Grand Committee
(11 years, 8 months ago)
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Arrangement of Business
(11 years, 8 months ago)
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The Deputy Chairman of Committees (Lord Faulkner of Worcester)
My Lords, I have to advise the Committee that if there is a Division in the House the Committee will adjourn for 10 minutes.
Local Authorities (Contracting Out of Tax Billing, Collection and Enforcement Functions) (Amendment) (England) Order 2013
(11 years, 8 months ago)
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Baroness Hanham
That the Grand Committee do report to the House that it has considered the Local Authorities (Contracting Out of Tax Billing, Collection and Enforcement Functions) (Amendment) (England) Order.
Relevant document: 16th Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, this order will enable local authorities to implement localised council tax support from 1 April when council tax benefit is abolished. These changes are part of the Government’s wider policy of decentralisation. The order will amend the Local Authorities (Contracting Out of Tax Billing, Collection and Enforcement Functions) Order 1996, which allows local authorities, if they choose to do so, to contract out statutory services relating to the administration of local taxes which they would normally have to provide themselves: for example, the calculation of individual council tax liabilities and the serving of demand notices.
New administrative functions will be created when localised schemes are implemented. This order will add these new functions to those that can be contracted out already. The new functions are: the issuing of council tax reduction decision letters; the payment of reductions in certain circumstances where the billing authority is of the opinion that it would be appropriate; the serving of penalty notices in connection with a reduction; the repayment of an amount paid in connection with a penalty issued in connection with reductions under local schemes that has been subsequently quashed; and the calculation and collection of premiums on long-term empty dwellings.
The Council Tax Reduction Schemes (Detection of Fraud and Enforcement) (England) Regulations 2013 deal with the detection of fraud and enforcement mechanisms relating to local authority schemes. They provide local authorities with the means of protecting their reduction schemes from attempted fraud and deterring those who may be considering making a false claim.
These regulations are being put forward for approval using powers in Sections 14A, 14B and 14C of the Local Government Finance Act 1992, which were inserted by Section 14 of the Local Government Finance Act 2012. These powers allow for the creation of criminal offences, the creation of civil penalties that may be imposed by local authorities, and regulations providing powers to require information from individuals or organisations.
These powers are broad, and noble Lords and Members in the other place rightly sought assurances from the Government during the passage of the Bill on how the Government would seek to exercise them. A statement of intent, Localising Support for Council Tax: Information Sharing and Powers to Tackle Fraud, was published in July last year and committed the Government to bringing forward proportionate and measured proposals that would not go beyond the existing powers relating to council tax benefit, while replicating only the powers that were essential in the context of reduction schemes. These regulations are the result of that commitment, and I shall explain how that has been translated into specific provisions.
Regulation 2 sets out a number of definitions, but noble Lords may wish to note how we are defining a council tax offence for the purposes of subsequent regulations. A council tax offence is defined as any criminal offence committed in making an application for, or in the award of, a council tax reduction; or an offence committed for the purpose of facilitating the commission of such an offence; or any attempt or conspiracy to commit such an offence. It does not include offences committed for wider purposes related to council tax administration and enforcement, nor for other criminal offences committed against a local authority. Noble Lords may wish to bear this context in mind when examining later regulations that deal with requiring information and the creation of offences.
Regulation 3 provides for local authorities to authorise individuals to undertake investigations into council tax offences. The provisions are equivalent to those that are currently in place for local authorities to authorise investigations into housing benefit and council tax benefit cases. However, the regulation restricts how authorised officers may exercise their powers. They may do so only,
“for the purpose of preventing, detecting and securing evidence of the commission … of a council tax offence”.
This does not allow for powers to be exercised for routine checks on individuals or, more generally, to verify the content of applications.
Regulation 4 provides that authorised officers may require a person to supply information that is needed, again for the prevention, detection and securing of evidence of council tax offences. Where the person from whom information is to be required falls within the list of persons set out under paragraph (3), information may be required only in relation to a particular person, and where there are reasonable grounds for believing that the identified person, or a family member,
“has committed, is committing or intends to commit a council tax offence”.
The classes of people who may be required to provide information are equivalent to those who may be required to provide information for welfare benefit offences, with the removal of certain groups. For instance, we are not providing for officers to require information from telecommunication providers, since such requests should instead be exercised, monitored and reported on through legal avenues under the Regulation of Investigatory Powers Act and be subject to requirement for judicial approval and oversight.
Regulation 5 provides for electronic access to information to be provided to an authorised officer, where such arrangements can be made. Local authority investigators have similar powers to seek electronic access to information in relation to welfare benefit investigations. Under the regulations, the powers to require electronic access to information may be used only where the electronic records are likely to contain relevant information for the purpose of preventing, detecting and securing evidence of the commission of a council tax offence.
Regulation 6 provides that it will be a criminal offence intentionally to delay or obstruct an authorised officer when exercising their power to require information. It is also an offence to refuse or to fail, without reasonable excuse, to provide information or access to electronic records when required to do so. I hope noble Lords will accept that deliberately frustrating an investigation should itself be an offence. These offences are similar to those that exist in relation to delay or the obstruction of an officer in relation to a welfare benefit investigation.
Regulation 7 provides that it will be a criminal offence to make a false representation or to provide or allow to be provided information that is known to be false in order to gain a reduction.
Regulation 8 makes provision, similar to that currently in force for council tax benefit, that a failure to notify a relevant change in circumstances would be an offence. The regulation also makes it an offence knowingly to cause or to allow another person to fail to notify a change in circumstances affecting their entitlement to a reduction.
Regulation 9 deals with offences that may be committed by a body corporate and the ability to prosecute the officers themselves if the offence was due to their actions or omissions.
Regulation 10 deals with the legal timescales for prosecutions.
Regulation 11 provides that a local authority may offer to impose a penalty on a person rather than prosecute them through the courts. In the face of sufficient evidence to prosecute, the person may wish to avoid a criminal sentence and voluntarily accept a financial penalty. In return, the local authority can avoid the need to prepare a legal case and the time and resources involved. Any such agreement would be subject to a cooling-off period and may be offered only when there is sufficient evidence to institute proceedings, so that there is no question of any person with a legitimate defence being pressured or forced into accepting a penalty against their will.
Regulations 12 and 13 extend the existing system of financial penalties that local authorities may impose for council tax discounts, so that similar penalties may be imposed in relation to council tax reductions.
An authority may impose a £70 penalty on a person when they are negligent in providing information or notifying a change in circumstances that lead to them receiving a reduction beyond their entitlement. These are for non-criminal actions and are at the discretion of the local authority. If a person has been charged with an offence or issued with a penalty as an alternative to prosecution, a penalty may not be imposed. There is no question of penalties being imposed under these two regulations when a person has been charged with an offence and a prosecution subsequently fails or lacks sufficient evidence.
In conclusion, these regulations in large part reflect the provisions that are currently in place for the internal administration and enforcement of council tax benefit. If approved, they will carry out two essential functions. They will enable local authorities to deliver their local schemes, whether using internal resources, external providers or a mixture of both, as well as providing a proportionate but robust system of enforcement powers to combat attempted fraud and seek information from organisations that can assist in bringing offenders to book.
Localising council tax reduction delivers on three of the Government’s key priorities: devolving power and control over local matters from the centre; reforming the welfare system to make work pay; and reducing the deficit. It is important that we provide authorities with what they need to deliver a cost-effective council tax system and to combat attempts to defraud them and honest local taxpayers. Together, this is what these statutory instruments will do, and I commend them to the Committee.
Lord Shipley
My Lords, first, I declare my interest as a vice-president of the Local Government Association. I shall comment on this one and on the next, too, so I need speak only once.
I have a desire for a reassurance that in all the contracting out of existing functions of local authorities, whether they have been previously contracted out or may be in future, exactly the same standards will apply on matters concerning data protection and in the duties, obligations and service standards of those to whom work is contracted out. I am thinking in particular of the role of bailiffs and what standards of service they will be required to work to. There has been a discussion and things have been done about this in the past year or two, but I seek the Minister’s assurance that exactly those same standards, or perhaps even better standards, will apply in future.
Baroness Smith of Basildon
My Lords, I am grateful to the noble Lord, Lord Shipley, for speaking before me, because it has reminded me to say that I am also a vice-president of the Local Government Association, which I may have forgotten otherwise. The points that he made are ones that I would also have wished to make, and I will not repeat them. I refer particularly to the point on bailiffs, which was very well made, and I look forward to hearing the response from the Minister. I will come back to the freedom of information point.
I thank the Minister for her explanation, as it was good to have such a detailed explanation of the instruments. It answered a couple of the questions that I have, although I have others. Obviously, we support measures that would prevent fraud, detect it and take action against it, and any system of enforcement should be effective and fair. We entirely concur with those principles. My questions are on points of clarity, because I was not 100% clear. Legislation can sometimes be opaque, and it would be helpful to have some more information.
As the noble Lord, Lord Shipley, was saying, when services are contracted out, particularly in this case, very detailed confidential financial information can be provided to a private company or organisation. I understand that under data protection legislation, the responsibility would remain with the local authority, but would the DCLG give any guidance to local authorities on how they may enforce their responsibilities to organisations to which they have contracted out those services? What redress would remain available to an individual who felt that their confidentiality had been breached in any way? Would that remain a matter for the local authority, or would responsibility lie with the company that held the information and had inadvertently or wrongly released it?
Baroness Hanham
My Lords, I thank the noble Lord, Lord Shipley, and the noble Baroness, Lady Smith, for their questions, which were, as I would have suspected, practical and straightforward, and I shall try to deal with them in that way.
The noble Lord, Lord Shipley, asked about data protection. It is correct that local authorities remain the responsible authority, even though they have contracted out to a private company or have made alternative arrangements. They are responsible for ensuring that the provisions of the Data Protection Act 1998 are met. That position has not changed; that is the way it is at the moment.
The noble Lord, Lord Shipley, and the noble Baroness, Lady Smith, also talked about bailiffs. The use of bailiffs has worried this House for some time. We are very clear that aggressive bailiff activity is completely unacceptable, and we are committed to bringing forward effective proposals to protect the public and ensure that they act proportionately. The proposals are to implement Part 3 of the Tribunals, Courts and Enforcement Act 2007, which would provide legal protection by introducing a comprehensive code that governed, among other things, when and how bailiffs can enter somebody’s premises, what goods they can and cannot seize if necessary and sell, and what fees they can charge. Aggression, force and enforced sale are more or less the complaints that we have heard all along, and we are trying to deal with them.
Baroness Smith of Basildon
Is the Minister also aware of circumstances recently when bailiffs entered people’s homes to try to remove property but the poverty was such that they could retrieve nothing to sell anyway?
Baroness Hanham
I know that that matter has been raised, but that will be covered by what we are trying to do with the Tribunals, Courts and Enforcement Act 2007. The noble Baroness is correct that if there is nothing there that enables a debt to be dealt with, bailiffs ought to report that to local authorities and not just go ahead. We have had a lot of discussions on bailiffs and the Government are very sympathetic to what has been said. Efforts will be made to try to restore some confidence in the bailiff service, which is not very strong at the moment.
The data protection standards will, as I have already said to the noble Lord, Lord Shipley, remain as at present, with the local authorities being responsible for them. I think the noble Baroness, Lady Smith, asked what an offence committed by a body corporate is. It is when an offence has been proved to be committed with the consent or connivance of, or attributed to any neglect on the part of, a director, manager, secretary, or other similar officer purporting to act in any capacity. The number of occasions when a body corporate may be involved in an individual’s council tax seems to me to be remarkably slim, but it is there just in case.
Baroness Smith of Basildon
No, I think not. My question was about corporate bodies in relation to the power to require information by the authorised officer. Regulation 6 is entitled, “Delay, obstruction etc of authorised officer”. It refers only to an individual, but an authorised officer can require an organisation or a body to provide information. I do not think that that is the question that the noble Baroness is answering. I am happy for her to write to me on that.
Baroness Hanham
I shall write to the noble Baroness, if she does not mind, on the people who are entitled to ask for information. I apologise for not answering her question correctly.
The proof of intention to commit an offence is not very easy, but it can be obtained or come from information that is made available, such as anonymous tip-offs, discrepancies between records that people become concerned about, reports of fraud from the DWP, and so on. It may not appear very often, but there are areas where it would be possible to demonstrate intention.
I hope that I have more or less picked up all the points raised by the noble Baroness, Lady Smith. As I say, they are essentially practical, but if I have missed any, I will come back, but as I say, I hope that I have addressed the main points.
Council Tax Reduction Schemes (Detection of Fraud and Enforcement) (England) Regulations 2013
(11 years, 8 months ago)
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Baroness Hanham
That the Grand Committee do report to the House that it has considered the Council Tax Reduction Schemes (Detection of Fraud and Enforcement) (England) Regulations 2013.
Relevant document: 16th Report from the Joint Committee on Statutory Instruments.
Gateshead and Northumberland (Boundary Change) Order 2013
(11 years, 8 months ago)
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Baroness Hanham
That the Grand Committee do report to the House that it has considered the Gateshead and Northumberland (Boundary Change) Order 2013.
Relevant document: 17th Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, there are two elements under these two orders and I wonder whether I might deal with them both together. The first is the Gateshead and Northumberland (Boundary Change) Order 2013, and the other is the East Hertfordshire and Stevenage (Boundary Change) Order 2013. I will talk to them both if that is acceptable to your Lordships.
The Boundary Commission invited local authorities across the country to tell it whether there were any boundary anomalies that councils believed should be investigated. The Boundary Commission was prepared to undertake reviews only where both the affected local authorities agreed. In essence, only three cases came out of that request, and these are the final two.
These orders are very straightforward; they transfer small areas of land, and in the case of East Hertfordshire and Stevenage a few houses, from one local authority to another. The transfer between Northumberland and Gateshead is basically a case of the transfer of one house, which ratifies the position on the ground. The property and its residents are already registered with Northumberland, although at present they are not in the county. The first order simply puts that right. In both cases, the councils concerned agreed that a change is necessary and supported a boundary change.
It might help if I explained the statutory framework that allows change and the context within which boundary change is now being considered. On the statutory framework, this is the second use of the powers in the Local Government and Public Involvement in Health Act for boundary change. Under the legislation, a boundary change can take place between two local authorities only on the recommendation of the Boundary Commission, whose responsibility is to give advice to the Secretary of State. In doing so, it: gathers evidence, for example from the councils involved and local people; publishes and consults on draft recommendations based on this evidence; and, once it has considered the representations, makes final recommendations to the Secretary of State. When considering whether a change is desirable, the boundary commissioners bear in mind the statutory criteria that change should lead to effective and convenient local government and reflect community identities and interests.
Secondly, the context within which boundary change is being considered must ensure that local government boundaries reflect communities and that councils can deliver effective and efficient services. This has been described as,
“a keystone of effective democratic local government”.
A boundary that cuts through a property or an estate is unlikely to be convenient to the property owners, who may have to have dealings with two separate local authorities: for example for council tax, refuse collection or planning purposes. While local government will in practice generally put in place informal arrangements—or indeed make formal agreements to deal with such situations, as they have done in the case of Northumberland and Gateshead—the very fact that they need to do so can be wasteful of resources and not conducive to effective and convenient local government.
It is recognised that moving a boundary and changing the area of a local authority is a fairly large step to take, particularly when the number of residents affected is small. We would expect councils to work together to alleviate the impact of such boundaries. However, we recognise that, especially in cases where local people do not feel an affiliation to the area of their local authority, to reflect the concerns of local people it is best to take that further step and amend the boundary.
The Gateshead and Northumberland boundary review concerns a property—a bungalow and associated grounds—part of which is in Gateshead and another part of which is in Northumberland. The order realigns the boundary so that the property is transferred from the metropolitan borough of Gateshead into the county of Northumberland, as is the entirety of the gardens and grounds of it and neighbouring properties. Not unsurprisingly, very few representations were made, but the county council, the local councillor and the parish concerned are supportive.
On the East Hertfordshire and Stevenage (Boundary Change) Order 2013, as a result of the current boundary position 19 properties within three culs-de-sac are represented by East Hertfordshire District Council, while 15 are represented by Stevenage Borough Council. However, the existing boundary means that the access for all the East Hertfordshire residents in the affected properties is via Stevenage Borough. This order realigns the boundary so that all the affected properties are in Stevenage.
The commission received 20 submissions on its draft recommendations from East Hertfordshire District Council, Stevenage Borough Council, three district and county councillors, 12 residents directly affected by the boundary change, two members of the public and one other. All those who responded were unanimous in their support of the proposed boundary change. It is clear that local people consider the current boundary arrangements to be anomalous and that residents clearly relate to a Stevenage community identity.
The Boundary Commission has confirmed that the changes will provide for effective and convenient local government. In its view, there is no adverse impact on the local authority’s ability to deliver value for money. In short, the orders implement small boundary changes, and I commend them to the House.
Lord Shipley
My Lords, I support both these simple proposals, which reflect common sense. However, I am puzzled by one matter: why it has taken so long. The final recommendations were published in May 2012, based on the consultation a year ago. Why has it taken nine months for the matter to arrive now, in February of the following year? There may be explanations that I have not understood, but it strikes me as a long time when the consultation occurred almost a year ago. Any guidance or further details on the procedure being followed and the timetable to which those involved should keep would be helpful to know.
Lord Rosser
My Lords, we have no objection to the orders, which are clearly not of the greatest significance for the nation. Indeed, when I read them—and in this position one surely has to try to speak for at least two or three minutes—I thought I had been reduced to reading extracts from the Oxford English Dictionary. I feel even more that way since the noble Lord, Lord Shipley, has taken away about 90% of my contribution.
I will raise one or two points for clarification as much as anything. Paragraph 7.3 of the Explanatory Memorandum states that, from its establishment, the Boundary Commission,
“has compiled and maintained a list of boundary anomalies that have been notified to it”.
It goes on to say that the Boundary Commission,
“has sought the views of the local authorities concerned on all these anomalies”.
It says further:
“In three cases there was local agreement”.
Are there in fact lots of cases that the Boundary Commission is looking at in which there is no agreement? Obviously, one inference can be drawn from that. If there is no agreement, are we to assume, as paragraph 7.2 rather implies, that the Boundary Commission would not put any recommendations in front of the Secretary of State? In the two cases that we are considering, I think the Minister has probably already answered the question in her opening comments, but who actually initiated these two? Was it one or more of the four local authorities concerned? Was it the Boundary Commission’s own initiative? I can hardly imagine it was at the request of the Secretary of State, which is the other basis on which a review might be undertaken.
I will make exactly the same point that the noble Lord, Lord Shipley, so eloquently made as to what exactly has been going on over what appears to be the past 11 months since the consultation ended—on draft recommendations on which, we are told, there has been no significant disagreement. It would certainly be of interest to know why there has been this delay.
A further point that I should like to pursue—I am not seeking to suggest that it is a major point because clearly it is not—is that paragraph 8.1 of the Explanatory Memorandum states that the normal minimum period of consultation is six weeks. In the case of Gateshead and Northumberland it was less than six weeks. In fact, it appears to have been about four weeks, the argument being the small scale of the change. One might have some sympathy with that argument, but what exactly has been achieved by reducing the consultation from the normal minimum of six weeks to somewhere around four weeks? Looking at the timescale, I cannot see that anything at all has been achieved. I appreciate that it was a Boundary Commission decision, but does the Minister know why it was done if it has not speeded things up, or has the Secretary of State perhaps asked the Boundary Commission why it thought it necessary to reduce the period of consultation when it does not appear to have been done in order to speed up the process?
In her comments on the Gateshead and Northumberland order, the noble Baroness referred to those who had responded. However, can she be a bit more specific about how many people responded to the draft recommendations? No figures are given, but figures, including a breakdown by category, are given for the East Hertfordshire and Stevenage order. Paragraph 7.8 of the Explanatory Memorandum says that the Gateshead and Northumberland order will affect only two electors. Are the residents of Ravenside Farm, who were not exactly supportive, the two electors in Northumberland referred to in paragraph 7.8? If they are, they are apparently the only ones affected by the Gateshead and Northumberland order. They did not appear to support it and if they are the two concerned, I suppose you could say somewhat facetiously that there was 100% rejection by the electors affected. I do not want to turn this into a major point, but it would be interesting to know.
My final point is very minor. Indeed, some might think that it is more nitpicking than anything else. Paragraph 7.3 says:
“In three cases there was local agreement that the anomalies should be addressed”.
The two in front of us are two of those three. However, paragraph 8.3 indicates a measure of disagreement from the residents of Ravenside Farm, which would appear to contradict what is said in paragraph 7.3. The reply may be that there is a distinction between agreement that the anomalies be addressed, and agreement over the recommendations and how they should be addressed.
I hope the noble Baroness will be able to respond to those points. I reiterate that we support the orders. I do not wish to suggest that the points that I have raised are of fundamental importance, although it is interesting that both the noble Lord, Lord Shipley, and I are extremely interested in why it has taken so long to bring these instruments forward.
Baroness Hanham
My Lords, I am lost in admiration that the noble Lords managed to find so much to raise on these rather small orders. However, I do not deny that they are more than reasonable questions, and I am very happy to try to deal with them.
The noble Lord, Lord Shipley, asked about the delay between the consultation ending and the orders being brought forward. Once the Boundary Commission had undertaken its inquiries, it then had to deliver its results to the department. The issue has been with the department since June and has been waiting for, first, the necessary parliamentary time and, secondly, the time of the officials to deal with it. That, I think, is the straightforward answer to the noble Lord’s question, although I agree that this is not a matter that should require an awful lot of effort.
The noble Lord, Lord Rosser, asked about the number of applications that have been made to the Boundary Commission. I said in my notes that the Boundary Commission sought applications widely and that there were only three in total. We have dealt with one and we are now dealing with these two. It is not anticipated that there will be any more. Given the size of this nation, the fact that there are only three tweaks probably means that the Boundary Commission gets it right most of the time.
Lord Rosser
This may sound like nitpicking, but that is not the spirit in which I am saying it. Paragraph 7.3 of the Explanatory Memorandum states that the Boundary Commission,
“has sought the views of the local authorities concerned on all these anomalies. In three cases there was local agreement”,
the inference being that there were more than three.
Baroness Hanham
There was a list of more than three, but it was only within these three that the local authorities were agreed.
Baroness Hanham
Yes. I hope that is correct. The noble Lord also asked about representations for East Hertfordshire. The responses came from three councillors, the local authorities and 14 residents, and they supported the boundary amendments. As for Gateshead and Northumberland, where there was only one property, two electors, one in the Ravenside bungalow and one in the parish, responded. The one from the Ravenside farmhouse wondered why the boundary had to be changed, and the residents of the Ravenside bungalow would live within one county boundary, with all the land they owned being within another. They had no objection, but they put forward some reasons; they were mostly complaining about the glossy brochure and the cost of this tweak.
The noble Lord, Lord Rosser, also asked about the period of consultation. It is entirely a matter for the Boundary Commission, which carries out consultations as it wishes. It has completed them now and the order means that the changes have to take place from 1 April.
The noble Lord, Lord Rosser, asked who initiated the reviews. Again, they are initiated by the Boundary Commission. As I said in my remarks, it carried out a countrywide search and come up with the list, but there was no agreement from the local authorities except from these three. I gather that there are no further reviews in the pipeline. If I have missed answering anything that either noble Lord has asked, I shall respond in writing.
East Hertfordshire and Stevenage (Boundary Change) Order 2013
(11 years, 8 months ago)
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Baroness Hanham
That the Grand Committee do report to the House that it has considered the East Hertfordshire and Stevenage (Boundary Change) Order 2013
Relevant document: 17th Report from the Joint Committee on Statutory Instruments.
Guaranteed Minimum Pensions Increase Order 2013
(11 years, 8 months ago)
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Baroness Stowell of Beeston
That the Grand Committee do report to the House that it has considered the Guaranteed Minimum Pensions Increase Order 2013.
Relevant document: 18th Report from the Joint Committee on Statutory Instruments.
Baroness Stowell of Beeston
I shall also speak to the Social Security Benefits Up-rating Order 2013. These orders were laid before the House on 28 January 2013, and I am satisfied that they are compatible with the European Convention on Human Rights.
I will start by touching briefly on the Guaranteed Minimum Pensions Increase Order 2013. This order provides for contracted-out defined benefits schemes to increase their members’ guaranteed minimum pensions that accrued between 1988 and 1997 by 2.2%, in line with inflation as at September 2012.
On the Social Security Benefits Up-rating Order 2013, I shall start with the increase in the basic state pension. One of this Government’s first acts was to restore the earnings link to the basic state pension. Indeed, we went a step further and secured a triple lock for pensioners: a commitment from the Government to increase the basic state pension each year by earnings, prices or 2.5%, whichever is the highest. This year, that third element of the triple lock will have an effect for the first time. The basic state pension will be uprated by 2.5%, a level above both earnings and prices. This means that millions of pensioners will see an above-inflation cash increase of £2.70 a week, taking the new level of the basic state pension to £110.15 a week; and that from April 2013 the basic state pension is forecast to be around 18% of average earnings, a higher share of average earnings than at any time in the past 20 years. I can confirm that additional state pensions will rise in line with inflation at 2.2% in 2013-14, which means that the total state pension increase for someone with a full basic pension and an average additional pension will be around £175 a year.
On pension credit, we have taken an important decision to ensure that the poorest pensioners are able to benefit from the effects of our triple lock. That means that rather than rising in line with earnings at 1.6%, the minimum required by legislation, the standard minimum guarantee credit in pension credit will be increased by 1.9% to ensure that the poorest pensioners benefit from the full £2.70 cash increase in the basic state pension.
Consistent with our approach last year, the resources needed to pay for that above-earnings increase to the standard minimum guarantee have been found by increasing the savings credit threshold, which means that those with higher levels of income will see less of an increase. The decisions that we have taken on pensioners reflect the Government’s belief that even in exceptional economic times it is important to protect those who are less able to increase their spending power.
However, noble Lords will also be aware that this order takes forward a number of decisions that are a lot harder to make. Some tough choices are necessary if we are to restore our public finances. The working-age welfare budget, which accounts for about £1 in every £8 that government spends, cannot be immune from these tough choices. That is why, having regard to the national economic situation, we have decided that the working-age personal allowances in jobseeker’s allowance, income support, housing benefit and employment and support allowance, along with the work-related activity component of employment and support allowance, will be uprated by 1% next year. On the same basis, this 1% uprating will also apply to statutory maternity pay, statutory paternity pay, statutory adoption pay and statutory sick pay. This will save around £200 million in 2013-14, savings that are crucial as we continue to pay down the deficit.
We do not take such decisions lightly. Wherever we have been able to do so, we have sought to protect those who have the greatest difficulty increasing their spending power. The benefits that reflect the additional costs that disabled people face will be uprated in line with inflation. These include disability living allowance, attendance allowance, the disability premiums in working-age benefits, and the support component of the employment and support allowance. This is true of the carer’s allowance and the carer premium as well, both of which will be uprated in line with inflation.
In previous debates this week I have spoken of the need to strike a balance. At a time of great economic difficulty we have had to find savings, but we have sought to balance these with key protections wherever we can. This order is also about balancing our commitment to the here and now with our commitment to the long term. We have a responsibility to the next generation to secure a stable and growing economy, and I do not believe we can achieve that without taking these difficult decisions. Of course, we have a responsibility to those who will be affected by this order today, and we take that responsibility seriously.
It is worth noting that at a time when the nation’s finances remain under real pressure, through this order the Government will be spending an extra £2.8 billion in 2013-14 as part of our drive to ensure that the people who are least able to change their incomes are protected against increases in the cost of living. Of that £2.8 billion, about £2.1 billion is for the state pension, including an above-inflation increase for the basic pension. Nearly £500 million will go to disabled people and their carers, and nearly £300 million will go to people of working age. I believe that this is the right decision for families now and in the long term, and it is on that basis that I commend these orders to the House. I beg to move.
Lord German
My Lords, I start by saying that I hope we will not have a reprise of the Second Reading debate of the Welfare Benefits Up-rating Bill, because there would be many arguments to espouse.
I add my welcome to the triple-lock pensions increase that has been put into this measure again, and as the Minister has indicated, using 2.5% as the third trigger—the third lock that is being used for the first time—means once again that pensioners are benefiting from an increase that is above inflation.
What is interesting from the information that has been presented to us, and from my noble friend’s introductory comments, is that from April 2013 the basic state pension will be about 18% of average earnings. I have two points to make about that. First, it is a higher percentage than at any time in the past 20 years; and, secondly, it is only 18%. Recent research conducted by the pensions industry indicates that many people approaching retirement say that they need 50% of their average earnings—that is the rough figure they say they need—and they believe that they will get 50%, which in the nature of these things is obviously not true at present. It demonstrates the importance of the new flat-rate pension and that auto-enrolment will be decisive in helping people to meet their own aspirations for retirement. However, in the interim, the pension credit increase in line with the triple lock, as opposed to average earnings, goes a little way to helping Britain’s poorest pensioners.
I turn now to the uprating by 1% of all benefits apart from those protected because of disability or age. I still find that the issue of personal allowances indicates that there is an underpinning rationale, which has not yet been fully demonstrated to me, in having the personal allowance element of the employment support allowance being the same personal allowance that applies for housing benefit and anything else. Can my noble friend the Minister first outline why those personal allowances have to be the same for each allowance? It interests me to know what the rationale is behind that.
Lord Kirkwood of Kirkhope
My Lords, I am pleased to follow my noble friend and concur with everything that he said. I have been doing uprating statements since 1984, I think, and I am here this afternoon really because I did not want to miss one. I have the boxed set, so I would feel that I was in the wrong place if I was not here. However, and this is me in my moaning mood, in the old days when men were men and women were women these debates were really big parliamentary occasions. These are huge sums of public money that we are considering this afternoon. This is no reflection on the Government at all, because while it is a question for the whole House I do not think that if we held this debate on the Floor of the Chamber there would be many more people here. I cannot help but say that it is a shame that we do not have more concern or attention from other colleagues albeit on what I accept is a ritual.
This is a very important annual debate, but this year it is different. My noble friend explained some of the differences, and I want to explore them a little more deeply, because, both qualitatively and quantitatively, these orders are different from any I have seen before. I make it clear that the Government are absolutely entitled, under the rules of the game as I understand them, to make these reductions against an economic background that we can all see. I am obviously not going to move against these orders, particularly in the context of the uprating Bill, which is in front of the House, but we are in exceptional circumstances. There is therefore a case for the Government to say, “For the next 12 months, Britain is a poorer nation and we all have to make a contribution towards getting back on to a steady state”. My point is that I am not confident that we will get back to a steady state for a number of years. I am not an economist and I do not know, but I really believe that the paradigm has changed and that we will all be forced to face up to the circumstances. That may be supporting the Government’s case more than I am accustomed to do, as the Minister might say.
The point I want to make on the back of that is that if we are in different circumstances if I can use the analogy of discretionary housing payments and if the Government are saying that the housing benefit changes are so profound that there have to be mitigating short-term, time-limited emergency procedures to take the sting out of them for low-income families, we may be forced to think about an equivalent emergency package for low-income households if year after year we find that we do not get back to trend levels of growth. I think that in future uprating debates we are going to be forced to look very carefully not only at adjusting the levels down but in addition at ways of getting behind people who are really at the end of the financial road. They have no scope.
The Government have recognised the plight of pensioners, and the rationale for that is understandable. My noble friend mentioned it: they have limited ways of increasing their earnings. The Government’s suggestion is that working-age households always have the option of work, but I wonder how realistic that is. If we are seeing food banks develop to the extent to which I fear they may develop in future in local communities, I think as legislators we will have to reflect that rather than just assuming that we are in a steady state and that the Government can take those savings out year after year. We might all need to think about how we tackle this. Part of that might be exceptional measures for low-income households.
The evidence comes at me every day from every source. This morning, I picked up a very interesting piece of evidence from the Money Advice Trust, which is a very important institution that I watch because I am interested in the development of payday loans. There are problems about some of the administration and regulation of payday loans. The statement from the Money Advice Trust demonstrates the changes that are happening underneath us and that are affected by this uprating statement. It reports that:
“its National Debtline service took over 20,000 calls for help with payday loans in 2012 … The figure represents a 94 per cent year on year increase, and an increase of 4,200 per cent since the onset of the financial crisis in 2007”.
I know a little about payday loans. Working families take advantage of them. I am not against payday loans. Short-term unsecured credit has a role to play. I do not think it is regulated properly, but that is a different argument. These are working-age families. In my estimation, these levels of increase are not going to get any less any time soon. I recognise that something has to be done with the deficit reduction, but we may need to have a grown-up discussion about this across the parties and across Parliament to make sure that we are not ignoring what is happening in a lot of our challenged communities, particularly in the old social-rented council estates of my native Glasgow, for example, where I know that some these changes that we are introducing on top of everything else that is happening will produce levels of financial challenge for particular groups. Lone-parent families are one group that I particularly care about, and I know that colleagues know even more about that than I do.
I am concurring with this order on the basis that we need to think about other ways of providing some sort of emergency relief—hopefully only short-term—as well as what we are doing in these orders. If we do not start thinking about that now, we will suddenly find that we will be hit by levels of malnutrition and child poverty that will be found completely unacceptable by the population at large. We have to avoid that at all costs.
Finally, I apologise for this because I should have checked before I came, but I do not know what the Government Actuary has to say about the National Insurance Fund, which is appearing in not the means-tested but the contributory dimensions of these orders. Presumably, no Treasury grant is being requested, although I would be surprised if that was the case. Can we have a statement from the Minister to the effect that the department and ministerial team are comfortable with the Government Actuary’s view of the orders as they stand? That is important for the Grand Committee in its consideration of these important orders this afternoon.
Lord McKenzie of Luton
My Lords, I thank the Minister for her introduction to these two orders. We do not have much to raise on the first order. The GMP is a promised income for those who contracted out before 1997, so the order is a routine process, which we support.
I have just one question. The Explanatory Note refers to there being no new costs on the private or public sector as a result of these orders, but an uprating cost clearly has to be borne by someone: the pensions providers. Is that not the case?
We have covered much of the ground on the Social Security Benefits Up-rating Order, as the noble Lords, Lord German and Lord Kirkwood, have said. I do not mind having a rerun of this, although much has already been said and we still have more Committee proceedings to go, let alone Report, so I shall resist the wholesale revisiting of our debates, although if provoked I might withdraw that assurance.
The noble Lord, Lord Kirkwood, as ever, made an incredibly valuable contribution on where all this is heading. We all know that the deficit has to be dealt with, although we might argue with how that is being done. But we have not seen as part of an impact assessment—and it is something I would ask about—the impact of this uprating order on child poverty. What assessment, if any, have the Government made of this uprating order’s impact on things such as personal debt and poverty more generally? What do they think about the food banks, which are growing up in our country at the moment? One opened in Lewisham, but unfortunately it was on the day of the universal credit regulation, so I could not go. It is just one of just hundreds that are growing up in a country that we know could by any standards be classified as rich.
We have heard about the basic state pension and the much lauded triple lock—the highest of earnings, prices or 2.5%, in this case. We have no difficulty with the basic state pension having been a higher share of average earnings for some time, although is that not largely because average earnings are so depressed because of the state of the economy? My right honourable friend Stephen Timms in the other place dug away at the triple lock, saying that it is certainly a success in terms of rhetoric but that its practical implications have been much more limited. He knew of one that was not operated because RPI gave a better result, and in year 2 inflation was used. It was only in year 3 that the 2.5% kicked in, in excess of inflation. On the old basis of uprating by RPI in those latter two years, the award would have been higher. Perhaps the Minister can confirm that 1.5 million pensioner households are missing out compared with what would have been the position had the standard minimum guarantee been uprated by earnings and the savings credit threshold frozen.
Baroness Stowell of Beeston
My Lords, I am grateful to all noble Lords who have contributed to today’s debate. I shall get straight into responding to some of the important points raised. I note that there was broad support in the Committee for the first order. I am grateful for that, but there was one small question from the noble Lord, Lord McKenzie, which I will dispense with straight away so that I can get rid of one piece of paper that I am grappling with. He asked about the costs of the Guaranteed Minimum Pensions Increase Order 2013 and whether they would fall on the private or public sector. No new costs will be incurred; the costs will be the ones that would usually be incurred as there is no policy change.
I move to some of the points raised in the wider debate. My noble friend Lord German talked at some length about pensions and welcomed the triple lock and its effect this year. He noted that it would now be 18% of average earnings—the highest for 20 years—but that there was evidence to suggest that some people would need more as they neared retirement age, and worryingly thought they would get it. I do not have an immediate response to that, but as he acknowledged, it is one of the reasons why it is important that we are taking steps towards the single tier and auto-enrolment. While these measures will not benefit people who are already at or about to enter pension age, we are seized of this issue and are tackling it as a longer-term issue.
While we are on the pensions issue, the noble Lord, Lord McKenzie, referred to the triple lock. He was trying to question whether it was really as beneficial as we believe. I am surprised that he raised that question. It has delivered this year. As I said, it has come into effect for the first time and is above inflation and earnings. As he knows, it has been the policy of successive Governments to use the inflation figures of the previous September to determine the rates for the following year. We have done nothing other than what all Governments do, which is to use the September figures. The September figures were 2.2% inflation, and that is why we introduced the triple lock this year: so pensioners have benefited. That is a good thing and we are pleased about it.
My noble friend Lord German asked a question that he said he had asked earlier this week, when we were debating the Bill, about the consistency of personal allowances across the various benefits. That was echoed by the noble Lord, Lord McKenzie. I can do no more than restate what I said when were debating this then. Personal allowances across income-related benefits for working-age people create the basis for the way our current benefits form a consistent means test across the income-related benefits. If we were to treat different benefits differently in terms of their personal allowances, there would be no clear level of income at which state support via income-related benefits is set and at which access to other help, such as prescription charges or free school meals, would be available across a wide range of services. At a time when we are trying to simplify the welfare system, it would seem strange to introduce an additional layer of complexity for those who are seeking to use the benefit system and for the way we operate it because that would attract additional costs.
My noble friend Lord German also asked about guidance and leaflets that are issued to pensioners. Benefit recipients and pensioners are notified of their new provisional rates following the announcement of those rates by the Minister for Pensions in his Oral Statement. That needs to happen over a number of months because of the volume of notifications and because we need to make an advance claim to basic state pension. It is useful for recipients to have early notification of provisional rates, and it has been the practice for some time.
The noble Lord, Lord Kirkwood, raised a few points that were echoed in slightly different terms by the noble Lord, Lord McKenzie. My noble friend Lord Kirkwood said that he came today because he does not like to miss uprating statements and has been to every one for the past however many years. I hope I do not disappoint him. This is my first, so I have a lot of catching up to do. He made the point that these orders are different from anything that he had seen before, but he acknowledged the economic conditions that we are in and that they are an important reason why we are in a different situation from that of previous uprating statements that he has contributed to. He asked what might happen for people who are exceptionally poor or who might over time be affected in ways that at this stage we may not be able to anticipate. The noble Lord, Lord McKenzie, echoed some of that in his remarks.
I shall make a number of points on this. It is important for me to restate that some of the measures that we are taking today will have an immediate impact on people in a way that we would not want them to have, but we think that all the measures that we are taking both here in the order today and in the Bill contribute to the longer-term plan and strategy to make sure that we deliver a better economy for everyone.
Lord McKenzie of Luton
What is the Government’s assessment of the effect that the measures in this order, let alone those in the uprating Bill, will have on vulnerable people? Have the Government concluded that it will have no effect or an adverse effect? If it is as the Minister has said and the Government are mindful, as I am sure the noble Baroness is, of not pushing people into poverty, what will be the effect of this order?
Baroness Stowell of Beeston
I was about to remind noble Lords that we have carried out an impact assessment of both the order and the Bill on child poverty. That is in the public domain. However, we cannot consider only the impact of these welfare changes; other dynamic changes are being made that will have an effect on child poverty. For example, the introduction of universal credit is expected to lift up to 250,000 children out of poverty. There are varying ways of looking at its impact on child poverty. We want to make sure that it is done in the round and that it is not considered in a one-dimensional way. We are very much seized of this issue and take it seriously.
My noble friend Lord Kirkwood asked about the GAD report. GAD has said that the balance of the national insurance fund at 31 March 2014 is expected to be greater than one-sixth of the amount of benefit payments in 2013-14 and that there is no immediate need to address the fund balance. We welcome this statement. GAD has also said that there is no immediate need to do anything to address the risk of the fund falling below the one-sixth threshold. It will review the situation again in a year’s time.
There were other points that the noble Lord, Lord McKenzie, made which I have not covered already. He asked about various costings. I think that he asked about statutory maternity pay and the WRAG component. I will have to write to the noble Lord with the details of that. He also asked for information on the average time that people are on ESA—the work-related activity group. Fewer than half of new ESA claimants are on the benefit for a year, but perhaps that is something else on which I could write to the noble Lord with a little more background.
The noble Lord, Lord McKenzie, also asked me—I may not have had an answer through on this; sorry, I have it here—which benefits are not covered by this order but are in the Bill. I think he was asking whether there was any inconsistency. He is right that this does not include tax credits; there will be a separate order on them, which should be coming soon. I think the only other significant difference between the order and the Bill is on child benefit.
Lord McKenzie of Luton
I also asked the related question of whether there is anything that is not uprated by only 1% for a CPI amount.
Baroness Stowell of Beeston
That would include child dependency increases and capital limits, but I think I will have to write with a full list on that one.
The noble Lord, Lord McKenzie, asked about the 1.5 million pensioners who will see a loss from the savings credit measures. The pass through to the triple lock is a cost-neutral measure: 1 million people gain an average of 50 pence. They are the poorest pensioners, but as this is cost neutral some will obviously see a smaller cash increase. One-and-a-half million pension credit claimants will see this smaller cash increase, which is on average about 35 pence. We have done this to provide protection for the poorest pensioners and ensure that they see the cash increase from the triple lock. As I said at the beginning, my main point here is that this order ensures that the poorest pensioners receive the proper entitlement to that triple lock and get its full benefit. As I have said, I will respond to any outstanding questions that I have not covered in writing.
In conclusion, my main point is that this uprating order is one for the long term, but it is critical to have regard to those who will be affected by the order today, and we have done that. I have already explained that we are spending an extra £2.8 billion on uprating pensions and benefits in 2013-14, enabling us to protect key benefits and vulnerable groups, but we are also taking decisions that will matter to all families in the years to come. Those decisions will help us to secure a better economy and a better future for everyone. That is something which I hope all noble Lords can support and it is on that basis that I commend these orders to the Committee.
Social Security Benefits Up-rating Order 2013
(11 years, 8 months ago)
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Baroness Stowell of Beeston
That the Grand Committee do report to the House that it has considered the Social Security Benefits Up-rating Order 2013.
Relevant document: 18th Report from the Joint Committee on Statutory Instruments.
National Employment Savings Trust (Amendment) Order 2013
(11 years, 8 months ago)
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Baroness Stowell of Beeston
That the Grand Committee do report to the House that it has considered the National Employment Savings Trust (Amendment) Order 2013.
Relevant document: 17th Report from the Joint Committee on Statutory Instruments.
Baroness Stowell of Beeston
My Lords, I am pleased to introduce this instrument, which was laid before the House on 15 January. I am satisfied that it is compatible with the European Convention on Human Rights.
As noble Lords know, NEST was established to support automatic enrolment. It is a trust-based, occupational pension scheme, and the NEST order and non-statutory rules act in the same way as a trust instrument. The NEST order was set in March 2010 and NEST has been operational since July 2011. Like any other pension scheme, occasionally NEST’s operating framework will need adjusting. Since 2010, there have been a number of changes to automatic enrolment legislation which impact on the order. In addition, live running of NEST has highlighted that some provisions in the order are unclear or do not operate as intended. The changes in this order were requested by the NEST trustee. They will allow NEST to focus on its key remit: to support automatic enrolment and provide clarity to employers and members who use it.
I shall now summarise the changes. To give smaller employers more time to adjust, we have extended the staging period for implementing automatic enrolment. We are therefore extending the period during which NEST has discretion to defer admitting self-enrolling members—for example, the self-employed—until 1 March 2018. This will enable NEST to focus on helping employers to meet their automatic enrolment duty.
We have removed the duty for employers to automatically enrol jobholders who are also qualifying persons as defined by the Occupational Pension Schemes (Cross-border Activities) Regulations 2005. However, NEST is not able to decline contributions from a member who, because of a change in circumstances, later becomes a qualifying person. It could be costly to accept contributions from a qualifying person. This would require NEST to ensure that it met the pension regulations of another EEA state. It is important that NEST remains a low-cost scheme for its target market, so this order allows NEST to decide whether to continue to accept contributions in respect of members who become qualifying persons or qualifying self-employed persons.
In practice, employers may want to cease participating in NEST, for example, when an employer changes pension provider. This order allows employers to terminate their participation in NEST and includes a consequential amendment to the definition of participating employer. Members admitted through employers are not required to sign terms and conditions. NEST is obliged to admit self-employed individuals to membership, but the order requires them to sign terms and conditions. We are therefore removing this requirement to bring the admittance process into line with other members.
The current description in the order of who can contribute to a member’s account is unclear. We are making an adjustment to that description to ensure contributions from third parties—for example, a member’s relative—will be accepted. We do not want to place unnecessary burdens on employers to process refunds of contributions not made through payroll, so this order allows the trustee to refund third parties or members directly.
Regarding minimum contributions, all contributions made by an employer count towards the annual contribution limit. Where a member of NEST has multiple jobs, NEST must accept minimum contributions from each employer. The quality requirement in Section 20 of the Pensions Act 2008 sets minimum contributions, which are currently 8% of earnings between roughly £5,500 and £42,500. Regulations now also allow for an alternative quality requirement, known as certification. The minimum contribution under the alternative requirement is one of 9% of basic pay, 8% of basic pay where basic pay is at least 85% of total earnings taken in aggregate, or 7% of total earnings. This order makes it clear that minimum contributions capture both the Section 20 and alternative quality requirements.
Lord German
My Lords, I have only one question in relation to the changes in this order. I suppose that I should declare an interest in that my wife works for a small charity which is seeking to become a member of NEST for its employees. However, I do not think that I really have an interest in the sense that I am relating my question to the technical change removing the requirement for the trustee to consider next of kin. Therefore, it is a general question rather than being specifically about me.
The Explanatory Memorandum talks about rules, with a small “r”, in England and Wales, Northern Ireland and Scotland, but further on it talks about doing something differently in accordance with Rules with a capital “R”. In terms of next of kin, what is being changed here in respect of those to whom payments should be made? Why is there a £5,000 limit on death benefits being transferred, and what Rules, with a capital “R”, will apply when the trustee looks at the question of those to whom they should pay sums of less than £5,000?
Lord McKenzie of Luton
My Lords, I thank the Minister for introducing this order and I say upfront that we will be supporting it. Perhaps I may revert to an item touched upon by the noble Lord, Lord German, which I was going to raise in our previous debate concerning people’s expectations of pensions, the importance of auto-enrolment and certainly the importance of NEST as a key component of that. When the Turner commission looked at the prospect of auto-enrolment and how employer pensions were to be organised in future, I think that the criteria around contribution levels and the band of earnings to which they applied were struck so that over a working lifetime the required level of replacement earnings would be produced. I am bound to say that with what has happened to the band of earnings, contribution levels have not shifted. I have not seen an update of that calculation and I do not know whether there is one—I think that it is an adjunct to this order—but if there is, it would be interesting to see it.
I have one or two questions in respect of some of the detail. We understand why the discretionary period to allow self-enrolling members to be accommodated is necessary, but can the Minister update us on the current elongated process for enrolment? I do not have that fully in my mind. What is the position of new self-enrolling members at the end of that period? Do they have an unfettered right to enrol? Perhaps we can use this occasion, given that NEST has been up and running for a little while now, although with regard to auto-enrolment larger employers are involved first, to find out whether we have any early numbers for the employers and employees who are enrolled.
We support the lifting of the obligation dealing with cross-border obligations and the other essentially technical amendments. I have a small point on terms and conditions. The Minister said that the proposed change would mean that self-enrolment individuals, as others, do not have to agree to members’ terms and conditions, so what is the purpose of those conditions? What relevance do they have? As for multiple jobs, again we support the change that has been outlined, but what is the position on multiple jobs within the same employer group? There is a maximum of 4,400 but, if that can be exceeded and there can be multiple jobs, are there any constraints if those multiple jobs are within the same group, possibly on a specifically organised basis to circumvent the limit?
With those few small inquiries, I say again that we support the order and are pleased to see that NEST is making progress.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Lord, Lord McKenzie, for his support for this order and, indeed, for the support from my noble friend Lord German. I will try to respond to a few points, but I must say straight from the start that I will probably have to write to the noble Lord on many of his queries. This being quite a technical order with quite a lot of associated technical questions, I am afraid that I know my own limits. This one might take me beyond them, so forgive me from the start if I have to follow up in writing.
The noble Lord, Lord McKenzie, asked me for the latest figures about membership of NEST. I have those in front of me. It has been operating since July 2011 and automatic enrolment commenced, as we know, in October last year. We estimate that by the end of staging it will have 2 million to 4 million members and 750,000 participating employers. To the end of January, NEST has more than 200 participating employers, around 45,000 members and a little over £2.2 million in assets under management.
The noble Lord, Lord McKenzie, asked, in going back to the last debate that we had on the last order, about the percentage of average earnings that people will accrue as they enter retirement. If there is anything more that I can say on that, I will have to follow up in writing.
The noble Lord, Lord German, asked about next of kin and what is happening there. The requirement for NEST to have to consider next of kin is in line with the Administration of Estates Act 1925. In Scotland, a person is entitled to moveable estate on intestacy. These are very specific; the change allows NEST to determine who to pay survivor benefits to. The rules with a capital “R” are the NEST rules that support the order. On why the trustee’s discretion to pay survivor benefits is applicable to pots only under £5,000, the Administration of Estates Act specifies a limit on the amount of property allowed to be disposed of on death without the necessity for probate or other proof of title. That limit is currently £5,000.
The noble Lord, Lord McKenzie, asked about the position of self-enrolling members after the staging period. They will be able to join NEST, as NEST has an obligation to accept them. He also asked about what he described as the elongated staging profile. Currently, large employers have staged and medium employers will become subject to the duty from April 2014. Smaller employers will become subject to the duty from June 2015, and all employers will be in by February 2018.
The noble Lord, Lord McKenzie, also asked whether there is an update on the calculation of contribution levels. I think I am about to answer something that I promised to write to him about. In the hope that this answer will mean a shorter letter, if not another letter, the qualifying earnings band is from about £5,500 to about £42,500. A revision order has been laid in draft and will be debated shortly. The noble Lord is correct in saying that the contribution rates remain as in the 2008 Act.
Lord McKenzie of Luton
That is very helpful. I am specifically interested to see, if it is available, what that would mean if one revisited the original Turner commission’s calculation to see what, over a working life with that earnings band and those contributions levels, that would be likely to give in terms of the level of replacement income for somebody about to retire. There was a specific calculation that drove many of these parameters at that time. If there is no update, it is of no great moment, but if there is, I would be interested in seeing it.
Baroness Stowell of Beeston
If there is anything available that I am able to provide, I will do so. The noble Lord also asked whether there were any constraints on minimum contributions within the same job. Where there is an upper limit on contributions into a scheme, however expressed, the scheme can still certify as long as the upper limit could not result in contributions that are less than those required by Section 20. I think I am right on that one.
Since I have run out of pieces of paper in order to try to respond to the questions that noble Lords have generously put to me today, I will conclude by saying that I am grateful for those contributions. The changes in this order are consequential, minor and technical. They are deregulatory and will ensure NEST continues to operate efficiently for employers and members who use it. NEST is critical to the success of automatic enrolment. I am grateful to noble Lords for their support today. I commend this order to the Committee.
Vocational Education
(11 years, 8 months ago)
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Lord Lucas
To ask Her Majesty’s Government what is their assessment of the report by City & Guilds Centre for Skills Development, How to Teach Vocational Education: A Theory of Vocational Pedagogy.
Lord Lucas
My Lords, it has been widely acknowledged that we have a problem as a nation with the quality of the teaching of vocational subjects in further education. The most recent example and proof of that has been Ofsted’s refusal to grant outstanding status to any FE college, although I believe there is one going through the process now. I am being told that it got it, which is wonderful. That news had not reached me. It would certainly be a first, and a very welcome first. So we know that we need to improve the quality of our vocational education teaching.
Vocational education is not an easy thing to teach. There are demands for a high-quality outcome. Most of these courses are intended to produce someone who will be an employee or craftsman of high quality, and we need a high-quality system and a high-quality foundation to get them there. That is why I am very pleased to be able to draw attention to this report from the City & Guilds Centre for Skills Development. I declare an interest as a member of its advisory board. By foundation, I mean not the main foundation, but one of the stones in the foundations of a high-quality vocational education system because we ought to base the way that we are teaching vocational education on a sound pedagogy, on a sound theory of how vocational education is best taught.
I find this document extremely readable and lucid. It is just a beginning. From here, it will go on to be discussed with employers and teachers. It will find its way through a process that is at educational rather than political speeds, so I suspect that it will take a year or two to get to the point where it is not just a theory of vocational pedagogy but a practice and something with some well consulted background.
By way of illustration, I draw particular attention to page 47 of the report, which looks at the structure of the outcomes that one is aiming for from a well organised vocational pedagogy. It looks at the skills that one would expect a plumber to have, starting with routine expertise. It states that, if a boiler requires an annual service, the plumber,
“is familiar with the make and model and runs through a routine process of checks to ensure the boiler is safe and working properly”.
Beyond that, the plumber requires resourcefulness because the boiler may be exhibiting some strange symptoms. You want the person who has passed out of a vocational course, once they have tried the obvious solution, to consider alternative courses, to think carefully about what they might be, to investigate and to try alternatives. One also wants the plumber to have what you might call “functional literacies” so that they can handle language and interpolate between technical language and the level of comprehension of clients, so they do not just spout jargon at customers but can explain in their language what is wrong with their boiler and what needs doing.
We want craftsmanship, which we often look for in vain. It is such a delight when one comes across a builder who really cares about what he has done, who takes joy and pleasure in a job well executed and in having done something right that will last. That is going beyond just doing the job; it is being able to do something relatively simple and routine a great number of times and still take pleasure in a job well done at the end. It is a matter, too, of business-like attitudes: to have a proper relationship with the client and know that he has often relied on your assistance; to do something little free of charge; and to build a long-term relationship. Beyond that, people need to develop wider skills and resilience to build on their qualifications to go further in their career, to have determination to refuse to give in, to know how to look for resources beyond their own immediate understanding and to consult colleagues, carry out research and look further.
When we think of what we would like the plumber who calls round to look after our boiler to be, that is a pretty good set of ambitions to have for a trained plumber, and a pretty good set of resources and qualifications for a plumber to have. Based on that, you can hope for a secure life if you choose to stay as a plumber, or if you want to go beyond it, you have learnt a lot of skills that will apply elsewhere. One could read through that list and think that it applies pretty well to a Minister and to many other professions. Indeed, one could say that it would apply pretty well to school education, although not in the context of a particular skill.
This research has led to a good place. It resonates for me as the right answer. It obviously needs polishing and working through with employers to make sure that they recognise the skill sets that they would hope to have, with teachers to make sure that what is being said is teachable and workable, and indeed, with customers. It cannot hang as a piece of research on its own but needs to be worked at and enriched over the next year or two to produce a thoroughgoing basis on which to build a very high-quality system of vocational education. I am looking for the Minister’s supportive interest and hope that she will say that this is an initiative that the Government support and to which they will continue to pay attention. I want them to keep up communications about their own thoughts on this so that it does not go wandering off in a different direction from the one with which they feel comfortable. I feel confident of receiving that, not least because I know the Minister’s background in this area. I hope that she will have sympathy with it. I beg to move.
Baroness Sharp of Guildford
My Lords, I thank the noble Lord, Lord Lucas, for bringing forward this debate, which is a timely one. I declare an interest as a patron of the Institute for Learning, and as a member of the advisory committee for the City & Guilds Centre for Skills Development. It is very timely, because another committee is sitting, as I am sure the noble Lord recognises—the McLoughlin committee on adult teaching and learning in vocational subjects. In many senses, the City & Guilds report feeds into the McLoughlin committee and is seen as that, but we will get a full response from the Government when the McLoughlin committee has reported to them.
In the report now two or three years old from Alison Wolf on vocational education and training, she drew attention to the fact that we have getting on for 2.5 million young people aged 16 to 19 who are going through vocational education of one sort or another. In this country, we give a lot of attention to those who achieve GCSEs A to C, and we measure to some extent the success of our educational system by the proportion of the young people who achieve at least five and, moving forward, six GCSEs A to C, including English, maths and science. What we often fail to recognise is that something like 40% of young people, and often more, fail to achieve GCSEs and in fact follow the vocational pathway. They go on and often achieve quite highly in other respects through the vocational pathway. The Wolf report made it quite clear that these vocational programmes, if well taught, are for those young people not only a more satisfying preparation for employment and life than the GCSE and A-level route but for the country they are extremely necessary in raising productivity and meeting our skills deficit.
I put emphasis on the words, “if well taught”. The issue of the quality of teaching and learning in vocational education came to me during the making of the report that I chaired, sponsored by NIACE, the 157 Group and the Association of Colleges, in looking at the role of FE colleges and their communities. That particular report picked up in many senses the same issues as this one—namely, that FE colleges have new flexibilities. An element of deregulation has taken place, and they now have much greater flexibility to decide on their own courses. One aspect of this is the need for these colleges to be seen to serve their communities, in two senses. One is that the student body represents the community, and colleges must do the best that they can for that student body. Secondly, if they are to do the best that they can, it is important to train those young people for the jobs available in their communities. Therefore, there must be a very close liaison not only with the employers in their communities but with the other public sector bodies in their communities, such as hospitals and the police force.
It became clear, as we wrote that report and talked about the potential of colleges to provide a degree of leadership within those communities that we needed to look at a new pedagogy. The changing circumstances of further education and adult education in this world require us to look again at the whole body of teaching and what goes on there. So we need high-quality teaching and learning that moves with the times. That is why this report from the City & Guilds centre is extremely useful to have. It gives us a template on which to build and think about a new pedagogy. In itself, it does not really provide us with the pedagogy as such. The noble Lord, Lord Lucas, drew attention to the diagram on page 47.
What one learns from this is that vocational education needs to be taught within the context of practical problems. It is best when it is hands-on, practical, experiential and real world. It involves feed-back, questioning and reflection, and the application of theoretical as well as practical explanations. It needs tried and tested teaching methods—learning by watching, learning by imitating, learning by practising, and trial and error in real world situations, feed-back, conversations, listening, transcribing, critical thinking, drafting and sketching.
Picking up on the need to consider the world of vocational education and training within the changing context that we face, we must also consider the role of the internet and the increasing use of distance learning and social media. One of my commissioners was very concerned about the curriculum, in which pedagogy played quite a part. Sally Dicketts, the principal of the Oxford and Cherwell Valley College said that we need a curriculum that is any time any where. This is a vital subject. OECD recently produced a report on the UK remarking, once again, on low levels of productivity. It identifies three key issues as influencing productivity: first, and above all, investment in infrastructure; secondly, investment in R&D; and, thirdly, once again, investment in education and training. The deficit lies in training in vocational areas up to level 3 and level 4. It is absolutely crucial to our future and vital for productivity and growth in the UK that three-year apprenticeships to level 3 and the skills required at HND level should be taught well.
Lord Lingfield
My Lords, I add my thanks to those of the noble Baroness, Lady Sharp, to the noble Lord, Lord Lucas, for initiating this debate about a sector which is too often the Cinderella sector of education and on which, however, we shall rely, if our economy is to grow again, for the creation of a technically accomplished workforce for the future, as the noble Baroness, Lady Sharp, mentioned. I pay tribute to the noble Baroness because her work in further education is much admired throughout the sector.
I, too, declare an interest as a fellow of the City & Guilds of London Institute and as chairman of the Government’s review, Professionalism in Further Education, which was published late last year. This was conducted against the background of the Government’s policy of giving as much autonomy as possible to FE institutions, be they in the public or private sectors. I give my earnest thanks to those professionals who comprised the panel that sat with me and to the many who gave evidence to us throughout that time.
It is impossible in the short time that we have to comment on all the findings of the review and how they touch on the work of the City & Guilds, which I much admire. However, one that is hugely important concerns the occasional difficulties caused by the current funding system which requires FE institutions to work with at least two agencies—the Skills Funding Agency and the Education Funding Agency. It would be preferable, in my view, for post-compulsory education to be seen as more distinct—I know that not everyone will agree—from secondary education policy and procedures.
At the moment, FE providers are often undergoing mission drift. One of the reasons is the easier availability of grant funding for courses for the under-18s as opposed to older vocational students. In my view, a review is necessary to remove these unintended distortions from the system and to look forward to a single post-compulsory funding system with an aim of giving the highest quality of vocational education to all, whatever age they may be. I firmly believe that it is right to give the managers of our FE providers as much independence as possible. They are the professionals on the spot and they deserve the authority to match their great responsibilities. Only they should set the spending priorities of their colleges and decide the age groups which they feel will most benefit from available funds, free of central bureaucratic controls and constrictions.
However, autonomous institutions have to have touchstones of quality against which they must measure themselves, and I welcome the Government’s acceptance that there should be created a royal chartered body to which colleges and other providers can apply for corporate membership. They would be admitted on criteria concerned with the high quality of their pedagogy, their governance, their financial management, their results in the qualifications that they offer to the young people and their response to the autonomy on which the Government’s policy is currently founded. Institutions admitted would thus enhance their status and perhaps earn the freedom from inspection already granted to a few—a very few, as we have heard—outstanding colleges. It seems to me essential that the credibility of such a royal chartered body and its potential to raise the professional standing of all who teach in its member institutions will be secured by eventually placing it at arm’s length from government, for it will need to be both professionally authoritative and independent. It will need to take into important account the words to me last year of a young FE lecturer. He said, “I have two interwoven careers to develop: first, I am a teacher and I want to learn the very best pedagogical techniques to let me enable my students to learn at the highest level. But, as importantly, I am an automotive engineer and I want to ensure that I keep absolutely up to date in current practices. It is no good being a good teacher if I am teaching the mechanical techniques of five years ago”. This is touched on, on page 25 of the City & Guilds report. It is hugely important and I hope that central to the mission of institutions in membership of the proposed royal chartered body will be a total commitment to the professional updating and development of their staff.
Further education, as the City & Guilds report implies, is the most diversified of our sectors and that is one of its strengths, but it also can be one of its weaknesses, for, as we have heard, it is estimated that it deals with some 3 million students each year studying for an incredible 17,000 or so vocational awards. Alas, such a plethora is rarely understood by students and particularly not by employers. Some clear rationalisation is needed and, in my view, we need the establishment of a simple set of high-quality benchmark qualifications readily understood and valued by all.
My review found some superb practice within the sector. The reforms which I have just outlined would help to spread this much further and help this country to outperform its competitors in today’s extremely difficult economic environment.
Lord Addington
My Lords, when I saw that this debate had been tabled, I initially put my name down for one reason—to have a slightly more detailed dig about the development of, for instance, those with special educational needs and their way into further education. That was as a result of my experience of dealing with the new apprenticeships and the problems there associated with dyslexia, although apparently there are problems with dyslexia in other sectors as well. However, as I started to read through the report, I was also convinced that I should put my name down to speak because of the use of the term “coaching”. I know rather more about coaching in relation to sport than I do about coaching in relation to any aspect of further education, but I appreciated that it was a new way of learning and one that I knew something about. It involves a different process of imparting and using knowledge and teaches people how to apply that knowledge.
My noble friend Lord Lucas started with examples of trying to make training appropriate. The example we use in the documentation is a plumber. You take information, you approach how it is integrated and you go back and through. My very distant noble kinsman Lord Lingfield spoke about keeping people up to date, making sure the information is ongoing and how to learn and approach others. This approach is more appropriate for people who are not really designed for being in a classroom receiving facts and figures, which surely must be one of the primary differences between further education and the schoolroom. The connection between the two and acknowledging that there are differences between them is a very positive step forward. You create a different learning process to which those who have not enjoyed school or had great success there will find themselves more open, particularly if this different approach is explained to those on entering it.
The briefing for this debate mentioned the Wolf review. I became less happy with aspects of it, particularly going back to the insistence on GCSE passes when we brought in apprenticeships under the previous Government. I remember hearing that employers want people who can pass English and maths, but they also want people who do not put in for overtime, do not have time off, do not have children who get sick and so on. They really want people who will turn up and work for nothing; they have no right to expect that. They have the right to expect somebody who will able to do the job at least competently, who has a decent approach to what is coming next and who will not be rude to clients and fellow workers. That is what they have a right to expect.
Although City & Guilds has done good work, it is one of the bodies I had disagreements with. I discovered considerable resistance to the idea that you could change the way exams are taken. It had to catch up with the fact that the rest of the education system acknowledges things such as dyslexia, dyspraxia and dyscalculia and allows people to take qualifications and different ways forward. One example of that is telling people that they cannot have differently formatted online exams for security reasons. It might be a bad thing if somebody gets hold of the answers in advance, but it is not a nuclear strike. Other examination bodies, such as universities and GCSE and A-level boards, manage this process consistently and have done so for years. How are we going to make sure that the further education sector gets itself more up to date on taking on a mass group and giving meaningful qualifications, and how you let those people in?
The groups that I am talking about should be over-represented in the general population in this process of education. Let us take dyslexia, which is the biggest group; it affects 10% of the population. The first example I saw of somebody failing in a skill that requires using your hands due to what was key skills then—it is functional skills now—was a hairdresser who had won an award but could not pass the English assessment. You can get a degree with dyslexia by using assistive software. It is available for free on the phone I have on the desk in front of me; that is how common it is. I draw attention to my interests in the fields of both technology and dyslexia, but they are both predated by my interest in this subject—or my interest in the subject predates them. I am sure that Hansard will have fun with that.
However, the further education sector has to grow up and become part of the mainstream about bringing these groups in. It has not done very well as a starting point. If we could hear from my noble friend that she can build on what she said at Question Time today about making sure that they all take on board the fact that they must bring in these people, I would be a much happier person. This was not a confrontation I looked for and it was one which I thought would be over and done with by now. I have on one occasion had a Minister of State shouting at officials, “Sort it out, it’s ridiculous”. That was nearly 18 months ago. There does not seem to be an embracing of the fact that we have a legal framework that says that those with hidden disabilities should be brought into the mainstream. They should not be left on the side.
We do not want to create a situation where more people find greater difficulty with employment because they cannot access the very basic and fundamental forms of qualification, which we need now in finding employment—or at least to change employment frequently, as we seem to have to do. Unless we can start to address this and work it in with that very welcome change towards coaching and a more flexible approach to learning and teaching, we will just create more problems. I hope that my noble friend will be able to give me a positive reply. Indeed, I hope that the noble Lord, Lord Young, will give us an idea about where he thinks it should develop, because I recognise his expertise in this field as well.
Lord Young of Norwood Green
My Lords, I, too, thank the noble Lord, Lord Lucas, for ensuring this debate. If nothing else, it forced me to look up “pedagogy” and find out what it meant. I thought I knew but that, being a fully paid-up member of “Pedants are us”, I had better know the precise meaning. I am also grateful to the City and Guilds Institute, for two reasons. First, the only qualifications I have are from it, so I have some reason to be grateful to it. Secondly, I am grateful for the report, although when I looked at its equilateral triangle that promised to identify the three types of vocational education I did not quite understand it, so it is back to the drawing board for me.
I was tempted to ask the noble Lord, Lord Lucas, for the name of the plumber. If he was as good as that, everybody would want him. Unfortunately, not all of them measure up. I remember seeing a television programme which showed far too many of them saying, “Your boiler’s had it and you need a new one”, when it actually had quite a simple fault. Of course, a plumber these days is not just a plumber. A plumber is required to have knowledge of electronics and chemicals, plus the basic plumbing techniques, so I do not knock that.
My party’s approach to vocational education is, briefly, that we want to develop a transformational 14 to 18 education system featuring a quality technical baccalaureate at 18 for those achieving a rigorous vocational qualification, a work experience placement and achievement in English and mathematics. That is taking into account the point from the noble Lord, Lord Addington, about having different methods for those who have real problems in approaching exams in the standard way. The TechBacc would sit alongside those A-level programmes. We want more and better vocational education up to 18, with all young people undertaking some vocational learning from 14 and compulsory work experience for all 16 to 18 year-olds. I am rushing this because we have only a short time.
One of the smarter things that we did in Government was, I felt, that instead of raising the school-leaving age we raised the participation age. All Governments make mistakes, but I thought that was a good one. One of the mistakes we made was in picking a random figure and saying, “We want 50% of young people to go to university”, which somehow implied that the other 50% had failed in some way. Eventually, we realised that that was not the case and we put a lot of effort into both FE and apprenticeships, but I feel that it was a sort of catching-up process.
There are many of these reports but, looking at the Government’s response to the Wolf report—whether or not we like every aspect of it—it was a significant report. The Government identified a number of things that they felt were failures, and I agree with them. They include perverse incentives created by the performance and funding systems and encouraging the teaching of qualifications that attract the most performance points or the most funding, not the qualifications that support young people to progress. I saw evidence of that in my brief ministerial career, so I do not in any way blame it on this Government—we are all on a journey trying to improve quality. The failures also include students without a solid grounding in the basics being allowed to drop the study of English and maths. We know that they cannot do that. Many potential employers say, “If they want to progress, they’ve got to have a basic grounding in those subjects”. Therefore, we are looking to improve the quality of FE, and we know from the Ofsted review that it needs to be improved.
I was attracted to the point that the noble Lord, Lord Lingfield, made about giving institutions more autonomy. However, with autonomy comes responsibility. Before he said that, I thought that I would not give them autonomy unless they came up to a certain standard. The noble Lord then went on to talk about the royal charter, which I think is a good approach.
When you go into FE colleges—and I have visited quite a few—you can see that when they work, they work really well. One college that I went to had a department dealing with painting and decorating. It worked well because the college had managed to attract a local painter and decorator who ran a highly successful business. It had initially lured him into the college on the basis that he would be coaching, but it trained him in teaching and he created a fantastically successful department. I instance that because we need all colleges to have that relationship with the business community, as the noble Lord, Lord Lingfield, mentioned, as well as the local community.
In the brief time available to me, I want to touch on a couple of other things. We have a concern about the looming introduction of FE loans for all courses at level 3 and above for those aged 24 and over. There is already some evidence that that might prove to be a disincentive. We live in a society where we know that people are not going to retain one job throughout their life and that they are going to have to retrain, and that is something that the Government may need to reflect upon.
Something else identified in the Wolf report is that we can have the best further education but if it does not lead to work experience and apprenticeships then we are in trouble. It is not that the Government are not focused on apprenticeships—I pay tribute to some of the work they have done—but there is still some way to go on quality. Just quoting numbers is not enough, as a lot of the figures relate to adult apprenticeships. The area where I think we need to focus is the 16 to 18 age group, and I say that because of youth unemployment. Although the unemployment figures may be coming down, youth unemployment is still a serious problem. The number of firms employing apprentices is still pathetic. I think that only about a third of the FTSE 100 companies have apprenticeships, and the average is somewhere between 4% and 8%. I fail to understand why the Government do not insist that if you want a public procurement contract, you have to specify the training and the number of apprenticeships. I have just been invited to a Crossrail apprenticeship award event. Crossrail has 400 apprentices because we insisted on it, and the same applied to the Olympics. I do not understand why the Government will not go down that road.
We are in an ever-changing environment—the noble Baroness, Lady Sharp, mentioned further education, distance learning and social media—but we are also in an era when UTCs are on the scene. One question that I used to ask when I went around schools, colleges and universities was, “How many apprentices do you, as an institution, have?”. Often I might as well have asked them how many people from their college had landed on Mars because they did not seem to understand that it is no good teaching about apprenticeships if you do not have any yourself. It is important to encourage them to recruit not just as one school or one college but together as a group. We have ATAs and group training associations, which have been identified in the government report, and every local authority ought to ensure that GTAs operate within their area working with schools, colleges and further education colleges. They are part of the solution to this problem but we have a long way to go.
As part of the Lords outreach programme, I will be speaking to some sixth-formers tomorrow. They are all bright-eyed and bushy-tailed, and we cannot help but think that they are about to face reality. They will be trying to enter the world of work, assuming that they do not go on to university. Even those who go on to university are now wondering whether it is the right journey. We have a huge challenge and responsibility. We cannot afford to fail to create not only apprenticeships, which are fundamentally important, but work experience. If further education colleges are able to apply their pedagogy in an environment that will produce results, they must be able to give confidence to young people that they will find work and work experience out there. Those are some of my brief reflections. This has been a very worthwhile debate, and the subject merits a much longer debate at some time in the future when we can pursue some of its complexities. I look forward to the Minister’s response.
Baroness Garden of Frognal
My Lords, I am grateful to my noble friend Lord Lucas for initiating this debate. Vocational pedagogy is an issue seldom discussed in your Lordships’ House, but it is a legitimate area of concern for both the House and the country.
I declare an interest—a number of interests have been declared in this debate—in having been associated professionally for more than 20 years with City & Guilds, and it was the City & Guilds Centre for Skills Development that produced the report under debate. It is clear from reading How to Teach Vocational Education that the institute maintains its standards of expertise and insight in relation to vocational teaching and assessment. It has been tremendous this afternoon to hear people coming from all sorts of backgrounds talking with the same enthusiasm and passion for vocational education.
I can assure my noble friend Lord Lucas that the Government welcome the report and the evidence that it provides to inform the work of the Commission on Adult Vocational Teaching and Learning. The Government are not alone in this. Both the Institute for Learning and the Learning and Skills Improvement Service have also applauded the report as a valuable contribution to work on this theme. As the originator of the Good Schools Guide, my noble friend Lord Lucas is fully aware of how fundamental standards of teaching are to eventual learning outcomes. What constitutes good and effective school teaching is, rightly, a topic to which your Lordships’ attention is frequently drawn and on which this House can boast substantial expertise. However, too little attention has been paid both in government and in the education sector as a whole to the quality of the education and training offered to young people and adults after compulsory school age.
Teaching adults and teaching vocational subjects call for different skills and present different challenges from those required in school classrooms. For example, learners’ ages may vary from 14 to over 90. The experience they bring with them may be as a complete beginner in the subject, as someone working towards a first step on the career ladder or as someone who may have worked in an area for years and is looking for the certification required for career enhancement. They may also want to learn for personal satisfaction, and that, too, is worth while. The task of teaching children successfully is hard enough, but the range of variables with which teachers of adults must cope potentially extends so much more widely. They tend to be better disciplined, which I suppose is one of the advantages of teaching adults, and their motivation tends to be higher than for those still of compulsory school age.
Two key factors have a bearing on the quality of the results that vocational education produces. First, there is the standard of qualifications to which it leads and the degree of confidence that employers have in those qualifications. My noble friend Lord Lingfield mentioned the importance of benchmark qualifications and the ease of understanding quite what the qualifications represent. City & Guilds, as befits an organisation founded by the livery companies and the Corporation of the City of London, has been delivering these since 1878. In the aftermath of the Wolf review, this Government have sought more and better ways to encourage more employers to become involved in the design and delivery of vocational qualifications as a guarantee of quality and workplace relevance. The noble Lord, Lord Young, gave a telling example of the local painter invigorating a class of people who were learning that craft.
Secondly, and equally crucially, there are standards of teaching and learning. For this, we look largely to the commitment and expertise of the further education sector. I echo the views of the noble Lord, Lord Lingfield, and those expressed by other noble Lords, and I pay tribute to the dedication of governors, leaders and, of course, teachers. On the comment that my noble friend Lord Lucas made about FE colleges, my understanding is that 66% of colleges are currently judged as good or better and that around 13% hold an outstanding grade, which is encouraging.
As the report makes quite clear, the sector has successfully adapted its methods to the subject in hand and to the diverse characteristics and aspirations of learners. Success depends not on new orthodoxy or dogma but on awareness and creativity. FE has responded, for example, to the way that e-learning has grown in recent years—as my noble friend Lady Sharp set out clearly—in recognition of the technology-dependent lifestyles of today, especially among the younger generation.
The previous Government took welcome steps to guarantee the quality of adult learning. I acknowledge the contribution of the noble Lord, Lord Young, to the developments and progress made during that time. The coalition Government are building on that but, equally, we are trying to tackle the bureaucracy. We believe that one of the most useful sources of expertise is to be found among teachers and so, rather than impose central targets, the Government’s most effective role is to help the sector to identify and share good practice wherever it exists. We can see from the report that those directly involved in further education, individual learners and their eventual employers will all be the beneficiaries of high-quality teaching leading to high-value qualifications.
As noble Lords will know, the Government announced in December 2011 that they would establish a new Commission on Adult Vocational Teaching and Learning under the chairmanship of a distinguished college principal, Mr Frank McLoughlin CBE. My noble friend Lady Sharp made reference to this. Input to the review came from a wide range of sources, including this valuable report and, crucially, real-life observation of adults learning.
The main findings, influenced by this City & Guilds research, concluded that vocational education and training programmes should be characterised by learning with a clear line of sight to work, and that specialist vocational teachers and trainers should be at the heart of this system. To ensure that knowledge and skills are always current, strong links with employers should be maintained and further developed. In connection with this, following the review of professionalism of the noble Lord, Lord Lingfield, the Government are developing new professional qualifications for the FE workforce, and the new FE guild will take that forward.
Ofsted’s new inspection regime has a greater focus on the quality of teaching and teachers—my noble friend Lady Sharp referred to this—and will report on the contributions of colleges to their communities. As to teachers with dual professionalism, which the noble Lord, Lord Lingfield, highlighted, the commission sees this as a fundamental element of the future development of the FE workforce. Its recommendations advocate equal focus on developing teaching and ongoing professional skills. It has long been one of the strengths of the further education sector that the practitioners were also frequently the teachers, and that brought reality and relevance to their teaching of students.
The commission will also set out the standard for what an adult vocational learner should expect and define a range of effective pedagogical approaches that make full use of the potential of technology—because, of course, technology has made an enormous difference in life.
On the points made by my noble friend Lord Addington, I recognise his concern about the requirement for people with any form of learning disability or disadvantage to be allowed to reach their full potential without any barriers which particular forms of assessment may present. I assure him that this is constantly under review. Ofqual is in regular contact with disability interest groups, to which I pay due tribute for the expertise and passion they bring to ensure that the groups they represent are not unnecessarily disadvantaged by things which could be removed.
Ofqual is looking very closely at the different methodologies for assessment. My noble friend—I know of his particular interest in dyslexia—mentioned the different ways, such as computer aids and software applications, which can enable learners to demonstrate that they can attain the standards of the qualification, albeit by a somewhat different method of assessment. The awarding bodies and, of course, the colleges have to maintain an interest in the qualifications, when they are awarded, representing a pure standard of achievement. A great deal of work is going on—and my noble friend deserves thanks for the way in which he champions disadvantage—to try to make absolutely sure that these different methods can be brought in. Many colleges already have strategies and technologies to support learners with special needs. We expect that some of the results coming out of the commission will address this, and we will have further information to support that. The websites of the Government, of Ofqual and, indeed, of the awarding bodies are available. My noble friend mentioned particularly City & Guilds. I know that all the awarding bodies have an interest in ensuring that special educational needs are met. I am sorry that he has found difficulties dealing with that, and we hope to take forward any specific cases that he can bring forward to try to ensure that those are fully addressed.
My noble friend also mentioned the importance of coaching. The other volume that comes with this report is The Role of Coaching in Vocational Education and Training, and we know how vital that is. It is always good to have a reference back to the Olympics and Paralympics in any debate, so why not in this one?
An interim report was published last December. Consultation on the commission’s conclusions is now nearing its end, with the final report due towards the end of March. The Government will look forward to considering that report and responding to it in due course, bearing in mind, of course, the development of the FE guild. With the interest in this subject around your Lordships’ House, that response may well provide an opportunity for the House to return to this vital subject at a later stage.
In closing, I again thank my noble friend for initiating a debate on this instructive report, and I thank all noble Lords who have spoken. They have brought a wide range of expertise and enthusiasm to this subject and have made incisive and informed contributions.
The Deputy Chairman of Committees (Lord Colwyn)
My Lords, that completes the Grand Committee business for this afternoon.
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Baroness Butler-Sloss
My Lords, I wish to make a Personal Statement. On 10 December 2012, during a Report stage debate on the Crime and Courts Bill, I intervened to answer a suggestion that judges did not need protection, as reported at col. 865 of the Official Report. I had not prepared what I was going to say. I referred to death threats that I had received as a judge from dissatisfied litigants. Most unfortunately, in referring to the people who had made such threats against me, I included the unwarranted suggestion that the organisation Fathers 4 Justice was among those who had made such threats. It was not true that Fathers 4 Justice had made any death threats against me.
It was also unfortunate that two West Country newspapers reported what I had said in this House. I did not speak to either newspaper. Fathers 4 Justice got in touch with me by e-mail and I immediately withdrew the allegations and apologised unreservedly to them. I offered to write to the newspapers but Fathers 4 Justice asked for a public apology. The most convenient way to do so seemed to be by a Personal Statement to this House.
I reiterate that I withdraw any allegations of death threats against me by Fathers 4 Justice and apologise unreservedly to them.
Burma
(11 years, 8 months ago)
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Baroness Cox
To ask Her Majesty’s Government what assessment they have made of the current situation in Burma, with reference to the Kachin, Shan and Rohingya ethnic national peoples.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi)
My Lords, we welcome the direction of reforms in Burma but continue to raise concerns over human rights and ethnic reconciliation. In Kachin state we are encouraged by the recent reduction in fighting and agreement by both sides to pursue political dialogue. We continue to monitor the ceasefire and humanitarian situation in Shan state. In Rakhine state we continue to press the Burmese Government to improve coordination of humanitarian assistance, to ensure security and accountability and to address the issue of Rohingya citizenship.
Baroness Cox
My Lords, in thanking the Minister for that comprehensive reply, may I highlight the seriousness of the situation? I have just returned from Kachin state where a 17-year ceasefire was broken by the Burmese army. Fighting continues with widespread violations of human rights, including torture, killings, rape and an aerial bombardment causing 75,000 civilians to flee to camps or hide in the jungle. In Shan state, a military offensive caused hundreds of thousands of civilians to flee their homes, and the Rohingya people have been reduced to conditions of severe destitution and massive displacement.
Therefore, can the Minister give an assurance that Her Majesty’s Government, while welcoming recent reforms, will press the Burmese Government to protect and promote the rights of all ethnic national peoples?
Baroness Warsi
The noble Baroness, as always, comes to these Questions with the most up-to-date information that could possibly be obtained, and I thank her for the enormous work that she does in Burma, as well as in many other places around the world. Our policy is one of constructive engagement on human rights, and ethnic reconciliation is a central part of that. I can assure the noble Baroness and the House that we take the humanitarian challenges in Burma extremely seriously. Indeed, the Minister with responsibility for Burma, Hugo Swire, when he visited that country, travelled to Rakhine state with a view to making representations to the regional governments as well. It is a matter on which we continue to press the Burmese Government and on which our ambassador there is hugely engaged.
Baroness Kinnock of Holyhead
My Lords, when the EU common position on Burma is reviewed, as it will be in April, what position will the Government take on the EU sanctions that were suspended on the specific understanding that there would be progress on human rights and democratic reform in Burma? Is it not the case that in many respects human rights violations have significantly increased, especially with the Rohingya and Kachin, as the noble Baroness, Lady Cox, has said? Is it not the case that the Government should therefore support the reintroduction of some of the measures that were suspended, and resist efforts to lift sanctions completely unless and until there is significant progress on these issues?
Baroness Warsi
As the noble Baroness will be aware, the sanctions were suspended in April last year, and it was made clear at that stage that they would be lifted only if the Burmese Government was measured positively against the benchmarks set by the Council conclusions of earlier that year. Those benchmarks are that there should be free and fair elections, and that there needed to be progress on political prisoners and ethnic reconciliations. These matters will be discussed again in April this year but, as the noble Baroness is aware, for those sanctions to remain suspended or not to be lifted requires unanimity at the EU level. We in the United Kingdom will be pressing for those measures, those benchmarks, to be tested against the Burmese record.
Baroness Buscombe
My Lords, can the Government explain what they are doing to resolve the plight of the Rohingya?
Baroness Warsi
My noble friend raises an important question. The Rohingya have been described as some of the most wretched people because of the way in which they have been abused over many years. They are left in a situation where real questions are being raised by the Burmese Government about their citizenship. The Minister responsible for Burma, Hugo Swire, visited Rakhine and met leaders of the Rohingya community. Last week, I was in Bangladesh and became the first British Minister to visit the Rohingya refugee camp at Cox’s Bazar, in Bangladesh. We are looking at the problem from both sides of the border. Ultimately, however, the issue of citizenship of the Rohingya people is what needs to resolved. There is a history of these people being in Burma for the past 200 years. They now need to be recognised.
Baroness Berridge
My Lords, it has been a great pleasure to see the developing relationship of the UK Government, particularly the Prime Minister, not only with the Burmese Government but with Aung San Suu Kyi, who is incredibly influential in this situation. Will the Minister outline what representations the UK Government have made to Aung San Suu Kyi about the growing concern among nations that are being looked to for aid about the treatment of groups of people who have a different religions background and, particularly in relation to the Rohingya people, those who are of a different racial group from the majority population?
Baroness Warsi
I simply repeat what I said earlier. On every occasion, whether it is the Prime Minister, the Foreign Secretary, Hugo Swire or, indeed, Francis Maude, who was there only last year, we have taken the opportunity to raise the issue of minority groups. All communities must deserve rights as Burma moves forward on its democratic journey.
Lord Alton of Liverpool
My Lords, would the Minister confirm that since 2012, around 5,000 Rohingya Muslim people have been murdered and that many thousands have disappeared? As she has rightly described, they are living in a system of 21st century apartheid, their citizenship rights having been formally stripped from the constitution. Will she urge the government authorities in Burma to revisit this question and inquire of the UN special rapporteur on religious liberty whether he would be willing to make a visit to the Rohingya people in Arakan state?
Baroness Warsi
The noble Lord makes an important point. I will be meeting the UN special rapporteur on religious freedom in the next two months. This is certainly a matter that I can raise with him. Ethnic reconciliation is a central part of all discussions that we have with the Burmese Government.
Baroness Falkner of Margravine
My Lords, going back to Kachin and the conflict there, does the Minister accept that the use of fighter jets to bomb civilian populations is a significant escalation by the Burmese army? While we welcome attempts at a ceasefire again, will the Government urge both the Chinese and Burmese Governments to, first, allow the UNHCR to look at the refugee situation and give humanitarian assistance and, secondly, press for an overall peace settlement for all three ethnic groups? This is a long overdue matter and the civil war has been going on for 60 years. It is time now for a comprehensive peace, rather than just ceasefires that break down.
Baroness Warsi
We are, of course, concerned about the acts of the Burmese Government in Kachin. I can assure my noble friend that we have played our part: we have had experts who were involved in peacebuilding in Northern Ireland visit Burma on a number of occasions to assist with the peacebuilding in Kachin. We are also one of the three members of the peace donor support group, which also assists with peacebuilding. Moreover, we allocated a further £1.5 million in December of last year, bringing our total spending on humanitarian aid in Kachin to £3.5 million. We will continue to press them, and of course, the Chinese Government.
Dyslexia: Apprenticeships
(11 years, 8 months ago)
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Lord Addington
To ask Her Majesty’s Government what progress has been made in ensuring that all dyslexics have access to the assistance recommended by Ofqual when taking apprenticeship qualifications.
Baroness Garden of Frognal
My Lords, a guide entitled Access Arrangements, Reasonable Adjustments and Special Consideration is published each year by the Joint Council for Qualifications. The guidance was updated this year to include improved examples of how arrangements can support the needs of dyslexic learners. Awarding organisations are responsible for defining suitable arrangements and assessment centres are responsible for their operation. Awarding organisations and centres have complaints procedures to address any specific problems as they arise.
Lord Addington
I thank my noble friend for that Answer. Does she accept that these arrangements—or at least the principle behind them—have been in place ever since I first asked about this subject? Does she also accept that when dyslexics have failed a written test, a procedure that requires a written complaint may not be the best one available for someone who is dyslexic or comes from a dyslexic family? Will the Government undertake to make sure that there is a vigorous enforcement process here and that things such as online testing papers which are not compatible with voice recognition technology, and ways of taking exams which are not taught during the classroom process, are not acceptable in the future?
Baroness Garden of Frognal
I pay tribute to my noble friend for his tireless championing of those who suffer from dyslexia. I stress that the process for any complaint is to exhaust the centre’s procedures first—and that would be a face-to-face meeting, not necessarily a written procedure—and then go to the awarding organisation. If that does not work, complaints can be raised with Ofqual. However, Ofqual has been proactive in this respect and is in active discussion with the British Dyslexia Association to try to get a sense of the scale of the problems. So far it has come up with the problem in software compatibility to which my noble friend referred, and it is working with awarding organisations to try to address that.
Lord Martin of Springburn
May I put it to the Minister that it is often the case that young men and women who have difficulty in passing written exams can go on with encouragement to become excellent journeymen and journeywomen? I hope that the Government’s apprenticeship scheme recognises the fact that not everyone can be academic and so clever in terms of reading and writing.
Baroness Garden of Frognal
The noble Lord makes a very important point. It is absolutely right that people who are practically very skilled often find that making an assessment in a written paper poses much more of a problem for them. On apprenticeships, there has been a change to functional skills that focus on applying knowledge rather than having to pass written tests, and these are widely available as part of the apprenticeship programme. The noble Lord makes a very valid point about the value of people whose skills do not lie in writing.
Baroness Brinton
My Lords, I think that it is accepted that it is essential to have the intervention of a trainer in cases where dyslexia is identified in the workplace to provide an individualised training and support plan that will give people real inclusion in the workforce. That important one-to-one interaction is the most efficient means of providing essential support and assessments. What assessment do the Government make of the number of qualified trainers available to support dyslexic apprentices in the workplace?
Baroness Garden of Frognal
My noble friend is absolutely right that one to one is often the most effective way of enabling people to reach their potential in that area. We are working with different schemes. The recent diversity in apprenticeships pilots highlighted the importance of one-to-one interactions and extra support. The National Apprenticeship Service is beginning to implement actions as a result of those pilots.
Baroness O’Cathain
My Lords, perhaps I could ask my noble friend whether any trainers are available for people in this House, either as Members or working for the House. The spectrum of dyslexia is more serious in some cases than others. The Foreign and Commonwealth Office employs trainers for the people who work there. I am sure that the Minister will not have a reply to this, but it would be very useful for us to know, because sometimes things happen in this House that are of great benefit to many people that are never communicated to them.
Baroness Garden of Frognal
My noble friend makes a very important point. As she surmised, I do not have a direct answer. I feel that it would be for the House authorities and other people to look into that, but we heard what she said and will try to take forward some ideas.
Baroness Jones of Whitchurch
My Lords, does this issue not raise a more general point about the direction of the Government, who in the exam system are moving away from an appraisal system throughout the period of learning to just a three-hour exam at the end of the process? Does the Minister agree that that will discriminate against people who have special educational needs in all sorts of forms, who would be much better assessed and appraised over a period of time than in one three-hour exam at the end of the process?
Baroness Garden of Frognal
The noble Baroness takes us rather wide of the Question, which is on apprenticeships. All the issues surrounding final assessments and examinations in schools are under discussion at the moment. On apprenticeships, there has always been a stress on practical application and seeing what people can do rather than what they can write down. Ongoing assessment and testing are part of an apprenticeship scheme all the way through.
Medical Research: International Rare Diseases Research Consortium
(11 years, 8 months ago)
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Lord Avebury
To ask Her Majesty’s Government what support, if any, they are providing for the International Rare Diseases Research Consortium.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the UK is a global leader in rare diseases research. The Government are pleased to be engaged with activities marking Rare Disease Day today. The Department of Health supports the International Rare Diseases Research Consortium. The National Institute for Health Research is a member of the consortium and has actively engaged with the work of the consortium from the outset. The Government are committed to providing faster diagnosis and better treatments for people with a rare disease. We recognise the importance of international collaboration in rare diseases research, and of its translation, in achieving this goal.
Lord Avebury
My Lords, I declare an interest as a sufferer from myelofibrosis, which is one of the 6,000-plus rare diseases that have been identified which affect 3.5 million people in the UK. May I ask my noble friend to comment on how the £100 million genome sequencing project is expected to contribute to the understanding of rare diseases? Secondly, will the rare diseases stakeholder forum that he announced yesterday consider the value to both patients and the NHS of care co-ordinators, which was emphasised by the NGO Rare Disease UK?
Earl Howe
My Lords, we have just announced the establishment of a rare diseases stakeholder forum. As my noble friend rightly mentions, it will be established shortly to bring together a wide range of stakeholders, including organisations representing those with rare diseases, to ensure that the patient voice is part of the discussion that we must have leading up the publication of the UK plan for rare diseases. The 100,000 genomes initiative, which my Department is funding, is about pump-priming—the sequencing of the genomes of 100,000 NHS patients—with the purpose of translating genomics into the NHS. This capacity will be allocated specifically to cancer, rare diseases and infectious diseases. The service design work will be completed by June and we aim to put contracts in place by April next year.
Lord Walton of Detchant
My Lords, does the Minister accept that recent research in genomic medicine has led to the progressive introduction of orphan and ultra-orphan drugs, some of which are capable of reversing partially or completely the genetic effect of many such rare diseases—not least, for example, muscular dystrophy? However, these drugs are extremely expensive and are therefore likely to be commercially unsuccessful because they help only a relatively small number of patients. Now that the Government have abolished the Advisory Group for National Specialised Services, can the Minister assure the House that, when responsibility for providing those drugs on the NHS falls to the national Commissioning Board on the advice of NICE from April this year, those rare diseases and their drugs will be given appropriate priority?
Earl Howe
My Lords, yes I can give that assurance. As the noble Lord will know, we laid regulations specifying those specialised and highly specialised conditions which the NHS Commissioning Board will be responsible for commissioning. I can also reassure him that the focus on research into rare conditions will not be lost. Indeed, I am sure that he will be aware that the National Institute for Health Research has recently specifically invited submission of research proposals into interventions for very rare diseases. The call encouraged multidisciplinary research proposals as well as study designs and approaches to recruitment of patients.
Lord Hunt of Kings Heath
My Lords, I declare my interests in the Register in the health service. Following on from the previous question, I understand that the commissioning costs of rare diseases will be met nationally by the NHS Commissioning Board. However, when patients require regular medication, which would presumably be prescribed by their GP, will funding responsibility fall on local clinical commissioning groups? If so, will they be given specified resources to fund what are often very expensive treatments?
Earl Howe
My Lords, the funding for expensive treatments will be very much the responsibility of the Commissioning Board. However, of course the noble Lord is right, because a patient with a rare disease will need to be treated along a pathway of care, some of which will be specialised and some of which will be more routine. It is therefore important that we build into our UK plan for rare diseases an awareness of that pathway so that this is a seamless process. The commissioning must be joined up between the board, clinical commissioning groups and, indeed, local authorities that provide social care.
Lord Cotter
My Lords, I thank my noble friend the Minister for his interest in rare conditions. I declare an interest as my wife, like many others, has suffered from birth from arthrogryposis, a neuromuscular condition. She received a correct diagnosis only at the age of 52 years. Even now, in her 70s, she is struggling to receive appropriate treatment. Would the Minister consider seriously Rare Disease UK’s recommendation for designated care co-ordinators to oversee the situation to ensure consistent treatment and to provide single oversight to help patients and to avoid wasting resources and duplication within the NHS?
Earl Howe
I am grateful to my noble friend and I extend my sympathies to his wife. Unfortunately, with many very rare diseases, it often takes a great deal of time for a fully fledged diagnosis to be arrived at. I welcome the suggestion put forward by Rare Disease UK for co-ordinators and we will certainly look at that idea positively. I can tell him that the imperative to look at rare developmental disorders in children is the focus of a project that the NIHR and the Wellcome Trust are funding through the Sanger Institute in Cambridge. Scientists are analysing the genomes of 12,000 children with developmental disorders who could not be diagnosed following routine genetic evaluation. We are hopeful that that will produce some interesting results.
Lord Patel
My Lords, I declare an interest in that my university is involved in finding treatments for some rare diseases. An international collaboration has set the ambitious goal of finding treatments for 200 rare diseases by 2020. One of the important research areas has already been mentioned, which is the sequencing of the genome of patients with rare diseases. The other area, which alludes to the question asked by the noble Lord about the care of those patients, is that of finding new diagnostics so that we can diagnose those diseases early. What are we doing through the NIHR or through biomedical research centres to encourage the development of new diagnostics for those diseases?
Earl Howe
My Lords, most of the NIHR biomedical research centres are conducting research on rare diseases, including on diagnostic biomarkers, and I have a rather long list of projects which the NIHR is funding. The diagnosis of a rare disease, as the noble Lord rightly mentioned, is often key to ensuring early intervention and the correct treatment. I can tell him that my department is directing considerable resources towards that, and I would be happy to write to him with the details.
NHS: West London Hospitals
(11 years, 8 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the reconfiguration of front-line health services is a matter for the local NHS. Any decisions regarding changes to services are taken locally and are subject to the four tests for service change. On 19 February, the NHS North West London Joint Committee of Primary Care Trusts decided to proceed with a “Shaping a Healthier Future” service reconfiguration programme in north-west London.
Lord Dubs
My Lords, will the Minister confirm that A&E waiting times are increasing in the areas covered by the four hospitals even before the closures have taken place? There is enormous local concern about a plan to, as it were, reduce services in a series of hospitals more savagely than anything else in the history of the NHS. In particular, the plan includes the proposed demolition of Charing Cross Hospital and its replacement by a handful of beds. Is it not the case that the Minister or the Secretary of State has the final decision and that it is quite possible for the Secretary of State to say, “No, I do not accept this. Think again.”?
Earl Howe
My Lords, we believe very firmly as a general principle that the reconfiguration of services works best when there is a partnership approach between the NHS, local government and the public. That is why we are strengthening local partnership arrangements through the health and well-being boards. To answer the noble Lord’s question, it is entirely possible for a reconfiguration decision to be referred upwards to the Secretary of State by the overview and scrutiny committee of a local authority, and in that event it is customary practice for the Secretary of State to receive independent advice from the independent reconfiguration panel. However, we have not reached that stage yet. We have agreement locally as to what these arrangements should look like and I think that we should wait to see how the plans develop.
Baroness Hussein-Ece
My Lords, is my noble friend aware that the Whittington Hospital, which serves a densely populated area of Islington and of Haringey, where there is no other hospital, suddenly announced in January without any proper consultation its major plans for reconfiguration, including changes to buildings and services? Those plans include the downgrading of the A&E department of the hospital, where I have spent many an unhappy hour with my children and other family members but receiving an excellent service, to an emergency care service. Does he think that it is appropriate to do this without proper consultation and explaining the plans to local people?
Earl Howe
My Lords, I cannot comment specifically on that particular set of proposals. However, I can say that we made it very clear nearly three years ago that reconfiguration proposals, wherever they arise, should be underpinned, as should the arising decisions, by four reconfiguration tests. Local plans must demonstrate support from GP commissioners; a strengthening in public and patient engagement, which is the issue raised primarily by my noble friend; clarity on the clinical evidence base for whatever is proposed; and support for patient choice. We expect that where proposals of this kind arise, those four tests need to be met.
Lord Hunt of Kings Heath
My Lords, again I declare my interest in health. On that, I am puzzled because of what has happened in the case of Lewisham A&E where the clinical commissioning group itself is clearly absolutely opposed to the downgrading of that A&E service. Why has the Secretary of State determined to go ahead with those changes?
Earl Howe
Five out of the six clinical commissioning groups involved in that area were supportive of the changes. It is true that Lewisham CCG was not. However, the four tests were looked at and it was clearly determined by the trust’s special administrator that those tests had been met.
Baroness Wilkins
My Lords, will the Minister recognise that parking needs of both visitors and patients need to be fully taken into account when making this sort of decision? I declare an interest as being an only-too-frequent visitor to Charing Cross A&E over the last year. It would have been impossible to get to Chelsea and Westminster hospital where the parking is appalling, both for myself and for my visitors.
Earl Howe
I agree with the noble Baroness that this is most certainly a factor. In the case of north-west London, an independent equalities impact assessment was undertaken to check how the proposed options would affect all strata of local population under the Equality Act in particular. The assessment found that the impact on travel times by car, and indeed by blue light ambulance, would be minimal under all three of the options that were being looked at. The point that I am making is that in any context, it is important to factor in the effect on travel for all patients likely to be affected.
Lord Dubs
My Lords, I am shocked that the use of the word “reconfiguration” by the Government has brought into the English language an alternative to “cuts”. Will the Minister not accept that what is being proposed in the four hospitals in the north-west London region are savage cuts which will damage services for local people? That is the bottom line.
Baroness Masham of Ilton
My Lords, does the Minister agree that the downgrading of anything is very depressing, worst of all for patients when they want upgrading?
Earl Howe
My Lords, I think that often when plans are explained to patients, they realise that the word “downgrading” is inappropriate. For example, in north-west London, there has been a lot of unnecessary worry about urgent care centres as substitutes for A&E units. The majority of people who attend A&E can very well be treated in an urgent care centre on the same site, and patients who dial 999 will be taken by ambulance straight to the appropriate hospital. Therefore, I think there is, in some senses, a false debate going on here.
House of Lords: Membership
(11 years, 8 months ago)
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12:54 - Division on Lord Hunt of Kings Heath's amendment. - Ayes: 217 / Noes: 45 - Amendment agreed.
Lord Steel of Aikwood
That, notwithstanding the normal practice of the House, this House resolves that no introductions of new Peers shall take place until the recommendation in paragraph 67 of the First Report of the Leader’s Group on Members Leaving the House, chaired by Lord Hunt of Wirral (HL Paper 83, Session 2010–12), has been followed.
Lord Steel of Aikwood
My Lords, I want to make it clear at the beginning that it is my intention to accept the amendment in the name of the noble Lord, Lord Hunt of Kings Heath. I have listened carefully to Members in all parts of the House and I think it would be more constructive to have a debate on the three issues set out in that amendment than to have a rather arid discussion about the royal prerogative and introductions into the House. I hope, therefore, that in a short debate we can concentrate on the three issues that are raised in what I hope will become the amended Motion.
Of course, the three issues are the same as those set out in the Bill that we sent to the House of Commons in September of last year. I want to make it clear that it is no longer my Bill and I hope that we will hear no more references to the “Steel Bill”. I will read out what it says:
“A Bill to make provision for Peers to cease to be Members of the House of Lords by way of retirement or in the event of non-attendance or criminal conviction”.
Fortunately, my name has disappeared from the Bill. It is no longer my Bill; it is our Bill. It is a Bill that we approved unanimously back in September. It is due to appear again in the Commons tomorrow, when Eleanor Laing will again present it, but it will as usual be blocked by the government Whips. Frankly, we are so near the end of this Session that there is no realistic chance of the Bill passing.
I want to remind the House that on 6 February, in a Question raised by our former Lord Speaker, the noble Baroness, Lady Hayman, the noble Lord, Lord Hill, said to me:
“He, I am sure, can use his powers of persuasion with colleagues in his own party, including the Deputy Prime Minister. I know that he will try and we will then see how we get on”.—[Official Report, 6/2/13; col. 261.]
Armed with that wonderful quotation, I indeed sought to have a meeting with the Deputy Prime Minister. This proved rather difficult. We were about to go into recess; he was in Africa. I was in Kenya and Uganda throughout the Recess and one of my colleagues, who has a rather warped sense of humour, suggested, “You and Nick should have some Ugandan discussions”—as though we do not have problems enough.
Lord Steel of Aikwood
We ended up having quite a lengthy and amicable telephone call on the subject on Monday evening. But I am afraid I have to report to the House that I failed in my powers of persuasion. The nearest concession that I got from the Deputy Prime Minister was that he would have further discussion with our Leader, the noble Lord, Lord Hill, and I understand that that is going to happen. I hope very much that his powers of persuasion will prove more effective than mine. I intend to pass the ball back to him. I hope that if the House approves the amended Motion today, that will strengthen his hand in the arguments with his colleagues in the Government.
I want to draw the attention of the House to a Written Answer that appeared in Hansard, perhaps significantly, on Thursday 14 February, which was of course the day that we rose for the Recess, so very few Members will have seen this when it was published on the Friday. It was a Question asked by the noble Lord, Lord Ashcroft:
“To ask Her Majesty’s Government whether they intend to offer support to the House of Lords (Cessation of Membership) Bill [HL] in the current parliamentary Session”.
The Written Answer is as follows:
“The Government do not intend to offer support to the Bill. In the absence of full reform, it is the Government’s view that there is no easy set of smaller reforms to the House of Lords. In a modern democracy it is important that those who pass legislation should be chosen by those to whom the legislation applies. So reform measures must include introducing elected Members to the House of Lords.
Also, the three core measures of the Bill would not deal with the size of the House of Lords. Provision for retirement is an extension of the non-statutory voluntary retirement scheme, already in place. Only two noble Lords have taken advantage of this so far. Members would only be required to attend once every session to sustain their membership and only future criminals would be removed from the House of Lords”.—[Official Report, 14/2/13; col. WA 176.]
We should analyse that extraordinary Written Answer. The first point is that, of course, the question of fundamental reform of the Lords will come back again, presumably at the next election and in the next Parliament.
Lord Hughes of Woodside
On a point of clarification, is it not the case that next Session we will not get a Writ of Summons? That comes only after the end of this Parliament.
Lord Steel of Aikwood
If that is right, I accept the correction, but the basic principle is correct. Members have not retired; they have simply got leave of absence. That is the point I make. It is technically correct to say that the Bill does not reduce the numbers in the House, but that is not a valid point. What it does is to give this House the statutory authority that the original report, by the noble Lord, Lord Hunt of Wirral, said we needed to devise a scheme of retirement. All sorts of schemes have been put about. If these were not times of austerity, we could have had a retirement or resettlement grant, or the opposite—a cut in the allowances paid to Members who have served over a certain number of years or reached a certain age. We could leave it to each of the parties and groups in the House to come to some arrangement. We could even have an age cut-off in our Standing Orders. All these are possibilities, but there is no point in debating them because we do not have the power to do any of them
All we ask of the Government is to let us have the statutory authority to bring to an end the present law, which says that, whether you like it or not, you are a Member of this House for life and that this the present situation. As for the sentence that only future criminals would be removed from the House of Lords, what does that mean? Are the Government seriously suggesting that the Bill should contain retrospective legislation? It simply does not make sense. This Written Answer was in the name of my noble friend Lord Wallace of Saltaire. He is not just my noble friend in a technical sense, he is a very old personal friend, going back to the time before either of us was anywhere near the Palace of Westminster. I know that he is a highly intelligent man. He could not possibly have written this stuff. These phrases and assertions appear time and again in the briefing given to the Deputy Prime Minister when he appeared before the Commons Constitutional Affairs Committee and in letters that he wrote to me and to others.
Somewhere in the machinery of Whitehall, these arguments are being put about, which are unsustainable. The House should reassert what it said back in September and say bluntly to the Government, the House of Commons and the public that we are keen to see this modest housekeeping change so that we reduce our numbers and our costs; and say to the Leader of the House that we wish him all the best in trying to get these measures through to the Government. I beg to move.
Amendment to the Motion
Lord Hunt of Kings Heath
To move, as an amendment to the above motion, to leave out from “that” in line 1 to the end and insert “this House affirms the recommendation in paragraph 67 of the First Report of the Leader’s Group on Members Leaving the House, chaired by Lord Hunt of Wirral (HL Paper 83, Session 2010-12), that “restraint should be exercised by all concerned in the recommendation of new appointments to the House”; and calls on Her Majesty’s Government to support proposals, in line with legislation passed by this House, to.
(a) allow members of the House to retire permanently from the House;
(b) provide for the exclusion from the House of any member who does not attend the House during a Session save where that member has leave of absence in respect of the Session in accordance with Standing Orders of the House, or where a Session is less than six months long; and
(c) provide that a member who is convicted of a serious offence and sentenced to a term of imprisonment of more than one year shall not attend the sittings of the House.”.
Lord Hunt of Kings Heath
My Lords, in moving my amendment to the Motion of the noble Lord, Lord Steel, I mean no criticism of the noble Lord. Indeed, I—and, I am sure, all Members of the House—are grateful to him for his determination to bring this matter back to your Lordships time after time.
The substantive point, surely, of what the noble Lord has said is that we have a pressing issue today concerning the size of the House, appointments and recruitment. We need to deal with this matter now, rather than let many more years go by before we engage, as the noble Lord has said, in sensible housekeeping.
The failure of Mr Clegg’s substantive Bill on reform surely means, as the noble Lord has said, that it will be a matter of years before a substantive proposal for reform could be put into practice. Indeed, if one took the proposals of the current coalition Government and those of the previous Government, it would be 2020 even if a substantive Bill were presented and passed after the next election—both of those being subject to some uncertainty given the history of Lords reform over 100 years.
We need to make progress on incremental, sensible changes to your Lordships’ House. I detect a real consensus for some progress to be made today. We are already experiencing considerable tensions as a result of our size. We have had the proposals from the Chairman of Committees, speaking for the Privileges Committee, on reforming the system of Oral Questions because of the problem of the number of Peers wishing to ask them. Often noble Lords are not even able to get into the Chamber for Question Time, which is surely much of the focus of our daily activity.
It is disturbing that there are rumours around this place that the Government intend to appoint dozens more new Peers in the next few days or weeks. I am sure that the noble Lord the Leader of the House will point to the coalition agreement. The noble Lord, Lord Steel, has also referred to it. We were certainly not party to any such agreement before the last election. I am mindful of the paper from Meg Russell, the distinguished academic from UCL, who wrote in April 2011 that the objective of a House of Lords membership that is proportional to general election vote share is unrealistic. She said then that it would require the appointment of, at a minimum, 269 new Peers, and that this would have disastrous consequences for the operation of the Chamber, would be unpopular with the public and would be a foolish and unsustainable course to pursue. It if were continued as a principle at every subsequent general election, the size of the House would spiral ever upwards unless some mechanism for removing Members were also adopted.
I understand that there clearly is a need for fresh blood to be introduced into your Lordships’ House from time to time. I certainly also understand that if the coalition Government were finding that their core legislative proposals were not able to get through your Lordships’ House, their case for making more appointments would be stronger. However, that is not the case. The coalition is winning most of the votes that take place. My understanding is that, in this Parliament so far, the Opposition have won about 22% of the votes. That compares to the Opposition winning about 30% of the votes against the previous Government. Even from the Government’s point of view, it is difficult to see the argument that they need a huge number of new Members because of difficulties in the process of getting their legislation through.
Lord Dykes
Is the idea of large numbers coming in even not more reprehensible when a very high incidence of those would be financial donors from the business community, which is tantamount to giving bribes to political parties to become Members of this House?
Lord Hunt of Kings Heath
My Lords, that is certainly a point of view. However, I am hoping today that the House might adopt a rather consensual view because I sense that, whether we come from one of the parties or from the non-aligned or Cross Benches, there is a genuine concern about the need to sort out issues to do with the size of the House and retirements and appointments. I will therefore desist from responding to the noble Lord’s intervention.
The Leader of the House enjoys enormous respect here and rightfully so. I ask him to take note of this debate, put aside further large-scale appointments to the House, and work with others in the House to suggest a sensible way forward that deals with the issues raised by the noble Lord, Lord Steel. The fact that rumours of large-scale appointments have been with us for many months suggests that the Government know it is not the right thing to do.
The sentiments behind the Motion in the name of the noble Lord, Lord Steel, are perfectly understandable and I am most grateful for his acknowledgement that he is prepared to support my amendment. I put my amendment down because I did wonder whether it was right for the House to seek to prevent the introduction of new life Peers who had already been appointed by the Queen on the advice of the Prime Minister. As the noble Lord, Lord Steel, has such a distinguished pedigree, I did wonder what Mr Asquith would have made of his Motion, given that, with the King’s approval, Mr Asquith threatened to flood the place with new Members if the House resisted the Parliament Bill in 1911. At that time the House agreed to let it through. I wonder what Mr Asquith would have made of the Motion of the noble Lord, Lord Steel, if their Lordships had prevented the flooding of the House in that period. I am also aware that the noble Lord has received a letter from the chairman of the Appointments Commission, the noble Lord, Lord Jay of Ewelme, who is concerned that if the Motion were to be put into effect Cross-Bench appointments would not be allowed to take place.
We all agree with the sentiment behind the noble Lord’s Motion. My amendment deals with these matters in a sensible way. Above all else, this is not about politics but is an attempt to achieve consensus and to recognise that many Members of your Lordships’ House wish to see progress made. It is an indication to the Government that they need to desist from making large-scale appointments at a time when the House is already full. I beg to move.
Lord Laming
My Lords, I will be brief. Perhaps I may remind the House that I try hard to speak personally, especially on occasions such as this, and that I have no authority to speak on behalf of the Cross-Bench group. That will become all too evident very shortly.
The noble Lord, Lord Steel, has vast experience in both Houses of Parliament and indeed far beyond. Furthermore, he has an enviable record of championing changes designed to improve the efficiency and effectiveness of this House. However, as I hope the House will understand, I was extremely unhappy about the content of the Motion that he has put down on the Order Paper. I am grateful and pleased that he has accepted the amendment.
The one thing on which we can at least agree is that the membership of the House is too large. As the noble Lord, Lord Hunt of Kings Heath, has made plain, this results in colleagues feeling frustrated when they are denied the opportunity to serve on committees that are dealing with matters of special interest to them and, moreover, when their important contributions to our debates are limited to three minutes or even less. There is a real issue to be faced about the membership of this House. In my view, the Motion is not helpful. I was going to speak about the report to which the Motion refers but as the noble Lord, Lord Steel, has accepted the amendment I will move on.
Only yesterday two new Cross-Bench Peers were announced. I very much hope that at the appropriate time your Lordships’ House will make those new Members extremely welcome. This House has a record of doing that and we should avoid the danger of giving the impression that we are resisting new Members. My concern is solely about tactics and timing. My fear is that the amendment will be perceived to be either irrelevant in the current situation or, at worst, provocative. I well recognise the thought that the noble Lord, Lord Hunt, has given to the amendment and I do not doubt for one moment the good intention behind it. However, I still fail to see how it will have a significant impact on reducing the size of this House and, in particular, the pressure on the facilities and costs. We already have a voluntary retirement scheme that has not been a great success. Any form of financial inducement to make such a scheme more popular would, in my view, especially in the current circumstances, be inappropriate. Trying also to reduce the membership of the House by excluding those who do not, for whatever reason, attend regularly could be counterintuitive in that it would run the risk of encouraging them to attend your Lordships’ House.
The frustrations frequently expressed are sincere, although I cannot help but feel that we are in danger of giving the impression that we want to resist any newcomers into our House. That would be to the disadvantage of the work of this House in revising and improving legislation for the benefit of our fellow citizens and holding the Government to account. In recognising that the House is too big, I nevertheless fear that the amendment will not have the desired effect. I hope that out of this will come something that will be a stimulus to much more detailed discussion across the House in order that we can work towards achieving consensus. That said, I will, as always, listen carefully to the debate.
Lord Cormack
My Lords, I am a great admirer of the noble Lord, Lord Laming, who has given great service to our nation and to this House. Although I agree with him that the two new Members who have been announced should be given the warmest of welcomes—we all agree with that—I regret to say that I cannot follow the logic of his other remarks. I wish to give my strong support to the initiative taken by my noble friend Lord Steel of Aikwood, to whom we are all in debt, and very much to the noble Lord, Lord Hunt, who has moved his amendment moderately and persuasively, and I hope in a way that will have garnered support in all parts of the House.
Lord Hughes of Woodside
I am grateful to the noble Lord for giving way. Since he is a great advocate of reducing the size of this House, might I commend to him the traditional trade union solution to dealing with redundancies: last in, first out?
Lord Cormack
If that became the will of the House we would all have to accept it, wouldn’t we? My old and mischievous friend from another place makes his point with his customary tact. It is now 11 years since my noble friend Lord Norton and I formed a group called the Campaign for an Effective Second Chamber. My noble friend Lord Norton, who did that group great service as our convenor throughout those years, cannot be here today because of his teaching duties at his university. We miss him and the contribution he would have made. We formed that group, over which I have had the honour to preside, because we believe that this Chamber is effective but could be much more effective. We were always committed to an appointed House rather than an elected one, but we also recognise the fact that the House as it exists can and should be improved even though many people in this House—by no means the majority, but a number of very distinguished Members—would like to move towards election. The noble Lord, Lord Hunt, has made that his position in the past. Nevertheless, surely we can all recognise that the House as it exists is not only capable of improvement but cries out for improvement, not only in its size but in the way in which we do business. We all owe a great deal to noble Lords such as the noble Lord, Lord Filkin, who have been working hard in this regard over recent months and years. Whatever one’s ultimate view is, surely we should not stand in the way of what the noble Lords, Lord Steel and Lord Hunt, have referred to as “housekeeping reforms”.
To the Deputy Prime Minister, who has shown an interesting flexibility of mind and memory in recent days, I say, “If you believe that the best is elected, then do not let the best be the enemy of the good”. We think that this House as it exists—and on Mr Clegg’s own admission it cannot be fundamentally changed for some years—should now be changed in the way proposed in the amendment of the noble Lord, Lord Hunt. We all hold my noble friend the Leader of the House in the highest regard. I very much hope that he will take it upon himself as Leader of the House—leader of all of us—to convene a meeting to discuss ways and means of approaching the problems referred to by the noble Lords, Lord Steel and Lord Hunt. He would be doing us all a very great service if he exercised his initiative in that regard and I very much hope that he will. Of course, our expertise and experience, notwithstanding the noble Lord, Lord Hughes, must be refreshed and revived, but if many more Peers are introduced into this House without addressing the current problems we will bring this House into disrepute.
Lord Elton
Like the rest of us, my noble friend sees the expected approach of large numbers as rather like a torpedo. He is now choosing one of two paths put before your Lordships and I would like to know his explanation of that. On the face of it, the admirable amendment of the noble Lord, Lord Hunt, is actually hortatory—it advises and says that something may be done—whereas the principal Motion is prescriptive and states that it shall be done. The second is not in our gift; the first is. If you want to put out a net to catch the torpedo, surely it must be the first and not the second.
Lord Cormack
I understand and sympathise with the point made by my noble friend, but the fact is that there are issues like royal prerogative that have to be taken into account. We do not want to precipitate—this was implicit in the remarks of the noble Lord, Lord Hunt—a major constitutional crisis. What we want to do is address the housekeeping issues in this House. That is a simple and reasonable aim. This is declaratory, of course it is, but, if we have a vote at the end of this debate, I hope that the House will declare that it really is concerned about these matters. We are asking the Leader to do what he can to bring some common sense to bear.
Surely it is wrong that a particular person should be the stumbling block in the face of sensible reform. Mr Clegg has many admirable qualities, but he should not be allowed to be the arbiter of our constitution. That is wrong. He introduced a Bill, which failed. I am proud to wear this morning the tie made by the 91 stout Tory rebels who frustrated that Bill in July by saying, “You cannot get this through because we will not give you the time to do so”. Mr Clegg recognised that, and he should now recognise that if he believes in parliamentary democracy, and if he believes in this House as being a fundamental part of this democracy as it is the moment, it should be as effective as it possibly can be. If we continue to appoint new Peers without addressing the issues so eloquently talked about by the noble Lord, Lord Hunt, we will run the risk of making this House fall in public repute and indeed become something of a laughing stock, which it should not be. That would fly in the face of history and of what has been achieved by so many, particularly over the years since 1958 when life Peers were introduced. If this comes to a vote, I urge Members to vote in significant numbers to show that there is indeed a consensus in this House on these modest proposals.
Lord Tyler
My Lords, I want very briefly to put a couple of points to my noble friend the Leader of the House before he responds to the debate. I wonder whether he might reflect on the fact that in the previous Labour Administration, some 40% of the new recruits to this House were added to the Labour Benches, compared with 21% to the Conservative Benches and 15% to the Liberal Democratic Benches. Even more significantly, in May 2010, immediately following the general election, there were additional recruits to your Lordships’ House—28 Labour Members, 18 Conservative Members and nine Liberal Democrat Members. Will my noble friend reflect on the very interesting Pauline conversion, if I might put it like that, of the noble Lord, Lord Hunt, who suddenly seems to find the overpopulation of this House such a terrible problem? Apparently it was never a problem under the previous Administration, nor was it a problem even in May 2010. I am the last person to turn against a sinner who repenteth, but there is an important question to put to the opposition Benches about their change of attitude.
Would my noble friend also note that some of the Members who now object so strongly to further appointments were indeed the most vociferous when the Government came forward with a proposal to end a fully appointed House? My noble friend Lord Cormack, who is a very staunch defender of the primacy of the House of Commons, may have forgotten that the Government’s Bill received a considerable—indeed, a uniquely—sizeable majority at its Second Reading. That was an attempt to sort this problem out. It had indeed built very firmly on the proposals put forward by Mr Jack Straw, in which the noble Lord, Lord Hunt, played a very important part. Again, he seems to have changed his attitude.
I share the view of the noble Lord, Lord Laming, that this Motion as amended would still be inappropriate at this time. Having had, I accept, an expression of concern on all sides of the House about this problem, I very much hope that the Motion, even amended, is not put to a Division because I think it will have more power if it is not seen to be something that is divisible and therefore divisive in your Lordships’ House.
Lord Grocott
My Lords, I was just sitting here quietly, looking forward to the conclusion of the debate without, I hoped, a Division, but hoping that if there was a Division it would result in a resounding majority for the Motion of the noble Lord, Lord Steel, and my noble friend’s amendment. However, the comments of the noble Lord, Lord Tyler, make it impossible for me to remain in my seat because I think he suggested that the previous Labour Government paid no attention to what he now considers a very sensible proposal that the membership of this House should reflect the result of the previous general election.
I remind the noble Lord of the facts. I know that facts can sometimes ruin arguments, but the facts are as follows. He may recall that the 1997 general election resulted in a Labour majority of something over 150 in the House of Commons. I will be honest enough to say that I almost wish I had thought of this at the time. It would have been extremely tempting to argue that the membership of this House should reflect the huge majority that the Labour Party had in 1997, and on which it was re-elected, with an almost identical majority, in 2001. The noble Lord can do the maths rather than me, but there would have needed to be a colossal addition to the Labour Benches in this House to reflect that.
I ask for a little indulgence and sympathy towards my dear old party from all quarters of this House. The Labour Party eventually became the biggest party in this House in 2005: that is, eight years after we received a colossal overall majority in two successive general elections. We have been the biggest party in this House for eight years out of the 110 years of our existence as a political party. I do not think it is being greedy to say that eight years is not too bad. If the noble Lord, Lord Tyler, did argue for a huge influx of Labour Peers at that stage, it was obviously on one of those days when I did not attend the House. I simply put it to him that he ought to reflect on that.
Perhaps one other matter on which the noble Lord should reflect, in this of all weeks, is the election in Italy, a country which adheres to the constitutional principle that the second chamber should be elected and have pretty well equal powers to those of the first chamber. He should reflect for a moment on whether that is a good idea to incorporate here. While he is about it, he should reflect on whether the proportional representation system of election to the Italian Parliament provides stability and security for a Government. One or two of the noble Lord’s theories have been road tested this week and I could not forbear but to refer to them. On that note, I will sit down.
Baroness Hayman
My Lords, tempted as I am, I will not follow the reflections of the noble Lord, Lord Grocott, on second chambers across the world. During my time as Lord Speaker, I developed a very good 45-minute lecture on second chambers around the world, but I suspect that the House would not appreciate hearing it today.
Like others, I am grateful to the noble Lord, Lord Steel, for giving us the opportunity to consider this issue today and, if I may say so, even more grateful to the noble Lord, Lord Hunt of Kings Heath, for bringing a proposition before the House that I think is in many ways more acceptable than the original one of the noble Lord, Lord Steel, given the interpretation that people could put on that and the suggestion of constitutional impropriety or of being unwelcoming to new Members. I appreciate what the noble Lord, Lord Laming, had to say on that. However, like the noble Lord, Lord Steel, I was deeply depressed when I read the Written Answer that appeared in Hansard on 15 February. While it is understandable that the Government should feel frustrated at the loss of their proposals for an elected House, those proposals were indeed lost. The reality of the situation is that we have two and a half years until the next general election and some time beyond that during which this House will continue to be an appointed House. It is constitutionally and politically irresponsible not to take at least some modest measures now to take us forward.
I am not a supporter of an elected House. I am a supporter of a rather radical reform of this House which is not encompassed in what is before us today, or the Bill before another place. However, I have to accept that that reality cannot be achieved at the moment. The elements in the amendment in the name of the noble Lord, Lord Hunt of Kings Heath, provide a minimum basis for us to take forward some of the changes that are need in your Lordships’ House. It will not radically reduce the numbers but, having been deeply involved with these issues for some time, I believe that not having a legislative base on which to build the House’s consensus—as I hope it will develop—on retirement is a terrible impediment to going forward. One thinks of resources as being about money and people, but as a Minister I learnt that, in politics, resources are also about legislative time. Allowing retirement to be a reality—in future “life” not meaning “for life”—is enormously important.
The issue of those with criminal convictions, though very small, narrow and, of course, not retrospective—how could it ever be?—is important for this House. It is also an important basis for our own disciplinary action in future. Even this minimalist legislative change is enormously important and would give us the basis on which to go forward. The other day, I asked the Leader whether he would do the service to this House that could be done by allowing us that minimum basis. I am very encouraged by the fact that there are those who, like the noble Lord, Lord Hunt of Kings Heath—though unfortunately not the noble Lord, Lord Tyler—believe in an elected House but still recognise the problems and the reality of the years ahead. Noble Lords who want to participate in the business of the House sometimes cannot because they cannot be within the Chamber. That is not a proper way for us to continue. We want to welcome new Members and if we are to do so, we also have to find a way in which membership of this House can cease. It is our responsibility to try and do that. We will not achieve it overnight. There will not be immediate unanimity about the grounds for retirement and how we go forward. However, since 1999 we have had constant reasons why proposed changes were not exactly right. We have had constant reversals to proposals for incremental change on the basis that we were going to have all-singing, all-dancing proposals for election. It has got us into terrible trouble over numbers and over financial support for Members. Those who were arguing that we needed to change that system sooner were told, “Don’t worry because very soon we will have a Bill, we will have elections, we will have a salaried House”.
It is not responsible to continue to do nothing. We have to make a start somewhere and I hope very much that the House will today make that view very clear.
Lord Higgins
My Lords, I very much welcome this debate. It is important that we bring pressure on the Government to carry out the urgent changes that have been set out by the noble Lord, Lord Steel, and those on the Opposition Front Bench. I certainly welcome that. Like others, I was concerned about the Written Answer to which the noble Lord, Lord Steel, referred.
The noble Lord on the Opposition Front Bench pointed out that it will clearly be a long time before there is any likelihood of our moving towards an elected Chamber. However, there is another point. I am optimistic on that issue because it is absolutely clear, despite the rather mixed procedure on voting in the other place, that its Members now clearly understand that it is not in their interests to have an elected House of Lords with regard to the situation both at Westminster and in their constituencies. It is high time that it is recognised that this is the case and that we should not go further forward on that point.
In all events, it is important that we deal with the issue of the size of this House and the other issues mentioned in the amendment. The noble Lord, Lord Rooker, referred to the arrangements set out in the coalition agreement. Again, the coalition should recognise that that is not a sensible way of dealing with the size of this House. We do not know on either of those points what will appear in the manifestos—the reality is that manifestos are cooked up behind closed doors, with virtually no consideration at all for Members of Parliament in either House. We cannot tell, but I hope that on both matters such proposals will not be included in either of the main parties’ manifestos.
The Motion proposes that there should be no increase in the number of Members until the size of the House is determined—I do not have the exact wording. However, it is extremely important that the Government clearly set out how they envisage the programme for the House of Lords. The House is getting bigger and bigger and, presumably at some stage, its size has to be reduced. The danger then, particularly after an election, is that it increases again. The Government need to say what they think is the maximum size possible within that transitional period and what the ultimate aim ought to be. We need some guidance on the optimum size of the House.
The other points that have been debated concern the various amendments in what I am still inclined to call the Steel Bill. We should simply go ahead with them, and the block in the House of Commons ought to be removed. It is difficult to avoid the impression that a sense of pique on behalf of the Deputy Prime Minister is leading to that block. We ought to go ahead with those changes, and we can perfectly well do so way before the date of the next general election.
Finally, perhaps I may make a more controversial point. Paragraph 47 of the Hunt report suggests that provisions for retirement might be made. I realise that this is highly controversial, but once a Treasury Minister, always a Treasury Minister. If there is one crucial issue in the Government’s policy at the moment, it is to reduce the deficit. On the proposal that one should create, for example, an incentive scheme whereby a modest payment was made based on the expenses incurred in the previous full year, minus travel expenses, it would be helpful to see to what extent that might produce a significant reduction in the size of the House. At all events, it is a means of saving public expenditure, which I hope would be acceptable.
I have one final point about the position of my own Front Bench. I am told that the position normally is that they vote against things that are not government policy. That is a rather strange doctrine: many good proposals are not government policy; that is no reason to vote against them. As for the proposals in the amendment, I think it is clear that the House has already approved them in the shape of the legislation sent to the other place. To then go and vote against them seems a very strange attitude to take.
The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford)
My Lords, I think that we have a good debate and that the outlines of the issues that the House will want to consider are already clear. The points that have been made very forcefully by a number of noble Lords have been well made; obviously I have heard everything that has been said. Although I recognise that I am new to this job, one issue on which I can be in little doubt about the opinions of this House is that which we have been debating today. Noble Lords have already been extremely generous—I might say unstinting—with the advice they have given me at every possible opportunity. I am glad to say that I have had a chance to discuss these issues with many noble Lords who have already spoken today and I will continue to do so in future, because I think that that is the right way to take the matter forward.
Coming new to the subject, I cannot have the great expertise and history that many noble Lords have on this matter. We have seen it again demonstrated by the noble Lord, Lord Grocott, and my noble friend Lord Tyler. These issues go back a long time. However, I do at least bring a fresh pair of eyes to some of these issues. Given that the underlying issue to which all noble Lords have referred is the size of the House, I thought that I should start by going back to look at the figures to see by how much the House has grown. This is what I found.
The House that Tony Blair inherited on taking office in 1997 had 1,067 Peers eligible to vote. Of course, that was before the removal of most of the hereditary Peers following the 1999 reform. The House that Gordon Brown inherited on taking office 10 years later in 2007 was smaller: there were 738 peers eligible to vote. As of this week, there are 761 Members of this House eligible to vote; that is 23 more than in 2007. We have had some discussion about the proportion and size of the number who have been introduced, so I looked at the numbers for the Conservative, Liberal Democrat, Labour and Cross-Bench Peers in particular. In 2007, 698 Members sat on those Benches and were eligible to vote. I accept that the equivalent figure today is higher: today it is 704, which is six more than in 2007. Those figures come from the House of Lords Library note of 27 June 2012; for this week’s figures, I consulted the online House of Lords registry.
Given that the overall number of Peers eligible to vote is not so different from five or six years ago, that brings me naturally to the important question raised by the noble Lord, Lord Hunt of Kings Heath, about the exercise of restraint in new appointments to the House, which is referred to both in his amendment and in my noble friend Lord Steel’s Motion.
Lord Brooke of Alverthorpe
My Lords, would the noble Lord be kind enough to give us the details of the average attendances from 1997?
Lord Hill of Oareford
I am coming on to talking about attendance and participation, which I recognise as an important issue. As far as the exercise of restraint is concerned, the amendment of the noble Lord, Lord Hunt of Kings Heath, refers to the Leader’s Group recommendation on the creation of new Members of this House. That read:
“Whilst we cannot recommend that there should be a moratorium on new appointments to the House—since, while the purpose of the House is to provide expertise, we must ensure that that expertise is refreshed and kept up to date”—
a point, I think, on which all noble Lords agree—
“we do urge that restraint should be exercised by all concerned in the recommendation of new appointments the House, until such time as debate over the size of membership is conclusively determined”.
I would argue that this recommendation has been followed and that the Prime Minister has indeed shown restraint. Since the well publicised lists of May and November 2010, a total of eight new peers have been created, six of them on the Cross Benches; 42 life peers have, sadly, died. I suggest, therefore, that the Prime Minister’s record is consistent with the recommendation from the Leader’s Group, both in terms of exercising restraint and in ensuring that expertise is refreshed and kept up to date.
I now come to the point about which I was asked. The real issue is not so much the absolute number of those entitled to vote but attendance. Surely we all agree that attendance and participation are good things that we ought to encourage. That is one of the reasons why I am extremely keen, as a new Leader, to try to find new ways to help a wider range of Members to play a greater role in this House. That is why, as an early priority, I shortly plan to put proposals to the Procedure Committee that will provide more time and opportunities for Back-Bench Members to lead debates. My intention is to build on the work of my noble friend Lord Strathclyde, who, with the support of the Liaison Committee and the House, initiated a modest expansion in our Select Committee activity to include more pre-legislative and post-legislative scrutiny as well as a greater emphasis on single-session committees. I am keen to do that in order to ensure that a wider range of Members have the opportunity to serve on our Select Committees.
Noble Lords have raised the matter of Question Time. I welcome the fact that the Procedure Committee is due to come forward with some revised proposals on how we might make it easier for a wider range of Members to table Oral Questions. There is also the question of how we might encourage more Members to come in on supplementary questions and broaden participation. I am acutely conscious of how crowded the Chamber is during Question Time, just as it is at PMQs in another place. When you spend as much time as I now have the pleasure to do in your Lordships’ House, it is clear that, at other times of the day, this House is not as crowded as it is during Question Time.
As well as talking about the need for restraint, the amendment of the noble Lord, Lord Hunt, reiterated the support of this House for the proposals in the Bill introduced by my noble friend Lord Steel of Aikwood. Indeed, the House has already made its position clear. We passed the Bill without a Division and sent it to the other place last summer. It contains measures which my noble friend Lord Steel described as “housekeeping” and for which it is clear that there is widespread support in this House. I know that my noble friend is keen that the Government should take the Bill forward. As he said, he made his case directly to the Deputy Prime Minister earlier this week; he was the right person to talk to, as he is the Cabinet Minister responsible for this matter. Despite that, the Government’s position remains that we do not wish to facilitate the passage of the Bill. I understand that the Deputy Prime Minister made clear why that is the case. As my noble friend Lord Tyler said, it is because the House of Commons voted overwhelmingly last year in favour of an elected House of Lords. With that in mind, no Government could credibly support a package of measures that could be perceived as anointing an all-appointed House.
Baroness Hayman
I am grateful to the noble Lord. I find this a confusing argument. If the will of the House of Commons was so clear and unambiguous, why are we not now spending our time debating the House of Lords Reform Bill? The fact is that the House of Commons purported to will the ends but refused to will the means. If you do not will the parliamentary time, you do not will the statute. I suggest to the noble Lord the Leader that the view of the House of Commons was not quite as unambiguously in favour of an elected House as he suggested.
Lord Hill of Oareford
Clearly I take the point made by the noble Baroness, Lady Hayman, that there was a difference between the extremely clear view expressed—a 71% majority in favour in principle of an elected House—and what happened. As she said, when push came to shove some of the consequences of an elected House, such as the issue about the balance of powers between the two Chambers and so on, perhaps became less compelling. However, that was the situation and the Government have made it clear that they will not bring forward further legislation to reform the House in what remains of this Parliament. This position was welcomed by many in the House.
Lord Reid of Cardowan
I am keen to preserve the spirit of consensus that my noble friend Lord Hunt generated. However, with respect to the Leader of the House, who I hope will be engaging in discussions with the Government and other authorities, the question of legitimacy that he raised—that it would not be legitimate when something had been done to appear to do the opposite subsequently—must be truly addressed. Does he recognise that not only was the idea of proportionality lost in the proposals for this House but it was previously rejected under this Administration by the country in the referendum on the alternative vote system? Given that there is an apparent consistency about the legitimacy of the processes and non-contradiction, will the Leader assure us that, given the fact that proportionality has been rejected by the country in an overwhelming vote and then lost during the proposals for reform of the House of Lords, the idea of proportionality through appointment to this House will not be pursued?
Lord Hill of Oareford
On the point about proportionality, the noble Lord will know that in the coalition document, the parties set out their position—although, as I argued earlier when I referred to the exercise of restraint, progress towards that form of words has not been put into effect in the same way. I agree with him about the importance of this being a consensual debate. I do not seek to make it political.
Lord Hill of Oareford
Perhaps I may just finish this point. As things stand, it is clearly the case that the proportion of Labour Peers in this House is greater than was the case in the popular vote at the general election. It has not been the case since then, in 2010 or subsequently, that the Government have sought to redress the balance in a dramatic way. As we heard, many new Labour Peers were created. Therefore, I hope that restraint and the measured way in which the Government have proceeded with new appointments have provided the noble Lord with some reassurance. We are not saying that we rule out the measures that the Bill in the name of the noble Lord, Lord Steel, seeks to enact. We are saying that they should be considered in their proper context as part of a wider reform of the House.
If I may, I will say something briefly about the effectiveness of the measures proposed in the Bill to substantially reduce the number of Members who attend this House each day. This point was made by the noble Lord, Lord Laming. In other words, would my noble friend’s Bill tackle the problem of size that it seeks to address? There has been mention already about the non-statutory, voluntary retirement scheme that has been put in place. Two Peers have taken advantage of it. Therefore, there must be some reason for the reticence of Members in volunteering for retirement. I am not personally persuaded that making the scheme statutory would overcome that reticence. Some supporters of my noble friend’s measures suggest that some kind of payment might help overcome this reticence. I should make clear, as I have done before, that the Government do not support making taxpayers’ money available to Members of the House to encourage them to retire. That would be wrong, and it would be seen to be wrong. I am glad to hear that my view on this is shared by all groups and all parties.
On excluding infrequent attendees, I say that those Peers currently put no pressure on the Benches at Question Time. If pressure is to be reduced, the people who need to retire are those who attend, not those who do not. I agree strongly that criminals should be excluded, but, unless there is a grand conspiracy in the House of which I am currently unaware, the suggested policy would not reduce the number of those currently attending the House.
Baroness Farrington of Ribbleton
My Lords, as a member of the Leader’s Group under the noble Lord, Lord Hunt, and as a Whip in your Lordships’ House, I would not hazard a guess as to the number of noble Lords who would take permanent leave of absence. However, I recollect, when I was in both those roles, a number of noble Lords who attended quite regularly and with great difficulty because they felt that they had been asked to come in and serve for life. I would not dream of naming them, but some are quite regular attendees because they feel honour bound to attend because they feel that, were they to cease to attend, their expertise, which some have said they feel is a little out of date, would not be replaced in the interest of not making the House too large.
Lord Hill of Oareford
I understand that point. As is normally the case with the noble Baroness, it is sharp, perceptive and fair.
I am conscious that the House would like to move forward. I will say a brief word on the Motion that was moved by my noble friend Lord Steel of Aikwood and about our powers of regulation in this area. The Leader’s Group got it right when it said that it could not recommend a moratorium on new appointments to the House. That must be correct. The Life Peerages Act 1958 gives the Queen the power to create peerages for life, with the right,
“to receive writs of summons to attend the House of Lords and sit and vote therein accordingly”.
Therefore, I agree with the way that the noble Lord, Lord Hunt of Kings Heath, and my noble friend Lord Cormack approached the issue. I cannot see that our right as an individual House to self-regulate includes the power to override that Act of Parliament.
I have set out why I believe that the Motion in the name of my noble friend Lord Steel calls for much action that has already been taken, and restraint that has been exercised. I have listened to the debate and recognise clearly that Members on all sides feel very strongly about the question of size. However, I hope that the figures that I shared with the House demonstrate that some beliefs about the issue of overall size are not quite borne out by the facts.
I believe very strongly that we must do more to accommodate rising attendance and the consequent increase in demand from Members, especially newer Members, for opportunities to take part in our work. I have strong sympathy with those who are uncomfortable about Members convicted of a serious prisonable offence returning to the House. Pending primary legislation to exclude Members on those grounds, I would certainly support steps to explore measures that we ourselves might take to discourage Members in that category from taking part in the work of our House.
Those are two areas in which we can help ourselves. On the remainder, noble Lords have set out their clear views forcefully. I have attempted to set out the Government’s position. I have no doubt that our discussions, both on the Floor and elsewhere, will continue. I will certainly play my part in those. In the mean time, I hope that the noble Lord, Lord Hunt of Kings Heath, will withdraw his amendment.
Lord Elton
My noble friend asked for restraint. Perhaps I may suggest some restraint on the part of Her Majesty’s Government. I can think of no more appropriate opportunity to put this point. I have watched the House of Commons for a great many years. I have noticed how it changes during a Parliament. At the beginning of a Parliament, the wisdom and experience of those who have served is diluted by many who come in with their head full of theories but no understanding of what the effects would be. As we have been not promised but led to expect legislation in the next Parliament, perhaps I may ask my noble friend to exercise his greatest efforts to see that reform is not undertaken in the first two years, so that those who talk about it will know about it.
Lord Hill of Oareford
My Lords, I am always in favour of people knowing about the things that they are talking about. I always listen with great care to what my noble friend Lord Elton says.
Lord Hunt of Kings Heath
My Lords, I shall respond very briefly. I welcome the willingness of the Leader of the House to seek advice from Members of your Lordships’ House. He is a fresh pair of eyes and we very much look forward to working with him. I also very much support his work in trying to encourage Members who perhaps are not as active as possible to participate more in the future. Ultimately, though, I was disappointed with his response. He started to trade statistics and there always seems to be a risk in doing so. My general conclusion is that whatever Government are in power, in general and over time that governing party will tend to see an increase in the number of seats they hold in the House of Lords. I certainly agree that we need fresh blood form time to time, and I actually agree that restraint has been shown so far. As the noble Lord, Lord Elton, said, the issue is the future. The rumours which have been around this House for quite a long time now are that the Government want to make a very large number of new appointments in the next few weeks or months. Above all, I hope that the noble Lord will consider this. The plea of restraint is very much directed at those future appointments.
The noble Lord, Lord Cormack, and the noble Baroness, Lady Hayman, helpfully reminded the House of my own views on Lords reform. I was hoping that my noble friends behind me might forget that, but they are right—I have consistently voted in favour of an elected House. However, the Leader of the House essentially says that because the Commons voted at Second Reading for Mr Clegg’s Bill, that means that it would be wrong to put to them proposals for incremental housekeeping. As someone who favours an elected House I strongly refute that. First of all, that Bill did not go through. Secondly, under the proposals of Mr Clegg, or indeed those of my right honourable friend Mr Straw, if a party pledged an elected House of Lords and that party came into power in 2015, the first element of elected Members would not come to your Lordships’ House before 2020. That is seven years away. For the Leader of the House to say that no useful housekeeping or incremental change can take place before that moment is a matter of regret. I think that is the implication of what he said.
I do not think that we can wait. We need to indicate to the Government that sensible change ought to happen as soon as possible and say that we very much hope that restraint will be exercised in the appointment of new Members. It is important that the House has a way of indicating its support for those intentions, so I will put this to the vote.
Lord Steel of Aikwood
My Lords, I beg to move formally the substantive Motion as amended and, in doing so, would say simply that the House has spoken very clearly, which I hope will strengthen the hand of the Leader of the House in future discussions with the Government.
Motion, as amended, agreed to.
Succession to the Crown Bill
(11 years, 8 months ago)
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Lord Trefgarne
Baroness Anelay of St Johns
My Lords, my noble friend Lord Trefgarne will hesitate for a moment or two so that colleagues can leave the Chamber. We will then take his Amendment 1.
Lord Trefgarne
My Lords, I have never quite understood, and do not now understand, why it is thought so necessary that this Bill should be driven through with such speed. The plain fact is that the arrangements it seeks to change—I do not disagree with all of them—have been in place in some cases for many hundreds of years. Why we need not only to drive the Bill through swiftly but also to backdate one of its provisions is not immediately obvious to me. I therefore propose that, at the end of the first clause, we should provide that it should come into effect in, say, 50 years’ time, which is a very short time in relation to how long these arrangements have been in place. That would be an appropriate change to the Bill and I beg to move.
Baroness Hayter of Kentish Town
My Lords, given that we support the Bill, this amendment does sound rather like, “Please make me chaste, but not quite yet”. Some of us have waited, particularly for the first part of it, for many years and we certainly would not want to see any delay. Therefore, we hope that the amendment will not be passed.
Lord Elton
My Lords, I want to add a note of concern to that of my noble friend Lord Trefgarne by referring to the report on the Succession to the Crown Bill produced by the Constitution Committee, which holds the strong view that there is no need for haste.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the effect of my noble friend’s amendment would be, as he has indicated, to delay the removal of the male gender bias in the line of succession for almost 50 years. Perhaps I may pick up the point made by my noble friend Lord Elton and his reference to the report of your Lordships’ Constitution Committee. It is fair to say that since that committee reported, there has not been any undue haste. The time made available for debate on this Bill in the other place was not even fully used up, and in your Lordships’ House we are proceeding in the normal fashion with the appropriate elapses of time between the different stages. There is certainly no intention to cut short the debate in this House.
My noble friend has asked why we are doing this now and at this speed. The position is that the Prime Ministers of 16 Commonwealth nations, of which Her Majesty is the head of state, agreed during the Commonwealth Heads of Government Conference in Perth in October 2011—that is why the date has been put into the Bill—to work together towards a common approach to amending the rules on the succession to their respective Crowns. It is fair to say that that was the product of considerable work and discussion over many years. Indeed, discussions were ongoing during the previous Administration in this country. All these countries wish to see change in two areas, the first of which is covered by this clause, and that is to end the system of male preference primogeniture, under which a younger son can displace an elder daughter in the line of succession. It is right and appropriate that this clause will remove a piece of long-standing discrimination against women that may well have been acceptable in earlier centuries, to which my noble friend referred. This provision will modernise and affirm the place of our constitutional monarchy.
At Second Reading the noble Lord, Lord Janvrin, said that:
“If in the future within the line of succession a younger son were to take precedence over an older daughter, it would seem to be at least controversial and at worst discriminatory, out of date and out of touch. To make this change now, therefore, strengthens the monarchy because it avoids any risk of such deep controversy”.—[Official Report, 14/2/13; col. 802.]
That is why this is an appropriate time to make the change, because it will be done without affecting anyone who currently would have a prior claim on the throne. If, however, we wait for a situation where there may be a daughter and then a younger brother, and we tried to make the change then, it is inevitable that that would be more controversial.
Perhaps it is also worth reflecting that if the Duke and Duchess of Cambridge have as their first born a son, have only sons or, indeed, have only daughters, the effect of this clause may not bite until the next generation, possibly after 2060. However, as the noble Lord, Lord Janvrin, made clear, it would be controversial and possibly even destabilising to the monarchy to have this kind of debate at that point. We look forward to the birth of the Duke and Duchess of Cambridge’s first child knowing that we can celebrate, when this Bill is passed, that whether the baby is a boy or a girl they will have an equal claim to the Throne. I therefore invite my noble friend to withdraw his amendment.
Lord Trefgarne
My Lords, I hope that we will not hear too much more about the Commonwealth Heads of Government Conference where it was all said to be agreed. These matters are not agreed by ministerial diktat, however senior and distinguished the Ministers may be, but by the Parliaments of the countries concerned, and in some cases by a referendum as well. When the Heads of Government agreed all this in Perth back in 2010, it was subject to parliamentary approval in the relevant countries. That parliamentary approval has not yet been received, not least in this country. I hope very much that we will be thinking in terms of parliamentary approval rather than ministerial diktat, upon which my noble and learned friend seems to be relying.
Lord Wallace of Tankerness
I entirely accept what my noble friend says on the importance of the Parliaments; indeed some of the realms do not necessarily feel they need parliamentary approval, but obviously in this country we do. I am sure that he would agree that we needed prior agreement before any measures could go forward to the respective Parliaments.
Lord Trefgarne
Yes, but that is not included in this clause. That said, I do not wish to delay your Lordships on this matter. I beg leave to withdraw the amendment.
Lord Northbrook
“Succession to the Duchy of Cornwall not to depend on gender
In determining the succession to the Duchy of Cornwall, the gender of a person born after 28 October 2011 does not give that person, or that person’s decendants, precedence over any other person (whenever born).”
Lord Northbrook
My Lords, I rise to move Amendment 3. If His Royal Highness and the Duchess of Cambridge have a daughter, she may, thanks to the Bill, be able to become queen. However, she cannot as of right become Duchess of Cornwall or Countess of Merioneth. That seems to be an anomaly, particularly with the Prime Minister’s focus on equality. I beg to move.
Lord Lloyd of Berwick
My Lords, I support the amendment. I do so because many years ago when I was a struggling barrister, I was appointed Attorney-General to the Prince of Wales, which carried with it also being Attorney-General to the Duchy of Cornwall. Therefore, I do have some—albeit from rather long ago—experience of what the Duchy of Cornwall is and how it works.
In his reply to the Second Reading debate, the noble and learned Lord made three points, at column 830, about how the Duchy of Cornwall would be affected if this Bill becomes law, as I hope it will. I very much apologise that I was unable to be present, but I was abroad. First, he pointed out that Princess Elizabeth, when heir to the Throne, did not become the Duke of Cornwall. Secondly, he pointed out that if the Bill becomes law and the heir to the Throne is a daughter, the title would go into abeyance in the ordinary way. Thirdly, he pointed out that if the heir to the Throne is a daughter, she will not suffer financially from the title going into abeyance because of the Sovereign Grants Act 2011, to which the noble Lord, Lord Janvrin, had drawn attention during the debate.
As to the first point, it is of course true that the title fell into abeyance when Princess Elizabeth was heir to the Throne. As to the third point, it is clear that the heir to the Throne will not suffer financially anyway, so to some extent we can disregard that as a relevant point. However, I question the second point, and whether there is any need for the title to go into abeyance. Why, I ask the noble and learned Lord, should it?
It seems to me that to enable the heir to the Throne to become Duke of Cornwall if female is the logical extension of the provisions of this Bill. It is within—if only just—the royal title. Obviously, there is no difficulty in a female heir to the Throne being called the Duke of Cornwall because, as we all know, the Queen is also the Duke of Lancaster. In addition to what I submit is the logical extension of this Bill, there is a practical reason why I support this amendment.
I remember very well meetings of the Duchy council, which the Prince of Wales, then a very young man, would always attend. He took a close interest in the affairs of the Duchy. One must remember that we are not talking about just a paper title but a large estate and what has become a large business in recent years. It is my belief that the Prince of Wales’s experience in chairing the Duchy council and dealing with a large estate and matters of business has served him very well in subsequent years.
That experience, which has served the present Prince of Wales well, should not be denied to a future heir to the Throne if she is a woman. In fact, one might almost say it is all the more important that she should, as heir to the Throne, have the sort of experience that the present Prince of Wales has had. I hope that that experience will become available irrespective of the gender of the heir to the Throne. This may come as a bit of a surprise to the noble and learned Lord, but perhaps he will consider the matter and take advice from the Duchy of Cornwall itself if necessary—I could perhaps give him advice—that this is a sensible extension of the Bill.
Lord Lexden
My Lords, I, too, support this amendment and will add a small footnote to what the noble and learned Lord, Lord Lloyd, has just said. I understand that an amendment would be needed to the Duchy’s founding charter, drawn up in 1337, to enable a female heir to inherit. As the noble and learned Lord, Lord Lloyd, stressed, this is a Bill that provides for gender equality. If that principle is to be fully and completely embodied in it, action must surely be taken to revise the founding charter of the Duchy of Cornwall so that a female heir to the Crown can succeed to it.
As the noble and learned Lord, Lord Lloyd, so wisely pointed out, there is a further practical consideration. If the Duchy is not held by an individual but placed in abeyance and administered by its council, there is a real risk that its affairs will not be administered with efficiency and skill. There is a strong view held by many that the absence of a Duke of Cornwall between 1936 and 1958 led to a serious decline in the running of its estates and other properties, a decline from which the present Duke, now the Prince of Wales, successfully rescued it. For these reasons, I support this amendment.
Lord Mancroft
My Lords, I, too, support my noble friend’s very important amendment. I was going to make the point that I have heard repeated again and again—which my noble friend Lord Lexden has made very strongly for me—that not only does the Duke of Cornwall need a Duchy but the Duchy needs a Duke. Estates, businesses, or whatever you may choose to call them in the modern day and age, that are run by councils, groups of trustees or boards of directors are all very well but in the case particularly of a large agricultural estate such as the Duchy or Cornwall—and there is none larger or better run—the present Duchy of Cornwall runs so well because the Duke of Cornwall has taken such an interest in it, and if there were not a Duke, regardless of that Duke’s sex, I think that would not happen. My noble friend Lord Lexden’s point is absolutely valid.
Another point that has been made, which I will repeat, is that the splitting apart of ancient titles is unsatisfactory and untidy. In dealing with important constitutional matters, although these are technicalities and perhaps of interest only to historians, politicians and noble Lords who can be bothered to spend their Thursday afternoons in your Lordships’ House, they are important matters and need to be done tidily. I do not think they are done tidily in the Bill.
Lastly, when my noble and learned friend Lord Wallace responds, will he assure the House that the Duke of Cornwall—the Prince of Wales—was consulted over this and that he is comfortable with the way in which the Bill is going forward? I do not wish my noble and learned friend the Minister to breach any confidences or step outside the correct procedures but it would give comfort to the House to know that the Government had consulted His Royal Highness and that the Duchy and the council and the Duke of Cornwall himself were comfortable with the way in which this is proceeding.
Lord Trefgarne
My Lords, I do not intend to delay your Lordships on this matter. All I will say is that a number of years ago now I had to deal with His Royal Highness the Prince of Wales in his capacity as the Duke of Cornwall in connection with the use of Dartmoor as a military training area. He dealt with it with enormous skill and understanding and we were grateful to him for that. If this amendment seeks to preserve and encourage those arrangements, I am in favour of it.
Lord Berkeley
My Lords, I support this amendment, but for rather different reasons from those of some other noble Lords who have spoken. It is ironic to me that we are having a debate, quite rightly, about equality between men and women in inheriting titles. I understood from what the noble and learned Lord, Lord Wallace, said at Second Reading that if the next heir to the Throne is a lady, she could be called either the Prince of Wales or the Princess of Wales—heaven knows; I would have thought she would be a princess, but I am no expert. If she can be called the Princess of Wales, why can she not be called the Duchess of Cornwall, or the Duke of Cornwall, or whichever way we want to put it? It seems extraordinary, really.
At Second Reading, I spoke about a number of issues that I had with the current structure of the duchy: whether it is in the private or public sector; what it does with its revenue; and the ability of the Prince of Wales to approve legislation. Frankly, this is one of the few Bills that he and Her Majesty should have a view on because it affects them in their roles. However, there are an awful lot of other issues on which I have not put amendments down because I was advised that they were a bit outside the Long Title, so I shall be looking to prepare and propose a Private Member’s Bill on some of these issues in the next Session, I hope. When the noble and learned Lord, Lord Lloyd, said that he had been Attorney-General to the Duchy of Cornwall, I thought, “Fine, the Duchy is getting free legal advice from some of the best lawyers in the land”. However, it then goes to tribunals and says it is a private organisation. Well, no other private organisations get free legal advice from an attorney-general. There are many other issues to discuss on that, but I support the amendment as a logical extension to the Bill. I look forward to hearing the Government’s response.
Lord Deben
My Lords, we are dealing with anomalies here and seeking to remove them. One reason we are doing that is because it sends a very clear signal about the attitude of the state towards certain issues. That is why so many of us are such supporters of the removal of gender discrimination in this way.
I genuinely find it difficult to understand why, if we are going to do that, we have not thought through one or two other things that are also signals. The concept of the heir to the Throne having this remarkable opportunity, which history has given them, of running a significant estate and dealing with significant matters of business is something that has characterised the monarchy for a long time and has given the present heir a remarkable opportunity, which he has used to huge effect.
I do not think it right to put before the House a Bill that specifically denies a female heir that opportunity. I know what will happen. She will in effect be the Duchess of Cornwall. I have no doubt that she will be asked to take the chair. I have no doubt that all this will happen. But what I find so difficult—I rise on this point only because it is a continuing concern of mine—is that we do not understand that when you decide you are going to deal with an anomaly, you have to deal with it. You cannot say, “I am going to deal with this bit of it, but I have a particular concern that it would mean changing something that happened in 13-something”. What a good opportunity to remind people of the great length of our history and of the fact that at this moment something has changed and we want to put it right.
So far I have found the Government at their least compelling when they have found it impossible to recognise that these things hang together. I hope that the noble and learned Lord, Lord Wallace, can accept that this will not make any difference in the other countries of the Commonwealth. No one will say, “I am frightfully sorry, I cannot vote for this because I am not prepared to give the Duchy of Cornwall to a female”. Surely this is something we can sort out properly. If the argument is that this might affect the issue of primogeniture with regard to your Lordships’ House and those who were once in it, then the answer is simple: this whole Bill is about the monarchy. We are talking about the monarchy. We are not talking about anybody else. Nothing inevitably comes from this, except possibly a spirit of change. There is nothing that is a precedent.
On this occasion, could we please see that this is a sensible thing to do? Would it not be good to do a sensible thing because it is sensible, rather than to argue about it because there is another argument?
Lord James of Blackheath
My Lords, my noble friend Lord Deben has been singing from the same song sheet as my noble friend Lord Trefgarne. In effect, he is saying that this is too complicated to rush and we need more time on much more detail. We are on only the third amendment and already we are looking at a series of complexities which have not so far been considered. This Bill is riddled with the potential for unintended consequences of the type we are talking about. We need much more thought and much more time. In the two weeks since Second Reading I have had a great many communications from your Lordships, mostly disagreeing with something I said on that occasion. I have a shortlist of what the principle points are and they are not really addressed in the process today.
First is the point that no Parliament may bind its successors. One of my contentions is that the deed of rights does effectively bind its successors, as does the Act of Settlement. The question of entrenchment was not considered at all, yet it is fundamental to that issue. There is the issue of the sovereignty of Parliament and of the Crown. The Crown in Parliament is a special factor and an expression which needs to be redefined in that context. There is also the question of the limitations that the Bill seeks to avoid and thus whether the constraints which normally apply do not apply to the limitations of power. Amazingly, one of your Lordships accused me of committing “desuetude”. I do not have a clue what desuetude is, but I assure you that it has nothing to do with what has been going on in the Liberal Democrat party.
If the tabloids think they have a new story, I wish to make the point that this Tory Peer has never done desuetude in his life as far as he is aware and if he did, it was an accident and he was lured into it unawares. I found that desuetude is not recognised under British law and does not apply, so we can kick it into touch. On all the other issues, particularly the right of this House to accept the delegation of the royal prerogative, I stand firmly in my belief that we do not have the right to act accordingly and we have been ill advised and inadequately advised about our proper role and authority.
We do not have time available for all these great issues. My concern is that although we could go into them individually now or at some other time, at the rate we can process with this, we do not have enough days or months available to consider this important Bill. I am not opposed to it, but I will leave your Lordships with two thoughts. There are two awful, unintended consequences which we have not thought of. First, if we pass this Bill we have effectively done away with the need for a Scottish referendum because we have driven a coach and horses through the 1707 Act of Union. It no longer exists because you cannot pass this Bill compatibly with the separate proclamation and coronation oaths required by the 1707 Act.
Secondly—and I hate to say this—I fear that if we pass this Bill we have in effect created what will amount to the accidental and unintended abdication Bill. I cannot see how this Bill can be given Royal Assent, and without it, it cannot pass. In those circumstances, the only way it could ever be passed is during an interregnum, which can happen only with the death of a monarch or an abdication. There would then have to be an interval of several days before the proclamation of the new monarch in which this Bill could be passed. I cannot see that it could be done in any other way. We are in an area of total ignorance and floundering. We need more time and more guidance.
Lord Lang of Monkton
My Lords, I support the amendment of the noble Lord, Lord Northbrook. In particular I endorse everything said by my noble friends Lord Lexden and Lord Mancroft. One point to make by way of modest qualification is that I understand there are a number of other dukedoms and titles held by the Prince of Wales which might also need to be changed and modified to bring them into the needs of this Bill. As long as this does not delay action on the Duchy of Cornwall, I hope that the Duchy of Lancaster and any other such duchies should be looked at quickly as well. It would be better to have one composite solution to the problem rather than a piecemeal one.
Lord Berkeley
My Lords, I have a question for the noble Lord, Lord James. As far as I recall, he spoke at Second Reading about the House committing collective treason. Why has he not put down some amendments in Committee to take these arguments forward, so we do not all commit treason?
Lord James of Blackheath
My Lords, I sought guidance on this. I did not get adequate guidance to enable me to formulate a wording which I could see was appropriate. I wholly agree that it is required. Given time it can be done, but we do not have time.
Baroness Hayter of Kentish Town
My Lords, as the noble Lord, Lord Deben, says, the issue is a sensible one. I then break with the tradition of everyone else who has spoken by saying it may be a sensible issue, but the issue is about property, the ownership of an estate, about title—as reflected in the words of the noble Lord, Lord Lang—or about a business, in the words of the noble and learned Lord, Lord Lloyd of Berwick. While it may be an important issue, it is not about the constitution of this country and therefore not really appropriate to what is an important and, in our view, welcome change in our laws of succession. That is what this Bill is really about.
It is quite possible that the founding charter governing the Duchy of Cornwall may need changing—I had not realised that it was in 1337. Interestingly, 600 years after that, from 1937 to 1952, the title fell into abeyance. Our present monarch seems to have done a fantastic job without the benefit of being the Duke of Cornwall in that period, so I am not certain that this needs to be done. If it does, it should be done by another way and not in this Bill, which is about our rules of succession. I hope that this is what your Lordships’ House will address itself to.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Northbrook for introducing this amendment, which has generated a considerable amount of debate and discussion. I understand where he and other noble Lords who contributed to the debate are coming from as they seek to remove gender bias in the descent of the Duchy of Cornwall. I will try to clarify the current situation. The title can pass only to the eldest son and heir of the monarch. Thus—as has been indicated—when she was heir presumptive to the throne, Her Majesty, as Princess Elizabeth, did not hold the title of Duke of Cornwall.
As has been said, the title and inheritance of the Duchy were created by King Edward III in 1337, and vested in the Black Prince by a charter having the authority of Parliament. My noble friend Lord Deben said that this was an opportunity seek to remove anomalies. It is fair to say that this one is perhaps even slightly more anomalous than it might appear on the surface. The mode of descent specified by the charter is unusual, and differs from that which commonly occurs in respect of hereditary titles. The monarch’s eldest son is automatically Duke of Cornwall immediately that he becomes heir apparent. However, if the monarch has a son who is the heir apparent and that son dies before the monarch, leaving a son of his own—a grandson of the monarch—the grandson would become heir apparent but would not be Duke of Cornwall because he is not the son of the monarch. It is not just a question of daughters not inheriting the title; it would be that grandsons did not, either.
With the Duchy of Cornwall we therefore have an unusual and interesting piece of English history that does not conform to the standard rules of descent for hereditary titles. However, it is exactly that: a piece of English history and not an issue that is of direct relevance to the succession to the Crown—as the noble Baroness, Lady Hayter, indicated—nor to the other realms of the Commonwealth. I made it clear at Second Reading that it is not the Government’s intention to deal in this legislation with UK-specific matters. This amendment very much falls into that category.
My noble friend Lord Lang referred to other titles, to which the same arguments apply. I tried during my reply at Second Reading to set out what would happen to these. I am happy to write to my noble friend to outline the cases in these situations.
Lord Trefgarne
My Lords, when the Minister writes to our noble friend Lord Lang on the various other titles, would he include an answer to the point I raised at Second Reading: whether the Princedom of Wales can be passed to a female if the sovereign of the day so decides? He was not able to give me an answer to that at Second Reading, as I recall. If he could touch on the matter in his letter to our noble friend Lord Lang, I would be greatly obliged.
Lord Wallace of Tankerness
My Lords, I understand that the creation of the Princedom of Wales, let along the matter of it going to a daughter, is very much a matter for the personal decision of the sovereign. The current Prince of Wales did not automatically become Prince of Wales upon Her Majesty’s accession in 1952; that did not happen until 1958. It is a matter for the sovereign, and I will seek to set that out in a letter which I will copy to others who contribute to this debate.
The noble and learned Lord, Lord Lloyd, raised a query about the efficient running of the estate between 1936 and 1952. There have of course throughout history been stretches when there has been no Duke of Cornwall, and the Duchy continues to today. I pay tribute to the leadership which the present Duke of Cornwall has given. When I was in the other place, my constituency, Orkney and Shetland, could not have been more remote from Cornwall. Even in Orkney and Shetland, however, we were aware of the work of the Duke of Cornwall on his estate. I see my noble friend Lord Maclennan of Rogart in his place. Certainly, closer to home, I know of the work of the Duke of Rothesay in respect of the Castle of Mey estates since he inherited them from his late grandmother. Those tributes were rightly paid.
Lord Maclennan of Rogart
As a footnote, I also commend the Duke of Cornwall for the work that he has done in setting up the North Highland Initiative: three separate charitable companies to promote the well-being of the area.
Lord Wallace of Tankerness
Indeed. I certainly am aware of that and the contribution that my noble friend has also played in these developments.
As was perhaps surmised by my noble friend Lord Deben, there is of course nothing to stop a female heir having an active role in the running of the Duchy, but that would be a matter for the sovereign to decide at the appropriate time. As has already been recognised, a female heir apparent will not find herself at a financial disadvantage. The Sovereign Grant Act 2011 broadly ensures that financial provision equivalent to the income from the Duchy is made for the heir apparent.
As was indicated by the noble Baroness, Lady Hayter, the Bill seeks to achieve three things set out in the first three clauses. It is about succession to the Crown. It is relevant to the other realms of which Her Majesty is Queen and head of state. I do not believe that this is the legislative vehicle in which to address a number of the other issues which have been raised. For these reasons I invite my noble friend to withdraw his amendment.
Lord Northbrook
My Lords, I am grateful to all noble Lords who have taken part in this debate—to the noble and learned Lord, Lord Lloyd of Berwick, for his useful contribution on legal aspects; and to the noble Lord, Lord Lexden, for his observation that the Duchy’s founding charter would have to be changed and his comment about the serious decline in the fortunes of the Duchy when there was no Duke of Cornwall. My noble friend Lord Mancroft made a good point about whether there has been consultation with His Royal Highness the Prince of Wales. I also noted the comment of the noble Lord, Lord Deben, about denying a female heir the opportunity of being Duchess of Cornwall.
I am still not entirely familiar with my noble friend Lord James of Blackheath’s meaning of “desuetude”. I took note of the comments of my noble friend Lord Lang of Monkton about other changes that might be necessary. What the noble and learned Lord, Lord Wallace of Tankerness, said about a grandson not automatically inheriting was interesting. I am concerned that when you open the box and the genie of unintended consequences comes out on this Bill, all these issues need to be looked at.
There has been a lot of interest in this amendment. I will seek further discussions with the Minister before Report. In the mean time, I beg leave to withdraw the amendment.
Baroness Garden of Frognal
My Lords, I beg to move that the House do resume. In doing so, I draw the attention of noble Lords to the debate that follows, on which the timing is very tight. I invite noble Lords to keep to their allocated time.
Research Councils UK: Open Access Policy (S&T Report)
(11 years, 8 months ago)
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Lord Krebs
To ask Her Majesty’s Government, in the light of the third report of the Science and Technology Committee, what assessment they have made of the implications of Research Councils UK’s open access policy.
Lord Krebs
My Lords, this debate follows the publication of a short inquiry by the Science and Technology Committee into the implementation of the policy of open access. I start by thanking the members of the Select Committee for their excellent contributions to this short inquiry.
Open access is the most radical transformation in academic publishing since the first scientific journal, Philosophical Transactions of the Royal Society, was published in 1665. As an aside, when I talk about “science” in the next few minutes, I use the word to be akin to the German “Wissenschaft”, meaning scholarship, learning and research across all disciplines including the natural sciences, social sciences and humanities.
The challenges of the transition to open access apply to all academic disciplines, although the details may vary from subject to subject. I will first explain the traditional model of scientific publishing. Researchers, having garnered results and written them up, submit a paper to a scientific journal, which has an editor who sends the paper out for peer review, decides whether or not to accept the paper for publication and, if revisions are needed, supervises those. The publisher then edits the revised paper and prints it.
The significant costs of that process are born by individuals or institutions paying subscriptions to the journal. It is a model in which the consumer rather than the producer pays for access to academic research. Some journals are purely commercial enterprises, but many are owned by learned societies that use the profits from publishing to support research, such as sponsoring studentships or conferences in their own discipline.
This traditional model has been radically changed in the past decade or so by the advent of online publishing, which presents the possibility of anyone, anywhere in the world, accessing scientific articles. Part of this disruptive change has been an increasing shift to open access, meaning that the consumer can read the literature free of charge. Perhaps the great majority of academic journals now allow readers free access but usually only after a delay following publication; this delay, or embargo, on free access enables the journals to maintain their subscription-based model and people or institutions that pay get a head start in reading the latest articles.
There is also rapid growth in a more radical form of open access, in which the producer or author of the article pays the full costs of having it refereed and published via a so-called article publishing charge or APC. The consumer therefore gets free, immediate access and there is no embargo. In the jargon of the trade, the embargo model is known as green open access while the instant access, the producer-pays model, is known as gold open access; some journals operate a hybrid system.
Recognising that this landscape is changing very rapidly, the Government commissioned a report on the topic and advice on how to proceed. The report was produced last year by a stakeholder group chaired by Dame Janet Finch, the former vice-chancellor of Keele. The Government agreed that the recommendations of the Finch report would be implemented forthwith.
That is the background; why did we carry out our inquiry? We were not questioning the move to open access. It is an inexorable trend and it is generally considered to be desirable that everybody should have access free of charge to new research results and data. We had, however, heard informally from both publishers and academics that the implementation plan following the Finch review was not proceeding adequately. In the words of one commentator, we were heading for a “car crash” on 1 April 2013, the date for the implementation of Finch recommendations. We therefore inquired, as a matter of urgency, into what was happening in order to identify the root of the problems and make appropriate recommendations and report well before 1 April. We have done that, and our report has been welcomed by all stakeholders. The bodies responsible for implementing the Government’s policy are the Research Councils UK—the RCUK—and the Higher Education Funding Council for England. They are providing funding to cover the costs to the author of publishing scientific research under the preferred gold model.
Here are some of the key issues that emerged from our inquiry about this transition. The first, and perhaps most important, relates to embargo periods. It is generally recognised that for the foreseeable future, most journals will operate a hybrid of gold and green open access even if, as the Government wish, gold is the final destination. Therefore, a crucial question for both the publishers and for academics is the length of embargo periods. For publishers, longer embargos are more likely to sustain the subscription-based model. The Government’s position has been that the starting point should be flexible, allowing for longer embargo periods but moving gradually to shorter periods. However, the research councils, through RCUK policy and guidance, require an instant change for all research funded by the councils to short embargo periods. Crucially and happily, in its evidence to our inquiry, RCUK appeared to change its position and said that it would adopt the flexible starting point that is the Government’s policy.
Can the Minister confirm that RCUK will revise its policy and guidance, as we recommend, to reflect that it will adopt a flexible position and that the research councils will explicitly refer to the “decision tree” on embargos endorsed by BIS and the Publishers Association? This tree makes it explicit that if the author does not have access to funds to pay for the APC—in the early years RCUK expects to fund about only half the APCs—longer embargo periods are acceptable. Will the Minister also confirm that the policy of the Higher Education Funding Council for England will align with that of the Department for Business, Innovation and Skills?
Our inquiry also highlighted the possibility of various unintended consequences of the open access policy, as well as lack of clarity. For example, who will pay for the APCs when UK research council-funded scientists are collaborating with scientists from other countries, as happens in many of the top laboratories? Is the UK taxpayer to subsidise other countries’ scientists? This has not yet been clarified. Will there be a race to the bottom, in which journals cut corners in peer review and editing to minimise their charges to authors? Will UK scientists be allowed to publish in journals that do not comply with RCUK policies? Could charging for publishing drive scientists from other countries away from UK journals? Academic journal publishing is a significant industry with a turnover of more than £1 billion a year and 80% of that is export.
These, along with a number of other points, emphasise that the UK is entering unchartered territory. It is one of the first countries to adopt an open access policy with a stated preference for gold open access. Can the Minister therefore confirm that, as we recommend, RCUK will carefully monitor the consequences of the new policy, not only in 2014 but also at further stages during the five year implementation phase? We suggest reviews in 2016 and 2018. We also suggest that, if the unintended consequences and disadvantages turn out to be more significant than anticipated, the RCUK should modify its policy. Other noble Lords may refer to the implications for learned societies, so I will not address that issue here. Let me end with two final points.
RCUK’s consultation was clearly inadequate. We recommend, and I seek the Minister’s confirmation that this will be accepted, that BIS should undertake a review of the consultation process and ensure that lessons are learned. Finally, we were surprised to find that, although there was much talk of the benefits of open access, no analysis of these benefits has been done, either by BIS or by RCUK. Does the Minister agree that in implementing one of the most fundamental changes in academic publishing in 350 years, it would be appropriate to understand the benefits, especially in light of the considerable costs to the science base involved? Open access is a disruptive change to academic publishing. It is potentially beneficial and desirable but it must be introduced with clarity and care if it is not to have unexpected disadvantageous consequences to the UK science base.
The Earl of Selborne
The House will be grateful to the noble Lord, Lord Krebs, for introducing what is to many a complex subject but one, as he pointed out, which has radical implications for academic publishing. He very clearly set out some of the knotty issues which must be rapidly resolved. In this inquiry conducted by the Select Committee the process has been as valuable as the product. When we invited written evidence, we rapidly received more than 60 submissions, just about all accepting the principle of moving towards open access—not an issue, as the noble Lord has explained—but with greatly differing views on the wisdom of the present preferences and timetable of the Government and the research councils to achieve this desirable aim.
Having recognised that this is a desirable aim, we should be highly supportive of the leaders in this field; the Medical Research Council and the Wellcome Trust have led in this respect. The MRC open access mandate has been in place since 2006 and compliance with this mandate has increased from about 24% in 2006 to almost half last year, and at the end of the transitional period proposed by the research councils of five years they hope to achieve 100% compliance.
For the areas of biomedical research with which the Medical Research Council is concerned, without doubt the gold open access model has much to favour it. That certainly is why the MRC and the other research councils have preferred the gold open access model over the green. As well as dispensing with the need for embargoes, it lends itself well to some of the quite sophisticated procedures nowadays, such as text and data mining, all of which have enormous commercial importance and importance in promoting the dissemination of knowledge.
As we have just heard, the gold model requires article processing charges—APCs—and in the case of the Wellcome Trust, the cost, which it calculated at between l% and 1.5% of its total research spend, has been met by the trust. It simply says it believes that in the field of biomedical research, the benefits flowing from open access more than justify the additional cost. It strongly supports the commitment of the research councils to provide funding via institutional block grants to meet the cost of gold open access APCs.
As the Select Committee notes, there is considerable doubt as to whether everyone who wants to publish via the gold route will be funded for the APCs. It further notes that, while the principle of favouring open access was almost universally accepted, the one-size-fits-all approach certainly was not. It is evident that the research councils now accept this and are prepared to be much more pragmatic and flexible than perhaps the original proposals seemed to imply.
The concerns of a number of organisations were particularly centred on the risk of being the first mover. While in biomedical research it is certain that the gold open access route ultimately will be followed by most other countries, it is by no means evident for other disciplines, particularly but not exclusively the humanities and social sciences. The green route, once a suitable repository is in place—many obviously now are in place—is a cheaper route. It does not rely on APCs, which at least in the early stage will have to be rationed. The very real difficulty of some researchers, such as independent scholars, in finding up-front funding for their APC is met by the green route. They have no problems. It is true that embargo periods will restrict the flow of research findings for a period but in practice we have already seen that in many cases this does not present insuperable problems for many disciplines. In other words, people are finding ways around it in so far as it represents an issue.
Subscription journals will not all wither and die. Some will be here for many more years. Therefore, having identified the direction of travel, it will be as well to recognise this and other concerns, and to ensure that in our enthusiasm for being an international leader we do not do ourselves an unnecessary disservice. The noble Lord, Lord Krebs, referred to the problems for periodicals, particularly those of learned societies. These learned societies very often rely on subscription journals for promoting their charitable objectives and their discipline, including public outreach, bursaries for students and fellowships, all of which are commendable causes. However, one has to recognise that periodicals and subscription journals first and foremost are there to disseminate knowledge. Clearly, they will have to move with the times and recognise, as the noble Lord reminded us, that things have changed dramatically in academic publishing.
Nevertheless, it is important to ensure that the transition, although abrupt as it will eventually have to be in many ways, is carried out as expeditiously as possible. It is clear that for some the repository route and green open access will not be what the Department for Business, Innovation and Skills called in its written evidence to us a legitimate second-best alternative gold. However, for some it still will remain a perfectly viable option and a legitimate, long-term strategy. For that reason, I welcome the response of the research councils to our report, which recognises that this possibility should at least be tested in future months and years.
Viscount Hanworth
My Lords, I, too, am grateful to the noble Lord, Lord Krebs, for introducing this debate. I should begin by saying unequivocally that I am in favour of the open access to academic journals for anyone, without distinction or qualification. Having said as much, I declare that I am not in favour of the proposals of the Finch report. I shall voice my severe misgivings later.
The backdrop to these proposals is the manner in which digital technology has impacted upon the production of the journals and the manner in which their vast legacy is nowadays handled and controlled. At present, a few overpowerful commercial suppliers are dominating the markets for academic journals. They are deriving excessive profits from their position as virtual monopolists. The profitability of these enterprises can be explained by their market power and by the extraordinarily favourable way in which they acquire their principal assets, which are texts for publication. They are in possession of valuable legacies of published material stretching back in time, often by as much as a century, from which they can derive considerable rents by granting access to their electronic archives.
To my knowledge, the oldest collection of back issues is from the Philosophical Transactions of the Royal Society, which dates back to its beginning in 1665. This collection has been digitised by JSTOR, which is a not-for-profit operation for the electronic archiving of journals that began in 1995 under the auspices of Princeton University. JSTOR represents a countervailing force, which is limiting the strength of the commercial monopolies. The principal clients of the commercial monopolies, the universities, often feel greatly aggrieved. University librarians and bursars are angered by the expense of paying for access to the legacy, which is an expense that cannot be avoided by any institution of higher education that supports research. The academic staff are angered by the manner in which the commercial journals presume upon their time and exploit their labour without offering any financial recompense.
The free services of academics consist not only in the supply of articles for publication but also in their services as editors and referees. In recent times, authors of technical papers have been rendering another valuable service; that is, typesetting the articles. Nowadays, the authors can typeset their own papers in the universally recognised languages of TeX and LaTeX, which can be converted to the publisher’s formats with few, if any, editorial or typographical intercessions.
The outcome is to relieve the authors of unnecessary drudgery and to enhance the profitability of the journals. If anyone wonders why this unpaid labour is supplied so plentifully, the answer is that the achievement of publication is essential to the advancement of an academic career. The journals, therefore, have a captive workforce. The commercial journals have been acutely aware of the threat that digital technology in the hands of its clients can pose to their enterprises and they have taken steps vigorously to protect their interests.
Their greatest fear surely is that the workforce might decide to serve its own interests by publishing rival journals that do not presume to profit financially from their labours. Such journals already are in existence and they are becoming quite numerous. In the main, they dispense entirely with printed volumes and rely on the web freely to disseminate their output. Already, many of these electronic journals have acquired a status and an esteem that is commensurate with that of many of the time-honoured journals. For that reason, they attract submissions of the highest quality.
In my perception, such journals offer a paradigm of open access. There is open access on both sides. Authors can submit their articles without paying submission fees. Access is also free to any reader. I suggest that there is nothing to prevent the national research councils from taking the unprecedented step of providing small subventions to such journals. The monopoly of commercial journals is under threat from such developments. Also, their monopoly over the legacy of journals is only partial. Many of the journals owned by learned societies have contributed their back issues to JSTOR, which, ostensibly, has impeccable charitable motives.
It is against that backdrop that we must scrutinise the recommendations of the Finch report. Before doing so, we should note that the membership of the committee that produced the report contained representatives from the big commercial academic publishers. Surely, it was they who cautioned that the development of open access should not be allowed to destabilise what, in their estimation, is most valuable in the research communications ecosystem; namely, their own position.
From the committee’s deliberations has emerged a recommendation in favour of the so-called gold option. As we know, this proposes that articles should be made available immediately and free of charge in return for a payment by an author, or by their institution, to the publisher of an article processing charge, an APC. An estimate of £1,750 per article has been mooted, which would provide a very generous income to the commercial publishers, seemingly of an assured nature. Where would this money come from? It is blithely assumed that it would be provided by research councils or by the author’s institution, using a block grant given for the purpose. This would surely deny authors access to journals unless they were in receipt of a research grant, or unless they could prevail upon their institution to support their submission. It would give those institutions powerful control over what has hitherto been regarded as the province of an essential academic freedom: the freedom of authors to submit their articles whenever and wherever they choose.
Clearly, not all journals would merit the submission fee, or APC. Journals would be divided into those that were sanctioned to receive the APC and those that were denied it. It would be difficult to start a new journal, because the APC would not be granted before it had established its reputation. The commercial suppliers of established journals would come to occupy impregnable positions, and they would become even more profitable. This is a nightmare scenario, and I hope it will never materialise. Now is the time to stop the prospect of any such eventuality. However, it is doubtful whether the UK has sufficient leverage over the international market to influence it to any great extent. I hope therefore that this will never materialise.
Baroness Sharp of Guildford
My Lords, I am a member of the Science and Technology Committee and participated in this short inquiry. I would like to thank our chairman, the noble Lord, Lord Krebs, for initiating this inquiry, which I think has been extremely timely. As the noble Earl, Lord Selborne, mentioned, we have already seen some reaction, both from the research councils and from HEFCE, regarding the clarification of their own positions. They have made it clearer that they regard the process of moving to open access as a journey rather than as a one-off, rather disruptive movement.
The report of the working group chaired by Dame Janet Finch was extremely good. It emphasised to a very considerable degree this process of a journey. It noted that it would take time for the world to move towards open access. It said that there was already a very considerable momentum behind that movement, particularly in the world of science journals, but it would be a journey over time. During that period—and indeed for a very considerable time to come—some journals would be published under the gold open-access route and some published under the green open-access route. Under that route, after a period of time, the articles would be placed in a repository and would become available for open access, but with the requirement of an embargo period. Some journals would operate under a hybrid scheme, whereby you could pay upfront to access journals through open access, but the journal would also publish articles for which there was no upfront payment. Those would be put behind a paywall and would be accessible only behind that paywall.
This would mean that, at least in the short run and probably over some period of time, universities would be confronted by a situation in which their libraries would have to continue purchasing the journals concerned as not everybody would be able to use the open access system. Universities would have to pay for their own researchers to make the upfront payment—partly through the research councils or through funders such as Wellcome—if they decided on full gold open access. At the same time they would also have to pay to purchase the journals.
We should bear in mind that the UK publishes only some 6% of the world’s scientific output. Ninety-four per cent of the world’s scientific output comes from other countries. The arguments for gold open access, which in many senses is the best of all worlds—we all acknowledge that it is a very good route to go down—are somewhat similar to the arguments for free trade. If we all indulge in free trade there are very considerable benefits to everybody concerned. On the other hand, if a country moves to open up its markets without other countries also pursuing a free-trade route, then essentially its markets are open to competition but other countries retain protectionism and do not open up their markets. That is a very unsatisfactory situation. It is why the process of opening up towards free trade has been a very long one involving multinational negotiation. The rounds under the General Agreement on Tariffs and Trade and subsequently under WTO took a very long time. Countries sat around the table and essentially traded off particular aspects.
That is not fully taking place in the world of open access. Which way journals are going and which way countries are going is rather arbitrary. As a result of this, we in Britain will be in danger if we move too fast. It is quite clear that the initiative came from BIS. The Minister for Universities and Science, David Willetts, was very anxious that we should be the first mover here and that we should to some extent use this to try to kick-start the multinational process that is moving but needs to be accelerated. There is a danger that we will open up our science to access from the rest of the world without the rest of the world opening up theirs to us.
There is a need to consider the time taken here. There is also a need to monitor what is happening and how far the rest of the world is moving. The diagram on page 13 of our report shows that most countries are very much still using the green-gold hybrid system. More countries are going down the green route than the gold route. It is not yet clear that the general move will be towards gold open access. Green open access is a very real option and it is an alternative. There is therefore a need to monitor what other countries do over the course of time and a need for some form of cost benefit analysis.
Partly because I come from a social science background, I have been extremely concerned about the position of the learned societies. They have faced difficulties in relation to the process, both in terms of time and in terms of the preference for gold open access. It is quite clear that many of these societies exist by subscription, but 80% or 90% of their subscriptions come from overseas subscribers. Regarding access to these journal articles without having to pay a subscription, in the social sciences and the humanities you very often have to wait two years for an article to be published. To have to wait another 12 months for others to access it means very little. The consequence is that for many of these learned societies the whole process of publication is not viable. This raises very important issues which need to be considered. As I say, I am delighted with the reaction we have already had from the research councils and from HEFCE. I look forward to seeing further moves in this direction.
Lord Broers
My Lords, I too congratulate the noble Lord, Lord Krebs, on gaining this debate. I compliment him on his excellent opening speech, which so clearly explained the issues and the reasoning behind our recommendations. I also compliment Christopher Atkinson, our clerk, who once again provided highly professional support to the committee on this inquiry, which was mounted in a very short time. I join other members of the committee in supporting the recommendations of our report, especially that Research Councils UK should include reference to the five-year implementation phase in its requirements documents so that everyone is aware that it is not asking for a precipitous implementation of its rules. I also feel that the long-term aim of migrating entirely to gold access, as has been mentioned by other noble Lords, needs continually to be reviewed. I was particularly troubled by the fact that many of the most important US journals with which I am familiar, and in which I have published, such as Science and the journals of the American Institute of Physics, the American Physical Society and the IEEE, do not seem to have plans to offer gold access. It would significantly reduce the impact of some of our most important research if they were not available to our researchers in engineering and the physical sciences. I was, however, reassured by David Willetts’s statement that,
“we will be reviewing implementation in 2014 and that will give us flexibility on timing and everything else”.
I wish now, with your Lordships’ indulgence, to talk about something that is not directly a part of this report. It is the complex situation encountered when considering when and how to publish new science that contains ideas that have potential for commercial application. This was not something we considered, although the noble Lord, Lord Wade, and I asked questions of our witnesses about whether the move to open access would have any effect on patents and commercialisation. We were told that this was a separate matter. This was a correct answer in the context of this inquiry, but this matter is none the less of great importance to the UK economy. Over the past few decades there has been a steady shift of research, as opposed to development—unfortunately, we almost universally elide these two—from industry to universities, with a consequent increase in expectation about the potential commercialisation of ideas emerging from academic research. Much of our applied science and engineering research addresses science that is of interest because it has the potential of benefiting mankind through commercial development. Indeed, on examining the 36 units of assessment in the Research Excellence Framework, I identified at least 15 units in which patents might well be one of the outputs.
It is not always the case that early and wide access to research results is good for our economy. One of our witnesses, Professor Walmsley of Oxford University, referred to this issue, saying:
“Our policies internally at Oxford are to try to capture that IP in a manner that is consistent with UK law—i.e. getting the IP protected before one comes out and publishes”.
I am not aware, however, that this is widely practised and can find no advice on this issue in the description and guidance literature for the Research Excellence Framework. Patents are of course recognised output for the REF, and it is stated that all forms of research will be assessed on a fair and equal basis, but there is always a tension between the wish to publish new results and the need to wait until potentially valuable intellectual property has been protected. In fact, the incentives for academic researchers seem strongly biased towards publishing as early and as widely as possible. I am sure that any formal requirement to ensure that IP was protected before publication was approved would be controversial, as it would be regarded as a constraint on academic freedom. To counter this in industry, many leading technology companies, at least in my experience in the US, directly reward employees for their IP output to compensate them for the loss, for a time, of recognition in the wider world for their advances. I have no specific recommendations to make on this issue, but it is a topic that should be considered in depth by the funding councils, the research councils and by vice-chancellors, with the aim of improving our ability to secure the economic potential of our academic research before we share all our ideas with the entire world over the internet. There has never been a time when an increase in our ability to commercialise academic research would be of more benefit to the nation.
Lord Rees of Ludlow
My Lords, in the early days of the Royal Society, its secretary, Henry Oldenburg, started Philosophical Transactions. This was the world's first scientific journal. It is still going and was the prototype for the tens of thousands of refereed journals that exist today.
Printed academic journals were a real advance in the 1660s and have served us for 300 years, but they are now surely anachronistic: the legacies of Gutenberg and Oldenburg are not optimal in the age of Zuckerberg. Online journals offer vastly greater ease in tracking down published research and accessing all research resources. It is only with the advent of the internet that open access has become feasible.
Among academics, the open access campaign is pushing at an open door. Researchers like their work to be freely available to everyone, including those with no institutional affiliation, but achieving this goal is a bigger challenge in some disciplines than in others. My own field, physics and astronomy, is more or less there already. That is because of a well organised web archive started in the 1990s by Paul Ginsparg in the US. I look at this archive every day and far less often at actual journals. However, we still value the peer review provided by “traditional” journals and want our papers to appear in one as well—for accreditation reasons rather than for increasing the number of readers. In our field, the journals survive. Theoretical physicists have, in effect, green open access with a zero embargo period. If the paper is published, the journal version appears and remains on the archive. However, I realise that other disciplines are less lucky, with a real gap between current practice and the eventual goal. It is rather sad that, thanks to Paul Ginsparg, the educated public can read everything on superstring theory, which will not enlighten them much, but cannot freely access all comprehensible writings in the humanities.
There is a global move towards open access. Indeed, just last Friday, a paper from Dr John Holdren, President Obama’s science adviser, enjoined all government agencies to come up with proposals to implement enhanced open access to the results of all the research that they fund. However, what is not clear is whether the so-called “gold” route will be widely followed globally. Let us remember that we publish less than 10% of the world’s research. Unless other countries follow the gold route, we will be paying twice: foreign scientists will benefit from our decision but we will not get a reciprocal benefit. That is why it is important that BIS should assess the value for money and that RCUK and HEFCE should keep the situation under review in an international context.
The open access issue is in any case being overtaken by new media developments. Traditional journals, even in electronic form, are no longer the sole mode of dissemination of scientific results. Blogs and wikis are playing a growing role. It is not obvious that the traditional scientific paper or monograph will, or should, continue as the prime vehicle for communicating science and codifying the consensus.
Even the accreditation role of journals may one day be trumped. Learned societies or groups of universities could organise a refereeing or quality control system which could be grafted on to a web archive and could do this more cheaply than traditional publishers—certainly, than commercial publishers.
What needs to be communicated and accessed is no longer just written texts. Huge data sets now exist in physics, genetics, climate science and other areas. Data mining and mashing will offer new routes to discoveries. One would hope that these data can be accessed and downloaded anywhere by anyone.
Despite the widespread support for open access in academia, academia displays undue rigidity in some respects which plays into the hands of commercial publishers. Surely it is far from optimal that the career prospects of young academics depend on a single monograph or on the bibliometric scores of a few papers. It is even worse if there is an “institutionalised” pecking order of journals, with a frustrating and morale-sapping delay while young authors struggle for acceptance in a top-ranked journal. One of the most deplorable remarks that I heard recently was from a professor responding to the question, “How do you decide whether a paper is good?”, with the reply, “By the journal it’s in”.
Even if our committee’s recommendations are taken into account, implementation of the Finch report will still surely lead to a lot of petty accounting and administration in universities, where the funds made available will cover the cost of gold access for only 10% of Russell Group publications, and petty administration within RCUK and HEFCE, where someone is going to have to monitor the embargo policies and APCs of thousands of journals and deal with the issues when there are foreign co-authors, or when the journal of choice is a foreign one that does not meet our access criteria.
The move is superfluous in subjects like mine. It may have unintended downsides in the very different context of the humanities, as the British Academy in particular has been concerned about. I personally doubt that these elaborate regulations will actually allow new ideas to percolate more freely than would have happened anyway, given the pressures from authors and the rapidly changing IT scene. However, as the noble Lord, Lord Krebs, has explained, our report took the Finch committee’s recommendations as its starting point, and we should therefore welcome the positive response that it has elicited from those charged with implementing its intricacies.
Lord Stevenson of Balmacara
My Lords, I thank the noble Lord, Lord Krebs, for securing this debate, and all noble Lords for the contributions that they have made. This has been a very high-quality discussion.
In previous debates of this type, I have complained that often the good work done by your Lordships’ House in terms of its committees has often been spoilt by the long delays between the publication of their reports and the time that we have been allocated in this Chamber in order to discuss them. I was therefore rather startled to read that this report was published only on 22 February 2013, less than one week ago, and I am puzzled by that. I do not expect an answer from the Minister because I am sure that it is not in his hands, but while I am obviously delighted that we are absolutely at the sharp end regarding this report and its impact—rightly so, because it is very important—it is slightly odd that it seems to have jumped the queue in front of other things that we might have been discussing. Nevertheless, we are where we are.
We have all benefited from the committee’s work in this area in terms of what we have heard today, which has raised issues that are at the very heart of the information society, and in particular has also drawn attention to the interesting tension between the business model currently used for academic publishing, particularly for journals, and the aspirations behind open access that were reflected in the Finch review.
We have also learnt during the debate that there are still some queries about whether the Finch review is the last word in this area; I do not think it is. As the noble Lord, Lord Rees, said, in some senses this must be a transitional moment because so much of what is being talked about seems to be pushing at an open door.
Nevertheless, we are left with some questions for the Government to pick up, particularly with regard to the recommendations and conclusions at the end of the report, starting on page 19, some of which need to be put to the Minister in the hope that he will respond positively—in the first place, the need to ensure the clarification of RCUK’s policies, given the work of the committee, particularly the changes to policy guidance to ensure that this is keeping them going on that. I look forward to hearing what progress has been made there.
The report recommends that there is a need to monitor international developments carefully. We know that they approach barriers right across the globe; while it is obviously moving well in this country, it will be successful only to the extent to which we are able to get progress across the other countries with open access policies. Again, are the Government doing all that they can to co-ordinate with other countries what those policies are?
Mention has been made of the pressure that the changes being discussed will place on the learned societies, which we obviously need to keep a close and careful eye on. I would be grateful if the Minister could update us on what stage the discussions have reached on that point.
As I said, this is perhaps a transitional moment but it is also a phased and developed plan and there is a need to commit to review. The recommendations in the report are for a further review in 2016 and then an end-of-stage assessment in 2018. I would be grateful if the Minister could explain what will take place to put these regulations into effect.
There are two points that the Government themselves need to take control over. The first is the full cost-benefit analysis of the open access policy, particularly given the current economic climate. This needs to be brought forward, and I would be grateful if the Minister could update us on that. The other point, particularly in relation to the history of what we have heard about today, is that there was confusion and different perceptions about what RCUK was doing in terms of its consultation process, and we would be grateful if the Minister could comment on that and what progress has been made in making sure that the lessons are learnt about that arrangement.
Lord Popat
My Lords, I thank all noble Lords who have spoken in today’s debate. This House always benefits from having Peers who can speak with experience about their fields of expertise, and it has been a great privilege to listen to the contributions today from those with such detailed knowledge of our research and academic sectors. I will do my best to answer all the points raised but if I do not have time to cover any specific points, I will ensure that I will write to noble Lords.
The Government’s open access policy for publicly funded published research forms part of the Government’s transparency agenda. It is important that taxpayers should have access to the research that they have funded. Innovation and economic growth stand to benefit if greater utilisation can be made of the results of this research.
The Government’s innovation and research strategy of December 2011 referred to our overarching commitment to transparency and open data. The Government are committed to ensuring that publicly funded published research should be accessible free of charge. Free and open access potentially offers significant social and economic benefits. By spreading knowledge created by the UK’s science base, we will raise the prestige and productivity of UK research and facilitate its even greater use to beneficial effect.
To expand access in such a way that the policy implications would be well understood, the Government facilitated an independent group of stakeholders chaired by Dame Janet Finch. The Finch group concluded in June 2012 that a mixed economy for open access was most appropriate, but with the policy direction set towards “gold open access”. Gold requires payment, by the researcher, of an up-front article processing charge, with the advantage of making the information freely available immediately to all users and without restriction of use. The Government’s open access policy has a strong preference for gold open access but, in keeping with the mixed economy recommended by the Finch group, also accepts “green open access”, which allows the publisher to charge the user a subscription or access fee to reach the published research during an embargo period.
My right honourable friend the Minister of State for Universities and Science recently discussed the Government’s open access policy with the noble Lord, Lord Krebs, during his Science and Technology Committee’s recent inquiry into open access. The committee’s report, published on 22 February, makes clear that it accepted that the Government are committed to the policy reflected in the Finch group’s recommendations. The committee did not challenge the conclusions of the Finch group or the Government’s open access policy. I pay tribute to the noble Lord, Lord Krebs, for his keen interest and contribution in progressing this important matter.
The Government have also written to the inquiry being held by the Business, Innovation and Skills Committee in another place. The Government have made clear that open access entails a journey, not a step change. Higher education institutions and their researchers will continue to be free to choose their research publication channel, but choice brings responsibility. They will be expected to responsibly strive to comply with RCUK’s stated open access policy—that is, preferably to use gold, or alternatively green, with embargo periods of no more than six or 12 months, for science and technology subjects and arts and humanities subjects respectively.
The policy framework for this transitional process, or journey, is as published by the Government in response to the Finch report and illustrated in the decision tree on the Publishers Association website. This illustrates how longer embargo periods of 12 to 24 months are acceptable for researchers when funds to pay the necessary article processing charges for gold open access are not available to the researcher.
Researchers will therefore be expected, when possible, to publish in journals that comply with RCUK’s policy. As I have said, however, they will remain free to choose which publication best serves their interests and requirements. This allows for a robust policy but one with the necessary degree of flexibility to address the concerns raised by the British Academy and others. The Government’s policy will accommodate the needs of different researchers and their respective disciplines.
Government’s assessment of the implications of RCUK’s open access policy has therefore considered its impact on stakeholders, including researchers and publishers alike, as represented in the Finch group. Indeed, the Government’s open access policy for publicly funded research is more responsive to the needs of all stakeholders than the equivalent policies being proposed in Europe and, as announced on 22 February 2013, by the Office of Science and Technology Policy in the United States. By making funding available through the research councils for gold open access and simultaneously allowing green as an alternative, with longer embargo periods when there is no funding available to the researcher for gold, the Government’s policy is sustainable and well balanced.
A well structured policy is important since open access is expected to strengthen direct and spillover benefits from research to stimulate economic growth. Publicly funded research can lead to important innovations. The internet and global positioning satellite technology both stem from publicly funded research. They now contribute to the global economy and enhance the quality of our lives, producing a significant return on the public investment first made.
By improving access to the results of research, open access could further enhance this process, as observed for the publicly funded human genome programme. The success of the human genome programme—in which a $3.8 billion investment drove $796 billion in economic impact and created 310,000 jobs—was partly attributed to the emphasis placed on open access. We now have an even greater opportunity, by exploiting the internet itself, to further amplify the benefits of publicly funded research. By publishing research papers in an open access way, we allow computers to search for results and, particularly for gold open access, to apply those findings without restriction. This improves the productivity of the science base.
Lord Krebs
My Lords, I thank the Minister for his very helpful response. However, will he confirm that RCUK will revise its policy and guidance statement to reflect what he has just said—namely that the research councils will follow the decision tree which has been adopted by BIS and was produced originally by the Publishers Association? The Minister said that that was the Government’s position but I want to be clear that RCUK is following that and is revising its guidelines and policy statement.
Lord Popat
I thank the noble Lord for that question. To the best of the Government’s knowledge, RCUK has accepted the decision tree. However, I will write to the noble Lord once we have the paperwork on the implementation, which I believe will be by the end of this month.
The Finch group’s recommendations achieved a balance between meeting the Government’s transparency agenda objective, preserving the integrity of the peer review process for published research and effecting change in a sustainable way. Even so, a preference for gold access was recognised by the Finch group to have a modest cost. It concluded that there could be a transitional cost of some £50 million to £60 million per annum.
The Government have accepted that the cost of publication is a legitimate cost of research. For a fixed science budget, gold access represents an opportunity cost to some in the science base for research forgone. The Government needed to understand the implication of this and their own independent economic analysis, as already submitted to another place, indicated a cost of some £50 million per annum, or 1% of the science base budget of £4.6 billion per annum.
According to the World Economic Forum, UK universities are second only to Switzerland in terms of university-industry collaboration. UK universities are effectively translating the results of research to business. We can witness how important this is when companies such as Tata make substantial inward investments in the UK’s world-class automotive industry. Companies such as Jaguar Land Rover benefit from their links to the UK’s science base, as exemplified by their collaborative research agreement with the Warwick Manufacturing Group of the noble Lord, Lord Bhattacharyya. Even so, publicly funded research is often difficult to find and expensive to access. This can defeat the original purpose of taxpayer-funded academic research. It limits understanding and innovation. The Government’s open access policy, coupled with the new Gateway to Research being developed by the research councils to directly link small businesses to research results and the people behind them, will open up a new age in the translation of research for innovation. The UK’s economy and its people—the taxpayers who fund research—will be the beneficiaries.
I will now address a number of questions raised by noble Lords. As I said earlier, the decision tree is accepted by RCUK. We accept the view expressed by the noble Lord, Lord Krebs, that it is a rapid change, with 2013 being the start of the process. However, it is a journey, not an overnight change. It is feasible to implement policy from 2013 since it is the start of the process of transition over the next five years. All research suggests that it is not disruptive change, but rather reasonable change. Within this five-year period, we will see what we can do to accommodate the concerns of the stakeholders if any difficulties arise in the transition process. Therefore, the noble Lord, Lord Krebs, can rest assured that we will look into and address the concerns of the stakeholders.
The noble Viscount, Lord Hanworth, mentioned a cost of £1,750. This is a broadly based average figure. He was not in favour of what he implied was a monopolistic position. However, the reality is exactly the opposite, as confirmed by the noble Baroness, Lady Sharp. This is very much like free trade. We are taking the lead in this matter compared with our European and American partners.
I may not have covered a number of questions raised by noble Lords but they can rest assured that I will write to them. We will make sure that this policy is implemented as smoothly as possible. Obviously, that process will be reviewed and we will definitely address stakeholders’ concerns.
The noble Baroness, Lady Sharp, talked about other countries. Europe is moving to mandatory open access in the EU framework. The Americans are also now working on this subject. They want to support free access and make sure that free access publicly funded research is fully utilised and benefits the people of the United States.
I hope that I have covered some of the issues raised by the noble Lord, Lord Krebs, and other noble Lords. I will certainly look into this again and make sure that responses are provided as quickly as possible.
Succession to the Crown Bill
(11 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
“Royal marriages: heirs of the body
(1) A marriage is a Royal Marriage for the purposes of establishing the claim of any person to succeed to the Crown as heir to the body if that Marriage is a marriage between a man and a woman.
(2) A person is disqualified from succeeding to the Crown as an heir to the body of a Royal Marriage if they are not the offspring of both parties to that Marriage.
(3) This section does not apply in any case where both Houses of Parliament pass a resolution to the effect that it shall not apply.”
Lord True
My Lords, I apologise for not having contributed at Second Reading. I had put my name down to speak but I was unavoidably delayed in coming to the House and rang to withdraw my name. However, I did listen to all the very thoughtful debate that I was able to. A core concern from noble Lords on either side of the argument was that succession to the Crown should be removed from controversy. I share that view and it is in that spirit alone that I have raised the issues in this amendment which were only momentarily touched on in another place.
I must also apologise for the lateness in tabling the amendment. This is because I have been involved in discussions with the Public Bill Office until yesterday morning about the most appropriate form of raising this matter. In some respects, the questions raised here and in Clause 2 are the same and that is whether there is an unintended risk, if certain issues are not addressed with clarity and foresight now, of future controversy over the succession and even of a disastrous unintended consequence of dividing the Queen’s various realms.
Two modern social developments lie behind this issue. The first is the techniques and ethics of the procreation of children and social attitudes towards them which have been fast-changing, still are changing and will continue to change. Secondly, at some time in the future a monarch and his or her consort may wish, where no other course is available to them, to seek to procure a child by use of a donor. That child, the first of whom would have been the heir if born naturally, would become a much loved member of the Royal Family and one whom many might wish to see as their monarch. There are clearly seeds of controversy there. The second issue is that it seems likely that the Parliament of the United Kingdom, although not those of all Her Majesty’s realms, will very shortly legislate to allow same-sex marriage. These measures, taken together, will alter for all time the concept of what a family, including, potentially, a Royal Family, could be.
I must make it clear that I take no view on same-sex marriage for the purpose of this issue. In case anyone should think there is an ulterior motive, I should make it clear that I do not believe that all the consequences of that momentous social change have been thought through and I would not have been inclined to take the step without more notice to the public and wider and more open consultation. Be that as it may, I did not want to raise the issue of the Crown, in any circumstances, in our debates on the same-sex marriage Bill, lest it be seen as an attempt to use the monarchy as a device to debate that Bill. That would be deplorable: I would not and will not take such a step. The issue is, none the less, fast upon us. As we are legislating in this Bill to change the laws on royal marriage and succession, it would be wise to reflect on the potential impact on the Bill also now before Parliament on same-sex marriage and how those two Bills might, in future, interrelate.
The governing phrase as to the conveyance of the right of succession in the Bill of Rights, which is reused in Section 1 of the Act of Settlement and is left unchanged by this legislation is that he or she be the “heir of the body” of the Electress Sophia of Hanover and her successors, being Protestants—which we will discuss later. There is surely scope for contentious argument, if not litigation, over what, in the new circumstances of the 21st century, is the definition of those ancient words “heir of the body”. That phrase does not require that the heir should be the heir of two specific bodies. Indeed, the originating Act of Settlement includes reference to the body of a monarch and a prospective monarch alone. What then if, in the context of either a different or a same-sex marriage—the question is immaterial—the sperm of a King is used to procure a child of his body on a donor woman or, even more directly, a child is born from the body of a regnant Queen by use of a donor? Some might ask whether the child is the heir of the body of that regnant Queen. This is the only method by which an heir of the body could be procured by a same-sex married monarch, and the human impulse of such a loving couple may well be to seek to procure such an heir. Will some not see that child as a legitimate heir of the monarch’s body if that marriage has been accepted by the British people? Might that child not feel that he or she has, in turn, a human right to expect to succeed to his or her mother or father?
I am grateful for the correspondence I have had with my right honourable friend the Attorney-General on this subject. It is not for me to place his opinion before the House but, in essence, I am reminded that the laws governing succession require that the descendant be the natural born child of a husband and wife, that they have been enshrined in our constitution for generations and that they have become part of our common law. Indeed so, but we are about to legislate, specifically and deliberately, to change the law of marriage in this realm. As we are often reminded, what is long enshrined in the common law of England is not necessarily proof against legal challenge, not least in the field of equalities and human rights. I would like to be assured that the common law will continue to be an adequate bulwark against division and controversy.
It has also been put to me that Section 48(7) of the Human Fertilisation and Embryology Act 2008 is worth noting. This Act states that nothing in the Act that relates to parenthood,
“affects the succession to any dignity or title of honour or renders any person capable of succeeding to or transmitting a right to succeed to any such dignity or title”.
It may well be that the Crown is encompassed within that definition as a dignity, and the word “dignity” does indeed occur in the 1700 Act. However, it is not so explicitly stated and certainly not in a way that is clear to tens of millions of non-lawyers who are subjects of the Crown. The public rightly see the Crown as separate, distinct, beyond and above. It is, indeed, the fount of all title or dignity of honour. It would be wise to put it beyond all doubt or challenge that the succession to the Crown is engaged by the Human Fertilisation and Embryology Act. Furthermore, are we certain that it is not arguable in a court, in default of a statement to the contrary, that the UK Parliament had decided, in legislating to redefine marriage, to alter the nature of marriage completely and thus that, in the context of a fully lawful same-sex royal marriage, the definition of—I return to the words—an heir of the body in the Act of Settlement might constructively be widened by the courts from the hitherto understood common law definition as it applies to the UK Crown. It might be wise to put the fact that Parliament had no such intention—if it does, indeed, have no such intention—beyond any doubt.
My right honourable friend the Attorney-General and my noble and learned friend on the Front Bench, who has been saying this again today, have argued that it would not be appropriate to go beyond what was expressly agreed by the realm Heads of Government in Perth. I accept that argument but I am not arguing that we should go beyond that: quite the reverse. I am simply suggesting that we should put in the clearest possible stops and stays to ensure that we can never, in this realm alone, be taken by legal process and challenge, rather than deliberate decision of Parliament, beyond what was agreed and where other realms might wish to go.
Our Queen is monarch of 16 realms, in not all of which is the view embodied in the legislation on marriage now before Parliament shared or likely to be shared. In Canada, gay marriage is already legal, the Australian Parliament has recently rejected it. A divergent view on the legitimacy of a royal marriage might, and a divergent view on the legitimacy of an heir would, break the union of realms. In 1837, the dominions of the Crown were irretrievably separated because of differing rules on the succession. Hanover did not allow female succession, so Queen Victoria could not rule Hanover, which passed to her uncle. It seems inherently unlikely that in the present diverse evolution of social policy in the Queen’s realms that any progeny of a same-sex marriage—even same-sex marriage itself—would be accepted in at least some of the existing kingdoms. Is it not important, therefore, that those realms, at this time of change both in the rules of succession and in the UK in the law of marriage, should all be held explicitly to a common understanding of what a royal marriage and, most importantly, an heir of the body means for the purposes of succession?
Baroness Hayter of Kentish Town
My Lords, I will be brief. I am sure that the Minister will give good answers to the questions raised. Perhaps he may also, for my clarification, let us know about the implications for adoption in this. I am sure that it is in the noble and learned Lord’s briefing. We agree that the Bill is to change the rules of succession as regards gender and the ability to marry someone of the Catholic faith, rather than open up and perhaps decide on interesting issues. In the words of the noble Lord, Lord True, this issue is remote. We are talking about some years ahead, and perhaps we might leave the matter to our heirs and successors to decide.
Lord Trefgarne
My Lords, I share some of the concerns expressed by my noble friend Lord True. The plain fact is that the single-sex marriage legislation that is on its way through Parliament appears to be generating some unlooked-for consequences—and this issue may well be one of them. I hope that my noble and learned friend can reassure us.
Lord Elton
My Lords, I observe that this matter is outwith the terms of the Long Title. However, the Title has been postponed and it is possible to amend it, if necessary.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
I thank my noble friend Lord True for the amendment and for the sensitive and thoughtful way in which he moved it and presented his concerns. Indeed, I seek to reassure him that the amendment is unnecessary.
Subsections (1) and (2) of the proposed new clause state the current position in respect of heirs of the body and adoption or artificial reproduction. I recognise that my noble friend indicated that he was not making any claims as to the drafting of the amendment but he said something that I have previously said—it is important that the succession is removed from controversy and there should be certainty. Subsection (3) could be an opportunity for some controversy if a case had to come before both Houses of Parliament. However, the spirit in which my noble friend moved the amendment was to try to seek some clarity on this matter.
The laws governing succession to the Crown that require that the descendant be the natural-born child of a husband and wife have been enshrined in our constitution for generations. Children who have been adopted may not succeed to the Throne, whether their new parents are of opposite sexes or the same sex. As my noble friend said, it is immaterial; indeed, even without the Bill, the issues he raised are pertinent. I repeat that children who have been adopted may not succeed to the Throne, irrespective of whether the parents are of opposite sexes or the same sex.
It was never our intention to codify all aspects of succession to the Throne in the Bill. Rather, as the noble Baroness, Lady Hayter, indicated, the agreement reached among the realms was quite specifically limited to removing the male bias and ending a specific discrimination against Roman Catholics, and it is not appropriate that we go beyond what was expressly agreed.
Although the Adoption Act 1976 and the Family Law Reform Act 1987 refer only to the succession of titles being left unchanged by their reforms, the Lord Chancellor stated at Second Reading of the Bill that became the 1987 Act that there was no intention to alter the rules on the descent of the Crown. It is also worth noting, as my noble friend observed, that the Human Fertilisation and Embryology Act 2008 states that nothing in the Act,
“affects succession to any dignity or title”,
or,
“renders any person capable of succeeding to or transmitting a right to succeed to any such dignity or title”.
The Bill will maintain the position under the Adoption Act and the Human Fertilisation and Embryology Act 2008 referred to above. It will not change the way the Crown, or titles or dignities, descend. We also consider it to be unnecessary to define marriage for the purposes of this proposed new clause as set out in subsection (1). Only a natural-born child of a husband and wife can succeed to the Throne. That is quite clear. I have tried to keep my response brief and concise, and I hope that it provides the reassurance that my noble friend seeks and has properly raised. I invite my noble friend to withdraw the amendment.
Lord Elton
My Lords, I hope that my noble and learned friend on the Front Bench will take time to consider this matter between now and Report, and that my noble friend will also occupy that time. The answer that my noble and learned friend has given does not entirely cover everything because becoming Queen or King is rather more than receiving a dignity or title. The term used in the Bill is “possessing” the Crown, which is different from inheriting a title, and that is surely what we are concerned about.
Lord Wallace of Tankerness
We will certainly reflect on this matter and I can assure my noble friend that considerable consideration has been given to it. However, I take the points that he and my noble friend Lord True made and will give further consideration to them. Nevertheless, I hope that I clearly indicated our view with regard to an “heir of the body”.
Lord Elton
I accept that that is the current position. I hope that we shall be reassured if it remains the same on Report.
Lord True
My Lords, I am grateful to those who have participated in this short debate and apologise for the length of my opening remarks. However, this is an issue of profound potential importance, not only as it affects our country but the Queen’s realms as a whole. It is inherent in the Perth agreement that we have an acquis agreed by all the realms, and no door should be left open to the crawling peg of equalities, rights and other challenge by a potential heir who is excluded from the Crown—as they feel, unfairly—against their rights by the existing deposit of the law.
I am not a lawyer, but I am concerned as an historian that the base of the law and the phrase “heir of the body” is a very ancient phrase which is buttressed only by the common law and the doubtful cover, in my view, of the clause from the Human Fertilisation and Embryology Act that I cited. I agree with the interpretation of my noble friend Lord Elton that that Act may be deficient in terms of providing protection for the Crown from the kind of challenge that might arise. My right honourable friend the Attorney-General made this point to me also, but I am afraid that I do not find full comfort in the remarks made by the Lord Chancellor at a time when the developments in the technology and science of birth and reproduction, and certainly the developments in the nature of the law of marriage, were far distant in the future and not necessarily conceived of. I say to the noble Baroness that this might be remote, but perhaps people thought before 1936 that certain things might be remote. It is the duty of Parliament, when legislating on something as grave as the succession to the Crown which Her Majesty holds on our behalf, to think about the future. It may, of course, be no more remote than that the child whom we all so fondly expect may be born gay.
I will return to the matter and would be grateful for further discussion with my noble and learned friend on the Front Bench to see if we cannot find a way of clarifying this. I am not going to go beyond the Perth agreement, but I think it is important that we have “awful clarity”—in the old language—on this very great matter. With that, I beg leave to withdraw the amendment.
Lord Cormack
Lord Cormack
My Lords, with Clause 2 we come to the kernel of the Bill. As your Lordships will know, that clause at the moment reads:
“A person is not disqualified from succeeding to the Crown or from possessing it as a result of marrying a person of the Roman Catholic faith”.
It is a simple, unambiguous statement, but it leaves a lot of questions unanswered. These are questions of profound significance to our constitution. Therefore, I am going to suggest that we add the amendment that I have tabled, which continues that clause by saying,
“provided that agreement has been reached with the Vatican that any children of the union can be brought up as Anglicans”.
We have talked recently about clarity; my noble friend Lord True talked about it in his amendment. We have also talked about certainty. Like my noble friend Lord True, I was prevented from taking part in the Second Reading debate. I was sorry that I could not listen to much of the debate, but I was utterly committed to an event that took me away for some two or three hours—otherwise, I would have tried to air this subject then. That is why I put down an amendment which I hope is helpful to your Lordships’ House and will improve the Bill.
We have in England an established church, of which the Queen is the Supreme Governor. That is a fact and it is a constitutional fact of profound significance. I do not in any way wish to discriminate against any person of any faith, but our constitution rests on the fact that the monarch is the Supreme Governor of the established church. We have an established church; we have bishops who sit in this House and I am delighted to see the right reverend Prelate the Bishop of Derby here this afternoon. I hope that he will be able to contribute to this debate. We have an established church, which means that every man, woman and child in England has the right to the services of that church. Every one of us in England lives in a diocese; every one of us lives in a parish and every one of us is entitled to the services of the parish priest, the diocesan bishop and to the other appointed dignitaries. Every week, those of us who are practising Anglicans pray for the Queen as our Supreme Governor.
Lord Deben
My Lords, I associate myself with the final few words of my noble friend Lord Cormack about the nature of Her Majesty and the way in which she has discharged her duties. Not only has it been remarkable but it has been so remarkable that it may have blinded us to the nature of the discussion that we are having today. In the past, the Supreme Governor of the Church of England was a Calvinist and a Lutheran. The only reason they were able so to be was that they were prepared to say, of their own volition, that although they were Calvinist or Lutheran, for this purpose they would be a member of the Church of England. I make no comment on them; I merely say that it was possible. Indeed, before the Act of Supremacy, James II was both a Catholic and Supreme Governor of the Church of England. Therefore, the idea that this is impossible is factually wrong. I start with that. I do not think that my noble friend needs to interrupt me because he will have other things about which to interrupt me when I get to them.
I say to the Minister that I accept that this is a very anomalous circumstance. I will now say something very carefully because I do not want it to sound hurtful. I mentioned the remarkable role that Her Majesty had played. There is no doubt that, as Supreme Governor of the Church of England, she has brought something to the religious life of this land that has been unique and remarkable. However, there are few theologians who can easily argue that this position has a serious theological basis today. We all know that the reason we have it is that the state decided to nationalise the church—that is what happened—in order to get its hands on money and power. It is no good ignoring that. It is not a prejudiced comment. I used to believe it when I was an Anglican, so I cannot be criticised for saying it. That is what happened. The arrangement today arises from an attempt to bring together the facts of history with the perfectly reasonable desires of religious people to make the establishment work. I am in favour of the establishment; I do not want the Church of England disestablished. I pray that, one day, the Church of England and the Catholic Church will again become one. However, I have to say that this proposal is ridiculous.
First, we will put something into the Bill which we have not done since the Act of Settlement. We will allow a foreign potentate, the Pope, to influence the way in which our future Queen or King will be decided. I am a Roman Catholic and I am proud of my allegiance to the Pope. I find this allegiance in no way contradicts my allegiance to the Queen of England. She is the Queen of England as far as I am concerned because I am English, but I realise that she is also the Queen of Britain. I defer to my noble friend. I see no contradiction between those allegiances any more than I see a contradiction with my pride of being a citizen of the European Union. These are citizenships and relationships which we can hold together. This is important as each one contributes to the strength of the other. However, will this House suggest that, for the first time, the Pope shall become a constitutional figure? I find that an impossible answer.
Secondly, in what position does this amendment put His Holiness? Must he say, “The Church’s teaching is this; canonical teaching is this; but, in order that we might do a deal with the British Crown, we will say something quite different about the heir to the Throne”? That looks to me precisely the sort of deal, a political deal, about which many reformers complained. I cannot possibly put my name to something which proceeds in that manner. Then, one has to ask His Holiness to say something most remarkable; that, despite the Church’s teaching, children of the union can be brought up as Anglicans. Therefore, the Pope says that, they get married and they say, “The Pope may say that the children can be brought up as Anglicans but we do not want that”. What, then, do we say in this constitutional arrangement? Do we say, “You better listen to the Pope. We have now brought him into the constitution so we must do so again to sort this out”?
What happens if they bring the child up as an Anglican and he does not think much of it? In fact, I was brought up as an Anglican and I was a member of the Synod of the Church of England. I became increasingly clear that the Anglican Church had moved from being part of the Catholic Church to being a sect because it had decided that it had its own rights to make its own decisions about the teachings and the doctrines of the Catholic Church. Once it did that, it seemed to me to change its position. Therefore, I ceased to be an Anglican and I became a Catholic. What happens if the Pope has said that the heir to the Throne may be brought up as an Anglican, he is brought up as an Anglican and he says to himself, “In truth, I think that the Pope is right—with the exception that he has done a deal with the British authorities. I have therefore decided that I will become a Catholic”? What do we do as a society then? Do we say, “We are frightfully sorry, you are not allowed to decide that”? That is precisely the situation which will arise under this particular amendment.
There may be many ways of dealing with this. I have my own particular way, with which I shall not bother the House as I know very well that the Government are determined not to take it seriously. It seems to me perfectly right that the Church of England should have a Supreme Governor. In normal circumstances, the Supreme Governor should be the monarch where the monarch is an Anglican. But where the monarch is not an Anglican, the monarch should nominate as Supreme Governor someone from the family who is an Anglican. That seems to me to be a perfectly reasonable way forward. It would stop us having a special arrangement for Roman Catholics in this insulting way.
We do not have an arrangement whereby the heir to the Throne can marry a Muslim as long as the Muslim authorities agree that the children are brought up as Anglicans. The Muslim authorities are in exactly the same position in terms of this issue, although I think on very little else, as His Holiness. They are not going to agree to it either. What I would say to all Members of the House is this. It is insulting to the largest church in the United Kingdom—the Catholic Church. It is insulting to isolate Catholics as if there is still something about them today—in 2013.
I want to end with a comment to my noble friend. On Sundays, Anglicans do not pray for the Queen as the Supreme Governor of the Church of England, they pray for the Queen. At exactly the same time, although in larger numbers and with greater enthusiasm, Catholics pray for the Queen. There is no distinction between our prayers. The fact of the supreme governorship does not relate to the way in which subjects pray for their Queen. The only reason I raise this is because on these occasions there is always just a little hark back towards a feeling that there is a position before the Almighty that makes the Church of England special. The Church of England has an important history and its evensong is in many ways one of the finest services produced by any church of any kind. However, let us remember that we live in a pluralist society and that much of this anomaly is something that most people cannot and do not want to understand. To introduce an amendment that would enshrine the very things that historically we have sought not to have in Britain seems to me to be preposterous.
Lord Luce
My Lords, I support the objective of the amendment moved by the noble Lord, Lord Cormack, although I have reservations about its wording. I should say hastily that I am speaking for myself and not as a former member of the Royal Household. The House may have noticed that earlier there was a small cluster of former members of the Royal Household, but we have now widened the gaps between each other.
My view is based on the limited scope of this Bill and the assumption that we are not talking about the establishment of the church or about changing the position of the monarch being the Supreme Governor of the Church of England, and thus the requirement that the Supreme Governor should join in communion with the Church of England. That, to my mind, is not the issue, rather it is much more limited to the proposal in the Bill. At Second Reading, I asked the Minister whether we could seek greater clarity on the requirement that those in the line of succession must be brought up within the Anglican faith. All I am seeking to do is to minimise misunderstandings that otherwise could arise from the passing of this Bill in connection with Clause 2.
There is a disparity between what the then Archbishop of Canterbury, Rowan Williams, said, and what the Archbishop of Westminster said at the time of the Perth agreement in October 2011. Archbishop Rowan Williams said that,
“there needs to be a clear understanding that the heir is brought up in”,
the Church of England environment. The Roman Catholic Archbishop of Westminster said:
“I fully recognise the importance of the position of the established church … in protecting and fostering the role of faith in our society today”.
That is a helpful message, but the two are not clearly in line, and in my view there is something of a lack of clarity in this. Of course, this is something that may never happen in our lifetime, but nevertheless it could happen. It is in order to minimise the risk of misunderstanding that I believe the noble Lord, Lord Cormack, is moving the amendment.
In my Second Reading speech I suggested that the Minister should agree to have some further discussions with the Roman Catholic leadership in this country to see whether we cannot get a clearer understanding, and I would be grateful if, when he comes to respond to the debate, he would let us know if he has anything to report at this stage.
Lord Forsyth of Drumlean
My Lords, I apologise for being unable to be here earlier, as I had a long-standing engagement, and also for not being able to participate in the earlier stages of this Bill. I am afraid that unusually, because I have the highest regard for my noble friend, I do not feel able to support this amendment at all.
I have some history on this matter. I believe that the provisions contained in the 18th century legislation with quite vile language about Roman Catholics should be removed from the statute book. As Secretary of State, I think I described it as the constitution’s grubby little secret. When I first came to this House, I was unwise enough to bring forward a Private Member’s Bill to deal with this issue. I was ambushed at the very first stage by my late and much missed friend, Lord St. John of Fawsley, who by use of procedure, prevented me from even being able to speak to my Bill or to introduce it again for a year. As a result, I realised that this was a much more complex issue which required considerable discussion and was not suitable for Private Members’ Bills.
It is therefore a great disappointment that this legislation has been rushed through the House of Commons as it has, without proper debate, on a timetable which we normally reserve for Bills concerned with terrorism or some immediate national interest. For the life of me, I do not see why these matters have been dealt with so quickly. In opposing this amendment, for the reasons that my noble friend Lord Deben spelled out so clearly—I will not repeat the arguments—I would like to say as a member of the Church of Scotland, although I worship in the Episcopal Church of Scotland, so I am a kind of hybrid, I find it extraordinary that the opportunity was not taken in this legislation to remove the prohibition on the monarch themselves being a Catholic.
I have a specific question for the Minister to deal with, on which my noble friend Lord Deben touched. As I understand it, the role of the monarch as head of the Church of England is not a canonical role, and therefore there is no reason, as my noble friend said, why the monarch has to be a member of the Church of England. There may be other issues that arise from that, and I appreciate that the example of James VII or James II—depending on your perspective—may not have been an entirely happy one. However, it did not end in tears because he was a Catholic and head of the Church of England; some other issues resulted in it ending in tears.
The Deputy Prime Minister has brought forward this legislation on the basis of extending equality, although it is rather ironic that we should be talking about equality in the context of the monarchy. It seems to me quite extraordinary that we have not been able to take that further step and remove the prohibition on the monarch being a Catholic. In the 18th century, there were very good reasons for having this language; it was about the security of the nation. Indeed, the very Act of Union itself occurred as a deal; the Scots were bailed out from the huge losses which had been created by the Darien scheme, and in return the Protestant succession was secured. That was what it was about. Therefore, to leave on our statute book words which cause great offence to many Catholics and non-Catholics in our country is shocking and it is sad that the Bill does not deal with it.
In support of his amendment, my noble friend Lord Cormack has suggested that some deal would be done with the Vatican. Of course, we have to have regard to our constitutional history but, as my noble friend Lord Deben pointed out, the independence of the monarchy is fundamental to our constitution. Although the Vatican is no longer a foreign power which will encourage the French or anyone else to usurp the Throne—those days are long since past—it would be totally inappropriate to have an amendment of this kind. However, I agree with my noble friend in so far as moving this amendment highlights the anomalous position of this legislation.
I should just make it clear that I would not want to see the Church of England cease to be the established church. My goodness me, secularism is rampant in our country at the moment; this is not the moment for something of that kind and I would not support it. The heir to the Throne has talked about being “Defender of Faiths”, and it is a mistake for the Church of England to appear to take a position that has the unfortunate effect of making people believe that it cannot continue to be an established church while removing that discriminatory language from our statute and constitution.
Lord Trefgarne
My Lords, I have some sympathy with the objective of my noble friend Lord Cormack’s amendment, but I have considerable doubt as to whether it will achieve what he seeks.
I rather doubt whether the Vatican would be willing to give the sort of undertaking that my noble friend suggests. It sounds as though that would be very difficult indeed for it. Whether or not our sovereign might be of some different faith, not of the Church of England and perhaps even Roman Catholic, is a wholly different but of course crucial issue. I have tabled subsequent amendments that touch upon that, although I suspect that we have discussed it pretty fully under this amendment. I think that my noble friend’s amendment will not achieve what he desires and I hope, therefore, that he will not press it.
Lord Fellowes
My Lords, I, too, much regret that I was unavoidably prevented from attending Second Reading but I hope that I may none the less speak briefly to this amendment.
First, I support the Bill wholeheartedly. Furthermore, I understand and agree with the motives behind the amendment. Both the Bill and the amendment are timely and necessary. I fear, however, that I cannot support the amendment as drafted. More clarity and public commitment from the Roman Catholic Church on the subject of the upbringing of an heir to the Throne would indeed be most welcome, but I think that that desired outcome would be more likely to be achieved by quiet negotiation than by ultimatum. The amendment has a ring of ultimatum about it, at least to me. For that reason I cannot give it my support. None the less, I hope that we can find a satisfactory form of words that carries perhaps less threat and more promise, both to the Church of England and the Roman Catholic Church.
Lord James of Blackheath
The noble Lords, Lord Forsyth and Lord Deben, have both got very close to being the first Peers in this debate to mention that here we are addressing the concern of whether we can alter the Bill of Rights. Sooner or later, that issue will have to be debated in much more detail than allowed for by today’s agenda.
I have one technical question for the noble Lord, Lord Cormack: does he believe that the papacy is able to commit its successors any more than, as he no doubt believes, one Parliament can commit another?
Lord Stevenson of Balmacara
My Lords, this has been a very good debate and, has just been mentioned, will inform a number of the amendments that we are due to discuss. Maybe we will be able to move a little faster as a result.
The amendment, in the names of the noble Lords, Lord Freeman and Lord Cormack, makes abolition of the Catholic marriage ban conditional on an agreement with the Vatican that children of such marriages should be brought up as Anglicans. As for preserving the Protestant succession, the amendment is unnecessary because under the present rules no Catholic will be able to succeed. As we have heard, it seems highly unlikely that the Vatican is in any position to make children of mixed marriages be brought up as Anglicans, should we require it to. In any case, we understand that this is a matter already delegated to the Catholic hierarchy in the UK.
However, as several noble Lords have suggested, this issue raises the question of whether any religious test should be preserved as one of the rules for succession. As we will hear from the noble and learned Lord, that will perhaps be a matter for another time, but I will come back to it in later amendments.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Cormack for introducing this amendment. It has generated a passionate debate and raised important issues, not least ones also reflected in our Second Reading debate about the upbringing of children should there be a mixed marriage. The noble Lord, Lord Luce, quite properly indicated that this Bill is limited in its scope and does not deal with the established church or the monarch as Supreme Governor. I know the passion with which my noble friend Lord Forsyth takes a view—which I share—on the wording of some 17th century legislation. That wording is offensive, but as the noble Lord recognised from his early attempts with a Private Member’s Bill, these matters are hugely complex and I do not believe that this Bill is the appropriate place to deal with them.
As the noble Lord, Lord Luce, indicated, at Second Reading he and the noble Lord, Lord Janvrin, asked if I would meet representatives of the Catholic Church. I did so earlier this week. I can inform the House that I came away with a clear message that in the instance of mixed marriages the approach of the Roman Catholic Church is a pastoral one. It was considerably stressed to me that the Catholic Church will always look to provide guidance that supports and strengthens the unity of the partnership and the indissolubility of marriage. It is in this context that the Catholic Church expects Catholic spouses sincerely to undertake to do all they can to raise their children within the Catholic Church.
However, where it has not been possible for the child of a mixed marriage to be brought up as a Catholic, it has been drawn to my attention that the Catholic parent does not fall subject to the censure of canon law. The clear signal was that the overriding concern in Catholic pastoral guidance to couples in mixed marriages—it was drawn to my attention that there are many mixed marriages today in England and Wales—is the unity and indissolubility of the marriage. I assure the House that it is not the case that the children of all mixed Protestant and Catholic marriages must be brought up in the Catholic faith.
It is also important to note the important concept within the Catholic Church of subsidiarity. As a Presbyterian I do not pretend to understand it, but it is one that I have certainly heard associated with the Catholic Church. We perhaps debate the word in another context, but within the organisation of the Catholic Church, subsidiarity is an important concept and much decision-making is devolved to a local level, including decisions relating to mixed marriages. Quite simply, the Vatican does not get involved. My noble friend Lord Deben highlighted both the constitutional implications and significance if the amendment moved by my noble friend Lord Cormack were to be carried. It would raise constitutional issues and would put the Pope in a very difficult position, one that I suspect the Vatican does not aspire to have thrust upon it. In its recent letter to Members of your Lordships’ House on this issue, the Church of England stated:
“The present prohibition…is not necessary to support the requirement that the Sovereign join in communion with the Church of England”—
that is, the prohibition on marrying a Catholic—and therefore:
“Its proposed removal is a welcome symbolic and practical measure consistent with respect for the principle of religious liberty”.
The Archbishop of Westminster, as quoted by the noble Lord, Lord Luce, welcomed the decision of the Government to give heirs to the Throne the freedom to marry a Catholic, and recognised the importance of the position of the established church in protecting and fostering the role of faith in our society today.
Lord Forsyth of Drumlean
What was the Government’s motivation in removing the prohibition on the heir to the Throne marrying a Catholic? Was it to enable the heir to the Throne to marry a Catholic, or was it to remove the discrimination against Catholics?
Lord Wallace of Tankerness
My Lords, it was both. It was to allow someone in the line of succession to the Throne to marry a Catholic and to remove that discrimination. I know that the noble Lord’s subsequent question would be, “Why don’t you remove the ultimate discrimination?”. However, as he acknowledged, from his own efforts to do something, this is a much more complex issue. He says that he does not wish to disestablish the Church of England. Many would argue that if we went down that road, it possibly would lead to the disestablishment of the Church of England. There is a proper debate to be had there, but this emphasises that that is not the purpose of this Bill. However, where an opportunity has arisen to remove at least one area of discrimination, it has properly been seized.
My noble friend Lord Deben made the point that, if this genuinely is an issue, it already exists in another context. My noble friend Lady Falkner of Margravine raised the point at Second Reading which my noble friend Lord Deben made about Islam. My noble friend Lady Falkner asked whether the perceived,
“constraints on the children of Catholics being bought up—and the Catholic Church’s perspective on that—would be different if the monarch was married to a Muslim, as is currently permissible? Muslim children are, likewise, expected to be brought up in mixed marriages as Muslims. So the anomaly exists in the case of other faiths, but perhaps not in the case of Catholics”.—[Official Report, 14/2/13; col. 805.]
That was the point that my noble friend was making. Therefore, the amendment of my noble friend Lord Cormack seeks to address one problem but does not extend to include every faith that currently exists. It is certainly not the Government’s plan that we should do so.
We will obviously return to this issue of establishment and whether the sovereign could be a Catholic in some of the later amendments. However, I readily appreciate the very human concerns. When you are dealing with affairs of state and issues of the constitution, you must remember that you are also talking about two people who want to get married. That is why it is appropriate that there is a pastoral dimension to this and that it is done at a pastoral level. I hope that, with these reassurances, my noble friend will withdraw his amendment.
Lord Cormack
My Lords, I am grateful to my noble and learned friend the Minister for his response, but not entirely convinced. We have had an interesting short debate. Some of the language used by my noble friend Lord Deben was reminiscent of the 18th century pamphlet at its best. He could be a little more careful about his use of the words “insulting” and “preposterous” merely because he does not happen to agree with the arguments advanced.
The fact is that many people in this country are concerned. Parliament has a duty to address this issue. Mentioning a foreign power in legislation is by no means unprecedented. However, I take the point of my noble friend Lord Fellowes; indeed, I made it obliquely myself in my introductory remarks when I said that I was not wedded to the words of the amendment. I wanted to have a debate on the subject. This we have had. I would be glad to talk to my noble friend Lord Fellowes and others before deciding whether to pursue this, which I may well do on Report. The issue deserves mature and thoughtful debate. It is of importance for we do not know how long. There may be no problem in the next century; there may be one within a very few years. One just does not know. However, when we are legislating in good faith for a long time—in spite of the fact that no Parliament can bind its successors; we can repeal whatever we like tomorrow—we have to do our best to make it as clear, precise and right as we possibly can. This is why my noble friend Lord True was wise to introduce his debate. We need to try to anticipate the sort of problems that may exist, if only to answer them and have them answered by Ministers and others before we move on to see the Bill on the statute book, which it assuredly will be before too much longer.
While expressing the hope of discussions with my noble and learned friend the Minister and others before Report stage, and reserving the right to introduce an amendment on Report—certainly not in the same words, but along similar lines—I beg leave to withdraw the amendment.
Lord Trefgarne
Lord Trefgarne
My Lords, this amendment, together with Amendments 6 to 9, go to the very heart of the issue we have just been discussing. Together they provide for a fundamental change in the present prevention which applies to our sovereign being a member of the Roman Catholic faith. This is a huge issue. I do not think it would be right to deal with it rapidly in the course of the swift passage of this legislation. I therefore will not proceed with these amendments.
Lord Trefgarne
“(6) In the event of a person of the Roman Catholic faith succeeding to the Crown by virtue of subsection (5), the title of Defender of the Faith and the function of Supreme Governor of the Church of England shall pass to a regent qualifying with the provisions of section 3 of the Regency Act 1937.”
Lord Trefgarne
My noble friend Lord Northbrook has attached his name to the amendment. It raises a slightly different issue. It is another way of dealing with the matter touched on by the noble Lord, Lord Cormack, in his Amendment 4. It is a way of dealing with this matter by way of a regency. Your Lordships have considered and discussed this possibility on previous amendments and I ask your Lordships to consider it again now. I beg to move.
Lord Northbrook
My Lords, I support my noble friend Lord Trefgarne in his amendment. I first raised the issue in my speech at Second Reading, so I claim a little credit for the idea. As my noble friend has said, it sidesteps a key problem if the heir is a Catholic and keeps a link between church and Crown.
Lord Forsyth of Drumlean
My Lords, I shall speak briefly to this amendment and pick up a point which my noble and learned friend Lord Wallace made in his response to the previous amendment when, with typical skill, he used something I said as an argument against me. I had said that the issue was too complex to be dealt with by a Private Member’s Bill. I was persuaded by the late Lord St John of Fawsley that this was not a matter suitable for being dealt with by a Private Member’s Bill and was best left to the Government to deal with. It is not really good enough for the Government to say that this is a very complicated area and it would mean having to deal with the whole issue of maintaining an established church and therefore we have gone for half a loaf. In my speech on the previous amendment I asked my noble and learned friend Lord Wallace to explain why it is not possible to devise a basis on which the monarch can remain head of the Church of England but not actually be of the Anglican faith. This amendment, moved by my noble friend Lord Trefgarne and supported by my noble friend Lord Northbrook, is a particular approach.
I do not think it is necessary to create a regency in order to do so. We did not have the opportunity to hear the view of the Church of England in respect of the previous amendment. Even if the Government’s position is that they will not do it in this Bill, it is disappointing that they are not able to explain what the options and difficulties are about it. My noble and learned friend did not fall into the trap when I intervened in his speech and asked him what the Government are trying to do here. Are they trying to end discrimination against Roman Catholics or are they just trying to enable the heir to the Throne to marry a Roman Catholic? I would be horrified if it is the latter. Of course, that is a good thing to do—if two people want to get married they should be able to do so—but I thought that this was part of a wider agenda of ending discrimination against Catholics. We need to understand why the Bill has not provided for that and why the idea contained in the amendment could not provide a way forward.
Lord Stevenson of Balmacara
These amendments go to the heart of whether the present Anglican establishment in England can or even should remain in its present form. They raise issues which it would be irresponsible to dismiss out of hand. Therefore, I suggest that all parties come together sooner rather than later to ensure that the subject remains a topic for further parliamentary consideration. That might be by way of using the existing committee structure—perhaps the Constitution Committees in both Houses might wish to take this on—or even through the facility in your Lordships’ House for setting up a committee for this very purpose. It seems to us that the spirit of change, referred to by the noble Lord, Lord Deben, and the points just made by the noble Lord, Lord Forsyth, are too important to be left on the table. They need to be addressed, otherwise they will rancour, come back and hit us in places that we do not necessarily understand at this time.
I sense in the debates that we have had so far a willingness to engage at a level which is not possible within this Bill because of its particular purposes and focus but which would help to create a better understanding at least and possibly an opportunity for a road map for change. It would be important to take that up.
Lord Wallace of Tankerness
My Lords, as my noble friend Lord Trefgarne indicated in moving this amendment, this is one of the key issues raised by this Bill. Certainly, his Amendments 10 and 11 and the consequential ones to the schedules are interesting and were flagged up at Second Reading. They are an interesting way of addressing what has been seen as a dilemma: if the sovereign was to be a Roman Catholic, how could that person also be the Supreme Governor of the Church of England?
When I tried to answer my noble friend Lord Forsyth’s question as to whether the proposal was to allow the heir to the Throne to marry a Roman Catholic or to remove discrimination, I think I said that it was both, and it is. Clause 2 is of symbolic importance because it removes a discrimination which I believe does not have a place in our society today. As I think I also indicated, and as has been accepted across the Chamber, these issues with regard to the sovereign being a Roman Catholic go much wider than the person who may ascend to the Throne being married to a Roman Catholic. The Government are committed to the Church of England as the established church in England with the sovereign as its Supreme Governor. I note what the noble Lord, Lord Stevenson, says about a possible further examination. Certainly, the Government have no plans to do so. Indeed, the Government suggesting to Select Committees what they may or may not do probably is not good form. But he has made his proposal and there will be others who will have heard it. It may be that a Select Committee will choose to do that but I do not think that it would be appropriate for the Government to take that initiative.
I now turn to the idea of separation of the roles of sovereign and Supreme Governor.
Lord Maclennan of Rogart
Before my noble and learned friend leaves that point, will he indicate whether the Government are ready to enable such work to be done given the compression of time that we have had in discussing these matters? Would they be prepared to permit the Bill to proceed at a pace which would allow a Select Committee, such as the Constitution Committee, to consider these matters?
Lord Wallace of Tankerness
My Lords, I am afraid that I will have to disappoint my noble friend in my answer. I do not believe that this is the appropriate Bill for taking this forward. This Bill seeks to deliver on three particular issues and I do not believe that that would be appropriate. I do not diminish the importance of the issues. It is very obvious that some people see this Bill as a Trojan horse for disestablishment and some are frightened in the opposite direction. I do not believe that this Bill is appropriate for that. Therefore, I cannot give my noble friend the encouragement or the assurance that he seeks with regard to allowing such a discussion. I do not believe that the noble Lord, Lord Stevenson, was suggesting that it should be done in a timescale that would affect this Bill.
On the idea of separating the roles of sovereign and Supreme Governor of the Church of England, obviously it is self evident that that would represent a very major change to the role of the monarch in relation to the established church and undoubtedly would require extensive consultation. It is a significant diversion from the traditional role of the monarchy over recent centuries. The Government consider that the change in the law effected by Clause 2 is a valuable one but we do not believe that it is necessary for the Bill to go beyond that and to delve into the significant wider issues that this amendment raises.
The proposed amendments also open up a series of extremely difficult questions about the relationship between the sovereign and the Supreme Governor of the Church of England, and indeed whether such an arrangement could support the continued established place of the Church of England. For example, how would the coronation and accession oaths be taken? The oath of accession includes a promise to maintain and preserve the Protestant religion and Presbyterian Church Government. Who would take this oath? Presumably it would not be appropriate for a regent who is a Supreme Governor of the Church of England to give any oath in respect of the Church of Scotland, and therefore would not be sovereign to make that statement. That one issue shows the host of different issues that would come up when the issue is examined in more detail.
As I have indicated, the Government have no intention of introducing any change in this matter. Given that both the Catholic Church and the Church of England have been very supportive of the changes that are actually in the Bill, I believe that we have found an appropriate balance through the legislation as drafted. I therefore invite my noble friend to withdraw his amendment.
The Earl of Erroll
Before the Minister sits down, perhaps I could help him on the Presbyterian Church of Scotland. Every year, at the opening of the General Assembly of the Church of Scotland, the monarch promises to defend the Presbyterian Church Government in Scotland—I will not get the words exactly right. I think that she does that in a personal capacity, not as head of the Anglican Church. She promises to defend it, so there is no reason why a Catholic monarch could not still promise to defend the Presbyterian Church Government in Scotland. To confuse that with Presbyterianism in England would be different.
Lord Wallace of Tankerness
I apologise if I did not make myself clear. I did not mean to suggest that it was as Supreme Governor of the Church of England that she made the oath with regard to the Presbyterian Church Government in Scotland. I was in fact suggesting the opposite; it would not be appropriate for someone who was appointed as a regent—a Supreme Governor—to make that oath. I think that that would be wholly inappropriate. It raises the question of whether a monarch who was indeed a member of the Roman Catholic Church would be in a position to make any commitment regarding the maintenance of the Protestant religion and the system of Presbyterian Church Government.
Lord Wallace of Tankerness
My noble friend Lord Forsyth asks why. I think that it raises some very interesting issues that have not been thought through. This is why I say that we should not go down this road. I do not propose to go down this road; I suggest that there is a host of issues, and that is why we should not go down the road proposed by the amendment.
Lord Trefgarne
My Lords, the problem is that the noble and learned Lord says this opens up greatly different avenues. However, frankly, the Government ought to have thought about these avenues before they brought in the Bill.
Lord Wallace of Tankerness
With all respect to my noble friend, that is the reason why the Government have not gone down this road. The Government have actually sought to do three very clear things: remove the male bias in succession; remove the current prohibition on someone in the line of succession marrying a Catholic; and repeal the prohibitions in the Royal Marriages Act 1772 and replace them with others. Those are three very precise points. I made the point that to go wider than that raises the kind of issues I highlighted. That is one reason why the Government have not gone down this road.
Lord Northbrook
My Lords, by ignoring the amendments of the noble Lords, Lord Cormack and Lord Trefgarne, it seems that the Government are just leaving everything to chance, in the case of there being a Catholic heir.
Lord Wallace of Tankerness
This is not leaving it to chance. The law as it stands at the moment is quite clear that a Catholic cannot ascend the throne.
Lord True
My Lords, the problem was articulated at Second Reading, and I do not wish to extend this debate too much. The problem ultimately will be a human problem, as it was in 1936. That human problem, if it arises, will concern a child who is an heir, either the heir presumptive or a child who by some accident becomes the next in line, a popular expectant heir to the throne, who, whether from birth or by proximity to the Catholic faith when being brought up, believes that they cannot take up the duties of a monarch without the support of the church that they love. That might well be the Catholic Church.
The problem with the halfway house that we have before us is that it opens the door to such a crisis without resolving all the complexities that my noble friend quite rightly said lie at the end of that path. That human drama will be played out in the 21st century through all eyes of the media and television as almost a piece of spectacle—it was in 1936. That is the danger that many Peers sought to point out at Second Reading. I could not support the amendment of my noble friend Lord Cormack; equally, I think that the amendment of my noble friend Lord Trefgarne is flawed, because I agree with my noble and learned friend on the Front Bench that there are things that a regent could not undertake.
There is a danger in the lack of clarity inherent in this Bill, for well meaning reasons, opening a door to a place we know not where. Not all discrimination in this matter lies on the Anglican side—I speak as one who lives the most happy of mixed marriages but who is never permitted to go to the altar table to share communion with my wife. Let us go forward with caution. It is not right for the Government so readily to detach the opening of the door by the legitimisation of a marriage from a proper and serious contemplation of the potential consequences if a human drama comes to be played out when an heir believes that they can proceed only with the support of the Catholic faith, whether they professed it previously or profess it at the time when they become heir to the Throne.
Lord Wallace of Tankerness
My Lords, before my noble friend Lord Trefgarne replies, perhaps I may pick up on a point where I do not believe that the argument of my noble friend Lord True holds. Under the law as it stands—and there is no proposal here, nor do the Government have any proposals to change the law—the sovereign may not be, nor have been, a Roman Catholic. Therefore, the situation which my noble friend Lord True suggested, where the sovereign comes to the Throne having to agonise as to whether to renounce the Catholic religion, just would not arise, because, having been a Catholic, he or she would not be eligible to ascend to the Throne.
I entirely concur with my noble friend’s opening remarks: these are very much human matters at the end of the day. There is a human dimension to it, and that is why, in response to the earlier debate, I sought to reflect the discussions which I had with representatives of the Bishops’ Conference of England and Wales so that this is looked at at a pastoral, human level, which seeks to reflect the importance of the union of a partnership and the indissolubility of marriage. It is against that background that decisions should be made and advice given with regard to the upbringing of a family. I accept that there is a human dimension to this, but I should perhaps clarify that the dilemma that my noble friend was suggesting cannot occur because the position is that the sovereign must not be, or have been, a member of the Roman Catholic Church.
Lord Forsyth of Drumlean
My Lords, I had not appreciated this until my noble and learned friend said it: he said that not only would a Catholic not be able to ascend to the Throne but that someone who had been a Catholic but had then converted to be an Anglican could not ascend to the Throne. That has nothing whatever to do with the position of being Supreme Governor of the Church of England. That is a simple discrimination against Catholics. My noble and learned friend said, “Oh, the reason that we have made this Bill focus on just these three areas is because the issues are so complex”. It is clear that he will not accept the amendment, and I accept some of his arguments for that—but, in listening to this debate, can he not see that there are a number of issues? The noble Lord, Lord Stevenson, suggested that we should have a Select Committee, or some kind of body to look at these issues, and park the Bill while that is going on. What is the rush here? What is the reason for our needing to rush forward with this legislation at this pace?
Perhaps at the end of the day, it might be concluded that it was impossible to reconcile maintaining an established Church with removing this discrimination against Catholics. However, if the Government say, “Oh well, this is just a Bill that’s dealing with these matters”, bear in mind that this legislation has to be approved by all the other Parliaments around the world. Would they not think it very odd if we came forward with this Bill now and then a short while later came forward with the other bit of it? Or is the proposition that this is just too difficult? If it is too difficult, why on earth did the Government embark on this journey in the first place?
Lord Cormack
I would like to add a word. There is a real danger that we are treating exceptionally complex matters far too simplistically. The constitution of our country, which is not written, has often been compared to a beautifully constructed watch—take away one ostensibly tiny piece of the mechanism and the whole thing falls apart. Some fairly unpleasant things were said about my amendment earlier on, but there we are; that is the rough and tumble of debate. However, I really believe that those of us who are concerned about this issue—coming from slightly different points of view, I accept—are on to something that the Government have not bothered to think through. They have said, “Oh look, this is so complex that we’ll just concentrate on these things”, which is equivalent to saying, “This watch is beautifully constructed; we’ll just look at the hands in the face and forget the bit behind”. There is merit in the interesting suggestion from the noble Lord, Lord Stevenson—if I may have his attention for a moment—or at least in the Minister calling a meeting in his room for people who are concerned, and possibly in going forward to a special committee. This is not really the ideal forum for a detailed discussion of these exceptionally important and complex matters, which reach out we know not where.
Lord Wallace of Tankerness
My Lords, I have already responded to the point from the noble Lord, Lord Stevenson, and indicated that I am not in a position on behalf of the Government to commit to establishing a committee to look at these matters. It is clear that there are committees of this House and indeed of the other place that could do so. Obviously the Government would contribute to any such committee that we had invited to do this, but I do not believe that that is a pathway that is inconsistent—nor did the noble Lord suggest this—with proceeding with the relatively straightforward, although constitutionally important, issues that are in the Bill.
Lord Trefgarne
My Lords, at the end of Second Reading a week or so ago, when the noble and learned Lord, Lord Wallace, moved to refer this Bill to a Committee of the Whole House, I suggested then to your Lordships that it would have been much better considered by a Select Committee of the House to which witnesses could have been called and had their evidence taken—perhaps even a Joint Select Committee involving Members of the other place. However, the Minister refused to agree to that; oh no, we would go to a Committee of the Whole House, as we are now doing.
If ever there was a case of unlooked-for consequences, this Bill is certainly it. There are a number of aspects of this matter that quite clearly the Government have simply not considered or, if they have, they have chosen to disregard. That is really not good enough, and we are going to have to return to this issue at the next stage for sure. In the mean time, I beg leave to withdraw the amendment.
Lord Trefgarne
“Removal of disqualification arising from individual’s religion
(1) A person is not disqualified from succeeding to the Crown or from possessing it as a result of that person not joining in communion with the Church of England as by law established; and all provisions to the contrary in the Bill of Rights and the Act of Settlement are accordingly superseded.
(2) Where a person who succeeds to the Crown or possesses it declares to the Privy Council that he or she is not in communion with the Church of England as by law established, the person who is next in line of succession to the Crown and who is in communion with the Church of England shall perform the functions of Supreme Governor of the Church of England in the name of and on behalf of the Sovereign.
(3) The provisions in subsections (3) to (5) of section 3 of the Regency Act 1937 apply to such a person who is Supreme Governor, with the substitution for references to the Regent of references to the Supreme Governor.”
Lord Trefgarne
I do not intend to speak to this amendment at any length. We have covered some of its detail, although by no means all of it, in recent discussions, but I would like to hear what the Minister’s response to it would be. Without wishing to detain your Lordships, therefore, I beg to move.
Lord Wallace of Tankerness
My Lords, the position with regard to this amendment is very similar. It is a different structure for having, as it were, a divergence between the person who is the sovereign and the person who is the Supreme Governor of the Church of England. Some of the difficulties and arguments which were expressed with regard to the regency are also applicable to the slightly different structure proposed in Amendment 11. I am not sure that I can elaborate on that much further as I think that the arguments are very similar.
Lord Trefgarne
I understand what my noble and learned friend is saying. However, the amendment that I now propose does not confine itself to the Roman Catholic faith, or the possibility of the sovereign or the heir to the Throne being Roman Catholic, but deals with all other possible faiths. At the moment, many legal restrictions apply to the Roman Catholic faith in this regard but none applies to Muslims, the Jewish faith or any faith other than the Anglican and Roman Catholic faiths. Therefore, that matter certainly bears additional consideration, but perhaps not today. In the meanwhile, I beg leave to withdraw the amendment.
Lord Lang of Monkton
Lord Lang of Monkton
My Lords, from the deep and turbulent waters of Clause 2, we move to the only slightly less troubled waters of Clause 3. This amendment, which stands in my name, also has the support of the noble Lord, Lord Thomas of Swynnerton, who is unavoidably prevented being here today, and of my noble friends Lord Lexden and Lord True.
This is a simple, modest and practical amendment, which seeks to increase from six to 12 the number of persons in line of succession to the Crown who would be required by the Bill to seek the consent of the monarch before marrying. The existence of that provision in the Bill is to my mind a tacit admission of the potential for turbulence created by Clause 2 and that part of Clause 3 which repeals the Royal Marriages Act 1772, the Bill pitting, as it does, a relaxation over the entry of Catholics into the royal line against the absolute ban on their reaching the Throne. There is a real tension there, which the clause as it stands makes at least some effort to modify.
The 1772 Act had the draconian effect of voiding a marriage that lacked the monarch’s consent and it had become unworkable because of its extent, but it did have the virtue of certainty, which was needed then, as now. King George III’s seven sons between them entered into nine marriages—a case of nine brides for seven brothers. Three of them were in contravention of the recently enacted Royal Marriages Act and were therefore void, thus keeping the line of succession relatively tidy, if nothing else. I wish we could say the same for the new provision, but I fear that it could lead to great untidiness. The only argument that my noble and learned friend could offer in favour of exchanging the open-ended control of the 1772 Act for a list of just six, was that when Queen Victoria was born, she was fifth in line of succession and no sovereign had come to the Throne from further out than that. However, he chose a bad example and I would like to use that example to answer his case.
The remarkable thing about Queen Victoria’s circumstances was not that she started life so far out in the line but that she did not start much further out. After all, King George III had 12 surviving children, seven of them sons, so the succession must have looked pretty secure as they grew up. Of course, only six of them would have been in what one could call the “club of six” under the clause we are now considering. Indeed, half the King’s children would have been outside it, just as a third of Queen Victoria’s children would also have been outside it. I ask the House to consider how this club of six would have worked at that time.
In 1817, two years before Victoria was born, Princess Charlotte, daughter of the Prince of Wales and second in line to the Throne, died tragically in childbirth, along with her baby, who would have been third in line. King George’s sixth son, Prince Augustus Frederick, who would have left the club of six at her birth, would now have rejoined it. At the time, only three of the Prince’s brothers were married within the terms of the Act. They were all middle-aged and had no legitimate children. It suddenly became apparent that the succession was at risk. Within a year, three more of the brothers hurried into marriage, including Prince William, Duke of Clarence and St Andrews, and his younger brother, Prince Edward, Duke of Kent and Strathearn, who was then aged 50.
A year later, in 1819, Prince Edward’s daughter, Victoria, was born and at once become fifth in line to the throne. She would have been a member of the club of six, pushing her uncle, Prince Augustus Frederick, back out of the club. Eight months later, Prince Edward died suddenly; his daughter Victoria moved up to fourth in line and Prince Augustus Frederick would again have rejoined the club of six. Six days after that, King George III died, Princess Victoria moved up to third place and her youngest uncle, Prince Adolphus Frederick, who would have left the club of six at the age of 21, rejoined it at the age of 45. Eleven months later he was out of it again as his brother, Prince William, became father to a daughter, Princess Elizabeth. She took third position in line and his niece Victoria moved back down to fourth position. Less than three months after that, the infant Princess Elizabeth tragically died. Those below her, including Victoria, moved back up the line and Prince Adolphus Frederick—not to be confused with his brother Prince Augustus Frederick, still less with his other brother Prince Frederick Augustus—would have been back for the third time in today’s club of six. Fortunately for him, he had married in 1818 during one of his gaps in membership.
Within two years, Princess Victoria’s place in the succession had changed upwards and downwards four times. I recite all this simply to show that the line of succession to the Crown can easily involve an almost random element. The unexpected often happens, as my noble friend Lady Thatcher almost said. The highly improbable can quickly become the near certain. It also shows that the succession can move in both directions, up as well as down, and between late middle-age and infancy. Queen Victoria was 18 when she came to the throne, her predecessor was 64 and her successor was 59. Her circumstances were unlike any other before or afterwards but they demonstrate the unpredictability of the line of succession and therefore the need to provide for that when we legislate on the matter. We cannot predict what future circumstances will be, so we should leave a margin for error.
To my noble and learned friend, who attempts to justify six with the repeated argument that Princess Victoria was fifth in line at her birth, I point out that, in the terms of Clause 3, it is not her birth that is relevant or requires the sovereign’s consent but her marriage. By the time she married and would therefore have become subject to this clause, Victoria was already Queen herself. I venture to suggest that that indicates a bit of a design fault in the clause which might merit some attention.
The choice of Queen Victoria as a case to strengthen the Government’s case is, to say the least, unfortunate. Her example is, at best, irrelevant and it demolishes any rationale the Government have for confining the number in this clause to 6. As for the other explanation, that the choice of six was, as the Deputy Prime Minister admitted, arbitrary and pragmatic, that is not an argument but an apology. At Second Reading, I suggested that we should not think of the line of succession as a straight line of descent but rather in family groupings, and that is particularly so as life expectancy lengthens. All six places covered by this clause could be within the family of one son or daughter of the sovereign, which leaves other sons or daughters exposed in the event of a tragedy befalling the family of the heir apparent. The search for heirs might then need to move outwards, possibly encountering families who, for religious or other reasons, had to be leapfrogged to find heirs that fitted. A club of 12 would be more likely to avoid that. One could argue for more but I accept that 12 should be enough to put matters beyond a reasonable doubt, which six does not.
With or without my amendment, where there is a specified limit there will always be the possibility of those in the line of succession going on and off the nominated list like poor Prince Adolphus Frederick and not forgetting Prince Augustus Frederick. However, this amendment would move such comings and goings further away from the immediate line of succession and offer a better chance that the monarch’s immediate family would all be on the list, at least until they had passed the normal marrying age. I chose to table this amendment as it covered the one area of the Bill that could be improved quite easily and with little controversy. It does not frustrate the Bill’s purpose but is simply an amendment of detail. This detail does not, I gather, feature in the Perth agreement: perhaps my noble and learned friend can enlighten us on that. It could probably be quickly accepted by the Commonwealth realms without demur and it would show that this revising Chamber had done its job and not simply been a rubber stamp to a measure agreed over our heads.
It is an important change which addresses the danger of unintended consequences. As it stands, the list of six acknowledges a problem. I believe I have demonstrated that a list of six could be woefully inadequate. The amendment offers greater stability and less uncertainty in a matter where certainty is vital. I beg to move.
Lord Northbrook
My Lords, my Amendment 13 is in this group. I apologise to my noble friend Lord Lang of Monkton for moving in the opposite direction—whereby the number of persons in line to the Throne would be decreased, rather than increased—particularly after his wonderful history lesson.
I want to reduce the impact of Clause 3 on Clause 2, and I worry that the current number of six is likely to be in contravention of the European Convention on Human Rights, which, under Article 12, provides for the freedom of marriage. Amendment 14, which states that,
“Any provision of the common law requiring any person to seek the consent of Her Majesty before marrying is abolished”,
has been brought to my attention by the eminent lawyer, Graham McBain, with whom the Minister is familiar through contact with the noble Lord, Lord Carlile. This point was referred to by my noble friend Lord Carlile at Second Reading. Even before the Royal Marriages Act 1772, the sovereign had a right, and exercised it, not under statute but under the common law, to prevent marriages of other members of the Royal Family—for example, to prevent the Queen Mother from remarrying. This right, as I understand it, still applies, whereby under the common law the sovereign could enforce his or her consent to the marriages of brothers, sisters, cousins and so on. Therefore, as the noble Lord, Lord Carlile, said at Second Reading, this right should be abolished. That is the purport of my amendment.
Lord Elton
My Lords, I have tabled Amendment 13A. I apologise for tabling it so late that it had to be added to the supplementary list, which is always a bad thing to do and is particularly disgraceful for an ex-Minister who knows the strain that it puts on the Bill team. I have apologised to them already. Although my amendment is in this group, it does not belong there, and I therefore believe that I am allowed to unbundle it. I shall do so and move it briefly after this debate.
Lord Lexden
My Lords, I strongly support the amendment that my noble friend Lord Lang has explained so fully and convincingly, leaving very little further to be said. Today, we expect families to be of modest size and assume that the future will closely resemble the present. That is surely an arrogant and misconceived assumption. Historically, the monarch’s immediate family has often been extremely large in number, and the Bill ought to provide for a recurrence of a substantial number in their immediate family by extending to 12 the members of the Royal Family for whose marriages royal approval will be required.
How hard it is in any family to secure the triumph of good behaviour. It has been said of George III’s abundant offspring that that they inspired the nation about as much as a procession of Banquo’s descendants inspired Macbeth. The strength of the Crown in those days rested wholly on the character of King George III himself. We should also remember the fragility and impermanence of the world’s order. Reference was tellingly made by my noble friend Lord Lang to the position of Queen Victoria, who was fifth in line of succession at the time of her birth—a position that then oscillated considerably, as my noble friend amusingly told us. However, Queen Victoria very nearly did not inherit. A boy named Hook, out shooting sparrows, sent a shower of pellets through the window of the house in Sidmouth where the future Queen and Empress had been taken shortly after her birth. She narrowly escaped some of the pellets, tearing the sleeve of her nightgown. If the boy Hook had, by terrible mischance, removed Queen Victoria, that game of musical chairs over the succession that my noble friend described would have begun all over again.
I do not believe that six is enough. The number should be extended to 12, although, at the same time—turning to my noble friend Lord Northbrook’s amendment—a strong argument can be made for removing the need for approval altogether. The worldly Lord Melbourne put it in conversation with Queen Victoria. Referring to her disreputable uncles, he said that,
“though the Marriage Act may have been a very good thing in many ways, still it sent them, like so many wild beasts, into society, making love wherever they went and then saying they were very sorry, but they could not marry because their father would not give permission”.
Nevertheless, I do not favour the complete disappearance of the monarchical duty. Unsuitable marriages need to be prevented and 12 is the right number for the monarch’s approval.
Lord Lyell
My Lords, perhaps I may chuck a very small pebble into this debate. My noble friend Lord Lang gave the most marvellous dissertation, but I would advise your Lordships to take care to skip along to the Library to take a glance at either Burke’s or Debrett’s Peerage. Your Lordships should look, above all, at the consanguinity and the very long chance of the arm of the blood relationship. Your Lordships may not be aware that Queen Elizabeth the Queen Mother was the ninth child of the Earl of Strathmore. The eighth child was the grandfather of the current Earl of Strathmore. In that bloodline, it shows that there is a very long list of candidates, which might even rival that of my noble friend Lord Lang. I do not think that six is enough and perhaps one day, my noble and learned friend will be able to explain to me what I seem to remember from my earlier studies of Scottish law, when women come into the law of succession, which may have been changed. Would my noble and learned friend, let alone my noble friend Lord Lang, please take note that six is not enough?
Lord Forsyth of Drumlean
My Lords, briefly, I support my noble friend Lord Lang, who has proposed a perfectly sensible amendment. I am sure that my noble and learned friend will be able to accept it if for no other reason than that his right honourable friend the Deputy Prime Minister has indicated that the choice of six was purely arbitrary. My noble friend has made a strong and powerful case and what struck me most about his speech was the sheer serendipity of this matter. If this Bill had been in place—as someone in the other place pointed out during the somewhat truncated debate on the matter—the Kaiser would have ended up sharing the throne of the United Kingdom. These changes are unpredictable; the only difference I have with my noble friend Lord Lang is why he chose 12, not six.
I hope that my noble and learned friend Lord Wallace of Tankerness will not resort to the usual trick of saying, “Well, on the one hand, there is an amendment that says it should be fewer and on the other there is an amendment that says it should be more; I think it’s probably right that we got it somewhere in between”. I hope I have not taken his speech from him, because that would be a disgraceful response to what was a very well argued case, which demolished the basis on which the Government had reached their conclusion. If, however, my noble and learned friend finds that he cannot accept the number 12, it makes the case even stronger for having a special committee to look at these matters and consider them more carefully, so that we can get a number which actually makes sense.
Lord Trefgarne
My Lords, I would like to make a short intervention at this point; it is a serious point. We are not approving marriages: we are saying whether the people who marry can remain in line to the Throne. There are some categories of marriage that we might consider would make it inappropriate for the person concerned to remain in line to the Throne. Others have mentioned the single-sex marriage legislation that is going through Parliament. It might well be that a future sovereign would feel disinclined to approve a marriage of that kind, lawful though it might otherwise be. I put that serious proposition to the Minister. Like my noble friend Lord Lang, I favour an increase in the proposed number.
Baroness Hayter of Kentish Town
My Lords, I start by thanking the noble Lord, Lord Lang, for his historical insight. As a mere contemporary historian, I think more in months than decades. However, I note that in the period I have studied, families have become rather smaller; having two or four children seems to be slightly more normal now. If it is true that the Deputy Prime Minister took six as a purely arbitrary figure, perhaps it is connected to his belief that 600 is an appropriate number for MPs in the House along the way. However, I am sure that that was not the case.
The purpose of the need for consent is to recognise the interests of the Crown, as advised by the Privy Council, and to acknowledge the public interest in the question of the potential consort to our head of state. We do not imagine that any likely heir would seek marriage with the head of state of another country with whom perhaps we have less than friendly relations, but clearly there is a public interest, and an interest to the body politic, as well as to the lovebirds concerned, in such a matter. Therefore, there is reason to consider the matter of such an intended marriage in this way, with the consent of the monarch, because we know that that means that those wider considerations will be brought to bear—I assume with due advice from Ministers. At Second Reading, my noble friend Lord Stevenson asked about the sort of advice that might be proffered in cases where consent might not be given. The Minister might like to suggest some of those scenarios, if thought has been given to them.
There is no indication that any such need for consent—perhaps the case of the late Princess Margaret disproves this—has ever caused a problem. I refer to the need for consent rather than consent being given. Of course, I am sure that if there were such cases in the past, they were kept fairly discreet.
Despite the concerns of the noble Lord, Lord Lang, the figure of six appears fairly sensible. It is one more than has ever been needed, but not so large that those whose chances of succession frankly are tiny need to take the time of the monarch and his or her advisers by requiring their consent. We look forward to any further comments from the Minister.
The Earl of Erroll
My Lords, the noble Baroness, Lady Hayter, pointed out that families tend to be smaller, but we live longer. For instance, the reigning monarch is about to become a great-grandmother. Taking an average of two to four children, which is three, when there are three children in the first generation and three sets of three children in the second generation, we have already reached our figure of 12. The next generation will go beyond 12, yet we are still looking at the first line. It would be only too easy for a disaster to happen to one line, so the noble Baroness proved the case that six is too few, and we should forget about longevity.
Lord True
My Lords, my name is on the amendment but all the arguments were made in a compelling speech by my noble friend. The remarks of my noble friend Lord Forsyth were also conclusive. Perhaps the Minister will consider the following: once the child for whom we are rushing out this legislation is born, how will the Deputy Prime Minister explain to one of the daughters of the Duke of York that she will have to seek permission but her sister will not?
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Lang for this amendment, and not least for the way in which he moved it. Although it was entertaining in many respects, I fully recognise his points. I am not being disparaging—I enjoyed his speech. It was a very good speech and his points were interesting. It is important to point out that none of the people who were in and out actually ascended the Throne. I take his point, which is a pertinent one. Reference has been made on more than one occasion—in another place, too—to the issue of Princess Victoria, as she was known when she was born, being fifth in line to the Throne. There has not been a monarch since the 1772 Act who has been any further out at birth.
Perhaps my mind was working along similar lines to that of my noble friend because I also asked whether it is worth considering when the provision actually bites—which, of course, is at the point of marriage. Since the 1772 Act came on to the statute book, the person who was furthest away from the Throne at the time of consent to a marriage being sought and given was, indeed, around the same time as my noble friend was talking about: King William IV was third in line to the Throne when he married and when he sought and was given consent for his marriage under the 1772 Act. So, in the 240 years since the Act was passed, William IV has been the furthest away from the Throne at the time of his marriage. Again, I am not pretending that there is perfection in this, and I do not believe that a Select Committee could attain perfection in this either. The proposal for six therefore still allows a considerable amount of leeway—which is probably not the right word, but it is the most appropriate word that comes to mind at the moment.
It is important to remind ourselves that a balance needs to be found between mitigating against catastrophic but remote hypothetical events of a line being wiped out and the risk of impinging unnecessarily upon the lives of those who are distant from the Throne. Clearly, my noble friend Lord Lang would prefer to give greater weight to the former; my noble friend Lord Northbrook gives greater weight to the other end of the spectrum. I will not found my argument on that. As three is the farthest away from the Throne at the time of marriage, I believe that six is reasonable. This is bearing in mind that, on the other side of the coin, it can impinge unnecessarily upon the lives of those who are that much more distant from the Throne.
Lord Forsyth of Drumlean
My Lords, what representations have the Government had from anyone about their lives being impinged unnecessarily in this matter?
Lord Wallace of Tankerness
We have not had the representations that one would expect to receive. I suspect that under the present law there are people who, understandably, do not know that, as a descendant of King George II, they are expected to get consent from the sovereign if they wish to marry. Indeed, we seek in this Bill to address the issue of those who have, as it were, unwittingly married.
The other important point perhaps addresses the point made by my noble friend about the European Convention on Human Rights. There are two issues here. First, the European Court of Human Rights has generally been very reluctant to engage in issues which go to the heart of a nation’s constitution and who should be their head of state. Secondly, unlike the 1772 Act, which made a marriage void if the consent of the Sovereign was not forthcoming, this does nothing so significant. It simply removes the person from the line of succession and the marriage will still be valid. It means only that the person who had not received consent would not take their place in the line of succession.
My noble friend Lord Lang asked where the number six arose from. Ahead of the Perth agreement my right honourable friend the Prime Minister wrote to each realm Government proposing changes to the law of succession principally with regard to the removal of male bias and the bar on the heir marrying a Catholic. At that point the realm Governments were also made aware of the issues surrounding the Royal Marriages Act and the view of this Government that it was outdated. Subsequent discussions with the realm Governments were led by New Zealand which concluded that it was in the public interest and reasonable and proportionate for those who are genuinely close to the Throne to seek consent to marry. To avoid the same problems presented by the Royal Marriages Act in attaching a monarchical consent requirement to the descendants of a specific monarch—at Second Reading I think that someone suggested that we could make it the descendants of George VI rather than George II; that was thought to store up problems for the future—the number six was proposed and agreed. My right honourable friend the Prime Minister then wrote to each of the realm Prime Ministers to confirm their consent to this provision.
I apologise that I was unable to respond to my noble friend Lord Trefgarne at Second Reading when he asked whether consent had ever actually been refused under the 1772 Act. So far as the Government are aware, there has been no instance when the sovereign’s consent to a royal marriage has been refused. My noble friend Lord Northbrook asked in relation to Amendment 14 whether the common law still applies to monarchical consent in cases such as the remarriage of a dowager queen. There is a good argument that the 1772 Act replaced all common law provisions on royal consent to marriages, but it also could be argued that because the 1772 Act applies to the descendants of George II, the common law requirement might conceivably still apply to members of the Royal Family who are not descendants of George II, for example in the remarriage of a dowager queen or a prince consort. But these instances would not affect the line of succession and it is important to recognise that what we are doing here relates only to that. The Bill is concerned with people who may become the sovereign, not with members of the wider Royal Family. It has a specific purpose.
As I say, no number will be perfect, but if one considers that, in the 240 years since the 1772 Act went on to the statute book, the furthest away in line from the Throne at the time when consent for marriage was sought was three; we are allowing for three more. I believe that the figure is a rational one and I would invite my noble friend to withdraw his amendment.
Lord Lang of Monkton
My Lords, I know that my noble and learned friend has a job to do, and that is to get this Bill through intact. I have no doubt that those are the orders he has been given and that the word “Resist” is printed on every page of his brief. The fact remains, however, that he must have heard the almost unanimous voices in this Chamber expressing their support for an expansion of the number from six. My noble friend Lord Northbrook offered an alternative of either four or zero. I would live with zero, but only if the provisions that still require the sovereign to be a member of the Church of England were withdrawn. That would remove the tension that this Bill otherwise builds into the royal succession; that is, between those who are allowed to marry Catholics and those who cannot inherit the Throne unless they are members of the Church of England.
My noble friends Lord Lexden, Lord Lyell, Lord Forsyth and Lord True gave some fine additional historical examples of the sort of problem that can arise in these circumstances. My noble friend Lord Lexden mentioned in particular the history of the gun pellets through the window at Sidmouth and that house in the rainstorm during which Prince Edward contracted an illness from which he died a week later, thus precipitating Princess Victoria up the line. There was another incident, I believe, when a pony and trap bearing the princess panicked and sped off, and she very nearly died. In answer to the question put by my noble friend Lord Lexden, if she had died, my belief is that Prince Ernest Augustus, the Duke of Cumberland and Teviotdale, would have inherited the Throne. He subsequently went on to become the King of Hanover where male primogeniture still predominated, when King George IV, I suppose it would have been, could not have inherited that Throne when it became vacant.
My noble and learned friend said some very kind things about what I have proposed and the arguments I advanced, but then proceeded to reject them without going further than talking about “arbitrary” and “pragmatic”. If I heard him correctly, he said that none of the historical characters I mentioned had reached the Throne. Queen Victoria reached the Throne, and he has not risen to that point.
Lord Lang of Monkton
Perhaps I may finish my argument before he denounces or deals with it. Queen Victoria would then have had to give consent to herself before she could have married Prince Albert. My noble and learned friend will argue, “Ah, but she would have been guided by Ministers”. Lord Melbourne was a pussycat who doted on Queen Victoria and he would not have said no. He had enough problems already with Lady Caroline Lamb. I shall give way to my noble and learned friend.
Lord Wallace of Tankerness
I apologise if my noble friend misunderstood me; I said that no one whom he mentioned, who had gone into the list of six, come out of the list and then gone back into it, had actually gone on to inherit the Throne. That was my point. Of course, Queen Victoria as Princess Victoria inherited the Throne, but I think that the idea of the sovereign giving consent to him or herself is one that has possibly arisen on other cases too. I cannot immediately think of what they were, but that is not even an anomaly; one cannot give consent to oneself.
Lord Lang of Monkton
If I burned the night oil I might be able to find an example. What my noble friend says simply underlines the fact that he did not answer the point about Queen Victoria having to give consent to her own marriage. That must be a fault in the Bill, and I ask him to consider it further before we reach Report.
My noble and learned friend concluded by saying that no number is perfect. I agree, but six is demonstrably imperfect. So much of this Bill has been shown to be ill considered and imperfect, creating anomalies and potential for long-term difficulties of a very considerable nature. When we legislate in a Bill of this kind, we are legislating not just for decades, but for centuries, and so many points have been made today that require further thought. I will withdraw the amendment, but I will consider whether I should bring it forward again on Report. I hope that my noble and learned friend will give very serious thought to what most people in this House—and, I believe, in the other place as well—consider to be an ongoing problem. I beg leave to withdraw the amendment.
Lord Elton
Lord Elton
My Lords, my attention was drawn to the subject of my amendment by my interest in the apparent haste in which the Bill was introduced in the other place and spirited through it in such a short time, since when our Select Committee commented on that and the Government have changed the pace of the legislation. My anxiety about this is reawakened by the resolute rejection by my noble and learned friend of even the best argued, most cogent and simple cases that have been put to him. I begin to wonder what it is that makes it so important not to change any part of the Bill.
When I was preparing for this debate, I thought that I would see whether the Bill had been amended already. I was surprised to find that it had in the House of Commons. The words which my amendment seeks to delete from line 20 are the words “from the marriage”. Until Committee on the Floor of the House of Commons took place, the subsection read:
“The effect of a person’s failure to comply with subsection (1) is that the person and the person’s descendants are disqualified from succeeding to the Crown”.
One would think that that was perfectly straightforward. These people are the people who are brought into the Bill for consideration by subsection (4), which is the subsection abolishing the provisions in the 1772 Act, and subsections (1) and (2) then proceed to substitute other provisions for a smaller number of people—we have just been debating what number.
As far as I can see, the effect of adding to the words “the person’s descendants” the words “from the marriage” would be to eliminate from the provisions of this clause the illegitimate progeny of a number of people. Therefore, when I looked in the House of Commons to look at the Minister’s arguments in favour of it, I found that in total, the whole of her argument was:
“Clause 3 is, as a Member put it earlier, one of the more arcane provisions in the Bill. The Royal Marriages Act 1772 currently requires, subject to some very limited exceptions, the descendants of George II to seek the consent of the monarch before marrying”.
So it did, but, as I have demonstrated, subsection (4) deals with that. We are now looking at those who remain, the descendants of the six—or 12 or four, whatever we finally put in—who have or have not got the consent of the monarch to marry. That, she said,
“probably affects hundreds of people”.
They must be a prolific bunch if there are going to be hundreds of them, or else we are talking about somebody else. I find that quite extraordinary. She then said that,
“we do not think that such a sweeping provision continues to serve a useful purpose today”.—[Official Report, Commons, 22/1/13; col. 273.]
Actually, I do not think that relates to the insertion of those words at all; one has to look for a different reason.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Elton for his amendment, which gives me a welcome opportunity to explain why the amendment that he is seeking to delete was inserted in Committee in the House of Commons.
The effect of the Bill as originally presented, as indeed would be the effect of my noble friend’s amendment, would be to disqualify all descendants from any marriage of a person when a marriage of that person was not consented to. For example—and in fact the other way round from what my noble friend suggested—if a person in the line of succession married with consent and had children, their spouse died and they remarried without consent and had children, the children of the first marriage, which had been consented to, could be disqualified.
The intention of subsection (4) is to disqualify from the line of succession any royal descendants from a marriage not approved by the sovereign. It would go too far also to disqualify descendants from a previous marriage for which consent had been obtained. For these reasons, the amendment to include the words “from the marriage” was tabled and accepted in another place. That is entirely consistent with the agreement that was reached with the other realms and removes a possible ambiguity. The other realms were fully informed of this drafting change before it was proposed.
We will come later to an amendment in the name of my noble friend Lord Trefgarne that relates to the bringing into effect of the Bill. There is no date set. I do not want to pre-empt that amendment and that discussion, but if my noble friend Lord Elton looks at Clause 5, “Commencement and short title”, he will see that provision is made for it to come into force,
“on such day and at such time as the Lord President of the Council may by order made by statutory instrument appoint”.
The purpose of that is so these measures can all come in together on the same date and, I think, at the same time, in the 16 different realms.
Some realms are dealing with this in different ways. Some, such as New Zealand and Canada, will legislate to ensure that the changes take effect in their country. I believe that the Bill was brought into the New Zealand Parliament last week. Other realms, such as Papua New Guinea and Jamaica, have found that they do not need to legislate. The intention is that when all realms have done what is necessary regarding their arrangements, the measures will be brought into effect at the same time. There is no date set.
It has been said that the Bill was rushed through the other place. As I have said on more than one occasion, the Bill did not even take up the time allocated to it in the other place, so I am not sure what could have been done if more time was allocated. It is a simple fact that the time was not taken up.
Lord Forsyth of Drumlean
To argue that it did not take up the time and to try and present this as treating an important constitutional measure properly is quite unfair. The point is that all stages of this Bill were carried out over two days in the other place. The conventions have been that constitutional Bills are dealt with over a proper passage of time so that people can make points, the Government can think about them and perhaps even come back with a suggestion for change. By tradition, constitutional Bills have always been taken on the Floor of the House of Commons. To try to argue that this Bill was not rushed through the other place in an untimely manner, with many Members’ speeches protesting about the way it was handled, is a little misleading.
Lord Northbrook
Perhaps I may add to my noble friend Lord Forsyth’s comments. At least 17 amendments were put down in Committee in the other place. Only two were actually discussed. I am sorry, but to say that all the amendments put down in Committee were discussed is not the truth.
Lord Wallace of Tankerness
Unlike in your Lordships’ House, where every amendment tabled can be debated, amendments are selected in the other place by the Speaker. The system is different. I will not argue which is better, but I find it worth while in your Lordships’ House that we can go through every amendment that is within scope and debate it. It helps us to undertake the scrutiny role which is appropriately ours. I hope that your Lordships feel that the time allocated to this Bill and the proper phasing of it through the different stages is appropriate. As I have already said, the realm Governments were alerted to the drafting change, were given an opportunity to comment and all expressed satisfaction with it.
Lord Lexden
I shall belatedly put my question about what my noble and learned friend was saying about the passage of the legislation in the other realms. Should one infer that if anything goes wrong in any of these realms and the legislation is not implemented, then the legislation falls everywhere and will not be implemented in this realm?
Lord Wallace of Tankerness
That is certainly my understanding. That is why we have the implementation clause. Even if we pass this the intention is that the provisions will not commence until all realms have done what is necessary in each of their territories.
Lord Elton
My Lords, as this is the realm in which the Queen is perceived as being principally the head, Supreme Governor, monarch and the rest of it, presumably the legislation in the other realms and territories is, in a sense, consequential. Therefore I was a little surprised to hear that they are already putting things on their statute books while we have not finalised what we are putting on our statute book. The question I again ask is: what is the procedure? The timing, I gather, is terminus ante quem non; there is no time by which we have to get this done, so the pressure is off. The next question is: what do we use that time for and how does it impact on the other members of the Commonwealth and the territories? If we were, for instance, to adopt my noble friend Lord Lang’s eminently sensible suggestions—or, indeed, the less sensible, in my view, suggestions of my noble friend Lord Northbrook—would that require those countries which already had something on the statute book to adjust it? Or are they simply saying, “We hereby agree with whatever the United Kingdom Parliament finalises”? It is difficult to know how all this is negotiated and how that affects our dealings in the Chamber.
Lord Wallace of Tankerness
My Lords, I will try to help. When we come to later amendments, if there is any further information I can give or anything I say needs to be corrected, I will do so. Some of the realms take the view that under their own procedures they require legislation. It is not for this Parliament to determine what happens in other countries. At Second Reading I reported that a Bill had already passed through the lower House in Canada and had been presented in the upper Chamber. As I said, a Bill was presented to the New Zealand Parliament last week.
Other realms take the lead from this Parliament and have indicated that they do not believe that they will need separate legislation. Their arrangements are such that their head of state will be the person who is the head of state of the United Kingdom. The important point in all of this is that we are passing legislation which will be used in some countries, but it has been done on the basis of an agreement that has been reached.
If the Bill were changed with substantive effect, the other realms would need to adjust their legislation where they are legislating and make sure that the same changes are given effect. That would obviously require the agreement reached between the 16 realms.
As I indicated earlier, the amendment that was moved in the other place was circulated and the other realms were given the opportunity to comment before it was brought forward. They indicated that they were fine. I do not think that it was a substantive amendment, but it was nevertheless one on which we sought to ensure that there was proper consultation and information given and an opportunity to comment. Clearly, if there were a change with substantive effect, that would require further agreement.
Lord Elton
Is it a matter of interest in Canada, for instance, whether the number six, 12 or four appears in the Bill at the point we were looking at just now? If so, what will the Canadians do about it?
Lord Wallace of Tankerness
My Lords, I do not think that I have seen the Canadian legislation but, in as much as it is giving effect to the same agreement, I would anticipate that the number six is there. If there were to be change, as I indicated in my previous contribution, that would have to be agreed with all the other realms. I will stand corrected, and in response to my noble friend Lord Trefgarne’s subsequent amendment I can clarify that. However, my understanding is that all the realms would have to agree if there was a substantive change.
Lord Forsyth of Drumlean
Why did the Government choose to go about this in this rather unconventional way? Why did the Executive agree with other heads of government a process rather than asking Parliament to consider legislation and then seek agreement from the other interested states, which would also have given their parliamentarians an opportunity to be involved in the process?
Lord Wallace of Tankerness
My Lords, I do not necessarily accept that it is unconventional. If this Parliament had decided what it wished to do and dictated the matter to the other realms—that have legitimate interest in who is their head of state—it would not have been consistent with the notion of countries such as Australia and New Zealand being independent from the United Kingdom. It was always anticipated that if there were to be a change, agreement would be reached. However, as I said in an exchange during the first amendment with my noble friend Lord Trefgarne, it was important that we sought to get agreement among all the realms and for the changes to be implemented as appropriate in each country. It would have been wrong if we had dictated what the terms should be. Considerable agreement was reached, which New Zealand was responsible for co-ordinating.
It is not as unprecedented as it sometimes sounds; we agree international treaties which Parliament is then asked to ratify. This is not exactly on the same lines but it is important to have that agreement. At the time, everyone seemed to think it was right to seek agreement and then to put the proposals before Parliament. This is a process which predates this Government and has been going on for some time.
Lord Cormack
Is my noble and learned friend saying that, because the Prime Minister has given that undertaking to international colleagues, we ratify this in every last particular? Or is he saying that we have the parliamentary process and therefore while we must adhere to the principles we can deal with the detail? There is a very big difference between the two, so which is it? Do we have the authority, as a House and as a Parliament, to alter the details, from six to 12 for instance, or do we not? If not, it is frankly an abuse of parliamentary procedure.
Lord Northbrook
As a supplementary, could I ask whether having been amended in the Commons, the Bill now has to be reapproved by the heads of government?
The Earl of Erroll
On that subject, I may be able to assist. It depends on whether they passed Acts in the parliaments to say that they would agree to whatever we do or whether they try to enact the particular provisions. It would be worth the Minister looking at how they implemented it in Canada or Australia. Did they say, “We will assent to whatever”, or did they say, “This is what we are going to do”? For simplicity, I suspect that they may have gone down the route of saying, “We will assent to whatever the UK Parliament decides”. If so, it solves the problem; though the Executive may enter into treaties on behalf of the Crown, it is for Parliament to enact the rules that govern the Executive and therefore Parliament legislates and forms the principles of these things. If this were a treaty, I would have said it was then in the power of the Executive to agree this. If it is not a treaty, it is in Parliament’s remit to decide what is done. I suggest the Minister should look at how these countries have enacted it into their local laws.
Lord Wallace of Tankerness
My Lords, different realms do it in different ways. To pick up the point of the noble Lord, Lord Northbrook, with regard to the amendment raised by my noble friend Lord Elton—on the same subject matter we are discussing now—it does not change the substance of the agreement but rather seeks to remove a possible ambiguity. It was circulated among the other realms, their comments were sought and they were satisfied with that.
With regard to the point made by the noble Earl, Lord Erroll, I understand different realms are dealing with this in different ways. At least one of them, I think, is saying that it approves of the law passed by the United Kingdom Parliament. Others are approving more substantive legislation, and some believe no legislation is necessary at all. It varies, but at the heart of it was an agreement on the substance—namely, the removal of male bias in terms of succession to the Throne; the removal of the barrier of the person in line of succession marrying a Roman Catholic; and the abolition of the Royal Marriages Act 1772 and its replacement with the sovereign’s consent for the first six in line. Earlier, in my response to my noble friend Lord Lang, I indicated that I do not think that that was in the original Perth agreement but was subsequently agreed. The number of six was agreed with the realms.
Lord Forsyth of Drumlean
I am most grateful to my noble and learned friend. Will he be kind enough to write to those of us who have an interest detailing how each of the realms concerned will deal with this matter? Would there be any merit in us trying to persuade those parliaments perhaps to accept my noble friend Lord Lang’s injunction to change from six to 12? If one of them did so, what would happen then? Would we have to go back and look at it again? How would it be resolved?
Lord Cormack
Further to that and, in a sense, even more pertinent, if this Bill should pass Report stage in this House and the other place endorses the change of six to 12, is my noble friend saying that that would invalidate this international agreement? Does this Parliament have authority in this matter or not?
Lord Wallace of Tankerness
My Lords, my noble friend Lord Forsyth asked about being informed. Obviously, developments are in train. I will try to give him and others who have contributed information as up to date as possible. With regard to my noble friend Lord Cormack’s question, if we were to make a substantive change, before any implementation could take place, we would have to ensure that there was agreement among all the realms. On a substantive matter such as the six to 12, it would not be a happy situation to have a disjunction between the realms.
Lord Elton
My Lords, I am much obliged to my noble and learned friend. I think that my noble friend Lord Cormack’s intervention draws to my attention one of the great dangers that we are in, which I fell into myself a little earlier in these exchanges; namely, the danger of treating ourselves as the big brother who tells everyone else that they have to follow. Things have changed since then, and in these exchanges we need to deal courteously with those with whom we are associated. My intention was not to say that we were the most important realm or that this was the principal realm of the Queen, but to say that, since we were the initiators of this move, naturally we would be the ones who would hope that others would follow.
I think that I have given my noble and learned friend a good opportunity to understand some of our underlying concerns. I hope that when he comes back to the Dispatch Box on Report he will be able to give us a pretty cut-and-dried, laminated explanation of exactly how all this is working, which can go into the record. A letter would be very welcome as a preliminary, but we should have something to indicate that Parliament knows what is going on. I am most grateful for the full answers that my noble and learned friend has given to this probing amendment and I beg leave to withdraw it.
Lord Trefgarne
“(7) No consent granted or refused under this section shall be challenged in any court of the United Kingdom.”
Lord Trefgarne
My Lords, this is a probing amendment. I am anxious to know—I believe that others may be as well—whether a consent granted or refused by the sovereign in respect of a marriage to which he or she is required to give consent can be challenged in the court by means of judicial review. I should be grateful if my noble and learned friend would clarify the position.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Trefgarne for raising an issue which I think he raised at Second Reading. The effect of his amendment would be to ensure that in no instance could the sovereign’s consent or otherwise to a royal marriage be challenged in the courts. It has to be said that over the 240 years when consent has been required, it has not been tested in the courts. But in the Government’s view the decision, given that it is a decision taken by the sovereign, could not be challenged in the sovereign’s courts. We do not believe it to be necessary to provide for this in the Bill. Indeed, whether the number is six or 12, it is an unlikely event that someone so close to the Throne would contemplate such an action. My point is that the decision would be one made by the sovereign and would not be challengeable in the courts of the sovereign.
Lord True
My Lords, as I said earlier, is it not the case that in the early 1830s Augustus d'Este, the son of the Duke of Sussex by a marriage unapproved under the Royal Marriages Act 1772, did in fact posit documents in Chancery to challenge the legitimacy of the action? Furthermore, in 1843 papers were put before the Committee for Privileges of this House, and the case was heard by this House in 1844. There is certainly an historic precedent and, as I mentioned in passing, a challenge. Some of the issues that came up today are perhaps rather wider than Clause 3. To my mind, this goes to reinforce the points made by a number of noble Lords about the need for absolute clarity, and the fortification of what we are doing against potential challenge in the courts that now exists.
Lord Trefgarne
My Lords, I hope that between now and the next stage the noble and learned Lord may on reflection be able to offer a more forthright assurance than that which he has been able to give so far, if I may say so. The fact is that the process for judicial review in this country is a comparatively new one. It has only been going for the last 15 or 20 years. Therefore the fact of there being no precedent is not much of a comfort to the noble and learned Lord, if I may say so. I would be grateful if he would consider this further before the next stage and perhaps take into account the case referred to by my noble friend Lord True.
Lord Wallace of Tankerness
I shall certainly reflect on it further. It will not come as a surprise to my noble friend that this has already been the subject of some reflection. However, if he indeed wishes to return to this at Report, we will do so. To take up the point made by my noble friend Lord True about the Sussex peerage case, my understanding is that this case was not about whether consent had been refused unlawfully. I think the issue was that consent had not actually been sought.
Lord Trefgarne
If I may say so to my noble and learned friend, there is clearly scope for some further reflection on this matter. I will raise this at the next stage of the Bill. In the mean time, I beg leave to withdraw the amendment.
Lord Trefgarne
“(2) The other provisions of this Act shall be brought into force by statutory instrument subject to the approval of both Houses of Parliament.”
Lord Trefgarne
My Lords, under the Bill as it is presently before us, I refer to subsection (2) of Clause 5, which states that:
“The other provisions of this Act come into force on such day and at such time as the Lord President of the Council may by order made by statutory instrument appoint.”
The Lord President of the Council is of course my right honourable friend the Deputy Prime Minister, for whom nobody has greater respect than I do—most of the time, anyway. Is it really right that a major piece of constitutional change, such as is represented by this Bill, should be brought into force by the diktat of one sole Minister, however distinguished and however senior, without any sort of further parliamentary involvement? I really do not think that is right. I do not in any way wish to make this a personal matter, but I do not think that any Minister should have this power regarding a major, important constitutional change of this kind. I hope that on reflection my noble and learned friend will agree. Therefore, I beg to move the amendment standing in my name.
Lord Cormack
My Lords, although not entirely relevant to the amendment, it would be very helpful if when my noble and learned friend responds he could give us some indication of when we are likely to have the Report stage, because a lot of matters have been raised this afternoon—I can see my noble friend Lord Trefgarne nodding—about which many of us remain either mildly or even acutely concerned. Some of us would like to have conversations with him on some of these issues. I hope that there will be time, because the one thing that has not been made clear during today’s deliberations is the need for rushing this legislation. I hope that there will be adequate time between now and Report, and between Report and Third Reading. I fully appreciate that my noble and learned friend is not in charge of the business arrangements of the House, but if he would give us some rough idea of when we are likely to debate these matters next, I think that it would be helpful to all of us.
Lord Stevenson of Balmacara
My Lords, the two amendments in this group would give us an alternative way of bringing the Bill’s provisions into force. Amendment 17 slightly overlooks the point that local parliamentary approval is not necessary in all realm Parliaments as we have discussed, so it perhaps should not be taken forward at this stage. However, I am interested in Amendment 16, because it plays to some of the strands of discussion that we have had both at Second Reading and today. For instance, the Minister addressed at Second Reading the issue of whether the Bill was being fast-tracked. He said:
“I accept that the Explanatory Memorandum states that, but in fact the Government in the other place paid regard to what was said by your Lordships’ Constitution Committee”.—[Official Report, 14/2/13; col. 829.]
He went on to explain that, because the Bill has retrospective effect, there is no significant time pressure, and certainly not sufficient to warrant fast-tracking—that point has been picked up and talked about a bit today.
The Constitution Committee was therefore listened to in respect of the time allocation, but it also drew attention to the constitutional importance of the Bill—which, again, the noble Lord, Lord Trefgarne, has talked about. It is this point that I am interested in. There is obviously a case for moving the legislation forward in a way which minimises any possibility of getting out of sync with the other realms, and we must have regard to that, but there is another strand, which is that this is a major constitutional position. We are all, I think, agreed on that point, if we are not agreed on how much of it we need to deal with in this process.
In some ways, what is being proposed seems pretty hole-in-the-corner stuff. Would it not play to the advantages which the noble and learned Lord has been claiming for the Bill if it were given the full parliamentary approval process for secondary legislation; in other words, going through both Houses of Parliament and being agreed by both Houses? I know that it would be more onerous and would involve a little more time and effort on the part of the Minister and his officials, but it would mean that we had the evidence that all the other realms had looked at the Bill properly and considered it. We would have the detail about which ones had put forward a different or alternative version of the words—we could check whether exactly the same intent was being imported by the words being used in those local areas—and we would have the reassurance that everything had been done, with all the “t”s crossed and the “i”s dotted. It is in that sense that I suggest to the Minister that we should think about bringing in this process.
Something that is in the control of this House and this Parliament does not affect how others do it but would play back to our sensibility that this is an important Bill worthy of the detailed scrutiny that we have given it today but worthy also of the other appurtenances that go with constitutional measures.
Perhaps I may respond on behalf of the Government in terms of where we are on the process: Forthcoming Business has the Report stage of the Succession to the Crown Bill down for Wednesday 13 March.
Lord Northbrook
Perhaps I may draw the Minister’s attention to something of which I have already given him notice in respect of Amendment 17; namely, the House of Lords Library paper on the Succession to the Crown Bill. It says, in summary, that when there is constitutional change there have to be referenda in the following countries: Australia, Jamaica, the Bahamas, Grenada, St Lucia, St Vincent and the Grenadines, Antigua, Barbados and St Kitts and Nevis. Could he confirm that the Library is correct on these matters and, again, how the timing might take place?
Lord Elton
My Lords, I think that that falls outside the terms of the amendment. If I could return to my noble friend’s question, surely the answer to his worry is quite simple: at the end of line 31, insert the words, “subject to approval by both Houses”.
Lord Forsyth of Drumlean
My Lords, I was quite struck by an argument that my noble and learned friend used in an earlier amendment when he chided me, in arguing that it was important that Parliament was able to take account of the arguments of other parliaments, and suggested that I might be presenting this Parliament as dictating—as opposed to the Executive; it is okay for Ministers to decide things over lunch, but it would be dictating if Parliament made decisions. I see that he has a point there; if we had brought this legislation through both Houses, there might be a feeling in the other realms that we had it all cut and dried.
I have been reflecting on that in a humble way, and have been so persuaded by my noble and learned friend’s argument that I think that the noble Lord, Lord Stevenson, has got it 100% right. If, as my noble friend Lord Elton has just suggested, we were to amend the commencement provision to require approval by both Houses after the other realms had considered these matters, then we would have an opportunity to demonstrate to all those other realms how we were taking account of the views not just of their Ministers but of their parliamentarians. This proposal is actually a clever and ingenious way of delivering what the Minister himself said was appropriate only a few moments ago.
Lord Northbrook
My Lords, my queries actually applied to Amendment 17, which I think is grouped with this one.
Lord True
My Lords, what has been said about the Deputy Prime Minister, for whom I share respect, is valid: specifying that particular Minister is a slightly questionable way of proceeding. Will my noble and learned friend confirm that it is not part of the Perth agreement that the Deputy Prime Minister should be personally responsible, so that we can look at that matter at a later stage?
To be fair to the Deputy Prime Minister, he has taken a major part in pushing this forward, and I think that that is acknowledged, but we must not be seen to be getting into a position where a young couple whose child is to be born are exploited in any way politically. We do not want grand press conferences by any particular Minister saying, “This is all happening, if this baby is a girl, because of what I have done”, and so on. I am sure that the Deputy Prime Minister would not fall into that temptation, but perhaps if Parliament, in its wisdom, slightly depersonalised the amendment on Report, as my noble friend Lord Trefgarne proposes, there might be wisdom in that.
Lord Trefgarne
My Lords, I would like to say a few words about Amendment 17, which I believe is grouped with this one. That is a slightly separate point, if I may say so. I am picking up the point that my noble friend Lord Northbrook has made, that the parliamentary approval process in many of the Commonwealth countries includes a referendum and is over and above whatever Ministers may have agreed over lunch, as my noble friend Lord Forsyth put it. The fact is that parliamentary approval is required in most, if not all, the Commonwealth countries concerned, and in some of them a referendum is also required. Presumably that cannot be done overnight, so it would be better if the Bill came into force when all the Commonwealth countries had consented to it.
We have a problem if some of the countries approve and some do not. You would not have to think too tortuously to conceive of a situation at some future point where the late sovereign’s eldest child in one country was to be their head of state and the second child, who was a boy, was head of state of another. That is clearly absurd, so we need to speak with one voice on this matter as far as the Commonwealth is concerned. It might therefore be best to wait until they have all agreed.
Lord Wallace of Tankerness
My Lords, this picks up on some issues that were debated earlier. I should clarify that the reason why the Bill specifies the Lord President is that the ministerial responsibility for constitutional and elections law currently rests with him. The Privy Council is also involved in constitutional matters. Indeed, credit should go to my right honourable friend the Prime Minister because I do not think that my right honourable friend the Deputy Prime Minister was in Perth. It was not simply a case of discussing this matter over lunch; it was more than that. I think that the noble Lord, Lord Stevenson, was involved in this issue in a previous incarnation under the previous Administration.
Lord Wallace of Tankerness
The noble Lord may not have been involved in any lunches but I think that he was involved in efforts at No. 10 to try to forge some of the agreements to take this matter forward. That indicates that this issue did not suddenly emerge at the Commonwealth Heads of Government conference in Perth, Australia. It was the opportune time, with the Heads of Government being present, for that agreement to be finalised, but a considerable amount of work and discussion went on ahead of that. As I have indicated, the reason why the Lord President is referred to is due to the current ministerial responsibilities.
I am not wholly unsympathetic to the idea that we might have a subsequent form of approval, but it is not common for Parliament to approve commencement orders. This is a commencement order. It is not as if it is an order that will make amendments to anything or promulgate a new set of regulations; it simply commences something which Parliament will already have approved through the proper parliamentary procedures. Indeed, the Delegated Powers and Regulatory Reform Committee, whose reports the House sets great store by, found no fault with this provision. Given that this matter has been debated, I wonder what further steps we could take. The noble Lord, Lord Stevenson, indicated that there might be an opportunity to reassure both Houses that each of the realms had done what was necessary under their own provisions. I am very sceptical about that but it does service to the arguments that have been put to consider it. We have made it clear—I must again give this reassurance—that we will commence the legislation only once we are satisfied that each realm has taken the necessary steps to give effect to the changes. There is flexibility in the commencement date to ensure that the laws across the realms are consistently applied.
My noble friend Lord Northbrook raised the question of referendums. This was also picked up by my noble friend Lord Trefgarne. My understanding is that referendums would be necessary in other realms only if they decided to amend their constitutions. We do not believe that any realm intends to do so. Officials working on this legislation do their utmost to try to keep in touch with the different realms and they have been given no indication by any realm that it intends to hold a referendum. However, as I indicated to my noble friend Lord Forsyth on an earlier amendment, I will do my best to give an update on where each realm is in terms of what process they are proposing. Perhaps in that context I could helpfully clarify the position on referendums. However, I emphasise to your Lordships’ House that it is our understanding that no realm has flagged up that it intends to have a referendum.
Lord Trefgarne
My Lords, I am happy to accept that and I am sure that my noble and learned friend means what he says. However, I had heard that different referenda were needed in the different states of Australia. I hope that he can tell me that I am wrong about that.
Lord Wallace of Tankerness
My Lords, I repeat that I have not heard about any referendums. The Council of Australian Governments is currently considering the means by which Australia will implement the changes to the laws of succession. It is quite properly a matter for each realm to determine for itself how it should do this. I will try to update the House on these matters as best I can.
Lord Northbrook
Under Section 28 of the Constitution Act in Australia, the proposed law should be submitted in each state and territory to the electors qualified to vote for election of members in the House of Representatives.
Lord Wallace of Tankerness
As I indicated, it is up to each country to do it. We are not telling each country what to do and no one is suggesting that. It will be up to each country to determine, according to their own procedures, how that should be done. The key point is the flexibility built into the commencement clause: it will not be given effect to until we are satisfied that all realms have, by whatever procedures they consider proper and necessary, reached that position.
Lord Forsyth of Drumlean
I need to be absolutely certain that I understand what my noble and learned friend has been saying. Is he saying that this legislation will not come into effect until it has been approved by all the realms? Is he also saying that this legislation will not come into effect unless and until all its provisions have been approved to the letter by all these realms? In other words, is he saying that if there is a difference of a minor degree between one realm and the legislation then the legislation would not be taken forward?
Lord Wallace of Tankerness
My Lords, as I indicated at Second Reading, the intent is that it should be simultaneous commencement in each realm and therefore, by definition, it will not be brought into effect here. Clause 5 will come into effect on the day on which the Act is passed, but that is the commencement section. Otherwise, that then gives effect to what else is there in terms of the commencement order. If there is a material difference we would clearly not be in a position to commence. I think it was my noble friend who made the point that it would not be a very satisfactory position if two generations down the line the Crown went in one direction in one realm and in another direction in another realm. That is what we are seeking to avoid, that is why there was such an effort made to reach agreement and that is why it is important that, in translating that agreement, each realm does that by whatever means it thinks is appropriate according to its own procedures. When these are all done and delivering on the agreement has been reached, the commencement order would be made to ensure that commencement started simultaneously in each realm, delivering the same things.
Lord Forsyth of Drumlean
I do not want to detain the House or split hairs but my noble and learned friend said, “If there is a material difference”. I would not say that my noble friend Lord Lang’s amendment, which suggested changing from six to 12, made a material difference to the import or impact of the Bill. I would say that it was a perfectly sensible, minor adjustment. However, if one of the other realms, overwhelmed by the power of the argument put by my noble friend this afternoon, decided to change it from six to 12, would that mean that commencement would not proceed?
Lord Wallace of Tankerness
There is an agreement reached and it is up to each realm to implement the agreement. If that agreement is, somehow or another, not implemented in a realm, then we do not have the unanimity to permit commencement.
Lord Cormack
My noble and learned friend deserves a gold medal for patience and good, even temper. He is much admired for that, and I mean that very sincerely. Could he confirm that 13 March is, indeed, the date? Will he produce for us, before that date, a list of precisely what is required in each realm? There seems to be some disagreement: my noble friend Lord Northbrook referred to the necessity for referenda but my noble and learned friend seemed to think there was no necessity. It would be very helpful and conducive to good debate and discussion in this place if, on Report, we had a piece of paper which lists the countries, lists the process and gives the date where we are at the moment.
Lord Wallace of Tankerness
I apologise to my noble friend because I forgot about his point on that. The Future Business indeed indicates that Report will be on 13 March. I know that during these deliberations, I have indicated on more than one occasion a willingness to meet one or more of your Lordships. Someone from my private office is in the Box and will, no doubt, be noting that. I will certainly endeavour to ensure that purposeful meetings can take place and provide an opportunity for discussion in time for any amendments that noble Lords wish to table.
With regard to the list, I should say to my noble friend Lord Forsyth that the reason I perhaps hesitate to say how up to date we can get is that that is something I have been asking for. I understand that being bang up to date and complete is more challenging than it may seem. My officials have obviously heard this debate, and I assure the House that we will make the position as up to date as we can.
Lord Northbrook
Lord Northbrook
My Lords, we now move to the schedule to the Bill and another history lesson—the arcane matter of the Treason Act 1351, which most noble Lords will probably be surprised is still in existence.
One crime of treason that still exists is where a person owing allegiance to the Crown rapes either the King’s wife, the eldest daughter—if unmarried—or the wife of the eldest son and heir, who, in old French is,
“la compaigne leisne fitz & heir”.
In the past, such a person would be hung, drawn and quartered. Later, that was replaced by the death penalty, and now, following the abolition of the death penalty, the sentence would be life imprisonment. However, this crime has had no precedent in 660 years. Some people believe that two of Henry VIII’s wives, Anne Boleyn and Catherine Howard, were executed under this Act. They were alleged to have had sex with others, but the word “violer” was used, and it was likely that they were not executed under this Act but under separate treason legislation at the time.
There has therefore been no precedent after 660 years, but the amendment seeks to amend the wording of the Treason Act 1351 to,
“eldest son if the heir”.
The Minister has said that the Bill is not a vehicle for UK-specific policy. However, Graham McBain, the eminent lawyer, believes that it is ridiculous to change a law that has no force anyway in the relevant Commonwealth countries. It has not been used in the UK for 660 years and my view is reinforced by a royal commission report of 1878 and a Law Commission report of 1972. The consequential amendment should therefore be deleted from the schedule. I beg to move.
Lord Wallace of Tankerness
My Lords, as my noble friend said, the amendment removes the consequential amendments to the Treason Act 1351, which are necessary to ensure that the Act continues to have effect, given that the eldest son may not be the heir—in other words, if there is an older daughter and heir. I understand why my noble friend wishes to see the repeal of parts of the Treason Act, and he has rightly identified that the purpose of the Bill is not to deal with UK-specific issues.
I am tempted to observe that if all parts of criminal legislation that pass through your Lordships’ House have such a deterrent effect that no one offends against it for 660 years, we would be very satisfied. However, the point is that the purpose is to bring the provisions of the Bill into effect. It is a purely consequential change. However, I take the point made by my noble friend. As he is aware, there is more recent legislation relevant to treason and I have noted that the Law Commission has treason noted as a “simplification/codification project”. It will be interesting to see what recommendations it provides, but I do not think that this is the place to have a more fundamental review of the treason legislation. If, however, this legislation is to be on our statute book, it is important that it is consistent.
Lord Northbrook
I am grateful to the Minister for his reply and beg leave to withdraw the amendment.
Lord Northbrook
Lord Northbrook
My Lords, I believe that the consequential amendment in the schedule is unnecessary, as it is already contained in Section 12 of the Roman Catholic Relief Act 1829. I was not sure whether that should be repealed and am a little confused in this area.
Lord Wallace of Tankerness
My noble friend’s amendment removes the consequential amendments to the Regency Act, which are necessary to ensure that a person who has married without consent, and therefore loses their place in the line of succession, is also disqualified from being regent. I can assure my noble friend that this consequential amendment is necessary to harmonise the legislation, but also that there is no mistake in not going further and providing for a non-Protestant regent. This takes us back to an earlier debate, because in the sovereign’s absence, the regent undertakes duties related to the sovereign’s position as Supreme Governor of the Church of England and must therefore be a Protestant. That is what underlies this: it is to ensure that there is consistency, given the provisions of this Bill. I therefore invite my noble friend to withdraw his amendment.
Lord Northbrook
I am grateful to the Minister for his response, and I beg leave to withdraw the amendment.