’s position and indeed, as one of its vice-presidents, that of the Local Government Association, and I understand that some think that the proposed process is expensive and bureaucratic. However, I have concluded that there has to be a link between the ballot box and approved neighbourhood development plans and orders and community right to build orders.
Parish councils are elected and have a clear mandate for the decisions that they make. Neighbourhood forums, however, are designated—they are not formally elected through the ballot box—and it is not clear that they have the same degree of democratic mandate. It is possible anyway that the parish council, when elected, may have a split vote in adopting a plan or an order. For that reason, I have concluded that the regulations before us are correct in principle; that localism cannot just be about the rights of principal councils; that localism is about neighbourhoods, parishes and the rights and responsibilities of the people who make up those neighbourhoods; and that, if we are serious about trusting the people, the only way in terms of neighbourhood planning is to be certain what people think. That implies a referendum and the use of a secret ballot through the ballot box.
Lord McKenzie of Luton
My Lords, I thank the Minister for introducing these regulations. I am not sure whether they are meant to provide us with some light relief from the Local Government Finance Bill but they certainly offer almost as many pages as the council tax support default scheme, so the DCLG is keeping us busy. I shall pick up the theme of the LGA and the contribution from the noble Baroness, Lady Eaton.
The LGA points out that 122 pages of prescription are added to the 38 pages of detail in the Act regarding neighbourhood planning. The briefing that we have received from the LGA took us back to some of our debates on the Localism Act. Its view at the time, with which we have some sympathy, was that to insist on a referendum in all cases could bring about unnecessary bureaucracy and, as the noble Baroness has pointed out, could be expensive and indeed divisive.
On the matter of expense, the LGA estimates that a neighbourhood plan referendum could cost in the region of £5,000. Could we be clear that in relation to the costs, whatever they are, the Government see these as new burdens that would be funded centrally in respect of not only the cost of the referendums but all the other aspects of neighbourhood planning that require the local planning authority to support and, if necessary, offer finance to local regions?
There is the question of why we should incur these costs when there is clear support for a proposition that can be evidenced in a number of ways. I understand the point made by the noble Lord, Lord Shipley, that if there is a local development plan from the local planning authority, councillors are elected on that, as indeed they are on the parish council. However, there will be occasions when it is abundantly clear from local ward meetings or from local councillors for a particular ward that something is overwhelmingly supported, and that to force a referendum on that seems unnecessarily bureaucratic. Still, we are where we are on that.
The question asked in the regulations is very stark and demands a yes or no response to a particular proposition. Is not planning often more nuanced than that? By focusing always on the referendum with its stark yes or no choice, we will miss an opportunity where there is still room for a bit of exploration into the final shape of the plan. However, we are where we are, with a central diktat over every dot and comma.
The LGA reminded us that the Minister at Third Reading pointed out that the use of existing mechanisms for the creation of local government plan documents was an alternative route for a neighbourhood forum to go down—one which would avoid a referendum. Has this route been adopted in any of the front-runner pilots that are under way?
Baroness Hanham
My Lords, I thank those who contributed to this rather short debate. It is an extremely important point—and these are important regulations that set the basis for the processes that will be involved.
My noble friend Lady Eaton referred to the expense of holding a referendum. I was much gratified to have the support of my noble friend Lord Shipley for the proposition that referendums are an important part of the process. The inevitability that some people will not take part in the consultation on the neighbourhood plan or will otherwise be left out cannot be overstated. The process involves neighbourhood forums, and not everybody has to be part of a neighbourhood forum. Although the neighbourhood forums will have to undertake consultations, it is not impossible that some people may miss them—but they will not miss a referendum. It also seems appropriate, as the process is coming up from the grass roots, that the whole of the grass roots should be able to comment.
There are sound reasons for having a referendum. The cost, as we explained, will be borne by the Government until 2015. The Government have provided £50 million of new burdens money. I confirm to the noble Lord, Lord McKenzie, that the new burdens money will be there. That is to make the neighbourhood planning a success, and to ensure that local authorities can fulfil their legal duty to support groups and parish councils. It is pretty all-embracing as to what a new burden involves. As the noble Baroness, Lady Eaton, has said, the costs are estimated at between about £5,000 to £8,000. That, as I say, will be borne by the Government.
On business areas and additional referendums, which the noble Lord, Lord McKenzie, asked me about, it will not be possible to have a referendum of any kind in a designated business area until we make the business referendum rules. Those are not yet out, so these refer only to the neighbourhood planning, not the business area planning.
Lord McKenzie of Luton
Can we be clear on that? I think I understand. Does that mean that there will still be areas designated as business areas, but it is just that the additional referendum will not be part of the process?
Baroness Hanham
The noble Lord’s understanding is correct.
I was asked whether neighbourhood plans always require a referendum. They do under the Localism Act 2011. Under the Planning Acts they do not. It would be perfectly possible for a neighbourhood to put together a plan. As long as it conforms with the local plan being processed under the Planning Acts, it would not require a referendum. If it were done under the Localism Act, it would.
That probably covers the main points. The noble Lord, Lord McKenzie, asked me a couple of others, which I have temporarily lost.
Baroness Hanham
I am so sorry; I was shuffling away trying to find this. These are referendum orders for England only. Wales has not indicated that it needs them; if it does, that would be considered separately.
The noble Lord, Lord McKenzie also asked about the guidance on neighbourhood planning. To clarify the position on that, following the publication of the National Planning Policy Framework, planning guidance is now being reviewed with the practitioners to see that it is also enforced. We will be making an announcement shortly about when the guidance will be available.
The counting observers are permitted to view key parts of the election process to ensure that they are transparent. Whether they are individuals or organisations, observers must be accredited by the Electoral Commission. The agents of campaign organisations may attend only those parts of the process that they are specially permitted to attend, such as the counting of votes. The rules for their involvement in the process are clearly set out. My understanding would be the same as that of the noble Lord, Lord McKenzie: there will clearly be observers for those both for and against.
The Deputy Chairman of Committees
My Lords, I have no doubt that this will not be the last time that we blame the forthcoming Olympics, or at least the Olympic road network. The Minister is unfortunately not fully briefed on the next item of business at this stage. I suggest that the Grand Committee sitting is suspended until 4 o’clock.
Assets of Community Value (England) Regulations 2012
Baroness Hanham
That the Grand Committee do report to the House that is has considered the Assets of Community Value (England) Regulations 2012.
Relevant documents: 6th Report from the Joint Committee on Statutory Instruments, 7th Report from the Secondary Legislation Scrutiny Committee.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, I thank the Committee for its indulgence and I apologise for having had to ask for an adjournment.
The Assets of Community Value (England) Regulations 2012 add the necessary detail to the assets of community value provisions in Part 5, Chapter 3 of the Localism Act 2011. Although these regulations are laid in draft for scrutiny under the affirmative procedure, only the enforcement provisions require this. The remaining powers in the Act are subject to a negative parliamentary procedure. However, it was felt that it would be difficult to consider the enforcement provisions by themselves, and preferable to look at all the details in the regulations together. That is why the decision was taken to combine them in one instrument. The principles of the policy were discussed in detail during the debates on the Localism Act and the Act reflects these. However, for context, I shall briefly recap the rationale for the assets of community value scheme before discussing some of the specific regulations that I am aware will be of interest to the Committee.
Over the past decade, many communities have lost local amenities and buildings that are of great importance to them. Whether it is a village or housing estate shop, pub, community centre or local hall, many assets have gone, often without anyone locally being able to do anything about it. As a result, many communities find themselves bereft of the assets that can help to contribute to the development of vibrant and active communities. However, on a more positive note, the past decade has also seen a significant rise in communities becoming more active and joining together to save and take over assets that are important to them. More than 200 communities have bought their village shop and a growing number have been successful in saving other assets, such as their pub, from closing. It is exactly this type of community-focused, locally led action that the asset of community value seeks to encourage.
The provisions require local authorities to maintain a list of public and private sites—buildings and other land—that are assets of community value, based on a nomination from their local community. The local authority will list the asset if it considers that it furthers the social well-being or social interests of the community, or has done so recently and it is reasonable to think that it will continue to do in the immediate future. The asset will remain on the list for up to five years. If the asset still meets the definition after five years, it can be renominated and relisted.
If the owner of a listed asset wants to sell it, he must notify the local authority. Community interest groups will then have six weeks to lodge a non-binding expression of interest, in which case a window of opportunity of a further four and a half months—making a total of six months—will come into effect. This will give communities more time to develop a bid and raise the necessary capital. They will then be in a better position to bid for the asset. During the window, the owner may market and pursue discussions about the sale of their asset but may not exchange contracts, with one important exception. The regulations provide that the owner may sell to a community interest group during the moratorium. At the end of the window, the owner will be free to sell to whoever they wish at the price they wish, and for a protected period will not again be subject to delay.
This scheme is not designed to force landowners wishing to sell to do so to some person or organisation they do not wish to sell to, nor will it force them to sell at an inferior price. There is no restriction on the freedom of landowners to sell to whomever they choose after the six months have expired and there is no right of first refusal for community groups.
However, these regulations do provide community groups with a much needed opportunity to prepare a business plan and raise the necessary funds to bid for the asset. I am aware that a number of the regulations within the assets of community value scheme will be of particular interest to the Committee. As such, I would now like to say a few words about some of the detail.
We have set it out in regulations that voluntary and community groups are able to nominate an asset for listing, in addition to the parish council for the area in which the land lies. For the purposes of this scheme, a voluntary or community body will be: a neighbouring parish council, an unincorporated group of 21 or more people on the local electoral register who have come together informally, a neighbourhood forum designated as such by the local planning authority, or a community interest group with a local connection. These are groups which have a formal structure. They can be: a charity, a company limited by guarantee that does not distribute profits among its members, an industrial and provident society, or a community interest company. However, only a community interest group, which includes the parish council for the area the land lies in, will be able to trigger the full moratorium period as well as nominate land for listing.
With regard to enforcement, to give a strong incentive to owners to comply with the scheme, and to purchasers to make all possible checks, non-compliant sales will be ineffective. The effect of this will be that, regardless of the agreement between the parties and payment, ownership of the land will not have changed hands. The scheme provides a number of mechanisms intended to encourage compliance. These require local authorities when they list land to notify the owner that their land has been listed as an asset of community value and inform them of the implications, enter the fact that the land has been listed as an asset of community value in the local land charges register, and enter a restriction against the owner’s title on the land register where the listed land is already registered.
Local authorities will not be able to apply for a restriction in the land register against land that is not yet registered. However, a purchaser of listed land who applies for first registration will need to apply for the restriction against their own title. The wording of the restriction will mean that the Land Registry will require a certificate of compliance from a lawyer or professional conveyancer before it will register the land or a change of owner. The regulations also require that a new owner of listed land informs the local authority about a change of ownership, and that an owner informs them about first registration with the Land Registry. However as a protection to owners, the regulations provide that the disposal will not be ineffective if the owner did not know that the land was listed, despite making all reasonable efforts. This would be most likely to occur in circumstances where there was delay by the local authority, for instance in notifying the owner of the listing, entering new information on the list, or amending the local land charges register.
As to the compensation provisions in the regulations, they recognise that these provisions may have some financial impact on owners and provide a compensation scheme for private property owners. There is no restriction in the regulations on what type of loss or expense may be claimed, but they state in particular that this may include a claim arising from a delay in entering into a binding agreement to sell that is wholly caused by the interim or full moratorium period; and the regulations provide for legal expenses incurred in a successful appeal against the local authority’s decisions.
Where a local authority considers that compensation should be paid, it is left for the authority to determine how much compensation will be appropriate. The authority should decide how much compensation is fair and proportionate in relation both to loss and expenses, balancing individual rights with community benefit and taking into account all the particular facts of the case.
The Government understand the concerns that were raised by local authorities around this issue, particularly during the department’s consultation. However, when making decisions around the structure of the scheme, it was clearly important to take on board the opinions of all those affected by the policy, not just local authorities in isolation. It will be important that this scheme remains as locally focused as possible, and for this reason we wish to ensure that the operation of the compensation elements remains with local authorities.
As with other costs incurred by local authorities in meeting new requirements placed on them, we have reflected the estimated costs of compensation within the new burdens funding. The detail is set out in the impact assessment. Additionally, given the concerns raised about this issue, the Government will meet costs of compensation payments of more than £20,000 in a financial year, up to March 2015. This could occur through a local authority receiving either one large claim of more than £20,000 or a number of smaller claims in one financial year that add up to more than £20,000.
The Localism Act provides that owners will have the right to appeal against both the listing of an asset and compensation refusals or the amount of awards. The regulations set out the detail of how these will operate. An owner who disagrees with a listing decision, or an owner or former owner who has made a claim for compensation and is not satisfied with the local authority’s response, may request a review by the local authority of its decisions. The local authority must review its decision and notify the claimant of the result within eight weeks of receiving the request, or a longer period if agreed with the claimant, with reasons. The procedure for both types of review, in Schedule 2 to the regulations, is the same. In either case, if the owner is not content with the local authority’s review then the regulations provide that the owner may appeal to the First-tier Tribunal. The deadline for an appeal of this nature is 28 days from the date on which notice of the decision appealed against was sent to the owner. There is one difference: a compensation appeal may be made only by the person who requested the review, whereas a listing appeal may be made by the person who requested the review or by a subsequent owner. Both types of appeal will be to the General Regulatory Chamber of the First-tier Tribunal which will be able to consider points of both fact and law.
The definition of assets of community value is set out in Section 88 of the Localism Act. The regulations allow for some exclusions from this definition. The principal exclusion from listing at all is residential property. This includes gardens, outbuildings and other associated land owned by a single owner. We have defined associated land widely to mean land in the same ownership that it is reasonable to consider as going with the residence, even where it is separated from the residence by, for example, a road, railway line, river or canal in different ownership. In this context, “same ownership” includes the situation where the land is held by different trusts but was settled by the same settler.
There is an exception to the general exclusion of residential property from listing, which is where an asset that could otherwise be listed contains integral residential quarters, such as accommodation as part of a pub or a caretaker’s flat. Completing the range of residential exclusions from listing are residential caravan sites licensed by local authorities, together with some similar sites that are exempted from licensing, for example those used by Gypsy communities or by travelling showmen. We have also exempted from listing operational land of statutory undertakers as defined in Section 263 of the Town and Country Planning Act 1990. This covers mainly transport networks such as railways and roads.
A number of exemptions from the assets of community value moratorium rules, including those which protect estates of settled land, are set out in Section 95(5) of the Localism Act. The regulations provide for a number of additional exemptions. To list all of the types of disposals that will be exempt from the moratorium requirements would take even more time than I am taking at the moment, and those in the Act have already been considered during the passage of the Bill, so instead I shall highlight those added by the regulations which are likely to be of most interest.
Earl Cathcart
My Lords, I am a farmer and a landowner. In the recent past I was a Norfolk councillor. I use the words recent past because I stopped being a councillor almost five years ago.
I thank my noble friend Lady Hanham for all the time and effort that she has spent on this issue. The Minister and her team have worked tirelessly to ensure that it hits the intended spot and has no unintended consequences. I am certain that the rural community is most grateful for all the hard work that they have done.
I have no problems with these regulations, but I had hoped that they would clarify two or three issues in the Act, all relating to Section 88. First, land in the existing use category is of community value,
“if in the opinion of the authority … the non-ancillary use furthers the social well-being or social interests of the local community and … it is realistic to think that there can continue to be non-ancillary use”
serving those objectives. This raises two questions, on which the regulations and the Act are silent. I had hoped that these regulations would clarify these matters. First, when is a use non-ancillary and, secondly, what evidence needs to be put before the local authority in determining whether in its opinion a relevant use is realistic?
The second category of land of community value is the land in past use. If in the opinion of the local authority, there is a time in the recent past when an actual non-ancillary use fulfilled the two objectives of furthering social well-being or social interests of the local community,
“and it is realistic to think that … in the next five years … there could be a non-ancillary use”
made that met either of these objectives, it is land of community value.
This “past use” category also raised my third question: what is the recent past? In September 2011, the Assets of Community Value—Policy Statement said that the Government’s view on the recent past,
“is that we will leave it to the local authority to decide, since ‘recent’ might be viewed differently in different circumstances”.
This will cause uncertainty for landowners as the recent past may be the past 10 or 15 years for one local authority and the past two or three years for another. Can the Minister provide more clarity on what is meant by “recent past” so that there is some consistency between local authorities?
If asked my opinion, I would say that up to five years would be a reasonable time, hence my saying, “In the recent past I was a local councillor”. I suggest five years for two reasons. First, the Act already says that,
“it is realistic to think that … in the next five years … there could be non-ancillary use”.
It already uses the five-year benchmark. Secondly, an asset drops off the register after five years anyway. Therefore, anything up to five years ago would be reasonable; anything later would be the distant past. I would be most grateful if the Minister would address those three issues.
Baroness Thornton
My Lords, I have a slight sense of déjà vu. Here we are again discussing this matter, with me supporting the Minister and congratulating her on bringing forward these regulations, as she promised in the course of the Localism Bill. I have one or two questions for clarification.
I agree with the noble Earl that these are quite complex regulations but I also accept what the Minister said. Having read the part about the Land Registry three times, I still do not really understand it and can see that there are some complex interests to balance—those of landowners and those of the legitimate aspirations of local community organisations. That is, as it were, where we came in. I think these regulations do that.
My concern, if I have one, is whether it is too complicated for community organisations to access easily. We will not know that until the whole thing is rolled out and starts to work, or not. Therefore, I ask the Minister whether there is any intention to monitor—in, say, two years’ time—the effectiveness of this legislation and what the issues are for landowners and community organisations.
My second question is on a point of clarification. The Explanatory Notes outline the characteristics of community organisations. I read the Explanatory Notes first because they were more accessible than the regulations. They go into how you recognise what different community interest groups are. Therefore, do the regulations take account of unincorporated organisations? The regulations say that unincorporated community organisations can bid for community assets, which is exactly as it should be. However, if the Explanatory Notes say one thing and the regulations say something else, it is very important that local authorities and those whose land or property is in question are completely clear that unincorporated community organisations have the right to claim an interest in the community asset. It is really a question of clarification, which I am sure can quite easily be resolved. I am assuming that the reasons for which this instrument was drawn to our attention in terms of public policy issues relate to the amount of resources and time that local authorities are expected to put into it. The noble Baroness gave an explanation for that.
Lord Gardiner of Kimble
My Lords, first, I declare my interests as a farmer and landowner as detailed on the register. I echo the comments of my noble friend Lord Cathcart as to the energy and hard work that has been put into ensuring that sense prevails with these regulations following many discussions.
I raise three minor but important points which I hope my noble friend the Minister will help the Grand Committee with. They relate, first, in paragraph 14, to compensation regulation. Owners of listed assets are subject to time limits throughout the assets-of-community-value process; indeed, that is enforceable in law. Yet the local authority is currently under no timetable-limited obligation to respond with a written reason. I wonder whether it would not be reasonable that there should be some understanding that the local authority should be responding in reasonable time; I put that at about six weeks. There may be procedures whereby a local authority should respond, but I would welcome clarification from my noble friend.
The other questions relate to relevant disposals in Schedule 3 and the Crichel Down rules. It gets perhaps rather too technical for me, but my understanding is that, in order to conform with the Crichel Down rules, there should be in the regulation an inclusion of land acquired under threat of compulsory purchase. Can my noble friend clarify that point?
Finally, I am concerned as to the definition of “undertaking”, and how restrictive that may be, particularly the suitability in terms of transfer between related companies, which particularly relates to farms and estates. I would like my noble friend to assure us that this matter will be kept under review to see whether what I understand is a rather restrictive interpretation of this matter might be addressed in future years if there was a problem, particularly in the rural sector.
Lord Reay
My Lords, I declare my interest as a landowner, and associate myself with what my noble friends Lord Cathcart and Lord Gardiner have said—in particular my noble friend Lord Cathcart in calling for clarification on what is meant by the “recent past”. As my noble friend has pointed out, we debated this at great length during the passage of the Localism Act. The Government listened to the objections that were made at Second Reading and subsequently introduced substantial modifications to the original proposal. This was welcome, and my noble friend made great efforts on our behalf.
We understood where the Government were coming from politically. However, to draw up, maintain and manage a list of community assets is still a substantial bureaucratic requirement for local authorities, with inevitable costs. We wondered whether all of that was necessary in order to provide a right to bid for a local body or group whenever a well loved pub, shop or other amenity was threatened with disappearance. Anyway, that is the system that we have now got in place. At least the eligibility of assets for inclusion was narrowed down to a much more acceptable level from the original proposal. That was a development which we much welcomed, and I thank the Minister again for that.
Lord Shipley
I shall follow on from the contribution of the noble Baroness, Lady Thornton, on the rights of voluntary and community bodies not just to nominate assets for listing but to convert themselves into a community interest group. My understanding of the regulations—the Minister explained this very clearly—is that voluntary and community bodies can nominate assets for listing and that those bodies will include parish councils and can include unincorporated local organisations with at least 21 individual members who are on the local electoral register.
The regulations require a community interest group which can bid to be a charity, a company limited by guarantee that does not distribute profits, an industrial and provident society or a community interest company. Voluntary community groups are going to have to convert themselves into community interest groups to bid and sometimes the timescale could be very tight. I wonder what help the Government plan to give, or to advise local authorities to give, to enable the regulations and the principles behind the Localism Act to happen reasonably easily and to make it more straightforward than it otherwise would be for a voluntary or community group to bid successfully and to manage the outcome of that successful bid.
I noticed in the regulations that it is estimated that some 700 assets will be listed each year and that 94 assets may be bid for each year. It is not clear where those numbers came from, but they clearly have some credibility. I understand that where there is a parish council, there is a structure in place. My concern is where there is not a parish council or where the body that wants to bid is not the parish council but is another voluntary or community group. How do we make sure that people are enabled to make a success of this legislation when there is an extra hurdle from nominating a building or a piece of land to an asset register to the point where that group can then take over the running of that building?
Lord True
My Lords, my noble friend anticipates one of the things that I was going to ask in relation to non-parished areas. I was not intending to intervene. I endorse what was said by my noble friend Lord Gardiner and other colleagues. I welcome the efforts that my noble friend Lady Hanham has made to reduce some of the worst threats, as some of us perceived them in the debates on the Localism Bill. The stripping down of the proposal to the essentials, at least in terms of those assets to which it might apply, is very welcome. None the less, declaring an interest as leader of a local authority, in some circumstances, local authorities could find themselves as piggy in the middle in operating this process with a community group on one side and the landowner on the other. We simply do not know how onerous these duties are going to be. Some local authorities find it hard to determine planning applications in eight weeks. There are figures of eight weeks and six weeks in here.
We are adjured to make further major savings in local government spending—we are debating this on the Local Government Finance Bill—to which I have no objection, but as we go forward I hope my noble friend will give a firm assurance that she will be careful of the burdens that are imposed on local authorities in administering the system because the paradox we are living with is that in the planning system we have had a massive simplification, in theory, of the planning system nationwide but on the other hand we are creating extraordinarily complex structures, such as some of those coming out of the Localism Act. In these quite complex regulations, we are having regulations to decomplicate them and take some of the other things out. This world will take a little time to settle down. I think we will all try to make it work. Localism is important, and we do want to protect assets of local importance, but I hope that my noble friend will resist the blandishments of the noble Lord, Lord Gardiner, to tighten up even further the requirements on local authorities to respond.
One has to live with the art of the possible. Local authorities will, within the resources available, try to make this work, but in some circumstances, all the appeals systems, the registers and all the things that have to be done will take time and it may even require the recruiting of new local authority staff in some areas where this thing takes off. With that rider, I associate myself with the remarks of other noble Lords and thank my noble friend for the time and attention she has given to avoiding some of the potential abuses of the system as originally designed.
Lord McKenzie of Luton
My Lords, I thank the Minister for her very full explanation of these regulations. They relate to legislation that we support, as my noble friend Lady Thornton said, and we wish them to work effectively. A policy to assist local community groups and to preserve buildings or land of importance to their communities and social well-being is clearly important. It is of course not a right to buy, nor is there any obligation on the owner to sell.
As my noble friend and other noble Lords have said, this is a very complex piece of primary legislation, as are the regulations before us. It is to be hoped that that complexity will not deter engagement. There will inevitably be complexity around issues relating to land law and charity law. To a certain extent that is unavoidable, but I hope that some simplified guidance will come out. The noble Lord, Lord True, said it is quite difficult to gauge how onerous the duties on local authorities will be in practice.
A number of noble Lords posed a series of specific questions, and I await the Minister’s answers with some interest. In fact, I wanted to ask some questions myself. The first relates to the right to nominate. The regulations and the Explanatory Memorandum state that a neighbourhood forum is included among those who can nominate. Does that right extend to a neighbourhood forum that is designated as a business area?
Paragraph 7.14 of the Explanatory Memorandum refers to the powers relating to the fact that non-community nominations have not been used. Perhaps the Minister can remind us of what the intent of including such a possibility in the legislation was and why it is not being taken up.
I should also like to understand a little better the exemptions for disposals by one body corporate to another. Specifically, is a disposal of the shareholding of a group company into which an asset has been transferred a relevant disposal for the purpose of these provisions? Clearly if that was not the case, there is a gaping hole in the legislation.
A number of noble Lords touched upon compensation issues. It is clear that the claim for compensation is rightly limited to delay wholly caused by delay under the Act, but if there are joint causes for the delay, assuming that one can apportion the effect of those joint causes, is the part attributable to the delay caused by the Act still capable of compensation; or would the fact that there is another contributory factor, even if the value of it can be stripped out, deny that compensation?
I want also to make sure that I understood what happens as regards the difference between a freeholder and a leaseholder. As I understand it, if there is a freeholder and a leaseholder, the ownership of a lease that was originally granted for 25 years would be deemed to be that of the leaseholder, because one would look to have one owner for the purposes of the operation of these provisions. If that is right, what would be the position on the grant of a new 25-year lease at the point of expiry of the original lease? Would that be a disposal? How does that work under these provisions?
The Secondary Legislation Scrutiny Committee recites the one-off and ongoing costs, and other noble Lords have referred to that. We have an assurance that those costs are going to be met by DCLG, at least during the course of this spending review. I do not know whether that means that it definitely will not under the new spending review or whether we simply have to wait and see what that review entails. I will be interested in the Minister’s answer on that point.
This is something that we want to see work and we are supportive of the Government in seeking that, but there are a number of technical issues here on which we need to be satisfied that we are not opening up easy routes out of the application of this legislation that the wise, or at least the well advised, will take every opportunity to use.
Baroness Hanham
My Lords, I thank noble Lords for their interest in the regulations. I am particularly grateful for the kind remarks that have been made about them; the Localism Act is certainly one that I will recall for many years as one where we made as much difference in this House as was made anywhere.
There have been a number of quite technical questions, so let me see if I can deal with at least some of them. The costs of the referendums will be new burdens, so until 2015 they will be supported by the Government. The Government are committed to meeting the new burdens on local authorities, and have set aside up to £50 million to 2015 to meet those costs. It is right that we ensure that those referendums take place. I beg the Committee’s pardon, that is wrong; I shall start again.
Regarding my noble friend Lord Cathcart’s question about the use of “non-ancillary”, we talked about this quite a lot during the process of the Act. It has been decided that it is up to the local authority to determine whether the use of building land is non-ancillary. It is the local authority’s job to put these regulations into effect and to be the guiding light. The local authority knows its own area, its own people and its own tensions so we believe that it should do this, and of course first it has to establish whether the building or other land meets the definition of an asset of community value.
On his question about what is meant by “recent past”—here we go. This could be a very interesting and long discussion. Once again, this is something that we discussed during the process of the Act. How long is a piece of string? My definition of “recent past” would be reasonably short and my definition of “not recent past” quite lengthy. However, I am not defining this; local authorities once again are going to be in the position of defining it. Any normal logic would suggest that “recent” would not be 20 years or, probably, even 10 years, but further than that I will not go; I am not going to be committed in future to having said that it was five years, because I have not done so. I see the rationale behind what my noble friend was trying to adduce, but I do not think that we can give a definition of that. However, anyone who looks up “recent” in the dictionary will quickly get an answer to what “recent” is meant to be.
Lord McKenzie of Luton
Will the Minister deal with the issue around intergroup transfers and the extent to which parcelling an asset in a company and selling the shares is caught as a relevant disposal?
Baroness Hanham
That is pretty technical. May I write to the noble Lord about it? It is more technical than I can deal with today.
Lord McKenzie of Luton
I am very happy to have a letter, although I think that we touched on this during the passage of the Bill.
Renewable Heat Incentive Scheme (Amendment) Regulations 2012
Lord Marland
That the Grand Committee do report to the House that is has considered the Renewable Heat Incentive Scheme (Amendment) Regulations 2012.
Relevant documents: 3rd Report from the Joint Committee on Statutory Instruments, 5th Report from the Secondary Legislation Scrutiny Committee.
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Lord Marland)
My Lords, before your Lordships is an amendment to the renewable heat incentive regulations that sets out details of a standby mechanism to ensure that the scheme stays within budget in the current financial year.
The non-domestic RHI scheme launched in November 2011. Through this scheme we are already supporting renewable heat installations in small businesses, industry, the public sector and communities. The RHI supports a number of emerging technologies and is therefore helping to support the UK renewables industry. This is vital to making the transition to a low-carbon economy.
The vast majority of the heat in this country is produced by burning fossil fuels. As a result, heat is responsible for a third of the UK’s greenhouse gas emissions. It is imperative that we start the transition to low-carbon heat immediately. We must do this to set the UK on a path to reducing carbon emissions in the long term and to contribute to our share of the global effort to combat climate change.
As set out in The Carbon Plan, we will need virtually to eliminate greenhouse gas emissions from our buildings by 2050 and we need to see deep reductions in emissions from industrial processes. By 2020, 12% of our total heat demand will have to come from renewables, increasing from 2% currently. This means that we need to find alternatives to fossil fuel for our heating. The RHI, which is the first scheme of its kind in the world, is an essential part of helping us to achieve this.
However, we have learnt lessons from FITs. The RHI must be financially sustainable and help to deliver renewable heat in the most cost-effective way and it must be able to deliver consistent support to the industry. These regulations will help us to keep within the budgetary limits set by the comprehensive spending review if uptake is greater than we expect. They will safeguard against the possibility of overspend in the current financial year and against the detrimental impact on the supply chain of a reduced budget next year that would be caused if we spent this year’s budget.
We have set out in these regulations that the standby mechanism would suspend the scheme at 97% of the budget limit, with one week’s notice. If our forecast shows that we expect to spend £67.9 million in 2012-13, we would give notice of suspension and the scheme would be suspended one week later. To ensure that investors are able to monitor progress towards the suspension trigger, we will make estimates of committed expenditure available each week. Furthermore, if we expect to suspend the scheme, we will announce informally one month before we estimate that the scheme will need to close.
This is a precautionary measure. We do not believe that rapid cost reductions are likely in renewable heat technologies in the way that has been seen with solar PV. However, there is a high degree of uncertainty about how the market will respond to the RHI. Therefore, we must be cautious and prepared for unexpected changes in application rates. If RHI spending were to exceed budgets, it would be difficult in retrospect to justify a lack of action now.
Alongside these regulations, I am pleased to inform the Committee that on Friday 20 July the Government published the consultation Renewable Heat Incentive: Providing Certainty and Improving Performance. This consultation seeks views on our proposals for a longer-term budget management mechanism, which we are expecting to implement by the beginning of the 2013-14 financial year.
These regulations will therefore ensure that we have a standby budget management mechanism in place this summer and they will provide clarity and assurance about how we will manage the budget prior to our implementation of a longer-term cost control mechanism. I therefore commend these regulations to the Committee and beg to move.
Lord Teverson
My Lords, I welcome the foresight that these regulations bring. We certainly do not want a repeat of the solar PV issue, where we had a lot of changes at very short notice and a lot of confidence went out of the market. I note yet again that we remind ourselves that some 12% of heating needs to become renewable to meet our 2020 target, as the Minister said. Heating is a largely unrecognised but major part of our energy consumption, in households in particular, and has to be decarbonised by 2050. The irony of this is that, as the Explanatory Memorandum states, at the moment we have, if anything, underdemand for this initiative. Given those targets, it is quite important that we move it forward quickly.
I have some questions for the Minister. First, why does he think that the scheme has been relatively slow so far? I know that there is a learning curve and it is still relatively young. Can he give us some idea of the types of scheme that have been approved so that we can understand them a little more? Do the Government have plans to stimulate these schemes if demand remains low? Lastly, will he give us a view, even at this early stage, of what lessons have been learnt for rolling out this scheme for domestic RHI, to which we all look forward very much?
Lord Whitty
My Lords, I have two quick points, one of which is fairly forlorn. The Minister referred to the ambition to raise the level of renewable heat to 12% from its current level of 2%. I commend and support that objective—it is right that we should give special provision for renewably sourced heat—but the overall objective is, of course, carbon saving. An awful lot of fossil-fuel-generated heat or dual-fuel heat is currently going to waste. It really ought to be part of the Government’s strategy, perhaps at a lower rate than the subsidy for renewable heat, to ensure that we maximise the use of the heat that is generated from fossil fuel, because the more widespread and efficient use of CHP and trigeneration will achieve larger carbon savings than the current targets for renewable-based heat. That is not to say that we should not do what the noble Lord is suggesting and which these regulations seek to implement, but there seems to be a lacuna—if you can have a lacuna in a suite of measures—in this respect.
With regard to the regulations before us, the Minister said that he has learnt from the FITs experience, and to some extent he has, but in these regulations and in what, at a quick read, is proposed in the consultation paper, I am not sure about giving much confidence or certainty to the market. Certainly, the Government are not avoiding sudden changes of policy. A week’s notice of the budget running out is likely to put off not only people who have gone some way through the process but those who are likely to apply the following year.
It has always seemed that annual budgets, no doubt imposed by the Treasury, are the department’s main problem. Under the solar energy part of FITs, in retrospect the take-up was too fast and the level of subsidy too high. However, as the noble Lord, Lord Teverson, said, the take-up of these RHI provisions has not been as great as the Government wanted. It would surely be better to manage the market according to a total amount rather than an annual budget, so that things would not be stopped half way through development because the budget has run out. Instead, the budget should be brought forward if it has been overspent or carried over into the following year if it has been underspent. That could be linked to the expected take-up.
The current mechanism has an annual budget that stops projects that might otherwise take off within the aggregate budget—for example, over the CSR period. There can also be overshoots, as happened with solar power. Once again the outcome was to cause uncertainty in the industry and to stop projects that were on line under existing rules and which had qualified under the regulations. This scheme is falling into the same category, although probably with less disastrous effect. If we are to maximise and smooth over the take-up of a new technology, we need to provide some degree of certainty over a minimum of two or three years rather than have a cut-off point with an annual budget.
In the medium term it would not cost the Treasury any more but it might make Treasury accountants a bit nervous. In terms of the objectives here, if we cannot have at least a three-year budget run in which we do not stop projects half way through their development, we will not achieve our objectives. I hope that the outcome of the consultation process produces something like that for the period starting in 2013. This does not do that and could put off a number of worthwhile projects.
Baroness Worthington
I thank the Minister for introducing this statutory instrument. This is a policy that we support. We hope that the regulations will be quickly implemented. There has been a slight delay, so the sooner we can get on with it the better. I will start with a general comment on renewable heat. The atmosphere does not care where we make our carbon savings. It is incumbent on us as Governments to realise the most cost-effective savings. We have neglected carbon reductions in the heat sector for too long, so these are very important regulations to help start, from a very low base, an industry in renewable heat.
The noble Lord, Lord Teverson, asked a couple of questions that I will add to. It would be interesting to see what has come forward so far, and to hear from the department why the take-up has been relatively slow. The area has been neglected for many years, so perhaps it is just a question of starting up. However, there are some issues to do with the design of the instrument that may be holding back take-up. The first is the question that my noble friend Lord Whitty raised about the industry perceiving a lack of clarity or certainty. Annual budgets are not ideal. We strongly recommend the introduction of minimum three-year rolling budgets. It is clear in the documents before us that we will not exceed the budget this year. If anything, we will see a shortfall, even of the reduced budget. We are reducing the budget by £38 million and we are not likely even to spend that, and it therefore seems odd that we are focusing on a piece of legislation that is not really needed at the moment. What is needed is a much greater effort by the Government to promote the mechanism, and confidence in it so that we start to see an uptake.
I have a question about where the £38 million that has been saved is to be spent. I suspect that the Treasury will claw it back, but could the money not be used to help promote uptake in this sector? I have no doubt that the sector will contribute to the UK’s return to growth. The CBI’s recent report into the contribution that green energy makes to the UK’s growth was very well received and researched. It estimated that a third of growth is green, and I therefore see no reason for the Government not to put their efforts behind these sectors and new technologies that can help to reduce our trade deficit, boost our economy and employ people.
Although I did not want to go on for too long, there is another question around the future visibility of the budgets. I have spoken to a potential investor in a large energy-from-waste CHP plant who says that for such projects not knowing what the budget would be post-2015 simply means that it would not be possible to get sign-off on that project. The fact that there is no visibility at all of what the budget would be post-2015 will cause delay and prevent that potential investor making that investment. That issue needs to be addressed.
That is all I will say for now. This is an important sector. It is far more efficient to use renewable energy, particularly biomass. With such heat, you do not see two-thirds of the energy wasted up the chimney, as happens in a coal-fired electricity plant. This sector needs to be supported and we would like the Government to do more to make sure that there is a good uptake and that we hit those targets of 12% renewable energy in the heat sector. We support the regulations and look forward to the market developing over time.
Lord Marland
My Lords, I am, as always, grateful. It is a common theme among those of us who debate the energy sector that we agree on many things. I am grateful for that.
The noble Lord, Lord Teverson, compliments the Government on their foresight in this issue. He is a man of deep knowledge and insight. We are grateful for his words. He asked what he called a couple of questions that turned out to be three, but mathematics may not be the noble Lord’s strong suit. I should just point that out.
The most important and relevant thing here is that this RHI scheme is the first of its kind. That is just one, I should say to the noble Lord, Lord Teverson. There will therefore be an element of trial and error, and we will have to learn from the FITs situation and make sure that we have escape routes if the situation gets overheated. That is surely and simply good housekeeping in terms of the regulations. The noble Lord asked what the take-up of the scheme has been and what types of businesses have been involved. It was a rhetorical question because the noble Lord is closer to these industries than I am but, as he knows, a lot of people in agriculture are heavily committed. I understand that a company that makes umbrellas has taken up the scheme. A wide cross-section of people has done so. In order for noble Lords to go away with a heart full of hope, the statistics are that by 11 July, Ofgem had received 670 applications, of which it had accredited 128. Ofgem had rejected four—therefore, not too many. The breakdown is: 517 biomass, two biogas, 34 solar/thermal, three biomethane and 53 heat pump schemes. I hope that that adds up to 670.
The point is that it is not about money. It is not about whether the cost is £17 million, £38 million or £50 million, but about the number of schemes that are taken up. They could be small schemes, but I think that the figure of 670 represents a pretty good stab at things. We are hoping that 2,000 might be taken up.
I am sorry if the noble Lord, Lord Whitty, is forlorn, although he is also wise. He is quite right: carbon savings are critical and we must be committed to them. I applaud his comments about making use of heat wastage and coming up with plans that maximise heat so that we can convert. That is fundamental good housekeeping and we are committed to that.
He says that we should have a lacuna suite of measures, which is a bit lost on me, but we have room for explanation later. He makes the point that we can turn the tap off with a week’s notice. In fact, it is a month’s notice. We will advise people a month ahead that we are getting to the end of the spending year and that they should be prepared. That does not mean that they cannot apply for the following year, which is entirely acceptable.
I do not disagree with the noble Baroness, Lady Worthington, and the noble Lord, Lord Whitty, when they talk about having perhaps a rolling budget or a rolling figure, but before committing to that I would like to introduce them to some Ministers and officials at the Treasury. A day spent there will help them realise that that is not the type of thing towards which they will be disposed.
I thank the noble Baroness, Lady Worthington, for offering her support. It is important for government and for the energy industry that both parties are seen to be supporting the right things. I agree with her that what we do must be done with confidence and that we must send a clear message to the sector about we are doing. Learning from past mistakes and acting upon them send a clear message that we are listening and learning, and that we have seen how things go wrong and are acting upon them. That is what we are doing with this legislation.
Baroness Worthington
I understand the need to learn from mistakes. I take very seriously the Minister’s comments about the Treasury. It is apparent today in the newspapers that there is a divide within the coalition Government over the right way forward. When we think about how we hit our carbon targets, let us think about least cost but also look at what is happening and what is being supported by the market. These budgets are very small. Seventy million pounds is not a lot of money in the grand scheme of things. Growth potential is actually great. Instead of being rigidly attached to these budgets, let us have a rational discussion: if something is going well and carbon is being reduced, we should not be counting pennies and penny-pinching at the expense of an industry that has great growth potential. I urge that we do not get too obsessed by these small-scale budgets, but think about the bigger picture. If things here are succeeding that is good. We do not want to cut things off just because they are becoming successful.
Lord Marland
I am grateful to the noble Baroness, Lady Worthington. The reality is that in times of greater largesse these things would be considered, but we are not in such a time. We are in a very tight fiscal time. In such financial circumstances, the Treasury has to be careful and clear about what we spend annually. There is no conflict between the Treasury and our department about this. We understand the fiscal rigour that needs to be put into this mechanism. We are giving plenty of support to this take-up. As I indicated earlier, we are satisfied with the number of people who have taken this up, but in financial terms we have not had the take-up that we would have liked. In an ideal world we would have liked that. Unfortunately, at the moment the world is not ideal, but we continue to press on.
Electricity and Gas (Smart Meters Licensable Activity) Order 2012
Lord Marland
That the Grand Committee do report to the House that is has considered the Electricity and Gas (Smart Meters Licensable Activity) Order 2012.
Relevant document: 6th Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Lord Marland)
My Lords, by the end of 2019 every home in Great Britain will have a smart meter and an in-home display, empowering people to manage their energy consumption and reduce their carbon emissions. The rollout of smart meters will play an important role in Great Britain’s transition to a low-carbon economy and help us to meet the long-term challenges that we face in ensuring an affordable, secure and sustainable energy supply. This is a huge and challenging project. It is the largest changeover programme in the energy industry since the introduction of North Sea gas about 40 years ago. It will result in the installation of about 53 million meters in Great Britain, involving visits to some 30 million homes and businesses.
There would be little point in such an undertaking without it bringing very real and substantial benefits. Our impact assessments show estimated net benefits of about £7 billion over 20 years. Smart meters will give consumers near real-time information on their energy consumption to help them control their energy use, save money and reduce emissions. They will bring an end to estimated billing, and switching between suppliers will be smoother and faster.
The rollout of smart meters will be led by the energy suppliers, but the Government are playing an essential role to establish the necessary framework, of which the order is a fundamental part. The communications and data transfer and management required to support smart metering are to be organised by a single new central communications body, referred to as the Data and Communications Company. The DCC will be an entity regulated under licence by Ofgem. The intention is to re-compete this licence periodically to put downward pressure on costs.
The DCC will provide a service of remotely communicating with smart meters on behalf of electricity and gas suppliers, electricity distribution companies, gas transporters and third parties authorised by the consumer. It will also provide services to other third parties authorised by the consumer, such as energy services companies, helping to open up that market. The DCC will play a key role in supporting a competitive supply market by delivering a single system that will support easier switching between suppliers. The DCC will not operate these services itself but will contract with data and communications companies for their provision. These contracts will, again, be re-competed periodically. This model delivers the necessary security and interoperability required for the smart meter system. Security is critical, given what the DCC will do, and achieving interoperability ensures that consumers are able to switch energy supplier without the need for additional costly meter changes. This model is strongly supported by the industry.
The order introduces a new activity into the lists of those requiring licences under the Electricity Act 1989 and the Gas Act 1986. It will be unlawful to undertake this activity without holding a licence. The activity is inserted into each Act, but the provisions make it clear that the holder of a licence under one must be the holder under the other. There will be one active licensee at any one time and its licence will be granted for 12 years. A competitive process will be used for granting the licences and an order to set out the process will be made once the order that we are considering today has been made. We have consulted on a draft of the licence, which is available on the department’s website.
We have described the licensable activity in the order as something that only the DCC will be doing—that is, making arrangements with domestic suppliers to provide a communications service for smart meters. This is defined as narrowly as possible to limit the potential for other persons to be caught in its scope. However, in the period before the DCC is established and able to offer services, other persons will be active in the market to support early smart meter installations. We want to support this as part of the foundation of the smart metering programme, which will provide important information and learning for the mass rollout. We have therefore included a transitional exemption, lasting for 36 months from the date the order comes into force. This allows time for the DCC to become established and supports the foundation stage.
To conclude, the Government have consulted on the broad approach to the regulation of the DCC and in detail on the licensable activity for the DCC set out in the order. Our stakeholders support the approach that we are taking. I beg to move.
Lord Reay
My Lords, according to the information in a footnote on page 23 of the impact assessment, only 0.5% of households today have smart meters. From this tiny base, the coalition has committed itself to a rollout to 100% of domestic households by 2019, as the Minister explained—an enormous undertaking.
One of the purposes of this policy seems to be to reduce demand. On page 9 of the impact assessment, the Government include in the list of objectives for the policy,
“facilitating demand-side management which will help reduce security of supply risks”.
It is presumed that customers will be enabled, and will choose, to reduce their consumption of gas and electricity when they discover how much each appliance they use contributes to their total bill. At the same time, suppliers will learn and be able to observe much more about their customers’ usage of gas and electricity. Will this make it easier for them to control supply—for example, to ration it selectively in the event of electricity shortages? As far as I can see, the Government do not discuss this in the impact assessment. They have no interest in drawing attention to the possibility of future shortages of electricity, even though—perhaps because—some of us think that this is the likely consequence of their energy policy.
The impact assessment represents the cost of the rollout as being in the region of £10 billion. Many meters that have a long and useful life ahead of them—so-called stranded assets—will be replaced. These costs will presumably be added to consumers’ bills. I do not know whether the Government have estimated how much they will add to the bills of individual customers, both domestic and industrial.
The Explanatory Memorandum describes the new body to which my noble friend referred. It will be regulated by Ofgem and established as the Data and Communications Company. Although described as a company, I imagine that it is classified as a quango. Perhaps the Minister will confirm that.
Lord Teverson
My Lords, it is always good to have smart meters on the agenda in this House. They are a very important and often misunderstood area of energy policy. The great thing about them is that, if they are really smart, we could have a smart grid. We hope that that will be the case following the rollout. The sort of decisions that the noble Lord, Lord Reay, mentioned could then be made by the meter, rather than by people. That is where the big benefits will happen. The point is not so much to reduce demand as to reschedule it. That will mean major reductions in investment.
As the noble Lord, Lord Reay, knows, Ofgem estimates that some £200 billion of investment in the energy networks is required. That seems a Soviet-style level of useless investment; I am sure that he would agree that we should not invest for investment’s sake in assets that stay largely unused for a large proportion of the time. A smart grid would enable us to reduce that investment considerably and to use electricity far more intelligently and intensively, as any commercial and private business would. My concern is that the smart meter rollout should enable that, rather than prevent it. That is why it is so important to have that level of investment; it really does bring savings down.
The Minister said that energy companies are one of the big savers on smart meters. The estimated readings that plague my electricity bills will no longer be necessary, nor will inspection. I would like to understand the Government’s thoughts on how they will make sure that the industry’s benefits are brought back into consumer bills.
When I read the order, I found it quite difficult to understand how DCC was anything other than a non-departmental office and, as the noble Lord, Lord Reay, said, effectively a quango. It is a monopoly by statute that does nothing but allocate contracts and yet it still seems to be a private company. I am not sure what the appointment process is. I would be interested to understand it. I still do not understand why it is necessary, but perhaps the Minister will come back to me on that if I have failed to understand from his opening statement.
I am very pleased to have his reassurance that DCC will not get in the way of other operators. One of the increasingly important areas of activity within corporate business is energy management contracts, for which you need a lot of data communicated to you from very dispersed factory plants, not just nationally, but perhaps globally. I hope that that will not be stopped by this. I would like to understand exactly what DCC has a monopoly of. I guess that it has a monopoly of putting out contracts to do the readings. Presumably the companies that do that do not contravene the secondary legislation. It seems a strange way of going about things.
Finally—I did not enumerate the number of questions that I was going to ask just in case I got that wrong, but this is my last one, so the Minister can intervene on me if there are any more—what happens to places, perhaps not far from me, that do not have mobile phones, GSM network capability or other communications? How does that work? They are usually rural areas, but perhaps there are others. How will the Government make sure that they get the benefits of this system?
Baroness Worthington
I thank the Minister for his introduction to this statutory instrument. I believe it is the first of a number that will be coming forward on the smart metering policy, which we support. It is good to hear the Minister reaffirm that by 2019 every home will have a smart meter. However, there are still some questions we would like to have clarified about exactly how smart those meters will be. I shall come on to them.
The first point I want to raise is that today we have received the report from the Energy and Climate Change Select Committee that has been doing pre-legislative scrutiny on the draft Bill. I urge the Government to join up the dots between these processes. RWE npower gave evidence to the Select Committee and clearly pointed out that if we emphasise demand management within that Bill, this smart metering spend could be money wasted. The amount of money proposed here is not insignificant and some of the benefits will not come to fruition if we carry on down the supply-dominated route which, at the moment, the energy Bill seems to be doing. We keep hearing reassurances from the department that work is going on on the demand side, so let us see some of the detail. It should be being done in parallel with the draft Bill, and the earlier it can be published, the better. Noble Lords have mentioned that we are seeking mechanisms to enable us to manage demand so that we do not have hard-to-meet peaks in demand that cause us to keep a huge amount of spare capacity in the system. It is often the most carbon-intensive and expensive to bring on, so smoothing out that demand profile is a real prize. Done well, smart metering will enable that, and that is what we all want to see. The time-of-use tariffs that smart metering could enable are a great prize. Time-of-use tariffs are available today but they are not smart or dynamic; they are the Economy 7 of decades ago. We need to see a modern set of tariffs based on time of use so that we can smooth out the demand as well as using the demand to back off when we have large amounts of renewables on the system. That is a prize worth having, which is why we support the Government’s moves towards enabling this rollout.
Lord Marland
My Lords, I thank noble Lords for their contributions. I particularly welcome the noble Lord, Lord Reay, whom we have missed from our debates of late. I am glad to see him back with, as always, his resumé of the industry from his viewpoint. He is right in many of the things that he says—5% of the country have smart meters and there is an awful long way to go—and he makes the same point that the noble Baroness has just amplified about the companies that are out there installing smart meters that may become redundant because of the smart meter that the Government eventually approve. I think that the noble Baroness answered the question for me: she said, quite rightly, that it is at the companies’ own expense. They have to behave responsibly, and Ofgem and others will ensure that they do. If they have supplied the wrong smart meter, they will have to put the right one into homes.
That links up slightly with my noble friend Lord Teverson’s point about the energy companies’ savings. Yes, this will mean big savings for the energy companies. It will save them having to send a man to check the meter every quarter, to argue over bills and to send money back and forth through the post, thus improving their cash flow, and this is a good thing because we want to ensure that this is passed on to the consumer, and indeed, it will be. We often wrongly criticise our energy companies; they are very much under the microscope; they are regularly scrutinised, they rarely get away with anything and they make a great contribution to the sector. If they make windfall profits out of this, it will be spotted early on and dealt with.
A number of noble Lords mentioned the key point about whether this was a dreaded quango, following the bonfire of the quangos that we have seen. This is not a quango. It is a private sector company that will be responsible to Ofgem. It will have no relationship with government and quite rightly will be set up, as I said in my admittedly exhaustive opening gambit, to manage data transfer and a communication system, among other things. We need a specialist in the field and such a specialist will be appointed under the terms that I referenced.
My noble friend Lord Teverson made a critical point—one of at least four that he made—about how we will get communications into some remote areas. This is a big challenge. The DCC will have to ensure that it happens; that is part of its remit. As the noble Lord rightly said, it is no small challenge if we are to get to our 100% target.
Again, I express my gratitude to the noble Baroness, Lady Worthington, for her fundamental support for the smart metering process. She rightly drew to our attention—as she had done on a few occasions previously—the issue of demand management, which should be at the heart of everything that we are trying to do. If we reduce demand we will reduce supply and therefore bills. Smart metering is at the heart of demand management.
The noble Baroness referred to the type of meter. It is being designed at the moment and will have to meet universal approval. She also referred to the protocol frequency. We are carrying out a number of trials and have not yet come to a definite answer. Clearly it will have to be a bespoke and dedicated frequency, and it will come as no surprise that those trials are being carried out. I hope that I have satisfied the thirst for answers and commend the order.
Lord Teverson
The noble Lord knows that he has my complete support for this measure. However, I still fail utterly to understand how the DCC adds value. It will have to be controlled by Ofgem or the department. If it is to negotiate with suppliers, it will have to have its budget controlled and its performance and value very carefully monitored. At that point the situation is like that of the former Strategic Rail Authority. In the end the government department decided not to have an intermediary because it could do things better itself.
The East India Company was a private company that ruled half the British Empire—but I suppose that is not what this organisation is supposed to do. I do not get it. I hope that the noble Lord will forgive me, but I find it difficult to understand why we have this extra level of organisation that must then be controlled further up by the department, because it involves money and at the end of the day that will be reflected in bills.
Lord Marland
The noble Lord is quite right to challenge this. I come from a school that does not think that the Government are the right entity to run many things, although they are very good at coming up with policies. Our department is straining at every level to manage the huge challenges that we have at the moment, and we are very happy to put up our hands and say: “We are not experts in data transfer management. We are not experts in promoting competition through the market. We are not experts in providing emergency services when things go wrong. We are not experts in the enablement of the national grid”. Those are a number of things that this entity will be set up to do. I am very happy, incidentally, to write a more expansive note.
Lord Marland
This is friendship on a very high level; I think all those in the Room will know this. With that, I will quit while I am ahead.
Electricity and Gas (Energy Company Obligation) Order 2012
Lord Marland
That the Grand Committee do report to the House that is has considered the Electricity and Gas (Energy Company Obligation) Order 2012.
Relevant documents: 3rd Report from the Joint Committee on Statutory Instruments, 5th Report from the Secondary Legislation Scrutiny Committee.
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Lord Marland)
My Lords, there is no rest for the wicked. Judgment has been passed.
One of my department’s key priorities is reducing carbon emissions by tackling energy-inefficient buildings which are needlessly—
Lord Marland
Yes. I am extremely grateful to the Committee for allowing that to happen.
The four statutory instruments, which I am about to explain, before the Committee today go a long way to help achieve this. They establish the legal framework that underpins the Green Deal and energy company obligation policies, and give the industry the green light to bring the Green Deal energy efficiency market into operation.
I will briefly describe the purpose of each of these statutory instruments. First, the Draft Green Deal Framework (Disclosure, Acknowledgment, Redress etc.) Regulations 2012 create an authorisation regime to regulate the conduct of key Green Deal market participants. They also include conditions that must be met when a Green Deal plan is established and how it should be disclosed. Secondly, the Draft Green Deal (Energy Efficiency Improvements) Order 2012 sets out sources of energy and types of microgeneration measures for the purpose of defining “energy efficiency improvements” in the Energy Act 2011. Thirdly, the Draft Green Deal (Qualifying Energy Improvements) Order 2012 sets out the energy efficiency improvements that can be installed under a Green Deal plan.
The Draft Electricity and Gas (Energy Company Obligation) Order 2012 places three obligations on energy suppliers who have more than 250,000 domestic electricity and/or gas customers and have supplied more than the specified level of energy in a relevant period: first, a carbon-saving obligation; secondly, a carbon-saving community obligation; and, thirdly, a home-heating cost-reduction obligation.
The ECO has been designed to work together with the Green Deal as a joint policy to address barriers and market failures in the energy efficiency market. The Government-backed Green Deal programme will help bill payers make energy-saving improvements to their homes. Through the Green Deal, people will be able to pay for some or all of the work done with the savings expected to be made on energy bills. The ECO will require energy suppliers to promote energy efficiency measures to those most in need and for properties that are harder to treat, helping to reduce emissions and make progress on fuel poverty. I am therefore grateful that the Committee allowed these statutory instruments to be debated as a group.
In November we published our draft legislation and consulted on the Green Deal and ECO policy. We received over 600 responses to the consultation and, in light of these, several policy changes were made—in particular, strengthening consumer protection. We want to ensure that robust consumer standards are met, creating a market that balances consumer protection and burdens on businesses. Changes include improved consumer protections such as restrictions on cold calling and new rules requiring Green Deal participants to declare any ties to other Green Deal participants, including fees or commissions payable. We also strengthened protections for lower than average energy users.
In addition we revised the design of ECO. The energy company obligation will commence in October 2012 with energy suppliers required to deliver against their targets by 31 March 2015. There are no interim targets, so it is up to the energy suppliers to decide how and when they start delivering. For the first time, there will be transparency of reporting the actual costs of delivery. We changed ECO to allow more hard-to-treat cavity walls to qualify for support. These changes will help the insulation industry take advantage of the new market opportunities created by Green Deal and ECO.
Lord Dixon-Smith
My Lords, I am very grateful to the Minister for describing together the four orders we have before us. It saves me the trouble of trying to do so, and I would probably make a mess of it. I should say—perhaps we all ought to say this when we speak on this order—that I have a house that is pretty energy-inefficient so, in a sense, it could be argued that I have an interest in the outcome of this debate, but it is not a direct interest of the sort that is normally declarable.
I have a particular interest in speaking on the first two orders on the Minister’s list—the energy company obligations order and the Green Deal (Qualifying Energy Improvements) Order. I should say that I have had a letter from the Glass and Glazing Federation that has steered my remarks. It has a particular concern, which I shall come to. To put this into context, we need to recognise that 23% of all heat lost from buildings goes out through the windows. It is perhaps much more significant that 85% of all houses have windows that are less than grade C quality, which is the medium on the quality scale where grade A is ideal and C is the medium. The reason that the glaziers have been in touch with me is that they have particular concern about double glazing and a part of the energy company obligation. Double glazing is not specifically mentioned in the list of qualifying improvements. That may just be a peccadillo. Replacement glazing and secondary glazing are mentioned. To the extent that double glazing could be replacement glazing, I presume that it is included. I have no doubt that the Minister will tell me that that is so.
Much more important is the issue raised in the Electricity and Gas (Energy Company Obligation) Order where the conditions under which the improvements can be undertaken are set out in Clauses 15, 16, 17 and 18. What has concerned the glaziers is Article 16(5), which says specifically:
“Where a qualifying action or adjoining installation is a glazing measure, a supplier must only calculate the carbon or cost saving which exceeds the saving which that measure would achieve if installed to the minimum standard required by, as applicable, Approved Document L1B”,
and so on. One wonders why glazing is mentioned specifically. Everything else on this comprehensive list, which is very welcome, is okay, but glazing is specifically mentioned. The effect of this in its past interpretation, and it may be that the department is going to place a different interpretation on it, has been that energy-efficient improvements will be counted only from the C rating up, even if a householder changes from a poor single-glazed window to an A-rated double-glazed window. In other words, this is going to hit the 86% of houses that have the lowest-grade windows because their improvement will not count until it reaches grade C, if this wording is correct and if I am correctly informed, and I am quite prepared to admit that I may well be misinformed. If that is the case, this is a significant matter for the glazing industry and indeed for the principle of what we are trying to achieve with the Green Deal. We are going to disadvantage a lot of the less well off households because that is where the vast majority of poor-quality windows will exist.
Will the Minister agree at least to look at this issue? I do not expect him to be able to say that there is an instant answer that he can give me today. In fact, today we are approving these orders because we can do no other, so there is nothing we can do about this issue, which I rather regret; it would have been nice if I had known about it three months ago. We need to think seriously about this issue. According to the Glass and Glazing Federation, it looks as if there is a bit of a chink in the order and it would be better if that did not exist.
Lord Reay
My Lords, the Green Deal seems to be a ferociously complicated and expensive bureaucratic edifice. It has the laudable objective of improving the energy efficiency of existing British homes and other buildings without requiring the taxpayer to fund it. If I understand the impact assessment correctly, the cost of the energy company obligation will be recouped by suppliers from customers’ bills generally, so that is a further cost to the consumer. As for the amount, I saw different references—a reference to a cost of £1.3 billion a year on page 187 of the impact assessment, but a reference to £540 million a year in the letter from the Minister that appears at the back of the report of the Secondary Legislation Scrutiny Committee. I do not know if the Minister might be able to comment on those figures.
The take-up of the scheme is of course unknowable. Much will depend, as the Government point out on page 131 of the impact assessment, on the trust that people learn to put into the scheme. Plenty of things could go wrong to affect or even destroy confidence and trust.
Two of the advantages of the scheme are said to be the saving of the CO2 emissions as a result of less electricity being used, and greater thermal comfort for householders through enabling them, for the same cost, to enjoy high temperatures in the homes. However, each of those objectives is achievable only at the expense of the other.
I will refer to some interesting paragraphs on page 89 on the subject of health. The impact assessment correctly points out that the scope for improving health by alleviating cold living conditions is considerable. However, it goes on to point to the growing concern that the removal of ventilation can increase the incidence of disease. It expects more attention to be focused on this subject in future.
Finally, I will ask the Minister a question on the subject of external cladding. We read recently that another government Minister had declared that he wished to promote this form of energy efficiency. Will my noble friend give an assurance that this will not be done to listed buildings? We do not want beautiful buildings and streets being vandalised into eyesores in the name of energy efficiency. Enough damage is already being done to the countryside by wind turbines, as the Minister well knows.
Lord Whitty
My Lords, I have a number of points; I will try to restrict them to five. The first two follow up on what my noble friend Lady Worthington referred to as “joining up the dots”. The first is very straightforward and relates to the previous item. I do not understand, even at this late stage, why the Government’s programmes for smart meters and the Green Deal are not allied at least in their means of delivery and timing. Householders will be faced with two different initiatives, one compulsory and one voluntary, at the same time. They could easily be combined. I will leave it at that.
My second and most important point concerns how the ECO mechanism and the Green Deal mechanism join up, in particular in relation to tackling fuel poverty. I think that the Minister was being a little economic with the truth earlier when he claimed that this represented an increase in the number of the fuel poor who would benefit from government policy. Figures produced by my former organisation, Consumer Focus, indicate that the total spend on fuel poverty will fall from £1.1 billion to £540 million in 2013. The latter amount will be accounted for largely by the proportion of the ECO that will be geared to addressing fuel poverty.
As the noble Lord, Lord Reay, said, all consumers will pay for the ECO. It is more or less a poll tax and therefore regressive on those who cannot afford to pay. The offset will be geared through measures such as the warm homes discount, and will include the gearing of some aspects of the Green Deal to the fuel poor. It is not clear that the fuel poor will benefit, in particular those who are tenants either of private or social landlords. Because of turnover and the nature of the tenants, it is unlikely that many will sign up to the Green Deal. Therefore, it would be much more efficient to deliver it via the landlord. Questions of inherited obligations would begin to disappear, and so forth.
It is not clear that in net terms the Green Deal can be delivered easily to individual households in tenanted property. It is not clear how obligations such as the forward payment could be delivered, and it is not clear how the relationship between the landlord and tenant could facilitate the take-up of the Green Deal—the payback from which will take a number of years. My central problem is that a significant element of those who are in fuel poverty will be unconvinced, if they are in their own property, of the need to take up the Green Deal. If they are in tenanted property, they will be unable on an individual basis to take up the most cost-effective ways of achieving Green Deal benefits.
Lord Teverson
My Lords, this is the first document that we have debated in the House that refers to the carbon-saving communities obligation. I want to welcome that because it plugs a hole. The Government have listened and put that in. It is important that that has happened.
I do not want to take over the Minister’s task, but I say to the noble Lord, Lord Reay, that energy efficiency is costly now, but we are paying the cost of the lousy house constructions of the 1950s, 1960s and 1970s. Someone has to pay for that, and unfortunately it has come to us, our generation, to do it. Is that the right thing to do? Absolutely everything that I have ever read, seen or had numbers on has said that energy efficiency is a far more cost-effective way of reducing energy demand or decarbonising than all the other technologies that we tend to talk about. It is completely obvious that it is better to save than to spend to save later. That is why the Green Deal and this area of the ECO are important.
The noble Lord, Lord Whitty, made a number of points on which I agree, and there are a lot of question marks about how things will roll out, but I get the impression from the Government’s mood changes, which are welcome, that the Green Deal is such a large, important, new and innovative programme that it is impossible to nail down all the details right away. We are going to have to go through a learning curve as we implement it. We obviously have to get a number of bits of it tied down, but I am sure that over the first one, two or three years, the programme will change in detail because some of it will not work and some of it will. That is why I welcome the fact that there is not a big-bang launch of the Green Deal but an introduction that tries to learn from the initial experience of rolling it out.
I know that this is a DCLG issue, but I should be interested if the Minister can tell us how the 2016 deadline on, effectively, zero-carbon houses is going. I know there are a number of challenges around achieving that, but I would dearly love to understand whether we are now approaching that optimistically so that in future we do not have the problem that we inherited from those post-war decades of bad house construction.
My list of specific questions for the Minister is even shorter than the list of the noble Lord, Lord Whitty. We want to get a lot of people out there to take advantage of the affordable warmth part of the energy company obligation. What plans do we have to make sure that those people are aware of this scheme and get it to work if they are not approached by their energy supplier? That is always a problem with these issues.
The noble Lord, Lord Whitty, made a point on the rented sector. I am not as pessimistic about the rented sector because the scheme is written with the debt applying to the meter, so there is every incentive for even a short-term tenant to get the Green Deal if they want because they do not have to pay it back later on if they move on in a few months’ time. It still requires them to be motivated to do it, to be told that they can and to be able to understand that. I would be interested to understand the Government’s point on that at the minute. This will require working with local authorities to roll this out street by street, neighbourhood by neighbourhood, and village by village.
Lastly, there is a small issue around warranties. The warranty conditions under the Green Deal are pretty good now. I would like to understand from the Minister whether we are going to have an equivalent warranty position on the affordable warmth programme.
Lord Grantchester
I thank the Minister for his explanation of the orders. From our side, we are pleased to continue our support for the Green Deal. Any demand-reduction and energy-efficiency improvements are vital for meeting greenhouse gas emissions targets, energy security and climate change mitigation. It has been reassuring that the coalition Government have continued along the pathway set by our previous Labour Administration, but it has been frustrating that progress has been slow at times. While recognising the imperative that measures must be fully budgeted, it has been frustrating that schemes have oscillated wildly, as happened with the feed-in tariffs fiasco, undermining confidence and jeopardising investment.
When readjusting payments in the future, it cannot be stressed enough that adjustments must be smooth and based on accurate and meaningful calculations. I begin with the energy company obligations—ECO. Since the passing of the Energy Act last year, it is recognised that there will necessarily be a period of consultation and drafting. It is recognised that the Government have responded positively, and the noble Lord, Lord Teverson, was correct to draw attention to this in his remarks.
The proposals strengthen key areas such as consumer protection, strengthen protections for lower-than-average energy users and those in rural areas, and adopt Labour’s proposals to include hard-to-treat cavity wall insulation. However, there is concern that following the Minister’s department’s downgrades the schemes will not achieve the targets necessary. The Government have been high on hyperbole and claims, to quote the Minister in the other place,
“to improve 14 million homes by 2020 and a further 12 million by 2030”.
Now that we have the final impact assessment, these claims can be assessed in detail. The actual figures are much less stunning.
The department’s figures for loft insulations suggest that they will fall from about 900,000 this year to just 150,000 next year, a decrease of some 80%. Cavity wall insulations will drop from 700,000 to 400,000 in 2013. Solid-wall insulations will remain the same as this year. These downgrades will have significant consequences for the industry, for the country’s ability to meet climate-change targets and, most importantly, for the many hard-pressed households struggling with everyday energy bills.
As to the Government’s consultations and dialogue with industry, there are several detailed points on which I will press the Minister. The industry has signalled that it is keen to work with government, and has made significant progress. My noble friend Lord Whitty has already spoken to points raised by the Combined Heat and Power Association on district heating. The ECO is intended to work in tandem with the Green Deal policy to enhance further the installation of cost-effective energy efficiency improvement measures, especially measures not fully financeable through the Green Deal alone—for example, through solid-wall insulations. A supplier may support a measure under the ECO. However, it is not clear what is the process under which the ECO may be triggered and join up with the Green Deal, and how the hierarchy of providers, assessors and the bill payers will have clarity of responsibility. Once again, my noble friend Lord Whitty has highlighted this issue, especially the difficulties of fuel poverty.
We are keen to see the Green Deal be a success. However, there are continual concerns raised as each proposal is announced. It is not only Labour that is raising concerns. A coalition of 16 organisations, including Consumer Focus, SSE and the WWF, recently issued a paper, which stated:
“The Green Deal and ECO, as they currently stand, are nowhere near sufficient to meet the challenge of eliminating fuel poverty and ensuring affordability for all”.
Low take-up will seriously impact the British installation industry. It has been claimed that the Green Deal will create 250,000 jobs. Now, in the impact assessment, the department has downgraded its estimates again. The Minister in the other place has put the figure at a mere 34,000 jobs created by 2050. Under the department’s worst-case scenario, only 12,000 jobs may be created by then. Every new job is to be celebrated at a time when the Government’s economic policies are making many people redundant or out of work. Does the Minister have an update today on how many jobs will be created by the Green Deal next year and up to 2015?
Lord Marland
My Lords, I am extremely grateful for the contributions. It is worth saying that we have taken the Green Deal through this House. It has been rigorously stress-tested. A number of changes that we have made are entirely due to contributions from Ministers.
Lord Marland
Not Ministers yet, but they could be in time. Actually, I am thinking of the noble Lord, Lord Teverson, who is so good at replying to the questions that I am asked, I might ask him to sign up. I meant to say that the changes were due to the contributions of noble Lords. What we have set before the Committee is merely a tightening of the belt and a response. Let us be fair; noble Lords all know that they are just going through the motions and asking questions that will continue to tighten up and improve an extremely well put together Bill, because they helped to put it together.
I shall deal with specifics and ignore some of the political air traffic because it is not a political issue. My noble friend Lord Dixon-Smith made a very good point on behalf of the double-glazing industry. Her ladyship is obviously very concerned. The noble Lord declared his interest that he is, to date, not double-glazed, and he has probably been put up to it by her ladyship rather than the industry. We are pretty clear that double glazing qualifies under these provisions and we have to differentiate between home improvements and energy-saving issues. People who qualify should have better standards that are the minimum standards in the building regulations. I hope that that satisfies my noble friend’s questions. Perhaps he will be kind enough to let me take up his offer to allow me to write to him on his technical questions about grade C because the issue is technical and I am known for, and have admitted to, my lack of detailed knowledge of these band areas. It would be better to have it in black and white from experts.
The noble Lord, Lord Reay, who is not known as a great fan of the Green Deal, happily repeated that he is not a great fan and quite reasonably asked for an explanation of the figures that we have come up with. The answer is as follows: the £1.3 billion is the total expected cost of all three elements of the ECO, and the £540 million is the expected cost of the elements that are expressly reserved for supporting low-income and vulnerable households. I hope that that clarifies matters. As someone who is passionate about our architecture and our countryside, I quite reasonably expected the noble Lord to ask about external cladding, and I am very happy indeed to confirm that there will be no change in the planning conditions as they stand in relation to any external changes to a house.
I move on to the noble Lord, Lord Whitty. I must say that I mopped my furrowed brow when he said in his letter, “I may not be in London in time for the Moses Room discussions”. What a relief it is that he is with us because his incisive questions are, as always, very difficult for a simple soul like me to deal with. His letter arrived this very morn and is full of a lot of the detail that he has mentioned. I shall be delighted to respond to him in writing, although I shall deal with some of his questions now, just to keep the conversation going.
The noble Lord, Lord Grantchester, amplified the point about joined-up thinking between smart meters and the Green Deal. In an ideal world, we would push everything out together and do it all at the same time but, as we all know, the world is not ideal. There is a defining difference between smart meters, which are an obligation, and the Green Deal, which is a market-led opportunity. We cannot always have opportunities as obligations or vice versa. I am sure that the noble Lord will understand that.
He touched on the very important subject of fuel poverty, which is at the heart of most people’s concerns. Professor Hills has come up with an excellent report. We published his interim report, which found favour with your Lordships. The report looks at the definition of fuel poverty because—making a small political point—it went up exponentially under the previous Government, despite everything that they did. I compliment the previous Government on everything that they did to try to stop fuel poverty but it went up exponentially because, as we all realise, the definition was not the right one. We must get to grips with the definition because in doing so we get to grips with the problem. We will watch this space very carefully as the Green Deal unwinds, Professor Hills’s final report is put in place and we bring everything together.
On the private rented sector, the noble Lord, Lord Teverson, amplified and supported the point made by the noble Lord, Lord Whitty. A great effort was made by your Lordships; in this House, we put in a review for 2016. I do not think any of us wants to waver from that date. We persuaded the other place that it was the right thing to do and we will wait for it.
The noble Lord rightly raised the district heating system, as he did in his letter. Indeed, it was through consultation and the great work of noble Lords here in pointing it out as we took the Bill through the House that we agreed to embrace the district heating system within the current regulations and take it on. As I say, there is a lot of detail in this letter, as you would expect from the noble Lord, given his expertise. I will reply to his letter in full and put that reply in the Library so that everyone can see it.
I say only that I am not known for being economical with the truth. I do not think that the noble Lord meant it in that way; I think he was just arguing over the semantics of the figures. Fuel poverty and the number of people who could be employed vary and are often a matter of estimation and guesswork, albeit based on statistical evidence and forecasting.
The noble Lord, Lord Teverson, to whom I am always grateful, mentioned carbon savings being at the centre of everything that we are trying to do. He is absolutely right: we have inherited a legacy of poor home construction, which is not exclusive to certain areas. This is part of what the Government are about. Trying to reduce demand is absolutely fundamental, as we have discussed. As for getting to zero carbon by 2016, fingers, toes and other parts of the body are crossed. It is a very challenging task and we are committing to it.
The noble Lord mentioned the “affordable warmth” sign, the affordable warmth system and the warranty system. Ofgem is coming up with a load of rules and regulations for the warranties, which will be supplied later. To ensure that those who are entitled to it get it, there will be a referral service. We are setting that up now. People can refer to it, and it will be monitored by our department.
Lord Grantchester
While the Minister reflects on another point, we are trying to get uptake by consumers. I wonder whether he has researched the situation as far as consumers are concerned. I am sure the Government could take steps to make sure that penalty charges are not a feature of the Green Deal plan.
Lord Marland
We want at all costs to avoid penalty charges for a private scheme. It is therefore not really for the Government to indulge in imposing penalties. We are monitoring it, as noble Lords have insisted, and I completely agree. We are going to review the whole thing regularly but, in particular, in 2016. If, for example, in the private rented sector, things are not going as we hoped, we must, where possible, enact to impose penalties.
The thing I am completely stumped on is consequential loss. It needs greater amplification for me to understand the issue, so with the indulgence of noble Lords, perhaps we can do it at a separate time. I hope noble Lords will forgive me because I need to understand the question in more detail in order to give a satisfactory reply.
Green Deal (Qualifying Energy Improvements) Order 2012
Lord Marland
That the Grand Committee do report to the House that is has considered the Green Deal (Qualifying Energy Improvements) Order 2012.
Relevant document: 3rd Report from the Joint Committee on Statutory Instruments, 5th Report from the Secondary Legislation Scrutiny Committee.
Green Deal Framework (Disclosure, Acknowledgment, Redress etc.) Regulations 2012
Lord Marland
That the Grand Committee do report to the House that is has considered the Green Deal Framework (Disclosure, Acknowledgment, Redress etc.) Regulations 2012.
Relevant document: 3rd Report from the Joint Committee on Statutory Instruments, 5th Report from the Secondary Legislation Scrutiny Committee.
Green Deal (Energy Efficiency Improvements) Order 2012
Lord Marland
That the Grand Committee do report to the House that is has considered the Green Deal (Energy Efficiency Improvements) Order 2012.
Relevant document: 3rd Report from the Joint Committee on Statutory Instruments, 5th Report from the Secondary Legislation Scrutiny Committee.
Public Bodies (Abolition of the Commission for Rural Communities) Order 2012
(12 years, 4 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Taylor of Holbeach
That the Grand Committee do report to the House that is has considered the Public Bodies (Abolition of the Commission for Rural Communities) Order 2012.
Relevant document: 3rd Report from the Joint Committee on Statutory Instruments, 3rd Report from the Secondary Legislation Scrutiny Committee.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Taylor of Holbeach)
My Lords, I welcome this opportunity to debate the draft order, which is made under the Public Bodies Act 2011. It reflects oneof the outcomes of the Government’s programme of reform for public bodies. The order will abolish the Commission for Rural Communities—the CRC—and finalise the consolidation of rural policy functions within Defra.
I take this opportunity to thank the commission, Dr Stuart Burgess and his team of commissioners for their commitment to the well-being of rural communities. I also thank them for the constructive way in which they have continued to work in liaison with Defra’s rural communities policy unit. I would expect no less of Dr Burgess, who I know, and for whom I have the highest regard.
The rationale for this reform was articulated during the passage of the Public Bodies Act, in which we sought powers to abolish the CRC. We consulted widely, as required by the Act, on both the new rural policy functions within Defra and the abolition of the CRC. Of the 41 responses received, 12 individuals and organisations supported abolition, 12 respondents were opposed and 17 did not expressly support or oppose abolition.
We firmly believe this reform to be necessary. Placing rural interests at the heart of government, led and championed by Defra Ministers, will allow us to shape and influence policy across Whitehall at an early stage. The abolition of the CRC is not a decision that the Government have taken simply to reduce costs or to reduce attention to rural issues. It is a decision that will remove duplication, improve effectiveness and enable resources to be more effectively deployed.
Although not the primary driver, there will, of course, be financial savings to be made as a result of this reform. These are considerable: net savings of £17 million over the period of this CSR. This is a Government, from the Prime Minister down, with strong rural credentials. We have clear and bold ambitions for our rural areas. The abolition of the CRC paves the way for Defra’s Ministers to bring forward new, more effective, approaches to ensuring rural needs and opportunities are properly understood before decisions are made.
On 1 April 2011, the rural communities policy unit—the RCPU—a centre of rural expertise, was created in Defra. The RCPU is designed to engage more effectively, and at an earlier stage, in the development of policy across government. For example, it is brigaded alongside the team working on and delivering the RDPE, which is Defra’s key funding stream for the rural economy.
Noble Lords will be aware that in consideration of the order, the Secondary Legislation Scrutiny Committee recommended that the rural statement should set out not only government-wide policy intentions but robust structures for incorporating stakeholder input into policy development and implementation. We agree with and support this recommendation fully. The rural statement will underline our commitment to rural England. It reflects our vision for successful rural businesses and thriving rural communities, and is based around three key priorities. The first is economic growth: we want rural businesses to make a sustainable contribution to national growth. The second is rural engagement: we want to engage directly with rural communities so that they can see that the Government are on their side. The last is quality of life: we want rural people to have fair access to public services and to be actively engaged in shaping the places in which they live.
We accept and recognise that a two-way communication with rural stakeholders and communities is crucial to developing better policies and delivering more effective outcomes. As our Explanatory Memorandum highlighted, we want to continue to engage proactively and positively with partners, including local government networks, civil society organisations and business groups. Defra Ministers, for example, established the new rural and farming networks as a conduit to give key rural representatives and stakeholders a voice in Whitehall on behalf of their localities. Similarly, the RCPU has regular engagement with the Rural Coalition. This engagement has ensured that advice from experienced practitioners has fed in to changes in the planning system, housing and the economy. Through this regular engagement, Defra Ministers and policy officials across government are able to have present-time dialogue with those who represent the concerns and interests of rural communities. We encourage this dialogue to be as open and as frank as possible, as we see it as a mechanism for delivering good policy.
The Secondary Legislation Scrutiny Committee also recommended that the rural statement should provide specific details of the steps that the Government intend to take to deliver independent scrutiny of rural-proofing. Again, we agree with the broad thrust of this recommendation. Defra supports rural-proofing by providing advice, guidance and support to policy officials across government. Alongside this commitment, we will publish new rural-proofing guidance materials in September. The rural statement will outline our commitment to commissioning an external review of the impact of the new rural-proofing package, to be undertaken in summer 2013.
Importantly, Defra Ministers will also be accountable to Parliament for the way that they fulfil their role as Rural Champions. Noble Lords will be aware that the EFRA Select Committee is currently undertaking its inquiry into rural communities. It is focusing on the role of the RCPU, rural grants and funding and rural-proofing—all part of government policy. My ministerial colleagues and I welcome the attention that this is placing on both the role of the RCPU and our efforts to ensure that all government departments are giving adequate attention to rural-proofing their policy and decision-making. This is an important opportunity to demonstrate both our commitment and our actions toward supporting the interests of those living and working in rural areas.
This is a good reform heralding a new and exciting era for our rural communities. I firmly believe that this is the right way forward, and that this order, and the new arrangements we have put in place with the RCPU, will deliver the right outcomes for rural communities. To this end, I commend the draft order to the Grand Committee.
Lord Knight of Weymouth
My Lords, this afternoon we are discussing another public bodies order from Defra. To date these discussions have been friendly affairs, much in keeping with the amicable way in which the Minister dealt with the dodgy primary legislation as it went through your Lordships’ House. I fear that our deliberations today might be slightly less consensual. As we heard, the Commission for Rural Communities was established by the Natural Environment and Rural Communities Act 2006, following the review led by the noble Lord, Lord Haskins. I was the Bill Minister for the NERC Act and therefore would describe myself as something of a midwife for the CRC.
That does not mean that I oppose the order outright, but it does mean that there are important questions for the Minister to answer. They happen to be the same questions that I asked when the Public Bodies Bill was going through the parliamentary process. As ever, I am grateful to the Secondary Legislation Scrutiny Committee, on this occasion for its third report of this Session. Its conclusion is the one that I came to last year and that I know is shared by many in the House. The committee correctly applied the three tests of effectiveness, economy and efficiency, and accountability. As is the way with these orders, it is right that I should do the same.
The Government argue that it is more effective to bring officials in-house, rather than have them at arm’s length, so they will have earlier and greater involvement in the development of policies and programmes across Whitehall. I am afraid that in my experience Defra is not central to the Government’s thinking until there is a crisis, and that rural policy in turn is on the margins of Defra’s thinking. The clue is in the name. It thinks about the environment, then food and farming, and finally rural affairs. There is no sign that this has changed. We witnessed the inability of the department to secure a legislative slot in this Session for the much-needed water Bill. That is the reality of the marginalisation of Defra. To argue otherwise is naive in the extreme.
As the Minister said, the Government are looking to save £17 million over the CSR period by this change to their rural policy function. That is the real reason for this change: economy. I do not argue that savings are there to be made, although it is worth noting that the CRC cost around £600,000 in the past financial year. It is worth diverting some of the remaining cost of the rural policy function to support the continuation of a rural policy adviser who is independent of government.
My main objection to the move is on the ground of accountability. The Government argue that these changes will enable Defra’s Ministers to be held accountable by Parliament for the exercise of rural policy functions. However, we should look at how Parliament is currently being treated. Over the weekend, dairy farmers blockaded milk processing plants to draw attention to the exploitative pricing that is making milk production uneconomic. Two supermarkets have already responded by raising the prices they pay to farmers. The farmers clearly believed that parliamentary methods were not being listened to—and was it any wonder?
Today it was reported that Jim Paice, the Agriculture Minister who does not know the price of milk, had raised the possibility that an adjudicator would be created to oversee a voluntary code for the dairy supply chain. This is exactly what my noble friend Lord Grantchester suggested last week when he moved an amendment to the Groceries Code Adjudicator Bill. Coalition Peers were whipped to oppose it—and duly defeated the very proposal that is now coming from the Agriculture Minister. Just one week later, threatened by angry farmers, Defra’s policy is churning, thanks to direct action rather than parliamentary pressure.
This follows a succession of protests that bounced Defra. Its proposals to sell off the nation’s forests were met with huge protests and it backed down. The same happened with national nature reserves and changes to reduce environmental protection in planning law. There was the case of wild animals in circuses. Over Easter Defra suggested allowing the shooting of buzzards—a native species—to protect pheasants, which are a non-native species bred to be shot. Unsurprisingly, that was laughed out of the court of public opinion within days. In these cases, we made what noise we could in your Lordships’ House or in the other place, but it was clear that Ministers were more accountable to 38 Degrees, the National Trust and Farmers for Action than to this Parliament—so much for accountability.
The lack of long-term strategic thinking that bedevils Defra is at the heart of the issue. At the same time, rural England feels the effects of policies and cuts from other government departments. For example, it emerged this month that the rate of young people not in education, employment or training is rising faster in rural areas than in urban ones—and that rural councils, which tend to have older and less deprived populations, receive lower grant allocations, spend less on social care, charge more for home care and allocate lower personal budgets than local authorities serving younger, more urban and more deprived populations. New research finds that social tenants in rural areas will be more likely than those in urban areas to have to move house as a consequence of reductions in housing benefit, yet there are fewer smaller dwellings for them to move into. I know these things thanks to the July newsletter from the Commission for Rural Communities. Its reports often make uncomfortable reading across Whitehall. The independence from government of these reports increases accountability. That is why a letter to today’s Daily Telegraph is signed by the right reverend Prelates the Bishops of Wakefield, Norwich and Exeter, the Duchess of Rutland, the High Sheriff of Cornwall, me and other parliamentarians, including my noble friend Lord Grantchester.
As the letter says, there has been an independent voice to government since 1909. It goes on:
“In the current economic circumstances it is more important than ever that the voices of rural communities are not lost and that an independent adviser—distinct from the range of rural pressure groups—exists to speak up for rural interests”.
That is all we ask—not for the expensive retention of the CRC, but for the retention of what has served us well for more than a century, an independent rural champion. What do the Government propose instead? The independent voice will be provided by Defra’s very own Rural Affairs Minister, Richard Benyon, he of the buzzards U-turn. Rural England’s new champion will be inside the tent but, unusually, on this occasion pointing inwards.
The lack of commitment is demonstrated by the facts that Mr Benyon has not delivered the new rural-proofing guidance promised even today on the Defra website for this spring, and that he has failed to deliver a rural statement, referred to by the Minister, by spring 2012, which was also promised today on the Defra website. That is serious for this Committee. Can the Minister tell us in his wind-up what happened to it? Are we going to get it in September, along with rural-proofing toolkit, six months late?
As he says, the Secondary Legislation Scrutiny Committee specifically recommends that the rural statement sets out robust structures for incorporating stakeholder input into policy development and implementation. The Minister responded to that by referring to the explanatory document which has already been scrutinised by the Secondary Legislation Scrutiny Committee. It then wanted more information, which we do not have, to scrutinise this order.
I ask again what I asked the noble Lord, Lord Henley, in column 765 in March last year. Why not give us an independent rural voice that tells us by appointment, with the authority of the Prime Minister, what is really happening and tells us the truth regardless of fear of or favour from the Government? It worked for Lloyd George, for Churchill and for Thatcher. Is it really too much to ask?
Lord Cameron of Dillington
My Lords, I thank the Minister for his introduction to this, and his team for providing the explanatory document about the different ways in which consultation will take place with rural groups such as the Rural and Farming Network, ECO and its sub-groups, the Rural Coalition, local economic partnerships, the Rural Service Network and the LEADER exchange group. I know that LEADER is an initiative to do with the delivery of the Rural Development Programme for England, but the word made me think. These groups, or leaders of groups, such as farmers, businessmen and local councils, are all stakeholders—to use the Minister’s word—in the countryside.
Who is going to represent the deprived of rural England—those who sometimes go with only one meal a day because they know that they have to spend their money on a car to get to their valuable work, or to have any of form of life there? Who is going to speak up for the countryside’s young, who cannot get a job because they have not got the transport to get to one and cannot get the transport to get to a job because they have not got a job to pay for the transport? Who is going to speak up for the unemployed, the unhoused and others?
The Minister will know that I am in a slightly difficult position. I have been asked by Richard Benyon, the Defra Minister in the Commons, to pool together a group of Peers to help rural-proof the government department’s policies in each individual case, but I still have not quite grasped who is going to do or commission the critical and independent research that will penetrate the normal attitude of most departments to the countryside, which is ambivalent at best. Actually, their attitude ranges from ambivalence to total ignorance and they need spurring on.
Most of us in this Room have argued our best on several occasions for some representation at arm’s length from Government, as stated by the noble Lord, Lord Knight, of those rural voices that are not normally heard. I hope that the Minister can reassure me on the question of the independent, fearless research that is often critical of the Government, and which departments are, frankly, unable, to carry out. I hope that he can also reassure me on my point about who will represent the voice of the rural deprived.
Lord Curry of Kirkharle
My Lords, I thank the Minister for his statement and his desire to ensure that the commission’s functions are properly fulfilled within Defra. I say from the outset that I am not opposing the decision to abolish the CRC. However, it is now clear—indeed, it was clear to many of us at the time—that in the desire to have a large bonfire of the quangos, decisions were taken without a clear plan for properly addressing the consequences. I am pleased that Defra has a plan, but I would like to be reassured that the functions of the CRC will be properly resourced and carried out by Defra. As the noble Lord, Lord Cameron, said, the CRC did some very helpful and useful research into issues like rural poverty and changes in demographics in the countryside that will be essential in helping design policies that impact on the countryside.
It is essential, as has been said, that government policies have a degree of rural-proofing. Without an independent commission, I suggest that it will be difficult for the department to fulfil this function without trying in the process to defend government policies in doing so. It is difficult for a department to be, if I might use the phrase, both gamekeeper and poacher. The role of the rural advocate, as the noble Lords, Lord Knight and Lord Cameron, said, has been extremely useful in highlighting many vital rural issues. Dr Burgess has been a very effective and active advocate, as was his predecessor, the noble Lord, Lord Cameron, before him. It has already been stressed that the element of independence that has been so valuable is being lost. The role of the rural advocate should be reconsidered.
However, I welcome the Minister’s assertion that ensuring growth within rural areas is critical to the Government and is being recognised. I have always believed that it is impossible to draw a line between rural and urban in any case; one is dependent on the other, and government policies need to reflect that. Without the vital independence of a rural advocate, though, it really is difficult to know where any challenge is going to come from.
Baroness Parminter
I add my thanks to those of noble Lords before me who thanked the Minister for his opening remarks, and I welcome the order. The debates to date seem to have been around how successful the new arrangements will be in delivering the vital roles that the CRC has performed in the past in its roles of adviser, watchdog and advocate. I do not want to revisit those but I shall ask a few questions that I hope the Minister will touch on.
The first question is around the issue of adviser and watchdog. It is clear that rural community policy units are being set up to be centres of rural expertise, and that is to be welcomed. However, it is also clear that they will have to have to have a firm external focus, otherwise they will end up talking to many of the usual suspects. I would welcome a list of organisations that they will be engaging with but, having taken the opportunity to look at the Defra website today, I struggled miserably to find anything about the objectives and activities of this important new unit. If I were an activist in a local community who wanted to find out what was going on—if I had any initiatives that I wanted to share or discuss with the Government—I would have no concept of what their activities or programmes of work were. I therefore ask the Minister if the public interface of that unit could be looked at, particularly the website.
Lord Taylor of Holbeach
My Lords, this has been a good debate, albeit a little feistier than some of the debates that we usually have within the teams that we represent. However, in some ways I am pleased that we have been able to air some of these issues. I know that the noble Lord, Lord Knight, had a bit of fun running through Defra’s ambit and its policies, and what he perceives as being our deficiencies. However, he cannot deny that this is a Government in which those of us at Defra firmly believe that we are seeking to address issues on behalf of rural communities. “Rural affairs” may come at the end of our title, but it is not belittled by the fact that it is the last of the three key subject areas in which the department is engaged.
All noble Lords were articulating much the same issue, and it has been helpful to hear the concerns of noble Lords who have played a full part in the evolution of our rural policy. I sensed behind much of their contributions a certain insecurity about whether having only a single individual pressing the case for rural communities was the best way forward. My noble friend Lady Parminter doubted that fundamentally and I sensed the same in other contributions, because noble Lords have all been there and know it from experience.
We live in a world where independent contributions to policy formation are never missing; they are a constant presence in government. There are the external pressures and expertise of formalised bodies such as NGOs that seek always to impress their role on government. Bodies such as the CLA or the NFU on the one hand, or Unite on behalf of agricultural workers on the other, express their views. This extends across the environmental field and the fields of industry and water, where groups of individuals give advice that is independent in the sense that it is not internal to Government.
When people talk about how marvellous things were and how reports were superb in indicating rural poverty and the difficulties that many rural communities had, I say: what good did that do rural communities under the previous Government? The information was available, but were the issues addressed? I say no. The key is for the department to recognise that rural communities face particular challenges and that, unless Ministers are focused on addressing them, no independent external information provided to the department will bring effective government action to address the issues.
We have had a very useful debate. I took on board the notion of independent research and evaluation of evidence. I will take that back and write to noble Lords, explaining how Defra uses evidence, particularly the social evidence to which a number of noble Lords drew attention. Defra is the custodian of the well-being of rural communities and there are within rural communities, as I know myself, large numbers of people who do not have access to the sort of public services that we want.
I hope to noble Lords will take what I am saying as being a sincere evaluation. The key is having Ministers who recognise the issues and are prepared to argue them within the department, and with other departments, to ensure that they are addressed. That will be far more effective than hiving them off and thinking that by doing so we have taken action to address them.
I am pleased to have had a sound-off, as well as the noble Lord, Lord Knight. I, too, feel better for having been able to explain why I believe that we are doing the right thing. If we cannot persuade the Government to address the cares of rural communities, we in Defra will have failed. I do not intend to fail. I commend the order to the Grand Committee.
Education (Amendment of the Curriculum Requirements for Fourth Key Stage) (England) Order 2012
(12 years, 4 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Hill of Oareford
That the Grand Committee do report to the House that is has considered the Education (Amendment of the Curriculum Requirements for Fourth Key Stage) (England) Order 2012.
Relevant document: 3rd Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, I am grateful to the legislation committee for its consideration of this order on 2 July. Noble Lords will be aware that the necessary statutory consultation has been undertaken and that the order has already been debated in the other place.
I shall start by setting out the background to the order and why the Government are seeking to remove the duty on schools to teach work-related learning at key stage 4. Noble Lords will remember that last year Professor Alison Wolf was asked to carry out a review of vocational education and make recommendations about how it should be strengthened. Her report was, I think, broadly welcomed on all sides of the House. One of her key findings was that the quality of work experience post-16 needed to be improved, a conclusion with which I think all noble Lords would agree.
I do not think that there will be any difference between us about the importance of good work experience and the contribution that it can make, particularly for those from poorer backgrounds who do not have the same networks and contacts that others from more affluent backgrounds tend to have. It has an important part to play not just in helping to prepare young people for the world of work but in raising aspirations and broadening horizons.
Professor Wolf pointed out in her report that with the raising of the participation age to 17 by 2013 and 18 by 2015, it made more sense for work experience to be carried out at a later age, not least because almost no young people go into full-time paid employment at 16. She also found that employers, for a variety of reasons, were less keen to have young people aged 14 or 15 on their premises than older ones. She concluded that in many cases work experience provision for 14 to 16 year-olds was expensive, poor quality and not a good use of time for the pupil, school or business involved.
Ofsted has also found that the provision of work-related learning by schools is variable in quality. Professor Wolf recommended that the work-related learning duty at key stage 4 should be removed from the national curriculum, a recommendation that noble Lords will know is consistent with the Government’s general desire to remove prescription from the national curriculum, and from schools in general, wherever possible.
So for these reasons—a desire to give schools more freedom to exercise their professional judgment about how best to deliver work-related learning; concerns about the quality of work-related learning at key stage 4; and a desire to concentrate on raising the quality of work experience post-16—we accepted her recommendations.
I shall briefly explain the detail of what the draft order will achieve. Section 85 of the Education Act 2002 makes provision for the curriculum requirements for the fourth key stage. The national curriculum comprises the core subjects of mathematics; English and science; other foundation subjects of information and communication technology, physical education and citizenship; and four entitlement areas of arts, design and technology, humanities and modern foreign languages. Section 85 also includes the duty to provide work-related learning under subsection (5)(a). Work-related learning is defined in Section 85(10) of the 2002 Act as,
“planned activity designed to use the context of work to develop knowledge, skills and understanding useful in work, including learning through the experience of work, learning about work and working practices and learning skills for work”.
This order amends Section 85 to remove subsection (5)(a) in relation to work-related learning in line with Professor Wolf’s recommendation.
We announced in our response to Professor Wolf’s review that we would accept this recommendation and consulted on it between September 2011 and January 2012. We published that consultation on 5 July. I recognise that the timing of this order does not give schools a full term’s notice because we are proposing to remove the duty from this September. However, since the order has the effect of removing a duty on schools rather than imposing one, our view was that it was preferable for this duty to be removed as soon as possible. Removing the duty will enable schools to be flexible in their provision for students who would genuinely benefit from work-related learning, rather than trying to shoe-horn in curricular activities simply to meet a legal duty.
Baroness Hughes of Stretford
I thank the Minister for that detailed explanation of why the Government are proceeding in this way. I would not argue with Professor Wolf’s recommendation that a blanket one-size-fits-all approach to work-related activities has served its time, as I think she said. I also agree that work-related activities should remain a key priority for schools and colleges, including, I would argue, for those key stage 4 pupils who would benefit. Accepting those conclusions, though, is not an argument for abolishing altogether the statutory duty to provide work-related activity and for absolving schools from that provision. The definition of work-related activity in the legislation that the Minister read out remains even more relevant today.
It is instructive to hear what employers have to say. Recently I attended a listening event with small and medium-sized enterprises in Manchester. I declare an interest as a policy adviser to the Chambers of Commerce. It was salutary how many of those owners of businesses complained about the preparedness of students now for the workplace, not in terms of being prepared to do the specific job that the workplace was doing but simply in terms of getting there on time, being expected to work perhaps from 8:30 pm to 4.30 pm and the general, basic teamwork skills that you need to deploy to be successful in the workplace. They were arguing that many schools prepare students very badly for that, even with work-related activity as a statutory duty.
Today I was sent some comments about this proposal from the Federation of Small Businesses. It says that it is disappointed at the proposals to remove the statutory duty to deliver work-related learning at key stage 4, and argues that the concept of work-related learning should be broader than purely work experience placements and should encompass helping students to gain a range of experiences and skills that they will need in the workplace, such as writing job applications, and work-based skills of the sort that I mentioned, such as timekeeping and so on, improving young people’s understanding of potential careers and jobs. In fact, the FSB argues that work-related skills and an understanding of business and enterprise should be gained at as early an age as possible. The statement that it put out today repeats the contention that we should start early with work-related learning, maybe in small doses, in order to embed some of those skills and knowledge about the workplace in our young people.
The FSB goes on to say:
“This is not to say that work related learning and work experience for young people is perfect and cannot be improved but in our view we cannot see any significant justification for its removal which outweighs the benefits of introducing young people to work related knowledge and experience at Key Stage 4. In our view this is an area of learning that needs to be strengthened rather than watered down”,
and it is concerned that:
“Removing it from the statutory curriculum will inevitably lead to it being sidelined”.
The British Chamber of Commerce has said that it endorses the FSB’s statement, so there is a range of concerns from employers and it would be good if the Minister addressed them when he replies.
A second concern is the consultation, which produced the result that 89% of the just short of 600 respondees said that they were opposed to the change that the Government are making, and gave various reasons for their concerns, which we can see in the consultation document, all of them reflecting some of the points that I have just raised and which the FSB has talked about. I found it rather—I was going to say “insulting”, and I am sure that the Government do not mean to do that. There is a great deal of detail about the kind of responses that people gave and their reasons for opposing this measure. Yet the consultation document simply says, in terms of next steps, that the Government have decided to proceed with removing the duty, without engaging in any way with the concerns that people have expressed and the reasons why they are opposed to the action that the Government are taking. That is something that the Minister may want an opportunity to develop.
There is a range of concern in the world outside, and I would like to bring all that down to four questions for the Minister, if he would be kind enough to think about them. First, if work-related activity continues to be important to the Government, as the Minister says that it is—I understand about the evaluation work that is going on, and the models that are being tested by colleges—why, then, are the Government abolishing the statutory duty to provide it rather than amend that duty to allow schools to be more flexible and to extend it for 16 to 18 year-old, for example? I know that the Minister has said that abolition fits in with the Government’s mantra about liberating schools and freedoms, but a lot of people are concerned that anything that is not in the national curriculum will be sidelined, as the FSB contends. Therefore it would be possible for the Government to have amended the duty rather than abolish it altogether. Why have they chosen abolition?
Secondly, why are the Government ignoring the overwhelming views of the people who took the trouble to respond to the consultation with very little explanation? Thirdly, will Ofsted specifically report on the extent to which schools are providing effective work-related activity, and on the quality of those experiences that the students are getting?
Finally, given that the Government are undertaking this evaluation and working with colleges to experiment on different models, at least for 16 to 18 year-olds, will they at some point produce guidance to illustrate what that best practice has been found to be? When the results of those projects are available to inform ideas about best practice, will the Government consider making that guidance statutory, so that schools and colleges at least have to follow what has been discovered to be the best alternative way of doing them? I would be grateful if the Minister could address those points in his reply if at all possible.
Baroness Walmsley
My Lords, I preface my comments on the order with this: when one sits in this Room, sometimes, listening to the debate on an order that has been listed prior to one’s own, one often hears interesting things. I heard of something today called “rural proofing”, which I had never heard of before. It struck me that about 18 months ago, the Minister for Children, Sarah Teather, hinted that we might get child-rights proofing of policy before very long—or at least before this government comes to an end. Will my noble friend write to me to say how that is progressing?
On the order, I do not agree with the noble Baroness, Lady Hughes of Stretford, that early experience of these issues is necessarily the best. They become more relevant later to the young person, when they get a bit nearer to leaving school and considering whether they are going on to further or higher education, or some training in employment. Of course, that is not going to happen before the age of 17 next year, and before the age of 18 a couple of years after that. Schools really struggle to find enough places for 14 year-olds. Many employers do not see it as terribly useful to have 14 year-olds knocking around their place of work.
I, too, received a briefing from the Federation of Small Businesses. I do not think any of us would disagree with the list of knowledge sets and skills that the federation wants young people to have before they leave school. However, having had a number of teenagers doing work experience with me for a couple of weeks, I do not think that young people really get those skills. I did my best to give them the best experience that I could, but they were certainly not training to become Peers of the realm—unless they would be prepared to stand for election.
Lord Hill of Oareford
My Lords, we have had a fairly brief discussion. It is a shame that there are not more of us here because the order gives rise to important issues. I agree with both the noble Baroness, Lady Hughes of Stretford, and with my noble friend about the importance of good work experience and work-related learning. The noble Baroness, Lady Hughes, rightly made the point that employers often say to us that employability skills such as teamworking, turning up on time and being able to take instruction from managers, are extremely important, and that not enough of our young people are equipped with them when they leave school.
I very much agree with her that it is important that we do what we can to help young people learn those skills. As my noble friend Lady Walmsley said, there are a number of ways of doing that. I agree with her about what young people can learn in PHSE about working together, and what they can learn in maths and English about being numerate and being able to write clearly—and about the importance of speaking clearly, which is also something that needs to be taught. There are a number of ways of taking that forward.
I take the point of my noble friend Lady Walmsley about studio schools being small. However, the previous Government were right to try the experiment. In May 2010 there were two, and now I have nearly 30 going. This is a start, but, and I think this is the point that the noble Baroness, Lady Hughes, was making, they show the enthusiasm of employers to be involved if we can find ways of harnessing that. I hope that the studio schools will demonstrate that they are scalable. There is a variety of ways of showing how it is possible to get decent work experience—in this case, paid work experience—at 16 so that those young people can see the benefits of it. I am excited, particularly about the way that the young people themselves, their parents and the employers are enthusiastic about the opportunities that it provides.
My noble friend is also right about the significance, I believe and hope, of our funding reforms post-16, having a simple, single funding rate per learner, to use the jargon, rather than per qualification, which will, particularly for those taking vocational qualifications, be funded at a higher rate overall than previously, giving a lump sum to schools and colleges to work out how they want to spend it, particularly for those having decent qualifications and thus space for more work expense. In particular, I believe that those who are less academically able will emerge from that system as it starts to work through.
I hope that we can learn from the pilots to which I referred, which will look at new ways of rolling out work experience, and share that across the system. The noble Baroness, Lady Hughes, asked me whether, when we get the lessons from those pilots, we will share them. Yes, absolutely. I hope that they will give us some practical case studies with things that work. We are trying five different ways across the country in 25 FE colleges, and our goal will be to share those widely.
The noble Baroness asked me whether Ofsted will report. There is no specific mention of work-related learning in the new Ofsted framework coming in this September, but inspectors are guided to investigate the extent to which pupils gain a well formed understanding of the options and challenges facing them as they move through the school and on to the next stage of education and training. Inspectors will take into account the destination of pupils when they leave school and increasingly, as we publish more information on destination measures, that will help schools, parents and others to see more clearly how well those schools are doing on a range of measures, including things like work experience and work-related learning, because those will contribute to the progression that those children make. Ofsted is also able to undertake survey inspections to investigate particular aspects of provision in greater detail, and this is the kind of area where it may well choose to carry out such a survey.
On the noble Baroness’s question about why we are abolishing the duty, if we argue that work experience and work-related activity are important, which I do, she knows that we contend that not everything that is important needs to be in the national curriculum. The more that we are able to take things out of the national curriculum, which I am keen to do, the less strong the argument that taking out a specific thing by exemption will highlight that we do not attribute importance to it. Taking some of these issues out and giving schools more space to make those decisions is the answer to her question.
My noble friend Lady Walmsley’s core point, with which I obviously agree, was about timing. It is sensible to do this later, when the children are older and the connection between the two is more immediate. That is one consequence of raising the participation age. When everyone left school at 16 and went to work, having work experience closer to that age was more sensible. However, experience also suggests that, notwithstanding the enthusiasm of employers for participating, having young people in the workplace is clearly proving a problem. As my noble friend said, schools struggle but employers are also struggling with it. That is partly why there has been a growing emphasis on work-related learning, rather than work experience. Schools were finding it hard to find employers who would participate. It is our belief that that will prove more straightforward with older children and young people.
The noble Baroness, Lady Hughes of Stretford, referred to the consultation response, which was clearly as she said it was. However, at bottom and for the reasons that I have set out, the Government’s view—accepting the arguments put forward by Professor Wolf—was that moving work experience to a later stage recognised the difficulty that schools and employers have had. I am grateful that the noble Baroness recognised that the blanket duty has, perhaps, served its time. The Government’s view was that the simple and sensible thing to do was to remove it and shift the focus to later; to make sure that there is good-quality work experience in a number of ways; and to reform the funding for it, which will be the main driver of change post-16. For all those reasons, the Government have brought forward the order and I commend it to the Committee.
House of Lords
Gaza
(12 years, 4 months ago)
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Baroness Tonge
To ask Her Majesty’s Government what assessment they have made of the recent report by Medical Aid for Palestinians and Save the Children on the health of children and pregnant women in Gaza.
Baroness Northover
My Lords, the UK is very concerned about the health of the people in Gaza, as highlighted by this report, and we are already acting on the issues raised. We provide multiyear funding for food security and service delivery. We also work with partners to promote humanitarian access and the entry of medical supplies and materials for infrastructure rehabilitation.
Baroness Tonge
My Lords, I thank the noble Baroness for that Answer. Despite the claim by the Foreign Secretary in this year’s Foreign Office report that human rights lie at the heart of our foreign policy and DfID’s annual report trumpeting value for money in delivering overseas aid, humanitarian assistance in Gaza has not worked. This report tells us that since the deliberate destruction of the sewage plant in Gaza during Operation Cast Lead five years ago—
Baroness Tonge
My Lords, this is important and I beg noble Lords to listen. The children of Gaza are denied their human rights. They have become malnourished and anaemic; they suffer from chronic diarrhoea; they are stunted in growth and psychologically disturbed; and they are being poisoned by 10 times the safe level of chlorides and nitrates in their drinking water. Three children have already drowned in sewage.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the noble Baroness has been in this House long enough to know that she is now abusing Question Time. I know that she feels strongly about this matter but she must ask a short question.
Baroness Tonge
I am glad to ask a short question. Can the Minister tell this House when the Government will demand that Israel pays for the damage it has done to the infrastructure of Gaza and allow materials through the crossings? In the light of these conditions and the continuing expansion of the settlements in the West Bank, will we be supporting the upgrade of the EU-Israel Association Agreement in Brussels tomorrow?
Baroness Northover
My Lords, the UK is very concerned about the state of the sewage system in Gaza. Indeed, 90% of the drinking water is undrinkable. This is clearly unacceptable and we call on Israel to allow the entry of essential items to permit the rehabilitation of the water network. On the noble Baroness’s last point about the meeting tomorrow, this is of the EU-Israel Association Council. It will discuss various matters in line with the existing EU-Israel action plan. It will not upgrade EU-Israel relations. The EU is very clear that no progress can be made on upgrading the wider EU-Israel relationship until there is substantial progress towards a two-state solution.
Baroness Ramsay of Cartvale
My Lords, is the Minister aware that the World Health Organisation has blamed, in no uncertain terms, the problems of the import of medical supplies into Gaza on the lack of communication between the Palestinian Authority and Hamas? Can the noble Baroness assure the House that Her Majesty’s Government are doing everything they can to persuade the Palestinian Authority to improve its relations with Hamas, at least in relation to the import of medical supplies into Gaza?
Baroness Northover
We call on all parties to improve their co-ordination. Israel, too, needs to provide uninterrupted access for medical supplies, personnel and patients in and out of Gaza.
Lord Hylton
My Lords, the noble Baroness has virtually agreed that we are facing a public health disaster. Can she say how soon that will happen if things just drift on as they are at present? When will UNRWA be able to build the schools and houses for which it has both plans and funds?
Baroness Northover
At the current rate of depletion, the Gaza aquifer will become unusable by 2016 and the damage will be irreversible by 2020. We are urging Israel to allow supplies to come in through the crossings so that the damage that has been done can be rectified.
The Lord Bishop of Exeter
My Lords, five years on from the start of this blockade the indiscriminate attacks from Gaza on civilian populations in Israel shows no sign of abating. While these attacks should be condemned as abhorrent, does the noble Baroness agree that the continued attacks show that the restrictions have not served their avowed objective of weakening Hamas and other extremist groups in Gaza? Is there not a danger that the endemic poverty in Gaza, in itself so concerning and so painfully documented in this report from Save the Children, now also risks fuelling the conflict further by exacerbating the very conditions which provide a fertile recruiting ground for extremist organisations?
Baroness Northover
The right reverend Prelate makes a very cogent case. We condemn violence on both sides, but improving the economy in Gaza is essential, not only for the people of Gaza but also in Israel’s security interests. At the moment, the blockade of Gaza and insufficient access through the crossings has meant that use of the tunnels has magnified considerably, which assists Hamas and certainly does not assist Israel’s long-term interests.
Baroness Deech
Is the Minister aware that thousands of Palestinians are treated in Israeli hospitals and that Palestinian trainee doctors receive training there as well? The situation across the Middle East for women and children is dire—for instance, in Syria, where thousands of children have been killed. Could it be that non-governmental organisations go in to make a report only where they are allowed and that we therefore take our eye off much worse situations?
Baroness Northover
The noble Baroness might like to bear in mind that the OPT, the Occupied Territories, are the poorest part of the Middle East and North Africa, with the exceptions of Sudan and Yemen. It is against that background that we urge that everything possible is done to allow the economy of the West Bank and Gaza to grow. The WHO estimates that travel is denied to 10% to 25% of medical professionals and students who apply for Israeli-issued permits to leave the West Bank and Gaza to attend medical training. That does not help things either.
Baroness Kinnock of Holyhead
My Lords, is the Minister aware that no fewer than 16 internationally led projects designed to address Gaza’s desperate needs as regards water and sanitation have not yet been implemented since the easing of the blockade in 2010? In fact, only one fifth of the materials have been allowed through because of the blockade, with the rest left sitting in storage in Israel. What, specifically, is the UK doing to ensure that these 16 urgent projects are being implemented and to insist to the Israeli authorities that there is a timetable for completion?
Baroness Northover
What is vital here is that Israel recognises its long-term security interests. We understand its concerns about security, but these specific projects to help rebuild the economy in both the West Bank and Gaza are essential for the prosperity of those areas and the future security of Israel.
Aviation: Policy
(12 years, 4 months ago)
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Lord Spicer
To ask Her Majesty’s Government when they will publish their aviation policy.
Earl Attlee
My Lords, the Department for Transport published on 12 July a draft aviation policy framework setting out the importance of aviation to the UK economy and the Government’s proposals on how aviation can grow and deliver for the economy while meeting its noise, climate change and habitat obligations. The Government aim to adopt the final aviation policy framework next spring. Separately, a call for evidence on maintaining the UK’s international aviation connectivity will be published later this year.
Lord Spicer
Does my noble friend agree that aviation in general and Heathrow in particular are vital to the nation’s economic prosperity and growth, and that this is particularly apparent in the week in which we begin to host the Olympic Games? If he does, and if the Government do, why the delay in the consultation process about airports?
Earl Attlee
My Lords, I agree that aviation is vital to the economy of the United Kingdom. My noble friend asked me about the delay. It is important that we get this policy right and that it can be sustained even with a change in government.
Lord Clinton-Davis
Aviation companies and trade unions argue that the aviation policy devised by the Government is based on indecision not decision. Would it not be hugely advantageous for the UK if we had a third runway at Heathrow, embarked on large-scale road traffic amelioration there and, at the same time, sought to develop a south-eastern airport? Would that not be an advantage?
Earl Attlee
My Lords, the noble Lord suggests that there would be an advantage in having a third runway. Of course there would be an advantage in having a third runway, which is why the previous Government supported one. However, we also need to bear in mind the interests of the more than 200,000 people who live in west London underneath the flight path.
Lord Trefgarne
My Lords, can the Minister confirm that business aviation and general aviation will continue to play an important part in the Government’s aeronautical thinking?
Earl Attlee
My noble friend makes an important point. At a meeting with my noble friend Lord Rotherwick, I agreed to take forward to my right honourable friend Theresa Villiers the importance of maintaining general aviation airfields.
Lord Soley
I can tell the Minister, as someone who lived under the flight path in west London for something like 30 years and represented the area, that in fact opinion there is much more evenly divided than he says. Why? Because Heathrow provides enormous levels of employment; some 170,000 jobs depend on it remaining a premier hub airport. For the sake of the economy and of jobs, will the Government finally make their mind up?
Earl Attlee
My Lords, the noble Lord is quite right about the number of jobs involved at Heathrow Airport. It is, of course, a major consideration that in moving one’s hub airport somewhere else you would have to move 176,000 employees—over time, I agree.
Lord Wigley
My Lords, will the Minister confirm that a central part of aviation policy is the question of pilot safety? Will he recall the representations made to him by my noble friend Lady Mar about the quality of air in cockpits? Will he confirm that since he refused to accept those arguments fairly recently, his department has received representations on behalf of pilots who are extremely concerned about this matter?
Earl Attlee
My Lords, I can confirm that I have received numerous e-mails on this particular subject, and I will be very surprised indeed if the noble Countess does not pursue the matter vigorously on Report. I am looking forward to the debate.
Lord Davies of Oldham
My Lords, is not the Government’s policy since coming to office one just of dither and delay? They have taken one decision—to abandon the third runway proposal at Heathrow—but have taken no other constructive position at all. Is it not about time that the Government stopped looking for the long grass, or the long Recess, in which to run for cover on this issue, and for the Minister to say that by next spring—three years after this Government came to power—they might have some proposals to put before the nation? It is quite scandalous.
Earl Attlee
My Lords, it is not quite right to say that we have done nothing about Heathrow. First, we introduced the operational freedoms that will make it easier for Heathrow to recover from any disruption during the day without having any more unscheduled night flights. In addition, we have just announced the western rail access to Heathrow, so the argument that we have done nothing is not a good one.
Lord Bradshaw
My Lords, will the noble Earl tell his right honourable friend that there are a lot of capacity issues to discuss? There is a lot of capacity at Stansted, Birmingham, Gatwick, Manchester and Luton that is underused. Will she also make sure that, as well as taking the environment and regional growth outside London into account, what the passenger wants is also taken fully into account?
Earl Attlee
My Lords, I am very grateful to my noble friend for putting the other side of the argument to the House. My right honourable friend the Secretary of State is well seized of these points.
Lord Brooke of Alverthorpe
My Lords, the Government have delayed this review and the Minister says that that is to “get it right”. Would he be kind enough to tell the House just what they are doing to get it right?
Earl Attlee
My Lords, we have published our aviation policy framework for consultation and we will release the call for evidence later this year.
Baroness McIntosh of Hudnall
My Lords, since the noble Lord, Lord Bradshaw, has raised the issue of spare capacity at airports outside Heathrow, would the Minister not agree that Stansted, for example, has had its capacity increased very considerably and that that capacity has not been taken up? Would he not further agree, therefore, that the airlines are very unlikely to have any particular wish to make Stansted a seriously larger airport than it is now?
Earl Attlee
The noble Baroness makes an interesting point, but I think what concerns people such as the noble Lord, Lord Soley, is having one very effective hub airport with connectivity right around the world. We issued our call for evidence on hub connectivity because it is such an important issue.
David Livingstone Bicentenary
(12 years, 4 months ago)
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Lord McConnell of Glenscorrodale
To ask Her Majesty’s Government what plans they have to celebrate in 2013 the bicentenary of the birth of David Livingstone.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, Scotland Office Ministers and officials have met representatives of the Scotland Malawi Partnership to discuss the best way for the United Kingdom Government to mark this bicentenary. The Scotland Office will host a commemorative event at Dover House. The department’s officials are working with other interested parties, including the Scotland Malawi Partnership and colleagues in Whitehall, to ensure that this anniversary is celebrated across the United Kingdom.
Lord McConnell of Glenscorrodale
I thank the Minister for his Answer. On my first ever visit to Malawi I was reminded by the Malawians that Dr Livingstone did not discover Malawi, the Malawians discovered him. They still to this day celebrate his role in the abolition of the slave trade in east Africa. I am aware of the plans for celebrations in Scotland next year, but given that Dr Livingstone was buried at Westminster Abbey and his coffin was covered with a wreath provided by Queen Victoria, I believe that this should be a UK-wide celebration. I would ask the Government to think again about this being simply a Scottish celebration and to ensure that it is celebrated here in London as well.
Lord Wallace of Tankerness
My Lords, I sought in my original Answer to indicate that the Scotland Office has already taken one particular initiative. Scotland Office officials and Ministers, including my right honourable friend the Parliamentary Under-Secretary of State, have been in contact with the Department for International Development. We are also engaged with other Whitehall departments, very much taking on board the point that the noble Lord made. He mentioned his visit to Malawi. It may well be appropriate to place on the record that the Scotland Malawi Partnership is very much the product of a concordat between the Government of Malawi and the Scottish Government of whom he was the First Minister. It is a reflection of his personal commitment to Malawi.
Lord Steel of Aikwood
Will my noble and learned friend consider whether Her Majesty’s Government, or indeed the Scottish Government, might make some contribution to the refurbishment of David Livingstone’s house in Zanzibar? I am in touch with friends in the devolved Government in Zanzibar and I am sure that a small contribution might enable them to provide some matching funds. At the moment the house is full of rather wilted press cuttings. Given the importance of that island in the slave trade which David Livingstone helped to abolish, it would be good if something could be done now.
Lord Wallace of Tankerness
My Lords, I understand that the house to which my noble friend refers was where David Livingstone stayed in Tanzania, in Zanzibar, prior to the start of his final expedition in 1866. There are no current plans for the United Kingdom Government to provide a contribution for the renovation of the building but I am aware of my noble friend’s interests in this matter and I will certainly ensure that his comments are drawn to the attention of the relevant department.
Lord Morgan
My Lords, we are prone to celebrate the more exploitative and squalid aspects of empire in the history of this country and many of its practitioners are celebrated in key points of our squares and roads in the centre of London. David Livingstone surely embodies the humanitarian and idealist strain that we ought to honour, so could we perhaps have a statue of him as well?
Lord Wallace of Tankerness
My Lords, I am not sure about a statue, but the noble Lord makes an important point. It is perhaps worthy of note that in post-colonial times, place names such as Blantyre in Malawi and Livingstone in Zambia have remained while other pre-independence names have been changed. That is a reflection of the esteem in which David Livingstone is held. Some of the themes that he focused on in his life—themes such as faith, education, medicine, the abolition of the slave trade and standing up for those who are exploited—are ones that we would do well to ponder. Maybe the best memorial that we can give him on the bicentenary of his birth is to take seriously the kind of issues that he took seriously in his lifetime.
Lord Flight
My Lords, I am proud of this country’s history, warts and all. However, does the Minister agree that Dr Livingstone is a great model for the sort of person that this country needs today—a hero who is also a righteous person? That is why celebrating his birth is so important.
Lord Wallace of Tankerness
My Lords, I am glad that there seems to be such consensus across the Chamber on this. I reiterate the point that there are many positive aspects to the life, career and work of David Livingstone. I think that his bicentenary will give us all an opportunity across the United Kingdom—and, indeed, in Africa too—to reflect on these issues and to take from them what is really good, and to build on them.
Lord Cormack
My Lords, as it is important that our young people should be aware of the achievements of this very great man, should we not ask Mr Wiggins to cycle round the United Kingdom next year proclaiming David Livingstone’s virtues? Does this not give us an opportunity to congratulate Mr Wiggins on his recent triumph?
Lord Wallace of Tankerness
My Lords, I congratulate my noble friend on his ingenuity in mentioning Mr Wiggins. He said it, but I am sure that I speak for the whole House in extending our warmest congratulations on an astounding sporting achievement.
Lord Wallace of Tankerness
Whether in his preparation to retain the Tour de France championship he has time to cycle round the whole of the United Kingdom, I do not know, but certainly the point about young people is well made. Those who are planning and involved in the work to commemorate this bicentenary will reflect on the importance to young people.
Lord Mawhinney
My Lords, getting back to the original Question, I am sure that my noble and learned friend has summed up the mood of the House in saying that there is widespread support for Dr Livingstone. I am also clear that the Scottish Government will do something about the bicentenary. However, as I leave here today, I will be equally clear that the British Government have no plans to do anything about it. If the Minister does not want me to leave with that understanding, will he explain why?
Lord Wallace of Tankerness
My Lords, I have already explained that the Scotland Office plans a commemorative event to be held here, in the Scotland Office. I have also indicated that my right honourable friend the Parliamentary Under-Secretary of State has already met representatives of the Scotland Malawi Partnership. We will also be working out how the United Kingdom Government might best be involved in these celebrations, not only with the partnership but also, as I indicated in my answer to the noble Lord, Lord McConnell of Glenscorrodale, by involving our officials and Ministers in the Foreign and Commonwealth Office and the Department for International Development. We certainly take this intervention seriously, and we will be looking at ways in which we can, as a United Kingdom Government, make an appropriate contribution.
Lord Hunt of Kings Heath
My Lords, I wonder if the noble and learned Lord could confirm whether the Scotland Office is part of the UK Government?
Lord Wallace of Tankerness
My Lords, for those who had not got the point, I am more than happy to confirm it. Indeed, the commemoration in the Scotland Office will be one by the United Kingdom Government.
Lord West of Spithead
My Lords, the Minister will be aware that a lot of Livingstone’s travels were on Lake Malawi, on the waterways of Malawi. Perhaps the British Government could support the training school for fishermen on Lake Malawi, where many die every year at the moment. That would be a good way of recognising him.
Lord Wallace of Tankerness
My Lords, I welcome that positive suggestion and will make sure that it is passed on.
Housing: Leaseholder Deposit Protection
Baroness Gardner of Parkes
To ask Her Majesty’s Government whether they will introduce a transparent scheme, similar to the Deposit Protection Scheme for tenants, to protect monies paid by leaseholders and held by managing agents.
Baroness Gardner of Parkes
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I state that my interest is on the register.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, the law already provides protection for service charges. They are deemed to be held in trust. The law also provides leaseholders with a number of rights to aid transparency over service charges. These include rights to be consulted, to ask for a summary of service charges, and to see supporting documentation. The Government therefore have no plans for additional regulation of leasehold service charges.
Baroness Gardner of Parkes
My Lords, is the Minister aware of the case reported last month of the managing agent who pleaded guilty to stealing £122,000 from leaseholder funds? Does she not think that the nearly 3 million leaseholders are entitled to the protection called for by the voluntary accreditation bodies, Leasehold Knowledge Partnership and the Association of Residential Managing Agents, and supported by the British Property Federation? Can she tell me what parliamentary procedures would be required to introduce regulation?
Baroness Hanham
My Lords, I thank my noble friend for drawing to my attention the article about the offence to which she referred. As it is a matter of court action, I do not think there is anything I can say. The article is not sufficiently detailed to know exactly where the money came from so I do not think I can comment any further on that.
My noble friend will know that if you are going to undertake legislation then before doing so, you must undertake consultation, draw up plans and take the process through, not only the regulators but also the leaseholders and those who are carrying out the voluntary regulation at the moment. You must then find legislative time to deal with it. We do not believe that it is necessary at this stage to undertake any of that.
Baroness Maddock
My Lords, my noble friend will remember the Commonhold and Leasehold Reform Act 2002. We spent many hours on it. My noble friend will also know that Section 156 of the Act, which would have protected leaseholders from losing their funds, has not yet been brought in. Can my noble friend tell me what the Government’s plans are regarding this part of that important Act?
Baroness Hanham
My Lords, the Government have no plans to implement these provisions at present, but we are keeping a watching brief on the concerns of people within the leasehold reform area. A technical guide was published last year by the Institute of Chartered Accountants in England and Wales on accounting and reporting on residential service charges. We would encourage its adoption across the sector.
Lord McKenzie of Luton
My Lords, I draw attention to my interest in the register. The noble Baroness, Lady Gardner of Parkes, has rightly raised the issue of regulating managing agents from the perspective of leaseholders. However, with the private rented sector now at 3.6 million households, and with nearly one-third of all private rented sector households being families with children, is now not the time for effective and comprehensive regulation of the whole sector?
Baroness Hanham
My Lords, as the noble Lord will know, there are two parts to this. This Question is not about the private rented sector. It is about leaseholders. We have no policies at present to bring the private rented sector under the law.
Baroness Scotland of Asthal
My Lords, why have the Government chosen not to make plans to implement legislation that was passed in 2002?
Baroness Hanham
The noble and learned Baroness will be aware that this was not our legislation: it was the legislation of the previous Government and it was the previous Government's responsibility to implement it.
Baroness Oppenheim-Barnes
Is my noble friend aware that, very often, sinking funds that go missing amount to millions of pounds affecting only about 100 leaseholders? It is not acceptable for this to be allowed to continue under the Act.
Baroness Hanham
My Lords, there are voluntary regulators and voluntary regulations and organisations that are keeping an eye on this. I am sure my noble friend will agree that it is not always for the law or for Parliament to dictate or regulate and that an industry can be self regulating. That is the situation at present.
Lord Hughes of Woodside
Will the Minister please explain, because it was not clear to me from her Answer, what she actually said? If a clause is in statute, is it not obligatory for a Government to take action on it and not say that they are thinking about it?
Baroness Hanham
As I said before, this was not this Government's legislation. We helped with it and we went through it. In fact, I have been reminded that one of my amendments was agreed by this House in 2001, which is unusual. If the previous Government had wished to implement the Act and those clauses, they could have done so. We have not chosen or do not think that it is appropriate to do so.
Lord Lloyd of Berwick
An important new principle has just been announced. There are many reasons for not bringing things into force, which Parliament has passed, but surely one is not that the other side passed the legislation. Parliament passed the legislation and the Minister is saying that she does not like it.
Baroness Hanham
My Lords, I am saying that this was not this Government’s legislation. The noble and learned Lord is wise enough to know that after a change of Government the new Government will not necessarily take up all the issues or points that have been raised in what has been passed by Parliament.
HSBC: Lord Green of Hurstpierpoint
(12 years, 4 months ago)
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Baroness Royall of Blaisdon
To ask Her Majesty’s Government what assessment they have made of the impact of the allegations about HSBC made by the Permanent Subcommittee on Investigations of the United States Senate Committee on Homeland Security and Governmental Affairs on the ability of Lord Green of Hurstpierpoint to fulfil his ministerial duties.
Baroness Royall of Blaisdon
My Lords, I beg leave to ask a Question of which I have given private notice.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, Her Majesty’s Government have every confidence in my noble friend Lord Green ability to fulfil his ministerial duties. His experience, expertise and enthusiasm provide great benefit to the UK’s international profile and to the support that UK Trade and Investment provides to British businesses.
Baroness Royall of Blaisdon
My Lords, I am grateful to the Leader of the House for that Answer. However, as the noble Lord will be aware, questions have been asked about the present ministerial role of the noble Lord, Lord Green, following the US Senate committee’s findings.
Paragraph 1.2 of the Ministerial Code, which sets out the responsibility of Ministers to Parliament, says that:
“Ministers should be as open as possible with Parliament and the public, refusing to provide information only when disclosure would not be in the public interest”.
Given that obligation, will the Leader of the House ask the noble Lord, Lord Green of Hurstpierpoint, to come to your Lordships’ House to place on record what he knew and when about the matters investigated by the US Senate committee, including what steps he took to deal with them? Would such a move not give the noble Lord, Lord Green, the opportunity to dispel once and for all the questions being asked about his present ministerial role?
Lord Strathclyde
My Lords, I congratulate the Leader of the Opposition. I know that she has been trying to find a PNQ to put to the House and she has managed to do so. I am very glad to be able to respond on behalf of Her Majesty’s Government.
There is no urgency in this matter. The investigation started more than two years ago. The report in question was published two weeks ago. There was no evidence of personal wrongdoing of my noble friend; indeed, there was no personal criticism whatever of my noble friend. The investigation is ongoing. As for ministerial accountability, my noble friend Lord Green is accountable to this House—to Parliament—for the work he does as a Minister. However, many Ministers have had previous careers. No Minister needs to be accountable to Parliament for their previous career, only for what they are doing as a Minister.
Lord Butler of Brockwell
My Lords, I declare an interest as a non-executive director of HSBC during the time when the noble Lord, Lord Green, was chief executive officer and chairman. Is the Leader aware that when I was advising the Prime Minister on calls for ministerial resignations, I drew a distinction—which I think is widely accepted—between accountability and responsibility? While it may be the case that the chairman and chief executive officer of a major international company is accountable for everything that happens in that company, there is no possible way in which they can be responsible for everything that happens in a worldwide group of the size of HSBC.
Lord Strathclyde
My Lords, with all his experience and knowledge—not just as head of the Civil Service and Cabinet Secretary but having had a more commercial career since he left—the noble Lord, Lord Butler of Brockwell, has brought a lot of wisdom and good sense to this debate, on which we should all reflect.
Lord Kinnock
My Lords, since the Leader of the House has told us that the work of the noble Lord, Lord Green, is of benefit to the United Kingdom’s profile—the words he just used—does he think that the accountability of an individual in a very senior position in government or business ceases when that individual changes post? Does he not think that it would benefit the UK’s profile to ensure that a Minister rigorously adheres to the wording of the Ministerial Code, as just spelt out by my noble friend? Further, does he not think that the ethics of business require that a Minister who has the opportunity and the right to come to this House to explain themselves should do so?
Lord Strathclyde
My Lords, I do not disagree at all with what the noble Lord says about the ethics of the industry in which my noble friend was involved. In fact, only last week, this House set up a special Joint Select Committee to look at ethics and many other practices in the banking industry. Surely that is the point. If a Select Committee of this House or another place wishes to ask my noble friend questions, it should do so. My purpose is to reflect on my noble friend’s role in government and to answer on behalf of Her Majesty’s Government.
Lord Cormack
My Lords, does my noble friend agree that anyone who knows the noble Lord, Lord Green, could not doubt his total integrity for a moment?
Lord Strathclyde
My Lords, I agree with that but I wholly accept that questions need to be asked—and are habitually asked—of a Minister to make sure that he is accountable to Parliament. As I said in my reply to the noble Lord, Lord Kinnock, if a committee of Parliament wishes to put questions to my noble friend, it is entirely free to do so.
Lord Grocott
My Lords, perhaps I can remind the Leader of the House of a report with which he will be, no doubt, almost word perfect: the report of the Leader’s Group on Working Practices, which made a number of recommendations. Of course, the group was established by the Leader for the Leader. Recommendation 3 of that report—which, I remind him again, was published more than a year ago in April last year—said:
“We … recommend that there should be a monthly question time dedicated to questions on House of Lords matters addressed to the Leader of the House”.
Perhaps I may helpfully suggest that both today’s Question and indeed the very important one raised last week by my noble friend Lord Barnett could be handled were the Leader to accept that simple, unanimous recommendation by a committee that was set up at his instigation. I urge him to act on that recommendation as soon as possible.
Lord Strathclyde
My Lords, from memory, I do not think that there has been a single Question put to me in my capacity as Leader of the House in the past 12 months. That rather leads me to believe that there is no great demand for a monthly Question Time session for the Leader. There are perfectly good methods for asking me questions and noble Lords should use them if they wish to.
Lord Hughes of Woodside
My Lords, from a rather different view, perhaps, I query what was said by the noble Lord, Lord Butler. Surely accountability and responsibility cannot simply be divided one from the other—it is not as sharp as that. Accountability and responsibility go hand in hand and no one should doubt it.
Lord Strathclyde
My Lords, my noble friend Lord Cormack said that no one should challenge the integrity of my noble friend Lord Green, and I agree with him. But if it comes to a choice between the noble Lord’s view of what is responsibility and accountability and that of the noble Lord, Lord Butler of Brockwell, I will go with the noble Lord, Lord Butler of Brockwell.
Baroness McIntosh of Hudnall
My Lords, I personally—along with most of the House, I feel—am in no position and would not wish to challenge the integrity of the noble Lord, Lord Green. However, does the Leader of the House agree that perhaps there would be less question about his conduct over the issue of HSBC were the House to see him more often answering questions that relate to his ministerial responsibilities? It may have something to do with his relative unfamiliarity to Members of the House that they are perhaps more sceptical than they should be.
Lord Strathclyde
My Lords, as a Minister for trade, my noble friend of course spends a great deal of time overseas. Since he was appointed, he has travelled to 42 countries and visited 73 cities. In his role as Minister of State for Trade and Investment, he has answered a total of 72 Parliamentary Questions, including two Oral Questions out of three that he could have answered. The response to the point raised by the noble Baroness is that if more Questions on trade and investment were put down, I am sure that my noble friend would be very happy to come and answer them.
Baroness Royall of Blaisdon
My Lords, I thank the noble Lord for his answers, but perhaps I may say that I found his initial response to my Question slightly patronising, albeit not in terms of the substance. I table PNQs when I believe that there is a matter of accountability which is of interest to this Parliament as a whole—we are the only House of Parliament sitting at the moment—and when I believe that it is of importance to this nation. I do not do so for personal gratification.
Lord Strathclyde
My Lords, if the noble Baroness felt that I was in any way seeking to patronise her, I apologise fully.
London Local Authorities and Transport for London (No. 2) Bill
The Chairman of Committees
That the Commons message of 12 July be now considered; and that the promoters of the London Local Authorities and Transport for London (No. 2) Bill [HL], which was originally introduced in this House in Session 2007-08 on 22 January 2008, should have leave to proceed with the Bill in the current Session according to the provisions of Private Business Standing Order 150B (Revival of bills).
City of London (Various Powers) Bill [HL]
The Chairman of Committees (Lord Sewel)
My Lords, six amendments have been proposed by the promoters. They are minor drafting amendments and they have been made available in the Printed Paper Office in the usual way for parliamentary Bills. It might help if I point out to your Lordships that all six amendments leave out the word “item”, replacing it with the words “article or thing”. I leave it to the erudition of noble Lords to work out the difference.
Designation of Features (Appeals) (England) Regulations 2012
Lord De Mauley
That the draft regulations and orders laid before the House on 21 May and 11 June be approved.
Relevant documents: 3rd Report from the Joint Committee on Statutory Instruments, 4th Report from the Secondary Legislation Scrutiny Committee, considered in Grand Committee on 17 July.
Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012
(12 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
That the draft orders laid before the House on 7, 10 and 14 May be approved.
Relevant documents: 2nd and 3rd Reports from the Joint Committee on Statutory Instruments, 2nd, 3rd and 4th Reports from the Secondary Legislation Scrutiny Committee, considered in Grand Committee on 18 July.
National Minimum Wage (Amendment) Regulations 2012
Lord De Mauley
That the draft regulations and order laid before the House on 14, 19 and 25 June be approved.
Relevant documents: 4th and 5th Reports from the Joint Committee on Statutory Instruments, considered in Grand Committee on 18 July.
Smoke-free Private Vehicles Bill [HL]
Justice and Security Bill [HL]
(12 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Hodgson of Astley Abbotts
My Lords, Amendment 69, which is also in the name of the noble Lord, Lord Dubs, is one of a group of three, and our names are also attached to Amendment 69ZB. I will pass the baton to him—appropriately in this Olympic week—for the second amendment in a minute.
The group of amendments is concerned with Clause 10, the general provision about Section 6 proceedings, and subsection (2), which is about rules of court relating to Section 6 proceedings. Paragraph (b) says:
“enabling or requiring the proceedings to be determined without a hearing”.
My amendment seeks to leave out those words.
When my noble and learned friend winds up this debate, he may say that this is just a case of avoiding expense where no hearing is needed. If so, I understand the purpose, but I do not entirely support it or agree with it. Carried to an extreme, this would deprive the special advocate and/or the claimant of any opportunity to engage to any extent in this part of the procedure. We are talking here about closed material proceedings—secret hearings—about which there may be public concern.
I hope that my noble and learned friend will be able to explain why the interests of transparency and open justice do not command the idea that some hearing, however formal, formulaic or brief, would be appropriate. In particular, I hope that he will explain why the word “require” should appear here; I understand why “enable” should be included, but requiring proceedings to be determined without a hearing seems a step too far. I beg to move.
Lord Dubs
My Lords, I shall speak to Amendment 69ZB, but before that I comment that in previous Committee sittings on the Bill, the Government have had hundreds of thousands of pounds-worth of free legal advice—some of it contradictory, but advice has been there. They are not going to get any from me because, like the noble Lord, Lord Hodgson, I am not a lawyer, so I tread tentatively along this path.
Amendment 69ZB is somewhat more complicated than the amendment by the noble Lord, Lord Hodgson, to which my name is also attached. I understand that it is a well preserved tradition that in common law there are rules against the admission of hearsay evidence, inexpert opinion evidence and other unreliable forms of. However, I also understand that in recent years there has been a move away from those rules, because it is now easier for evidence to be challenged and the trial judge can, with the benefit of that challenge, assess how much weight to give to the evidence.
The difficulty is that, in a CMP regime, the judge cannot assess the reliability of unchallenged evidence; he is disabled from doing that. The public and the excluded party need to be reassured that the state will be permitted only to allow private evidence to deprive the citizen of a verdict if that evidence is deemed reliable by objective standards. That is my first point.
Secondly, there is a duty of frankness on the Secretary of State. The provisions in proposed new subsections (6)(b) and (f) do no more than ensure that an excluded citizen will get the same protection as is usually afforded to an absent party in the High Court—one might refer to ex parte proceedings, and so on. It would be unreasonable for the Secretary of State not to make such full and frank disclosure to the court when he is obtaining the huge advantage of a CMP.
The material must be relevant to the following matters: any issue in the case; the question of whether any evidence is admissible; and, in the case of hearsay statement, whether it was obtained by torture and whether it was accurately recorded. Next, there is the reliability of the evidence: whether the source was subjected to threats or bribes to induce him or her to give information. Then, as regards witnesses, there is the existence of lines of inquiry or names of witnesses. Given the disadvantage faced by the special advocate in challenging the state’s case, the state should give any special advocate the leads it has. That echoes the traditional common-law rule—I think it is known as the old Peruvian Guano case—which obliges the party to disclose lines of inquiry in any civil litigation. Finally, there is any evidence relevant to whether the CMP is necessary at all. The need for that disclosure is self-explanatory.
Proposed new subsection (6)(b) prohibits the Secretary of State from redacting parts of documents disclosed to the special advocate. After all, special advocates are already security cleared. There can be no justification based on security risk or privacy to suppress parts of otherwise relevant documents from those within the security ring or circle. If part of the document is relevant, the entire document should surely be seen so that everything can be read in its context. Quotations out of context may not be meaningful.
Then there is the question of banning evidence obtained by torture or cruelty. Evidence should not be admitted unless the court is convinced that it was not procured by torture or other cruel treatment. There is a danger that statements from persons in detention abroad may have been obtained in this way. Given that there is already a ban laid down by the Supreme Court on using statements obtained by torture, and that only the Government would have access to information about how statements were obtained, surely it is only fair that the burden of proof should rest upon the Government to show how such statements were obtained when they seek to use them in evidence. The excluded party would have no ability to make such inquiries.
Lord Thomas of Gresford
My Lords, I shall speak to Amendment 69ZC in my name and those of my noble friend Lord Marks of Henley-on-Thames and the noble Lord, Lord Pannick. This Bill says nothing about the trial judge’s approach to the material that has been disclosed to him once the Section 6 proceedings have been completed. The word “material” is used throughout Sections 6 and 7, and Section 6(3) implies that the judge should consider intercept material: that is, material that would not be admissible in open proceedings under Section 17(1) of the Regulation of Investigatory Powers Act 2000. I remind your Lordships very briefly of what it says:
“(1) Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings [or Inquiries Act proceedings] which (in any manner)—
(a) discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data”.
Perhaps your Lordships will be only too aware of the campaign that the noble and learned Lord, Lord Lloyd of Berwick, has carried out, with my support, for intercepted material to be allowed as evidence in court, but that has never been a position that the Government would take.
The word “material”, which appears in Sections 6 and 7, is not evidence upon which the court may act. The amendments that have just been outlined by the noble Lords, Lord Hodgson of Astley Abbotts and Lord Dubs, spell out examples of such excluded evidence: evidence obtained by torture, inexpert opinion, or hearsay that cannot be admitted in the usual way by a notice to the other party. However, the amendment from the noble Lord, Lord Hodgson of Astley Abbotts, does not include the product of intercept.
It would be quite unacceptable for the trial judge to take into consideration, in determining the issues between the parties, anything that not only is never disclosed to the claimant but that would not be admissible in evidence if it were disclosed. The claimant would be doubly prejudiced: there would be evidence given against him in secret that was not admissible, if the judge were to take it into account.
The whole purpose of the civil rules of procedure is to ensure that the cards are on the table. Pleadings are followed by disclosure, and it is at that stage in particular that the parties take important decisions about preparations for trial, the nature and extent of the evidence they wish to call, including witnesses or documents and acceptance of offers, settlement of the case, payments into court and so on. That is why we have the system that we do: so that the cards are on the table before we ever get anywhere near a trial. In this Bill, the Government seem to want to deal from the bottom of the pack and, just for the purpose of saving the cost of settlement in a particular case, disregard the violation of centuries of open and accountable justice. Is it the unstated purpose of this Bill to reveal intercept and similar other inadmissible material to the trial judge in the hope that it will produce a judgment that is favourable to the Government? I hope that that is not the purpose of the Bill, but the way it is progressing leads me to believe that it might be.
My amendment has the merit of setting out in the Bill the parameters which the judge at trial will follow after he has concluded these Section 6 proceedings. He will exclude from his consideration anything that would be inadmissible if disclosed to him as material in closed proceedings. He will dismiss that when he comes to consider the issues in open proceedings.
Lord Pannick
My Lords, I support what has been said by the noble Lord, Lord Thomas of Gresford. I added my name to Amendment 69ZC because I was concerned to hear the noble and learned Lord the Advocate-General for Scotland say last Tuesday night, at col. 220, that the Bill would allow the judge to look at intercept evidence in closed proceedings. I had not previously understood that this was the purpose and effect of paragraph 9 of Schedule 2, and that is my fault. However, as a matter of principle it is surely one thing for the Bill to allow the judge in a secret procedure to look at material that is admissible in court but which the state is unwilling to have looked at in open court because of its sensitivity. One understands the purpose of those provisions. It is quite another thing for the state to be allowed to rely in the closed hearing on material that is, in any event, inadmissible in open court.
I had understood the Government’s defence of the closed material procedure to be that the state should not be in a worse position because the evidence on which it wishes to rely cannot be adduced in open court. To allow the state to rely on intercept evidence in the closed procedure—evidence that is inadmissible in open court—would put the state in a better position in a closed material procedure than in an open proceeding, and that cannot be right. Nor can it be a defence of such an arrangement for the Minister to argue, as he did briefly last Tuesday night when we touched on this important issue, that this is what happens in other closed material proceedings. I do not recall the House giving any consideration to this important issue on those occasions. We are now being asked to expand the scope of closed material proceedings very substantially, and I hope that we can now address the issue of principle.
Lord Marks of Henley-on-Thames
My Lords, I have been one of those persuaded by the Government of the need for Part 2 of this Bill: that there may indeed be cases in which the injustice of being unable to achieve a determination of the issues in the case outweighs the injustice inherent in having the case tried in part by closed material procedure.
In being so persuaded, however, I have been one of those who have been extremely reluctant to see such a departure from the principles that normally guide us in civil proceedings. That persuasion has been on the basis that closed material proceedings would be a last resort only and that the decision to hold such proceedings would be taken only on the basis that national security required certain material to be withheld from the public at large and from the excluded party or parties, despite the serious unfairness inherent in that procedure.
However, it would be fundamental that, except for the departures from ordinary procedural law inherent in the withholding of security-sensitive information, the proceedings before the judge would otherwise be ordinary civil proceedings. Moreover, the material before the judge, which he could consider in coming to his conclusion, would be evidence that he or she would ordinarily be able to hear and take into account in ordinary civil proceedings.
If that were not to be the case, and material that would be inadmissible in an ordinary case were to become admissible because the proceedings were held as a CMP, that would set them apart from the ordinary procedural law of the land and create an entirely new security court of a type that many in this House would find both alien and sinister. Furthermore, it would undermine the whole concept of the use of a CMP being a last resort, because the very fact of the CMP would give a party seeking to introduce evidence that would otherwise be inadmissible a litigation advantage. That would make the CMP procedure desirable in itself, irrespective of any considerations of national security. The CMP would then become a parallel and less fair procedure than ordinary civil proceedings in a way quite unintended by those of us who see the need for the Bill.
For those reasons, I support this simple amendment, which makes absolutely clear the position of the admissibility of material considered by the judge. I hope that the Minister will accept the amendment and reassure us on this important point in closing.
Lord Goldsmith
I start by apologising to the Committee that I have been unable to take part in the debate on the part of the Bill that I wanted to take part in—this part—due to other commitments. It would have given me the opportunity to say more than I will say now about how concerned I am about the departures from traditional ways of resolving disputes, which other noble Lords have referred to. All the amendments that have been moved deserve careful consideration by the Government, and I will underline why that should be so.
First, as soon as one moves to a different procedure for determining civil disputes, it is important that one makes sure that the safeguards for litigants are available. Whereas in ordinary civil litigation one may simply be able to reply on the general approach of the court to make sure that those safeguards are there, in this novel and as yet uncharted territory one does not know. That is why it seems right that the Government should carefully consider, as noble Lords’ amendments propose, the detailed procedural safeguards that should take place. That is all the more so—this is my second reason —because this is a one-sided procedure. In circumstances in which the Government determine that they wish to go down closed material procedures, these considerations apply all the more because the risk is that the Government see the advantage to them of this procedure rather than to the litigant.
Looking at the way in which the Bill would operate, I also think about how some of us might have to explain this procedure to colleagues in other countries. They will ask, “Is it true that England, a country that we thought had such strong safeguards for liberty, can now have procedures in which evidence is relied on by the state against an individual without that individual seeing it?”. I have spent a lot of time overseas and I will find that difficult to justify. I will find it all the more difficult to justify if—and this is why I support the amendment moved first by the noble Lord, Lord Hodgson of Astley Abbotts—I had to say, “And what is more, it is true that the judge made the decision for that procedure to apply without there even being a hearing as to whether it should”. I would find that very difficult indeed to justify.
Lord Lester of Herne Hill
My Lords, I am probably surplus to requirements, but I agree with each of the last four speeches and want to add a couple of obvious points. As the noble and learned Lord, Lord Goldsmith, emphasised—and I think he is the first to do so—what we are doing in Parliament now will be closely watched not only in the United States but throughout the common-law world. If the Bill goes through in its present form, I have no doubt that it will be cited as a model to be followed elsewhere, and there will be great pressure from across the Atlantic for this to happen. Therefore, we are the only safeguard to ensure that the legislation that is enacted complies with the principles of open justice, natural justice and equality of arms.
I know that the particular difficulty about intercept evidence—and I strongly support those who want to use it—is that the moment it comes to be seen by a claimant, very sensitive questions will be asked about sources and so on, and that would have to be handled with great care. However, my understanding is that in the United States intercept evidence is used, with proper safeguards. Is anything in this part of the Bill echoed in the United States in respect of intercept evidence? My understanding is that it is not, and that therefore these provisions, to which four Members of the House have objected, would not apply to equivalent United States legislation. If that is true, it is an even further argument in favour of these amendments.
Lord Woolf
My Lords, the submissions put before noble Lords by various Members of the House in favour of these amendments, given their source, require the very greatest attention. I make no cavil at all about the spirit in which they are put forward, but I suggest that the House needs to look at the amendments with regard to how judges operate in practice. The situations in which there are closed proceedings are very limited indeed. Here we are dealing with the use of closed material in civil proceedings, where it is even rarer for there to be the sort of closed proceedings that have been necessary in trials by jury in the criminal courts. A small minority of cases in civil proceedings are tried by a judge alone. Indeed, if there were a need for closed hearings, it would not be practical for what is envisaged here to be used in those very few cases where a jury might care because there is then a purpose in the closed proceedings. The jury could not be told of the evidence that would be the subject matter of the closed proceedings and therefore there could not be any purpose in the judge making a ruling that certain evidence should be heard in closed proceedings.
Having indicated, I hope, the context that we must look at, I find it extraordinary that it should be thought necessary for a judge, in this unusual situation when there is to be a closed hearing, to be told what he has to do to safeguard as far as possible the party which does not have access to the material. Any judge hearing these matters is going to find throughout the hearing that that is his primary responsibility. I would suggest that perhaps it is dangerous to be too specific in what he can do and what he must do because the whole of civil procedure has evolved so that a judge is put in charge of a case and he manages it in accordance with the overriding principle that is being relied on by those who wish to amend this legislation so as to achieve justice and fairness as far as possible. While I am very much in sympathy with all noble Lords who have supported these amendments, I question whether we are necessarily being constructive with regard to this issue.
What we have given as the justification for the closed procedure is that it will actually assist in achieving justice. In considering what justice is required, one must not look at the matter entirely from the point of view of one party alone. If the Government are the defendant in the proceedings, they have important responsibilities to put before the court to ensure that the rights of the citizen to be protected are not damaged inadvertently by what is proposed. We must remember that, in this very special area of national security other states are very sensitive that their material, which they regard as important for their purposes, should not come in to the public domain. It is in that situation that these procedures, as I understand them, are being proposed. As I have suggested, the judge would apply the ordinary principles with regard to weighing the material that he would apply in other proceedings, and also with regard to its admissibility. I look forward to hearing how the Advocate-General deals with the point that is now being taken with regard to the intercept evidence. That evidence is not normally admissible in proceedings, and it is not evidence that a judge can look at. I suggest that, if he were to hear it inadvertently, he would not be entitled to rely on it unless there was some reason that made it admissible.
Therefore, I hope that the Advocate-General will in due course explain why the normal rules, which I suggest must apply in so far as possible here, are not applicable also in the special circumstances of closed hearings.
Lord Mackay of Clashfern
My Lords, I think that this may be an opportunity for the Home Office, in particular, to reconsider the advice apparently previously to it by the holder of the office of Attorney-General. With this possibility, there may be a way of introducing more flexibility into the general role with regard to intercept evidence than seems to exist at present.
Baroness Manningham-Buller
My Lords, I should like to comment on paragraph (e) in Amendment 69ZB tabled by the noble Lords, Lord Hodgson of Astley Abbotts and Lord Dubs. I can assure the Committee from my past experience in the Security Service that if this paragraph were to appear in the legislation, it would have a chilling effect on sources and on their willingness to provide information. I predict that many existing sources would refuse to continue in their role and new ones would resist recruitment.
Sources provide a range of information—some of it to be discounted and some of it valid but all to be assessed, which is something that the judge will seek to do. Some of that intelligence from human sources has prevented major atrocities and loss of life. However, when individuals agree to provide that information in confidence, they seek reassurance that their lives will be protected, and anonymity is key to that. If they were identified, I am afraid that not only would they need to be resettled but very few more would be willing to work for the Government.
Lord Beecham
My Lords, my noble friend Lord Dubs referred to the quantity and indeed the quality of legal advice which has been proffered to the Government and to the noble and learned Lord in particular by several Members of your Lordships’ House. I would not presume to offer legal advice but, if I did, my charging rate would be considerably less than that which noble and learned Lords would, quite rightly, be able to charge. Nevertheless, I support the thrust of the amendments that we are now discussing. I take the point made by the noble Baroness in respect of paragraph (e) in Amendment 69ZB, and I think she has a significant point in that respect. However, the overriding concern is not to depart far, if at all, from the basic provisions of our system in guaranteeing a fair trial of the issues in civil, as well as criminal, matters and in the question of equality of arms.
The noble and learned Lord, Lord Woolf, referred to the perhaps superfluous character of amendments which seek to empower judges to do what they can in any case do. I do not read the amendments quite in that way, particularly Amendment 69ZB, much of which imposes a duty on the Secretary of State, in particular in relation to the disclosure of information to the special advocate for the purpose of the hearing. That seems to me a compelling argument. I do not necessarily subscribe to every one of the points made in that amendment but I think that, taken as a whole, they are matters which the Government should consider very carefully, and I entirely endorse the views of my noble and learned friend Lord Goldsmith in that regard.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I am grateful to my noble friend for bringing forward this amendment and to other noble friends and noble Lords who have spoken to amendments in this group, which concern how Clause 6(1) proceedings and closed material procedures will operate in practice. The noble and learned Lord, Lord Goldsmith, was right to expect that the Government will take these issues seriously. In embarking upon these kinds of procedures, I assure not just the noble and learned Lord but the whole Committee—as I have sought to do during our deliberations—that these are matters on which the Government have given considerable care to putting the proper balances and provisions in place. Indeed, that goes without saying to the amendments that have been proposed in this group, although I reiterate the point, which I think I made earlier in Committee, that it is the intention that this should apply to a very small number of cases; nevertheless, it is important that the provisions are well considered and thought through.
I say to the noble Lord, Lord Dubs, and indeed to others who in earlier debates have almost apologised for not being a lawyer, that my fellow lawyers who are present will know that the questions that come from people who are not lawyers are sometimes the ones that are the most penetrating and that you have to be on your toes for. Those who are non-lawyers should not shy away from a very full and active participation in these deliberations. Very often, they raise the issues that put us on our mettle.
Taking Amendment 69 first, the provision that the amendment would remove allows rules of court to enable or require the court to determine proceedings without the need for a hearing. I hope that I can provide reassurance that there is no sinister intent behind this provision. The intention of the Bill is that civil proceedings in which closed material proceedings are required will continue as regular civil proceedings as best they can, save only for the sensitive material elements that will be considered in closed session. It is emphatically not the intention that the whole proceedings should pass through the gateway to being closed proceedings in their entirety.
However, it is important that the Bill does not interfere in any way with the court’s ability to exercise its normal case management powers; for example, where decisions can be made on the papers without a hearing, particularly if the parties have agreed such a course. This is well precedented in other closed material proceeding contexts, most recently paragraph 2(2)(b) of Schedule 4 to the Terrorism Prevention and Investigation Measures Act 2011. The rules made under that paragraph provide for certain matters to require a hearing, with exceptions where a hearing is not required, such as with the agreement of the parties or where the matter has already been determined. It is that kind of situation that is anticipated by the provision in the Bill.
Amendment 69ZB would insert, rather than remove, some specific requirements for rules of court to contain certain provisions concerning the burden and standard of proof and the reliability and admissibility of evidence under a closed material proceeding. The Committee will have heard the noble and learned Lord, Lord Woolf, indicate that these are issues where, particularly when dealing with situations such as this where the judiciary takes a very close interest in trying to ensure fairness, there can sometimes be dangers in being too specific. Again, I emphasise the point that the intention is for the proceedings to continue as regular civil proceedings as far as possible. The very purpose of closed material proceedings is to ensure that all relevant material can be fully considered by the court in coming to a judgment without damaging national security interests. It follows that the disclosure of sensitive material to the court and special advocate will be full and open, precisely because it is not being made more widely.
I will look at each of the various elements of this amendment in turn. The amendment seeks to introduce a new subsection (6) to Clause 10, paragraph (a) of which relates to the burden and standard of proof. I assure the noble Lord, Lord Dubs, that evidence adduced here will be subject to challenge by special advocates. On more than one occasion in Committee, reference has been made to comments from judges, particularly Court of Appeal judges, who have looked at the body of evidence and transcripts and have commented on the rigour with which special advocates undertake this responsibility. As drafted, the change in the burden of the standard of proof would apply to any proceedings in which a declaration under Clause 6(1) had been made. It would impose a burden of proving any fact on a party that holds the sensitive material, and requires facts to be proven to a high degree of conviction.
Therefore, in damages claims against the Government, if the Government hold material that cannot be disclosed in open court for reasons of national security, this amendment would require them to disprove the claims made against them to a high degree of conviction. I accept that the phrase “high degree of conviction” is a novel term, but it is presumably intended to import something more like the criminal standard of proof into these civil proceedings. This would place too high a burden on the Government. There would be no requirement on the claimant to prove their claims, only on the Government to disprove them, so not only would the standard of proof be raised but the burden would be reversed. Similarly, where another party in proceedings held the sensitive material, they would be placed at a significant disadvantage. This change in the burden and standard of proof is especially hard to justify when it is remembered that there may well be cases where the closed aspects of the proceedings may be only a very small part of the overall proceedings.
Proposed new paragraph (b) would require the Secretary of State to make full disclosure of sensitive material to the court and special advocate, along with the information on the reliability of that evidence and the existence of witnesses. There is already sufficient provision for this in the Bill. Clause 9 requires rules to be made to ensure that normal disclosure rules still apply to closed material proceedings, subject to Clauses 7, 8 and 10. Nothing in these clauses affects the normal rules of disclosure where, in relation to judicial review, for example, a duty of candour is required of the parties.
Therefore, the Secretary of State will in any case be required to put all information before the court, including, in closed proceedings, all information even if that may be viewed as damaging to national security. We believe, therefore, that this amendment is unnecessary. With regard to proposed new paragraph (b)(ii)—the part of the amendment that would require disclosure of the reliability of evidence—it is the case that, in practice, assessments of the accuracy and reliability of the evidence on which the Government are relying are provided to the court and can be used to test the evidence. We believe, therefore, that this part of the amendment is also unnecessary.
Proposed new paragraph (c) deals with the exclusion of evidence obtained by torture. Courts at both domestic and international level have established that the use of evidence obtained by torture is not permitted in legal proceedings. This principle of international law, contained in Article 15 of the United Nations Convention Against Torture, is one that the Government resolutely support, and it would apply in closed material proceedings as it would in open proceedings. The special advocate would be able to challenge any evidence adduced by the Secretary of State in closed proceedings on the grounds that it was obtained by torture or inhuman or degrading treatment. It would be for the judge to decide, on the balance of probabilities and based on the arguments of both parties, whether this challenge was substantiated and, if so, whether the evidence can lawfully be admitted, and, if so, what weight can be placed upon it.
Following the Judicial Committee of your Lordships’ House in A and others v Secretary of State for the Home Department (No 2) in 2005, a court cannot admit evidence if it concludes, on a balance of probabilities, that it was obtained by torture. There is, therefore, existing protection against the use of torture evidence. To increase the evidential threshold in the way that this amendment purports to do would be to allow a special advocate to introduce a new standard of proof to proceedings, simply by raising the question of torture. The House of Lords has previously held that the current standard is the proper one and is in accordance with our international obligations, not least the UN Convention Against Torture. We believe, therefore, that there is no need to change it.
Proposed new paragraph (d) would render inexpert opinion evidence inadmissible. Inexpert opinion evidence is allowed in regular civil proceedings in certain circumstances, such as where the opinion or belief of a witness is relevant to an issue or is a way of conveying facts personally perceived by him or her. Such evidence can be valuable and to exclude it completely in closed material proceedings could have a detrimental effect on the ability of courts to reach decisions in those cases. However, it is important to emphasise that in closed material proceedings it remains open to the judge to decide what evidence to accept, and what weight to place on that evidence. The special advocate will be able to cross-examine witnesses, expert or inexpert, in order to establish the veracity and reliability of their evidence. We believe that with this safeguard in place, and due to the potential importance of non-expert opinion evidence, the amendment should be rejected.
Proposed new paragraph (e) would restrict the use of hearsay evidence. We heard the comments of the noble Baroness, Lady Manningham-Buller, who feared that this particular part of the amendment could have a very chilling effect on people coming forward and engaging in work on behalf of the security services. It is important to reiterate that the Bill does not seek to change the general approach in relation to evidence, save to ensure that material that would damage national security if disclosed is only provided to the court and the special advocate. Again, the role of the special advocate here is to challenge the evidence, as a normal legal representative in regular civil proceedings would do. Hearsay evidence would be admissible under the Bill, as it is in other closed material procedures and in civil proceedings generally. The special advocate could challenge the evidence as to its credibility and the weight to be attached to it as robustly as any other advocate.
Proposed new paragraph (f) seeks to add a provision permitting the court to strike out a case where there is any failure to comply with the directions of the court. As a general proposition, that is part of the court’s general case management powers. More specifically, in the context of the closed material procedure, the Bill contains in Clause 7 a requirement that rules are made to give the court certain powers where a party refuses to disclose material but has not received the authorisation of the court not to disclose. These powers would include directing that a party make such concessions as the court specifies, which could include having to concede the case altogether.
I hope that this explanation gives some reassurance as to the nature of what the Bill sets out to achieve in procedural terms, and explains why the Government consider that the two amendments proposed—which I recognise have been moved and talked to with the objective of trying to ensure fairness—are not in fact necessary to address the concerns from which they derive.
Lord Thomas of Gresford
The amendment is not related to intercept evidence. Intercept evidence is part of it, but I am saying that the open civil proceedings should continue and that the judge should come to his conclusion on admissible evidence. Intercept is an illustration. Indeed, my amendment arises, as the noble and learned Lord will remember, from his unusually equivocal answer last Tuesday when I asked him the direct question.
Lord Wallace of Tankerness
I apologise if I was equivocal, but I thought that I had indicated that the issue revolves around the use of intercept evidence, as the noble Lord, Lord Pannick, mentioned when he quoted what I said. I rather thought that the quote he used was quite unequivocal, which caused the surprise.
My noble friend asked whether the purpose of the Bill was to make inadmissible material admissible to support the Government. It is worth indicating that the purpose behind the closed material provisions is to ensure that the court can consider as much relevant material as possible, be it helpful or unhelpful to the Government. The most obvious example is material that might otherwise be excluded by PII, but material that might otherwise be inadmissible because of RIPA provisions we seek to make admissible in these provisions.
The noble Lord, Lord Pannick, indicated that the Government had not considered intercept before in closed material proceedings. Section 18 of RIPA, as amended, has a long list of contexts, including any proceedings before SIAC. The most recent time when Parliament considered this matter was in paragraph 4(2) of Schedule 7 to the Terrorism Prevention and Investigation Measures Act 2011. Were the amendment to be incorporated into the Bill, a judge in a closed material proceeding could not consider relevant intercept material because the law prevents its disclosure in open hearings.
Paragraph 9 of Schedule 2 includes provision for an amendment to Section 18 of the Regulation of Investigatory Powers Act 2000 to allow for intercept material to be admitted in any Section 6 proceedings. It is our view that the amendment is necessary if intercept material is to be adduced or disclosed in the closed part of any proceedings where the court has declared that a closed material application may be made. If Section 18 is not amended, the current prohibition on disclosure in Section 17 of RIPA will prevent intercept material being adduced within such proceedings. Consequently, it would narrow the scope of material available in the case and could undermine the wider purpose of CMPs, which is to make available as much material, helpful or unhelpful to the Government, as possible.
I have highlighted that a judge can consider intercept material in reviewing an application for a CMP or in proceedings where a declaration has been made. It is right and proper that this is the case, but I accept, and it is evident from the debate, that it is a matter that attracts views on different sides. The noble and learned Lord, Lord Goldsmith, referred to some of the history of the use of intercept evidence.
Some surprise was expressed in the report of the Joint Committee on Human Rights in response to the Government’s Green Paper on justice and security. Paragraph 49 states:
“Since one of the driving forces behind the Green Paper is said to be the Government’s desire to ensure that, wherever possible, evidence is put before a court rather than excluded from its consideration, it does seem surprising that the admissibility of intercept as evidence is not included within the scope of the Green Paper”.
It goes on:
“We accept that the Green Paper is mainly concerned with civil proceedings, and the question of the admissibility of intercept as evidence has tended to focus on its use in criminal prosecutions. However, intercept is also relied on by the Government in a number of other contexts and we find it surprising that the Government is going to such trouble to make sure that evidence can go before a judge when material which sometimes forms a substantial part of the material relied on by the Government will still not be admissible under the proposals in the Green Paper. There is now a very long history of Reports, from this Committee and others, urging legislative reform to enable the admissibility of intercept. In our Report on the TPIMs Bill, we expressed concern about what appeared to be the significant decline in the number of successful prosecutions for terrorism offences over the last few years ... We reiterate our and our predecessor Committee’s recommendations that legislation to provide for the admissibility of intercept as evidence be brought forward as a matter of urgency”.
I accept that that goes wider than is specific to this Bill, but it indicated some surprise that, in the Green Paper at least, the Government had not flagged up the possible use of intercept, if indeed the intention is indeed to get as much relevant material before the court as possible. Therefore, the Government have made provision in the Bill for that to happen.
Lord Lester of Herne Hill
My Lords, I am very grateful to my noble and learned friend. I agreed to those paragraphs as part of the Joint Committee on Human Rights, and it is perfectly right to draw attention to them. That is why I support the use of intercept evidence in the context of this Bill. However, the noble and learned Lord, Lord Woolf, placed justifiable reliance on the fairness of judges and the overriding interest in the interests of justice in interpreting the Bill. Would my noble and learned friend accept that when we come at least to Report, we need to consider the safeguards?
This Bill restricts judicial discretion in certain ways. It does not leave it at large. It does not leave the overriding interest in natural justice, or the pursuit of justice, as a free-standing consideration that trumps everything. Therefore, will my noble and learned friend consider with an open mind—I am sure he will—questions such as AF disclosure to special advocates as one of the safeguards to try to do the best we can to secure equality of arms in this context?
Lord Wallace of Tankerness
My Lords, that perhaps goes wider than the specific issue of intercept evidence. However, I have of course indicated on a number of occasions a willingness to engage.
For completeness, my noble friend asked about the United States procedures. While they are similar in many respects, it is important to remind ourselves that the legal frameworks between the United States and the United Kingdom also differ. There are significant operational differences, so comparisons are of limited value, but it is certainly an issue on which I am willing to engage with my noble friend.
It is clear that there are different views on this and, in his memorandum to the Joint Committee on Human Rights, Mr David Anderson QC, the independent reviewer of terrorism legislation, said:
“The major benefit of existing CMPs are that they allow the court or tribunal to decide the issues before them on the basis of all the evidence—including the intercept evidence that is otherwise not admissible in legal proceedings. If a CMP is to be introduced into civil proceedings, it should be on condition that section 18(1) of RIPA be amended so as to add civil litigation CMPs to the list of proceedings in which intercept evidence can be admitted”.
On the point made by my noble friend Lord Marks, I think there is a perception that this will always be in the interests of the Government. I accept the decision of Mr Justice Ouseley in the case of AHK, which I think related to naturalisation and so would come out separately under Clause 12 but under a judicial review. The Secretary of State might well, in a judicial review, come to a particular decision because she had access to material from intercept. If that evidence is not to be made available, and is to be withheld from the court that is considering a Secretary of State decision that is being judicially reviewed, justice might well not be done to the claimant.
The point is that other statutory CMPs can hear RIPA material—intercept evidence. Therefore, the exception to the rule would be if we did not allow this RIPA material to be held in civil proceedings, which could be to the detriment of claimants bringing cases against the Government. It is very clear that this is an issue that we will wish to consider.
On the point made by my noble and learned friend Lord Mackay of Clashfern, I accept that there are important differences between criminal procedure and civil procedure. I am advised, too, by my noble friend Lord Henley that your Lordships will have another opportunity to explore this issue when he answers an Oral Question from the noble and learned Lord, Lord Lloyd, tomorrow on the wider issues relating to intercept evidence.
There are evidential differences between criminal and civil proceedings, so the fact that intercept evidence may be used in closed material proceedings of a civil nature does not read across to criminal cases where the disclosure obligations on the prosecution to the defence are much stronger than the corresponding disclosure obligations in civil proceedings.
I have sought to address the specific points of procedure that were mentioned by my noble friend Lord Hodgson and the noble Lord, Lord Dubs, as well as to deal with the issue of intercept evidence. I hope that, having heard these arguments, the noble Lord will withdraw his amendment.
Lord Thomas of Gresford
Perhaps I may repeat that I do not, in my amendment, refer only to intercept evidence. It deals with what is admissible evidence in civil proceedings. At the end of that, I am still left in some doubt. I started with the position that the noble and learned Lord, Lord Woolf, enunciated that a judge would be able to do what was justice in a particular case and would not require direction. But it struck me when we discussed the matter last Tuesday that this was a means of putting before the judge—the decider of the facts—material that he would never otherwise see if the proceedings were open. It is fundamentally unfair that that should be so.
Is that the position of the Government? Do they really want the judge to decide not whether closed proceedings should be held, which is what Section 6 is about, but in the trial of the issue—the determination of who wins the case—whether to use material, of which intercept evidence is one example, that if there were no such proceedings would never play a part in the trial? Is that the position?
Lord Wallace of Tankerness
My Lords, there is a danger of going over some of the ground that we went over at an earlier stage. There are two stages to what we are proposing. There is what we have commonly come to describe as the gateway stage and there is the subsequent stage where individual pieces of evidence are argued over and special advocates make representations on those individual pieces of evidence. If the impression has been given that somehow intercept evidence is in a category of its own and will not be allowed to be challenged by the special advocates, then that is a wrong impression. Like other pieces of evidence, it will be subject to robust argument and debate overseen by a judge who, as the noble and learned Lord, Lord Woolf, said, is there to ensure that there is fairness. It is not a question that somehow such evidence is in a special category and in a box not to be challenged and not to be talked about.
Lord Hodgson of Astley Abbotts
My Lords, I am extremely grateful to my noble and learned friend for the very full response he has given to the debate. Obviously, there is a lot of information for us to absorb and think about during the Recess before we get to the next stage of the Bill.
When a couple of non-lawyers such as the noble Lord, Lord Dubs, and I propose an amendment and we are followed by a past Lord Chancellor, a past Attorney-General, a past Lord Chief Justice and a past head of the security services, we need to be pretty careful about what we are doing and sit up and listen. The purpose of the amendments was to improve the balance and the fairness. They were probing amendments at this stage and intended to shine a light of transparency wherever and as far as we could.
The noble and learned Lord, Lord Woolf, argued about proportionality. He said that this would apply in only a limited number of cases in civil proceedings and that the issue of judicial discretion could carry the day. However, in previous debates I have said how in a very few cases that could involve the minority community and in particular the Muslim community, which could have a disproportionate impact on the way that our society operates and the way that justice is seen to be operating. I have referred to my own visits to schools and so on as part of the Lord Speaker’s outreach programme, where one sees how extremely sensitive these communities are about the way our judicial system works. Therefore, I am concerned about that. I am also concerned about what the noble Lord, Lord Beecham, said about mission creep. His Amendment 69A concerns another area of danger in Clause 11—where the mission could be expanded quite a lot on the basis of regulation—which we all need to explore.
The noble Baroness, Lady Manningham-Buller, feels that I have got it in for the security services. I have not got it in for the security services at all—
Baroness Manningham-Buller
I assure the noble Lord that I have no such thoughts.
Lord Hodgson of Astley Abbotts
I am merely testing the case and, as I have said before, I quite understand the anonymity of sources and the danger of publicity to them. However, perhaps I may just say that the amendments that the noble Lord, Lord Dubs, and I have tabled today refer to the role of the special advocate, who is security cleared. Therefore, we should be able to rely on that.
With regard to Amendment 69, my noble and learned friend said that this was an issue of case management where the parties have agreed and that it was business as usual. Unfortunately, this is where the ice cracks under my feet because I have no idea whether that is a good argument. I see nothing about parties having agreed in the Bill at present. However, I am sure that we will have a chance to consider this further. I will certainly need further advice before going any further on the point. Therefore, at this stage, I beg leave to withdraw the amendment.
Baroness Berridge
“( ) Rules of court relating to section 6 proceedings must make provision—
(a) requiring the court concerned to notify relevant representatives of the media of proceedings in which an application for a declaration under section 6 has been made,(b) providing for any person notified under paragraph (a) to be permitted to intervene in the proceedings,(c) providing for a stay or sist of relevant civil proceedings to enable anyone notified under paragraph (a) to consider whether to intervene in the proceedings,(d) enabling any party to the proceedings or any intervener to apply to the court concerned for a determination of whether there continues to be justification for not giving full particulars of the reasons for decisions in the proceedings, and(e) requiring the court concerned, on an application under paragraph (d), to publish such of the reasons for decision as the court determines can no longer be justifiably withheld.”
Baroness Berridge
My Lords, this amendment to Clause 10 relates to two matters: open justice in paragraphs (a) to (c) and the nature of secret judgments in paragraphs (d) to (e). The amendment also bears the names of the noble Lord, Lord Pannick, and my noble friend Lord Lester. I will deal with each of these matters in turn.
Paragraphs (a) to (c) simply provide that the press would be notified of a Clause 6 application for a declaration that the proceedings may require closed material proceedings. Paragraph (b) enables the press to intervene and, if they wish to do so, they might need the services of a special advocate. A subscription-based e-mail alert system would be a simple, cheap and effective method of notification.
In the seminal case of Scott v Scott, Lord Shaw said that open justice is a sacred part of our constitution and our administration of justice. One of the main criticisms by the Joint Committee on Human Rights on the Green Paper was that it lacked any consideration that the interests of the public are served by the press having access to proceedings. In fact, the Joint Committee referred to open justice as the “missing issue” in the Green Paper.
This amendment is somewhat analogous to existing situations in our judicial process, such as where there is a media injunction. Of course, the media can make representations for it to be lifted. It is also analogous to the situation where certain newspapers intervened in the Al Rawi litigation. They were represented by my noble friend Lord Lester to argue the impact that closed proceedings would have on their access to information.
I am very grateful that various media representatives and lawyers gave evidence to the Joint Committee. Mr Cobain from the Guardian maintained that certain material substantiated allegations that the British Government had been closely involved in rendition that the disclosure process in court proceedings brought into the public domain for the first time. He said that he had previously been told by the Government that such allegations were conspiracy theories and that, without the disclosure process, documents, such as a telegram from the Foreign Secretary to various UK missions around the world explaining that no objection would be made to the transfer of British nationals to Guantanamo Bay, would not have been seen. He maintained that, under this closed material regime, the press would not have access to that evidence. Accordingly, the press, and therefore the public, would be arguably less able to scrutinise government actions or to know whether the press allegations by the press are indeed mere conspiracy theories.
During the consideration of these issues over many months now, it has been brought home to me that the public need to know the judge’s reasons—and, obviously, giving an open judgment is one of the main ways in which our judges are held accountable as it enables them to be scrutinised or even appealed. The disclosure and discovery procedures of a court case can also be a vital tool to convert a mere allegation or theory into established fact. Often those processes are the only way in which that information is made public. This amendment would enable the media to make representations—I emphasise on behalf of the public interest, not their own—to see this material and have an open trial.
Paragraphs (d) and (e) of the amendment are, I confess, probing in nature. They seek further details of the Government’s view on the recommendation made by the Joint Committee on Human Rights to deal with important questions raised in relation to closed judgments in a legal system that relies so heavily on precedent. One of my abiding memories from university is that of going into the law library for the first time and seeing all those bound volumes stacked from floor to ceiling. That shine wears off when one is trying to understand the complexity of some of the judgments. I am grateful to know that by the end of the summer the Government will have compiled a systematic database of the headnotes of the existing judgments in closed material procedures. It was troubling to the Joint Committee to hear from special advocates that they did not have access to secret judgments and that it could be merely by chance that they would find out about a case that might be relevant to the one they were involved in. Can my noble and learned friend Lord Wallace say why the database is not to cover the whole case being compiled, or was I the only lawyer who was occasionally led astray by an inaccurate headnote? That would also answer what I believe is an outstanding question: where physically are these judgments held?
Paragraphs (d) and (e) would introduce a mechanism for a party to apply for a secret judgment to become an open judgment and goes beyond the mere review of a judgment that was dealt with in subsection (g) of the new clause proposed in Amendment 67C in Committee on 17 July. I am grateful to my noble and learned friend Lord Wallace for saying that he understood the issue and would revisit the point about secret judgments when,
“the national security considerations have in some respects flown off”.—[Official Report, 17/7/12; col. 209.]
However, it is not only when secrecy has disappeared that there can be a need to open up these judgments either for review or possibly for appeal. There have been a number of instances where the evidence of a witness in a case, often an expert but sometimes a police officer, has been so discredited in its methodology or by the witness’s veracity, that other cases where that witness’s evidence has been relied on need to be looked at. Although it is a rare situation, unfortunately one has only to think of the conduct last week of Chief Inspector Anthony Tagg, who was found by the judge to have lied under oath in the trial relating to the deaths of three men during the riots last summer in Birmingham. It is an example of where other cases in which he has given evidence may have to be looked at. It can only support confidence in our justice system if, as the amendment outlines, a party is allowed in these circumstances to request the court to look at the secret part of a judgment. I hope that the Government will support both aspects of the amendment as I believe that it puts the missing element of open justice firmly back into the Bill. I beg to move.
Lord Pannick
My Lords, I have added my name to this amendment and I support what the noble Baroness, Lady Berridge, has said. It is often the case, when courts consider whether to go into closed proceedings in other contexts, such as in family law cases or in those that concern confidential personal information, that the persons who object are representatives of the media. The litigant who is adversely affected may be playing only a very limited role in the proceedings or they may have reasons of their own for not objecting to the closed hearing. It will often assist the court in deciding whether to go into a closed procedure if it hears from representatives of the media as to the disadvantages of doing so and the relevant law in respect of the matter. But the media can make those representations only if they are notified of the possibility of the court moving into a closed session.
As the noble Baroness, Lady Berridge, has said, the amendment addresses a second topic, one that this Committee addressed briefly last Tuesday night, and that is the vital need to ensure that there is the possibility of a periodic review of whether a judgment needs to remain confidential. The concern is that there will be, as there already is in relation to control order decisions and TPIM cases, a body of case law, the contents of which is known only to a very few people. The case law is known to officials, to counsel who have represented the Home Office, to counsel who have acted as special advocates and to some judges. However those counsel and those judges may be aware only of the decisions in the cases in which they have played a part, yet this case law may contain information which is very important to the determination of later cases.
This is a very real problem for a common law system in that some of the case law is secret. I understand that it has been suggested—only partly in jest—that a set of secret law reports should be published, a subscription to which could only be bought by those with security clearance. It may be necessary—this is what we are debating in relation to Part 2—for Parliament to depart from basic principles of fairness and openness, but it is then vital for us to build express procedural safeguards into this Bill, safeguards that do not undermine the maintenance of secrecy.
The noble and learned Lord, Lord Woolf, just expressed the view that it is unnecessary for Parliament to tell the judges how to protect fairness. He is right. All the judges in this area have been and continue to be concerned about maintaining fairness in the procedures in control order cases and in TPIM cases. Nevertheless, I consider it is very important that Parliament should do all that it can to set out clearly, for the avoidance of doubt, the existence of vital safeguards in this area, both to give confidence to the individuals concerned and to ensure that we avoid so far as possible the inevitable expensive and protracted litigation. Two of these vital protections are set out in this amendment—that the press should have notification of a proposal to go into closed procedure and that there must be an opportunity periodically to review whether to maintain the secrecy of a closed judgment after a period of time.
Lord Lester of Herne Hill
My name is also on this amendment. When I heard my noble and learned kinsman Lord Woolf indicate in his speech why we should trust the judges, I was reminded of what Archbishop William Temple once said:
“Whenever I travel on the Underground I always intend to buy a ticket, but the fact that there is a ticket collector at the other end just clinches it”.
However good our judiciary might be, it is important that the legislation should just clinch it.
The principle of open justice is a constitutional one anchored in our written and unwritten law and in the Human Rights Act both as regards the right to a fair and public hearing of civil and criminal proceedings protected by Article 6 of the convention, and the right to freedom of expression protected by Article 10. As my noble friend Lady Berridge has indicated, the principles were laid down most famously in Scott v Scott in 1913 when Lord Haldane, Lord Chancellor, referred to:
“the general principles as regards publicity which regulated the other courts of justice in this country”,
as being of “much public importance”.
“They lay down that the administration of justice must, so far as the trial of the case is concerned, with certain narrowly defined exceptions . . . be conducted in open court”.
Later Lord Haldane noted in the same case that the power of an ordinary court to hear in private cannot rest merely on the discretion of the judge. He said:
“If there is any exception to the broad principle that requires the administration of justice to take place in open court, that exception must be based on the application of some other and overriding principle which defines the field of exception and does not leave its limits to the individual discretion of the judge”.
The principle of open justice was reaffirmed by the English Court of Appeal, including the noble and learned Lord, Lord Neuberger, the Master of the Rolls, whose appointment as president of the Supreme Court I am sure we all greatly welcome. That Court of Appeal, as recently as 7 February 2012, was dealing with the successful appeal against the refusal by the district court to grant access to documents supplied to the court for the purpose of extradition to the United States of two individuals alleged to have been involved in bribing Nigerian officials by a subsidiary of the US company Halliburton. Lord Justice Toulson gave the leading judgment, in which he observed that the principle of open justice,
“has been recognised by the common law since the fall of the Stuart dynasty”.
After he quoted from Scott v Scott, he cited a New Zealand case, Broadcasting Corporation of New Zealand v the Attorney-General, in which the president, Sir Owen Woodhouse, another great and famous jurist, observed that,
“the principle of public access to the Courts is an essential element in our system. Nor are the reasons in the slightest degree difficult to find. The Judges speak and act on behalf of the community. They necessarily exercise great power in order to discharge heavy responsibilities. The fact that they do it under the eyes of their fellow citizens means that they must provide daily and public assurance that so far as they can manage it what they do is done efficiently if possible, with human understanding it may be hoped, but certainly by a fair and balanced application of the law to the facts as they really appear to be. Nor is it simply a matter of providing just answers for individual cases, important though that always will be. It is a matter as well of maintaining a system of justice which requires that the judiciary will be seen day by day attempting to grapple in the same even fashion with the whole generality of cases. To the extent that public confidence is then given in return so may the process be regarded as fulfilling its purposes”.
Lord Justice Toulson of course recognised that there are exceptions to the principle of open justice, but they must be justified by some even more important principle. In the Binyam Mohamed case, the Lord Chief Justice, the noble and learned Lord, Lord Judge, declared:
“Without the commitment of an independent media, the operation of the principle of open justice would be irremediably diminished”.
He recognised the special significance of the open justice principle in cases involving allegations of wrongdoing against the Executive.
As my noble friend Lady Berridge observed, the Joint Committee on Human Rights, in its report on the Green Paper, pointed out that the significant implications of the Government’s proposals for freedom of the media to report matters of public interest and concern did not feature at all. The committee regarded that as a “serious omission” and, at paragraph 217, called for the,
“human rights memorandum accompanying the Bill to include a thorough assessment of its impact on media freedom and on continuing public confidence in the administration of justice”.
When it came, the human rights memorandum contained just four brief paragraphs, paragraphs 32 to 35, asserting that the Bill is compatible with the freedom of the press because,
“in all cases where the test for closed proceedings is met it will be possible to justify the interferences with Article 10 rights as necessary and proportionate in the interests of national security”.
The Government’s response to our report provides even less comfort on that score. It states at page 15 that, in the Government’s view,
“the proposals will enhance transparency and public trust, not undermine it”,
and that,
“the media can be expected to have increased opportunities to report on substantive findings in cases that raise matters of significant public interest”,
because more relevant material will be put before the court to enable it to reach a decision in cases which currently cannot proceed. It is disappointing that there is nothing in the Bill so far to address the JCHR’s significant concerns about the impact upon media freedom and democratic accountability. As it stands, the Bill would undermine principles that have guided this country for centuries, threatening to violate open justice and free speech where they are most needed, especially in the context of cases involving allegations of wrongdoing by citizens against the executive.
I will not trouble the House with the convention case law that supports all of this, but I will say that to avoid arbitrary laws there are two fundamental requirements anchored in our legal system and in the convention. First, the law must be reasonably certain and foreseeable so as to be accessible to the citizen. Secondly, the law must provide adequate safeguards against abuse. The memorandum from the Government on the convention issues does not mention these vital safeguards of the rule of law and constitutional rights. The Bill as it stands would authorise the courts in future cases, without any prescribed and foreseeable criteria and safeguards, to operate a closed system of justice, shielded from public scrutiny. The virtue of Amendment 69ZA is that it requires rules of court to be made that would strike a fair balance between open justice, freedom of expression and national security, while satisfying the principles of common law and the convention.
Finally, as the noble Lord, Lord Pannick, and the noble Baroness, Lady Berridge, have indicated, on the question about the publication of judgments in this area, the principle of legal certainty makes it absolutely essential that everybody should know the nature and scope of the relevant law. I remember in arguing the thalidomide case at Strasbourg many years ago that, because of the uncertainty of the law, we relied on the abuse by a Roman emperor who wrote the law on the top of very tall pillars, which prevented Roman citizens from being able to see it properly. That is an example in Roman law of the vice of legal uncertainty. A similar problem will arise if judgments given by the courts in cases of this kind remain altogether secret with no safeguards for them to be published when their secrecy is no longer necessary. I very much hope that those points will be addressed, whether in these amendments or others.
Lord Beecham
My Lords, we have previously debated amendments that would help to secure oversight of this system, if indeed this Bill survives the legislative process. Most, though not all, noble Lords who have spoken in the debates in Committee have expressed considerable reservations about the principle. Most have then spoken to amendments that would mitigate the effect of the principle if indeed it emerges in the final transition of the Bill to the statute book.
For my part, I concur very strongly with the views of the noble Lord, Lord Pannick, and the noble Baroness, Lady Berridge, regarding the establishment of a system for identifying the case law and the judgments and making them available, at some point at any rate, to inform the judicial process. That seems very important to me and certainly I lean towards amendments that ultimately would require the publication of reasons for a decision.
I am less attracted, however, by the first parts of the amendment moved by the noble Baroness, which would allow the media to intervene in proceedings. I am not quite certain of the form in which such intervention would take place, but in any event I am not at all persuaded thus far that this is something that would materially assist the process as opposed to simply promoting the interests of the media. It is difficult to see how that would work in practice, so we cannot support those elements of the amendment.
However, we look to the Government to respond constructively to the points made about the recording and availability of case law and the justification for particular decisions being made at a point when security interests are no longer as strong as when the closed material procedures, if indeed they exist, are implemented in a particular case. There ought at some point to be a disclosure. To that extent we sympathise with that part of the amendment, but in relation to its first parts we cannot really support what the noble Baroness is trying to do.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble friend Lady Berridge for tabling this amendment because it is important that, in a Bill such as this, we have an opportunity to discuss freedom of expression and the media’s important role in holding the Government to account and scrutinising what happens in this country. I think my noble friend suggested that one of the purposes of her amendment was to ensure that there is public trust in the judicial system. She certainly made several remarks about the importance of open justice, and was joined in that by other noble Lords. We obviously share that objective and, from the report of the Joint Committee on Human Rights, we are aware of its concerns about the impact on public trust and confidence in the courts.
However, it is important that we remind ourselves that this Bill is also about allowing justice to be done where that has not been possible before—and doing so in a way that is as fair as we can make it. Throughout the debates on the closed material procedure aspect of the Bill the Government, through my noble and learned friend, have been at pains to stress that as much material and judicial reasoning as is possible without damaging national security will go into open court. The special advocates will assist with pushing as much material as possible out of the closed case into open court, and at all stages of the process: at the application stage, during the substance of the case and at the point of judgment, when they will challenge the material in the closed judgment and make representations about why it should be in the open. The media will have access to all open elements of proceedings, as normal. Indeed, as I will come on to explain, we believe that in this process they will have access to more material than they might otherwise have had.
My noble friend and the noble Lord, Lord Pannick, referred to safeguards. I think the noble Lord said that it was important to build in safeguards in order not to undermine the need for secrecy. There was some consensus built around the later legs of the amendment, which refer to what I might describe as the declassification of the judgments. I will come back to that later.
My immediate response to the first part of the amendment is that it raises some practical difficulties as far as giving the media access to intervening in the proceedings. Indeed, I was interested to hear the noble Lord, Lord Beecham, express his doubts about whether that would actually add to the proceedings. While I know that my noble friend mentioned the suggestion of the media being appointed a special advocate in order to be able to intervene in proceedings, it is important to recognise that the media is not in and of itself an institution with a formal responsibility to represent the public interest. The media have several functions, whether to report or to investigate. Certainly in open proceedings, they are there representing the public alongside the public who are already there. To give them access to something that is closed because the nature of the discussion and the evidence at issue could, if brought into the open, damage national security, would seem an anomaly. It would also be difficult to make possible in practice.
Lord Lester of Herne Hill
I fully accept that Article 10(2) has exceptions and that the Bill falls within those exceptions. The problem is one of a lack of legal certainty. As my noble friend has indicated, the restrictions must be prescribed by law, and legal certainty therefore requires some accessibility. When courts think of making injunctions that affect freedom of speech, such as Spycatcher-type injunctions, they give notice to the press so that it can come along and explain why it thinks that the procedure or injunction is inappropriate. I perfectly understand, as the noble Lord, Lord Beecham, said, that there is an objection to the press being present throughout the proceedings, but I have not so far heard any reason why the press cannot at least be informed. The press could come along on a Section 6 application and explain why it thinks that the procedure is appropriate when wrongdoing has been alleged. I do not understand, either, why there should be no mechanism to ensure that judgments that are secret should be published when they have lost their secrecy. Those are the kinds of issues that arise under Article 10.
Baroness Stowell of Beeston
I shall come on to the issue of redacted judgments in a moment. As to whether the press should be notified at the point of application for a CMP, it may well be informed, but it will not be informed if the issue is related to national security. That is the clear distinction between this kind of case and a PII case because, if the Secretary of State is making an application under CMP, she is doing so because she considers national security to be at risk.
The important points of principle for certainty are generally dealt with on the face of the open judgment. When that is published, the certainty that the noble Lord looks for will be provided. Sensitive details of the case may not be released but this does not mean all details will be placed in closed judgments. Judges are well accustomed to considering what material is published in a final judgment. At the moment the media and the public do not get this information. Instead, they are left with accusations that have not been investigated.
Lord Falconer of Thoroton
From what the Minister said, I am not clear whether it is envisaged that the fact of an application being made for a closed material proceeding should be kept secret. I had not understood that that was the purpose of the Bill or that any rules of court could be made to make the fact of the application secret. What is the Government’s intention towards that process? Is it intended that there will be certain circumstances when even the fact of an application under Section 6 is to be kept secret?
Baroness Stowell of Beeston
As I understand it, in some instances the fact of the application will not be made public because that is also what happens now under PII. If the knowledge that the application has been made could give rise to concern about national security, it would not be made public, but that does not mean that all applications would be kept secret. If necessary, I will come back to clarify that point for the noble and learned Lord.
On the points covered in proposed new paragraphs (d) and (e), to which all noble Lords have referred, about closed judgments and the point at which they may no longer be considered classified or secret and could be made public, I refer noble Lords to the extended debate in Committee last week when my noble and learned friend made the following point:
“The Lord Chancellor's code of practice on the management of records, issued under Section 46 of the Freedom of Information Act 2000, provides guidance on the management of records held by bodies subject to the Public Records Act 1958. Authorities are required to identify records worthy of permanent preservation and transfer them to the National Archives”.—[Official Report, 17/7/12; col. 209.]
However, we are considering this matter and will continue to do so between now and Report.
My noble friend Lady Berridge referred again to the database of closed judgments. I responded to her last week, I believe, that that issue is now in hand because of the useful contributions from the JCHR on this matter. She went on to ask whether it could go beyond the head notes to form cases. I do not have an answer for her at the moment but I will, of course, come back to her. As to the very specific points raised about the same issue by the noble Lord, Lord Pannick, I believe that I have already covered those in the remarks that I have just made.
In conclusion, we are discussing points of fundamental importance concerning freedom of the press and public trust in the justice system. I will come back to the noble and learned Lord on his point, but I hope that I have been able to demonstrate that the Bill will help to enhance transparency and public trust rather than undermine them, and in doing so we will reinforce the principles of open justice while protecting the UK’s national security.
I noticed the noble and learned Lord looking at me rather sceptically then. Before I sit down, I think that it is worth repeating that during this process only some material will be considered in closed proceedings. The material that will be in open proceedings will be accessible to the media, and there will be more than there is at this time. The arrangements being considered will ensure that the media will have access to the cases in a way that is consistent with their responsibility to report and to hold the Government to account, but, as I said at the start, they do not have a formal role in that process. Primarily what we are looking for in this Bill is that we are allowed to ensure that justice is done where it has not been seen to be done previously. That is an essential part of what we are trying to achieve. I hope that my noble friend feels able to withdraw her amendment.
Lord Lester of Herne Hill
The Minister has referred twice to the vital principle that justice must be done, but on neither occasion has she added the usual part of that, which is that justice must be done and must manifestly be seen to be done. Between now and Report, could the Government reflect on the implications of having a procedure where even the fact of an application for closed proceedings under Clause 6 would be secret? I know of only one precedent for that kind of thing in this country. It was Defence Regulation 18B during the Second World War, which led to the infamous decision in Liversidge v Anderson. I cannot believe that such a conclusion is what the Government really intend.
Baroness Stowell of Beeston
I always listen carefully to the points that my noble friend makes. This is about ensuring that justice is done, and of course justice should be seen to be done. It has been said many times before in debates on this Bill that this is not the optimum system, and it is not the one that we would want to follow. However, if the Government are to be able to defend themselves against allegations and indeed if somebody is to have the opportunity to make a claim against the Government and see that claim through, we think that this system will deliver that. We are bringing forward this Bill because ultimately that is what we want to achieve.
Baroness Berridge
My Lords, I am grateful to the noble Lords, Lord Pannick and Lord Lester, for their contributions on this amendment. I am also grateful, in part, for the contribution of the noble Lord, Lord Beecham. I hope that he can be persuaded of the need to inform the media, and not only for the reasons outlined by the noble Lord, Lord Pannick. In my view, in reality these cases are going to be twin-tracked. Either legal proceedings will be preceded by allegations in the media or allegations will be made at the same time as those proceedings. That is the nature of these cases. Unfortunately, they often involve allegations of rendition and so on. Therefore, it is very important to think through thoroughly the implications of not notifying the press when those allegations will be rolling at the same time in our national newspapers, on Twitter and in blogs. It is important to understand the implications of not informing the press of the application for a closed material procedure.
I am not surprised to hear from the noble Lord, Lord Beecham, of the practical difficulties of notifying the media in these circumstances. There is also some weight in the comments of my noble friend Lady Stowell in relation to the anomaly of having a special advocate representing a public interest and seeing information to which the public does not have access. However, I think it is accepted that this system is anomalous and that there are going to be practical difficulties in ensuring open justice. When you have an anomalous system, it is not surprising if you breed slightly more anomalies in trying to achieve the best result you can in the circumstances. It is important to remember that, if it is told, the press will be there representing the public administration of justice. That is a serious matter that counterweighs the anomaly or the practical difficulties. As I have outlined, there has been a tradition of the press intervening and representing the issues in certain cases.
Before closing, I wish to refer to two matters that were mentioned. My noble friend Lady Stowell talked about the public preferring evidence to be taken into account so that the Government can defend themselves, and she also mentioned the money that is paid out if they cannot do so. A lot of confidence is placed in the public’s view of this system. I do not like to rely on opinion polls because I think that the answers depend on how the questions are phrased. However, what evidence are the Government relying on? There is a high degree of public mistrust. As soon as you mention secret trials, you get a very adverse reaction, particularly when dealing with actions against the Government in these circumstances. I should be grateful for some clarification of the basis on which the Government are sure that the public are behind the introduction of this system.
Finally, my noble friend outlined something that has been an issue throughout a lot of the debate on these amendments. She mentioned only some material being closed. At the same time, a big thrust of the Government’s argument has been that these cases are saturated by intelligence material. Therefore, we need some explanation here. It may be that only some material will be closed but we are also talking about cases that are saturated by intelligence material and where most of the proceedings will be closed and therefore the secret judgment will perhaps be a blank. I hope that the Minister can provide further clarification. I beg leave to withdraw the amendment.
Lord Beecham
Lord Beecham
My Lords, this amendment and the other amendments in the group relate to what are extraordinarily wide powers that Clause 11(2) and subsequent subsections would confer on the Secretary of State to amend, for the purposes of the legislation, the definition of “relevant civil proceedings”. The Delegated Powers Committee looked in some detail at these matters and I rely heavily on its observations. It raised significant concerns and made it clear that, while, of course, the procedures are confined to civil proceedings, the effect of the Bill is to permit any such civil proceedings to be ones in which the procedures can be invoked.
Subsections (2) to (4) of Clause 11 confer a very wide power on the Secretary of State to amend the definition and to amend the definition by affirmative order. In so doing, courts or tribunals can be added or removed and rules can be prescribed. The committee stated that:
“The powers are undoubtedly wide”.
They might, indeed, in the view of the committee, be exercised so as to specify a coroner’s court. Of course your Lordships will recall that the question of inquests has been mentioned more than once. The Lord Chancellor has indicated that procedures would not apply to inquests but, on the face of it, that decision could be changed under the provisions of Clause 11(2), by order, to be approved, as I have indicated, by affirmative resolution. In addition to that, there is the possibility of some urgency being required in the mind of the Government and that is also a question which the committee addressed. There is the possibility of a made affirmative procedure being invoked under which a change could be instituted by, effectively, tabling an amendment. Although, ultimately, that would have to be approved, it would take effect immediately.
The committee, while acknowledging the Government’s concerns about urgency, pointed out that if a situation arose in which it was felt that an application needed to be made in proceedings before a court or tribunal which was not initially specified and for which, therefore, an order would have to be brought forward, the Government,
“does not explain why it is thought that an order which attracts the draft affirmative procedure should offer any speedier means of meeting that perceived need for amending legislation than, for instance, a short Bill fast-tracked through both Houses”.
It said, and I think that there is considerable force in the argument, that that approach,
“would at least ensure that control over further extensions of the ‘closed material procedure’ would remain with Parliament, rather than with the Government”.
Nevertheless, it took the view that the House should consider,
“the scope of the powers conferred so that it may appreciate the unconstrained nature and extent of the provision that might be made under them by this or any future government. The House may wish to consider whether the Bill should be amended to restrict that scope or to include any such safeguards as the House might regard as necessary for ensuring Convention rights are observed and for protecting the interests of open justice”.
The Constitution Committee thought that the made affirmative procedure might be more appropriate, but the Delegated Powers Committee felt that that would perhaps be the least likely way to meet the need for urgency.
The provisions here are extensive. The procedure that the Government propose to adopt does not really allow sufficient parliamentary scrutiny and leaves the decision, as the Delegated Powers Committee made clear, in the hands of the Government when there is an alternative if a situation of urgency arises. Your Lordships might think that this is much too broad a power to be left in the way that this clause and its subsections provide and I sense that the other amendments in this group reflect that view. I hope that the Government will reconsider and go back, before Report, to the recommendations of the Delegated Powers Committee and seek to amend this provision as it currently stands to one that is more acceptable and more consonant with the procedures of parliamentary scrutiny of what might be significant changes to the scope of the Bill. I beg to move.
Lord Hodgson of Astley Abbotts
My Lords, I have tabled Amendment 70 in this group. The noble Lord, Lord Beecham, has covered the points and I do not wish to weary the Committee with repetition. Amendment 70 would remove subsections (3) and (4), as well as subsection (2), and is therefore more brutal in its application. One of the briefings I received on this part of the Bill said that this was a potentially,
“unwarranted extension of an unsatisfactory procedure”.
I therefore support what the noble Lord was saying about the dangers of mission creep, which we have discussed before. As we keep hearing it stressed that this is going to be a very rare procedure, it seems strange that we should allow courts to be added in what is essentially a pretty cavalier manner. I am all for statutory instruments and their positive nature, but they are unamendable and inherently too weak to tackle something that is as dangerous and difficult as this area that we have been discussing these past few days.
Subsection (4)(a) refers to “explaining the meaning” of “rules of court”. Do they really need to be explained? Are we not, as the noble and learned Lord, Lord Woolf, has explained to us, able to rely on judicial discretion and ability to interpret? I am concerned that explaining the meaning of the rules of court carries with it, in some more sinister way, an instruction as to what they mean and what judges should do. Similar wording in subsection (4)(b),
“enabling provision of a particular description to be made by such rules of court”,
seems to me, as a non-lawyer, to carry with it a degree of direction and fixed purpose that does not fit well with the sensitivity of the nexus that we have been discussing between civil liberties and the need to protect national security.
Baroness Turner of Camden
My Lords, I am not a lawyer but I am a former trade union official and tend to look at the proposed legislation before us from the standpoint of people who are working in industry and are members of unions. I am most concerned about the possible impact of this law on employment legislation.
We know that the Government are currently considering employment law and have been considering employment tribunals now for a very long time. Every time I have asked about employment tribunals I have been told that they are under consideration and that the Government are looking at them, and so on and so forth. Every time that employment tribunals, or tribunals of any kind, make an appearance in legislation, I ask what the Government are up to and what it means. Can we be told whether there is an impact on employment in subsections (2) and (4)? It is these two subsections, referred to in Amendment 70, that first attracted my attention. Can we be told precisely what these subsections are intended to involve regarding reference to tribunals, with all that that could mean for employment law?
Lord Soley
My Lords, I intervene as a member of the Delegated Powers and Regulatory Reform Select Committee, to which my noble friend Lord Beecham has already referred and which has been referred to on the other side of the Chamber. I do not speak for the Committee, but I can say quite clearly that we spent some considerable time on this and were very concerned about it. We all know the powers as Henry VIII powers. Whenever we have these, we look at them carefully and with considerable concern about the power of Parliament being sidelined in relation to the power of the Government.
The context of all this is my own involvement in many of these issues, going right back to the 1970s and 1980s when I first started working with some of the legislation dealing with the emergencies in Northern Ireland and with other prevention of terrorism Acts. The tendency in all these things is for the Government to require the extra powers, for reasons which we all understand and are very sympathetic to, because on one side of the equation is the need to deal with the difficult situations but to do so by exercising the proper rule of law, and on the other is the right of Parliament to oversee what the Government have done.
I have made this point before but I make it again simply to reinforce the context of this. If we look at the history of these sorts of Acts, we see that they have a long involvement in the Government taking additional powers, very often in difficult situations, and then extending those powers into other areas. I have referred in the past to the Official Secrets Act 1911. Not long after that Act, MI5 and MI6 were created. However, neither MI5 nor MI6 had a legal existence until the 1980s; we literally did not put them into law. If we look at the prevention of terrorism Acts in the 1970s and 1980s, we see that we often legislated for drastic situations in which we needed to protect the public but did so in a way in which Parliament was increasingly marginalised. I had a great objection to one of the prevention of terrorism Acts, which had in effect a more than Henry VIII power whereby the Home Secretary alone could exclude a person from one part of the United Kingdom to another part without reference to Parliament.
What did the Delegated Powers and Regulatory Reform Committee focus on here? It was on this very issue of the power that the Government are taking. I refer here not so much to the report which my noble friend Lord Beecham has dealt with very well, but to the notes provided to the Delegated Powers Committee: the Home Office and Ministry of Justice memorandum. This is not new material.
Paragraph 47 of the memorandum says:
“It is appropriate to make provision in the Bill for this power”—
that is, the power to define the relevant civil proceedings in a court, excluding the criminal courts of course—
“because it is possible that a case not within the scope of the current definition of ‘relevant civil proceedings’ will arise, such that a CMP is needed for the just consideration of the case to be heard before a different court or tribunal”—
a point that we are all aware of—
“whilst at the same time there is a need to protect national security sensitive evidence from disclosure”.
Again, that is something we are all very aware of. It continues:
“Furthermore, if this happens, the need to provide for the possibility of a CMP in such proceedings will be pressing in terms of time”.
The last sentence says:
“For these two reasons it is considered appropriate to provide for this power, since the changes can be made more quickly than amending primary legislation”.
The concern of the Delegated Powers Committee in this respect was what form of parliamentary control could be had over this sort of extension. This is the sort of creeping power that I have described and which any Government, not just this one, could in the future extend to other courts. The exception in the Bill itself is of course criminal courts. The Delegated Powers Committee took the view that there was no reason why this should not extend to coroners’ courts, even though the Government have, as I understand it, expressed the view that it should not in fact do so. However, there is nothing in the Bill to say that it does not. My worry would be that, given that there is a whole range of issues—including the point just made by my noble friend about trade unions, although this might be less likely in the nature of the information required—this would extend to tribunals as well. It could be extended across the board to many other areas of the law, which would be damaging and dangerous.
In the Delegated Powers Committee report we asked why, if there was urgency of time, we were looking at an affirmative procedure. An affirmative procedure is not fast; nor, incidentally, is the super-affirmative procedure referred to in the constitutional law report by the Constitution Committee, which suggested a super-affirmative procedure to deal with this. That is not a fast procedure either. If we need a rapid response—and I for one accept that a rapid change will be needed at times to deal with a case—one begins to look for a different way of addressing these urgent and difficult situations.
I have often felt, particularly as a member of the Delegated Powers Committee, that we do not really have the best system available to look at delegated powers. We almost need additional ways of doing this, and perhaps there will be a discussion on that when we come to another report issued by the Delegated Powers Committee on another occasion. I would simply say that, in the current situation, a Bill put through both Houses as a fast reaction to this would be a better way of dealing with it, not least because a Bill that is put before both Houses in the expedited system that we are quite used to when dealing with terrorist situations can also have a sunset clause in it. In other words, the action given to the Government and approved by Parliament to allow the Government to take this additional power could have a finite lifespan.
If we suddenly felt that we needed this power for a coroner’s court hearing, for example, there is no reason why a Bill could not be moved through this House quite rapidly and have a sunset clause in it so that it would expire after a certain period of time. We have done that before; we did it with the prevention of terrorism Act in the 1980s, so it is perfectly possible to do this. My concern, and that of most other members of the Delegated Powers Committee, was that this is a very real Henry VIII power that gives the Government great powers which Parliament is not given sufficient control over. That is the history of this sort of legislation. Parliament always needs to be alert to its duty—and it is a duty—to protect the citizens of a country from a Government having excessive powers.
In following up my noble friend’s comments on all this, I would certainly ask the Government for an explanation of why an expedited Bill through both Houses would not be a better option than an affirmative order, whether a super-affirmative order or a conventional affirmative order; or, indeed, whether the Government agree that there is considerable danger in any Government, with the best will in the world, faced with serious problems of the type that we have these days, being content to allow for a situation that is not only not fast—because the affirmative procedure is not fast—but that extends considerable power to the Government, which in most circumstances we would not accept.
Lord Marks of Henley-on-Thames
My Lords, I will speak to Amendments 70A and 70B in my name and the names of my noble friends Lady Williams of Crosby and Lord Thomas of Gresford. I speak as a member—a very new member—of the Delegated Powers and Regulatory Reform Committee.
Our amendments are in narrower terms than the amendments tabled by the noble Lord, Lord Beecham, the noble Baroness, Lady Smith, and those of the noble Lords, Lord Hodgson and Lord Dubs. Amendment 70A is prompted by the concern mentioned by the noble Lords, Lord Beecham and Lord Soley. Clause 11(2) and (3) gives the Secretary of State the power to add courts and tribunals to the very restricted list of courts that may hold closed material proceedings. That list comprises the High Court, the Court of Appeal and the Court of Session. That plainly involves the power to add coroners’ courts.
It is in that respect that the Joint Committee on Human Rights took the view that there was no case for inquests to be made the subject of closed material procedures. Not only did the committee reject the argument that coroners were liable to be disabled from conducting full investigations by the exclusion of sensitive material, but it pointed out, rightly in my view, that the use of CMPs in inquests would probably be a breach of Article 2 of the European Convention on Human Rights. That right to life article carries with it a procedural requirement for states to investigate suspicious deaths. On the basis of cases both here and in the European Court of Human Rights, such investigation has to be open and enable the families of the deceased to be involved in the proceedings. Compliance with those requirements would not be possible in any meaningful way where an inquest was held with a CMP.
The Government’s response to the JCHR report was to concede that there would be no inquests held under the closed material procedure. In his foreword to the Government’s response, my right honourable friend Ken Clarke, the Justice Secretary, went further and said that CMPs,
“will only be extended to civil cases in the Court of Appeal and High Court, and the equivalent courts in Scotland and Northern Ireland”.
That is in accordance with the Bill as drafted. That extra concession to exclude the lower courts was rightly made. It is important that this extremely sensitive procedure, where it has to occur, should be managed at the highest level. I suggest that both concessions should be made binding and should not be capable of being removed in effect by executive action.
Even if one could envisage the extension of CMPs to other proceedings, there is no reason, as the noble Lord, Lord Soley, pointed out, why that should not be achieved by further primary legislation. I disagree slightly with the noble Lord in that I would suggest that there is no case based on urgency. It is inherent in the nature of inquests that there is no extreme urgency. Indeed, we have all seen that inquests are frequently adjourned for very long periods to allow other proceedings or investigations to take their course. In the case of other civil proceedings, if CMPs are warranted they can be instituted in the High Court, where a CMP application can be made. As the noble Lord, Lord Beecham, pointed out, the Delegated Powers and Regulatory Reform Committee drew our attention to the scope of the powers conferred so that we in this Committee could appreciate the unconstrained nature and extent of the provision that might be made under them by this or a future Government. I suggest that the committee was right to do so.
Amendment 70B would remove from Clause 11(3)(b) the Henry VIII provision in relation to the power to change the definition of “relevant civil proceedings”. There would be no power for the Secretary of State to amend, repeal or otherwise modify any enactment, leaving the Secretary of State with a power to make only minor provisions, such as those that might be necessary to take into account the passage of other legislation. Taken together with Amendment 70A, this amendment would draw the sting from Clause 11(2) and (3) as it stands. I commend the amendments to the Committee.
Baroness Williams of Crosby
My Lords, I want to add only a short comment to the remarks made by my noble friend. I can think of nothing that would do more to undermine public confidence in the judicial system than an attempt to try to include coroners’ courts. I will be assured that there has been a promise from the Lord Chancellor that this will not happen, but I cannot understand why the Bill still clearly indicates that there could be a power to include such a court. The Bill says that in exact terms. The idea of excluding the CMP in an inquest would so outrage large sections of the public, especially on publicly very sensitive cases, that I can think of little that would do more to undermine confidence.
I also strongly agree with the general thrust of the remarks made by the noble Lord, Lord Soley. He rightly understands that there is a tendency to have what one might call “executive mission creep”. The temptation to extend powers if there is nothing to limit them more strictly in the Bill is a very powerful temptation indeed. The noble Lord is quite right to say that the procedure laid down here is relatively slow. It is also, to be frank, if I may, relatively inefficient because it depends to a great extent on the interest that is shown in the House of Commons in the procedures that are put before it. Sadly, the story of affirmative procedures is often rather of neglect of the issues and substance put before the House.
The noble Lord is absolutely right to argue that primary legislation would be a more appropriate way to safeguard citizens’ freedoms than to rely on this cumbersome procedure. I strongly hope that the Government will reconsider this very wide-ranging legislation, with very few limits on it. I wonder whether it would be possible perhaps to redraft the legislation in narrower terms and to have more effective accountability. Many of us in the Committee would feel rather more confident about the ability of the legislation to win public support and public confidence.
Lord Pannick
My Lords, I share the concerns that have led to these amendments. The views of the Committee and the other place on whether the Bill contains an adequate balance between justice and security will depend on the scope of the Bill and on the scope of the concept of relevant civil proceedings. The wider the scope of the Bill, the less willing Parliament will inevitably be to approve Part 2; and the wider the scope the more willing Parliament must be to include amendments that provide safeguards in respect of the closed procedures.
Given that we are debating this Bill on the basis of the current scope that it contains, it seems fundamentally wrong in principle to give the Secretary of State a power thereafter to expand the Bill’s scope in a manner that when that proposal comes before Parliament will prevent us proposing any amendments that would introduce necessary safeguards that Parliament might think are required in the light of the expanded scope of the Bill.
With the Committee’s permission, I shall return—I have checked the facts—to a matter raised by the noble Baroness, Lady Stowell, in her response to the previous group of amendments. She told the Committee, as I understood her, and as the noble and learned Lord, Lord Falconer of Thoroton, understood her, that the Government may envisage that an application for a closed material procedure may be made in secret, without notification to anyone. My understanding, which I have confirmed, is that under the old control order procedure and the existing TPIM procedure, the application for a closed hearing is always made in public. Indeed, it has to be made publicly because the whole point of the special advocate procedure is that the special advocate before the closed procedure starts can talk to the litigants concerned and obtain information from them.
Furthermore, once a judgment is given, there is always an open judgment, which always refers to the closed judgment—if there is a closed judgment—without of course disclosing the confidential material that is in the closed judgment.
Like the noble and learned Lord, Lord Falconer of Thoroton, I would be very grateful if there could be clarification as soon as possible as to whether it is really the Government’s intention, in relation to the closed material procedure, that applications could be made in secret, entirely differently from how the control order and TPIM regime works.
Lord Lester of Herne Hill
My Lords, I have a couple of extra concerns to add to what has already been said. The first is political. As I understand it, this Bill has been introduced on the express understanding of both parts of the coalition that coroners’ inquests would be excluded. I see my noble and learned friend nodding in agreement to that. However, the power that is included here would enable a future Secretary of State to take that away, either during the coalition Government or when the coalition ends. That would be a breach of faith, and we should not now be legislating in a way that makes that possible. It seems to me to be a condition of this Bill that under no circumstances is it to apply to coroners’ inquests, for all the reasons that the Joint Committee and everyone else put forward.
My second problem is that these are civil proceedings, as we are constantly being reminded, so they affect the civil rights and obligations of the parties to those proceedings. When we were enacting the Equality Bills, the question frequently arose as to whether it would be fair and reasonable for a Government to take a power to amend the exceptions to that legislation, which is civil, in order to affect the rights and freedoms of the individual. In introducing both the Equality Act 2006 and 2010, the previous Government took powers to amend, but only by means of removing exceptions, not by anything that would affect the fundamental balance of civil proceedings.
What troubles me is that if this Bill goes through without adequate safeguards of the kind we are pressing for, the use of the powers conferred to amend—to add tribunals by delegated legislation—will not be able to add further safeguards; the question will only be whether a new, further tribunal may be added. That will fundamentally affect, anyhow, the rights and liabilities of the parties to that tribunal.
To take the example in the employment field referred to by the noble Baroness, Lady Turner, one can add a whole new set of restrictions that would apply, for example, to civil litigation in the employment field. That is not something that any previous Government would have contemplated. These powers are not simply Henry VIII in analogy, but maybe a later generation of kings under the Stuarts.
Lord Butler of Brockwell
My Lords, it is clear from this debate that two types of issue arise with this group of amendments. One is the issue of whether this is an appropriate use of delegated powers. The other could be described as an issue of policy: whether it is right for the Government to keep open the possibility of adding other types of proceedings, particularly inquests, to those to which the procedures in this Bill are available.
On the first matter of whether this is an appropriate use of delegated powers, as the noble Lords, Lord Soley and Lord Marks, said, we had a long and agonised debate on this in the Delegated Powers Committee. I do not need to add to what the noble Lords said; they summarised the case very well. The reluctance of the Delegated Powers Committee is evident from the words of the conclusion that it reached, where it said that,
“we are reluctant—albeit with considerable misgivings—to recommend in terms that the delegation of powers in clause 11 is inappropriate”.
In other words, the committee was not prepared to go as far as to say that this use of delegated powers was inappropriate, but it thought that this should be a matter for the opinion of the House, and it thought also that the House should consider whether some constraints and limitations should be put on that. I hope that is a matter that the Government will consider.
On the question of policy, as to whether it is right to retain a power to extend the range of proceedings to which the powers in the Bill would be appropriate, I deal directly with the sensitive issue of inquests and coroners’ courts, because that is where the shoe would be most inclined to rub. The noble Lord, Lord Lester, suggested that the Government have declared a policy of excluding inquests because this was the agreement on both sides of the coalition. My impression, I must say, is that this conclusion was reached with greater enthusiasm by one party to the coalition than the other. Indeed, I have heard on one or two occasions the Secretary of State for Justice being asked why this conclusion was reached and he has not been able to give a very convincing answer, other than that this was the way it came out in discussion.
It is difficult to see why the logic that the Government have applied for closed proceedings in other cases should not be available in inquests. The logic is rather similar. It is not often that I disagree with the noble Baroness, Lady Williams of Crosby, and I entirely see her point that it would be very distressing for the public if the proceedings in an inquest could not be entirely in the open. However, again the question arises: is it more disturbing to the public that some proceedings should not be open, or that there is some material relevant to the conclusion of the inquest that is not brought to bear at all? This is the issue that arises with the rest of the Bill. It is quite difficult to see why the Government have reached this conclusion in one case and an opposite conclusion in the other.
Lord Lester of Herne Hill
My Lords, the noble Lord, Lord Butler of Brockwell, has great experience of ordinary majority Governments but none at all of coalition Governments. Will he accept that we are now in a different world from that which he ever experienced, and that when you have coalition Government, and the two parties to the coalition reach an agreement, if the coalition is to survive and prosper, that agreement must be followed, however difficult for one party or the other?
Lord Butler of Brockwell
My Lords, I am not denying for a moment that this is a conclusion of the coalition. It clearly is. I am just asking whether it is a very logical conclusion.
This is a serious point. There are, I believe, 30 inquests waiting to happen in Northern Ireland, which still have to be undertaken. It is difficult to foresee all the circumstances that might arise. We have got to allow for the possibility that there might be proceedings—inquests, but also perhaps other proceedings—where we would wish, the Government would wish, and perhaps the public would wish, that it would be better that secret information was taken into account than it was not taken into account at all.
For that reason, and with the same reluctance that the Delegated Powers Committee had, I come down, on balance, on keeping these provisions in the Bill. The Government have said they not going to use them, but I think it would be wise to keep the provisions in the Bill, in case circumstances arise in which we would regret their absence.
Lord Beecham
Would the noble Lord then turn his mind to the question of the procedure to be adopted in those cases, because that is what the amendments seek to do? Does he accept that it would be better to have a Bill taken quickly through the House than to have the affirmative procedure that would otherwise be the case, with all its limitations, to which noble Lords have referred?
Lord Butler of Brockwell
My Lords, that is a very reasonable point and I address it with diffidence. It is obviously a bigger and more difficult undertaking to launch rapidly an emergency Bill than to have an order. If the case were good enough, it would be better to have a procedure that could be undertaken rapidly than to have the need for urgent legislation. But I do not take a very strong stance on that matter.
Baroness Berridge
My Lords, I, too, am grateful for the clarification from the Minister in relation to the exclusion of inquests for this particular reason: I understand that, outside of Northern Ireland, there are currently only two inquests outstanding in England and Wales—the case of Azelle Rodney and that of Mark Duggan from last summer. I am certain that, in the first case, the proposal is to use the Tribunals and Inquiries Act to conduct that inquest, and I believe that that is also to be the suggestion in the Mark Duggan case. The reasoning behind that is, I believe, that intercept evidence is to be considered.
One can see that it is a small step in the argument to say, “We are using the Tribunals and Inquiries Act and intercept evidence so why not, because we can under this Bill as it stands, use intercept evidence in a closed material procedure?”. It is a small step of reasoning to move into closed material procedures in inquests.
In relation to the issue of procedure and having legislation that goes quickly through the House, one can understand the concerns that exist at the moment in relation to the Mark Duggan situation. In those instances, Parliament should reconsider the matter. We would need to consider all the impacts on public confidence and the outworkings of using a secret procedure in such a high-profile case and an inquest of that significance.
Lord Reid of Cardowan
My Lords, I first apologise that I missed the first few speeches because I was unavoidably detained, but I have listened to quite a few of the speeches over the period and I have tried to read as much as possible of these debates when I have missed them. I have been impressed by the commentary on legal matters, matters of process and by the justice side of what the noble Lord, Lord Pannick, referred to earlier—the balance of justice and security—but I am afraid that I have searched in vain for anyone outside of the Front Bench doing anything in detail to analyse the security context. In other words, we cannot possibly judge whether these are appropriate measures in general unless we judge them in the circumstances of today. As the noble Lord just said, the situation with a coalition Government means that we are living in different times from previously, but the situation of living with the threat that we have today means that we are also living in different times from previously.
I have read with great interest the legal commentaries. I have found them outstanding in their quality and certainly outstanding in their quantity. I always defer to noble Lords with expertise in the human rights area and in the legal area on matters of law and advice on human rights, but I hope that noble Lords will forgive me if I do not defer on deciding on matters of security. I would have been horrified when I was Home Secretary had it been suggested to me that the overall strategic position on security and defence, for which the noble Lord, Lord King, and I had responsibility, was better served by having a lawyer decide rather than an accountable politician. Therefore, although this may be a minority speech, it is one worth bearing in mind for those who are speaking to these amendments today, not least on closed material procedures but not exclusively on them.
My starting point is to ask why these proposals are coming forward in the form that they are today. I am not a lawyer. I am a historian and therefore the two important questions to me are “Why is something happening?” and “Why is it happening when it is happening?”. Of course, there can be motivations ascribed. I have heard it said that this is merely mission creep. I have heard that it is the malevolence of the intelligence services: it is their guilt and wish to cover up future proceedings. But there may be a simpler answer: that circumstances have changed, and in particular that the nature of the threat has changed.
I say that on an evening when, unpopular as it may be to certain elements of the press, the chemical weapons and weapons of mass destruction debate seems to have been put back on our front pages. It is now widely recognised that they are sitting just across from Iraq. People are naturally very worried about what would happen if they fell into the hands of some of the terrorist groups at present operating in Syria. That is an example of the nature of the modern threat.
Noble Lords will know that there are two essential elements of threat: intention and capability. After 9/11, there can be no doubt that there are people in the world who have an unconstrained intent to commit unconstrained mass murder, including in this country. Whereas 60 years ago there were states with that intention, they lacked the capability. The scientific and technological basis on which they might operate their intent was limited to CO2 from the fumes of cars or vans or to Zyklon B canisters. That is not the case today. Chemical, biological and radiological weapons are also capable of extending unconstrained massacre of human beings. That is what has been in the minds of those charged with the security of the country since 9/11—unconstrained intent and unconstrained capability.
The second feature of that, which brings me to the amendments today and the Bill before us, is that there is now a seamless threat. This is not a threat in one country. It is not a threat that appears only in two countries. I did not deal with one threat that was in fewer than two or three countries, and in one it involved people in 29 different countries. If you have a seamless threat, you have to have a seamless response.
We are no longer, if we ever were, an island fortress, not just with cyber but with some of the potential threats that face the citizens of this country, whom the Front Bench are charged with protecting. If we are to have a seamless response, above all it requires absolute trust between those agencies and those Governments who are working together. That trust and dependence are now far greater than 30 or 40 years ago. Therefore, the breach of that trust, inadvertently or otherwise, through institutions or processes, legal or other operations, becomes a huge hole in the creation of a holistic security policy.
I am not suggesting today that any of the ideas that have been put forward or the amendments are necessarily wrong, and I am certainly not suggesting that they are badly motivated. They are not malevolent; they spring from a natural inclination to oversee government, particularly when government exercise powers that are abnormal. Sometimes, they will be based on first principles and sometimes you will ask where the logic to this is, as the noble Lord, Lord Butler, asked earlier. To that particular question I will tell him that there is no logic. It is a political decision taken for political reasons. It is the result of political discussions. It has been decided to concede in order to gain what is left. I do not expect the Minister to say that, but it is obvious to all of us.
At the end of the day, political decisions have to be made. All I want to do today is put in the minds of everyone who speaks, from every background, the experience in making decisions such as this of those of us who have had the privilege—and burden, in some ways—of being charged with the security of the country. It is not because we are Cromwellian in character; it is not because we have a blind spot for mission creep; it is not because Ministers on the Front Bench will not question the agencies—it is quite proper that they do so. It is because the first premise on which they should base the balance of justice and security is an understanding of the security element, as well as the details of the justice element and the justice process.
Lord Soley
My Lords, I think my noble friend misunderstands a key point of what we are saying. I agree almost absolutely with everything that he has said—and, indeed, we have discussed this on many occasions before. However, I want to bring the purpose here to his attention. The government document from the Ministry of Justice said that these powers are wanted so that changes can be made more quickly than by amending primary legislation. I know that Parliament and parliamentary control is important to him. However, if he had been Home Secretary, what would he have decided if I had come to him and said, “Look, you need to change this legislation. Ask for an affirmative order, which will take a month or two; try to amend it, which will take a couple of months; or have a quick Bill going through both Houses”? If he would have decided the latter, he is on my side.
Lord Reid of Cardowan
The noble Lord knows that I always listened and, for the most part, conceded when he made representations on these matters. I have no problem with what he suggested earlier. I was careful not to attack or to try to criticise any particular amendment. The great omission is not the quality or substance of the amendments put forward, but the fact that we have been debating this in a vacuum.
The noble Lord, Lord Pannick, said that there has to be a balance between justice and security. I completely accept that. It is never an easy balance. There have been times in our history where the security situation has been such that we have had to take abnormal measures to constrain or expedite the justice element of that. I accept that it is much more difficult to perceive that today because we do not have a war. However, there is undoubtedly a conflict of sorts, which is a threat to the people of this country. What if—and I hope to God it is an “if”—something happens which could have been prevented by the exchange of intelligence of which we were not in receipt because we had not maintained trust? I do not just mean the trust of the United States but of all our allies. The great tragedy that was avoided in August 2006 involved intelligence sharing not just between the United States and ourselves but on a much wider basis. Two and a half thousand British citizens were at risk in that single event.
All I ask is that noble Lords and colleagues bear that in mind, so that we do not approach this purely from the position of legalism or legal principles. These principles are extremely important; certainly, do not abandon oversight. However, recognise that lying behind the proposals brought by the Government is a motivation which I at least—having been there and seen it with one or two other noble Lords who are here today—judge more benevolently than some of the critics of the Government.
Lord Pannick
Does the noble Lord accept that most of the amendments debated so far have been resisted by the Government not on the basis that they would undermine national security but rather, as I understand it, because they are unnecessary safeguards?
Lord Reid of Cardowan
The Government must speak for themselves. I am not a member of the coalition—though, with every passing day, it looks as though they may want others to join in place of those who leave. The Government must phrase their own reaction to the noble Lord’s position. I would much rather that we were transparent, out at the front and talked about it. I have just noticed other people here who are much better versed in matters of intelligence than I am. However, in listening to the speeches in here and reading those that I did not hear, I noticed a dearth, if not a complete absence, of one element of the balance we are trying to find—that is, a description of the security circumstances and an explanation of why these proposals might be brought forward at this time. I hope that the Government will perhaps do a little more of that, because we could all learn with a little education.
Lord Lester of Herne Hill
Does the noble Lord accept that there is no monopoly of knowledge about national security? I served a Home Secretary long before the noble Lord and we fashioned the first anti-terrorist legislation in 1974. Would he accept that one of the worst things we can do is to fashion legislation in this country that gives colour to the idea that British justice is second-rate or discriminatory in balancing national security and liberty?
Lord Reid of Cardowan
On the noble Lord’s first point, I not only accept that but I recognised in my opening remarks that people here other than me had discharged that responsibility. I agree entirely with his second point. At heart, the struggle—not the only struggle but the major one—is a battle of values. It is an ideological battle. Certainly, it displays itself in acts of terrorism, bombs or death but at heart it is a clash of values. Therefore, everything we do has to be seen in that context. There is a propaganda weapon for those who oppose the very essence of our values if we conduct our affairs so that there is an obvious contradiction between the values we espouse and what we do. However, that has to sit alongside the fact that, on some occasions, these values have to be defended as a whole. That has meant that we have had to take abnormal measures on occasions. The key thing is accepting that they are abnormal and extraordinary, rather than trying to pretend that somehow they are just run of the mill or justifying them on the existing system. The second thing is to make the argument about why they are necessary. If one fails to make this argument, one will end up in the position indicated by the noble Lord, where what one does appears to contradict what one says.
Lord Thomas of Gresford
The noble Lord has not been able to be with us in our deliberations. However, does he appreciate that, thus far in the Bill, the Government have not suggested that there is any risk to security at all? Does he appreciate that the purpose of the provisions discussed until now concerns the fairness of trials? Security arises in what we are about to debate very shortly. Up to this point, security has not featured because it is not an issue on the provisions we have discussed.
Lord Reid of Cardowan
I thank the noble Lord for that remark. Again, I am not on the Front Bench so I am not making their arguments for them. I am making my argument. As far as the security situation is concerned, whatever is said by the Front Bench, for more than half of the past 10 years we have been either at “severe”—the second highest level—or “critical”, which is not only a likely but an imminent threat of terrorist attack. This demonstrates the fact that we are discussing not a normal security situation but a very difficult one—not least as we approach the Olympics.
Lord Wallace of Tankerness
My Lords, I thank all noble Lords who have tabled these amendments and who have taken part in this debate. The noble Lord, Lord Reid of Cardowan, has given a context to these deliberations. I think that he would agree with us—and I mention here the intervention of my noble friend Lord Lester—that justice or security is not a binary choice. This is a justice and security Bill, not a justice or security Bill. As we deliberate and go through these provisions, it is important that we seek to uphold the national security, which is a responsibility above all on the Executive, and also ensure that the values of justice—which is a cornerstone of what we believe in and what makes us as a nation—are upheld.
The comments of the noble Lord, Lord Reid, may also have some pertinence as we move to the next stage of the Bill, which deals with the Norwich Pharmacal jurisdiction. He pointed to the importance of trust and the consequences of breach of trust.
As an introductory comment, perhaps I may say to the noble Lord, Lord Pannick, that my noble friend and I will write to him about the point he raised about the last set of amendments. I do not think it would be appropriate, when dealing with these amendments, to rerun the arguments put forward for the previous group. However, before Report stage, we will write to noble Lords who took part in that debate.
Understandable concerns have been raised. In many Bills I have taken part in, quite proper discussion takes place about the use of secondary legislation, its appropriateness, the circumstances under which it should be used, and its actual nature. If Amendments 69A or 70 were to be accepted, as my noble friend Lord Hodgson has said, it would remove the order-making power entirely. The question posed by the amendments is this: why do we need the order-making power at all?
Perhaps I may set out why the Government arrived at the approach we have taken in the Bill with regard to the definition of “relevant civil proceedings”. In the Green Paper, the Government consulted on making closed material proceedings an option for any civil proceedings in which sensitive material was relevant. However, the firm steer from the consultation exercise was that the scope of the Bill should be narrowly focused. That was a point made by my noble friend Lord Marks and in the comments of my right honourable friend the Lord Chancellor. After careful consideration of the consultation responses, the Bill provides that closed material proceedings can be used only for hearings in the High Court, the Court of Appeal and the Court of Session. It is in these courts that the difficult cases have arisen, so the Government have defined relevant civil proceedings narrowly in the Bill.
If that is the case, why do we need an order-making power to extend the definition? As was indicated by the noble Lord, Lord Soley, when he quoted from the memorandum that was submitted to the Delegated Powers and Regulatory Reform Committee, the point is that the case for extending CMPs to another civil context may emerge in the future. Where there is a case for change, it is important that there is a mechanism that will allow CMPs to be used swiftly in relevant proceedings. Naturally, we may be asked if we have any particular case in mind. I reassure your Lordships that if there was an obvious example of a difficult area, we would be making the case for its inclusion in the definition of relevant civil proceedings today. But it is possible that difficulties may arise in areas wholly unexpected or unanticipated, and it would then be important that CMPs were available as a matter of some urgency. Noble Lords may be aware that Parliament has already legislated 14 times to provide CMPs in different contexts, and therefore it is not inconceivable that some new context that we cannot foresee today will arise in the future in which they will be necessary.
Perhaps I may say in response to the noble Baroness, Lady Turner of Camden, who asked about employment tribunals, that legislation is already in place with regard to closed material proceedings in such tribunals. Indeed, it was the subject matter of the deliberations of the Supreme Court in the case of Tariq, the judgment of which was reported either last year or earlier this year. The current review of employment tribunals by the Department for Business, Innovation and Skills does not have anything to do with closed material proceedings.
The crucial thing about the power is that it is subject to the affirmative procedure, which means that the exercise of the power would have to be debated and approved in both Houses before being made. Before gaining that approval, the case for change would have to be made to each House on the basis of evidence that is sufficient to convince both Houses. I cannot for a moment imagine that it would be given a clear ride. That is a safeguard and it means that rather than standing here and trying to persuade your Lordships that a broader definition of relevant civil proceedings is needed for the sake of flexibility, the Government will have to put their case at the time of seeking approval of an order.
As has been said, the order-making power has been the subject of scrutiny by both the Delegated Powers and Regulatory Reform Committee, of which the noble Lord, Lord Soley, and my noble friend Lord Marks are members, and the Constitution Committee. The Government appreciate the careful consideration that both committees have given the power. I note that neither committee recommended the removal of the power, but it is fair to note, and as was pointed out by the noble Lord, Lord Soley, and quoted by the noble Lord, Lord Butler, that the Delegated Powers and Regulatory Reform Committee had reservations about the scope of the power. However, it concluded tentatively but nevertheless clearly that it would not recommend that the delegation of powers is inappropriate.
No doubt members of the committee will know better, and I will come on to address the issue of coroners’ courts shortly, but paragraph 6 of its report indicated that one of the concerns was extending the use of this power to those courts.
Lord Soley
The key point is that instead of doing it with a delegated power, we do it with a fast-tracked Bill. I hope that the Minister will deal with that because I would point out to him that the information given by both the Ministry of Justice’s own department and the Cabinet Office suggest that it is necessary that it be done quickly. However, that is not in the notes to this Bill. It is almost as though they have not thought about it.
Lord Wallace of Tankerness
I certainly will come on to that. Both the Constitution Committee and the Delegated Powers and Regulatory Reform Committee raised means of proceeding as alternatives to the power. The Constitution Committee asked whether the super-affirmative procedure was more appropriate, similar to that set out in Part 1 of the Legislative and Regulatory Reform Act 2006. In particular, that procedure would enable parliamentary representations to be made about a draft instrument and for the Minister to make changes to the instrument in the light of those representations. The Government indicated in their response to the committee that they do not agree with that approach. The powers in Part 1 of the 2006 Act are wide-ranging. Under the order-making power in the Bill, there will be at the heart a simple question: should the CMP procedure under the Bill, then the Act, be available for a particular court or tribunal? The affirmative procedure allows for a straightforward yes or no answer.
As the noble Lord, Lord Soley, has indicated, the Delegated Powers and Regulatory Reform Committee asked what would be the advantage of the affirmative procedure over a short emergency Bill. Another Bill to address a narrow problem may well be unnecessary given that the detail of how CMPs should work will have been discussed during the passage of this Bill. Although such legislation might be passed quickly if the circumstances required it—it is always possible to bring forward emergency legislation—the affirmative procedure may also be exercised in urgent circumstances. While it is not for me to say what the agenda of the Constitution Committee would be, it would not seem to be beyond the wit of appropriate parliamentary committees to consider an affirmative order if one were brought forward.
On the whole, the Government consider that the affirmative procedure has the right mix of speed and accountability. However, in situations like this where people have put forward important points following deliberation in the various committees as to what the balance should be, we should reflect on them. The Government believe that they have struck the right balance, but there has been an important elaboration in the course of your Lordships’ debate of the understanding of what lay behind the committee’s considerations.
Lord Goldsmith
Before the noble and learned Lord moves on, can he say something about why the Government do not see advantages in the super-affirmative procedure which, as he has indicated, would allow at least some adjustments to be made in the event that an additional set of civil proceedings were added to the list which might not be covered by the existing legislation?
Lord Wallace of Tankerness
I sought to indicate why we do not agree with the approach of the Constitution Committee. We think that the powers set out in Part 1 of the Legislative and Regulatory Reform Act 2006, which lead to the super-affirmative procedure suggested by the noble and learned Lord, are not appropriate. If the procedures are in place, it should be a straightforward yes or no decision as to whether a particular tribunal or civil proceeding is added.
I want to come on to a point made by my noble friend Lord Lester. He suggested that there would be no opportunity to do anything different in a Bill. The provisions in the other subsections allow for some powers,
“to make supplementary, incidental, consequential, transitional, transitory or saving provision”,
in an order. If there was a particular feature—I will suggest in a moment what some of those features might be—it could be taken into account within the terms of the order.
One of the other concerns that has been expressed in the debate relates to the possible extension of CMPs to inquests. Following consideration, and particularly taking into account the responses to the consultation on the Green Paper, the Government decided not to cover inquests in the Bill. Both the Constitution Committee and the Delegated Powers Committee discussed whether the order-making power could be used to include inquests at the coroner’s courts, the Delegated Powers Committee considering that the power could be used in this way.
The Government’s view is that the order-making power could not be used in this way. This is because we believe inquests are sui generis inquisitorial proceedings. While they are clearly not criminal, I believe they are inquisitorial rather than civil proceedings. Unlike civil proceedings with parties who may seek to settle or withdraw at any stage, an inquest must be concluded in order to establish the reason for the death. An inquest is a limited form of public inquiry to determine who the deceased was and when, where and how the deceased came by his or her death. There are no parties, only properly interested persons who are entitled to examine witnesses.
We believe there would be necessity for primary legislation if this was to be extended to inquests and by extension to fatal accident inquiries in Scotland.
Lord Marks of Henley-on-Thames
I am sorry to interrupt my noble and learned friend but I am just confused as to how the Government can argue that a power which may be exercised to add or remove a court or tribunal in non-criminal proceedings—which by his own admission these are—cannot be said to extend to a coroner’s court. It was that problem that exercised the Delegated Powers Committee and we saw no reason for the conclusion for which my noble and learned friend is arguing.
Lord Wallace of Tankerness
We shall have to agree to differ. Considerable thought has been given to this and we believe that it would not be possible to extend the power here. I am always wary of putting “for avoidance of doubt” clauses into Bills, and I know parliamentary counsel also have anxiety about these things. If that helped, I would certainly be prepared to look at it to put that beyond doubt, although I do so with the caveat that by putting in such things, you have to watch you do not stir up more problems than the ones you are trying to resolve.
We do not believe that the order-making power here can be extended by this coalition Government or any future Government to inquests without primary legislation.
I would like to pick up on the points made by my noble friend Lady Berridge and the differences between civil proceedings, between parties and the inquisitorial nature of a coroner’s inquiry. The Government recognise that inquests have a unique role in our justice system. In inquests where intelligence evidence cannot be disclosed without risking national security and public safety, we will continue to use existing arrangements. In such circumstances, the Government can make a public interest immunity application to exclude the material. The coroner will exclude the material if he or she decides that the public interest in withholding the information outweighs the public interest in disclosing it. An inquest can also be converted into an inquiry under the Inquiries Act 2005. My noble friend made that point in regard to the inquest into the death of Azelle Rodney which could not proceed because neither the coroner nor the jury could see highly sensitive material. To allow all the material to be seen, the inquest was converted into an inquiry with terms of reference mirroring the purpose of the inquest.
With regard to the Mark Duggan case, it would be inappropriate for me to comment at this Dispatch Box on how the Inner North London and North London coroners propose to handle any sensitive material in their conduct of the inquest into the death of Mark Duggan. It is for the coroners concerned in these cases to decide the best course of action.
Finally, Amendments 70A and 70B would limit instead of remove the order-making power. Amendment 70A would omit the aspect of the power which would enable the adding or removal of a court or tribunal. We believe it is the key aspect of the power and so we could not accept it being limited in this way.
Amendment 70B would omit the aspect of the order-making power which enables orders to be made which amend or repeal any enactment, and I fully understand why Parliament is always wary of any such power. The provisions are for the situation where the definition of “relevant civil proceedings” is changed and certain supplementary or consequential changes are needed. An example of this is in subsection (4), and I hope that it meets the specific concerns raised by my noble friend Lord Hodgson. So, if a tribunal is added, Clauses 6 to 11 of the Bill may need to be adapted for use in relation to that tribunal. The power could be used to explain what “rules of court” mean for the tribunal because tribunals have “procedural rules” rather than “rules of court”. These sorts of differences would be reflected in the use of that power.
I hope I have been able to explain why the Government reached this position.
Baroness Williams of Crosby
Perhaps I may press my noble and learned friend one stage further. The material says that a court can be added or excluded as the case may be, and to a lay person saying that it does not apply to a coroner’s court sounds like a Red Queen in Alice in Wonderland announcing that what seems obvious is the opposite of what is obvious. Will my noble and learned friend consider either dropping paragraph (a) or making a particular reference to the exclusion of coroner’s courts so that those of us who are not deeply into legal language would be able to understand the Government’s intention?
Lord Wallace of Tankerness
I take the point made by my noble friend Lady Williams. I said I would be willing to look at words like:
“for the avoidance of doubt this does not include coroner’s courts”.
I caveated it because I am always wary of parliamentary draftsmen finding 10 reasons why that will mean 20 different things. In that spirit, I hope she will be reassured that not only do we not intend to include inquests, but we do not believe that the wording here does include inquests. However, I am prepared to look at that to see whether there is a wording which will put that beyond doubt and reassure those who think that there is no belt-and-braces position as things stand.
I have sought to give reassurance on these important issues, and particularly it is important that Parliament scrutinises the powers available to Government by secondary legislation, perhaps a fortiori in circumstances such as this. I will reflect on what has been said in the course of this Committee’s discussion.
Lord Beecham
My Lords, I refer first to the speech of my noble friend Lord Reid of Cardowan who had a long, distinguished political career crowned by his time as Home Secretary. He is perfectly right to remind us of the serious threats that might affect this country’s security and the change in the world in which we live. But as the noble Lord, Lord Thomas of Gresford, implied, what we are looking at in this part of the Bill is not an area which would open up this country to any particular threat of that kind. We are talking about closed material procedures in civil proceedings in which if there were to be a threat to security from the disclosure of documents, the Government can effectively pull the case. They do not have to disclose the documents. The cost of that will take another form but it is no cost to national security, so I hope the noble Lord will be comforted by that. He may have a more relevant point when we come to the next amendment.
My noble friend, on taking office as Home Secretary, famously described the Home Office as he then found it as “not fit for purpose”. The amendments that we are discussing this afternoon are intended to make, so far as possible, this part of the Bill fit for purpose because—as many of your Lordships have indicated—currently that is not the case.
That is clearly the view of the Delegated Powers Committee, although it does not go so far as to propose a particular amendment. I remind the Minister that the Committee refers to,
“the unconstrained nature and extent of the provision that might be made under them by this or any future government”,
under the proposals in the Bill as they now stand. That is a pretty wide description of the scope that the Delegated Powers Committee was considering and, as I said in moving the amendment, it then invited the House to consider whether there should be amendments to restrict that scope or include any safeguards. The noble and learned Lord was saying the answer to that should be no so far as your Lordships’ House is concerned.
Having listened to the closing remarks of this speech, I hope he will think further about that matter, because it does not seem to leave us in a very satisfactory position. The general view of those who have spoken would be to prefer primary legislation, however expedited, rather than secondary legislation—which effectively cannot be amended—to add to the scope of the civil proceedings referred to in the Bill. I beg leave to withdraw the amendment.
Lord Lester of Herne Hill
“( ) Section (Statutory PII for national security sensitive material) applies in disclosure proceedings to which this section applies.”
Lord Lester of Herne Hill
My Lords, in moving the amendment, I have to speak to the other 14 amendments which have been grouped, which are all to do with the Norwich Pharmacal principle. That does not include Amendments 76 or 80. The amendments are designed to include the scheme created by the Bill for what is known as Norwich Pharmacal applications in national security cases. A Norwich Pharmacal application is made for disclosure of documents or information where five conditions are met. These are as follows. First, the claimant has to show that he has an arguable case in the main litigation. Secondly, the defendant has to be involved in or mixed up—whether innocently or otherwise—with the underlying claim. Thirdly, the Norwich Pharmacal jurisdiction is the remedy of last resort, so the claimant must show that he or she has no other way to obtain information. Fourthly, the court will order only such limited disclosure as is shown to be necessary. Fifthly and ultimately, the court must be satisfied, having taken into account each of those factors that the information should be disclosed in the public interest.
The Norwich Pharmacal procedure is a common law procedure devised by the great Scottish Law Lords, Lord Reid and Lord Kilbrandon, with three English Members of the House of Lords. I mentioned that because one of the Government’s less good ideas is that it does not apply in Scotland. I have little doubt that if a case arose, it would apply in Scotland. I placed in the Library my research into Norwich Pharmacal worldwide, and it is applied throughout the common law world and, in a slightly different form, in the United States.
This will test whether I would be any good as a diplomat. The United States is a key ally. It is essential that our security services and theirs should be able to co-operate fully on the basis of mutual trust and understanding. I entirely understand, as did the Joint Committee on Human Rights, the need to give full reassurance to our allies across the Atlantic that the British justice system fully protects national security in all relevant contexts.
Lord Pannick
My Lords, I have added my name to amendments in this group. We are dealing here with the power of the courts to order disclosure of evidence to individuals who have a properly arguable case that the representatives of this country have been involved in wrongdoing. The powerful memorandum from the 50 special advocates pointed out that these cases may involve the gravest of allegations, concerning torture or death abroad in which the authorities of this country are said to be involved. In that context, I am sure that this Committee will want to consider very carefully indeed whether the restrictions on disclosure of information are necessary and whether there are proper safeguards.
There are three linked defects in Clause 13, which these amendments seek to address. The first defect is that the concept of “sensitive information” is very broadly defined indeed. The second defect is that only in relation to some of this sensitive information does the judge have any power at all to decide whether disclosure would in fact damage the public interest. The Minister will clarify the matter in due course, but as I understand the Bill the judge’s power under Clause 14 to review whether there is damage to the public interest applies only in Clause 13(3)(e) cases and not to the other categories in Clause 13(3)—that is all of the intelligence services information. The third defect is that the judge has no power at all in any case to balance the harm to the public interest by disclosure against the detriment to the individual, and indeed the detriment to the public interest, by concealment of this information, which may show the involvement of the authorities of this country in very serious wrongdoing.
Baroness Williams of Crosby
My Lords, the noble Lord, Lord Pannick, recited directly from the Constitution Committee in its very excellent finding about the width of the phrase “sensitive material”. As usual, we owe a great deal to the common sense of the Constitution Committee in drawing our attention to this kind of matter. I fully appreciate the argument for narrowing down and more closely defining the phrase so that it is not as wide and vague as it is in the Bill. However, before we conclude our discussion on this group of amendments, I also want to refer to one to which no noble Lord on the committee has so far referred at all. Amendment 77A points to the requirement for disclosure on matters that are directly related to international law, to the work of the human rights conventions and to issues concerning, for example, the various United Nations conventions to which this country is party.
The other amendment relating directly to this issue is Amendment 73A. There is a great deal to be said for that but let me say a word or two, because my point relates very directly to the speech of the noble Lord, Lord Reid, which almost completely neglected the significance of international law, international conventions and international agreements under the United Nations. I believe we have hardly discussed this element in our consideration of this Bill. We would be most foolish to continue to neglect that element.
Let me give one personal piece of evidence. For a substantial part of my life I have been involved in issues concerning the danger of nuclear weapons, which of course threaten not only our security but that of a much wider part of the world. How is it that we have come to deal with this? Not entirely successfully but fundamentally, international law and international convention have so far managed to avoid a nuclear war anywhere in the world over a period that is now 60 years long. In other words, security is achieved not just by taking very strong steps toward suppressing those who threaten it but by building up an international consensus that supports the concept of limitations on certain kinds of behaviour.
I regret that the noble Lord, Lord Reid, is not in his place as I would have liked to have taken him on directly on this. He referred, for example, to the danger of chemical weapons, which are now alleged to be in Syria. One of the most successful international conventions up to now is that regarding chemical weapons. It has been almost completely obeyed, with some rare exceptions, of which Saddam Hussein in Iraq might have been just one. Generally speaking, chemical weapons have not been used in warfare, not even in civil war—the most awful kind of war—although that may no longer be true in Syria; we do not yet know. I say very strongly that the point about Amendment 77A is to build in an additional exclusion to the suppression of information where it directly affects our commitment and our signature to international conventions and international rights, because they are a critical part of what it is to have both justice and security.
I will go one step further. It is crucial that we recognise that there is, outside the whole of the issues that we are considering here, a distinct obligation on the United Kingdom, which has been in the forefront, largely along with its fellow members of the European Union, in pressing for international conventions and international law. It has, for example, taken a leading part in the non-proliferation treaty on nuclear weapons, on chemical and biological weapons and, on an issue dear to the heart of my noble friend Lord Lester, establishing human rights and the many discussions that we have had on the European Convention on Human Rights, which needs to be protected by national as well as international law. Therefore, when we look at Clause 13, and particularly Clauses 13 and 14 together, we need to be clear that we must protect these international rights and international conventions, and that we cannot do so if a large part of the information relevant to them is simply suppressed.
Amendment 73A lists a whole set of international conventions on genocide, abuse, torture and so forth that should be taken into account and respected in the way the Bill is drawn up, interpreted and—not least—drafted. It is crucial that we have an amendment of this kind to the Bill, which shows the precious nature and status of these elements in international law; otherwise, we are undermining our own signatures and commitment to these pieces of legislation.
Clearly, there is a particular problem. So far our American ally has not been carried by, for example, the idea of the International Criminal Court. It has not been carried, so far, by the acceptance of some version of the European Convention on Human Rights. That means the United Kingdom is in rather a special place. It shares with its great ally, the United States, a commitment to human liberty, the rule of law, and to national law, being close to one another in similar systems. However, it does not share our commitment to international law, in particular along the lines that I have addressed in my remarks.
We have to balance two things that are not easy to balance. We have a commitment to the concept of growing international law, particularly the International Criminal Court, which has become central in insisting that there are such things as crimes against humanity and which must be upheld and respected as a fundamental part of what we mean by international security, if not always national security. Our duty is essentially to protect that element of our commitment and our belief in international law despite the fact that many of our allies do not wholly share it. I mention the United States because of its rich tradition of national law. I could, sadly, mention a number of our other allies which have virtually no commitment to human rights internationally at all.
I am not clear how we handle the issue concerning international relations in Clause 13(5) with no distinction at all between those who share—to use the phrase of the noble Lord, Lord Reid—“our values” and those who simply do not, and have not subscribed to, for example, conventions on torture or degrading and inhumane treatment. At this point, I merely wish to push for consideration of Amendments 77A, 73A and other amendments that address the issue of obedience and respect for international law. If we are going to continue to discuss this whole group of amendments, we really have to take that major elephant in the room into consideration or we will sell ourselves and our world very short.
Lord Thomas of Gresford
My Lords, Amendment 76 is in my name and that of my noble friend Lady Hamwee. Amendment 76 is very much in the same terms as Amendment 75 and I accept everything that has been said by my noble friend Lord Lester, the noble Lord, Lord Pannick, and the noble Baroness, Lady Williams of Crosby. Therefore, I will restrict my remarks to a question. What is the purpose or justification for an absolute bar in Norwich Pharmacal proceedings against disclosure of material in the possession of the security services? As I understand it, the certification procedures for the Secretary of State apply to all other material in anybody else’s hands.
The Secretary of State has to take a decision in which he considers the public interest or, as my noble friend Lord Lester suggests, whether there is a breach of the control principle, which is a rather narrower test. His decision is subject to review on judicial review grounds in Section 6 proceedings. What is it about the security services that enables them to escape the consideration of the Secretary of State, the public interest and Section 6 proceedings on judicial review grounds? I see no reason for singling out the security services from such control.
Baroness Berridge
My Lords, Amendments 71 to 75, 77 to 79 and 81 to 87 all have my name on them. As the detail of those amendments has already been outlined by my noble friend Lord Lester and the noble Lord, Lord Pannick, I will follow the noble Baroness, Lady Williams, and focus on the core purpose of Amendments 85, 73A and 77A, which is to introduce limited grounds for the disclosure of information received in confidence by the intelligence services and amend what would otherwise be a complete ban on disclosure under Clause 13.
These amendments are required, as David Anderson QC pointed out to the Joint Committee on Human Rights in his evidence, when he said that,
“you are not going to get away with a blanket exclusion of all evidence in the hands of the security service, or even all evidence in the hands of the Government, as they suggest at one point”—
he means in the context of the Green Paper.
Although the disclosure jurisdiction that we deal with today began in the intellectual property field, it is completely by accident that the principles behind the jurisdiction were first applied there. On considering these amendments, I reread the judgment of the noble Lord, Lord Reid, in the Norwich Pharmacal case. It is clear that the jurisdiction is based on sound principle. It is important to consider that principle as it goes to the heart of why these amendments are required.
It is best understood by a threefold division of cases—and I would term myself a Championship not a Premier League lawyer here. First, there are cases where the person, usually the UK Government, is directly responsible for the wrongdoing and a civil case is brought directly against them as the defendant. Clause 13 leaves those actions completely unaffected. Secondly, there are cases where the person in question is a bystander, spectator or mere witness to the wrongdoing. In those circumstances, no action can be brought against that person, they are not even complicit and Norwich Pharmacal will fail.
However, there is a small, narrow group of situations—which are, as the noble Lord, Lord Pannick, has outlined, even narrower after the case of Omar—where, although not directly responsible for the wrong, there is sufficient connection to the wrongdoing that a requirement attaches to you to disclose information or material in your possession that helps the victim of the wrongdoing to seek redress; that is, more often than not, court proceedings. This obligation is based on the limited culpability that attaches as one is mixed up, even innocently, in the wrongdoing. I would term it a bit like moral velcro. Being mixed up in wrongdoing sticks you with certain limited responsibilities.
The kind of mixing up by the UK Government, in cases such as that of Binyam Mohamed, is questioning a man after you should have, at the very least, been aware that he had been tortured. When I read of the injuries to Binyam Mohamed it was rather disturbing. According to the findings in that case, the UK took some of the fruits of that torture by questioning him, although it is important to emphasise clearly that the UK Government were in no way involved in that torture.
I accept, of course, the evidence of the Joint Committee on Human Rights that the intelligence services in the United States, for example, are disclosing less intelligence to the United Kingdom because of the fact, or perception, that the information could be disclosed through our courts. But the first caveat is the Government’s own Green Paper, which outlines that there is no suggestion that key threat-to-life intelligence would not be shared. The second caveat is whether this fact or perception is justified. As the UK courts have never ordered the disclosure of such material, and any Norwich Pharmacal application that could be made subsequent to the case of Omar would be followed by a PII application as well, the risk is minimal. Allowing limited Norwich Pharmacal applications as outlined in these amendments would be a proportionate response to that minimal risk.
It is also interesting to note the change of position by the United States concerning whether the control principle was breached in the case of Binyam Mohamed, as outlined by the ISC report for 2009-10, in which the United States does not seem to think that there has been a breach of the control principle. In the 2010-11 report, the United States seemed to think that there had been one. It is interesting to note that it is the same time period which saw the mass of WikiLeaks disclosures. I would be saddened if the mistaken perception of our judicial processes or an understandable oversensitivity to the control of its own intelligence material could lead to a change in our law to exclude this jurisdiction from human rights cases, especially when, unfortunately, the alleged wrongdoer may also be the United States.
I would expect that the mere receipt of intelligence information that discloses wrongdoing, even information obtained by torture, is being a witness. Can my noble friend the Minister explore whether the requirement that in national security cases a greater culpability of connection to the wrongdoing other than being innocently mixed up would satisfy the concerns of the United States? If complicity by the United Kingdom is needed, cases where Norwich Pharmacal would apply should be very rare.
In essence, the argument from the Government is that our intelligence services lack certain information and therefore our national security could be at greater risk. I expect the Government to oppose the amendments, especially as it is the first duty of the Government to protect their citizens. I agree that it is the first duty, but it is not the first principle—otherwise protecting national security could justify torture, and it is crystal clear from the Reith Lecture from the noble Baroness, Lady Manningham-Buller, that the UK does not. Protecting national security and even going to war must still be conducted within certain ethical and moral constraints, which include that if you get mixed up in the wrongdoing you may—subject to five stringent tests in the Norwich Pharmacal case, and following a PII application—have to disclose material to help the victim defend himself against a capital charge. I fully accept that the United Kingdom is the junior partner in this situation, and is probably more reliant on intelligence material from the United States than vice versa. But your ethical and moral principles are often tested—or perhaps only tested—when you are the less powerful person in the situation, not when you are in command.
I end with a very simplistic point. The remedy may not even need to be legislation. If the UK does not get mixed up in, as opposed to merely receiving information about, other countries’ wrongdoing and, a fortiori, if the United States ceased this kind of wrongdoing, it can rest assured that the veil of the control principle cannot be pierced by Norwich Pharmacal. The remedy to some extent lies in the hands of the United States, and it is regrettable that President Obama did not fulfil his election promise to close Guantanamo Bay, which might have provided a line in the sand in this group of cases. I am pleased to live in a place with the high ethical constraints of Norwich Pharmacal and that we have a mechanism to release such information in situations that could literally save a man from the electric chair. The door to such information should be hard to open, but not absolutely barred. I support this group of amendments.
Lord Falconer of Thoroton
My Lords, it has been a very powerful debate. I am particularly grateful to the noble Lords, Lord Lester and Lord Pannick, for maybe seeing a way through a very difficult issue. Both issues that the Bill raises are difficult, but this is the more difficult. The first one, about fairness and making sure that one sticks to fair procedures, necessarily involved a solution whereby the courts made the balance. Ultimately, if there was damage to national security, the intelligence services would be able, if they wanted, to withdraw the case and there would be no damage to national security. This is a much more difficult one because the intelligence services do not have the option of withdrawing from the case.
As the noble Baroness, Lady Berridge, and the noble Lord, Lord Lester, explained, in a Norwich Pharmacal application, when no proceedings are afoot you go to court and say that either the British Government or the intelligence services have either committed wrongs or got mixed up in wrongdoing, and you ask them to disclose documents that show their involvement, not necessarily with the intention of suing the British Government but because you may wish to sue someone else. The courts have dealt with that by saying, “Okay, we’ll consider these Norwich Pharmacals”. If it is concluded that the position is made out whereby one would, prima facie, make a Norwich Pharmacal, the courts then say to the Government, “Okay, we are going to make a Norwich Pharmacal subject to the Government making a PII application”. Then the courts have to balance whether national security outweighs the interests of the individual. I do not know how that balance is to be struck, because it is not easy to strike it as it would be in ordinary litigation. Indeed, except in two cases, it has never been struck. It is not open to the Government to say, “Okay, we’re going off the field at this point”. If the court makes the order and overrides the public interest, it is disclosed.
That process has unquestionably caused some of our allies concern. The effect of the Binyam Mohamed case was that, even though two out of the three judges said that the control principle had not been broken because the intelligence material was no longer secret—I refer to the principle that if one country gives another country intelligence, the other country cannot use that intelligence without the first country’s consent—the United States Government now give us less information than they did previously. That is what Mr David Anderson said in his supplemental memorandum for the Joint Committee, which expressly said that it did not know whether it was right or wrong and that all it had to go on was what Mr Anderson said. However, he was clear that the effect of the court making it clear that a balance had to be struck, as unquestionably is the case, was that people did not feel so secure about the intelligence that they gave and so gave less. However, as the noble Baroness, Lady Berridge, and other noble Lords have said, they will give us intelligence when there is an immediate threat to life.
The effect of the current position is that we get less intelligence material from the United States of America and maybe our other allies because they are worried that the English courts might order their disclosure. The Joint Committee on Human Rights took the view in the light of that—this is my reading of it—that the minimum should be done to give the reassurance required to get the maximum protection in relation to intelligence. If you took that approach, is what the Bill proposes the minimum that can be done to provide protection?
The noble Baroness, Lady Berridge, described a typical Norwich Pharmacal stripped of any complication about intelligence. It would involve me going to have a cup of tea in a cafeteria in Thames House or Vauxhall Cross and me slipping on the floor, breaking my leg and saying that I would sue whoever owns the building, which is the intelligence services—but they say, “Actually, an independent contractor cleans the floor and it is absolutely their fault that you slipped”.
I could bring a Norwich Pharmacal order if the intelligence services did not tell me who the contractor was in order to bring my action for a broken leg because it had inadvertently got mixed up in wrongdoing. The effect of Clause 13(3) of the current Bill is that, because the information was held by an intelligence service, it would not be able to say, “No, you cannot have the information about who cleans the floor”. It would be the same if I were run over by a van carrying papers to the FCO and I wanted the maintenance records held by someone else; it could say no.
It is plain that the Government do not intend to cover those sorts of cases. What they do intend to cover are the cases where there is a genuine threat to the control principle and you cannot deal with it because the courts are absolutely right in saying that if the courts are going to make a decision they must have a balance.
Lord Lester of Herne Hill
My Lords, the noble and learned Lord has expressed his opinion so clearly that I find it very difficult to ask him a question. The burden of what he is saying is that he thinks that the solution is an absolute ouster clause—something that makes the Minister’s certificate conclusive in all circumstances. My understanding is that that is not the position under the law of the United States. Even with its State Secrets Protection Act and its Patriot Act, it does not go that far.
The evidence in the Binyam Mohamed case that was given by Mr Morton Halperin was that intelligence services in both countries recognised that there are some rule-of-law exceptions. What troubles me is that there are cases now pending in the European Court of Human Rights with names such as al-Nashiri, I think, where the court is requiring States parties to disclose information where there are allegations of rendition and torture. Will the noble and learned Lord at least accept that the Bill could limit the power of the Secretary of State to certify so as to exclude the grossest cases of human rights violations so that it is not completely absent, that being an obligation on the Secretary of State that might or might not be traditionally reviewable?
Lord Falconer of Thoroton
There are two points. First, I am seeking to say what the dilemma is for the House. It is necessary for the House first to come to a conclusion about whether there is a difficulty in relation to the flow of information. If it comes to the same conclusion as the Joint Committee on Human Rights came to, based on Mr Anderson’s evidence, the question is: what is the right solution? I think that everyone around the House agrees that it should be proportionate.
On the specific questions, I am not in favour of a complete ouster and, as I understand it, neither are the Government, because they are saying that any certificate given by the Secretary of State is subject to judicial review, so it would not be an ouster of a sort that other Ministers tried on previous occasions. This would leave in the ability to say, “Could a reasonable Minister have given such a certificate?”. There are two bits to that. The approach of the noble Baroness, Lady Williams, is to cut out of the approach that is being suggested anything that might make an allegation of human rights abuse. I can see the attraction of that, but the consequence is probably that Norwich Pharmacal is left untouched, and you have the problem of less intelligence coming. I do not want to sound too dramatic but the indications from the intelligence services, which I do not question in any way, tend to be that that might have a significant effect on the Executive’s ability to protect more individuals. I can see the former head of one of the intelligence services behind me correcting me on this, but it is quite a significant part of the ability to protect ourselves.
If one took the route of the noble Baroness, Lady Williams—if I may call it that—that would avoid giving any protection at all. The route of the noble Lord, Lord Lester, is, “Take the approach that is being suggested. Have the ability to certify. Limit it to the control principle. Cut out everything else. Make it judicially reviewable but accept that there are occasions when there will be gross breaches”. I think he is suggesting in his Amendment 85 that it is something more than a judicial review balance, something else apart from judicial review, because it says in effect that the principles of judicial review will apply to considering where the public interest lies, including considering whether there have been gross breaches of international law. That is not quite the wording but that is what it amounts to. That still seems to me like judicial review, so it is for the Minister to decide whether there is a basis for concluding that it might affect the control principle. If he comes to that conclusion, the certificate is not attackable. That appears to be what is being proposed.
Baroness Manningham-Buller
My Lords, this is obviously one of the trickiest bits of the Bill and I am very grateful for the analysis of the noble and learned Lord, Lord Falconer, because he has forced the Committee to focus on some of the key issues. This was not a problem when I was director-general. Norwich Pharmacal was not being used in national security cases, so it is a relatively new phenomenon.
If the Committee will allow me, I should like to make a slight deviation on the question of public interest. I accept that there have been occasions when Governments of all persuasions have used secret certification to label things secret when they have not been secret at all. I acknowledge that that has happened. However, I hope that the Committee will really accept—some speakers appear not to have done so—that there are real and serious secrets that, if exposed, will cause substantial risk to the public interest. I know that I keep saying that and I hope that noble Lords will forgive me if I repeat it.
The noble Lord, Lord Reid of Cardowan, made a speech about the threat. I shall not go into that because I retired five years ago and I think—in fact, I know—that the nature of the threat has changed. However, the practicality of intelligence work is that you have to work with a great many other services. If he were in his place, I would contradict the noble Lord, Lord Reid, saying that you trust them all, because of course you do not. In some cases, you are dealing with countries with very different standards of law and different attitudes to human rights and so on. On the other hand, as I said in my Reith lecture, you cannot just talk to the Swiss, however nice that would be. We are facing a global threat. We need to talk to the parts of the world that have an understanding of and familiarity with that threat, and the security and intelligence community does so with caution and care. It will not always get it right but it is tuned into the problems.
The reality is that we do not deal just with the United States. The noble Baroness, Lady Berridge, is right that we are the net receiver of intelligence from the United States—naturally enough, as it spends squillions on its intelligence community and it is very much bigger. However, we also deal with people around the world, including our European allies, with whom intelligence is exchanged extensively every day of the week. We deal with people in the Middle East and the Far East and all around the world. Therefore, we have a difficulty because we will not always know where the intelligence that we are given is derived from and we immediately run into the issue of how it has been obtained. Questions will not resolve that—you will not get the answers. If we have a reduction in intelligence, we will begin to lose insights, and according to David Anderson that is already happening.
It is no consolation to me at all to be told that the Americans will still give us life-saving intelligence. How will one know that it is life-saving? The nature of intelligence work is putting together information from perhaps five or six different countries and 20 different organisations—little bits and pieces of a jigsaw that, together, might save lives. If something tells us, “This is going to happen tomorrow, so you can do something about it”, that is fine, but intelligence is very rarely obviously life-saving when it is first received. Therefore, if that intelligence is reduced or rationed for reasons that, if the noble Lord, Lord Lester, is right, may be mistaken in some cases, that will be a very serious problem for the United Kingdom.
I should also like to point out an irony here. Some of these problems might not have arisen if we had had a closed material procedure, which we talked about on an earlier part of the Bill, at an earlier stage. Putting much more material into the court—albeit through the, as I absolutely accept, not entirely satisfactory arrangement of CMPs—means that there is a chance for HMG to defend themselves and for the claims of a claimant to be scrutinised and judged by an independent judge. I suggest that not being able to defend themselves has been very damaging for the Government and for the intelligence and security community. Anecdotal allegations have assumed the status of facts. Some have been, and are being, investigated as crimes, and obviously it would be inappropriate for me to mention those in any detail on this occasion. However, others are left in limbo, unresolved and under damaging clouds of accusation. Therefore, if in future we can resolve those, that will be very helpful. If we can reach a solution to the difficulties of Norwich Pharmacal that protects other people’s intelligence from this sort of exposure, we will still be in business. If we cannot protect it, it will not just be the Americans who reduce the flow of intelligence, as David Anderson described in his evidence, but many other people as well.
Lord Falconer of Thoroton
My Lords, the noble Baroness, Lady Manningham-Buller, has made a very powerful intervention—if that is what it was—on my speech. I just want to summarise where I had got to and finish my speech. I think that the issues for the Committee are as follows. First, is the Committee satisfied that there would be a significant loss of intelligence? I found the speech of the noble Baroness, Lady Manningham-Buller, very powerful in that respect. Secondly, if there were a significant loss of intelligence, what would the right course be? In my respectful submission, the right course would be to do the minimum required to protect the intelligence. It may well be that the minimum is the certification process. However, a question arises from that. The noble Baroness said that there are real secrets and I accept that. The real secrets may not only come from somebody else; they may be ones that we find ourselves. Finally, do not ask the courts to make these decisions. By all means subject them to judicial review but ultimately let the responsibility rest where it rests, which is with the Secretary of State, who should certify on the advice of the intelligence services.
Lord Butler of Brockwell
My Lords, I sense that it would be convenient for the Committee if we finished this debate before the dinner hour, so I shall confine myself to just two or three sentences. I think that the noble and learned Lord, Lord Falconer, has made all the points that I want to make, as has my noble friend Lady Manningham-Buller.
I am one of your Lordships’ representatives on the Intelligence and Security Committee. We visited the United States and our experience would endorse what Mr David Anderson said—that the flow of intelligence from the United States is being limited. I do not want to exaggerate this but the point is that the trust of the US has been weakened and we need to restore that trust. It matters not that the grounds for the breaking of that trust may not be justified. It has been diminished and, unless we can respect the control principle completely and unless other countries believe that information that they give to us will be protected in all circumstances, that trust cannot be restored. So I absolutely agree with the noble and learned Lord. We do not want to give the courts let-outs and we do not want to have a balance; if we have any exceptions, we will not be completely trusted. The responsibility must rest on the Secretary of State and only if that happens can other countries be assured that their confidences are safe with us.
Lord Wallace of Tankerness
My Lords, I thank all noble Lords who have contributed to this debate. Initially, my noble friend Lord Lester set up the framework of what a Norwich Pharmacal order is like and how it is sought. I am particularly grateful to the noble and learned Lord, Lord Falconer of Thoroton, for very clearly indicating some of the consequences of a Norwich Pharmacal order being granted, unlike what we were debating earlier in terms of civil proceedings in an action for damages where it is always open to the Government to settle or to abandon a case or a defence, rather than put information into the public domain. In this case, we are dealing with a court order requiring disclosure.
This is a difficult issue and one to which we have given considerable thought. The aim of a Norwich Pharmacal application is to force a third party who is mixed up in the suspected wrongdoing of another to disclose information that the claimant needs. In the case of sensitive information, this has usually been for another set of legal proceedings elsewhere, often overseas. It is an equitable remedy developed, as has been said, in the intellectual property sphere. However, since 2008 there have been no fewer than nine attempts to use this jurisdiction in relation to disclosure of sensitive material, such as secret intelligence, which either belongs to the United Kingdom Government or which our allies have shared with us.
As has been said, the Government do not have an option to withdraw from or seek to settle these proceedings. If a judge orders disclosure and a PII claim is unsuccessful in relation to the material, there is no option other than to release the sensitive material. We have had experience of the damage done to our interests of national security—it has been referred to in more than one contribution to this debate—in the dramatic effect of the Binyam Mohamed case on our intelligence-sharing relationship with the United States.
My noble friend Lord Lester and the noble Lord, Lord Pannick, said—it has been said in a number of discussions around this issue—that no national security information was disclosed in the Binyam Mohamed case; it had already been put into the public domain in the United States. The real concern arises out of the Court of Appeal ordering that seven paragraphs which had been redacted from the Divisional Court’s judgment and which contained a summary of US intelligence reporting should be restored to the judgment despite the existence of a PII certificate from the Foreign Secretary. A critical factor in the Court of Appeal’s reasoning was that a court in the United States had made findings of fact directly relevant to the content of that reporting.
The judge in the United States case did not put the contents, or a summary thereof, of the United States intelligence into the public domain; he made findings of fact based on allegations about Binyam Mohamed’s treatment made in another case that were not challenged by the US Government. Crucially, knowledge of the content of the United States intelligence reporting was not in the public domain until the publication of the redacted paragraphs following the order of the UK Court of Appeal. It is the means by which the UK had had the information that was the sensitive part and we believe that what has happened since, as reflected by a number of contributions to this debate, not least the contribution of the noble Lord, Lord Butler of Brockwell, has had a real effect on the flow of information.
The noble Baroness, Lady Manningham-Buller, made the point that, although very obviously any immediate life-threatening information in the hands of the United States intelligence services would be handed to us, very rarely does that happen. Obviously, if there was direct information about a possible terrorist attack tomorrow there is no doubt that they would share it with us, but as I understand the nature of the intelligence process, it may be one part of a jigsaw puzzle that does not necessarily mean anything to the United States intelligence people who would normally share it with us, but it might be a crucial part of the jigsaw puzzle for the United Kingdom intelligence services, because it might allow a picture to be made that was not possible before. It is the loss of that kind of material that would spark concern.
The Government have received clear signals that, if we are unable to safeguard material shared by foreign partners, we can expect the depth and breadth of sensitive material shared with us to reduce significantly. Each time a claim is made, our partners must confront the possibility of their secrets being disclosed, even if the case never reaches the point where a court orders disclosure. It is that concern that we seek to address.
Obviously, I recognise that efforts that have been made in framing these amendments to deal with the very difficult issues that we are grappling with. My noble friends Lord Lester and Lord Hodgson have tabled amendments that would restrict the clauses relating to Norwich Pharmacal relief to control principle material. By that we mean the important concept that in intelligence exchanges it is essential that the originator of the material remains in control of its handling and dissemination. My noble friends have rightly observed that, in explaining the Bill, the Government have highlighted the particular difficulty where individuals seek disclosure of material covered by the control principle, but the case for reform goes wider than that. This was acknowledged in the closing comments of the noble and learned Lord, Lord Falconer, and I think that I made reference to it on Second Reading. We must also protect intelligence gathered and generated by our own intelligence services as well. The lives and safety of intelligence service staff, as well as the safety of their sources and the effectiveness of the techniques that they use to gather information, could be jeopardised if information is disclosed. Preventing the disclosure of sensitive material produced through the capabilities of our own intelligence services is as important, I submit, to our national interest as protecting material that has been shared by our allies.
The intelligence services have a legal obligation to protect the safety of sources, including, where applicable, the duty under Article 2 of the European Convention on Human Rights. The secrecy of operations and investigations and the limit or the extent of the intelligence services’ coverage and capability are all of crucial importance and, if they were compromised, it would be harder to prevent terrorist attacks and protect public safety. Limiting the protection afforded by Clause 13 to control principle material would diminish the Government’s ability to protect domestically generated intelligence. We believe that this could have severe impacts on the direct activities of our intelligence services as well as on intelligence-sharing relationships.
On a practical level, limiting the definition to control principle material would be challenging. It is often difficult or unfeasible to separate control principle material from domestic material. For example, there may be correspondence between the intelligence services commenting on control principle material, or assessments based on a mix of domestic and foreign material, which it would be difficult to distinguish between. There are therefore inherent difficulties in identifying what qualifies as control principle material. As has been mentioned in the debate, Mr David Anderson QC discussed these practical difficulties in his recent evidence to the Joint Committee on Human Rights and the control principle itself is part of the broader principle that intelligence relationships should remain confidential.
The amendment in the name of my noble friend Lord Thomas of Gresford would remove the absolute exemption for intelligence service material and rely instead on a certificate-based process for sensitive material whose disclosure would be damaging to the interests of national security or international relations. In a commendably concise intervention, he asked what the justification for the absolute bar is. Unlike in other parts of government, the work of the intelligence services is inevitably covert and secret. We have heard arguments that there may well be cases that would fall under the exemption but where the material sought is not sensitive. The simple fact is that material from the intelligence services sought in Norwich Pharmacal applications is, by its nature, security-sensitive and its disclosure would damage the public interest in safeguarding national security. Applicants do not seek open-source information or other unclassified material from the intelligence services.
I note the point made by the noble and learned Lord, Lord Falconer, about the hypothetical case where he slips. The obvious thing to do there would be to sue the agency, which is the occupier. If it wished to bring in a third party, the contractors, it could do so and all the normal processes would flow from that. All the cases that have arisen under this have been dealing with applications in respect of very sensitive materials.
Lord Thomas of Gresford
My Lords, may I ask a succinct question? The Minister has justified the absolute ban in relation to the security services and has encouraged claimants to sue the British Government, as opposed to suing a foreign Government and making a Norwich Pharmacal application. If the claimant were to sue the British Government, would material in the hands of the security services which had been obtained through a friendly ally be disclosable in Section 6 proceedings?
Lord Wallace of Tankerness
My Lords, I think this is the point. If the claimant were to sue the British Government, if the allegation was that the British Government had been directly involved in wrongdoing—although there has been no such suggestion; I think that would get pretty short shrift—we would come back to what we have said with regard to this whole debate on Section 6 proceedings. We would wish as much information to be before the court as possible. The crucial difference between these proceedings and the proceedings in Norwich Pharmacal, as the noble and learned Lord, Lord Falconer, explained well, is that under civil damages claims, if the information should come out or the court does not allow the material to remain closed, it is still open to the Government to withdraw from the case or to settle the case. The crucial difference between that and Norwich Pharmacal is that if PII is not successful, then there is no alternative but to disclose.
Lord Thomas of Gresford
Is it right that the court would see that material? Would it see the material from a friendly foreign power that was absolutely barred from disclosure in the Norwich Pharmacal proceedings?
Lord Wallace of Tankerness
Yes, the court would see it. If I have got that wrong, I will certainly say so; but I think that that is the whole point of having closed material proceedings. The material can be made available to the court so that the whole picture can be obtained. The Secretary of State retains the option not to put the material into the public domain, although consequences may flow from that.
Lord Lester of Herne Hill
My Lords, I hope that I will not be criticised for seeking easy popularity in this House by saying that I am going to make a very short reply. I regard the dinner hour as something that should happen at the customary time for dinner, and not breakfast. I am conscious that my noble friend Lord Howell of Guildford and his colleagues have another very important debate to come.
I shall simply say this. First, I am extremely grateful for what has been a most important debate. I am particularly grateful to the Minister for his very full reply, so full and so interesting that I think studying it carefully will be very beneficial. I am a bit more pessimistic than he is, and perhaps more so than the noble and learned Lord, Lord Falconer of Thoroton, about the ability to keep the courts away when there are cases of indirect, and not direct, responsibility. There are knotty and difficult questions about the Human Rights Act, the European Convention, extra-territoriality, jurisdiction and so on. I am not yet persuaded that the certification procedure, perhaps extended beyond these amendments, is not the better approach, with limited judicial review. That is something we will need to consider. However, I am grateful to everybody. I agree in particular with the noble and learned Lord, Lord Falconer, that we should seek the minimum necessary to give reasonable and complete assurance.
Finally, I want to say to my noble friend Lady Williams of Crosby that most of what I have learnt about the law was in the United States in the early sixties. It is not really true that the United States has not been a friend of international human rights. On the contrary, whether we start with Nuremburg, the UN International Covenant, the International Criminal Court, or in other ways, the United States has been championing international human rights. The only snag is that it will not apply them in the United States itself in the way that we do. Nevertheless, I learnt most of my international human rights law there and not here. I hope that what I have said may one day be read by the legal adviser to the Department of State, my good friend Harold Hongju Koh, who will understand that I respect its system very much indeed. I also agree with all of those who say that we must find a way of winning its unqualified support in sharing national security information. I beg leave to withdraw the amendment.
Baroness Stowell of Beeston
My Lords, as in the debate last week, tonight’s dinner break business is not time-limited. However, unlike in last week’s debate, I suggest that we have an hour’s break for dinner. I am grateful to my noble friend Lord Howell of Guildford and others due to speak tonight for their patience. I am sure that we will be ready to get cracking again in an hour’s time, but perhaps noble Lords will watch the monitor as we do not need to keep strictly to one hour.
Court of Justice of the European Union
(12 years, 4 months ago)
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Lord Howell of Guildford
That this House takes note of draft regulation 2011/0901A (COD) of the European Parliament and of the Council (amending the Protocol on the Statute of the Court of Justice of the European Union and annexe 1 thereto) and draft regulation 2011/0902 (COD) (relating to temporary judges of the European Union Civil Service Tribunal) and, in accordance with Section 10 of the European Union Act 2011, approves Her Majesty’s Government’s intention to support the adoption of draft regulations 2011/0901A (COD) and 2011/0902 (COD) of the European Parliament and of the Council.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)
My Lords, the debate this evening covers two draft regulations which make modest and technical reforms to the workings of the Court of Justice of the European Union with the aim of improving its overall efficiency. This is the first time that this House has had a debate of this kind, so I shall briefly rehearse and remind noble Lords why we are having this debate.
The draft regulations are subject to Section 10(1)(d) and (e) of the European Union Act 2011. The Act, through Section 10, which covers a small number of important articles in the EU treaties, provides an extra level of parliamentary control over certain decisions. It requires a positive vote in both Houses of Parliament on a Motion from a Minister before the United Kingdom can support a decision in the Council. Section 10 is therefore fulfilling the function for which it was conceived: increasing democratic oversight of the Government’s relationship with the European Union, and giving Parliament control over issues that matter to Britain.
As noble Lords acknowledged the last time we debated reform of the Court of Justice of the European Union in this House, the Court plays a crucial role in ensuring that EU law is observed. It is right and proper therefore that Parliament should oversee the Government’s approach to any reforms to this important institution, even though the reforms that we are discussing today are relatively minor. Why are we in favour of these reforms? A key function of the Court of Justice of the EU is to interpret and enforce EU law relating to the single market. The European Union single market is a key element in the Government’s priority of boosting economic growth and achieving prosperity for our nation. As long as there is a single market, the Court of Justice of the EU is needed to enforce the EU law which governs it. As noble Lords are aware, the Court of Justice of the European Union comprises three courts: the Court of Justice, the General Court and the Civil Service Tribunal. Most of the reforms in the package that we are debating this evening are to the Court of Justice, which is the upper court, and the Civil Service Tribunal, which is the employment tribunal for EU officials.
Your Lordships’ European Union Committee set out in its excellent report of March last year that the workload of the Court of Justice has grown substantially in recent years. New cases increased by 18% in total between 2007 and 2011. While the Court has managed that workload effectively to date, the European Union Committee has rightly questioned whether this can continue. It stated in its report that,
“the expansion of the CJ’s jurisdiction into the Area of Freedom, Security and Justice introduced by the Lisbon Treaty, coupled with the increase of EU membership to 27 States, will have an impact on the CJ’s ability to manage its workload”.
It therefore makes sense in our view to act now to reform the court so that it is better equipped to manage its increasing workload. Many of the reforms that we are discussing today, which I will set out now, work towards this aim. Coming to the detail, there are three main reforms to the Court of Justice. First, the new position of vice-president will be created and appointed from among existing judges, to assist the president of the Court in managing litigation, overseeing the business of the Court and representing it externally. Secondly, there will be an increase in the number of judges sitting in the grand chamber of the Court of Justice, which generally handles the Court’s most sensitive cases. Thirdly, there will be a reduction in the number of presidents of five-judge chambers who have to sit in the grand chamber at the same time.
The package of reforms that we are discussing also affect the Civil Service Tribunal—the employment tribunal for EU officials, as I have already said. The reforms include the power to appoint up to three temporary judges to the tribunal if permanent judges are absent for more than three months for medical reasons. Finally, there is one key reform to the lower court—the General Court. As will be the case with the Court of Justice, a new vice-president position will be created. I could go into much more detail on these issues and will be very happy to do so, but they are already on the record, having been debated in the other place, and I suspect are fully familiar to your Lordships who are attending the debate this evening.
Let me say a word on other reforms and next steps because this is important. We are looking at part of a process and not the final pattern. The Government have been active in negotiating the detail of these reforms, which were proposed by the Court of Justice of the European Union itself. One potential reform about which we had particular concerns has been removed from consideration, and a further reform continues to be considered separately. Let me elaborate on that. The Government did not support the original proposal to remove the 10-day period of grace that litigants are granted for submitting pleadings to the Court of Justice on top of the standard deadline period. We argued that removing the period of grace would damage our national interest by limiting the time available to us to submit pleadings. By retaining it, we have ensured that both the Government and British businesses have the maximum possible time to submit pleadings to the court.
The other reform proposed by the Court, notable in its absence today, was the addition of 12 further judges to the General Court. This reform was proposed to address the substantial backlog of cases, which are currently more than 1,300. My noble friend Lord Bowness, who has played such an active and creative part in this whole issue, explained the reason for the large workload that led to this backlog during our previous debate on this subject. The delay resulting from this backlog of cases is bad for British businesses, which wait months or years for their own case or cases of relevance to them to be heard and determined. We all know from your Lordships’ European Union Committee report, to which the noble Lord, Lord Anderson, referred last time we discussed the Court, that the Confederation of British Industry has expressed its concerns about the implications of these delays. It is essential that the reforms to the General Court address the backlog effectively. This means studying the cause of the problem and the viability of different solutions.
We welcome the establishment of the new group of European member states aiming to specifically consider the broader issue of effective reform to the General Court—the so-called friends of presidency group, which is due to report in December of this year. The Government will actively participate in that group. The detailed work of your Lordships in preparing their report on this subject will be a valuable contribution to discussions.
The questions of increasing the size of the judiciary of that Court, and of how any new judges should be selected and appointed, will be considered in this context. Any increase in the number of judges should be consistent with the requirement for minimal spending in the current economic climate, and should go hand in hand with other efficiencies.
I would like to underline how seriously the Government take this issue and make it clear that we will be working actively over the coming months to try to find an effective solution. We accept that at present the reforms on the table are modest, and it is right that we continue to encourage member states to find a sustainable solution to the wider problems. However, it is clear that these reforms will support the Government’s objective of improving the efficiency of the Court of Justice of the European Union. They will also potentially pave the way for more substantive reform to the General Court at a later stage, when value-for-money considerations can be taken into account. This is obviously important, because a more effective and efficient Court will be good for British businesses operating in the single market. I therefore commend this Motion to the House.
Lord Anderson of Swansea
My Lords, I thank the Minister for his usual clear explanation of what he has called “modest” and “technical” documents. I note that when his counterpart in the other place, David Lidington, set out the case in similarly moderate terms, he was assailed by visceral Europhobes on the government Benches, which illustrates, perhaps, the Government’s problem in pursuing a sensible European Union policy. Happily, looking around, I think it unlikely that the Minister will be assailed in a similar way today.
My substantive point is this: what is the mischief aimed at by these documents? Surely it is to reduce delays in the Court and generally to make it more efficient. Hardly a controversial aim, and the Government broadly accept these aims. The question is whether they are ready to accept the means to achieve those aims. The report of Sub-Committee E, to which the Minister alluded, published in April last year, was highly commended by the Court itself but had a disappointing response from the Government.
We set out the delays and predicted another crisis of workload, as a result both of the Lisbon additions to the work in the area of freedom, security and justice, and of the number of expansions of the membership of the European Union. The predictions of that sub-committee have indeed come to pass, in that in 2009 there were 17 preliminary requests in respect of Lisbon areas but in 2011 there were 44 such requests. That comes from the last annual report of the court, just published.
If justice delayed is justice denied, then there is a prime delay and hence a great deal of denial. The most recent annual report shows that in 2011 the General Court was certainly more productive but at the same time the backlog increased substantially. Clearly the Court cannot keep up with the volume of new business coming to it. To improve the situation, there are three broad areas to be considered.
The first is translation; it is a booming industry. We know prolix lawyers. The proposal to limit the translation to those deemed essential by the court was rejected, probably correctly, because only the litigants themselves can decide that which is important. The compromise was agreed that the Court of Justice may set the maximum of written proceedings. We must now wait to see if the result of that change justifies the Government’s confidence.
There were institutional changes, such as specialist committees, that were rightly rejected as they are inflexible. However, there were some useful minor reforms—for example, new powers given to the vice-president to reduce the workload on the president, and changes in the composition of the grand chamber to even out the workload between the judges. But the key way of reducing the backlog and increasing efficiency is clearly to increase the number of judges in the General Court—the suggestion is by at least 12. That was done in the Civil Service Tribunal by the appointment of three temporary judges in certain circumstances, as the Minister said. That may indeed be a partial solution for the General Court itself, but one cannot avoid the strong case for an increase in numbers.
In May, the Government supported the delay during the Danish presidency of the creation of a friends of the presidency group. The Minister will be well aware from Syria of the new currency of friends of this and friends of that in international parliaments. But there will be a delay until at least December until this informal procedure publishes its report and one returns to the formal procedure.
Therefore, the conclusion is that of course the Government must scrutinise very carefully any proposition for an increase in judges at this time of austerity, but there are also costs in delay. In 2009, as the Minister said, the CBI complained to the sub-committee that in competition cases—those cases most relevant to the single market—the average delay was then 33.1 months. The Minister will have noted that in 2011, according to the annual report, the average delay was 50.5 months. That is more than four years for litigants and business in the UK in single market cases to have to wait for a determination. Surely the Minister and the Government will accept that that is an intolerable delay.
With this compromise of the friends of the presidency, which will seek to report by December, in effect the Government and their allies are putting off a decision for yet another year. In December there will be the report of the friends of the presidency. That will have to be referred to the Council itself. The Council will have to deliberate on the various recommendations. Thereafter, if an increase is agreed—and almost certainly there will have to be some increase in the numbers—there will have to be a recruitment procedure. Perhaps the Minister can confirm this but there will probably have to be yet another delay of perhaps a year before any proposals arising from the friends of the presidency can be implemented.
We have seen the delays rise from 33 to 50 months. It may be well on another 10 or 12 months’ further delay, at great cost to British industry and great damage to the single market. The Government may be penny-wise but they will be proved to be pound-foolish.
Lord Marks of Henley-on-Thames
My Lords, my noble friend the Minister and the noble Lord, Lord Anderson of Swansea, have rightly recognised that the provenance of these proposals is the backlog of cases before the Court, and the fact that the Court, particularly the General Court, has become snowed under by the increasing workload. As the European Parliament’s rapporteur, Diana Wallis MEP, pointed out in her report on the proposals, for several years the number of new cases in the General Court has seriously outstripped the number of cases resolved.
The backlog is not just substantial; it is getting worse year by year. There are three basic reasons for that. The first is successive enlargement. The second is the increasing volume of litigation as a result of the Lisbon treaty introducing new areas. The third is the very welcome introduction of new procedures for accelerating a procedure in clear cases and for interim measures which, while very welcome, are nevertheless expensive in resources. Against that background, the reforms that we are debating today are welcome—in particular, the decision to appoint a vice-president of the Court of Justice.
Since he came into office in 2003, Professor Vassilios Skouris has been very successful in improving the performance of the Court and in streamlining procedures. However, with the increasing workload of the Court, it is only right that the president should be assisted by a vice-president able to preside in his absence and provide continuity in the Grand Chamber where they will both sit, while freeing up the other presidents of the chambers of five judges not to have to sit in every case.
However, I want to ask the Government the question alluded to by the noble Lord, Lord Anderson of Swansea: why did the Government seek—successfully in the event —to defer the proposed increase from 27 to 39 judges in the General Court? The European Scrutiny Committee, to which reference has been made, had no doubt. It reported as follows:
“We conclude that the great majority of evidence recommends an increase in judges of the General Court as the best and most flexible solution to its current workload problems. This would have cost implications … but they appear to be necessary if the EU is to have a judicial system in which justice is dispensed without unacceptable delay”.
In her report, Diana Wallis weighed up the two possible routes that might offer the structural reforms that the European Court of Justice sought. The first was to establish a series of specialised courts and the second was to increase the number of judges. The European Court of Justice came down firmly for the option of increasing the number of judges. They said that it would be more effective, quicker to implement given the urgency, more flexible, and more likely to lead to consistency in European jurisprudence. I would add that a substantial increase in the number of judges would bring in a wider range of specialisms available to the Court in particular cases. The rapporteur found the evidence presented by the European Court of Justice persuasive.
The Government’s reason for the deferral was to do with funding. One accepts that but one must also bear in mind that the cost of the Court is very small—one-quarter of 1% of the EU’s budget; less than 5% of the European Union’s institutions overall. The estimated cost of each extra judge would be in the region of €1 million, including staff and establishment costs. The central point on funding is that not increasing the number of judges is no real economy. The backlog of cases represents a build-up of future expenditure that will have to be incurred at some stage in the future, as the cases will have to be determined. Meanwhile, we are paying the price of the backlog in delay, inefficiency and frustration for litigants and for business. We are not resourcing the Court to do its work properly, which reduces its reputation at the same time.
Can the Minister indicate how far negotiations have progressed to date? When do the Government expect the friends of the presidency group to produce a result? What delay is inherent in the deferral? What do the Government have in mind for reducing the backlog of cases before the General Court in the mean time?
The Earl of Sandwich
My Lords, I served on Sub-Committee E when we produced our report last year but I was unable to speak in the debate last October, which is why I am here today. However, the wheels of EU government, and our own, turn desperately slowly and little has happened during the interval.
The president of the Court himself proposed reforms over a year ago. Some of these are, at last, before us today. I support the Motion that Parliament approves the draft regulations as far as they go, but, as we have heard, they do not go far enough to solve the basic problem. The EU Committee has had hardly any time to consider this matter. Once again, this House is discussing important business at the 11th hour—after everything has been said and when it is too late to change anything—although this has never in the past prevented noble Lords from saying what they think again.
The evidence suggests that the Court of the European Union is at serious risk of implosion. The Minister for Europe says that it is not a crisis. The crisis is not here today, but it is just around the corner, even in the Court of Justice itself. The number and length of cases before it has made some areas of the Court almost unmanageable. In our report we suggested increasing the number of advocates-general in the Court of Justice, as already provided for in the Lisbon treaty. Let us remember that with the new member states, the ratio went up in 2003 to 27:8 from 15:8. No wonder the workload became unmanageable. The rearrangement in the Grand Chamber may help, but meanwhile the General Court is still stuck with only one judge per member. What a terrible advertisement for the European Union, and such easy prey for the ever-prowling Euro-sceptics mentioned by the noble Lord, Lord Anderson. They include some in the Conservative Party who must distrust the size and power of the European Court; we have to face that.
The Minister will have tried to put pressure on his own colleagues, quite apart from other EU Ministers, and this regulation will at least bring him some temporary relief. But as the noble Lord, Lord Bowness, and others have said repeatedly, the Court of Justice is vital for the proper functioning of the European Union itself and it therefore must receive the full support of member states if it is to succeed.
The biggest problems, as the Minister freely admitted, lie in the General Court, which is already overloaded. The pending cases are piling up. The average turnaround in a recent year was 33 months, and one competition case, which has been quoted frequently, took more than four years to complete. As the Minister said, and the noble Lord, Lord Marks, repeated, we suggested some time ago that there should be 12 more judges and tighter rules of procedure rather than the creation of specialist courts. Her Majesty’s Government did not, and perhaps still do not, accept the need for more judges, although the Minister says that the Government take the issue very seriously. What are we to think?
In the debate last October, the noble and learned Lord, Lord Wallace of Tankerness, appeared to agree with the direction of our report and the need for some procedural reforms such as economies in the length of pleadings—but not, of course, with anything that might incur extra cost. The committee suggested that this need not involve taxpayers directly since, as an EU institution, the Court had a reasonable claim on the EU budget. My noble friend Lord Williamson will explain the truth of this. The Minister mentioned value for money, but he was silent on the source of funding. I hope that he will advise us on this later. I am not proposing another government assault on elements of the CAP; rather I seek a recognition in principle that the EU budget is what the Court should look to. As the noble Lord, Lord Marks, said, the costs are bound to increase over time.
The European Union Civil Service Tribunal is a similar story, although we did not have the same concerns. Since our report, the Government have accepted that delays can and do arise from the shortage of CST judges, especially when one falls ill or cannot attend. Again, the president had proposed an ad hoc solution whereby three former judges would come in on a temporary basis, but absurdly, until today Her Majesty’s Government rejected this obvious proposal. Why was that? It was because of budgetary concerns. Perhaps the Minister will explain how it can take so long to reach a change of heart under these new regulations.
The question of judges in the General Court is excluded from the present draft regulations, but the Minister for Europe has assured the committee in a letter that the friends of the presidency group is going to look at it between now and December. The noble Lord, Lord Anderson, also mentioned this. Could this be another opportunity for delay? I am all for ginger groups stitching up solutions, but this method betrays a degree of exasperation with the formal structure, and further delays will follow.
On the Court’s proposed new rules of procedure, the Government have been reluctant to let the Court itself rather than the parties make the decisions, but in the end they recognised the need for some economies in the excessive length of written pleadings, thus reducing the burden of translation. Let us remember that there are 23 official languages in the European Union. I am myself in favour of English alongside French, but the committee did not support that as it is a highly sensitive issue.
The evidence for urgent reform before the Committee a year or two ago was overwhelming, and it remains so today. We have heard some of the statistics today. I am sure that the Minister is much more aware than any of us of the urgency of these reforms and of the apparent helplessness, not to say impotence, of all our Governments on this issue. I look forward to his comments.
Lord Bowness
My Lords, I declare my registered interests as the holder of a solicitor’s and notary’s practising certificate. The justice and institutions sub-committee, which I chair, of the European Union Select Committee welcomes the Government’s proposal regarding the draft regulation before the House this evening, but in line with our report on the workload of the Court, as mentioned by other noble Lords, we wish that the proposed regulation addressed the need for more judges to be appointed to the General Court. We are pleased that discussions in which the United Kingdom is participating are taking place but we do not want the momentum for reform to be lost by dealing with the matter piecemeal. I am pleased to learn that the friends of the presidency group is due to report by December.
At the time of our report we were concerned about the increased workload due to the many reasons referred to by the noble Lord, Lord Anderson of Swansea: the extension of the jurisdiction of the Court, the impact of EU expansion and the Court’s own analysis of its workload. The noble Lord, Lord Marks of Henley-on-Thames, has already pointed out that the amount of money involved is quite small—a quarter of 1 per cent of €126,527 million.
The General Court, which is our concern, deals with almost all the cases brought against the institutions and agencies of the EU. They are complex cases and it is here that the problem lies in managing the current and likely future workload. Our committee’s report proposed a number of solutions and I explained these at length in the debate on 17 October last and will not take the time of the House by repeating them. In summary, we accepted there was a case for better case management but that by itself would not solve the problem. The language regime and translation was not the main cause of delay. We rejected as a long term solution the creation of additional specialist chambers and the answer was—in our opinion—the appointment of additional judges to the General Court which can be done without treaty change.
The committee also holds under scrutiny proposals for reform of the Court of Justice, some of which form the proposals before us this evening, all of which we support: the creation of the vice presidents of the Court and the General Court, the amendment of the rules relating to the composition of the Grand Chamber, the abolition of the rule requiring the reading of the rapporteur’s report at the oral hearing and the appointment of temporary judges to assist the civil service tribunal.
Still outstanding, however, are the issues of increasing the number of General Court judges and the revision of the rules of procedure. I support this resolution, but why does the appointment of temporary judges to the Civil Service Tribunal engage Section 10D of the European Union Act 2011 when that section refers to the establishment of specialised courts and this deals with the appointment of temporary judges to it? If the recommendation is for more judges, will we need the same parliamentary procedure before Her Majesty’s Government may agree the proposal?
My closing comments are mine rather than necessarily reflecting the opinion of my colleagues on the justice and institutions sub-committee. I read with considerable care the debate in the other place on this resolution in which a number of assertions were made by Members with strongly held opinions which I respect but which I believe need to be rebutted somewhere on the record of this Parliament. My honourable friend Mr Jacob Rees-Mogg suggested on 12 July, at col. 503 of the Official Report, that it might be in people’s interests for the Court to be “bunged up”. I do not want the Court of Justice of the European Union to reach the same state as the European Court of Human Rights where there are some 125,000 outstanding cases.
The European Union is based on the rule of law and respect for human rights and the Court is a vital institution for the proper functioning of the Union. Without it we will have nothing to buttress the operation of the single market from which everyone wants to benefit but which critics of the EU want without the burden of the rules which underpin it.
It was also suggested by another honourable Member that private parties’ disputes could be resolved in London using contracts which specified the determination by English law and that would stop European judges replacing the work of—again, I quote, for reasons which lawyers will understand—“British” judges. That rather misses the point that the European Court deals with European law and its interpretation, which must be uniformly applicable across the member states if we are to enjoy the benefits of the single market, the importance of which, I am pleased to say, has been underlined by my noble friend the Minister.
It was further suggested by my honourable friend Mr Rees-Mogg that the court is,
“not a proper, honest, decent court, like our courts are”.—[Official Report, Commons, 12/7/12; col. 510.].
He used as justification for that assertion that the Court had ruled to increase its own pay. It would be good to hear the Minister confirm that the pay of European officials, including judges, is determined by the staff regulations agreed by the Council, comprised of the member states, and that the Court did not rule to increase its own pay. Rather, it determined that the proper procedures had not been followed by the Council in making a regulation to adjust salaries of all EU officials—not just judges. The judgment makes it clear that the Council should have sought to proceed under a different article in the staff regulations. The case was therefore similar to a UK judicial review of government decisions taken improperly.
Lastly, my honourable friend Mr Cash said that the court is,
“manned by people who, I have no doubt, could be regarded as generally proficient in law, as they are professors and celebrated advocates; the problem is that the members are not drawn from judges alone ... In the UK, it is unimaginable that members of a senior court at such a level would not be drawn from the senior judiciary”.—[Official Report, Commons, 12/7/12; col. 508.]
Can my noble friend confirm that the most recent appointment to United Kingdom Supreme Court, Lord Sumption, had, until his appointment, not held full-time judicial office and that there are precedents of appointments from Scotland to the Lords of Appeal in Ordinary to serve in your Lordships’ House?
The European Union Act means that we will have many more debates on relatively minor, although not unimportant, pieces of EU legislation. In some ways, that is welcome, as Parliament becomes more engaged with EU matters. However, it means that the Government will have to be ready to rebut arguments put forward by those who will oppose anything and everything, as it presents an opportunity to advance their opposition to the European Union.
My right honourable friend the Prime Minister was reported as telling the Daily Telegraph on 19 July that he would never campaign in favour of leaving the EU. With the greatest respect, if that question is ever put, the arguments for the European Union will need to have been clearly articulated and assertions similar to those exposed in the debate in the other place firmly and loudly rebutted if only to ensure that those of us who would join the Prime Minister in campaigning against leaving succeed in such a vote.
I trust that we will support the resolution so that Her Majesty’s Government may support the proposal at the meeting of the Council—which is, I believe, tomorrow.
Lord Hannay of Chiswick
I shall speak briefly in support of the Government’s resolution on the reform of the European Court of Justice. I will not go into the detail of the reforms, which have already been very competently described by the Minister, or into the detail of the grounds, which were well prepared by the excellent report produced during our last Session by the noble Lord, Lord Bowness, and his Sub-Committee E of the EU Select Committee, which the Home Affairs sub-committee, which I chair, works in very close concert with. I join the noble Lord in deploring the fact that the Government have not agreed to the increase in the number of members of the General Court recommended in the report.
I shall address one or two more general issues about the European Court of Justice. It remains a cause for dismay, and sometimes despair, that so little is known in this country about the European Court of Justice, its rationale and its work. Even generally well-informed commentators find it difficult to distinguish between the European Union’s Court of Justice, which we are discussing this evening, and the Council of Europe’s human rights court. Yet these two bodies have jurisdiction over completely different areas of international law, which apply to a completely different membership— points that one would have thought were fairly easy to grasp.
Many commentators do not even try to understand the distinction. In their eyes, the two courts are simply part of some supposed European conspiracy designed to deprive law-abiding British citizens of their rights and sovereignty. All that is asserted despite the fact that the jurisdictions of both courts and the laws they exist to apply have all been established by the votes of this Parliament, just as our domestic laws have been. That these ill-informed criticisms have such a wide currency is no tribute to either the commentators who use them or the audiences to which they are addressed.
Just in case anyone is minded to regard what I have just said as a trifle paranoid, may I suggest that reading Hansard on the debate in another place on the reforms we are discussing tonight would cure them of that illusion? Not only were some of the interventions larded with phrases that would never be considered parliamentary if directed towards any court in this land, but in addition it was seriously suggested that our national interests would be best served if the European Court of Justice were indeed “bunged up”. Those are not my words; this rather juvenile, puerile humour in which European issues are often discussed in the other place is not one I would choose myself. That is surely a prime example of worst is best—a reasoning that it is bizarre to hear coming from supporters of the Government. With supporters like that, one wonders why they need an Opposition.
In contrast to that argument, I would suggest that the rationale for the European Court of Justice is a simple one that has been made by other noble Lords in this debate. From the outset, the European Communities, now the European Union, were granted certain carefully circumscribed legislative powers, and jurisdiction over disputes about the application of the treaties and laws adopted under them was to be exercised not simply by originally six and now 27 national legal systems but by a European court on which all member states were represented. In this way, from the very beginning the rule of law was a leitmotiv of this new international project, and common sense surely indicates that it has to be if concepts such as the single market—to which, rightly in my view, this country attaches primordial importance: a fact that the Minister underlined, which was welcome—are to provide the level playing field that we all seek.
That was the European Community we joined in 1973, so please do not let us hear again the argument that somehow we joined something different. The European Community that we joined had a Court of Justice with the powers necessary to apply European law. We may sometimes dislike or even deplore the Court’s judgments. Many of us do the same from time to time with regard to the judgments of our own domestic courts, but to contest or to seek to reverse or qualify the European Court of Justice’s jurisdiction is to contest our membership of the European Union itself. All that was set out far more eloquently than I can do, during our debates on the ratification of the Lisbon treaty, by the late Lord Slynn of Hadley.
Do we have an interest in helping the European Court of Justice to work more efficiently and effectively, which is the purpose of the reforms that we are debating this evening? The answer to that must surely be yes. As a country that has for many centuries been committed to the rule of law, it is desirable that legal rulings should be provided without undue delay, and that the increased workload of the Court that inevitably flows from the geographical expansion of the European Union and the extension of its responsibilities into new policy areas should not result in such delay.
I have one final point to make. In 2014, Britain will have to decide whether to accept the jurisdiction of the European Court of Justice over legislation in the fields of justice and home affairs, adopted before the Lisbon treaty came into force. That is to say: it was legislation that by definition was adopted by unanimity. The Government have, very correctly in my view, decided to consult widely about the decision then to either opt out or opt in to that jurisdiction, which all other member states are already committed to accepting by the end of 2014. They have agreed to put the matter to votes in both Houses. I have no intention of entering into the substance of that decision now. My plea is simply that those consultative processes and those votes should be based on full evidence of the pros and cons of the two possible courses of action, transparently presented and carefully considered.
My committee and that of the noble Lord, Lord Bowness, will be seeking to provide the House with that evidence in good time. Meanwhile, I suggest that it would be better not to jump to conclusions, as so many Members of the other place have already done. It is better not to decide in haste and then repent at leisure.
Lord Williamson of Horton
My Lords, as is normal, I declare an interest in that I spent a large part of my career dealing with European affairs in the UK Civil Service and part of it in the European Commission, and that I have pensions from my work.
The House is of course already aware of the problem identified in the two draft EU regulations to which this Motion relates—namely, the backlog of cases and consequent delays in the European Court of Justice, in particular in the General Court, and in the European Civil Service Tribunal. The average turnaround in competition cases was recently 33 months but rising, as stated by the noble Lord, Lord Anderson. That is a serious matter when settling these extremely important questions for business, both that of this country and of others within the European Union. The House debated the issue on 17 October last, when the noble Lord, Lord Bowness, presented a report of the EU Committee. It is fair to say that in that debate, and again of course tonight, all noble Lords who spoke considered that some action was necessary, including the possible increase in the number of General Court judges from 27 to 39. I shall come back to this point because that proposal is not dead but is not in draft Regulation 2011/0901, as now amended, which is before us this evening.
In October last year the right honourable Member and Minister for Europe, Mr Lidington, stated in a letter that the Government were not convinced that the Court is facing an imminent crisis. In the debate on 17 October, the noble and learned Lord, Lord Wallace of Tankerness, slightly elaborated on that point when he said that the EU Committee and contributors to that debate recognised that the Court of Justice had done a remarkable job in managing the case load and that it was “in that context” that the Government did not accept that there is an imminent crisis with regard to the Court of Justice.
I shall come back specifically to the Motion before us, but I will make two preliminary points. First, the document tells us that the two draft regulations are to be put to the Council for agreement on 24 July—that is to say, tomorrow. We are running it a bit fine, if I may say so, because the Motion is needed to comply with Section 10(1)(e) of the European Union Act 2011, under which a Minister may not vote in favour of or otherwise support the decision unless parliamentary approval has been given. In some respects, I believe that the European Union Bill went too far, but I am attentive to the meticulous respect of the 2011 Act, which is now in force. Secondly, it was difficult last week to get hold of the two draft regulations with which this Motion deals: 2011/0901 and 2011/0902. By chance, however, I came upon the briefing pack from the Library and I can tell the Minister that my comments rely on that pack.
In substance, what we are now being asked to approve in the current version of Regulation 2011/0901 is the establishment of a vice-president of the Court of Justice, the removal of the requirement to read the report of the judge rapporteur at the hearing, and the modification of the composition of the Grand Chamber to have at least three presidents of chambers of five judges as well as the president of the Court, the vice-president and other judges. In Regulation 2011/0902, we are asked to approve the possibility of attaching temporary judges to the European Civil Service Tribunal, and that does not appear to be controversial. I think that we can agree to the procedural changes as the Government recommend.
In October 2011, there were 1,323 cases pending before the General Court. That is too many. In an Answer to the noble Lord, Lord Kilclooney, on 10 January, the noble Lord, Lord Howell of Guildford, stated that 20 live cases were referred from a UK court or tribunal where judgment had not been issued by the European Court of Justice, and some of these were quite old. He did not say that they were old, but I can assure him that they were. There are a number of reasons for the increase in the judicial load. One is the regrettable increase in legislation. Another, to which I draw particular attention—and it has not been mentioned so far tonight—is that, as stated in the Commission’s opinion of 30 September last:
“the highest rate of increase has in fact been in appeals against decisions concerning sanctions against people or entities based on mechanisms established under the Common Foreign and Security Policy”.
It is always a cause for serious reflection if the number of appeals increases, since they represent a non-acceptance of earlier judicial or similar decisions.
What we are not being asked to approve tonight, which a lot of Members regret, is the increase in the number of judges in the General Court from 27 to 39, at a cost estimated by the European Court of Justice itself of about €13 million a year. I am very keen that, because we recognise some action is needed to reduce the overload in the General Court, we should not consider implicitly favouring this specific proposal. I believe that we may need an increase in the number of judges, but I cannot find anywhere in this excellent pack a specific justification for the considerable increase from 27 to 39. I am aware that the European Court of Justice asked for it, but we need to be sure about the reason for that particular number.
The rapporteur of the Committee on Legal Affairs of the European Parliament concedes rightly in her report that,
“there is no empirical method of demonstrating that the figure of 12 additional Judges is the correct one”.
I certainly think that that matter needs careful consideration, despite the enthusiastic support of many Members of this House for action on the number of judges.
Lord Liddle
My Lords, we had an excellent debate on this subject last October on the equally excellent report of the committee chaired by the noble Lord, Lord Bowness, on the European Court of Justice. I think that many noble Lords tonight share a certain disappointment that we are only being asked to give our approval to a rather modest proposal by comparison with the reforms that were set out then. On the modest proposal, we think it right that it needs to be approved by Parliament. This is one aspect of the European Union Act 2011 of which the Opposition approve—greater parliamentary control, but not multiple referenda.
Secondly, this is a welcome step forward, so we support it. As the very talented Europe Minister in the other place, Mr David Lidington, pointed out,
“justice delayed is justice denied”.—[Official Report, Commons, 12/7/12; col. 504.]
We fully agree with that principle. However, it is clearly not a full solution to the problem, or anything like it. The Government accept the case that more needs to be done. The Minister in the other place pointed to the 18% increase in workload of the Court in the past four years. Then there is the fact that with enlargement, which by increasing the number of judges originally eased the problem, more cases arose from its being a much bigger Community. With the communitisation of justice and home affairs, the workload has increased even further.
The argument that reform is needed is unanswerable. It cannot be in the UK’s national interest that the body that is the arbiter of the single market should be gummed up, as was said in the other place. I would like to hear from the Minister tonight that despite this modest reform Britain will continue; we will not regard it as enough but continue to be a persistent advocate of further improvement and measures to tackle the workload problem in the Court. I was encouraged by what the noble Lord, Lord Howell, said about the Government working to find an effective solution. This will almost certainly involve the appointment of extra judges to the General Court. The noble Lord, Lord Williamson, may be right that whether the number is 12 needs to be looked at more closely. Around the House we would like to hear from the Government tonight that they agree with the proposition that more judges need to be appointed to the General Court.
I recognise that there is a very legitimate point about cost, efficiency and value for money. I am very sorry that I had to pop out when the noble Lord, Lord Marks, spoke, but I heard him make the point that the cost of the ECJ was about 0.15% of the EU budget. It is a very small amount of money and it seems that the gain would be very considerable from our national perspective. So I do not think that cost should be a barrier to what we regard as a change. Of course, we have to seek efficiencies and I am sure that we should be doing that. Although the language regime may not result in delays, it certainly adds to the costs of the Court, so we should be advocates of change there.
On this side of the House we share the concerns expressed by many Members, initially by my noble friend Lord Anderson of Swansea, that what is preventing the Government from taking this issue forward is the pressure from Members in another place who basically do not like Europe and do not want to see it working properly. I was as appalled as many Members were when reading the Commons Hansard, although the criticism comes much better from someone like the noble Lord, Lord Bowness, than it does from me. I was appalled by what the Member for North East Somerset, Jacob Rees-Mogg, said. He is regarded as one of the brightest and best of the new intake in terms of his intellectual and speaking abilities, but I refer noble Lords to the language that he used about the Court, saying that it is,
“not a proper, honest, decent court”.—[Official Report, Commons, 12/7/12; col. 510.]
He said that it was a “rotten court”. This displays an extreme and ignorant point of view, and the Government in their own interests must make it clear that they will not allow a common-sense solution to these problems to be blocked by that kind of attitude in another place.
We look forward to the friends of the presidency report by the end of the year and we would like the Minister’s assurance that the Government will vigorously rebut the ill informed criticisms that stand in the way of a proper solution to this problem.
Lord Howell of Guildford
My Lords, I join others in thanking all noble Lords who have participated in this debate on the Court of Justice of the European Union. As I mentioned at the beginning, I believe that this is the first time the House has had a debate of this kind, following the coming into force of the European Union Act 2011. This is Section 10 doing its job, in effect, allowing parliamentary scrutiny of, focus on and pressures towards important decisions in the EU. It is quite clear from the discussions this evening that this process works. It comes with a very clear message that will emerge in a moment, but certainly it is an opportunity to put a message that would not have been there before.
As we know, the regulations before us this evening make a number of fairly minor changes—there is no disguising that they are minor—primarily to the Court of Justice and to the Civil Service Tribunal. The changes are aimed at improving efficiency and overcoming the backlogs in those two courts.
I do not think that I have ever had an easier task than I have had this evening because every one of your Lordships who has spoken has made the same central point, which I totally recognise and of which I see the validity. The point is that the move towards the appointment of more judges and reform to overcome the backlog in the General Court should be going forward faster. All noble Lords who have spoken displayed a clear view that would like to see the situation move faster; that it is, in the words of the noble Lord, Lord Anderson, unacceptable to have delay; and, in the graphic words of the noble Earl, Lord Sandwich, that the wheels of the legal system of the European Union and the wheels of international discussion or supranational discussion, move very slowly indeed. The United Kingdom will certainly continue to press forward. We are members of the friends of the presidency group; we are aiming for the December report, as I made clear in my opening remarks; and, as the noble Lord, Lord Williamson, rightly emphasised with his enormous experience of these things, there will be the need for very careful consideration.
I mentioned in my opening remarks the selection of the judges. The noble Lord, Lord Williamson, asked whether 12 was the right number—12, of course, is the number that emerges from the Court’s own views.
Lord Anderson of Swansea
The Minister mentioned the December report. He surely recognises that that is an informal procedure, which has to be restored to the formal tracks. Does the Minister agree that it may take a year from now before any new judges are in place?
Lord Howell of Guildford
I cannot really agree with that because I do not know exactly how the pressures will build up. It is possible, of course, that it will take a year—that is a gloomy assessment—but the report may be very well focused. The momentum behind it may increase. Indeed, the results of this evening’s debate may assist in the kind of momentum that the noble Lord wants to see.
The noble Lord, Lord Bowness, who obviously speaks with enormous authority on these matters, asked particularly why Section 10 applied to the draft regulation relating to temporary judges of the EU Civil Service Tribunal. The answer is that the legal basis of that draft regulation is Article 257 of the Treaty on the Functioning of the European Union, and that is listed in Section 10(1)(d) of the European Union Act 2011, which we took through this House a year ago. That is the technical answer to the very detailed question that the noble Lord rightly put, because it is the detail that this Chamber can focus on remarkably effectively. It gives me great pleasure that your Lordships’ House is able to look in such detail at these matters.
Your Lordships mentioned a whole range of other issues, all coming back to the question of delay. Obviously costs are involved. In this age, we cannot just put them aside. Although costs should not be the decisive matter, we should take them very carefully into consideration.
The noble Lord, Lord Hannay, pointed out that, in addition to the fact that the Lisbon treaty obviously added greatly to the functions and responsibilities of the ECJ, ahead lie other key decisions about opting in and opting out in 2014. They are decisions that we will have to debate and they will be taken very carefully. I think that almost every other noble Lord who spoke, including the noble Lords, Lord Marks of Henley-on-Thames and Lord Liddle, and I have mentioned all the other noble Lords, all referred to speeding up matters.
Lord Hannay of Chiswick
I just want to ensure that the noble Lord appreciates, as I am sure he does, that the extension of the workload of the European Court of Justice, by getting jurisdiction over the justice and home affairs area, does not depend on our decision. Whichever decision we make, 26 countries will be subject to that jurisdiction in December 2014, and that is going to increase the workload massively, whatever decision we come to.
Lord Howell of Guildford
I am sure that the noble Lord is right to emphasise that. The workload will increase. We have heard various reasons for that but some of them must arise from the changes made in the Lisbon treaty. Some arise from the increased litigation; some, as the noble Lord, Lord Williamson, reminded us, arise from international pressures; and some from the increased membership. All those things add up to the fact that this is a Court which, if it is to work efficiently, must clearly gear itself to a much greater load than it has had in the past. I do not think that anyone could dispute that.
As I said, the draft regulations are minor, and the Government support them. We think that they make a step in the right direction and that they will support increased efficiency in this very important European institution. They should also help to prevent a further backlog of cases building up before the European Court of Justice and the European Civil Service Tribunal. There has been a considerable problem for the General Court, as pointed out by the committee and as highlighted graphically by my noble friend Lord Bowness this evening.
If I may meet the challenge put by the noble Lord, Lord Liddle, it is absolutely clear to us that an effective and efficient Court of Justice of the EU is in our national interest. British businesses rely on the timely administration of justice within the context of the single market, and a single market that is able to operate effectively is as crucial now as it ever was as we seek to restore the growth and confidence required to build Britain’s prosperity.
Therefore, the Government will continue to work on wider efficiency reforms to the Court of Justice of the European Union, as indeed they will continue to do in relation to the General Court. Those things will have to be taken carefully but we will press on with them.
I thank noble Lords for their contributions to the discussion. I hope that I have covered every detailed point as well as the general points which I have been asked to comment on. If I have not, I shall of course write to your Lordships. I am grateful for the very clear message that has gone out from this House this evening, and I commend this Motion to the House.
Justice and Security Bill [HL]
(12 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Beecham
Lord Beecham
My Lords, these amendments seek to confine the definition of “sensitive information” for the purposes of Norwich Pharmacal cases to intelligence effectively held by foreign intelligence services, rather than any intelligence service, including our own. So Amendment 74A would delete in Clause 13(3)(a) the reference to,
“held by an intelligence service”,
which would, of course, embrace our own intelligence services. Under Amendment 76A, Clause 13(3)(b) would cover, within the definition of “sensitive information”, information held on behalf of a foreign intelligence service. Amendment 76C would, at line 13, delete the paragraph so that the whole issue becomes that of a foreign intelligence service.
Amendment 80A, on the other hand, looks at the rather more significant issue of whether,
“disclosure is contrary to the public interest if it would cause damage (a) to the interests of national security”—
which is, of course, accepted—
“or (b) to the interests of the international relations of the United Kingdom”.
The wording of the amendment looks to have been truncated somewhat. The intention is the same as that of Amendment 80, in the name of the noble Baroness, Lady Williams, who is not in her place, but it would leave out reference to,
“the interests of the international relations of the United Kingdom”.
Of course, security matters would remain covered. The question is: what is the import of the Government’s intention to allow removal from disclosure in the interests of international relations?
One can envisage, of course, that international relations might include questions of national security, but there might also be other matters, such as trade relations with other countries. Are we to be obliged to protect documentation which might relate to, or have an impact on, our economic relations with a foreign country? It might not be an ally; it might simply be a trading partner, a country to which we are exporting or seeking to export goods; a country, perhaps, with an undemocratic regime. Why should these matters not be withheld to protect interests of that kind, as opposed to matters of national security? It will be interesting to hear the noble and learned Lord’s justification for that rather broader definition.
I repeat that we accept that the interests of national security are perfectly legitimate and should be protected. I beg to move.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the noble Lord, Lord Beecham, has sought to explore whether it is possible to define the Norwich Pharmacal jurisdiction in a narrower way than is available under the Bill as it stands. As was well aired in the earlier debate—and, indeed, on the second day of Committee and at Second Reading—because the aim of a Norwich Pharmacal case is to achieve release of information, it is not possible to agree a monetary settlement in order to prevent that information being released.
It is a different situation in damages claims. In this case, the court can still order the Government to release information if public interest immunity is not upheld. It is therefore important that Clause 13 provides the necessary protection for material whose could cause damage to national security or, in the part that these amendments relate to, to the effective functioning of international relations with key foreign partners.
Lord Beecham
I am grateful to the Minister for his explanation. Both those matters go rather wider than is necessary to protect the particularly relevant considerations of national security. They could be used to justify almost anything in relation to the activities of other countries, and to protect them, as it were, from claims brought under the Norwich Pharmacal procedures. The very fact of the result of the Omar case—if it is upheld—would, in any case, indicate that the courts will not rush to supply or to authorise disclosure. To that extent, it may be that the Bill as drafted is unnecessary. I remain somewhat concerned at the breadth of reach of these proposals. However, in the circumstances I beg leave to withdraw the amendment.
Baroness Berridge
“Annual renewal
(1) The Secretary of State’s powers under Part 2 of this Act expire at the end of the period of one year beginning with the day on which this Act is passed.
(2) The Secretary of State may, by order made by statutory instrument, provide that the Secretary of State’s powers under Part 2 of this Act are not to expire at the time when they would otherwise expire under subsection (1) or in accordance with an order under this subsection but are to continue in force after that time for a period not exceeding one year.
(3) An order under this section may not be made unless a draft of it has been laid before Parliament and approved by a resolution of each House.”
Baroness Berridge
My Lords, along with the reporting and recording requirements in previous amendments, the new clause proposed by this amendment would keep Parliament abreast of the use of closed material procedures. It is modelled on the provision that was introduced when the control orders were introduced into our system. For the first five years they were subject to annual renewal because they were a novel jurisdiction. The same point applies here with the closed material procedures in civil proceedings.
In Committee, many of your Lordships have mentioned the impact that closed material procedures could have on public confidence in the judicial process. This amendment means that without a resolution of each House the powers fail, which is the appropriate mechanism for Parliament to act swiftly, should there be significant concerns about the understanding of and confidence in our judicial system. One of the agreed facts in Committee has been that this is a controversial mechanism to introduce into the civil justice system. It has been noted that Parliament would have introduced this despite the almost universal view of the special advocates that it is not to be recommended.
It is important to have a swift get-out clause to halt closed material procedures, which this amendment gives. Any mechanism that required primary legislation to amend the Act would take too long to deal with such a situation. I beg to move.
Lord Pannick
My Lords, I have added my name to this amendment. Nobody who has listened to or read our debates on Part 2 of this Bill over the past few weeks could doubt the importance or difficulties of the issues that we have been considering. Parliament may well decide that it is necessary to include these provisions in Part 2 but they undoubtedly are a departure from the fundamental principles of the common law. There is no doubt that they have a considerable novelty. It is essential that Parliament keeps these procedures under close review. Indeed, how these provisions are operating in practice will be vital to the balance between justice and security, which the noble and learned Lord the Advocate-General for Scotland has repeatedly and correctly in my view emphasised is the primary concern. An obligation on the Secretary of State to bring these matters back to Parliament for an extension of these provisions after a year will focus the mind of the Secretary of State and officials. It will give this House and the other place an opportunity to look at what has happened in practice. I hope that we will also then have the advantage—and it will be a real advantage—of seeing a report from the much respected independent reviewer of terrorism legislation, Mr David Anderson, on how these provisions have been applied.
I hope that I am not out of order in saying that I would very much hope that noble Lords might have the opportunity to hear directly from Mr Anderson, as we always benefited and still benefit from hearing his equally respected predecessor, the noble Lord, Lord Carlile of Berriew. The noble and learned Lord the Advocate-General for Scotland might want to suggest to his right honourable friend the Prime Minister that it would be most helpful to noble Lords if Mr Anderson were able to express views in this House as a noble Lord and participate in our debates. Whether we hear from Mr Anderson directly or indirectly I strongly support the amendment.
Lord Lester of Herne Hill
I am not sure that David Anderson QC can be made a Peer with sufficient speed to meet the wish of the noble Lord, Lord Pannick, but I can tell the Committee that the Joint Committee on Human Rights has asked him to give further evidence and we are anticipating preparing a report in time for Report stage that will include his views. That part of the amendment may be met through the committee system in an ordinary way.
Lord Beecham
My Lords, the sun has already set here, although not in Newcastle or even further north, so I shall not detain the Committee long. I support the amendment moved by the noble Baroness. She is absolutely right in what she said. I make an additional suggestion to that of the noble Lord, Lord Pannick, which is that the Intelligence and Security Committee could look at the position at the end of the year. Its deliberations could no doubt inform the discussion that will take place here and in the House of Commons in relation to an annual renewal. A number of assertions have been made about the likelihood of there being only a small number of cases and the impact of the proposed changes. Following the precedent referred to by the noble Baroness, it would be well to monitor those at least for a period until we can see clearly how the legislation works out in practice. I commend the amendment to the Committee.
Baroness Stowell of Beeston
My Lords, I am merely a Whip, and do not have any powers that would extend to conferring a peerage on anybody, but I will certainly ensure that those that have more authority are aware of the view of the noble Lord, Lord Pannick, about Mr Anderson QC.
The amendment moved by my noble friend Lady Berridge is part of a wider set of amendments that she has tabled—some of which we debated last week—which are part of a package of measures that noble Lords would like to see introduced in order to ensure that the Bill, if it becomes an Act, is reviewed post its Royal Assent.
I can understand the reasons behind that because, as we have acknowledged on many occasions, this is a Bill which would introduce very different measures to the justice system than have been in place hitherto. However, we believe that the amendment is not necessary. I hope I can explain why to the satisfaction of your Lordships this evening.
In the case of Norwich Pharmacal, the primary problem we are seeking to address is how we provide reassurance to our allies that we can protect information shared with us in confidence. We had an extensive debate about this before dinner. One question we could ask ourselves is: would we share a secret with someone knowing full well that it was only guaranteed to be safe for up to 12 months, and that after that time the person might be required to release that information? We expect our allies to protect intelligence material we share with them from disclosure, and they expect the same from us. The inadequacies in our current ability to properly protect classified information provided by foreign Governments have already seriously undermined confidence among our key allies, as we have heard this evening.
A time-limited protection will simply not provide enough reassurance. It would cause our allies to continue to doubt our ability to keep material safe from disclosure. For these reasons the measures in Clauses 13 and 14 of the Bill remain the only comprehensive safeguard against the serious damage that Norwich Pharmacal relief poses to our national security and international relations.
In relation to proceedings in which the CMPs introduced by Clause 6 would be available, we expect that current CMP live cases would be dealt with in the first year, with stayed cases spread over the two years thereafter, alongside other emerging cases. As noble Lords know who are more familiar with the law than I am, civil claim caseloads can be unpredictable in the long term. I believe it is important that claimants have the continued ability to bring all claims against the Government, and that matters are scrutinised by the courts, rather than returning to the current system, where in some circumstances justice is not possible.
I should remind the House that the Bill provides the power to remove a court or tribunal from the definition of “relevant civil proceeding”, as we heard in previous debates tonight, where there is no longer a case for it to be included. This is already provided for in the order-making power in Clause 11.
As we have discussed several times during previous debates, the final decision to hold a CMP in the High Court, Court of Appeal or a Court of Session will be made by a judge. The judge will determine whether a CMP goes ahead on the grounds that there is some material relevant to the case, the disclosure of which would damage national security. The judge would then decide how each individual piece of evidence should be dealt with, and whether that should be in closed session or in open session. We can be confident that the judge will ensure that the provisions for CMPs will be used only in the very specific and narrow circumstances where that test is met.
In the case of challenges of the Home Secretary’s decision to refuse someone British citizenship or to exclude them from the UK, we are dealing with a category of cases where the court has found that it is potentially fairer to the claimant for there to be a CMP available. The expiry of those clauses would reduce fairness by removing the ability to challenge those decisions effectively.
By way of contrast, there are similar provisions in the TPIM Act. My noble friend referred to the control orders and the introduction of a sunset clause when control orders, the predecessors of TPIMs, were introduced. Under Section 21 of that Act, the powers expire five years after Royal Assent. This can then be extended for further periods of five years. However, TPIMs are unique. They involve measures that have an impact on the daily lives of those subject to the orders, including restrictions on liberty. As a consequence Parliament decided that strict post-legislative measures were needed. There are no sunset provisions in place in any other context where CMPs are available.
I should also point out that in its report the Constitution Committee considered how the Bill should be reviewed after Royal Assent, and it did not recommend a sunset clause. Its report said that the House might wish to consider the Bill being independently reviewed five years after it came into force. As I explained in my response to Amendment 67A last week on day 3 of Committee, Bills are normally subject to review three to five years after Royal Assent. The Select Committee responsible will then decide whether it wishes to conduct a further post-legislative inquiry into the Act and it is right to leave it to the Select Committee to decide the form of independent post-legislative scrutiny.
As I said, I recognise that the amendment and others like it that we have discussed previously are inspired by a strong feeling among some noble Lords that we should have in place a thorough process for post-legislative scrutiny on a Bill that is introducing something different. But, as I hope I have been able to outline tonight, the measures that already exist will meet the objective that has been set out by those who spoke in favour of the amendments, and sufficient safeguards are in place without introducing a sunset clause. On the basis of that, I hope that my noble friend will feel able to withdraw her amendment.
Baroness Berridge
My Lords, I am grateful to the noble Lord, Lord Pannick, for illustrating how one can tangent with one amendment to introduce a slightly different topic. I am also grateful to the noble Lord, Lord Beecham; I think that we now have a score draw on whether there is support from the Benches opposite for my amendments.
I am of course disappointed to hear that my noble friend does not believe that this is necessary. There are distinctions between control orders that affect the liberty of the citizen as opposed to this jurisdiction. This is a very distinct jurisdiction to be introducing closed material procedures into. It will affect our civil justice process, which is very different from the other legislative regimes. In civil proceedings, it often calls the Government to account for their actions. Vast amounts of resources, as I saw going down to the High Court, are invested in putting someone under a control order. It was said that there is nothing worse for them than being in existence for only a year, even though so much is invested in them and it could have all fallen flat in that year.
Finally, it was said that people would not share secrets thinking that they would be secret only for a year, but there has been agreement around the House that this is a very narrow jurisdiction, particularly after the Omar case that we are dealing with, so there would be no massive knock-back effect on intelligence if there were some kind of sunset clause. I hope that we will be able to return to this matter later on in the proceedings on the Bill. I beg leave to withdraw the amendment.
Lord Lester of Herne Hill
“Overriding objectives
In performing their functions under this Part, the Secretary of State and the court must have regard, in particular—(a) to the overriding objective of protecting the interests of justice and fairness, and(b) to the need to ensure that any interference with the principle of open justice is no more than is necessary to protect the interests of national security.”
Lord Lester of Herne Hill
My Lords, the noble Lord, Lord Campbell of Alloway, once gave me some very wise advice. It was a kind of rebuke. He said, “Never make a serious point after the dinner hour”. I am sure that that was indeed wise advice, but I am going to make a serious point nevertheless.
The noble Lord, Lord Pannick, and I listened very carefully to the debate that took place on 11 July when the noble and learned Lord, Lord Wallace, indicated that he could not make a concession at that time about the principle of proportionality, but he would listen very carefully to what had been said by the noble and learned Lord, Lord Falconer of Thoroton, my noble friend Lord Thomas of Gresford and myself.
The principle of proportionality sounds foreign except to those who have had a proper classical education who will remember that the Greeks themselves and their philosophers developed the idea of the golden mean and a sense of proportion. That idea is rooted in our legal and political system and is as English as roast beef, Yorkshire pudding, and roast potatoes. It simply requires that the decision-taker should not use a sledgehammer to crack a nut.
Amendment 90 seeks to embody in the Bill principles which have to be taken into account by the Secretary of State and by the court in the way in which they interpret and apply the provisions of the Bill as a whole. It therefore requires that, in performing their functions under Part 2, the Minister and the court,
“must have regard, in particular … to the overriding objective of protecting the interests of justice and fairness, and … to the need to ensure that any interference with the principle of open justice is no more than is necessary to protect the interests of national security”.
Even though the Government may be unable to accept some of the other more prescriptive amendments, I very much hope that this amendment will find favour. I beg to move.
Lord Pannick
My Lords, I added my name to this amendment because, in light of the importance, the difficulty, the novelty, and the sensitivity of the issues that we have been debating, it is highly desirable that the Bill states on its face the objectives which the Secretary of State and the courts must seek to advance. The overriding objective of the courts is, indeed, to protect the interests of justice and fairness. That is what the Civil Procedure Rules state. Any interference with open justice must surely be confined to what is necessary, as the amendment says,
“to protect the interests of national security”.
Who could possibly object to that?
Lord Butler of Brockwell
My Lords, I rise to make a brief point. I do not doubt the seriousness of the noble Lord, Lord Lester, even after dinner—nor his good intentions. However, it seems to me that the word “overriding” introduces a dangerous note of ambiguity. What does it override?
Lord Lester of Herne Hill
I am sorry to interrupt but those words come from our governing Civil Procedure Rules. I did not invent them. It is described as the overriding objective because that is the fundamental principle of the rule of law.
Lord Butler of Brockwell
I think we agree that there are certain circumstances where the interests of justice and fairness should not override national security. We are seeking a balance. I would have no objection to this amendment if it said,
“must have regard … to the objective of protecting the interests of justice and fairness”,
followed by subsection (b).
Lord Falconer of Thoroton
If the Bill becomes law, rules of court will be made. Those rules of court will be governed at the outset by what is set out in the amendment of the noble Lords, Lord Lester and Lord Pannick. I have understood what they mean by the,
“overriding objective of protecting the interests of justice and fairness”,
as referring to the first category of case with which we are dealing—civil proceedings not Norwich Pharmacal. In order to be fair, there must be some limited disclosure because the alternative is no disclosure at all and that is unfair to one of the parties. As I understand it, the noble Lords, Lord Lester and Lord Pannick, are saying: “Do what you have to do in order to get the fairest possible result”. In relation to that first category of case, they are seeking to achieve fairness to both parties—the claimant and the defendant—where the defendant has a defence that it wishes to advance but it cannot do so without damaging national security. Therefore, pursuant to the rules, the courts would allow an arrangement whereby only one side sees that material. While that may not be fair in a perfect sense, it is the fairest way of dealing with the problem. National security is dealt with by the ability of the intelligence services to withdraw from the case if national security is offended by an order for public disclosure.
Subsection (a) deals, in effect, with the first category of case, while the second category of case, covered in subsection (b), deals with Norwich Pharmacal. What is said there is: retreat from the right to see something under Norwich Pharmacal only to the extent,
“necessary to protect the interests of national security”.
The rest of the Bill sets out how that is to be achieved. If there are any doubts about it, the courts can go to these basic principles in order to resolve them.
Despite the fact that this trespasses on the advice of the noble Lord, Lord Campbell of Alloway, this is quite a sensible and new way of legislating. Its first appearance, I am happy to say, was in the Constitutional Reform Act 2005 when the principle of upholding the rule of law was referred to in Section 1 as a freestanding obligation, not by reference to a particular provision. As time has gone by, it has been thought to be a beneficial provision. The approach taken by the noble Lord here is beneficial, particularly when we are dealing with issues as difficult as this. I do not think that putting in “overriding objective” is intended to be an excuse or a way of avoiding the need to address the detail of the issues elsewhere.
Finally, perhaps I may say this to the noble Lord, Lord Pannick. What a good idea. If we want to hear evidence from someone, we should make them a Member of the House of Lords. We will be hearing from Bob Diamond and others fairly soon.
Lord Wallace of Tankerness
My Lords, it is fitting, albeit after the dinner hour, that we come to consider this amendment at the end of our detailed consideration of the Bill in Committee. My noble friend Lord Lester and the noble Lord, Lord Pannick, have proposed an amendment that highlights important issues of principle that we have come back to continually in our debates, particularly when considering Part 2. It covers the values of justice and fairness, and how we ensure a proportionate response when the interests of the safety and security of the United Kingdom appear to conflict with the principle of open justice.
I agree with both noble Lords about the importance of these values. The fundamental rights to justice and fairness have guided the development of the provisions of this Bill from the beginning. I hope it has become clear during our debates, and as I said following the contribution earlier by the noble Lord, Lord Reid of Cardowen, that I do not believe there should be a binary choice between justice on the one hand and security on the other. That seems to be a false choice. The question is what we can do in the best way to maximise our achievement of both aims. The Lord Chancellor made clear in his foreword to the Green Paper that preceded this Bill that:
“These are matters of profound importance which go to the heart of our democratic values and our belief in human rights, justice and fairness. Inevitably they are immensely complex and difficult—but we must not shy away from this debate”.
I do not intend to go over all the points that have been made on this amendment and in earlier debates. Many of them are very much the issues that the Government have wrestled with when trying to formulate the provisions of this Bill. For example, the Government believe that there is scope for securing greater justice and fairness in our approach to civil proceedings. In particular, we have highlighted the difficulties where sensitive national security information is so relevant to the case that the current arrangements require the Government to make a choice between the justice of a fair judgment based on all the relevant evidence, even if that risks damage to national security, and the need to protect the safety and security of this country, even if that is at the expense of costly settlement in relation to serious allegations that the Government believe are unmeritorious. I therefore agree with all noble Lords who have spoken both to this amendment and in our preceding debates that these values are important.
I cannot fully support the amendment because I am not satisfied that the Committee has been given a satisfactory explanation of its effect in practice. It is all very well to agree the principles, but how would the Secretary of State behave differently under the present provisions in the Bill, and how would the courts behave differently? The Bill sets out in clear language the duty and functions of the Government and the courts, and if the Committee disagrees with that formulation, that is the whole purpose of our deliberations both at this stage and the next.
The second point is that the Government view the amendment as unnecessary as the Bill encapsulates the Government’s respect for the interests of justice, fairness and proportionality. I know that it is a matter that we have debated and which I confidently predict we will continue to debate.
Fundamentally, the Government consider that in the very narrow circumstances in which, under this Bill, material may be heard in closed session, such material should be considered by the court rather than excluded from it by a public interest immunity certificate. We must also protect information that is shared with us in confidence or that would inhibit the ability of our security intelligence agencies to keep us all safe if there is a risk that it could be disclosed.
Fairness, justice and proportionality are also reflected in the narrowness of the application of Part 2 of the Bill and the safeguards that are set out there. The Secretary of State must first consider public interest immunity before applying for a declaration that closed material proceedings may be used. Closed material proceedings are available only where disclosure of the material would damage national security and not on some wider public interest ground. Even where the court grants a CMP declaration, those civil proceedings remain entirely open, pending painstaking scrutiny by the court of each piece of material which the Government wish to have heard in closed session. If the court refuses to hear material in closed session, the court has real powers in the event that the Government nevertheless wish not to disclose the material. The court can require concessions or can exclude the material.
Above all, we believe that the CMP proceedings will be fair. I say that with confidence because the Bill makes it absolutely clear that it does not affect Article 6 of the European Convention on Human Rights, which guarantees a right to a fair trial. The Norwich Pharmacal provisions are strictly confined to intelligence service information or to where the Secretary of State has certified that certain types of disclosure would damage the interests of national security or international relations. The Bill makes provision for judicial scrutiny of the certificate.
It is these carefully calibrated provisions that respect justice and fairness and ensure that a proportionate approach is taken to any interference in the principle of open justice. I accept and understand that a number of noble Lords may yet remain to be persuaded by this calibration. It is on these detailed points that I am sure we will continue to look further and use our energies. I will endeavour to persuade noble Lords of the merits of the Government’s position.
I think we have had very useful debates in Committee. I accept that there are a number of issues on which noble Lords in Committee still have to be persuaded, but in relation both to civil proceedings and to the risk arising from the possibility of court order disclosure of sensitive material through the Norwich Pharmacal jurisdiction, I think there has been a general acceptance in most contributions that some provisions were required, albeit in a very small number of cases. I accept and acknowledge that the opposition Front Bench reserved its position on closed material proceeding.
I am conscious that nevertheless there are still points of detail that we will return to on Report. I have sought during Committee to give a detailed explanation of the rationale for the choices that the Government have made in bringing forward these provisions. I hope that that has helped to shed light on where the Government are coming from, and to inform the debate on these crucial, sensitive and important issues.
It is important that we continue these conversations as scrutiny of the Bill continues. As noble Lords are aware, I am keen to continue to engage on these issues outside the Chamber. I am sure that we will not use all our coming weeks in recess to focus on these, but there is a considerable amount of time during which I hope we can engage and consider them. I recognise their importance, and we will, I hope, have an opportunity to reflect and debate these details further on Report after the Recess. In that spirit, I would be grateful if my noble friend would agree to withdraw the amendment.
Lord Lester of Herne Hill
My Lords, this amendment has given the Minister the opportunity to look back on the proceedings in Committee, and it enables me to say that we very much appreciate the way in which he has done so and his open-mindedness. I should also like to say, coming back to Amendment 90, that the role of the Opposition in this area is of great importance. If the Opposition had simply accepted the Government’s position, there would have been very weak scrutiny. That is what happened in the United States Congress when the Patriot Act was introduced, where I am afraid Congress did not do its job properly. That cannot be said to be true of this House.
My noble friend asked: what is the point of Amendment 90—what is it intended to achieve? The noble and learned Lord, Lord Falconer, answered that by referring to the Constitutional Reform Act 2005. The value of having general principles is especially important in this area. We do not have a written constitution. We do not have a constitutional Bill of Rights. We rely on the European Convention on Human Rights under the Human Rights Act as a kind of substitute for a domestic charter of rights.
The Government’s attempt to incorporate principles in the Bill is in Clause 11(5). It is curiously drafted, but it relies, among other things, on Article 6 of the European Convention on Human Rights. I do not think that that is a sensible way to articulate the general principles, which are part of our legal heritage and political system. I would prefer the principles by which we stand under common and statute law to be in the Bill. Amendment 90 is intended only—apparently, this is common ground, because it is what the Government seek to achieve—to ensure that the two principles, which have to be fairly balanced, are taken into account in the way in which Ministers exercise their discretion and the courts exercise and apply the law. I take the point of the noble Lord, Lord Butler, that one does not necessarily need the word “overriding”, but it is in the civil rules of procedure. I am not persuaded at all that the case has been made for an absence of good British principles that are not wholly dependent on Article 6 of the European convention which, for various reasons, does not do the job perfectly.
Having said all that, of course I beg leave to withdraw the amendment.