House of Commons
Prayers
This information is provided by Parallel Parliament and does not comprise part of the offical record
Mr Speaker
I am sure the House will wish to join me in offering two sets of congratulations—first, to the British and Irish Lions on their magnificent series victory over Australia. Secondly, I feel certain the House will wish to join me in offering our heartfelt congratulations to Andy Murray on becoming the first British man to win the Wimbledon singles championship since Fred Perry last did so in 1936.
Oral Answers to Questions
Margot James (Stourbridge) (Con)
1. What steps he is taking to bring empty buildings back into use.
David Rutley (Macclesfield) (Con)
3. What steps he is taking to bring empty buildings back into use.
Rebecca Harris (Castle Point) (Con)
5. What steps he is taking to bring empty buildings back into use.
Karen Lumley (Redditch) (Con)
13. What steps he is taking to bring empty buildings back into use.
Julian Smith (Skipton and Ripon) (Con)
16. What steps he is taking to bring empty buildings back into use.
The Parliamentary Under-Secretary of State for Communities and Local Government (Mr Don Foster)
Among the measures that we have introduced in addition to the powers available to councils, we have provided £235 million in grant and £130 million in new homes bonus, we have revised and are further reviewing permitted development rights, and we have offered councils increased flexibility over council tax levels for empty homes.
Margot James
High street premises in the Cradley part of my constituency have been allowed to fall into a very poor state of repair, which is not conducive to their being brought back into use. What can my right hon. Friend do to encourage local authorities to use their existing legal powers, such as serving section 215 orders, in order to oblige freeholders and landlords to maintain their properties to an acceptable standard such that they might stand a better chance of being returned to productive use?
Mr Foster
I begin by congratulating my hon. Friend on the work that she is doing on this issue and on her support for the Cradley action group. As she rightly says, empty commercial properties such as the 19% in her council area have a corrosive effect, and I urge her council to use its existing extensive powers. I hope that our recent changes to permitted development rights will make it easier to convert disused commercial buildings in her area into homes.
David Rutley
I welcome the steps that the Government are taking in this important direction. In Macclesfield, local businesses and the council are working closely together through the intown living initiative to make more empty space above shops available for residential use. Does my right hon. Friend agree that such steps not only make empty space productive and usable again but breathe new life back into our high streets?
Mr Foster
I congratulate my hon. Friend and his local council on the work they are doing to bring empty properties back into use. A reduction of 33% in empty homes since 2010 is a great achievement. He is right—tackling empty spaces above shops will certainly contribute to regenerating town centres. Two weeks ago I announced £450,000 in grant for his council area, and I hope this will help.
Rebecca Harris
I congratulate the Minister on what he is offering to help bring empty properties back into use, but in Castle Point we also have a notable number of derelict smaller sites. What advice or support can the Government give to help councils bring forward these sites as well?
Mr Foster
I congratulate my hon. Friend on her successful defence of the local green belt, and her council on a 23% reduction in empty commercial properties. She is right that we need to see small derelict plots developed before there is encroachment on the green belt, and I am confident that together with the vigorous use of existing council powers, the new permitted development rights and the community right to reclaim land will help her achieve that objective.
Karen Lumley
Does the Minister agree that in order to renovate and reoccupy unused properties in areas such as Redditch, we need to encourage local councils to use the incentives provided by Government?
Mr Foster
I certainly do. My hon. Friend is exactly right. Our new homes bonus for bringing empty properties back into use has certainly helped as there are fewer empty homes in her area than in 2010, but I note that Conservative-controlled Wychavon council is using the new powers that we have granted to allow a 50% premium on council tax on long-term empty homes, but that Labour-controlled Redditch council is apparently not doing so. Perhaps she could urge the council to reconsider.
Julian Smith
One of the difficulties in this area in Ripon and other parts of North Yorkshire is getting landlords to engage—communities are often frustrated by being unable to contact the landlord and not knowing who they are. What advice can the Minister give?
Mr Foster
My hon. Friend is right. Notwithstanding the excellent work of communities in Ripon and Bentham and their Portas town teams, it is a frustrating and challenging issue. In some cases, the right to reclaim land will help, but local councils are best placed to compile a public register of high street landlords. Spurred on by him, I will now consider how we can give still further assistance.
Graham Jones (Hyndburn) (Lab)
My local Labour council is working exceedingly hard to tackle some of the 2,500 empty properties in Hyndburn and also those in Rossendale. Does the Minister think that the introduction of a decent housing standard would make those properties more attractive to people to rent, rather than the dilapidated state that some are in at the moment?
Mr Foster
I am enormously grateful to the hon. Gentleman for the positive discussions he and I have had on the matter. I remind him that I have agreed to look at the issues he has raised, and we have already given £1.6 billion in grants to help bring council homes up to a decent standard.
Valerie Vaz (Walsall South) (Lab)
What steps will the Minister take to bring empty sites with planning permission for housing back into use?
Mr Foster
Already there is vigorous use. I remind the House that some two thirds of assets in this country are owned by local councils. We are now consulting on the need to get councils to declare a list of all their assets. We have also given additional powers on the right to reclaim that should enable local communities, and indeed individuals, to put pressure on people who own derelict sites to bring them back into use.
Andrew Gwynne (Denton and Reddish) (Lab)
Back in 2011 the Pensions Minister told the House that the bedroom tax would help tackle overcrowding, but research by the National Housing Federation now shows that, as a result of those changes, houses across the country are lying idle. Is that what the Government meant by tackling empty homes: creating more of them?
Mr Foster
What the Government intend by what the hon. Gentleman describes as the bedroom tax is a means of ensuring the effective use of existing homes, as over 1 million bedrooms are empty and a quarter of a million families are living in overcrowded homes. That is why we are tackling the issue, together with our plans to provide new affordable homes, something that the Labour party signally failed to do when it was in power.
Sheila Gilmore (Edinburgh East) (Lab)
Further to the question from my hon. Friend the Member for Denton and Reddish (Andrew Gwynne), is not the problem that no real research was done before the introduction of the bedroom tax? The position is very different up and down the country, and in some areas it is clear that an inadvertent consequence might be more empty homes. If that proves to be the case, will the Government change their mind?
Mr Foster
I must say to the hon. Lady that clearly very detailed research was done and we had a number of pilots across the country. It would be very helpful if she would assist the House by indicating whether the Labour party, which has been so opposed to the measure, now intends to reverse it.[Official Report, 18 July 2013, Vol. 566, c. 18MC.]
Ian Swales (Redcar) (LD)
On my high street, some business rates are five times the level of the rent being sought by landlords. Will the Minister consider revaluing business rates, and doing so before localisation so that poorer areas do not lose out?
Mr Foster
We have no intention of having a revaluation at the present time. That would cause huge disruption to businesses up and down the land. However, we have doubled the support we give to small businesses. In addition, we have provided financial support to those councils that wish to reduce business rates in their area.
Stephen Pound (Ealing North) (Lab)
In the early 1990s, when the Government Chief Whip was a most distinguished Housing Minister and I was an insignificant housing officer, the then Government introduced with great fanfare something called LOTS—living over the shop—which had certain similarities to what we have heard about today. It was an unmitigated disaster. There are good reasons why people do not want to live above undertakers, butchers and off-licences. I urge the Minister to look at some of the previous attempts to resolve this and to realise that it is not as simple as it looks.
Mr Foster
The hon. Gentleman could never be described, even back in the ’90s, as insignificant. We have indeed looked at all previous attempts to make use of spaces above shops, and all of them have failed, which is why we have now put direct funding in, through our Portas team pilot areas, to look at innovative new ways of dealing with this, and not least, as he will understand, the issue of security.
Rehman Chishti (Gillingham and Rainham) (Con)
2. What steps he is taking to tackle extremism and promote integration in Britain.
The Secretary of State for Communities and Local Government (Mr Eric Pickles)
Like the rest of the House, the Government believe in challenging the forces of hate and the politics of division—from Islamic preachers of hate, to English Defence League thugs, to violent Trotskyite protesters. We are championing what we have in common and what unites us as a British nation across class, colour and creed.
Rehman Chishti
I thank the Secretary of State for that answer. It has been said that
“extremism breeds not within communities, but in their gaps and margins. In places where the webs and safety nets of community that sustain dignity, self-worth, autonomy and solidarities fail.”
What steps are being taken to tackle that?
Mr Pickles
It is most important for us to concentrate on those things that unite us. Very early on in this Government, we took a decision to separate the Prevent strategy from integration. My Department’s role has been to try to ensure that those parts that we can celebrate, as British citizens together, work together.
In particular, we have carried out a number of initiatives, including working with inter-faith groups, schools and detached youth workers. I have been grateful for the co-operation in individual constituencies from both sides of the House in respect of our ability to recognise that people of good will can celebrate the differences that exist.
Keith Vaz (Leicester East) (Lab)
A recent report by Teesside university, following the atrocity in Woolwich, showed that between 22 May and 25 June this year there were 241 anti-Muslim attacks. What support are the Government giving to local community groups under the Prevent strategy to deal with that hate?
Mr Pickles
The most important thing that we did was establish a way of recording anti-Muslim attacks. We took on board what had been happening with anti-Semitic attacks and took some of it across. I have to say to the right hon. Gentleman that those statistics include things being said on Twitter as well as actual attacks against individuals, and it is important that we have a degree of grading.
In the aftermath of the tragic and unjustified recent murder of Drummer Rigby, there were a number of attacks on mosques. I talked to the imams of just about every single one, and they wanted to be clear that the attack was not in their name. They condemned it and were looking towards greater integration within society.
Bob Stewart (Beckenham) (Con)
Councils increasingly have to translate their documents into other languages. How does that help the integration of communities in our country?
Mr Pickles
I do not think that it does, and I say that as a sinner repented. I was leader of Bradford council and we did translate. I realised that that attempt to integrate was a process that further isolated. The one thing that does unite us is our language of English. We should do everything we can to ensure that people learn English.
Lisa Nandy (Wigan) (Lab)
Is the Secretary of State aware that in some areas of the country, including Bradford, extremist groups are targeting young people and offering to keep them safe from on-street grooming, purely as a way of promoting their disgusting, far-right views? Will he tell us what his Department is doing to support local councils to tackle the problem?
Mr Pickles
I thought it significant that the Friday before last, throughout the country, mosques read a sermon explaining the difficulties of grooming and ways in which we can tackle it. A number of councils right around the country have been helpful in tackling the issue. We have been in close contact to ensure that the true voices of the community are heard, and not that perversion.
Bill Esterson (Sefton Central) (Lab)
4. What recent estimate he has made of the number of families with children living in temporary accommodation.
The Minister for Housing (Mr Mark Prisk)
On 31 April this year there were 40,450 families with children in temporary accommodation. Under the previous Government the number reached 74,180.
Bill Esterson
We are talking about this Government’s abysmal record. Some 76,000 families are living in temporary housing. Of those, the number in bed-and-breakfast accommodation has gone up from 630 three years ago to 1,970 at the end of March this year. These figures show that the Government are not even following their own guidance, which says that B and B accommodation is not suitable for families with children. The truth is that this Government are failing families with children up and down the country as regards providing decent housing.
Mr Prisk
I reject that argument. After all, the number of families in bed and breakfast for more than six weeks, to which he referred directly, has gone down by 14% in the past six months. However, we are not complacent; there is a lot to do. It is appalling for families who find themselves in those circumstances. This Government are determined not to reach the peak, which was treble the current level under the previous Labour Government.
Caroline Dinenage (Gosport) (Con)
Over 80% of the families who are in bed-and-breakfast accommodation for longer than six weeks come from 15 council areas. What more can the Department do to encourage councils to share best practice in how to deal with this?
Mr Prisk
My hon. Friend is absolutely right that the problem is concentrated in certain areas. For example, the numbers in temporary accommodation in the past 12 months halved in Leeds but rose in Birmingham. We need to focus on this. We are therefore putting £1.8 million into the bed-and-breakfast taskforce to really get under the skin of why there are these local variances and to make sure that we tackle the problem at source.
Jack Dromey (Birmingham, Erdington) (Lab)
Mr Speaker, may I first echo your congratulations to the British and Irish Lions and to Andy Murray? They are remarkable sportsmen with their team at its very best.
On his appointment, the Housing Minister released a manifesto for housing entitled “Mark’s Manifesto”. In a gripping read, he said that it was wrong that tens of thousands of people should be without a home and that the Government had
“acted to cut the number of households in temporary accommodation.”
Yet only this morning a study for Centrepoint by Cambridge university has pointed to a “severe” shortage of affordable housing, leaving the most vulnerable in the cold, and said that the number of households in temporary accommodation has risen by 10% over the past year. Can the Minister explain why?
Mr Prisk
There has been a rise in temporary accommodation in the past 12 months, but the numbers as a whole show that the number of families in temporary accommodation is half what it was under the previous Labour Administration. We are trying to tackle this at its root source. That is why we need to be clear about what Labour would do. Labour has a poor record on this, but will not say what its prognosis is.
Jack Dromey
On facing up to one’s record, the truth is that the only thing that this Government have cut is the budget for affordable homes, as the National Housing Federation has said. Homelessness and rough sleeping are up by a third since the general election, eight times more families are living in bed and breakfasts than three years ago, and the number of affordable housing completions fell by 29% in the past year. Why does the Minister not accept responsibility for presiding over the biggest housing crisis in a generation, forcing thousands of decent families into temporary accommodation and costing the taxpayer £1.8 billion?
Mr Prisk
We got the lengthy rhetoric, as usual, but no analysis or thought. The reality is that we are building more affordable homes—170,000 in this Parliament, and we plan to build 200,000 in the next Parliament. Labour’s record is that it managed to oversee the loss of 420,000 social homes in 13 years; no wonder Labour Members do not want to talk about it.
Charlie Elphicke (Dover) (Con)
6. What steps his Department is taking against aggressive bailiffs engaged by local authorities.
The Parliamentary Under-Secretary of State for Communities and Local Government (Brandon Lewis)
On 14 June the Government fulfilled a coalition pledge to provide more protection for the public against aggressive bailiffs and unreasonable charges by publishing guidance to local councils on good practice in the collection of council tax arrears.
Charlie Elphicke
Is not the need for this underlined by the experience of my constituent Mr Benvenuti of Deal who had a £65 parking ticket, which he appealed against but heard nothing about, turn into a £524 demand from a bailiff following a phantom visit? Is it not right that the Government are taking action on this matter?
Brandon Lewis
My hon. Friend makes a very good point. I am sure the residents of Lewisham will have been listening carefully to how Lewisham has been spending their money. That is why it is important that councils look carefully at what they spend and how they spend it, and that it is appropriate to the issue they are dealing with at that point.
Jonathan Edwards (Carmarthen East and Dinefwr) (PC)
Following changes to Office of Fair Trading rules, Carmarthenshire county council has, as I understand it, been able to employ bailiffs who have operated without a credit licence. What protection does the Minister believe council tenants should have when faced with unscrupulous debt collectors? If they are not regulated, how are their activities to be policed?
Brandon Lewis
I appreciate the hon. Gentleman’s question. We have produced clear guidance, but that is a devolved issue for the Welsh authorities.
Henry Smith (Crawley) (Con)
7. What steps he has taken to increase the right of bloggers and journalists to report council meetings.
The Secretary of State for Communities and Local Government (Mr Eric Pickles)
It is right that journalists and taxpayers are able to use modern media to scrutinise councils. Accordingly, we have legislated to ensure that that happens.
Henry Smith
I am grateful for the steps my right hon. Friend is taking to allow local authorities to encourage journalists and bloggers to report council meetings, as they do at Crawley borough council. Will he condemn councils such as Tower Hamlets that still seek to ban such practices?
Mr Pickles
Frankly, I cannot understand it. Margaret Thatcher introduced a right for the press to be able to scrutinise local authorities, and had modern media existed all those years ago they would have been included in that. Why should councils not show the good things they are doing for their communities?
Jim Fitzpatrick (Poplar and Limehouse) (Lab)
I fully support the point made by the hon. Member for Crawley (Henry Smith) about Tower Hamlets council meetings being broadcast and reported. However, Mr Speaker, you sometimes have difficulty controlling proceedings here on a Wednesday and they have been broadcast live on television for many years. What evidence does the Secretary of State have that it will improve the conduct in Tower Hamlets, which is what we all want to see?
Mr Pickles
We have legislated to ensure that cameras should film Tower Hamlets cabinet meetings, but we have not said that they should film the main council or committees. If councils continue to refuse to do this—only a handful are doing so—we will take the necessary measures, because the public have a right to know.
David Wright (Telford) (Lab)
8. What assessment he has made of the potential effect on local authority services of the decisions announced in the spending review 2013.
The Parliamentary Under-Secretary of State for Communities and Local Government (Brandon Lewis)
The spending round announcement is a fair deal for councils and taxpayers. We are putting in place powerful incentives to enable local government to transform local services, including £3.8 billion to drive the integration of health and social care, while still helping to pay down Labour’s deficit.
David Wright
I think that Telford and Wrekin council is acknowledged by the Department as a good council. It has made £50 million of cuts since 2010. The spending review indicates that it will have to make further cuts of £10 million a year for the next two years. We are committed to driving forward and finding efficiencies, but will the Minister issue some further detailed guidance on the pooling of health and social care money? It is really important for care, particularly that of elderly people.
Brandon Lewis
The hon. Gentleman makes a good point. This is a very important step forward and a huge opportunity for people to see better care as well as better savings for local authorities. We will continue to work with local authorities and the team at the Department of Health to ensure that the integration is smooth and that we get the benefits experienced in, for example, the tri-borough, which has taken this on and saved hundreds of millions of pounds and, importantly, is giving its residents a better service and a better quality of life.
Mr Graham Stuart (Beverley and Holderness) (Con)
Following the spending review, is it not obvious that we need a fairer local government settlement? We must close the gap between urban and rural areas and redistribute central Government funding to rural areas, which have suffered for too long with higher costs and lower central Government support.
Brandon Lewis
I thank my hon. Friend for making that point. As Members will recall, in this year’s assessment we recognised sparsity and went further by making available just over £9 million more to cover it. I will continue to talk to the rural authorities group over the summer to ensure another clear and fair settlement when we get to 2014.
Mr Clive Betts (Sheffield South East) (Lab)
Has the Minister thought about what his reaction will be when a council announces that it cannot fulfil its statutory obligations with the resources available to it?
Brandon Lewis
Local authorities have a statutory duty to ensure that they balance their budgets, and they have been doing that. It is particularly interesting and impressive that since 2010 public satisfaction with local authorities has increased. It is also important that small district councils in particular, which are working with silo expensive management teams, look at sharing management to make sure that they spend the money on front-line services looking after residents, and not on bureaucracy.
Helen Jones (Warrington North) (Lab)
In the Jackanory world of the DCLG, it announced that local government spending would fall by 2.3% after 2015, but will the Minister admit that important resource spending, even on his figures, will fall by 8.5%, rising to 10% when the new homes bonus is top-sliced, and that when predictions for business rates are taken into account, some councils could lose up to 19% of their grant without the compensating growth, hitting the poorest again? Does that not mean that the most vulnerable are paying the price for this Government’s economic failure?
Brandon Lewis
I am sure that the hon. Lady remembers that we have put protections in place for the most vulnerable—councils have a duty to ensure that they look after them. In fact, about 40 authorities actually had an increase this year, because we have moved local government financing from the old Labour style of a begging bowl and “If you do badly, you get more” to a reward-based system whereby if an authority builds houses, it gets money, and if it brings about business growth through business rates retention, it gets more money. Councils can provide better services, work together and be more efficient in that way.
Steve McCabe (Birmingham, Selly Oak) (Lab)
9. What recent discussions he has had with Mary Portas on the future of the British high street.
Ian Mearns (Gateshead) (Lab)
17. What recent discussions he had with Mary Portas on the future of the British high street.
The Minister for Housing (Mr Mark Prisk)
Our high streets need to adapt to changing consumer habits. Ministers and officials are therefore working with a wide range of civic and business leaders, including Mary Portas, to strengthen local leadership, reform planning and parking policies, help small shops and boost local markets.
Steve McCabe
I recognise the Minister’s good intentions in deregulating classes of use for high street shops, but so that high streets like those in Stirchley and Cotteridge in my constituency do not become swamped with bookmakers, payday lenders and fast food outlets, will he look again at the calls of Mary Portas and others for a special restriction on such development?
Ian Mearns
Even before the credit crunch, many of our high streets had shops that were struggling on the margins. At the moment, communities around the country, but particularly in areas like the north-east of England, are hard-pressed by cuts to local government expenditure, by job losses, the suppression of real incomes, cuts in benefits and fuel price rises, all of which have been sucking disposable income out of local economies. Is it any real surprise that there is a crisis on our high streets when many people have much less to spend in real terms?
Andrew Bridgen (North West Leicestershire) (Con)
High street shops are an important source of employment for local people, especially young people. Will my hon. Friend assure the House that his focus on the high street will benefit young people across the country?
Mr Prisk
Absolutely. It is important to remember that in many of our towns, that job is often the first one that young people get. That is why we are cutting the business rates for the smallest firms and ensuring that from next April, the payroll taxes for many of those firms will be reduced. That will help young people in my hon. Friend’s constituency.
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
Is the Minister aware that towns such as Huddersfield and cities such as Leeds need massive investment? What is the point of spending more than £50 billion on High Speed 2 at a time when, if there were a poll in all the big cities in this country, people would want to spend the money not on that but on regeneration of our cities and towns?
Mr Prisk
I thought the Labour party wanted us to invest in infrastructure—that is what it spent most of the spending round debate talking about. I am committed to ensuring that our high streets can compete, which is important. High street innovations, empty properties being brought back into use and helping small shops will all help Huddersfield and elsewhere.
Neil Carmichael (Stroud) (Con)
Inspired by the Portas report and supported by the Government, we in my constituency have launched the In Our Towns project, which is encouraging small towns such as Painswick, Stroud and Dursley to support each other in developing high streets successfully. Does the Minister think that is an example of excellent local work, and do the Government support it?
Christopher Pincher (Tamworth) (Con)
10. What steps he is taking to promote the take-up of the new community rights in the Localism Act 2011.
The Parliamentary Under-Secretary of State for Communities and Local Government (Mr Don Foster)
Community rights are being promoted through local, national, social and consumer media, ministerial visits, conferences, workshops, and external partners such as Locality, the Campaign for Real Ale and Supporters Direct.
Christopher Pincher
Will the Minister impress on local authorities the importance of their using their new powers and rights to resist unwanted wind farm developments such as the one at Relay Park and that in Kingsbury in North Warwickshire, which will tower over homes in Tamworth and cause property blight?
Mr Foster
As my hon. Friend knows, the Government recently announced that they will issue new planning policy guidance stating that the need for renewable energy does not automatically override environmental protections and the planning concerns of local communities. We intend to make pre-application consultations with local communities compulsory for more significant wind applications.
Kate Green (Stretford and Urmston) (Lab)
Local authorities can be in an invidious position when it comes to the community right to bid. If they agree a proposal, the owner of the asset may pursue legal action if the bid affects the value of the property. If they turn down a proposal from a community group, that group may pursue legal action. What protections will the Minister offer local councils such as Trafford in such circumstances?
Mr Foster
I am delighted that a large number of community rights to bid have registered for local community assets, and I urge more people to do so. The hon. Lady will be aware that the right to bid is just that and should not alter the price because the community are not guaranteed to be able to buy that particular asset. It will go out to public tender, and anybody can apply.
Dan Rogerson (North Cornwall) (LD)
My right hon. Friend had the opportunity to visit St Eval on his recent visit to North Cornwall, and he knows that that community is hoping to bid for assets although it was not able to meet the Ministry of Defence deadline. Will he keep under review the correlation between sources of public funding that are available to such groups, so that the timetables can align and they do not miss the opportunity to bid?
Martin Vickers (Cleethorpes) (Con)
11. What steps he is taking to bring empty retail premises back into use.
The Parliamentary Under-Secretary of State for Communities and Local Government (Mr Don Foster)
In addition to the range of tools to tackle this issue that I mentioned earlier, we have cut red tape to help landlords make better use of their empty properties, and we have doubled small business rate relief for three and a half years.
Martin Vickers
I thank the Minister for his reply and for the initiatives the Government are taking. He will be aware that our provincial towns are scarred with empty shops as a result of changing shopping patterns. Are the Government considering further measures in partnership with the private sector and local authorities to deal with that problem?
Mr Foster
Indeed we are, and I am sure the hon. Gentleman will welcome our support for pop-up shops, including in the headquarters of our Department, as well as the financial support we are offering councils. We have set up two bodies—the future high streets forum and the industry-led distressed retail property taskforce—both of which will come forward with new ideas to help us develop the additional measures that he rightly says are needed.
Roberta Blackman-Woods (City of Durham) (Lab)
On 3 June the planning Minister said that if local authorities fear that changes to use class orders are linked to more pay-day loan companies than retail on our high streets, they should use article 4 directions to limit the potential impact. On 17 June, he said they should not. Which is it?
Mr Foster
The article 4 direction is available to all local councils and has been used successfully on a number of occasions. I remind the hon. Lady of the important review being carried out on betting shops to look at the ridiculously high—in my view—level of stakes and prices that currently exist.
Annette Brooke (Mid Dorset and North Poole) (LD)
While welcoming the small business rate relief, what discussions has the Minister had—or will he have—with the Treasury and local authorities to introduce more flexibility and try to support our streets that need regeneration, whether they are high streets or out-of-town activities?
Philip Davies (Shipley) (Con)
12. What proportion of appeals from housing developers have been upheld by the planning inspector since May 2010.
The Parliamentary Under-Secretary of State for Communities and Local Government (Nick Boles)
Since 1 May 2010, there have been 1,712 appeals in England against local authority decisions on major housing schemes in England. In just under 60% of those cases, the local authority decision was upheld by the inspector.
Philip Davies
It has been known for me to stand up and criticise the Government occasionally in the Chamber, but I also believe that credit should be given where it is due. At the risk of you thinking that I am going soft in my old age, Mr Speaker, I want to congratulate the Planning Minister and the Secretary of State on their fantastic decision to reject the planning application at Sty lane in Micklethwaite in my constituency, endorsing the decision by Bradford council planning committee and the inspector. It has been greatly welcomed locally and I want to pass on my thanks to the Minister. Does he agree that the best way to stop this community being put in the same position in the future is for the local authority to remove this site from the local development plan?
Nick Boles
This is an unfamiliar position, but I simply point out to my hon. Friend that the credit belongs entirely to the Secretary of State, who is not used to being thanked for planning decisions.
Stephen Lloyd (Eastbourne) (LD)
Planning law going back decades allows pubs to switch to supermarkets without requiring planning change of use. That allows big developers, such as supermarkets, to muscle in where they are not wanted, such as on Albert parade in Eastbourne, where Sainsbury’s is replacing a local pub. Will the Minister give me an undertaking to revisit this anomaly in the planning laws?
Nick Boles
The good news is that there is no need to revisit the issue, because the local authority in the constituency of my hon. Friend the Member for Cambridge (Dr Huppert) has produced an innovative policy for its local plan, which has been held up by the courts as sound and will put in place a process to protect pubs that are under threat from speculative development so that further use as a pub can be properly considered.
Stephen Mosley (City of Chester) (Con)
14. What steps he has taken to help councils deliver sensible savings.
The Parliamentary Under-Secretary of State for Communities and Local Government (Brandon Lewis)
We have published “50 ways to save”, an excellent practical guide to councils on how to make sensible savings. We have also provided £27 million through the transformation challenge award and the efficiency support grant to encourage and incentivise authorities to make efficiencies and improve services. That will increase to £100 million as a result of the spending review.
Stephen Mosley
Tory Cheshire West and Chester council and Labour Wirral metropolitan borough council have announced proposals to merge their back-office functions such as IT, legal services, human resources and finance, saving some £69 million. Do not such schemes show that it is possible to make huge savings in local government without impacting front-line services?
Brandon Lewis
My hon. Friend is right, and I was delighted to visit Cheshire West and Chester recently and see some of the plans. It is a really good example of how big authorities can do things. Just last week, I saw at the excellent Staffordshire Moorlands and High Peak councils, small authorities with £10 million budgets, that shared management is saving some 20%, according to the chief executives, so it can be done at all levels.
Derek Twigg (Halton) (Lab)
The problem is that some of the most deprived councils, such as Halton in my constituency, are starting at a massive disadvantage. They are having to make deeper cuts because their cut, in terms of funding per head, is twice that of Cheshire East, and a lot higher than in Cheshire West and Chester. Should not the Minister be looking at fairer funding settlements?
Brandon Lewis
The hon. Gentleman must look at where we start. That is why it is important that all authorities, ranging from £2,800 to £1,600 spending power per household, need to look at what they can do to be efficient, sharing management, services and procurement benefits to ensure that they are giving good service to their residents and spending taxpayers’ money—let us not forget that—well in the first place.
Pauline Latham (Mid Derbyshire) (Con)
18. What recent assessment he has made of the financial situation of Derby city council.
The Parliamentary Under-Secretary of State for Communities and Local Government (Brandon Lewis)
We published the local government finance settlement for 2013-14 in February. Derby city council has an overall spending power figure of £2,021 per dwelling.
Pauline Latham
Does my hon. Friend agree that the decision by Labour-run Derby city council to reduce neighbourhood funding to wards with Conservative councillors is irresponsible and shows that that left-wing Labour council is stirring up a class war for politically motivated reasons? Allestree, Mickleover, Littleover, Oakwood and Chellaston have lost up to 90% of their funding, but Labour wards have received increases of up to 54%.
Brandon Lewis
My hon. Friend makes a powerful point. We have devolved power, so it is very much a matter for local authorities how they distribute the money they spend, but I am sure that—with her making such a strong case—residents in Derby will look carefully at what the council has done and take a view on that when it comes to the next elections.
Mr Philip Hollobone (Kettering) (Con)
19. What the total departmental expenditure on financing sites for Gypsy and Traveller pitches in (a) Kettering borough, (b) Northamptonshire and (c) England was in the last 10 years.
The Parliamentary Under-Secretary of State for Communities and Local Government (Brandon Lewis)
We have taken firm action against unauthorised sites. We believe in fair play and supporting those who play by the rules. The total allocated funds for Traveller sites in England has been approximately £175 million, of which almost £120 million has already been spent. Approximately £3.4 million has been spent in Northamptonshire, including about £850,000 in Kettering.
Mr Hollobone
As the law now stands, Kettering borough council, of which I have the privilege of being a member, has to identity sites for up to 37 Gypsy and Traveller pitches by 2031. The consultation has caused huge and understandable upset and concern throughout the borough. Will the Minister, who has proved both responsive and sensitive to such issues, be kind enough to agree to visit the borough of Kettering to see how these issues might best be resolved?
Brandon Lewis
I thank my hon. Friend, who no doubt will have noted the statement we laid before the House last week. I appreciate that planning for Traveller sites can be contentious and raises a number of complex issues, so I am happy to visit him in Kettering to see them at first hand.
Mrs Emma Lewell-Buck (South Shields) (Lab)
22. What assessment he has made of the availability of one-bedroom homes.
The Minister for Housing (Mr Mark Prisk)
There are 1.1 million single-bedroom properties in the social rented sector. Overall, the social rented sector shrank by 420,000 homes between 1997 and 2010.
Mrs Lewell-Buck
In South Tyneside there are 1,026 households currently living in two-bedroom properties who are affected by the bedroom tax, but just 122 one- bedroom homes are available—more than eight households per vacancy. How can the Minister justify a policy that punishes tenants for under-occupancy when the vast majority are simply unable to move?
Mr Prisk
May I take the opportunity to welcome the hon. Lady? I think that this is the first chance we have had to debate since she was elected in May. She was a keen fighter on what she calls a bedroom tax. The question Government Members have is this: if the Labour party is so opposed to this measure, why is her party leader refusing to repeal it?
Mark Pawsey (Rugby) (Con)
T1. If he will make a statement on his departmental responsibilities.
The Secretary of State for Communities and Local Government (Mr Eric Pickles)
To change the civil service culture of more regulation and more spending, I have today announced a new scheme where civil servants will be rewarded with high street vouchers for saving taxpayers’ money. I am sure the whole House will want to congratulate firefighters on their excellent job of tackling the Smethwick blaze last week. Given its exceptional scale, I can announce that we have activated the emergency response Bellwin scheme, so we can give West Midlands fire service the support it needs.
Mark Pawsey
The new homes bonus is an effective tool in encouraging local communities to create new homes, but it benefits equally authorities that initially opposed new housing, after development consent is granted on appeal. It is important to support communities that, through their local plan, demonstrate a positive attitude towards development, so does the Secretary of State agree that such authorities should receive an enhanced level of new homes bonus?
Mr Pickles
My hon. Friend introduces a whole new concept of worthy and unworthy councillors, and that is perhaps a step too far. I am comfortable with the thought that when people object to me as Secretary of State, I can point to my hon. Friend who is a much harder man.
Hilary Benn (Leeds Central) (Lab)
I join the Secretary of State in commending the fire service for how they dealt with that very difficult fire.
Thousands of people on low incomes are now getting council tax summonses because of the Secretary of State’s new poll tax. The Sunday Mirror reports that Peterborough city council, for example, has issued double the number of summonses for non-payment compared with last year. Why does he think that so many people are finding it so difficult to pay the bills that he has imposed on them?
Mr Pickles
Let me be absolutely clear: these are local authority schemes. In some parts of the country, people on low incomes are not receiving anything additional. These are schemes put together by local authorities, and it is up to local authorities to defend them.
Hilary Benn
It will not quite do for the Secretary of State to introduce the legislation, cut the money, and then attempt to pass the buck to local authorities up and down the country. The truth is that he is out of touch with what is happening to people on low incomes.
Let me try another question. One of those summonsed is a single parent called Charlotte, who has been asked to pay £141.66. She told the newspaper:
“My priority is finding money to get food for my child.”
What choice does the Secretary of State think she should make?
Mr Pickles
We have placed before local authorities discretionary help to use in such circumstances. The most interesting thing is this: that money has gone unclaimed. This is a local authority scheme, and it is up to the local authority to defend it.
Amber Rudd (Hastings and Rye) (Con)
T2. It is good news that East Sussex county council has begun a £6 million investment in Hastings library, bringing in the new children’s library, bringing the registrar down into the library and buying the new building next door. Does that not show that a well-run county council, such as Conservative-led East Sussex county council under Councillor Keith Glazier, can achieve investment in vital libraries where it needs to?
Mr Pickles
I had the opportunity to meet Keith not so long ago. It is clear to me that East Sussex county council is revitalising a part of the country that has been neglected for such a long time, and it should be congratulated on that.
Tom Blenkinsop (Middlesbrough South and East Cleveland) (Lab)
T4. When asked about the mutualisation of Cleveland fire authority, the fire Minister told the Select Committee on Communities and Local Government on 15 May: “they are not progressing with it.”However, the latest freedom of information request to the authority was refused on the grounds of “commercial interest” and because matters are “still subject to consideration”. Who is telling the truth, and are the Government still funding this process?
The Parliamentary Under-Secretary of State for Communities and Local Government (Brandon Lewis)
I think the point I was making before the Select Committee was to clarify the fact that this Government will not be doing anything to allow for privatisation of the fire service, despite the claims of the hon. Gentleman’s shadow fire Minister, who is trying to scaremonger.
Stephen Mosley (City of Chester) (Con)
T3. Independent analysis by Ernst and Young of the four community budgets pilots show that savings of between £9 billion and £20 billion are possible over five years if the scheme is rolled out across the country. What plans does my hon. Friend have to do just that?
Brandon Lewis
My hon. Friend is quite right: the community budgets pilots have shown huge potential savings to this country and, as I said earlier, better services for residents. We are now rolling out the new network. Last week we announced the first nine authorities to take part. They are looking at bringing together the public sector not just to save money, important though that is, but to give better services in this country—something that the previous Government continually failed to do.
Mrs Mary Glindon (North Tyneside) (Lab)
T7. In North Tyneside, the new Labour administration has inherited a £21 million budget deficit from the former Tory mayor. With Government cuts, that comes to £44 million. As the Secretary of State finds his Department £271 million in the red, has he any tips that could help North Tyneside council to balance its books?
Mr Pickles
We actually underspent our budget. My tip to the hon. Lady is to get on with it.
Dr Thérèse Coffey (Suffolk Coastal) (Con)
T5. In the spirit of reducing red tape, will my right hon. Friend look again at the rules that the Homes and Communities Agency issues on the minimum size of houses that attract affordable housing finance? Frankly, these houses are rather large. One of two particular cases was that of a property built 6 inches too narrow, which was not allowed to be taken into social housing because of that mistake.
The Parliamentary Under-Secretary of State for Communities and Local Government (Mr Don Foster)
Let me assure my hon. Friend that we have recently undertaken a review of housing standards, not least to try to reduce the plethora of different standards, which are burdensome and expensive. Space and room size have been considered. We will be consulting on the outcome of the review in the near future.
Ms Karen Buck (Westminster North) (Lab)
T8. The Department’s affordable rents policy is putting housing benefit expenditure up. Over at the Department for Work and Pensions, Ministers are trying, unsuccessfully, to cut housing benefit. Meanwhile, the cuts in housing benefit that they are making have resulted in an 86% increase in homelessness applications in my borough of Westminster. Does the Department ever speak to the Department for Work and Pensions, and if so, could they not possibly agree on a single policy, rather than two contradictory ones?
The Minister for Housing (Mr Mark Prisk)
We have a clear policy, which is to ensure that we reverse the loss of social housing that we saw under the last Labour Government and that the social housing sector is managed better than it was in the past. Labour needs to realise that there are a million spare bedrooms in the social housing sector and a quarter of a million families in overcrowded accommodation. They would love the luxury of a spare bedroom. We are prepared to make those reforms; the hon. Lady’s party is not.
Robert Halfon (Harlow) (Con)
T6. My constituents welcome the scrapping of the last Government’s guidance—
Mr Speaker
I don’t know why the hon. Gentleman has resumed his seat. I was merely looking at him and listening attentively, as always.
Robert Halfon
Anything to catch your eye, Mr Speaker. My constituents welcome the scrapping of the last Government’s guidance on diversity and equality in planning, but many residents in places such as Nazeing are concerned that Travellers can apply for retrospective planning permission. Will my hon. Friend come to my constituency, meet with local residents and reassure my residents who feel the planning system is biased against them when it comes to Travellers?
Mr Pickles
One knows when one has been Tangoed. I will of course be delighted to meet my hon. Friend, but I can give his constituents this reassurance: in the Localism Act 2011 we abolished the ability to have retrospective planning appeals and enforcement at the same time. I think that will help the residents of Nazeing.
Mr Speaker
I should just say to the Secretary of State that I thought the hon. Member for Harlow (Robert Halfon) was the man in the mustard suit, but the Clerk, who is the fount of all wisdom, advises me that its colour is tangerine.
Mrs Sharon Hodgson (Washington and Sunderland West) (Lab)
T9. Despite the Government’s rhetoric on early intervention, Sunderland council’s early intervention grant is 47% lower than it was in 2010, while the Secretary of State’s council in Essex has had a cut of just 36%. Can the Secretary of State tell us by how much more the Government will cut Sure Start and other early intervention programmes over the next two years, and whether these disparities in cuts will be reversed or entrenched?
Mr Pickles
The hon. Lady should look to the extra money with regard to troubled families—Sunderland has done a remarkably good job in identifying the families concerned—and the fact that we have recently announced an extra £200 million to extend that programme.
Sir Bob Russell (Colchester) (LD)
Does the Secretary of State agree that local authorities should seek and welcome further cuts by reducing the amount of times grass is cut and encouraging wild flowers in appropriate locations?
Mr Pickles
That can also be a cut the other way, as I recall a local authority that did what my hon. Friend said, but when it came to cut the grass again, it found it had grown so high that it was not able to use its machinery.
Mr John Spellar (Warley) (Lab)
As the Member of Parliament for Smethwick, I welcome and endorse the Secretary of State’s remarks about the superb performance at the Smethwick fire by the West Midlands fire service and its firefighters, and I also welcome the extra payment under the Bellwin scheme, but is the Secretary of State aware of reports that during the first night of the fire only one West Midlands fire engine was available for the whole of the West Midlands county? Will he therefore reconsider the general cuts to West Midlands and other metropolitan authorities?
Brandon Lewis
I thank the right hon. Gentleman for his question, and the Secretary of State and I both spoke to the chief fire officer last week. The fire service did a fantastic job, but it is very disappointing that the chairman of the fire authority tried to play political games in the aftermath of this tragedy, because it is simply not true to say that only one vehicle was available. The mutual scheme between the different authorities, including Staffordshire, Herefordshire and others, worked extremely well, and a large number of engines were still available for use, and he should be getting on with doing his job instead of playing politics in that fire authority.
Robert Neill (Bromley and Chislehurst) (Con)
Does my right hon. Friend think it might be a good time to review the rules on the declaration of councillors’ interests, given that it is now compulsory for all Labour council candidates to be a member of a trade union?
Mr Pickles
I am shocked to hear that information. People will now wonder whether councillors are working for their residents or their trade union bosses, and I shall review the situation as a matter of urgency.
Natascha Engel (North East Derbyshire) (Lab)
May I give the Minister another chance to answer the question put by my hon. Friend the Member for South Shields (Mrs Lewell-Buck) and give him another example? Fifty-one per cent. of council tenants in my constituency are in rent arrears because they cannot afford to pay the bedroom tax. There are no smaller properties for them to move into, so what are they supposed to do?
Mr Foster
Let me repeat to the hon. Lady the information we gave earlier: we have already provided £350 million in discretionary housing payments to local councils. [Interruption.] Hon. Members are saying from a sedentary position that it is all gone, but may I remind them that last year more than £11 million of discretionary housing payment was not used by local councils? They could use it more efficiently.
Graham Evans (Weaver Vale) (Con)
Sandymoor free school in my constituency has had its planning permission refused by Unite-backed Labour councillors who are acting against the local authority planners’ recommendation for approval. Will my right hon. Friend look into this matter urgently so that the school can continue serving my constituents without local authority and trade union interference?
Mr Pickles
The destructive hand of Unite appears to be going now through the planning system. We look at these things in a quasi-judicial way, and I will look at any application for an appeal with a completely free mind.
Bill Esterson (Sefton Central) (Lab)
I may have missed the answer that the Secretary of State gave to my right hon. Friend the Member for Leeds Central (Hilary Benn) about what Charlotte should do, so perhaps he could just tell me: should she feed her child or should she pay her council tax?
Mr Pickles
The hon. Gentleman has to face up to the fact that these are local authority schemes, there is a hardship fund in place, and we expect local authorities to deal with these matters and not to send their spokesman here to shroud-wave.
Greg Mulholland (Leeds North West) (LD)
We need more social housing and more affordable housing, but does the Secretary of State understand the anger in north Leeds at the fact that Labour-run Leeds city council is bringing forward plans to concrete over much of our green belt with hundreds, if not thousands, of new homes?
The Parliamentary Under-Secretary of State for Communities and Local Government (Nick Boles)
The protections in the national planning policy framework for the green belt are very, very clear and very, very strong. Only in exceptional circumstances can development take place on the green belt, and the local authority will need to consult extensively with the local community to gain its support for any proposed change in the green belt.
Abu Qatada (Deportation)
(10 years, 9 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Secretary of State for the Home Department (Mrs Theresa May)
With permission, Mr Speaker, I would like to make a statement on the deportation of Abu Qatada. Yesterday—more than 10 years after this ought to have happened—Abu Qatada was deported from the United Kingdom and sent back to Jordan. On arrival in Amman, he was handed over to the Jordanian authorities and formally charged with the two offences of which he had previously been found guilty in absentia. He is now held in Muwaqqar prison.
As hon. Members know, successive Governments have sought to deport Qatada since 2001. The long delays and significant costs that his case has incurred are down to the many layers of appeal rights that were available to him, and real problems with our human rights laws. I will turn to those issues later, but first I want to make it clear that the Government have succeeded in deporting Qatada by respecting the rule of law at each and every stage of the process. We did not ignore court judgments we did not like. We did not act outside the law. We did what was right. And for a civilised nation, that is something of which we should be immensely proud.
Qatada’s deportation, which took place on Sunday morning, followed my issuing of a fresh deportation decision on 27 June, and my further decision to certify any appeal that Qatada might have brought on human rights grounds as “clearly unfounded”. That meant that the only choice open to Qatada was between challenging my decision through judicial review or conceding that the game was up. Given the strength of the agreement we reached with the Jordanian Government in March, he accepted the inevitable.
It is important to remember that the UK Government already had assurances about Qatada’s treatment in Jordan—assurances that have been upheld in the courts—but in February last year the European Court of Human Rights moved the goalposts and declared that his deportation would be unlawful because of the risk that evidence obtained through the mistreatment of others might be used against him. That was the first time ever Strasbourg had blocked a deportation on that basis. The treaty we agreed with the Jordanian Government puts the answer to that final question beyond any doubt. The treaty guarantees a fair trial for anyone deported from either of our countries. The treaty benefits both countries and I thank hon. Members in this House for ensuring its rapid ratification. It was the key that unlocked the door to deportation.[Official Report, 16 July 2013, Vol. 566, c. 5MC.]
Qatada’s deportation demonstrates both our commitment to abide by the law and our resolve to deport foreign nationals who threaten our safety and security. It also demonstrates the legal validity of our policy of deportation with assurances.
I want to turn now to the lessons we need to learn from the case. The deportation of Abu Qatada has taken 12 years and cost more than £1.7 million in legal fees for both sides. That is not acceptable to the public, and it is not acceptable to me. We must make sure it never happens again.
First, we have to do something about the legal fees spent by defendants and paid by the taxpayer, not to mention the benefits they also claim. Secondly, we have to remove the many layers of appeal that are available to foreign nationals we want to deport. Thirdly, we have to do something about the crazy interpretation of our human rights laws.
The Government are taking action to address all three concerns. First, on legal fees and benefits, in the case of Abu Qatada £220,000 of his legal fees were funded from his own accounts, which were frozen by the authorities, but the rest—some £430,000—was funded by the taxpayer, and in many other cases foreign nationals we ought to be able to remove have their legal costs paid in full by the public. That is something my right hon. Friend the Justice Secretary is addressing in his reforms to the legal aid system, and I can also tell the House that my right hon. Friend the Secretary of State for Work and Pensions is considering how we can curtail the benefits claims made by terror suspects and extremists whose behaviour is not conducive to the public good.
Secondly, we need to do something about appeal rights. Through the Crime and Courts Act 2013, the Government have already legislated for the principle that in national security cases individuals should be able to appeal only following deportation to their home country, except in cases where there is a risk of serious, irreversible harm. But we will do more, and that is why I will introduce the immigration Bill later this year. That Bill will stop illegal immigrants accessing services to which they are not entitled; it will make it easier to remove foreign nationals; it will make it harder for them to prolong their stay with spurious appeals; and it will make clear to the courts once and for all that foreign nationals who commit serious crimes will, other than in exceptional circumstances, be deported. I hope hon. and right hon. Members from all parties will give their support to that Bill.
I can also tell the House that my right hon. Friend the Justice Secretary is considering ways to speed up the pace at which the courts hear national security cases, but those reforms can achieve only so much until we make sense of our human rights laws. The Government are already taking action to address the misinterpretation of article 8 of the European convention on human rights—the right to a private and family life—and we achieved reforms to the way in which the European Court works in the Brighton declaration.
The problems caused by the Human Rights Act and the European Court in Strasbourg remain, and we should remember that Qatada would have been deported long ago had the European Court not moved the goalposts by establishing new, unprecedented legal grounds on which it blocked his deportation. I have made clear my view that in the end the Human Rights Act must be scrapped. We must also consider our relationship with the European Court very carefully, and I believe that all options—including withdrawing from the convention altogether—should remain on the table, but those are issues that will have to wait for the general election. Today we should take quiet satisfaction from the fact that a dangerous man has been deported to face justice in his home country.
I know the whole House will want to join me in paying tribute to all the Home Office officials, lawyers, police officers and members of the Security Service who have worked on this case, as well as Peter Millett, the British ambassador in Amman, and of course, the security Minister, the Under-Secretary of State for the Home Department, my hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire).
Last year, I said:
“The right place for a terrorist is a prison cell. The right place for a foreign terrorist is a foreign prison cell, far away from Britain.”—[Official Report, 7 February 2012; Vol. 540, c. 166.]
Today, Abu Qatada is indeed in a foreign prison cell, and so I commend this statement to the House.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
The entire House should strongly welcome the work that the Home Secretary and her junior Minister have done to get Abu Qatada finally on a plane back to Jordan to stand fair trial. This is a good result for not just the Home Secretary, but the country. In his home country, Abu Qatada stands accused of plotting terror attacks against a school and tourists, and it is right that he should stand trial for those offences and for justice to be done.
After Abu Qatada was granted asylum in this country in 1994, he began preaching hatred and praising terror attacks. He is a dangerous man whose values we in this Parliament condemn, and that is why successive Home Secretaries—Labour and Conservative—have worked to deport him with the cross-party support of the House and that of the country. I strongly welcome the work of the Home Office and the Foreign Office to keep pursuing the case over many years, and we should also welcome the work of the Jordanian Government and Parliament to pass the treaties that were needed.
My right hon. Friend the Member for Blackburn (Mr Straw) agreed the first memorandum of understanding with Jordan in 2005, which led to the agreement of the British courts that Abu Qatada could be deported without the threat of torture, and the Home Secretary rightly built on that agreement after the 2012 European Court judgment. She was also right to pursue the legal route, rather than listening to those who urged her to ignore the law. Without the rule of law, we are not free.
We should be in no doubt, however, that the case has taken far too long, so change is needed to deal with such unacceptable and costly delays. The attempt to deport Abu Qatada started in 2005. It took three years for his case to reach the Court of Appeal, another year for it to reach the Law Lords and a further three years for it to reach the European Court, and it is a further 18 months since then. That is far too long—too long in the British courts and then too long in the European Court.
We will examine the Home Secretary’s proposal that layers of appeal should be removed for immigration cases, because we believe that the process needs to be speeded up and that slow justice is in no one’s interests, but I urge her and the Secretary of State for Justice to consider the practical and administrative reasons why such cases take so long. The European Court now has a backlog of 150,000 cases and badly needs major reform. However, Ministers promised progress while Britain chaired the Council of Europe, yet little of substance was achieved. The borders inspectorate has said that a quarter of foreign criminals are sent home and a third are given leave to remain, but that 40% are not deported simply for administrative and bureaucratic reasons, so those cases need to be tackled.
The Home Secretary referred to the qualified right to a family life under article 8 which can be used in immigration cases, on which we have supported the Government, although that was clearly not the issue in the Abu Qatada case. She concluded by saying that she wanted to abolish the Human Rights Act and to consider withdrawing from the European convention, yet she herself has drawn on the Human Rights Act. She used it to prevent Gary McKinnon from being deported to the USA, but without the Act, she would have had no legal justification for doing so. It is unclear whether she wants no Bill of Rights at all, which would consequently mean that there would be little restriction on what the Home Secretary’s decisions could be, but will she confirm that the Government’s commission on a draft British Bill of Rights has replicated article 3 of the Human Rights Act, on the absolute prohibition of torture? As she knows, the central issue in the Abu Qatada case was always torture, which is something that we in Britain have always abhorred, so ditching the Human Rights Act and replacing it with her British Bill of Rights would have made no difference in that case.
The Home Secretary made much in her statement of the importance for us, as a civilised nation, of not acting outside the law. However, if we were to resile from the European convention, what signal would it send to those countries that we are trying to persuade to adopt higher standards of human rights and to follow the convention, such as Russia, regarding the criminal justice system, and Turkey, regarding the treatment of Kurds?
The Government have done immensely important work in the Abu Qatada case: deporting a dangerous man; delivering new legal deportation agreements so that we can remove people to Jordan and elsewhere, with new protection against torture in Jordan; and showing the British Government’s determination to pursue what is right while respecting the rule of law and having no truck with torture. The Home Secretary rightly claimed credit for all those things in her statement, and reforms are needed to deal with the problems of this case. We are pleased that Abu Qatada has finally been deported and we cannot have such delays in the future, but she should put forward her reforms without ripping up the things that she has just achieved.
Mrs May
I thank the right hon. Lady for the references that she made to the success in deporting Abu Qatada, and for saying that the Labour Opposition will look very seriously at the proposals that we bring forward in the immigration Bill. The Opposition supported changes to the immigration rules in relation to the interpretation of article 8, and we were grateful to them for that. Sadly, a number of judges have not heard Parliament in the way that all of us hoped. I hope that we will have support on the immigration Bill, because I think these changes are important.
The right hon. Lady mentioned the administrative reasons for the lack of deportation, and issues around the speed with which these cases are dealt with in the courts. My right hon. Friend the Secretary of State for Justice is looking at that issue, because we all want to make sure that we can deal with these cases properly—with people having proper rights of appeal, so that we can ensure that their case is heard—but can deport people rather more quickly.
The right hon. Lady then sadly spent quite a bit of her response on the Human Rights Act, my views on it, and what might happen in the future in relation to it. I make two points in response. First, what she fails to appreciate is the concern that Government Members have about the role of Parliament in setting laws that operate in the United Kingdom. That is one of the issues that we are looking at in relation to the European Court and its ability to deal with cases that are taken through the courts in the UK. Secondly, she rather churlishly suggested that nothing happened when we chaired the Council of Europe. A considerable amount of work was put in by the former Justice Secretary, the Attorney-General and others, and it led to the Brighton declaration, which is bringing about change in the way in which the European Court operates, so that is another success for this Government, who took that opportunity to make some changes.
My final point is very simple. Members of the public cannot understand why, under the human rights laws that we currently operate, somebody who is a threat to this country is able to remain in it, year after year, without being deported. Frankly, if the right hon. Lady cannot understand that, she simply does not get it, and will not get an opportunity to be on the Government side of the House.
Mr James Clappison (Hertsmere) (Con)
I warmly welcome my right hon. Friend’s statement and congratulate her and her team on their steadfastness, including in the face of criticism from Opposition Front Benchers in the past. Does she agree that, in the field of human rights, now is the time for a re-examination of the balance between microscopic and extended examination of an individual’s human rights, and the safety and security of the constituents who send us to this place?
Mrs May
My hon. Friend has absolutely put his finger on the problem, which is that in all these cases we are asked to look forensically at the human rights of an individual, but there is no opportunity to balance that with the danger that an individual poses to others in society. There is no opportunity to take into account that balance of the human rights arguments. It is exactly that sort of issue that we need to address.
Keith Vaz (Leicester East) (Lab)
I congratulate the Home Secretary on the achievement of removing Abu Qatada. It is a personal triumph for her. I know that she has worked extremely hard over the past few years to secure this result; indeed, since becoming Home Secretary, she must have felt, to coin a phrase, that there were three people in her marriage. The critical part of all this has been the relationship with Jordan and securing the agreement of the King of Jordan. Will she look at drawing up treaties with other countries right at the start of the process, rather than at the end, as that is one way of removing people? Will she look at a fast track through the European Court for those cases that involve terrorism, so that they are dealt with more quickly than other cases?
Mrs May
I shall perhaps not refer to some of the right hon. Gentleman’s comments, but I am grateful to him for his kind remarks. This has been the result of a huge amount of effort by a great number of people, including Home Office officials, our ambassador in Amman, and my hon. Friend the security Minister, to make sure that we achieved the deportation of Abu Qatada. The right hon. Gentleman encourages us to enter agreements of a similar nature with other countries. We have, I think, 30 mutual legal assistance treaties with other countries, so we have already gone down that route, and that includes countries such as United Arab Emirates and Saudi Arabia. We have a number of deportation with assurances memorandums of understanding with other countries—I think we have now been able to deport 11 people as a result of those agreements—but of course we seek to increase that number where it is necessary to do so.
Sir Gerald Howarth (Aldershot) (Con)
May I award my right hon. Friend and her entire team 10 out of 10 for standing up against this man and for British interests? It is deeply offensive to the British people that £1.5 million was spent keeping this man in the country for 12 years. May I encourage my right hon. Friend to carry on with her work and, despite the remarks of the shadow Home Secretary, to look again at repealing the Human Rights Act and Britain’s membership of the European convention on human rights? Can she tell us whether the judges have got it at last? She is doing a fantastic job—keep it up, please.
Mrs May
In relation to the interpretation of article 8, sadly we have seen cases where the interpretation by the judges has not been what the intent of Parliament was when we changed the immigration rules, which is why we are going to put those changes into primary legislation in the immigration Bill later this year. I can assure my hon. Friend that I and others will continue looking at human rights and what the right human rights laws are. As our right hon. Friend the Prime Minister made clear on Sunday morning, the Conservative party will introduce our proposals at the next general election.
Hazel Blears (Salford and Eccles) (Lab)
I, too, congratulate the Home Secretary and, in particular, the security Minister on the work that they have both done to get this good result. I was just thinking that it has taken 12 years to deport Abu Qatada—I think it took Andy Murray only seven years to win Wimbledon—so the whole country will be very pleased about this.
Hazel Blears
But it is a very serious matter, and this is a dangerous individual who was a threat to this country. I urge the Home Secretary to say to other countries with which we do not have memorandums of understanding that this is a clear message that the British Government can ensure that someone is deported, that they are not tortured and that they receive a fair trial. We should say to countries that may have been a little reluctant that now is the time to step up their act and get those memorandums agreed.
Mrs May
The right hon. Lady makes an important and valid point. Absolutely, we can send that message. One of the crucial aspects of this case is that the deportation with assurances memorandum of understanding was agreed by the courts as something that worked, so we can indeed build on that.
Simon Hughes (Bermondsey and Old Southwark) (LD)
I join others in congratulating the Home Secretary and her team on achieving what the whole country wanted, which was for Abu Qatada to go home. I thank her very much for saying that one of the issues with the European convention is the backlog of cases, and for the initiatives that the Government have taken. She will know, however, that the Liberal Democrats believe that she is fundamentally wrong to argue that repealing the Human Rights Act or even thinking of pulling out of the European convention would be in Britain’s interest. If we want to set an example of human rights for majorities as well as minorities, in Jordan and around the world, we must not pull out of the best guarantee that Europe has had of them, written by Britons, and working well for the past 70 years.
Mrs May
The right hon. Gentleman should not be surprised that I or indeed any of his Conservative colleagues in the coalition should stand up and talk about repealing the Human Rights Act, because we were all elected to the House on a party manifesto that had exactly that within it. In relation to the European convention, we do, I believe, as a country, have to look at our relationship with the European Court and the operation of the convention. We need to do so because of some of the cases that we have seen, and national security cases are a particular concern when we cannot deport someone for a significant period of time—if at all, potentially—because of the interpretation by the European Court of the convention. It is only sensible when beginning to work on this that we accept that all options should be on the table, and we do not rule anything out before we have done the work.
Paul Goggins (Wythenshawe and Sale East) (Lab)
May I, too, congratulate the Home Secretary and the security Minister on all the work they have done to see Abu Qatada removed to Jordan? In all the ups and downs over the years of dealing with this man, there was a time just a few months ago when it looked as if he might be freed from prison and freed from bail. The only option the Home Secretary would have had at that point would be to put him on a terrorism prevention and investigation measure. Given that at that moment she must have realised the inadequacy of TPIMs, what plans does she have to review them, especially as David Anderson has warned that early next year a number of dangerous individuals on TPIMs will be free to roam the streets?
Mrs May
This is a debate that we have had across the House and that I have had with the right hon. Gentleman on a number of occasions. The Government brought in the Terrorism Prevention and Investigation Measures Act 2011 and we are operating those TPIMs against a number of individuals, as he knows. As he is also aware, when TPIMs were introduced instead of the control orders that his Government had brought in, we also introduced, through some extra funding, measures to enhance the ability of the Security Service and the police to deal with these individuals, and we are confident in the package that was produced.
Michael Ellis (Northampton North) (Con)
Many people pay lip service to the concept of having respect for the law, but in cases such as this, which are deeply frustrating, testing and troublesome, the Home Secretary shows real respect for the law, and I congratulate her on her conduct and that of her Ministers throughout this matter. Will she look at the many varied avenues of appeal that are open to people like Abu Qatada, which can be curtailed without any infringement of the overall rights, and will she express the thanks of this House to the Hashemite Kingdom of Jordan for its extremely friendly actions in this case?
Mrs May
My hon. Friend is right in referring to the many layers and avenues of appeal that are available. It is precisely that sort of issue that we wish to examine in considering any changes we will introduce in the immigration Bill later this year. We have been co-operating with the Jordanian Government on this matter for some time now, and that co-operation has been very good, but I am pleased that the treaty we signed with them is more general and will apply in other cases as well. There is benefit to both the United Kingdom and Jordan in that mutual legal assistance treaty.
Steve McCabe (Birmingham, Selly Oak) (Lab)
I, too, sincerely congratulate the Home Secretary and the security Minister. No wonder she is talked about as a future Tory leader. The Home Secretary very generously thanked officials and lawyers who had worked on the case, but given what she said about the cost of the case overall—this is no criticism of her—does she think there is an argument for a review of why it took those officials so long to fix on the treaty route as the best way to solve the problem, rather than run up those huge bills?
Mrs May
The reason that large legal bills built up was the time the case took, because of the various stages of appeal that were available to Abu Qatada and the fact that the European Court moved the goalposts in the unprecedented decision that it took early last year. It was because of that that we had to undertake further discussions with the Jordanian Government about the assurances that could be achieved. And of course our own Special Appeals Immigration Commission last autumn decided that despite those further assurances and its view that the Jordanian Government would bend over backwards to make sure that Abu Qatada got a fair trial, this one issue about whether evidence that was allegedly obtained by torture could be used had to be addressed. That is addressed, among other things, in the general treaty that we have signed. It is because there have been so many opportunities to appeal and because of the decisions that have come as a result of those appeals that the legal bills have built up.
Sir Edward Garnier (Harborough) (Con)
May I join all those who have offered their congratulations to the Home Secretary, and may I also thank her for the congratulations that she has offered to others—her officials and officials in other Departments? That is a very proper thing to have done. Does she agree that even before the enactment of the Human Rights Act, we probably would not have deported a terrorist suspect to be tortured or to face trial on the basis of evidence extracted by torture or to a country which might have used the death penalty upon that person? Does she also agree that the core to the success that she has had has been the bilateral agreement with Jordan, and that although we may all have our frustrations about the expense and the difficulties caused by the Strasbourg Court, the central thing that we must concentrate on is ensuring that we have with these other jurisdictions rock-solid, cast-iron treaties which permit deportation?
Mrs May
Indeed, I agree with my hon. and learned Friend. It is important that we have these assurances and agreements with other countries where there is a possibility, or where the courts have suggested that there is a possibility, that it would not be possible to deport an individual because of the situation they would find themselves in once deported. When the European Court made its judgment last year, I think that it failed to appreciate the changes that have taken place in Jordan and the work the Jordanian Government have done, for example to change their constitution in relation to torture. In a sense the judgment was unfair with regard to the Jordanian situation. Nevertheless, as a result of the judgment, we had to undertake further discussions with the Jordanian Government and put in place exactly the sorts of assurances and agreements that my hon. and learned Friend refers to.
Mr Ronnie Campbell (Blyth Valley) (Lab)
We on the left of the Gangway are delighted that this evil man is being sent back where he belongs to stand trial, but I got worried, when I watched him swagger on to the plane with a big smile on his face, that he might have a secret way back. I hope the Home Secretary has all the doors covered.
Mrs May
I am grateful to the hon. Gentleman for the support that he and, as he indicates, his hon. Friend the Member for Bolsover (Mr Skinner) have given to the action that has been taken—I must say that this is an unusual day for the Home Office, but I suspect that the normal situation will resume fairly soon. We are indeed turning our attention to ensuring that doors are closed.
Andrew Griffiths (Burton) (Con)
I join the whole House in congratulating the Home Secretary and the security Minister on their stunning success in deporting Abu Qatada. I am not sure what gave me greater pleasure on Sunday: watching Andy Murray’s victory or the news that Mr Qatada was leaving on a jet plane. What assessment have her officials made of the right of Mr Qatada’s family to remain in the United Kingdom should he be found guilty in Jordan?
Mr Jim Cunningham (Coventry South) (Lab)
I congratulate the Home Secretary, her predecessors and everyone else involved in this long haul. Further to the last question, could Abu Qatada or his family argue, after he has done his time, whatever the sentence might be, that the right to family life allows him to come back to his family in this country?
Dr Julian Huppert (Cambridge) (LD)
I add my congratulations to the Home Secretary and the security Minister. We all agree that it is very good that Abu Qatada will face justice without the risk of information derived from torture being used against him. Since the Home Secretary is keen on ensuring that people are deported to face justice, can she confirm her support for a reformed European arrest warrant that does exactly that? She will know that only this weekend we saw yet another arrest of a Briton trying to evade justice in Spain.
Mrs May
My hon. Friend tempts me to comment on a matter that I hope will more properly be the subject of announcements in this House before the summer recess. I am aware of the arguments that have been made about the operation of the European arrest warrant in relation to its usefulness and to some of the problems that apply to it.
Karl Turner (Kingston upon Hull East) (Lab)
It will be a relief to all our constituents that this man has now been deported, but what advice has the Attorney-General given the Home Secretary on scrapping the Human Rights Act and coming out of the convention?
Mrs May
As I indicated earlier, in answer to an hon. Friend who asked about the Human Rights Act, it is absolutely no surprise that a Conservative should stand here and talk about scrapping the Human Rights Act, because we were elected to this Parliament having stood in a general election on a manifesto that said exactly that.
Mr Philip Hollobone (Kettering) (Con)
Will the Home Secretary accept the thanks of a grateful nation for a job well done?
On the wider issue of deporting foreign nationals who commit crimes in this country, could it not be a condition of entry for everybody when they turn up at the airport or port that they sign to say that if they are found guilty of a criminal offence, they will be required to leave?
Mrs May
I assure my hon. Friend that we understand the public’s concern, which I share, about examples of when we are not able to deport foreign-national offenders. There are a number of reasons why that can happen—most notably, as in cases highlighted in the media, the interpretation of article 8 about the right to a family life.
Of course, the right to a family life was not one of the arguments used at all in the Abu Qatada case, although there are foreign-national offenders who have used that argument. We will look to ensure that we make it absolutely clear in the immigration Bill that, except in exceptional circumstances, foreign-national offenders will be deported.
Nicola Blackwood (Oxford West and Abingdon) (Con)
I join the whole House in congratulating the Home Secretary, the security Minister and all her officials on finally managing to deport Abu Qatada. I particularly welcome my right hon. Friend’s statement that the immigration Bill will include a simplification of the appeals process. What will that simplification do about the introduction of new evidence at a late stage of the appeals process?
Mrs May
We will consider that issue, of course. We have moved already on a different part of the appeals process—that relating to family visas. We have taken away the right of appeal for family visit visas. We saw that evidence was often produced towards the end of the process; had it been there at the beginning, it might have led to a different decision in the first place. My hon. Friend has picked up an important issue that we should consider in other contexts.
John Glen (Salisbury) (Con)
Many of my constituents were delighted to see Abu Qatada fly out of Northolt, although they may have been a little disappointed to see the plane so empty. Does the Home Secretary have a view on the family and associates of Abu Qatada? Many of my constituents find it indefensible that they should have been on benefits for so long and think that they would have been better off on the plane with him.
Mr Julian Brazier (Canterbury) (Con)
I congratulate my right hon. Friend both on this excellent result and on her commitment to reviewing and, hopefully, reforming human rights legislation. However, we will not get away from what she calls the crazy interpretation of our human rights laws if we allow our judges a completely open-ended clause in the legislation containing an unspecified phrase such as “exceptional circumstances”.
Mrs May
I understand my hon. Friend’s point. We will, of course, need to look at those issues when we come to frame the legislation so that we can be clear as a Parliament about exactly the sort of circumstances we are looking at. However, I am sure that my hon. Friend will appreciate that there may be some circumstances in which it will not be possible to deport somebody, although we want to ensure that we can deport foreign-national prisoners as far as possible. We will set out, as we have already tried to in the immigration rules, the circumstances in which we expect that a foreign-national prisoner will not be allowed to remain in the UK on the basis of article 8 but will be deported.
Mr Dominic Raab (Esher and Walton) (Con)
I congratulate the Home Secretary and welcome Abu Qatada’s removal, but I share her fears about the implications of the case. What estimate has the Home Office made of the number of extra successful deportation challenges that it expects per year as a result of Strasbourg’s novel—and, frankly, dangerous—ruling?
Mrs May
I am not able to give my hon. Friend an answer about the number, but I can say, having looked at a sample of cases, that this case was unusual in that it related to the potential torture of people other than the individual whom we were trying to deport. That is why it was such an unusual and unprecedented judgment from the Strasbourg court; it is also why the case is not likely to be replicated on many occasions.
Robert Halfon (Harlow) (Con)
I congratulate my right hon. Friend on joining the ranks of the US Navy SEALs in knowing how to get rid of perpetrators of terrorism, even if by slightly less violent means. Does she agree that the principles of the European convention on human rights are very noble but have been misinterpreted by judges, and that if we have a British Bill of Rights, we can return to a situation where the perpetrators of terrorism are not given precedence over the victims of terrorism?
Mrs May
My hon. Friend makes an extremely valid and important point. It is about the interpretation of human rights laws. We all agree that it is important to have a legislative framework that protects people’s human rights; it is then about how that is interpreted. It is also about the relative balance of responsibilities between this Parliament and another body that is external to it.
George Freeman (Mid Norfolk) (Con)
I congratulate my right hon. Friend in the strongest terms on behalf of my constituents, who watched with growing disillusionment as the will of the people and Parliament of this country was profoundly defied by a decade of spin and drift costing over £1.7 million in legal fees. I especially welcome her announcement that illegal immigrants and criminals will be deported. Does she agree that nothing fuels disillusionment as much as state-sponsored abuse of protections that are rightly the privilege of British citizens, not foreign criminals?
Mrs May
My hon. Friend is absolutely right. I share people’s frustrations and concerns when they see foreign national offenders whom we wish to be able to deport unable to be deported. He refers to illegal immigrants. One of the benefits of the change that has been made by scrapping the UK Border Agency and setting up the immigration enforcement part of the Home Office is that we will be able to put a far greater focus on ensuring that we remove illegal immigrants.
Andrew Bridgen (North West Leicestershire) (Con)
I wonder what words my right hon. Friend the Secretary of State has for the naysayers and doom-mongers on the Opposition Benches, such as the hon. Member for Walsall North (Mr Winnick), who is no longer in his place, who said on 24 April in this Chamber:
“Is it not obvious that this saga will continue for some time and that all the Home Secretary’s efforts have so far failed miserably to get this preacher of hatred out of Britain?”
The hon. Member for Glasgow South West (Mr Davidson) said:
“This farce makes the Government look incompetent as well as impotent.”—[Official Report, 24 April 2013; Vol. 561, c. 894-897.]
Christopher Pincher (Tamworth) (Con)
May I add to the bouquets under which my right hon. Friend is being buried and congratulate her and her team on succeeding where her predecessors had failed? Is she aware of the report that, contrary to what my hon. Friend the Member for Salisbury (John Glen) said, the plane back to Jordan was not quite empty because it had aboard it three security guards, a psychologist, a medical examiner, and, inevitably, a lawyer? Can my right hon. Friend confirm that the costs of those people will not fall on the British taxpayer? If they do, will she change the rules of taxpayer liability as soon as possible?
Bob Stewart (Beckenham) (Con)
When I was an intelligence officer in Northern Ireland we spent a lot of time trying to drain the water from terrorists—in other words, the people with whom they lived. However, they were coerced and frightened. Such people may well be replicated on the mainland. What steps is my right hon. Friend taking to try to identify terrorists and get them away from the society which sustains them and allows them to operate in England?
Mrs May
We do of course have a strategy for dealing with terrorism. The officials at the Office for Security and Counter-Terrorism, which is based in the Home Office, work with the police, the Security Service and the other security and intelligence agencies to make sure that we can, where possible, prevent terrorist attacks from taking place in the United Kingdom. Sadly, in the past couple of months we have of course had the incident of the murder of Drummer Lee Rigby in Woolwich. Prior to that, we had seen a number of plots by terrorists to do harm and to kill people here in the United Kingdom thwarted by the very good efforts of officials, police and members of the Security Service.
National Curriculum
(10 years, 9 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Secretary of State for Education (Michael Gove)
With permission, Mr Speaker, I should like to make a statement on the future of the national curriculum.
Our children are growing up in a world where the pace of change—economic, social and technological—is constantly accelerating. These changes promise wonderful new opportunities for future generations, but they also create immense challenges.
We are learning more every day about how our world works and how our minds work, how we can develop our civilization and extend opportunity, and how we can improve learning and extend knowledge. At the same time, however, we are also discovering just how competitive the new world is. As other nations modernise their economies and education systems, we cannot afford to be left behind in the global race.
That is why, when the coalition Government was formed, we asked officials in the Department for Education to analyse the best-performing education systems in the world. They examined the curricula used in the world’s most successful school systems, such as Hong Kong, Massachusetts, Singapore and Finland. Informed by that work and in consultation with subject experts and teachers, the Department produced a draft revised national curriculum, which we put out for public consultation five months ago. We received more than 17,000 submissions in our consultation and we have given them careful consideration. Today we are publishing a summary of the comments received and the Government’s response.
The publication of our proposals has provoked a valuable national debate on what is, and what should be, taught in our schools. I have very much enjoyed this debate and the passionate engagement of so many great teachers and concerned parents. It is absolutely right that every member of society should care about the national curriculum. It defines the ambitions that we set for our young people, and I, like the overwhelming majority of parents, want us to be more ambitious than ever before.
That is why we are demanding that children be taught how to write computer code, how to use 3D printers, how to handle more complex mathematical processes, how to appreciate a wider than ever range of literature, and how to speak, read and write in more than one language.
The updated national curriculum framework that we are publishing today features a number of revisions to the drafts published in February. The revisions have been made on the basis of evidence and arguments presented to us during the consultation period. In particular, we have revised the draft programmes of study for design and technology and for history. We have included more detail on modern design processes and more coverage of world history.
Other significant changes include the inclusion of a stronger emphasis on vocabulary development in the programmes of study for English and greater flexibility in the choice of foreign languages, which primary schools will now be required to teach.
Perhaps the most significant change of all is the replacement of ICT with computing. Instead of just learning to use programs created by others, it is vital that children learn to create their own programs. By demanding that children learn computational thinking and Boolean logic, we are determinedly raising the bar, but by equipping our children with the tools to build their own algorithms and applications we are also helping to foster a new level of creativity in our schools.
It is my hope that these changes will reinforce our drive to raise standards in all our schools. I hope that they will ensure that the new national curriculum provides a rigorous basis for teaching and a benchmark for all schools to improve their performance, and I know that it gives children and parents a better guarantee that every student will acquire the knowledge to succeed in the modern world. That is why I commend this statement to the House.
Stephen Twigg (Liverpool, West Derby) (Lab/Co-op)
I thank the Secretary of State for notice of his statement. The national curriculum should be a vehicle for raising standards, promoting innovation and strengthening great teaching.
Let me first pay tribute to the teachers, parents and pupils who have campaigned hard for changes to the Secretary of State’s original proposals. When did he come to the conclusion that it might be an idea for pupils to study climate change as part of the geography curriculum? When did he realise that speaking skills should be an integral part of the English curriculum? When did he decide to listen to business leaders, who warned him that the D and T curriculum did not include a focus on computer design and electronics? When did he decide that it might be an idea for children to study the history of China and India as well as that of our own country? Finally, when did he realise that it made no sense to limit the number of foreign languages that could be taught in primary schools? Surely it would have been a lot better if he had got his proposals right the first time round.
The Secretary of State’s new curriculum will apply to fewer than half of all secondary schools. Academies have the freedom to innovate. If that freedom makes sense for academies, surely it makes sense for maintained schools as well.
Why has the Secretary of State decided to abolish the levels by which teachers assess pupils’ progress throughout their school life? The levels system is well used, particularly in primary schools. May I urge him to think again about that?
The Department’s own impact assessment of today’s announcement warns of the risks for lower attainers and pupils with special educational needs or disabilities. How will the Secretary of State ensure that they, too, are challenged and supported and that their progress is measured effectively?
The changes are due to be implemented in just one year’s time. How will the Secretary of State ensure that teachers are qualified to teach to the new curriculum when he is letting unqualified teachers into our classrooms? Is it not time for him to reverse the decision to relax the rules on unqualified teachers? What support will there be for continuing professional development and training on the new curriculum ahead of its introduction in a year’s time?
The curriculum matters, but I am sure the Secretary of State agrees that what matters more is that we have a teaching profession that is high in quality and has high status and high morale. Does he accept that as a result of his policies and his rhetoric, teacher morale is at an all-time low? His divisive approach means that we have curriculum freedom for just some schools. Is not the time right for a reformed national curriculum that allows teachers in all schools the freedom to innovate, and therefore prepares young people for the challenges of the modern economy?
Michael Gove
I am grateful to the hon. Gentleman for his questions. He asked me first when I realised that we should have climate change in the geography curriculum. I actually realised that before we published the first drafts in February. If he had looked at those drafts, he would have seen that we said that people should understand
“place-based exemplars at a variety of scales”
and
“the key processes in physical geography pertaining to…weather and climate”.
In fact, the draft curriculum that we published in February contained more detail on the scientific processes behind climate change than the previous national curriculum, over which he presided. [Interruption.] All you need to do is read it, Stephen.
Secondly, the hon. Gentleman asked about speaking. In the English curriculum as it was drafted in February, it was perfectly clear that drama, poetry and other forms of speaking were in it. If the Labour party does not believe that drama and poetry require speaking, I would be interested in its perspective on what exactly does.
The hon. Gentleman asked about world history. It was perfectly clear that there were all sorts of examples of world history in the first draft, from decolonisation, invoking the spirit of Kenyatta and Jinnah, through to the impact that this country has had on the middle east, India and north America.
In all those areas, we have listened and made revisions. My mother always said that self-praise is no honour, so I shall not lavish any praise on myself—I will instead lavish it on my fellow Ministers at the Department for Education. They listened extensively to the best in the field, and we have revised the curriculum. Judging from the fact that the hon. Gentleman did not take exception to anything in the current draft, I presume that he thinks it is an A* curriculum. I will take his comments as an endorsement.
The hon. Gentleman asked about level descriptors. They are widely mistrusted by the very best in the teaching profession, which is why outstanding teachers are moving away from them and why the very best academies, such as ARK and Harris academies, are developing their own methods of internal assessment. It is why Dame Reena Keeble, at Cannon Lane First School in Harrow, has her own method of assessing how children are making progress, which is far more popular and rigorous than anything that we used to have.
The hon. Gentleman asked about the risks for lower attainers. We are absolutely clear that because there will be higher expectations than ever before, lower attainers will learn and achieve more in school and be happier and more fulfilled later. Instead of the culture of low expectations that prevailed in the past, we will have a culture of higher expectations that values every child.
The hon. Gentleman asks about curriculum support. Not only will the National Centre for Excellence in the Teaching of Mathematics be funded to provide improved mathematics teaching, but our national support schools will receive millions of pounds of extra money to ensure the required professional development. I have every confidence that teachers in our schools—the best generation of teachers ever—are up to the challenge. Whenever I visit schools, they say to me, “We want to ensure that our curriculum, like our teaching, is world class.” That is what we have delivered today, and I am delighted to have the, albeit grudging, endorsement of the hon. Gentleman.
Mr Graham Stuart (Beverley and Holderness) (Con)
I congratulate the Secretary of State on the statement. Some critics suggest that if someone goes out with an idea, listens to feedback, thinks and goes out again, that is a weak form of policy making, but I say the opposite. As we have seen with qualifications, so with the curriculum—it is important to listen and this is a strong set of proposals. Will the Secretary of State identify all the risks concerning the time scale and scheduling of the proposals, and say what the Government are doing to ensure that implementation is as smooth as possible?
Michael Gove
I agree with my hon. Friend. It is right to put forward a proposition, consult on it and amend it when good advice is given. That seems exactly how the Government should operate. On the implementation timetable, as I alluded to briefly in my response to the hon. Member for Liverpool, West Derby (Stephen Twigg), we are supporting a number of centres of excellence, not just in mathematics and science but also in outstanding teaching schools that are doing much to raise standards across the country and help deliver change. If evidence suggests that additional support is required in any area, of course we will provide it.
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
Both you, Mr Speaker, and the Secretary of State now have a vested interest in all things John Clare, and the more John Clare on the curriculum the better as far as I am concerned.
On a more serious note, the proposals look encouraging. I like the consultation process that the Secretary of State has gone through, but I hope it can be further refined because some statements we have heard recently, including over the weekend, seem to suggest that he puts so much emphasis on the very brightest students, rather than on the broad panoply of students. We need the right teaching and curriculum for all our children, not just some of them.
Michael Gove
I could not agree more with someone who is increasingly my honourable Friend. First, the more we can do to support the work of the John Clare Trust in bringing that fantastic working-class poet to wider attention, the better. Secondly, the English literature curriculum includes for the first time a requirement to study the romantic poets, which I hope will be broadly welcomed. Thirdly, the hon. Gentleman is absolutely right, and although we expect our brightest children to do even better, I hope the new method of secondary accountability—on which we are still consulting—will make it easier for all schools to recognise their responsibility and obligation to less able students.
Dan Rogerson (North Cornwall) (LD)
Liberal Democrats welcome the introduction of a slimmed-down curriculum, and the emphasis on teachers being able to teach and use their expertise. On continuing professional development and support for schools, there will now be a period in which teachers get ready to implement the new national curriculum. Will resources be in place, and will the Department do everything it can to give teachers confidence to move from one curriculum to the next?
Michael Gove
I am grateful for my hon. Friend’s support. What we sought to do is similar to what was argued for in the Liberal Democrat manifesto at the last general election: a core entitlement in foundation subjects and a far greater degree of freedom elsewhere. I am grateful to Liberal Democrat colleagues across the Government for the positive way they have engaged and the helpful suggestions they have made at every turn. It is right that my hon. Friend underlines the importance of ensuring we move speedily to get the right level of professional support. In particular, teaching schools—outstanding schools across the country—are generating networks of support and could not be more important. I want to do more to help them in the year ahead.
Diana Johnson (Kingston upon Hull North) (Lab)
The vast majority of parents and young people want a curriculum that is fit for life, including building life skills around self-esteem and confidence that will protect them from predators such as Jimmy Savile and Stuart Hall. I would be interested to know why the Secretary of State turns his face against introducing that to the national curriculum.
Michael Gove
The hon. Lady is a passionate campaigner on ways we can better protect our children, and there are a number of things we can do. As she may know, I had the opportunity to talk to a group of outstanding young people last week at the Stonewall conference on fighting prejudice in education and empowering young people. They made some important points about the best of personal, social, health and economic education, and we must learn from the best schools and ensure that others follow their lead.
Chris Skidmore (Kingswood) (Con)
As someone who has campaigned for some time for a greater narrative approach to history teaching in schools, may I thank the Secretary of State for retaining the chronological focus of the history curriculum, rather than the current “Doctor Who” style, time-travelling fantasy, in which pupils study the Romans, the Tudors and then the Victorians? What does he envisage happening to key stage 4 and the dovetailing with key stage 3, so that pupils will have the chance to learn narrative British history all the way up to 16?
Michael Gove
I thank my hon. Friend for his support. Several distinguished historians, from David Abulifia at Cambridge to Professor Jeremy Black at Exeter, have joined him in welcoming this curriculum. May I also congratulate him on the fantastic review of his new book on the battle of Bosworth in the books section of The Daily Telegraph on Saturday? I recommend it to everyone. The GCSE criteria on which we are consulting are designed to achieve exactly what he sets out.
Mr Graham Allen (Nottingham North) (Lab)
The Secretary of State will be aware that my constituency sends the fewest number of young people to university or college of any in the UK. One of the ways we are tackling that is through innovative early intervention, and by making great use of continuous assessment, which allows children from under-privileged backgrounds to gain the confidence to take some serious examinations at the end of the national curriculum. Would he meet with the six very hard-working head teachers in my constituency to understand how any changes to continual assessment will undermine their pupils’ prospects of going to university?
Michael Gove
I would be delighted to meet head teachers from the hon. Gentleman’s constituency.
Andrew Selous (South West Bedfordshire) (Con)
May I commend the Secretary of State for his determination to reverse this country’s slide down the international league tables? He is right to ensure that his expectations for English children are no lower than other countries’ expectations for their children.
Michael Gove
I am grateful to my hon. Friend for his comments. It is vital that we assert, across the political divide, our determination to ensure that our country becomes a world champion in English, maths and science, alongside generating world champions in tennis, rowing and other great activities.
Fiona Mactaggart (Slough) (Lab)
May I warmly welcome the remark that the Secretary of State just made? Instead of just learning to use programs created by others, it is vital that children learn to create their own programs. Where else, apart from computing, will that be the approach in the new curriculum?
Michael Gove
I should say that, in both art and design and music, it is clear that students will be encouraged to create—there is an emphasis on drawing at an earlier stage in the art and design curriculum, so that people can become familiar with one of those foundational skills. It is also the case that the design and technology curriculum will include everything from the use of 3D printers to the most sophisticated methods of contemporary design. I was inspired visiting a school in the hon. Lady’s constituency to see exactly how high-quality computer science can be delivered to a range of students who were enjoying their teaching, thanks to the support that she has consistently championed.
Andrew Griffiths (Burton) (Con)
The main complaint from local engineering businesses in my constituency is that too many young people leave school and college with good GCSEs, and sometimes A-levels, in maths and sciences, but do not have the deeper understanding of the subject to be able to pursue a career in engineering. What do these reforms do to ensure that we are growing the engineers of the future?
Michael Gove
I am delighted that the changes that we have made to the design and technology curriculum have been welcomed by James Dyson, one of the most authoritative and persuasive voices when it comes to design and engineering. The new approach that we are taking, specifically in design and technology, will complement the essential skills of maths and science that engineers need.
Kate Green (Stretford and Urmston) (Lab)
What assessment has the Secretary of State made of how well suited the new curriculum will be to closing differential educational outcomes between, for example, boys and girls or different ethnic groups?
Michael Gove
The hon. Lady raises an important point. One of the biggest problems in the English education system is the structural inequality, which we have inherited and which the previous Government worked hard, in their own way, to try to overcome. One of the things that is clear about those countries that have successfully managed to reduce educational inequality is that they have maintained high expectations for all students, and that is what this curriculum embodies.
Duncan Hames (Chippenham) (LD)
I thank the Secretary of State and his Ministers for bringing financial education into the school curriculum, following our campaign, so ably led by my hon. Friend the Member for North Swindon (Justin Tomlinson). Does the Secretary of State agree that, as well as better equipping young people for the decisions that they will make in adult life, the relevance of these questions may also improve their interest in and appetite for learning maths?
Michael Gove
My hon. Friend makes a typically acute point. The two things reinforce each other: an appreciation of financial education and mathematics and mental arithmetic all go together.
Jenny Chapman (Darlington) (Lab)
In Darlington, we have done a good job over the years to improve the performance of the worst-performing schools. One of the ways we have done that is through tracking students on an individual basis and challenging where need be. I am deeply concerned about the proposals to remove assessment levels, because tracking is so important in governors and parents, and young people themselves, challenging teachers and schools. How will tracking be done when the Secretary of State removes assessment levels?
Michael Gove
The hon. Lady makes two important points. First, by removing the current national curriculum levels we create space for more sophisticated methods of tracking. One of the problems with current level descriptors is that they are opaque and confusing, and sometimes different schools register different levels of achievement at different levels. The new method we propose will mean that there is far greater rigour in how assessment is carried out. Secondly, Darlington is a model local education authority, because it has encouraged more and more schools to take on academy freedoms. I hope that more Labour local authorities follow where Darlington has led.
Mark Garnier (Wyre Forest) (Con)
Carrying on with the subject of financial education for young people, I am grateful for my right hon. Friend’s comments. He will be well aware that the Parliamentary Commission on Banking Standards also endorsed putting financial education on the curriculum. Does he agree not only that that will reinforce mathematics as a relevant subject, but that a good grounding in financial literacy can prove to be a major engine for social mobility?
Michael Gove
My hon. Friend is absolutely right. The more confident every student is with the increasingly sophisticated range of financial temptations they face, the more that social mobility and resilience can be built in.
Mr Robin Walker (Worcester) (Con)
I echo those comments on financial education. I also congratulate the Secretary of State on the improvements to the computing curriculum, which will be warmly welcomed by businesses, such as Postcode Anywhere and those in the growing cyber-security cluster in Worcestershire, that have long been arguing for a more computing-focused and less IT learning-focused approach.
Michael Gove
My hon. Friend is absolutely right. Industry has been clear that the changes we have made from information and communications technology to computing are exactly what industry needs to ensure that young people are prepared for the opportunities that await them.
Bill Esterson (Sefton Central) (Lab)
The Secretary of State says that changing the curriculum is essential if we are to catch up with the rest of the world. I agree that that has to be the priority, but if it is so essential why is he not applying it to academies, which make up the majority of secondary schools?
Michael Gove
Academies do make up the majority of secondary schools. At the moment, academies make up only 10% of primary schools, and the curriculum is of course more specific when it comes to the foundation subjects at primary level. The curriculum generates a sense of expectation and lays the foundations for the new GCSEs, which we expect to be the principal benchmark for accountability at the age of 16 for all schools.
Guy Opperman (Hexham) (Con)
Did the Secretary of State notice Professor Black’s comments today? He said:
“You can’t debate our sense of national identity and our national interest unless you understand our national history. This curriculum put British history first as well…It kicks out woolly empathy”.
Does he agree that that is the right way forward in the longer term?
Michael Gove
I am grateful for my hon. Friend’s point. Professor Jeremy Black is one of the finest and most productive historians working in academia today. He is also one of the most engaging of teachers.
Chris Bryant (Rhondda) (Lab)
There is only one constituency in the land where Winston Churchill was never welcome, including after the second world war: the Rhondda. I am therefore delighted that this curriculum, which bizarrely insists on only one politician—Winston Churchill—being studied in the whole of the history of the 20th century, will not apply in Wales or in the Rhondda. Why will the Secretary of State still not make clear his position on sex and relationship education, which is the one thing that can make a dramatic difference to the number of teenage abortions and teenage pregnancies?
Michael Gove
My position on sex and relationship education is that I am in favour of it.
Mr Philip Hollobone (Kettering) (Con)
What emphasis will there be on spelling in the national curriculum, and by what age will primary school children be required to learn their 12 times table?
Michael Gove
The 12 times table will be required by the end of year 4, which is a significant advance on where we are at the moment, and there are indicative tables as part of the national curriculum document that lay out how we can ensure that students can spell. I should also say that, on a recent primary school visit that I undertook, I asked the students whether they had enjoyed their national curriculum tests. The universal view was that the tests were fun, but the most fun were the spelling, punctuation and grammar tests that this Government have introduced.
John Glen (Salisbury) (Con)
The changes to the history curriculum are often presented in a binary way, as a choice between endless facts and “woolly empathy”. Can the Secretary of State explain the wise logic behind the value of children learning a basic chronology of British history before they are asked to think about what it felt like to live a long time ago?
Michael Gove
My hon. Friend makes an absolutely central point. Every country that teaches history well insists on the history of its own nation being taught. Even the progressive Administration in Holyrood make a point of stressing the importance of Scottish history—I can see the hon. Member for Dundee East (Stewart Hosie), for the Scottish National party, nodding—from which other things flow. I recognise that all nations should in this respect, if in few others, emulate what Alex Salmond has done.
Justin Tomlinson (North Swindon) (Con)
I am delighted at the inclusion of financial education and computer programming, both of which are essential skills for our children. Does the Secretary of State believe that they will also help to encourage young children to engage in traditional mathematics, through real-life work and tangible examples?
Michael Gove
My hon. Friend is absolutely right. One of the key things about his successful campaign on financial education is that he always made it clear that it was about reinforcing the importance of rigour in mathematics, not simply meeting the needs of a vocal lobby outside. The way he ran the campaign is a model of how a Back Bencher can shape the education of millions for the better.
Andrew Bridgen (North West Leicestershire) (Con)
Can my right hon. Friend reassure me and the House that he has rooted out all the woolly thinking that pervaded the curriculum as drafted by the previous Government?
Michael Gove
To root out all the woolly thinking that used to pervade the curriculum would have been like cleansing the Augean stables. There may well be a piece of fluff in some corner of the curriculum that we did not manage to get to, but I hope we have managed to hose down the stables effectively.
Ian Swales (Redcar) (LD)
Since becoming an AET academy—under the Academies Enterprise Trust—Eston Park in my constituency has gone from good to special measures in less than two years. I welcome today’s proposals, but how can the Secretary of State ensure that free schools and academies benefit from all the excellent thinking that is going on in his Department?
Michael Gove
One of the best schools I have ever visited is in my hon. Friend’s constituency—Nunthorpe academy, which is run by Debbie Clinton, a school that has gone from special measures to outstanding in the last couple of years. However, he is right that one or two academy chains have not done everything they promised. In the case of the organisation he mentioned, we have taken steps to deal with that.
Neil Carmichael (Stroud) (Con)
The Secretary of State will know that the Royal Academy of Engineering has stated that we will need at least 100,000 graduates in maths and engineering to compete with the rest of the world. This is something that informed my decision to hold a festival of engineering and manufacturing in my constituency. [Hon. Members: “Hear, hear.”] Thank you very much. Does he agree that firm leadership will be required from schools to ensure that we get the best teachers in the right place to deliver on the need that the Royal Academy of Engineering has outlined?
Michael Gove
I completely agree with my hon. Friend. It is a pity that, in one of our best universities for engineering—University college London—fewer than half the undergraduates enlisting in that course are from the United Kingdom. We need to do more, and my hon. Friend is leading the way.
Sir Bob Russell (Colchester) (LD)
The Secretary of State referred to more coverage of world history. On the assumption that the 20th century will include the holocaust, will he give me an assurance that the life of Palestinians since 1948 will be given equal attention?
Michael Gove
These are delicate waters, into which I fear to tread too definitively. One thing I would say is that there has been near universal welcome and support for the centrality of the holocaust and the unique evil inherent in the holocaust being in the national curriculum. Once one gets on to the position of the state of Israel after 1948, it is probably better if I step back. I have strong views on the matter and I would not wish to impose them on the curriculum.
Mr Speaker
I hope colleagues, including the hon. Member for Colchester (Sir Bob Russell), are aware of the event taking place in Speaker’s house tonight under the auspices of the Holocaust Educational Trust.
Financial Services (Banking Reform) Bill Programme (No. 2)
Mr Speaker
Before I call the Minister to move the programme motion, I should inform the House that I have selected a manuscript amendment, amendment (a) in the name of Mr Andrew Tyrie, copies of which have been available from the Vote Office. I call the Minister, in the first instance, to move the motion.
Motion made, and Question proposed,
That the Order of 11 March 2013 in the last Session of Parliament (Financial Services (Banking Reform) Bill (Programme)) be varied as follows:
(1) Paragraphs 4 and 5 of the Order shall be omitted.
(2) Proceedings on Consideration and Third Reading shall be taken in two days in accordance with the following provisions of this Order.
(3) Proceedings on Consideration shall be taken on the days show in the first column of the following Table and in the order so shown.
(4) Proceedings on Consideration shall (so far as not previously concluded) be brought to a conclusion at the times specified in the second column of the Table.
Table | |
|---|---|
Proceedings | Time for conclusion of proceedings |
First day | |
Amendments to clauses 1 to 8 other than amendments relating to competition | 6.00 pm |
New Clauses relating to Bank of England Financial Policy Committee | 8.00 pm |
Remaining New Clauses other than any standing in the name of a Minister of the Crown or relating to competition or to portability of bank accounts | 10.00 pm |
Second day | |
New Clauses relating to competition; New Clauses relating to portability of bank accounts; remaining proceedings on Consideration | Two hours after the commencement of proceedings on Consideration on the second day |
(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion three hours after the commencement of proceedings on Consideration on the second day.—(Greg Clark.)
Mr Speaker
I now invite Mr Andrew Tyrie to move his manuscript amendment, the essence of which is to delete reference to 6 o’clock and to substitute for it a reference to 7 o’clock.
Mr Andrew Tyrie (Chichester) (Con)
I beg to move an amendment,
“leave out ‘6.00 pm’ and insert ‘7.00 pm’.”
I am very grateful to you, Mr Speaker, as you have covered the whole of my speech in one sentence. I understand the proposal to replace 6 pm with 7 pm may receive widespread support.
Manuscript amendment agreed to.
Main Question, as amended, put and agreed to.
Ordered,
That the Order of 11 March 2013 in the last Session of Parliament (Financial Services (Banking Reform) Bill (Programme)) be varied as follows:
(1) Paragraphs 4 and 5 of the Order shall be omitted.
(2) Proceedings on Consideration and Third Reading shall be taken in two days in accordance with the following provisions of this Order.
(3) Proceedings on Consideration shall be taken on the days show in the first column of the following Table and in the order so shown.
(4) Proceedings on Consideration shall (so far as not previously concluded) be brought to a conclusion at the times specified in the second column of the Table.
Table | |
|---|---|
Proceedings | Time for conclusion of proceedings |
First day | |
Amendments to clauses 1 to 8 other than amendments relating to competition | 7.00 pm |
New Clauses relating to Bank of England Financial Policy Committee | 8.00 pm |
Remaining New Clauses other than any standing in the name of a Minister of the Crown or relating to competition or to portability of bank accounts | 10.00 pm |
Second day | |
New Clauses relating to competition; New Clauses relating to portability of bank accounts; remaining proceedings on Consideration | Two hours after the commencement of proceedings on Consideration on the second day |
(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion three hours after the commencement of proceedings on Consideration on the second day.
Financial Services (Banking Reform) Bill
(10 years, 9 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
19:00 - The House divided: - Ayes: 225 / Noes: 274 - Question accordingly negatived.
19:57 - The House divided: - Ayes: 211 / Noes: 271 - Question accordingly negatived.
21:34 - The House divided: - Ayes: 217 / Noes: 272 - Question accordingly negatived.
The Financial Secretary to the Treasury (Greg Clark)
I beg to move amendment 1, in page 1, line 20, after ‘body’ insert ‘or of a member of a ring-fenced body’s group’.
Mr Speaker
With this it will be convenient to discuss the following:
Government amendments 2 to 4.
Amendment 17, in clause 4, page 9, leave out lines 8 to 21 and insert—
‘Reviews
142J Reviews of ring-fencing
‘(1) The Treasury must make arrangements for the carrying out of reviews of the effects of the operation of the provision made by or under this Part in relation to ring-fenced bodies, including ring-fencing rules made by the PRA and the FCA. Such arrangements shall be set out in a statutory instrument subject to approval by resolution of both Houses of Parliament.
(2) The first review must be completed before the end of the period of two years beginning with the date on which section 4 of the Financial Services (Banking Reform) Act 2013, so far as it inserts this section, comes into force.
(3) Subsequent reviews must be completed before the end of the period of two years beginning with the date on which the previous review was completed.
(4) Not less than nine months, nor more than 12 months, before the date on which a review is due to be completed, the PRA and the FCA must publish a joint assessment of the impact of the operation of their ring-fence rules.
(5) For the purposes of this section a review is completed when the report of it is published.
142JA Persons by whom reviews are to be conducted
‘(1) The Treasury shall appoint not fewer than five persons to conduct a review of whom one is to chair it.
(2) A person may not be appointed to chair a review unless the chairman of the Treasury Committee of the House of Commons has notified the Treasury that, in the chairman’s opinion, the person is likely to act independently of the Treasury, the PRA and the FCA in carrying out the review.
(3) The persons appointed to conduct a review must include at least one person with substantial experience in central banking or financial regulation at a senior level.
(4) The reference in subsection (2) to the Treasury Committee of the House of Commons—
(a) if the name of that Committee is changed, is to be treated as a reference to that Committee by its new name, and
(b) if the functions of that Committee (or substantially corresponding functions) become functions of a different Committee of the House of Commons, is to be treated as a reference to the Committee by which the functions are exercisable;
and any question arising under paragraph (a) or (b) is to be determined by the Speaker of the House of Commons.
142JB Reports of review
‘(1) The persons appointed to conduct a review must give the Treasury a report of the review.
(2) The report must include an assessment of the extent to which the provision made by or under this Part in relation to ring-fenced bodies, including ring-fencing rules made by the PRA and by the FCA, are facilitating the advancement by the PRA of the objective in section 2B(3)(c) and by the FCA of the continuity objective.
(3) If the report is made before section 4 of the Financial Services (Banking Reform) Act 2013, so far as it inserts section 142JD, has come into force it must also include a recommendation as to whether or not section 4 of that Act should be brought into force to that extent.
(4) The report must include—
(a) recommendations to the Treasury as to the provision that should be included in orders and regulations under this Part, and
(b) recommendations to the PRA and the FCA about the provision that should be included in ring-fencing rules.
(5) The Treasury must lay a copy of the report before Parliament and publish it in such manner as it thinks fit.’.
Government amendment 6, page 9, line 21, at end insert—
‘Group restructuring powers
142JA Cases in which group restructuring powers become exercisable
(1) The appropriate regulator may exercise the group restructuring powers only if it is satisfied that one or more of Conditions A to D is met in relation to a ring-fenced body that is a member of a group.
(2) Condition A is that the carrying on of core activities by the ring-fenced body is being adversely affected by the acts or omissions of other members of its group.
(3) Condition B is that in carrying on its business the ring-fenced body—
(a) is unable to take decisions independently of other members of its group, or
(b) depends on resources which are provided by a member of its group and which would cease to be available in the event of the insolvency of the other member.
(4) Condition C is that in the event of the insolvency of one or more other members of its group the ring-fenced body would be unable to continue to carry on the core activities carried on by it.
(5) Condition D is that the ring-fenced body or another member of its group has engaged, or is engaged, in conduct which is having, or would apart fro m this section be likely to have, an adverse effect on the advancement by the appropriate regulator—
(a) in the case of the PRA, of the objective in section 2B(3)(c), or
(b) in the case of the FCA, of the continuity objective.
(6) The appropriate regulator may not exercise the group restructuring powers in relation to any person if—
(a) either regulator has previously exercised the group restructuring powers in relation to that person, and
(b) the decision notice in relation to the current exercise is given before the second anniversary of the day on which the decision notice in relation to the previous exercise was given.
(7) In this section and sections 142JB to 142JG “the appropriate regulator” means—
(a) where the ring-fenced body is a PRA-authorised person, the PRA;
(b) where it is not, the FCA.
142JB Group restructuring powers
(1) In this Part “the group restructuring powers” means one or more of the powers conferred by this section.
(2) Where the appropriate regulator is the PRA, the powers conferred by this secti on are as follows—
(a) in relation to the ring-fenced body, power to impose a requirement on the ring-fenced body requiring it to take any of the steps mentioned in subsection (5),
(b) in relation to any member of the ring-fenced body’s group which isa PRA-authorised person, power to impose a requirement on the PRA-authorised person requiring it to take any of the steps mentioned in subsection (6),
(c) in relation to any member of the ring-fenced body’s group which is an authorised person but not a PRA-authorised person, power todirect the FCA to impose a requirement on the authorised person requiring it to take any of the steps mentioned in subsection (6), and
(d) in relation to a qualifying parent undertaking, power to give a direction under this paragraph to the parent undertaking requiring it to take any of the steps mentioned in subsection (6).
(3) Where the appropriate regulator is the FCA, the powers conferred by this section are as follows—
(a) in relation to the ring-fenced body, power to impose a requirement on the ring-fenced body requiring it to take any of thesteps mentioned in subsection (5),
(b) in relation to any member of the ring-fenced body’s group which is an authorised person but not a PRA-authorised person, power to impose a requirement on the authorised person requiring it to take any of the steps mentioned in subsection (6),
(c) in relation to any member of the ring-fenced body’s group which is a PRA-authorised person, power to direct the PRA to impose a requirement on the authorised person requiring it to take any of the steps mentioned in subsection (6), and
(d) in relation to a qualifying parent undertaking, power to give a direction under this paragraph to the parent undertaking requiring it to take any of the steps mentioned in subsection (6).
(4) A parent undertaking of a ring-fenced body by reference to which the group restructuring powers are exercisable is for the purposes of this Part a “qualifying parent undertaking” if —
(a) it is a body corporate which is incorporated in the United Kingdom and has a place of business in the United Kingdom, and
(b) it is not itself an authorised person.
(5) The steps that the ring-fenced body may be required to take are—
(a) to dispose of specified property or rights to an outside person;
(b) to apply to the court under Part 7 for an order sanctioning a ring-fencing transfer scheme relating to the transfer of the whole or part of the business of the ring-fenced body to an outside person;
(c) otherwise to make arrangements discharging the ring-fenced body from specified liabilities.
(6) The steps that another authorised person or a qualifying parent undertaking may be required to take are—
(a) to dispose of any shares in, or securities of, the ring-fenced body to an outside person;
(b) to dispose of any interest in any other body corporate that is a member of the ring-fenced body’s group to an outside person;
(c) to dispose of other specified property or rights to an outside person;
(d) to apply to the court under Part 7 for an order sanctioning a ring-fencing transfer scheme relating to the transfer of the whole or part of the business of the authorised person or qualifying parent undertaking to an outside person.
(7) In subsections (5) and (6) “outside person” means a person who, after the implementation of the disposal or scheme in question, will not be a member of the group of the ring-fenced body by reference to which the powers are exercised (whether or not that body is to remain a ring-fenced body after the implementation of the disposal or scheme in question).
(8) It is immaterial whether a requirement to be imposed on an authorised person by the appropriate regulator, or by the other regulator at the direction of the appropriate regulator, is one that the regulator imposing it could impose under section 55L or 55M.
142JC Procedure: preliminary notices
(1) If the appropriate regulator proposes to exercise the group restructuring powers in relation to any authorised person or qualifying parent undertaking (“the person concerned”), the regulator must give each of the relevant persons a first preliminary notice stating—
(a) that the regulator is of the opinion that the group ring-fencing powers have become exercisable in relation to the person concerned, and
(b) its reasons for being satisfied as to the matters mentioned in section 142JA(1).
(2) Before giving a first preliminary notice, the regulator must—
(a) give the Treasury a draft of the notice,
(b) provide the Treasury with any information that the Treasury may require in order to decide whether to give their consent, and
(c) obtain the consent of the Treasury.
(3) The first preliminary notice must specify a reasonable period (which may not be less than 14 days) within which any of the relevant persons may make representations to the regulator.
(4) The relevant persons are—
(a) the person concerned,
(b) the ring-fenced body, if not the person concerned, and
(c) any other authorised person who will, in the opinion of the appropriate regulator, be significantly affected by the exercise of the group restructuring powers.
(5) After considering any representations made by any of the relevant persons, the regulator must either—
(a) with the consent of the Treasury, give each of the persons a second preliminary notice, or
(b) give each of them a notice stating that it has decided not to exercise its group restructuring powers.
(6) A second preliminary notice is a notice stating—
(a) that the regulator proposes to exercise the group restructuring powers, and
(b) the manner in which it proposes to do so.
(7) The second preliminary notice must specify a reasonable period (which may not be less than 14 days) within which any of the relevant persons may make representations to the regulator about the proposals.
(8) The regulator must after considering any representations made in response to the second preliminary notice give each of the relevant person s a third preliminary notice stating—
(a) whether it has made any revisions to the proposals, and
(b) if so, what the revisions are.
142JD Procedure: warning notice and decision notice
(1) If the appropriate regulator has given a third preliminary notice, it must either—
(a) if it still proposes to exercise the group restructuring powers, give each of the relevant persons a warning notice during the warning notice period, or
(b) before the end of the warning notice period, give each of them a notice stating that it has decided not to exercise the powers.
(2) The “warning notice period” is the period of 6 months beginning with the first anniversary of the day on which the third preliminary notice was given.
(3) Before giving a warning notice under subsection (1)(a), the appropriate regulator must —
(a) give the Treasury a draft of the notice,
(b) provide the Treasury with any information that the Treasury may require in order to decide whether to give their consent, and
(c) obtain the consent of the Treasury.
(4) The action specified in the warning notice may be different from that specified in the third preliminary notice if—
(a) the appropriate regulator considers that different action is appropriate as a result of any change in circumstances since the third preliminary notice was given, or
(b) the person concerned consents to the change.
(5) The regulator must, in particular, have regard to anything that—
(a) has been done by the person concerned since the giving of the third preliminary notice, and
(b) represents action that would have been required in pursuance of the proposals in that notice.
(6) If the regulator decides to exercise the group restructuring powers it must give each of the relevant persons a decision notice.
(7) The decision notice must allow at least 5 years from the date of the decision notice for the completion of—
(a) any disposal of shares, securities or other property that is required by the notice, or
(b) any transfer of liabilities for which the notice requires arrangements to be made.
(8) The giving of consent for the purpose of subsection (4)(b) does not affect any right to refer to the Tribunal the matter to which any decision notice resulting from the warning notice relates.
(9) “The relevant persons” has the same meaning as in section 142JC.
142JE References to Tribunal
(1) A notified person who is aggrieved by—
(a) the imposition by either regulator of a requirement as a result of section 142JB(2)(a) or (b) or (3)(a) or (b),
(b) a requirement to be imposed as a result of the giving by one regulator to the other of a direction under section 142JB(2)(c) or (3)(c), or
(c) the giving by either regulator of a direction under section 142JB(2)(d) or (3)(d),
may refer the matter to the Tribunal.
(2) “Notified person” means a person to whom a decision notice under section 142JD(6) was given or ought to have been given.
142JF Subsequent variation of requirement or direction
(1) A regulator may at any time with the consent of the person concerned vary—
(a) a requirement imposed by it as a result of section 142JB(2)(a) or (b) or (3)(a) or (b), or
(b) a direction given by it as a result of section 142JB(2)(c) or (d) or (3)(c) or (d).
(2) The person concerned may at any time apply to the appropriate regulator for the variation of—
(a) a requirement imposed by it as a result of section 142JB(2)(a) or (b)or (3)(a) or (b), or
(b) a direction given by it as a result of section 142JB(2)(c) or (d) or (3)(c) or (d).
(3) Sections 55U, 55V, 55X and 55Z3 apply to an application under subsection (2) as they apply to an application for the variation of a requirement imposed by the appropriate regulator under section 55L or 55M.
142JG Consultation etc. between regulators
(1) Where a notice under section 142JC or a warning notice or decision notice under section 142JD relates to a requirement to be imposed in pursuance of a direction to be given as a result of section 142JB(2)(c) or (3)(c), the appropriate regulator must—
(a) consult the other regulator before giving the notice, and
(b) give a copy of the notice to the other regulator.
(2) The appropriate regulator must consult the other regulator before varying under section 142JF a direction given as a result of section 142JB(2)(c) or (3)(c).
(3) Directions given by the FCA as a result of section 142JB(3)(c) are subject to any directions given to the FCA under section 3I.
142JH Relationship with regulators’ powers under Parts 4A and 12A
(1) Subsection (2) applies in relation to—
(a) a ring-fenced body which is a member of a mixed group, and
(b) a parent undertaking of such a ring-fenced body.
(2) A regulator may not exercise its general powers in relation to the ring-fenced body or parent undertaking so as to achieve either of the results in subsection (3).
(3) Those results are—
(a) that no existing group member is a parent undertaking of the ring-fenced body;
(b) that the ring-fenced body is not a member of a mixed group.
(4) In subsection (3)(a) “existing group member” means a person who is a member of the ring-fenced body’s group at the time when the requirement is imposed or the direction given.
(5) Except as provided by subsections (1) to (4), the provisions of sections 142JA to 142JG do not limit the general powers of either regulator.
(6) For the purposes of this section, a regulator’s “general powers” are its powers under the following provisions—
(a) section 55L or 55M (imposition of requirements in connection with Part 4A permission);
(b) section 192C (power to direct qualifying parent undertaking).
(7) For the purposes of this section, a ring-fenced body is a member of a mixed group if a member of the ring-fenced body’s group carries on an excluded activity.
Failure of parent undertaking to comply with direction
142JI Power to impose penalty or issue censure
(1) This section applies if a regulator is satisfied that a person who is or has been a qualifying parent undertaking as defined in section 142JB(4) (“P”) has contravened a requirement of a direction given to P by that regulator as a result of section 142JB(2)(d) or (3)(d).
(2) The regulator may impose a penalty of such amount as it considers appropriate on—
(a) P, or
(b) any person who was knowingly concerned in the contravention.
(3) The regulator may, instead of imposing a penalty on a person, publish a statement censuring the person.
(4) The regulator may not take action against a person under this section after the end of the limitation period unless, before the end of that period, it has given a warning notice to the person under section 142JJ.
(5) “The limitation period” means the period of 3 years beginning with the first day on which the regulator knew of the contravention.
(6) For this purpose a regulator is to be treated as knowing of a contravention if it has information from which the contravention can reasonably be inferred.
(7) The requirements that a regulator may be required to impose as a result of a direction under section 142JB(2)(c) or (3)(c) include requirements that t he regulator would not but for the direction have power to impose.
142JJ Procedure and right to refer to Tribunal
(1) If a regulator proposes to take action against a person under section 142JI, it must give the person a warning notice.
(2) A warning notice about a proposal to impose a penalty must state the amo unt of the penalty.
(3) A warning notice about a proposal to publish a statement must set out the terms of the statement.
(4) If the regulator decides to take action against a person under section 142JI, it must give the person a decision notice.
(5) A decision notice about the imposition of a penalty must state the amount of the penalty.
(6) A decision notice about the publication of a statement must set out the terms of the statement.
(7) If the regulator decides to take action against a person under section 142JI, the person may refer the matter to the Tribunal.
142JK Duty on publication of statement
After a statement under section 142JI(3) is published, the regulator must send a copy of the statement to—
(a) the person in respect of whom it is made, and
(b) any person to whom a copy of the decision notice was given under section 393(4).
142JL Imposition of penalties under section 142JI: statement of policy
(1) Each regulator must prepare and issue a statement of policy with respect to—
(a) the imposition of penalties under section 142JI, and
(b) the amount of penalties under that section.
(2) A regulator’s policy in determining what the amount of a penalty should be must include having regard to—
(a) the seriousness of the contravention,
(b) the extent to which the contravention was deliberate or reckless, and
(c) whether the person on whom the penalty is to be imposed is an individual.
(3) A regulator may at any time alter or replace a statement issued under this section.
(4) If a statement issued under this section is altered or replaced, the regulator must issue the altered or replacement statement.
(5) In exercising, or deciding whether to exercise, a power under section 142JI(2) in the case of any particular contravention, a regulator must have regard to any statement of policy published under this section and in force at a time when the contravention occurred.
(6) A statement under this section must be published by the regulator concerned in the way appearing to the regulator to be best calculated to bring it to the attention of the public.
(7) A regulator may charge a reasonable fee for providing a person with a copy of the statement published under this section.
(8) A regulator must, without delay, give the Treasury a copy of any statement which it publishes under this section.
(9) Section 192I applies in relation to a statement under this section as it appl ies in relation to a statement under section 192H.’
Amendment (a) to Government amendment 6, at the end of subsection (5) to new section 142JA, insert—
‘(5A) Condition E is that the appropriate regulator judges that there are serious failures in the culture and standards of the ring-fenced body or another member of its group.
(6) When judging whether there are serious failures in the culture and standards of the ring-fenced body or another member of its group, the appropriate regulator must take account of the recommendations in the five reports of the Parliamentary Commission on Banking Standards.’.
Amendment (b), in the title of new section 142JC, leave out ‘notices’ and insert ‘notice’.
Amendment (c) to Government amendment 6, in subsection (1) of new section 142JC, leave out ‘first’.
Amendment (d), in subsection (2) of new section 142JC, leave out ‘first’.
Amendment (e), in subsection (2)(b) of new section 142JC, leave out from ‘require’ to end.
Amendment (f), in subsection (3) of new section 142JC, leave out ‘first’.
Amendment (g), in subsection (3) of new section 142JC, leave out ‘14 days’ and insert ‘6 weeks’.
Amendment (h), leave out from subsection (5) to end of new section 142JC.
Amendment (i), in subsection (1) of new section 142JD, leave out from ‘must’ and insert
‘At the end of the period for making representations required under section 142JC(3), the regulator’.
Amendment (j), at end of subsection (1), insert—
‘(1A) If, following representations, the regulator makes revisions to the proposals, it must inform the relevant persons of those revisions.’.
Amendment (k), in subsection (2) of new section 142JD, leave out from ‘beginning’ to end of subsection and insert
‘at the end of the period for making representations required under section 142JC(3).’.
Amendment (l), in subsection (3) of new section 142JD, leave out from ‘require’ to end of subsection.
Amendment (m), in subsection (4) of new section 142JD, leave out ‘third’.
Amendment (n), in subsection (4)(a) of new section 142JD, leave out ‘third’.
Amendment (o), in subsection (5)(a) of new section 142JD, leave out ‘third’.
Amendment (p), in subsection (7), leave out from ‘must’ to end of subsection and insert
‘specify the period for completion of the actions required by the notice.’.
Amendment 18, page 9, line 21, at end insert—
‘Full separation
142JD General requirement of separation
‘(1) Where the members of any group include one or more ring-fenced bodies and one or more other bodies, the members of the group must, before the end of the period of five years beginning with the relevant commencement date, take steps to secure that there are no members of the group that are ring-fenced bodies.
(2) If in the case of any group steps to secure that there are no members of the group that are ring-fenced bodies are not taken within the period specified in subsection (1)—
(a) at the end of that period the Part 4A permission of each member of the group that is a ring-fenced body shall be treated as having been cancelled to the extent that it relates to a core activity, and
(b) after the end of that period the appropriate regulator must refuse to give any member of the group a Part 4A permission to carry on a core activity.
(3) At the end of the period specified in subsection (1)—
(a) section 142H(1)(b) and (4) to (7), and
(b) section 142JC,
cease to have effect.
(4) In subsection (1) “the relevant commencement date” means the day appointed for the coming into force of section 4 of the Financial Services (Banking Reform) Act 2013 so far as it inserts this section.’.
Amendment 19, page 9, line 21, at end insert—
‘Power to order full separation
142JC Power to order separation in case of particular groups
‘(1) Where—
(a) the members of a group include one or more ring-fenced bodies and one or more other bodies, and
(b) it appears to the appropriate regulator that the conduct of any one or more of the members of the group is such that there is a significant risk that the appropriate regulator will not be able to advance the objective in section 2B(3)(c) (in the case of the PRA) or the continuity objective (in the case of the FCA) otherwise than by acting under this section,
the appropriate regulator may give a notice to each of the members of the group.
(2) The notice must state that the appropriate regulator proposes to require the taking of relevant steps in relation to the group before the date specified in the notice.
(3) In this section “relevant steps” means steps to secure one of the following results—
(a) that there is no member of the group with a Part 4A permission to carry on a regulated activity of a description specified in the notice;
(b) that no member of the group is a ring-fenced body;
(c) that there is no member of the group with a Part 4A permission to carry on a regulated activity which is not a ring-fenced body.
(4) The notice must—
(a) specify a period, of not less than 3 months, during which any member of the group may make representations to the appropriate regulator in relation to its proposal, and
(b) name an independent reviewer who is to report on the conduct of the members of the group and the appropriateness of the proposal made by the appropriate regulator.
(5) A person may not be named as the independent reviewer without the consent of the chairman of the Treasury Committee of the House of Commons; and the reference in this subsection to the Treasury Committee of the House of Commons—
(a) if the name of that Committee is changed, is to be treated as a reference to that Committee by its new name, and
(b) if the functions of that Committee (or substantially corresponding functions) become functions of a different Committee of the House of Commons, is to be treated as a reference to the Committee by which the functions are exercisable;
and any question arising under this paragraph (a) or (b) is to be determined by the Speaker of the House of Commons.
(6) After receiving any representations made in relation to the proposal by members of the group and the report of the independent reviewer, the appropriate regulator must decide whether it intends to implement the proposal.
(7) If the appropriate regulator decides that it does intend to implement the proposal, it must publish notice of the proposal, and of its decision to implement it, at least 60 days before it is implemented.
(8) A person who is aggrieved by the decision of the appropriate regulator that it intends to implement the proposal may refer the matter to the Tribunal.
(9) The proposal may not be implemented without the consent of the Treasury; and the Treasury must publish their decision on any application made by the appropriate regulator for consent, together with their reasons for the decision, at least 60 days before it is implemented.
(10) Once the Treasury has consented to the implementation of the proposal and either—
(a) any reference to the Tribunal under subsection (8) has been dismissed, or
(b) the period for making such a reference to the Tribunal has expired without a reference having been made,
the appropriate regulator may implement the proposal by giving notice to the members of the group requiring the taking of the relevant steps specified in the proposal before the date so specified.
(11) If the relevant steps have not been taken by the specified date, the appropriate regulator may—
(a) in a case where the relevant steps are aimed at securing the result in paragraph (a) of subsection (3), take the action specified in subsection (12),
(b) in a case where the relevant steps are aimed at securing the result in paragraph (b) of subsection (3), take the action specified in subsection (13), or
(c) in a case where the relevant steps are aimed at securing the result in paragraph (c) of subsection (3), take the action specified in subsection (14).
(12) The action referred to in paragraph (a) of subsection (11) is—
(a) to cancel the Part 4A permission of any member of the group to carry on the regulated activity specified in the notice, and
(b) to refuse to give a Part 4A permission to any member of the group to carry on that activity.
(13) The action referred to in paragraph (b) of subsection (11) is—
(a) to cancel the Part 4A permission of any member of the group that is a ring-fenced body to the extent that it relates to a core activity, and
(b) to refuse to give any member of the group a Part 4A permission to carry on a core activity.
(14) The action referred to in paragraph (c) of subsection (11) is—
(a) to cancel the Part 4A permission of any member of the group that is not a ring-fenced body, and
(b) to refuse to give a Part 4A permission to any member of the group that is not a ring-fenced body.’.
Government amendments 7 to 16.
Greg Clark
This group deals with some of the recommendations of the first report of the Parliamentary Commission on Banking Standards, which was published on 21 December last year. The Government agreed to bring forward amendments on Report to implement those recommendations, and those amendments are amendments 1 to 4, 6 to 10 and 11 to 16. I will turn to them in a few moments, but the amendment proposed by my hon. Friend the Member for Chichester (Mr Tyrie) relates to his parliamentary commission’s final report on standards and culture, which was published on 19 June, and it therefore provides a perfect opportunity—as I suspect my hon. Friend intended—to say something about that further report and how the Government intend to implement its recommendations.
The Government warmly endorse the report. It is a landmark piece of work and I commend its unflinching, clear-sighted assessment of the damage done to the reputation of banking in this country and all around the world.
Mr Andrew Love (Edmonton) (Lab/Co-op)
The parliamentary commission requested the Government to consider giving their response—and tabling amendments —well in advance of this Report stage, yet that has been given only this afternoon. Why are we faced with having to absorb this document at very short notice?
Greg Clark
I pay tribute to the hon. Gentleman for the long hours he has devoted to the work of that commission. The Government did indeed make a commitment on Second Reading and before then to make use of the Bill before us to take forward the recommendations of the commission. It was always intended that that should be at the House of Lords stages of the Bill, but I will have more to say about that in a few moments. We will absolutely give the required time to consider those amendments and to make use of a Bill that is before the House, enabling us to respond rather than wait for a further piece of legislation.
The commission’s central judgment is absolutely right:
“High standards in banking should not be a substitute for global success. On the contrary, they can be a stimulus to it.”
When I visited Germany late last year, I picked up a copy of Handelsblatt and was struck by a double-page spread with a picture of the City of London and the headline, in English, “City of shame”. That shows the impact of the events of the financial crisis and subsequently on the reputation of this country’s banking system. Exactly as the commission says, if we are to restore the system’s global success, as we must, it is imperative that we improve its standards.
Therefore, in response to the commission’s report, I can confirm today that the Government will strengthen individual accountability by introducing a tough new regime that is recommended to cover the behaviour of senior bank staff; introducing new rules to promote higher standards for all bank staff; introducing a criminal offence for reckless misconduct by senior bankers—those found guilty could face a jail sentence; working with the regulators to implement the commission’s proposals on pay, specifically to allow bonuses to be deferred for up to 10 years and enable 100% clawback of bonuses where banks receive state aid; and reversing the burden of proof so that senior staff are held accountable for regulatory breaches within their areas of responsibility. We will also ask the regulators to implement the commission’s key recommendations on corporate governance. That will ensure that firms have to have the correct systems in place to identify risks and maintain standards on ethics and culture.
We will support competition in the banking sector by providing the Prudential Regulation Authority with what the commission asked for, which was a secondary competition objective to strengthen its role in ensuring that we have banking markets that benefit from the vigorous competition that delivers good outcomes for consumers. That will be in addition to the Financial Conduct Authority’s existing competition objective. In addition to introducing seven-day account switching later this year, the Government will ask the new payments regulator, once established, urgently to examine account portability and whether the big banks should give up ownership of the payment systems. The Government have also implemented the commission’s recommendation to conduct a review to look into the case for splitting RBS into a good bank and a bad bank containing its risky assets.
When the commission’s final report was published on 19 June, I undertook to provide an accelerated Government response by way of a Command Paper before the summer recess.
Mr Pat McFadden (Wolverhampton South East) (Lab)
On a point of order, Mr Speaker. I rise to seek your guidance, because the Minister is making, in effect, a statement on a series of Government policies related not to clause 1 or amendment 1 but to policy areas where amendments have not yet been tabled. Is that in order? Should this not have been done in the proper way—making a statement and allowing the House to ask questions in the normal way?
Mr Speaker
The Minister may wish to reply, because it is important to be clear about the context in which the observations he is making are made. That is central to this matter, and it is difficult to rule on it unless there is some clarity on the subject. I am grateful to the right hon. Gentleman for his point of order and let us hear what the Minister has to say.
Greg Clark
I thought that I had explained the context at the beginning, which was that the amendment tabled by my hon. Friend the Member for Chichester deals specifically with the recommendations of the final report on the culture. As I said, I suspected that he had tabled the amendment in order to afford us the opportunity to debate these matters. I will move on to deal with the other amendments in the group if the House would prefer it.
Mr Speaker
The hon. Gentleman is absolutely right; he has been a model of restraint, on which we congratulate him. He was in mid-intervention and we do not wish to have his aircraft come down prematurely, so let us hear it.
Mr Love
My question relates to the issues covered by my right hon. Friend the Member for Wolverhampton South East (Mr McFadden) and the list of policy positions recommended by the parliamentary commission. The press release that accompanied the Government’s document today states that they endorse “the principal findings”. Would the Minister care to tell us which findings they do not endorse?
Greg Clark
Of course, and today and tomorrow we will go into some further detail on that point. Let me mention one such finding, however: the Government do not agree with the proposal to abolish UK Financial Investments. I will mention various others later. We brought forward the publication of the response, which, just before the report was published, was intended to take place just before the summer recess, because I thought it was germane to the discussions in the House and I encouraged my officials to work their best to try to make it available for today and tomorrow. It has been sent to Members.
Giving a Government response to an 11-month long, 571-page commission report in just 13 working days is, I think, quite an achievement and I thank my officials for losing a nice weekend watching the tennis to do that. I had hoped that it would help the debate.
Chris Leslie (Nottingham East) (Lab/Co-op)
This is a very interesting situation. The Minister talks about the 13-day deadline and said that we had to get this done. Correct me if I am wrong, Mr Speaker, but I thought that the Government decided when the Report stage of a Bill was to be held, so the deadline was rather self-imposed. Why on earth are we wasting this Commons consideration of the Bill in Committee and on Report when he could not get his act together either to table amendments or to get a response together in time for us to properly use our time on Report?
Greg Clark
The hon. Gentleman is perfectly aware that the standard response time for a Command Paper responding to a report is two calendar months. That would have taken us into the recess, which clearly is not possible, so we would have had to respond after the recess. I think he is being churlish when I have asked my officials to move at great speed to respond in a very short space of time—13 working days—to make the response available. I thought it was better for us to have it for these debates than to have it next week or in September. I am grateful to my officials for their alacrity, even if he is not.
Jacob Rees-Mogg (North East Somerset) (Con)
I join my right hon. Friend in commending his officials for their amazingly speedy response. The only thing I would ask is that we should have plenty of time on Lords amendments. We had an excellent discussion in Committee, but unfortunately it was on a Bill that will be completely different from the one that is ultimately passed. To maintain the supremacy of this House, I feel it is important that we should have a proper discussion of and decision on the amendments that will be made in the other place.
Greg Clark
My hon. Friend, who was a distinguished member of the Public Bill Committee, is absolutely right. I have given assurances to the House before that we will have enough time to consider these very important matters, and we always have done. In Committee, we arranged things in such a way that we were able to consider every line of the Bill and every amendment and new clause with time to spare. When I saw the amendments that had been tabled, I made representations through the usual channels to extend what in the original programme motion had been a one-day Report and Third Reading. I had said that I would reflect on the volume of amendments and was able to secure an extra half day of consideration. I repeat that assurance—when the amendments return from the House of Lords, it is absolutely right that this House should have the chance to consider them all at leisure and thoroughly. My hon. Friend has my assurance on that.
Let me turn to amendments 1, 2 and 3. In Committee, I gave a number of undertakings that I would table amendments on Report. One such commitment related to the effectiveness of the ring fence, which is the common denominator of the amendments in this group. The hon. Member for Nottingham East (Chris Leslie) will immediately spot that amendments 1, 2, 3 and 4 act on a commitment I gave to the Committee that in turn reflected the recommendations of the first report of the PCBS, on which the hon. Member for Edmonton (Mr Love) and my hon. Friend the Member for Chichester served.
For Members who did not have the privilege of being part of our discussions in Committee, let me set the context. The Independent Commission on Banking set three objectives for the ring fence: first, to insulate essential day-to-day banking services against shocks originating elsewhere in the financial system; secondly, to make banks more resolvable; and, thirdly, to curtail the perceived implicit Government guarantees to banks, which follows from the first two. The Bill turns those ring-fencing objectives into law by making them part of the statutory objectives of the regulators—the PRA and the FCA.
Jonathan Edwards (Carmarthen East and Dinefwr) (PC)
The new structure that the Minister is outlining looks good on paper, but the key to its success is the role of the PRA. How will he stop the problem of the revolving door that arose with the Financial Services Authority afflicting the PRA, because that would completely undermine the ring fence he intends to put in place?
Greg Clark
The hon. Gentleman makes a good point. He will know from our proceedings during the passage of the Financial Services Act 2012 that we needed to reverse the catastrophic decision to take supervision of the banking system away from the Bank of England, which had always exercised that role with authority and commanded respect not only in this country but throughout the world. That Act corrected the situation, and the PRA is part of the Bank of England, as he knows, so we have restored that authority.
Guy Opperman (Hexham) (Con)
Does the Minister agree that higher banking standards and the PRA’s new role were enthusiastically endorsed at the multi-level banking seminar in support of regional banking that we held in Gateshead only last month?
Greg Clark
My hon. Friend’s ingenious intervention allows me to pay tribute to the excellent event he hosted in Gateshead at which there was palpable enthusiasm for challenger banks entering the market, especially ones with a regional focus. He and I share an ambition that the north-east should be the home of such a bank, which would do wonders for the region’s economy, with its strong, vibrant business culture. The area would benefit from the local knowledge of such an institution. The PRA and the FCA were represented at the discussion, and he is right to reflect that everyone who was present on that Friday was enthusiastic about the steps the PRA is taking to make it easier for challenger banks to come forward.
Chris Leslie
If the Government are so enthusiastic about the concept of regional banking, will the Minister explain to the hon. Member for Hexham (Guy Opperman) why their report, which came out at lunchtime, explicitly rules out any review of a structural arrangement involving regional banking for the Royal Bank of Scotland?
Chris Leslie
Perhaps the hon. Gentleman did not hear me first time round. I am tempted to repeat myself, but it is important that he realises that his right hon. Friend the Minister has ruled out such an arrangement for RBS.
Greg Clark
The right way to approach this is to make it possible for regional banks to enter the market across the board, which is precisely what the PRA is doing. It has reduced the demands that entrant banks must satisfy to establish themselves as a business and speeded up the authorisation process, which is all to the good.
Guy Opperman
Does the Minister recall that in April last year, the Labour party, taking its lead from the hon. Member for Nottingham East (Chris Leslie), who is sat in a sedentary, chuntering position on the Opposition Benches, voted against the implementation of the competition regulations that would have made regional banks happen?
Mr Speaker
Order. The notion of somebody sitting not in a sedentary position is a challenging one, but I am grateful to the hon. Gentleman for raising his point while on his feet, rather than from his seat.
Greg Clark
It is certainly true that the hon. Member for Nottingham East is seated, and it is also true that he was chuntering. My hon. Friend the Member for Hexham (Guy Opperman) has done the House a service in reminding it of the voting record of the hon. Member for Nottingham East, seated or otherwise.
The amendments clarify that the PRA must seek to minimise damage to the continuity of core services caused by the failure of a ring-fenced bank or any other member of its corporate group; an investment bank could, for example, suffer losses that threatened the whole group with bankruptcy. Amendment 1 requires the PRA to minimise the harm to the continuous provision of core services caused by the failure of other group members, as well as of the ring-fenced bank itself.
Amendment 2 clarifies that the failure of a group company includes its insolvency. Amendments 3 and 4 reflect those same changes in the remit of the FCA, in the unlikely event that the FCA ever became the prudential regulator of any ring-fenced bank. I hope that the House will welcome those amendments, which the Committee that scrutinised the Bill and the Parliamentary Commission on Banking Standards suggested.
Mr Love
I thank the right hon. Gentleman for being so generous in giving way. I want to take him back to the discussion about regional banking, because one of the parliamentary commission’s recommendations was that the Government should consider measures to break up RBS into regional banking. I seek his reassurance that the Government have not forgotten that recommendation.
Greg Clark
It delights me to hear the hon. Gentleman refer to today’s publication; it confirms what I thought and hoped, which was that the publication would inform the debate. I think that tomorrow we will come on to clauses that deal with precisely those matters.
Caroline Lucas (Brighton, Pavilion) (Green)
Does the Minister understand the disappointment of those, including me, who believe that the proposals do not go far enough, and that we should look at full legal separation of investment and retail banking, and not just ring-fencing? If we do not, we risk sending a message to the public that politicians still have a surprisingly high degree of trust in the very banks and bankers who caused so much harm to our economy.
Greg Clark
I do not agree with that. We will come on to talk about what the commission referred to as the electrification of the ring fence, and whether it is appropriate to have a power to break up the whole system, so I will address that in a second, if I may. Amendments 6 to 10 concern that electrification of the ring fence, to use the memorable phrase of my hon. Friend the Member for Chichester—or, I dare say, the whole commission.
Mr McFadden
The Minister is being generous in giving way. I would like to take him back to the intervention by my hon. Friend the Member for Edmonton (Mr Love). Will the Minister confirm that paragraph 5.11 of the publication that his Department published today states:
“The Government does not believe that the case for breaking RBS’s core operations into multiple entities meets the objectives of maximising the banks’ ability to support the British economy”?
In layperson’s terms, the Government have today rejected the notion that their review will look at regional banks, as distinct from a good bank/bad bank split. Is that how we should read that?
Greg Clark
No. The right hon. Gentleman has not got it quite right. We are absolutely enthusiastic about creating regional banks, and the exchange that I had with my hon. Friend the Member for Hexham, and the changes made by the regulator to the approvals process, underline that. The right hon. Member for Wolverhampton South East (Mr McFadden) asks a specific question about whether RBS, in which we, of course, have a very substantial stake, should be broken up in that way. It is important that we have regard to value for the taxpayer. I suspect that we will talk about these things tomorrow, but I confirm that it is the Government’s view that we should not damage the potential value to the taxpayer in that way.
As members of the Bill Committee will recall, I made a commitment to introduce on Report amendments to implement electrification, and here they are. The amendments give powers to the regulator, with the consent of the Treasury, to require a group to separate completely its retail and wholesale banking operations. The regulator would be able to require the group either to sell its interests in ring-fenced or non-ring-fenced entities, or to transfer specified businesses to outside ownership. The regulator will be able to require separation if it is satisfied either that the group’s ring-fenced bank is not sufficiently independent of the rest of the group or that the conduct of any member of the group is such that it undermines the regulator’s ability to achieve its new statutory objective to ensure the continuity of core services.
The amendments set out a process for the exercise of that power. The first step is that the regulator must notify all affected members of a group that it is minded to exercise its powers and how it proposes to do so. The affected bank has the right to make representations following the receipt of each notice. Following that stage, the regulator is required to allow members of the group at least a year to take action to rectify the position. If, after that period, the regulator wishes to proceed it must issue a warning notice before a requirement to separate is imposed. The regulator would then allow five years to complete the separation required in line with the disposals required under competition law, particularly state aid interventions.
As the parliamentary commission recommended, the Treasury’s approval is required before that action can be taken. We agree with the commission that providing for a deterrent against any bank that seeks to game or evade the ring fence is a sensible reinforcement in keeping with the recommendations of the Independent Commission on Banking. Government amendments 11,12, 13 and 14 make technical adjustments to ensure that all the necessary components of structural reform comply with the ring fence and are brought within the scope of the ring-fencing transfer scheme.
Richard Fuller (Bedford) (Con)
I am grateful to my right hon. Friend for his clear explanation of how the ring fence will work. He is discussing time frames that make sense in benign economic circumstances, but some of the problems with the interaction of retail and investment banking came about in circumstances of great financial trauma. Is he confident that the measures he has proposed will work in those circumstances as well?
Greg Clark
My hon. Friend makes a good point. The use of state aid is often a response in the context of difficult circumstances. That was certainly the case in the financial crisis, and it happens in other industries as well. Five years is the standard period for these arrangements to be executed or completed, and that is the reason, anticipating an intervention from my hon. Friend, that period was chosen. I dare say, however, that that there can be reflection on that: my hon. Friend the Member for Chichester may have a different view that he may wish to share with the House later.
Government amendments 15 and 16 reflect concerns expressed both by the Commission and in Committee that the use of ring-fencing transfer schemes to restructure groups could provide unscrupulous banks with an opportunity to shirk their responsibilities, such as liability with past misconduct. The requirement for PRA approval is a substantial safeguard against that, but Government amendment 16 requires that before the PRA can consent to a ring-fencing transfer scheme it must commission an independent report to assess whether anyone other than the bank itself would be adversely affected by the transfer. Government amendment 15 requires the PRA to “have regard” to that report in deciding whether to approve a ring-fencing transfer.
The hon. Member for Nottingham East will of course have more to say about amendments tabled by the Opposition, but his first amendment was debated extensively in Committee. It requires a review of ring-fencing every two years. I am certainly not set against an independent review. Indeed, the Bill builds in future reviews, including the PRA being able to report annually on the operation of the ring fence, and being able to report every five years on whether the detailed rules it has made are still delivering the objectives of the ring fence. Requiring another review specifically to look at the case for full separation risks in many ways achieving the opposite of the Bill’s intention, which is to secure consensus, as far as that can be established, and to provide for a stable regulatory structure.
It would be paradoxical for such a review to be confined to looking at ring-fencing or full separation, but not any other remedy for deficiencies that the review might uncover. Amendment 18 is identical to an amendment that was debated in Committee. The Government’s position is clear: in the Bill, we are following the advice of the commission chaired by Sir John Vickers, which considered the case for full separation—that relates to the point made by the hon. Member for Brighton, Pavilion (Caroline Lucas)—and rejected it. It is a different policy. I know that it has some distinguished advocates, but it is a different policy. Of course, any future Government could adopt it, but they should do so properly, through thorough analysis and following parliamentary and public scrutiny.
It is worth reminding ourselves briefly of the history of the proposals before us. They were not invented during the past few weeks or months. They go right back to 2010, when the Government established the Independent Commission on Banking under the chairmanship of Sir John Vickers. The commission produced three reports, instigated two public consultations, considered 1,500 pages of written submissions and hosted more than 300 separate meetings. The Government produced a response and a White Paper, on which they again consulted fully before coming to Parliament. At each stage there was full cost-benefit analysis. Now in Parliament each detail of the policy is being debated—and has been debated in Committee—and in many cases improved.
Mr Love
The parliamentary commission consulted widely and there was considerable concern about the weaknesses and the ring-fencing that had been suggested by Vickers. That resulted in a proposal for electrification. Is the right hon. Gentleman secure in the view that we have electrified the fence enough on the basis of the amendments he is proposing today?
Greg Clark
I will be even more secure when I have persuaded the hon. Gentleman, as I hope to do. He, being a fair man, will reflect on the fact that his distinguished commission undertook pre-legislative scrutiny of the proposals made by Sir John Vickers and his commissioners. Sir John did not recommend that there should be the power to separate. In fact, he has been persuaded by the institution-specific power of separation that his commission proposed, but has reflected in evidence to his commission that to go further and introduce a system-wide power is a separate matter and should come before Parliament in an explicit way rather than, as would be the case here, through a statutory instrument following an independent review.
The proposals before us, most fair-minded colleagues would concede, fall very far short of the degree of scrutiny and rigorous assessment, including by the hon. Gentleman’s commission, that the current proposals have gone through. Parliament would not have the ability to present amendments to proposals and at that stage to take account of the recommendations even of the independent review. So the procedures proposed are less than adequate to the scale of the policy change that would be embodied in them. If we are to be serious about the need to respect the views and the role of Parliament—as I have made clear, these are important matters—we must accept that the only right and proper and democratic way of legislating for full separation is by coming back to Parliament with full primary legislation, including the rigorous process that we have undertaken.
Stephen Barclay (North East Cambridgeshire) (Con)
I very much agree with the case that my right hon. Friend is making. Is there not a danger with a fixation on structure, which the review advocated by the Opposition would promote, that we work less on making the existing electrification work and getting the behaviours right, and instead allow a focus on structure and the further review? As with any structure, it is possible to ratchet up, but it is also possible to ratchet down, and it would allow a nibbling of the electrification, which would not be constructive.
Greg Clark
My hon. Friend has some experience of these matters. I think that the debates about structure are important and that structural reform will make an essential contribution to making the system safe for the purposes of taxpayers. However, having looked into it, I think that to have hanging over the system the sword of Damocles—the origins of the metaphor were the subject of an erudite debate in the Commission—would introduce an uncertainty into proceedings that might distract from the important work of implementing the existing provisions.
Mr Love
The reality is that we are seeking to balance conflicting issues. One respects the Government’s view that Parliament should be supreme in this regard, but the alternative argument, of course, is the one that the Minister has just put to us, about the sword of Damocles keeping the feet of the banking industry to the fire. We know that the industry has not been entirely with us in relation to setting up the ring-fencing arrangements and that it needs some encouragement to make it work effectively.
Greg Clark
The hon. Gentleman gets to the nub of the matter, because of course any attempt to evade the ring fence or to nibble the electric fence, as dangerous to health as that would be, could be undertaken only on the part of a particular institution, not the system. That is why we agreed with the commission’s report—it was not part of the Vickers report—that it was necessary, for exactly the reasons the hon. Gentleman mentions, to have a sanction against that type of behaviour, and that is what we have done.
A further power to separate the whole system could not be triggered by an individual and could not punish the actions of an individual institution. That is why I think that is a very different policy. It commands the support of some very distinguished and influential people. The Glass–Steagall approach, which of course the policy is modelled on, has its place in history, but I think that history also reveals that the Glass–Steagall arrangements were not immune to the very dangers my hon. Friend the Member for North East Cambridgeshire (Stephen Barclay) pointed to. It is a good job my hon. Friend the Member for Chichester secured his amendment to the programme motion, because we are having a very interesting debate, but I would like to conclude, because there are other amendments that hon. Members would like to speak to. On that point, however, I urge the House not to allow at this stage the introduction of a very different policy into the Bill.
Let me turn to the amendments tabled by my hon. Friend the Member for Chichester, who I dare say will speak for himself in a few moments. I know that some of them were tabled to afford us the opportunity to discuss his commission’s report, and I think that this is now established as a very relevant opportunity. I will of course listen carefully to what he says. I am confident that the amendment the Government have tabled in response to the commission’s report can be improved during the Bill’s passage to take into account whatever concerns are embodied in his amendments.
Amendment (a) to Government amendment 6 would add a new condition under which the separation powers could be used: namely, when the regulator
“judges that there are serious failings in the culture and standards of the ring-fenced body or another member of its group.”
Of course, under the Government’s amendment the regulator would have the ability to separate the group if its conduct threatened to undermine the regulator’s ability to meet its continuity objective, but I think that, as the commission’s extensive deliberations showed, cultural failings might be present in banks that can result, for example, in significant harm to individual consumers or groups of consumers but nevertheless do not have systemic consequences. I think that the relevance of the proposed new power to take into account the culture is adequately covered under the provisions already in the Bill.
Amendments (b) to (p) concern the procedures for exercising the separation power. They would remove from the process: the second and third preliminary notice stages that extend to six weeks the time for banks to make representations; the requirement that the group be given a minimum of five years to effect separation; and the requirement for Treasury consent before a group can be required to separate. It is, of course, essential that a clear process be established for the exercise of the separation power. As I have said, I will listen carefully to what my hon. Friend says about reducing the number of warnings, which I think is the essence of what he is recommending, and about departing from the standard practice in financial services of allowing 14 days, rather than the six weeks that he proposes, for representations.
Mr McFadden
I want to compare the Minister’s six-year timetable with the one that the hon. Member for Chichester (Mr Tyrie) has set out in his amendments. What would be the difference for an individual group between moving to full separation under the Minister’s timetable and its doing so under the timetable that would apply if the amendments tabled by the hon. Member for Chichester were accepted?
Greg Clark
As I have said, I shall hear from my hon. Friend. I do not think there is any difference of intent between us; we have accepted the commission’s recommendation. We have taken the period of five years because that is the standard time for the disposal of assets when they are required through competition law proceedings.
I am certainly concerned, however, that the banks should be given a chance to address the concerns, and that chance would be lost if amendment (k) were followed. If amendment (p) were followed, we would deny banks the five-year period for divestments to be made that is typical under competition law. But as I have said, I remain open to considering these matters further during the Bill’s passage. I am confident that it can be improved to meet the concern, as I know that there is no disagreement in principle between me and my hon. Friend on the issue.
The requirement for Treasury consent follows from the commission’s own recommendation, without which the regulator could, on its own initiative, instigate radical structural reforms.
Amendment 19 is retabled as an alternative to Government amendment 6, providing for the specific full separation power. As I explained in Committee when the amendment was previously debated—when the hon. Member for Nottingham East was channelling my hon. Friend the Member for Chichester, as he frequently did—it suffers from technical flaws. That is why I committed to introducing a Government amendment to deliver its objectives.
Specifically, amendment 19 is rather vague, giving the regulator power to require a group to take steps to separate without specifying what those steps are. It also lacks provision for a minimum period over which groups must execute a separation, leaving the risk of the regulator’s ordering a rushed disposal that could be destabilising to the system.
The Government amendment is intended to address those technical problems, although I have signalled our willingness to make any further improvements that may be necessary as the Bill progresses. I hope that my hon. Friend the Member for Chichester will be able to withdraw his amendment at this stage, pending further consideration.
Chris Leslie
It is characteristic of the Minister, with his emollient tones, sometimes to give the impression of smoothing over all these issues. He is ever the swan on the surface, yet beneath the water line the chaotic paddling is evident from the Government’s response to the work of the parliamentary commission. That response was rushed out today, in accordance with the Government’s own artificial deadline of a debate on Report, which they could have scheduled so that we had time to consider where the Government stood on some of these issues.
Even the Minister’s hon. Friends did not seem to realise what he was recommending today on RBS—ruling out a review that might consider a regional banking network, for example. The message did not get through to the Government’s own Back Benchers. I do not know whether that is a whipping issue or whether other channels need to be reviewed, but something is not quite right. It would be remiss of me to pass over the fact that we are debating this Bill on Report having had in Committee no consideration of all the hard effort undertaken by the poor souls who had to serve on the Parliamentary Commission on Banking Standards. Hours, days, weeks and months of their lives went by, never necessarily to be regained. There was no response to that in Committee and there has been barely a nod in its direction on Report.
Greg Clark
This is uncharacteristically ungenerous of the hon. Gentleman, as in Committee he tabled a whole set of amendments drafted by the parliamentary commission, saving him, I dare say, a lot of weekend drafting work. I think he might want to thank members of the commission and note that the recommendations from its first report were exhaustively considered in Committee.
Chris Leslie
The right hon. Gentleman is right. Of course I thank them, but it is my sympathy for them that now requires us to speak in their favour. The Government ignored all those amendments. It is true: I have been channelling the wishes of the hon. Member for Chichester (Mr Tyrie) and, indeed, the rest of the commission. They dutifully drafted all those amendments and they were then totally ignored by the Government. The Government set up the parliamentary commission. They did not want to go for a broader independent inquiry; they wanted to take this route. They set up all the members to do all the work and have all the hearings. Their final report was more than a ream of paper— 570 pages. Not a jot of those amendments was accepted by the Government in Committee, and, significantly, the same applies on Report.
Let us be clear about this. House of Commons consideration of this Bill is not worth anything; all the business is to be done in the other place by members of the commission who are there. It will go to them in October, presumably they will consider it in October and November, and then we will get a little chunk of time at the end of the process for Commons consideration of Lords amendments. I hope that the Minister will allow us a little more latitude to have a look at what is put into the Bill at that time.
Greg Clark
I think the hon. Gentleman is labouring under a misapprehension. The amendments in this group are a response to the commission’s first report. The essence of this Bill is the ring-fencing of the banking system. This is a response to the independent commission to which the parliamentary commission responded. The amendments implement these changes. The Government always made it clear that the final report on standards and culture would be taken on board during the Bill’s passage through the House of Lords. The situation is exactly as envisaged and perfectly orderly. He is not seeing the wood for the trees. This is about the ring-fencing of banks.
Chris Leslie
Well, pardon me for daring to suggest that the Government have got this totally upside down and the wrong way round. They set up the commission and asked its members to come forward with recommendations, as they dutifully did, for which I thank them, and then ignored them in the Commons Committee and Report stages. That means that it is all to be debated in the detail that is required when the Bill reaches the House of Lords.
Mark Field (Cities of London and Westminster) (Con)
Given that on Second Reading I suggested that much of the real deliberation would take place in the other place, it would be churlish of me to disagree entirely with the sentiments expressed by the hon. Gentleman. The situation was ever thus, given the parliamentary majorities. This has not been a chaotic process but, understandably, a holding response by the Treasury. It is a fast-moving situation. I suspect that a further banking reform Bill will be debated in the next two or three years.
Chris Leslie
It probably will, particularly if there is a change of Administration, but we will come to that in a couple of years’ time.
Mr Love
Some very eminent members of the commission are in the House of Lords, and I have absolutely no doubt that they will do a magnificent job of scrutinising the Bill. However, this is the democratically elected Chamber where most of the debate should take place, and it is incumbent on the Government to make time available for those at this end of Parliament to scrutinise it.
Chris Leslie
My hon. Friend is 100% correct, and we have made our point; I now want to move on to issues of substance. There is a lack of time and we have to finish debating this group of amendments by 7 o’clock. It is ridiculous that the commission spent hours on these matters but only a tiny amount of time has been allocated to debating them today.
Government amendments 1 to 4 seem to be generally welcome with regard to the extension of the regulatory perimeter and the definitions of the Financial Conduct Authority and the Prudential Regulation Authority. It is intriguing that amendment 4 centres on clarifying the definition of “failure”. It is very tempting to ask if they know what failure is, especially given their weak response to the parliamentary commission today, but I will move swiftly on.
Government amendments 7 to 10 also seem to be fairly unobjectionable, although there appears to be a drafting error in amendment 8. Why has the Minister decided that the proposed subsection (3) should be inserted ahead of subsection (2) of FSMA? Something seems to be amiss, but that is only a minor point.
More importantly, will the Minister talk about the tribunal to which a lot of the issues will be referred? What sort of tribunal will it be and where will it be situated? Will its work add to the functions of an existing tribunal? That is a small point, but I would be grateful if the Minister would address it.
Government amendments 11 to 13 seem to focus on drafting issues. I cannot really see what will be achieved by changing “subsidiary” to “body”, but I do not have anything to say about those smaller, drafting amendments.
The first main issue of substance relates to our amendment 17 on the need for a thorough review process of the ring-fencing of retail banks, such that it augments what ought to be the electrification of the ring fence. We suggested this in Committee and it was a clear recommendation of the commission. It would be better to have a proper and independent review of the adequacy of ring-fencing every two years. We think that a more robust review process would be better than the Government’s PRA-led approach. It would be inadequate for the regulators to lead the process. We need a broader and more substantial review process to ensure successive ring-fencing.
Ultimately, as the commission itself has said, the jury is out on whether ring-fencing will work. It is fine in theory, but in order to keep a close eye on things—especially as these issues fall out of the media spotlight, as they inevitably will in the years to come—we must have a process in place that makes sure that we test, watch and scrutinise what happens.
The commission was right to be disappointed with the Government’s response. It noted that
“the Government did not accept our recommendation on potential ‘electrification’ with respect to the sector as a whole. As our First Report noted, crucial doubts remain about whether all the intended reforms can be put in place and, even if they are, whether this will be enough to prevent the Government from having to step in next time a crisis hits. In particular, we identified the possibility that the partial separation of a ring-fence may prove insufficient.”
That is why we feel that a more rigorous and thorough review process that involves the commissioning of independent members to produce, together with the Chair of the Treasury Committee, a report for Parliament would be far more effective. I do not want to take words out of the mouth of the hon. Member for Chichester, but he is right to say that if we leave it to the PRA to do this job and do not have a proper and more thorough process, there is a danger that the regulators will simply end up marking their own exam paper.
Caroline Lucas
Following the logic of what the hon. Gentleman is saying, does he not agree that a better way of restoring public faith in banks and, indeed, in politicians would be to legislate firmly now for the full legal separation of retail and investment banking? Even if that is not what a large number of financial institutions want, would it not be better for the taxpayer and the public?
Chris Leslie
We have tabled an amendment, which I shall discuss shortly, suggesting a clear back-stop power for the full separation of retail and investment banking across the board, in case ring-fencing does not work. We believe that we should give ring-fencing a chance, but it is important to note that the jury is still out on whether it will work. We just do not know. The Bill gives us the opportunity to ensure, as the commission recommended, that nobody has any truck with breaches of the ring fence. That must be the case both on a firm-by-firm basis for specific institutions and banks and for the sector as a whole.
Jonathan Edwards
Given what the hon. Gentleman has just said, are not the titles of the proposed new section in his amendments 18 and 19, which refer to “full separation”, slightly misleading? I will support those amendments, because they would be a step forward from what the Treasury recommends, but the Labour party is arguing for electrifying the ring fence, not for full separation.
Chris Leslie
It is true that we want to give ring-fencing a chance. That seems to be the broad consensus among those who have seriously considered the issue, either on the commission or elsewhere. However, it is important that we keep in our pocket the chance to do something serious and rigorous in case that plan does not work. I suppose we might call it a plan B, although I know the Government have an aversion to ever considering anything outside the narrow tram lines down which they career. It is important that we take this opportunity to put that plan in place.
That brings me to the Government’s rather pathetic, lettuce leaf-like attempt to claim that they are adopting a back-stop electrification power. I am not sure what voltage the Minister has opted for, but for the Government to claim the provision as a firm-by-firm back-stop power is an insult to back-stop powers. As my right hon. Friend the Member for Wolverhampton South East (Mr McFadden) said, the process in Government amendment 6 will take six years should ring-fencing fail, which is a snail’s pace. I urge hon. Members to look at the various stages involved in that amendment. First, the Treasury will look to the regulator to issue not just one preliminary notice but three—the idea of three preliminary notices seems like an impossibility—all of which will have different timetables. I do not know whether three preliminaries means, “We’re coming to get you, but not quite yet.” It is like the Education Secretary, with his firm, disciplinarian hand, saying to children, “We’re going to come and get you, but we’ll give you three preliminary notices before we do so.” The kids would be crawling all over the ring fence for months and years.
After those preliminary notices, a warning notice will be issued, followed very swiftly—not—by a decision notice. There will be at least five steps over a six-year period. “Five strikes and you might be out in six years’ time” does not strike me as an effective back-stop power for galvanising and electrifying the ring fence. If the Government recognised for six years that there was a flaw with ring-fencing but did nothing, their culpability would be almost equal to that of the banking sector. Amendment 6 could be an amendment to a misrepresentation of the people Act, and the Financial Secretary needs to take it off the table and instead consider the amendments that the Chairman of the Parliamentary Commission on Banking Standards has tabled.
This is a back-stop power in name only, and just because the Government say it is a back-stop power does not make it so. We need the ability, on a firm-by-firm basis at the very least, to take firm action to a timetable that shows flexibility and can be enacted swiftly if need be. I am afraid I tend to agree with the amendments tabled by the hon. Member for Chichester. The provision needs to be truncated and the Government must withdraw amendment 6 as it is wholly inadequate. It would have been more effective to go with amendment 19 as drafted by the commission, which was a far more effective truncated version of a back-stop power on a firm-by-firm basis. That was far clearer, the drafting was improved, and it is a mystery to me why the Government have resisted it at every stage of the process. Whether that was due to lobbying from the banks, or because they do not believe in standing up to the sector and taking on this tough issue, the weakness of the Government on this matter surprises many people.
Mark Field
Two things come to mind. First, there should be a sense of due process, which I think is present in the Government amendment. Secondly, there is genuine concern about uncertainty and the notion of an electrified ring fence. As the hon. Gentleman will know, I have questioned the whole issue of ring-fencing and the potential uncertainty it provides in this business, particularly in the fast-changing world we have seen over recent years. This is therefore a sensible response from the Treasury to the whole concern, which goes well beyond special pleading from the banking fraternity.
Chris Leslie
Most of the debate we have had in the short time available has pressed for firm action to be taken towards a sector that—let us not forget—brought down the economy, created massive deficits in our public finances, and required rescue by the taxpayer because of a blurring of the lines between issues that affected ordinary households up and down the country and high-risk investment banking activities that needed strong safeguards. Simply saying that we will have ring- fencing with no means to enforce or police that—no “electrification”, as it has been termed—would make that concept totally redundant. That is why members of the Parliamentary Commission on Banking Standards were surprised that the Government always seemed to take the path of least resistance—“Let’s not upset the banks too much; let’s try and go back to business as usual”—and are not learning the lessons of history.
We have re-tabled amendment 18 not just to have a specific firm-by-firm back-stop power for separation in case ring-fencing fails, but to have sector-wide powers as a back-stop in reserve should ring-fencing not work. We have the capability for full separation, but the Government have stubbornly refused to put that on the statute book—“Oh well, if we have such circumstances we can always legislate further down the line”—as if passing a Bill on such matters can be done quickly or effectively in any way.
Stewart Hosie (Dundee East) (SNP)
I thank the hon. Gentleman for the tone he is using on giving ring-fencing a chance and full separation being a back-stop power, or plan B, to be used only in certain circumstances. Amendment 18—the general requirement of separation and industry-wide potential for that—would clearly mean an end to universal banking, ring-fenced or otherwise. What consideration have he and his hon. Friends given to that issue, and particularly the transfer of cash between the two and the impact that might have on lending to the now retail sector, or lending for investment in business?
Chris Leslie
Those issues were covered pretty substantially by the commission in its first and second reports, and this was the conclusion it reached. Nobody wanted to go for full separation if it could be avoided; we wanted to ensure that ring-fencing arrangements could be upheld and made to work. There are some arguments in favour of that universal model, and therefore it was felt preferable to have such a power in reserve, but in the Bill. It is no wonder that the banking sector breathed a heavy sigh of relief today, when it saw the Government’s response on this and other issues. The markets judged that the banking sector got off lightly, and that there was nothing tough or difficult for the sector. That is why we have seen the market reaction today. The notion of business as usual seems to be back on the table.
I want the House to recognise that this is not an amendment that Labour has come up with in a partisan way. We are simply tabling an amendment that was drafted by the commission after days, weeks and months of deliberation and careful cross-party thought by Members of both Houses, but thrown back in the face of the commission by the Government today. It is important to have this on the statute book. A back-stop power will incentivise the banks to comply with ring-fencing. If the Government are correct in believing that ring-fencing will be adequate, the amendment will do no harm to the policy. It will sit dormant on the statute book. But if the Government are wrong, and this backstop power is not in place when it is needed, serious consequences could arise. It is nonsense for the Minister to ignore this risk, especially as the other place will want to come back to this issue. He may be forced to concede if we get into parliamentary ping-pong at some point.
I do not want to take up too much more time because many other hon. Members have spent a lot more time on this issue than I have, but I wish that the Government would listen to them and to the commission.
Mr Andrew Tyrie (Chichester) (Con)
I shall say a little more than I usually say in the House because these arrangements are quite central to the work of the banking commission and give me an opportunity— my first—to explain some of the reasoning behind that work. The two key amendments that I have tabled would empower the regulator to split up a banking group if there were serious failures in the culture and standards of the ring-fenced body or another member of its group. In deciding whether these serious failures have occurred, the regulator would be required to take account of the recommendations contained in the reports of the Parliamentary Commission on Banking Standards, which I chaired.
We produced five reports about a vitally important industry, one that has become embroiled in very serious scandals that have cost the consumer, taxpayers and the whole country a fortune. The parliamentary commission was the first of its kind for a century. The last, exactly a hundred years ago, collapsed in a heap of partisan acrimony.
We have produced five reports in under a year, all of which were agreed unanimously. We also put in an unprecedented amount of detailed work, taking evidence for 171 hours in no fewer than 76 evidence sessions, in addition to deliberating in private for a further 74 hours. I would like to thank my colleagues on the commission in both Houses for their huge contributions, injections of energy and endurance. I would also like to express my thanks for the equally impressive commitment of the commission staff and specialist advisers, led by Colin Lee and his two deputies, Adam Mellows-Facer and Lydia Menzies. Only the very limited time available prevents me from listing many more of the staff who put in so much work. I would also particularly like to thank the Front Benchers of all parties, who have offered a great deal of support.
The task now is to get the report implemented, primarily by regulators and banks, and, where necessary, supported by statute. The Government have today responded to the commission’s most recent report—our fifth. I have had a chance to flip through the response, but there has been no time to digest it fully—it is about 80 pages—and, of course, no time for anyone to table amendments as a result. In view of the extent to which it looks as if the Bill has been changed, I would be grateful if the usual channels could consider recommitting this Bill to Committee. Failing that, at the very least—as the my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) has said—an extra day should be provided for consideration of what will inevitably be a mass of Lords amendments. Bearing in mind the struggle that we had to get the half-day tomorrow, I hope that the Government will show more flexibility about this extra time.
Having said that, I warmly welcome the supportive tone of the pre-briefing given to the Financial Times about the publication that we have had today. Still, I would rather have heard about it here first. I am also very pleased that so many of the proposals and also the argumentation for them appear to have been accepted in full. But I am not fully reassured. The Government appeared to have accepted the commission’s proposal on a specific power to force the separation of an individual bank, but here we are, at the eleventh hour, trying to prevent the proposal from being severely weakened by the Government. In fact, as I will explain, the Government’s amendments would render the specific power of electrification virtually useless.
Some of the commission’s important proposals have not been accepted at all, for example on leverage, on which we support the recommendations of the Vickers commission, and on reform of the Bank of England’s antiquated governance structure, on which the commission supports the recommendations of the Treasury Committee.
Other ideas that the Government have rejected include the need to wind up United Kingdom Financial Investments Ltd and the regulatory reforms to provide statutory autonomy for the regulatory decisions committee. I find that especially regrettable. The Government have also rejected the proposal to remove the FCA’s strategic objective. No one can see much purpose to this except the Government. It can be used to trump the operational objectives of the FCA, including that of competition, and can thus serve only to weaken those operational objectives. On all those issues, I hope that their lordships will repair some of the damage that we have been left with no time to attend to here.
Mr Love
I agree with the hon. Gentleman that it is an offence to Parliament to read about the Government’s response first in the Financial Times. Give the mixed reception from the Government to our fifth report, we should have adequate time to discuss all the very important issues about which we deliberated for many days and which appeared in our recommendations.
Mr Tyrie
I strongly agree with the hon. Gentleman and I have already made both those points, which he just reinforced. All the amendments that I have tabled on behalf of the commission are about standards. Banking continues to suffer from the effects of poor standards. Even in the seven months that we took oral evidence, we had two more major LIBOR scandals, the interest rate swap scandal, a major bank found to be involved in money laundering in Latin America, and another fined $670 million for sanctions busting in Iran.
It is sometimes suggested that trying to do much about this will drive banks overseas. But all of the evidence we took pointed to exactly the opposite conclusion. Far from imperilling the UK’s global competitiveness, high standards will make the UK a more attractive place to locate. Many good things can flow from higher standards in banking, among them a restoration of trust. Trust is an essential buttress to the UK’s reputation as a global financial centre. It is also vital for the British economy. While banks are not trusted by their clients and particularly by SMEs, there will be less lending and less economic activity.
The crisis of standards and trust in banking—and it is a crisis—is multi-faceted, and so are the necessary remedies. None the less, the nub of the problem can be characterised as twofold. First, there has been a lack of individual responsibility at the top of banks. Collective decision making has diffused responsibility and a sense of duty to be vigilant. Secondly, there has been colossal failure of judgment by regulators, with an approach based on pointless data collection on a huge scale and needless box ticking.
In a nutshell, boards were negligent and the system of regulation was found seriously wanting the first time it was tested. Both boards and regulators were motivated by an understandable desire to cover their backs, but their lapses were inexcusable. The lack of personal responsibility in banks has been aggravated by misaligned incentives. By that I mean bonus and remuneration structures. They encouraged bankers to make short-term gains while the full risks and costs became evident only later. The taxpayer ended up picking up much of the tab.
Mark Field
My hon. Friend talks about the idea of incentives to find holes in the ring fence. Surely it is in the nature of the way in which one looks at regulation to try to find holes in the ring fence. There is nothing untoward about the idea of looking at a regulation or law and trying to find a way around it. Obviously, one should try to do so without breaking the spirit of the rule or regulation, but if we live in a highly regulated society it is surely inevitable that those who are regulated will look to try to find ways of avoiding them. Surely that is a fault of having over-regulated societies, whether in banking or in other fields of commerce.
Mr Tyrie
I am not going to delay the House by disagreeing for too long. It is rare that I disagree with my hon. Friend, but I wonder whether we would like surgeons to test all the time the regulations that encourage them to do a good job as they pull out their scalpels and wonder if they can get away with just one incision here or there.
Mark Field
I think my hon. Friend makes my point for me. The medical profession is a profession and relies on such things as the Hippocratic oath, and it has a centuries-old approach to how they go about their day-to-day business. An over-regulated industry is one that encourages the avoidance of regulation. Genuine professionals look on their professional responsibilities in a very different light.
Mr Tyrie
There is a heap of regulation surrounding the wielding of those scalpels. The common feature of the two industries is not the professionalisation or non-professionalisation of the industry; it is that both owe a duty beyond bettering themselves. In the case of the banks, they owe a duty because of the implicit guarantee; in the surgeons’ case, they owe a duty to the patient. I will not prolong this discussion any further, but I think most people accept that we do not want banks constantly trying to find a way around or through the ring fence.
Sir Peter Tapsell (Louth and Horncastle) (Con)
Will my hon. Friend give way?
Sir Peter Tapsell
How can anyone read the evidence that Mr Paul Volcker gave to my hon. Friend’s commission and come away with any other conclusion than that ring-fencing, whether electrified or not, simply will not work when we get the next major banking crisis?
Mr Tyrie
There is considerable force in what my right hon. Friend says. We considered the issue in great depth and published a report—the third report—on exactly that. We discussed the case for full separation, but concluded that although the ring-fence proposals had merit, they should not be reconsidered until we have given the Vickers ring-fence approach a try. We also examined the merits of a closely related proposal for the separation of proprietary trading—exactly what is being suggested—from the rest of banking activity. We concluded that further statutory support was not needed for that approach now, because the Prudential Regulation Authority might already have the powers to implement an effective separation of prop trading. We asked the PRA to present a report to the Treasury and to Parliament on its use of a range of monitoring and corrective actions, which could serve as the subsequent basis for a full and independent review of the case for full separation of prop trading. Unfortunately, as far as I can tell—I have had very little time to absorb this publication, which came out only at 12.30 pm—the Government have rejected even examining the proposal for prop trading. That is a mistake. I regret that, but I hope it will be put right in the other place.
Returning to amendment (a), the Government accepted the case for ring-fencing, arguing that banks that test the ring fence should be strongly deterred and, if necessary, prevented from doing so. However, I am afraid that that will not be the effect of the Government’s amendments. On the contrary, the Government amendments almost guarantee that banks will not get a shock, and will not be discouraged from testing or gaming the ring fence. The regulator needs a useable and credible deterrent. This proposal creates too many obstacles and delays to the sanction of full separation.
Frankly, it is inadequate for three main reasons. First, it requires the regulator to issue—we have already heard a little about this—no fewer than three preliminary notices and a warning notice before it can act. Secondly, it then requires the regulator to obtain permission from the Treasury no fewer than three times while the process is in train. Putting that requirement on the statute book would transfer most of the effective regulatory decision-making power away from the PRA and the Bank of England to the Treasury. It cannot be appropriate for the Treasury to be the regulator. The commission argued for a Treasury override at the end of the process, not at the beginning or in the middle, but the Government’s amendment requires the regulator to secure the consent of the Treasury on three occasions prior to that point. Even so-called preliminary notices—in effect, expressions of concern by the regulator—will require Treasury consent. That is absurd and compromises the regulator’s independence.
The third objection has also been alluded to. The Government’s amendments allow at least five years for the completion of the separation after a decision has been made. That would create enormous scope—indeed, it would make it ideal—for lobbying for a change of heart in the interim. It would create far too much room for that and we can do without it. It also flies in the face of what the Minister said in Committee, where he alerted Parliament to the risk of what he described as an “inordinately long” delay in implementation. A tool that is so difficult and slow to use is likely to deter no one and that is why I have proposed a number of amendments that would remove some of the obstacles erected by the Government to taking action to separate banks.
Mr McFadden
I want to ask the hon. Gentleman the same question that I asked the Minister about the difference in time scales between his amendments (a) and 19 combined, and the five to six-year timetable in total that the Government have set out. Were we to go down the road recommended in the hon. Gentleman’s amendments, how long does he think it would take between a decision on separation of an individual group being taken and that eventually happening?
Mr Tyrie
That is something on which we can usefully take advice from the regulator, but I would have thought that two years would be a reasonable maximum. Five years is ridiculous. It might take less than two years, but we have people down the road who can give us a clear view and the Government should ask them, if necessary publicly.
I have also tabled an amendment that would give effect to the Banking Commission’s proposal for allowing for full separation, as well as trying to improve the Government’s faulty amendment a bit. I recognise that the amendment has been debated in Committee and that the Government said they did not like it, but their reasons for not liking it were frankly not strong. I still find it curious that the amendment was rejected as a starting point for putting in ring-fencing. When the Bill goes to the other place, I hope that that amendment might be seen to be a better starting point than the Government’s. The Government have had several months to get this right. It is regrettable that they have made so little progress on it, but we are where we are. In any case, even ring-fencing with electrification is no cure-all for the standards problems in banks. To improve them, we all have to move forward on many other fronts.
I would like briefly to refer to the main other areas that are needed. To improve competition, we recommended a range of measures. We asked the Competition and Markets Authority to initiate a market study of the retail and SME banking sectors. I noticed that the Government were so enthusiastic about that recommendation that they announced it as soon as they received the embargoed copy of our report. We asked the Government immediately to establish an independent panel of experts to assess ways of enabling much greater personal bank account portability. The Government appear to have ridden back a little from that in the proposals they published today, although I cannot be sure.
We also took a good deal of evidence on RBS. Competition is weak partly because RBS is weak. Further restructuring may well be needed. In our view, the Government will need to be bold. We recommended that they undertake a detailed analysis of a good bank/bad bank split as part of an examination of the options for the future of RBS. That is vital work. In the field of banking reform, a healthy RBS, with the restoration of normal lending to the SME sector, is probably the biggest tonic that could be given to the British economy.
The way in which banks run themselves also needs reform. An accountability firewall had grown up that allowed senior bankers to deny responsibility for their failings. That wall has to be taken down. To give effect to that, we proposed the introduction of a senior persons regime. This would ensure that the direct personal responsibilities of board members, particularly the chairman, reflected the importance of their roles, so that it was clear to bankers and regulators who should reasonably be accountable when things went wrong, and for what. Our study of HBOS—our fourth report—provided a clear example of exactly the opposite. It guided our thinking on this and a number of other areas. Senior board members at HBOS did not take responsibility for what went wrong.
The crisis of standards was partly caused, and considerably inflamed, by the fact that bankers were rewarded for doing the wrong thing. Bonuses were often paid out well before the risks of the actions that they ostensibly rewarded became apparent. Bankers took huge rewards and when the risks turned sour, taxpayers picked up the tab. That has to stop. The Government and regulators should not set levels of remuneration. However, much more radical steps are needed to incentivise better behaviour among all staff whose actions or behaviour could seriously harm a bank, its reputation or its customers. Deferred remuneration for executives should not be viewed as an entitlement. People should keep their deferred bonuses only when it is clear that they have really been earned. That will mean long deferral, in some cases up to 10 years.
Mr McFadden
I do not propose to follow the hon. Member for Chichester (Mr Tyrie) by making a wide-ranging speech on the recommendations of the banking commission’s final report, as he has set them out perfectly adequately. However, I do want to say that I do not think the Minister has served himself or this discussion well by publishing the Government’s conclusions at lunchtime today, and then coming along and making a de facto statement of new policy, thereby simply compounding the sense of frustration in this House about the adequacy of the procedures for discussing these issues. Instead of going over all of that in great detail, however, I want to concentrate on the amendments before us, and on the discussion of ring-fencing and separation. I specifically want to talk about amendments 17 and 18 in the name of the shadow Chancellor and his shadow Treasury team colleagues; and amendment (a) to Government amendment 6 and amendment 19 in the name of the hon. Member for Chichester.
The banking commission’s first report, issued before Christmas, focused on ring-fencing and separation. It made two principal recommendations in respect of what has become known as electrification of the ring fence, which is the power to go further than the ring fence and enforce full separation between investment and retail banking.
The first of those proposed powers was in respect of individual institutions, and it was accepted by the Government, at least in name. The second power was in relation to the sector as a whole, and it was not accepted by the Government. No convincing reason has been given for accepting one and rejecting the other. The Government have today tried to make a virtue of issuing a response to the banking commission’s final report which says they broadly support its conclusions, yet in terms of the legislation before us the Government are continuing to reject a major recommendation of our first report, and as we have teased out of the Minister, even in the document published at lunchtime, they are rejecting recommendations on UKFI and regional banking. We may learn about others, too.
On the question of backstop powers to enforce separation in respect of either individual groups or the sector as a whole, one of the clearest lessons from the banking crisis of 2007-08 was how interconnected the banking system is. Institutions involved in banking are not islands cut off from one another. They lend money to one another. They engage in the same practices. Their culture is often shared. They place similar bets. When one falls, it often has the capacity to drag others down with it, as we learned to our great cost.
The same is true of the standards and culture questions we examined in such detail after Christmas. The LIBOR fixing was the straw that broke the camel’s back in terms of the establishment of the commission, but that did not just happen within one bank. Groups of traders within banks were co-operating with one another to rig the interest rates, and groups of traders across different banks were co-operating with one another to rig the interest rates. Against that background, it makes no sense at all to restrict the policy armoury that this Bill establishes to respond to the undermining of the system by taking powers that will affect only individual banking groups and not the sector as a whole. As the hon. Member for Chichester said about our recommendation on new criminal offences, some of those powers may never need to be used, but their existence on the statute book should focus the minds of those running these major organisations.
John Thurso (Caithness, Sutherland and Easter Ross) (LD)
We also discussed at length the fact that, if we do not have the weapon in the armoury, we cannot use it, and it is usually too late to put it in place once a crisis comes along. Far better to have the gun in the locker, even if we never use it, than not to have it at all.
Mark Garnier (Wyre Forest) (Con)
To follow up on that point, rather than having a gun in the locker, some of these powers should be seen as akin to a nuclear deterrent. As parliamentary commission members will remember from doing the media rounds after the publication of the report, one of the big questions was whether Fred Goodwin would have gone to prison if we had had these powers in place. The answer to that is that RBS would not have gone bust in the first place. The deterrent element of these powers, rather than the enforcement element, is what is important.
Mr McFadden
The hon. Gentleman makes a very good point. Without wishing to pursue this analogy too far, the difference between a gun in the locker and the nuclear deterrent is that it is conceivable we would use the gun in the locker, but less so the nuclear deterrent. I am therefore not entirely sure which of the two commission members has got this quite right, but deterrence is certainly part of the effect we are looking for.
To return to the issue of the power to separate in respect of one institution or the sector as a whole, my overall reflection, having served on the commission for the past year is that, although its recommendations should be supported, even if we take all the steps set out—even if we put a new system of regulation in place, including the twin peaks system, even if we have the ring-fencing powers on structure that are in this Bill, and even if we faithfully implement the standards and culture recommendations to which the hon. Member for Chichester referred—it would still be rash to come to the conclusion that we had fully resolved the problems of too big to fail or too complex to manage. These reforms should be implemented and they can make a difference, but if we think we have fully resolved the problems of this huge sector, we will be guilty of complacency and possibly kidding ourselves. The problem of too big to fail is still there.
Our recommendations will make a difference but we also need powerful weapons, even if their use is unlikely, to enforce good standards and to make those running banks think long and hard about the consequences before they decide to test or game the system in any situation in future. That is why I think my hon. Friend the Member for Nottingham East (Chris Leslie) is right to say that a periodic review of ring-fencing and how it is operating is a good idea. It is why I support a more general power, to be held by the Government, to allow broader separation if the ring-fencing reforms do not work. That is what amendments 17 and 18 are designed to achieve and they are very much in line with the recommendations of the commission’s first report.
John Thurso
May I begin by apologising to you, Mr Deputy Speaker, and to the Minister for the fact that I arrived after the start of the debate? The flight down was fine, but the Gatwick Express was not. Had it not been for that, I would certainly have been here.
May I briefly echo the words of my hon. Friend the Member for Chichester (Mr Tyrie) in praising the staff of the commission, who did a truly outstanding job? One thing we did was to break out into panels—he chaired one, as did I and nearly everyone else at some point—where we had individual staff, and they were very impressive and helpful.
I wish briefly to address a question raised by the hon. Member for Chichester, who chaired the commission, by explaining why I feel it is of the utmost importance that the proposals we made are not only taken seriously but passed into statute, and why we came to some of our conclusions. We deliberated on the issues for hours and hours. As anyone who has read the transcripts of the Treasury Committee’s meetings from years gone by will know, I started out seeing things from a full separation point of view. I am a fairly unreconstructed Glass-Steagall supporter, but I do think that one needs to be guided by the evidence. The commission received a great deal of evidence, and I came to the view that although that principle is still one that I adhere to and think is right, there were greater complications in today’s modern operation of the financial services and markets than perhaps had existed when Glass and Steagall got together and that it was wise, therefore, to listen on that. So what I looked for, as did other colleagues who came at it from different angles, was to give the best effect to what we were seeking to achieve.
The right hon. Member for Wolverhampton South East (Mr McFadden) rightly said that the commission linked structure and culture, and I was struck by the way in which the different cultures in banking are competing. One of the easiest ways to look at this, whether we are considering the Volcker rule, prop trading or whatever, is that there are two distinct cultures in every large banking organisation. The first of those is the professional culture of the people seeking to work with and to help individual clients, who are involved in investing or looking after depositors. I do not deny that the vast majority of people operating in the world of banking are professional, wish to be professional and wish to have high standards. The second is the completely separate trading culture, where there is no client at the end of the day; it is a zero-sum game where two people, or two sets of people, are trading specifically to make money and to beat the guy on the other side of the trade.
The problem so often was that although trading was necessary to give effect to that desired on the investment side, when the trading side took over in terms of profit and culture it infected the other side. The whole thing is about seeking to keep the cultures apart. People have talked about high-street commercial banking as being good and investment merchant banking as being a casino and being bad, but I do not take that view. I would split the types into three, because there is retail and commercial banking, investment banking and trading. All three have their uses, and how they relate and how they are governed is the important thing.
The universal bank clearly works, but if all the banks are universal banks, it does not, and that is the problem with it. If everybody is pursuing the same model, there is a real danger that the riskier side infects the more prudent side.
Kelvin Hopkins (Luton North) (Lab)
The ordinary depositor—the ordinary working person who puts their money in their bank and wants to use it—would be deeply worried if they felt, and if it were the case, that their money was being gambled with by these risk-taking buccaneers in the City. Is there not a very strong case for making sure that ordinary people, such as me, who do not gamble in that way can have their banking protected from such gambling?
John Thurso
The hon. Gentleman makes exactly the point I am in the process of making, but he does it more simply, and I thank him for that. That is the key point about the ring fence. The utility aspects of banking, which are operating the payment system and taking deposits, should be so constructed within an entity that when a bank fails—I say when, not if, because there will be another bank failure and our purpose is to try to make it easier for banks to be resolved so there is less likelihood of taxpayer intervention, meaning that the bank will be more likely to be allowed to go under and that bankers will be likely to be more prudent—the ring fence enables that while protecting the ordinary depositor and the payment systems.
This is a long and complicated subject, as I learned over many hours, and the flow of capital from the lady who puts some money into the bank to the company that needs it to expand and grow the economy is necessarily complex. One must therefore be careful—[Interruption.] I know that other hon. Members want to speak and I promised that my remarks would be brief, so before I get a beady eye from you, Mr Deputy Speaker, I ask the hon. Member for Luton North (Kelvin Hopkins) to let me move on.
The critical point, which I completely accept, is that the compromise we came to is the ring fence. The compromise holds good, however, only if the ring fence works properly. Our conclusion was that it would not work if it were not reinforced, and the term “electrified” was coined. The point made by the right hon. Member for Wolverhampton South East was that if one has at one’s disposal the ability to do something—the armoury, call it what you will—those who are engaged in the activity will check whether they are being looked at before they engage in it. It is the modern equivalent of the Governor’s eyebrow. If we do not have that, we will simply have a lot of regulation that might lead not to a successful conclusion but to a long dialogue that leads nowhere between the regulator, the Treasury and the institution. People must believe that when the weapon, whatever it is, is deployed, it will have a consequence. That is the essential point.
In conclusion, I think all members of the parliamentary commission came to a unanimous view. We started from different viewpoints and with different concepts, but we agreed—all five from this House, all five from the other place: all 10 of us together—that to give effect to the ring fence it needed to be reinforced. We thought it could be done in this way and my hon. Friend the Member for Chichester has laid out the arguments perfectly.
Mark Durkan (Foyle) (SDLP)
In following the hon. Member for Caithness, Sutherland and Easter Ross (John Thurso), I apologise for the fact that transit issues meant that I, too, missed the start of the debate. I will take up only a little time in the Chamber today, but, following the comments made by the hon. Gentleman and by the right hon. Member for Wolverhampton South East(Mr McFadden), it is important to make the point that it is not just those who have served the House well on the Parliamentary Commission for Banking Standards who have concerns about such issues and can see the difference between the Government’s offer and the amendments tabled by Opposition Front Benchers and by the hon. Member for Chichester (Mr Tyrie).
We talk about the electrified ring fence and, essentially, the Government are offering us a Fisher-Price electrified ring fence—a VTech model. They have looked up ring fence in the index of the Argos catalogue and gone for the one in the toy pages. There is not much point the Government’s saying they have taken everything into account, that this is the best model and that it will give everybody reliable assurances. Frankly, that is like trying to pretend that a tyre is flat only at the bottom and that this is just a minor stylistic difference about perception. The difference is about substance and reliability.
I encourage the Minister to listen to what right hon. and hon. Members on both sides of the House have said, and particularly to those who have had the best insight into these issues through the parliamentary commission and who have changed and modified their views, like the hon. Member for Caithness, Sutherland and Easter Ross. They have been able to give it more consideration than someone such as me, who comes to the question on a reflex reaction of full separation.
I recognise that the ring fence is the only show in town, but it must be reliable and meaningful. The Government’s proposed procedure in amendment 6 could take longer than the life of a Parliament to have an effect. There will be not just the preliminary decisions but the Treasury consents required for those decisions, and tribunals after the warnings and the decisions, then variations and consultation between the regulators—the whole thing will go on.
Mark Garnier
I, too, pay tribute to the members of the parliamentary commission, with whom I served for 10 months. Huge numbers of people were involved as well as huge amounts of effort. One statistic that has not come out yet is that we apparently asked 9,198 questions of our witnesses, so we certainly got stuck into it in a big way. It was truly a tour de force, as Members can see from the 571-page document I have in my hand.
The Commission was an incredibly important piece of work. We have been trying to deal with the fundamental loss of trust in banking and what pleased me enormously was that one of the passages quoted relatively early in the report, on page 83, was from one of our big banks, Lloyds Banking Group, and was about trust. Let me read it out:
“Trust goes to the heart of what banking is about. Customers need to be able to trust their bank to look after their savings. They need to trust their bank to manage their financial transactions smoothly; trust that their bank will be diligent and not provide levels of credit or mortgage that are more than the customer can re-pay; and trust their bank to provide products that genuinely meet the customer’s needs and which the customer can understand.”
That has been crucial to the problem we have had: of course we considered LIBOR and all the various scandals, but at the end of the day there is a fundamental mistrust between the consumer, who is not very well educated, and the banks, which are well educated. In part, we are seeking to resolve that misbalance of trust.
I urge the Minister not to be shy in legislating to help build that trust. As TheCityUK wrote, again cited on page 83:
“The sustainability of the UK’s position as the pre-eminent global financial services centre is grounded in the integrity of its financial markets and probity of market participants.”
That is key to the debate about ring-fencing, criminal sanctions and the various other important measures available to the Government in the arms race in which we are involved—ranging from the gun locker of the hon. Member for Caithness, Sutherland and Easter Ross (John Thurso) to my offshore nuclear deterrent—to ensure that the people who run the banks pay attention and take seriously their role in looking after those institutions. I speak as someone who spent 17 years as an investment banker and 10 years as a hedge fund manager. As I have now gone into politics, I have the hat trick of holding the three most unpopular jobs on the planet—I plan to become a traffic warden when I leave this place.
We hear threats from the banking community that if we over-regulate, that community will get up and go, but there are two incredibly important points to consider, the first of which is: where would the banks go? They do not have a big range of options. A bank that wanted to go to the far east, for example, would face several problems, not least of which is the fact that were HSBC to up sticks and go to Singapore—this would apply to the remainder of the major four banks—its balance sheet would be about 1,100% of the country’s gross domestic product, and no regulator would enthusiastically receive a bank of such a size. Secondly, we should remember that several factors in this country are incredibly important to banks, such as our robust, transparent and tried-and-tested legal system. We are a member of the single market, which gives banks access to the whole of Europe; we speak English, which is the language of the international business and banking community; and we are also at the centre of the time zones.
Our regulatory regime is also absolutely crucial. A great deal of our work was to try to get rid of the implicit guarantee whereby the Government are seen as standing behind the banks in case they fall over. That guarantee can be worth anything up to £40 billion a year, depending on the stage of the cycle, and that gives the big four banks an advantage. The problem is that that anti-competitive advantage represents another barrier to entry for challenger banks, so we need to get rid of the implicit guarantee. However, by regulating firmly, well and efficiently, and by winning the race to the top on regulation, we will replace the implicit guarantee with a cheaper funding rate for the UK banks, because they will see large amounts of international capital coming to the UK to take advantage of the protection that our regulatory and legal regimes provide. I therefore urge the Minister not to be shy about coming forward and to consider carefully the amendments proposed by my hon. Friend the Member for Chichester (Mr Tyrie), which reflect the recommendations of the Parliamentary Commission on Banking Standards and have a great deal of merit.
Greg Clark
We have had a fascinating, high-quality debate. I am grateful for the contributions of all hon. Members, but especially for those of the Members who served with such distinction on the Parliamentary Commission on Banking Standards: my hon. Friend the Member for Wyre Forest (Mark Garnier); the right hon. Member for Wolverhampton South East (Mr McFadden); the hon. Member for Edmonton (Mr Love), who is no longer in the Chamber; the Chair of the commission, my hon. Friend the Member for Chichester (Mr Tyrie); and the hon. Member for Caithness, Sutherland and Easter Ross (John Thurso). With the help of Members of the other place, they laboured hard to produce a report that not only will stand the test of time, but will be a reference document for many generations in this country and throughout the world. The report will be seen as a major contribution to addressing the less tangible aspects of culture and standards, which is something that has eluded regulators throughout the world. I am sure that the report will be read with a great deal of interest.
The report’s central judgment includes the acute point that for too long questions of standards and culture have been contracted out to regulators, rather than being an intrinsic part of the institutions themselves. That aspect of the report stood out as the essence of the required change, because it should no longer be simply for the regulators to decide on such questions, as the culture throughout the institutions should reflect the correct standards that we expect.
I spoke at length at the beginning of the debate, so I shall deal briefly with several of the points that hon. Members raised. I was asked about timetabling. On Second Reading, I made two commitments, the first of which was that the House would have adequate time to consider all provisions, including amendments proposed by the parliamentary commission. I hope that hon. Members will concede that I have been true to that in Committee and throughout our two days on Report, and I repeat that that commitment remains as the Bill goes to the other place. I also said explicitly on Second Reading that the recommendations of the commission’s final report on standards and culture would be reflected in amendments to be made in the House of Lords. Of course, those measures will subsequently be considered by this House, so our intention has not changed. It was right to expedite the response to the report so that it was available much more quickly than usual. It has been useful in informing today’s discussions, as will be the case tomorrow, and it will be available to their lordships during their consideration of the Bill.
The hon. Member for Nottingham East (Chris Leslie) asked several specific questions, including about whether Government amendment 8 contained a typo. It does not, but it would require more than the four minutes remaining for me to explain why, so I hope that he will trust me on that at least. The upper tribunal is not a new invention; it is the court that considers all references made under FSMA for adjudication.
The hon. Gentleman made a substantive point about the notice period, as did my hon. Friend the Member for Chichester and the right hon. Member for Wolverhampton South East. I was asked whether an elongated process in some way diminishes the effectiveness of the ring fence. Our intention was—and is—to implement faithfully the parliamentary commission’s recommendation on the institution-specific ring-fencing rule. As I assured my hon. Friend the Member for Chichester, I am confident that if the Government’s proposals can be improved during the Bill’s passage, all his concerns about the use of the power can be addressed. In fact, the procedure under consideration has been described as pressing the nuclear button.
Mr Tyrie
I think that was a concession, so I am extremely grateful to the Minister. I am also grateful that the response was published at the earliest opportunity—it could have been delayed, so at least we have had a chance to look at it. That shows us that the Government are listening, and the response will be helpful in the other place. Above all, it gives us more confidence that there will be full implementation of the proposals. The Government have indicated their general support for them, so I hope that we will not have to go through a rigmarole to get the necessary provisions on the statute book.
Greg Clark
I am grateful for my hon. Friend’s intervention. I always take praise when it comes—especially from him, as he is often very flinty in issuing it. I do not think that what I said amounts to a concession, because it has always been our intention to reflect the spirit of his suggestion.
Let me make an important point on the process that my hon. Friend describes. In his amendments, he does not have a time period in mind for the exercise of the power.
Greg Clark
I have one minute left, so the right hon. Gentleman will understand that I cannot give way. The proposal that there be five years to implement the action has been discussed with the regulators; it reflects best regulatory practice. In point of fact, if there were no time limit in the Bill, which is what one of the amendments tabled by my hon. Friend would ensure, that would render the use of the power without limit, so I think we are in the same territory—the right territory—in wanting to specify that there should be a limit. It should be clearly understood that there is a limit to the use of the electrification powers, in terms of a timetable, and a deadline for action. Of course it is right that the regulators should advise on the appropriate use of that. In terms of the amendment—
Chris Leslie
I beg to move, That the clause be read a Second time.
It is a delight to see the Leader of the House on the Front Bench to debate with me the question of the leverage ratio—I favour the pronunciation “leaverage”—and I am happy to give way to him if he has any concerns about it. As the Leader of the House—[Interruption]—and, indeed, the Minister will know, a bank’s leverage is the ratio of its assets to equity capital. Its equity capital is equal to the value of its assets, minus the value of its liabilities. Higher leverage rates magnify returns, because any growth in assets will be proportionately greater if equity is thin, but—and this is why it matters—the corollary is that any losses are magnified if leverage is greater. Its equity can be wiped out by a smaller shock than would wipe out the equity of a less leveraged institution.
The Government said that they intended to provide the Financial Policy Committee of the Bank of England with a time-varying leverage ratio tool, but not before 2018, and that that would be subject to a review in 2017 to assess progress internationally. The design of the tool would depend, hon. Members will be glad to hear, on European Union legislation, and will be set out in Britain in due course in secondary legislation. I know that they are keen on that particular process.
Stewart Hosie
I am very supportive of the notion of legislating now for the leverage provision, but in his new clause, the hon. Gentleman discusses
“a target for the overall leverage of the…system, to encompass…the activities of foreign financial institutions and non-bank originators of credit”—
or shadow banking. Although that might be taken into consideration in the calculation, the FPC would have no power to implement a leverage ratio in the shadow banking sector, so is there not an unintended consequence that leverage ratios may be too high in the formal banking sector to compensate for what the report found?
Chris Leslie
I am delighted that the hon. Gentleman has taken the trouble to look at the new clause, because it is our second attempt to cajole or persuade the Government to look at this issue. In Committee, we took a different approach to the question of leverage, and tried to clarify that there was a clear power for the Government to act. I hope in the spirit of consensus and trying to move the arguments forward, the Minister and the House will accept that we have taken a new approach, thinking about leverage as it affects the UK economy as a whole. Leverage—and I shall come on to make this argument—is part and parcel of the way in which an economy works, and in the new clause we have looked at a particular design that would encompass other institutions. I do not want to be misinterpreted: we mention foreign banks, for example, but I do not intend any extra-territorial reference in the new clause. It simply makes it clear that the provision has to encompass effective leverage on the UK financial services sector as a whole.
I have referred to the Vickers commission, and it is important that we do not forget the work that it did, and that we pay tribute to it. It said that
“a leverage cap of thirty-three is too lax for systemically important banks, since it means that a loss of only 3% of such banks’ assets would wipe out their capital.”
The commission recommended a 25:1 ratio—a 4% ratio—but the Chancellor dismissed that concern. It is essential that the ring fence is supported by tougher capital requirements, as well as by a leverage ratio.
The parliamentary commission said that it was not convinced by the Government’s decision to reject the Vickers recommendation to limit leverage in this way. The parliamentary commission said that it
“considers it essential that the ring-fence should be supported by a higher leverage ratio, and would expect the leverage ratio to be set substantially higher than the 3 per cent minimum required under Basel III. Not to do so would reduce the effectiveness of the leverage ratio as a counter-weight to the weaknesses of risk weighting.”
Sir Mervyn King, the former Governor of the Bank of England, said that the leverage ratio turned out to be
“a far better predictor of the institutions that failed in the crisis”
than measures of risk-weighted assets. I could go on; a great deal of debate has taken place on this issue.
Our new clause seeks a way of ensuring clarity on the powers and what sort of process would take place. We suggest that the powers of the Financial Policy Committee in the Financial Services Act 2012 should be amended to make it clear that a target should be set by the Treasury for the overall leverage of the United Kingdom’s financial system to encompass all the activities of those institutions that are originators of credit.
Mr David Ruffley (Bury St Edmunds) (Con)
May I unpick what the hon. Gentleman is saying? Does he mean a minimum leverage ratio or a target? There is a difference. Perhaps he could clarify that.
Chris Leslie
That is a very good question and I am open to debate on that. I believe that looking at that minimum leverage ratio as a target to be set for the leverage of the system as a whole in the UK would be the point of public policy, which is why it needs to be dealt with in a policy-making context by the Treasury, with reference to Parliament if need be. The key point is that it should then be for the regulators to look at the detailed implementation of that on a firm-by-firm basis.
Essentially, there is a parallel to be drawn between the way that the Chancellor of the Exchequer sets an inflation target for the Bank of England and the Monetary Policy Committee is given operational independence to find ways of meeting that target. The purpose of the debate today is to look at the potential parallel to be drawn there, with a target being set and operational independence for the implementation of that target being given to the Financial Policy Committee and the Bank of England. Over every three-month period the FPC should respond by notifying any changes and any actions that it has taken in order to regulate leverage, so that there is a dialogue and a process that is fairly self-explanatory.
Mr Ruffley
The hon. Gentleman is being very generous in giving way, but I want to be clear about his proposition. A target would imply that a bank that was just 10 times leverage would have to raise its leverage ratio to 25 times if it was a 4% target, whereas if it was a 4% minimum leverage ratio, that would be totally different. The bank that leveraged 10 times would not be in breach of that.
Chris Leslie
I understand the hon. Gentleman’s point. Let me be clear. The target that should be set would be for the financial system as a whole. It would be for the regulators to make judgments about firm-by-firm leverage arrangements, so it would be on a more sophisticated basis. There is a case to be made for a regulator to look at each individual institution. Some institutions are significantly different from one another. Some of the building societies, for example, have recently been making the point that they have different asset structures and so on, and that exactly the same leverage arrangement across the board for all firms simultaneously would not necessarily be appropriate. In an effort to work towards some way of dealing with the issue, this design is one that I have suggested.
Mr John Redwood (Wokingham) (Con)
In the proposal, the hon. Gentleman suggests that the committee has to take into account
“adequate credit availability and growth in the economy”
and report to the Treasury. Would the Chancellor and the Treasury have any right of veto or influence over that, or would they have to put up with the Bank’s judgment of what is adequate credit growth? That could be rather important if the problem were one of insufficient growth in the economy.
Chris Leslie
That raises the question of the operation of the inflation target. If I draw a parallel between a leverage target and an inflation target, clearly the Chancellor has been setting out his inflation target. It has been missed on a number of occasions—quite a few months and quarters have gone by—so the interplay between the Chancellor and the Bank of England is critical here. I am more than happy to come back to the issue. My point in the new clause today is that we need to start seriously discussing how, from a UK perspective, we are going to deal with the issue of leverage from a home-grown point of view, rather than waiting for the European Union to come along with a set of arrangements which may or may not fit our circumstances.
Jacob Rees-Mogg
There are two points that occur on the hon. Gentleman’s target weighting. One is that it is very arbitrary. If the regulator could set it for each individual bank, that would give a very strong arbitrary power to the bank to meet that overall target. The second is that although people say that their assets are particularly good ones and better than others, that is exactly what they said in the crisis and it turned out not to be reliable.
Chris Leslie
I agree with the hon. Gentleman, but it would be invidious for us as politicians to try to delve into the specific analysis of bank-by-bank asset or liability, quality and the risk weighting of assets. That is why we have regulators and what their job should be, but it is important that as a body politic, so to speak, we make a judgment about the level of leverage that we should have in the economy as a whole. That is why I raise the issue today.
For us, tackling the leverage question is incredibly important. We should not wait for the European Union to decide these things for us. We sought in Committee to clarify this in part. Rather than put it in the “too difficult to handle” box, as the Government seem to be doing, we should try to move forward constructively. The approach that we have taken is on the amendment paper. First, it is necessary to prevent the banks from over-extending themselves beyond the point of safety. Ring-fencing does not do that. We think ring-fencing changes should go alongside capital requirements and leverage regulation.
Secondly, we have been hearing arguments recently about the leverage ratio as anathema to bank lending into the real economy. Sometimes it is characterised as one or the other. I do not necessarily agree that there is a seesaw trade-off between the two. Andrew Bailey at the Prudential Regulation Authority has recently made the particularly pertinent argument that capital can be lent onwards in any case, so it should not be a case of one or the other.
For the sake of clarity, in new clause 9 we looked to address this explicitly by framing a leverage target strategy for the system as a whole, which must be constructed in such a manner so as to maintain adequate credit availability to support a growing economy. It is important to recognise that we will always operate with a degree of leverage. That is part and parcel of the way our banking system works, and our constituents rightly want us to focus on getting the economy moving, while preventing excessive risk-taking. In the spirit of constructive engagement, we hope the amendment strikes the right balance.
It is sometimes argued that leverage should be a back-stop rather than a front stop. The argument about what is a back-stop and what is a front-stop can get rather theological. Andy Haldane makes the point in his famous “The Dog and the Frisbee” speech that leverage needs to be brought much further forward as a primary tool for the regulators, and that other capital and risk-weighting issues should be subordinated. The main point is that leverage should be recognised as a key dynamic in our economy and needs to be regulated in a way not dissimilar to the regulation of inflation.
For us, there are three essential elements: set a leverage target for the system as a whole, which is a task for the Government; measure that risk—the threats to whether loans are going to be repaid—more accurately by sector, to determine which sector needs more capital to make it safe if leverage is rising and which could be dealt with in a normal way; stress-test to back-test the pressures in those particular institutions to be clear that the choice of the leverage target is correct. The regulator should do that.
New clause 9 would also augment Bank of England independence in relation to operational decisions on monetary policy and take into account the need to supply credit to the wider economy. I am glad that the Building Societies Association and others support it.
Mr Redwood
I remind the House that I provide investment advice on world markets and world economies, but I am pleased to say that it has nothing to do with banking credit or banking leverage, so I feel quite entitled to comment in this important debate.
I welcome what I hope is a probing new clause from the Opposition. It allows us to discuss something that is at the heart of what regulators need to do to have a strong banking sector and economy and to have the comfort at night of knowing that we will not live through another dreadful crisis like the credit crunch of the previous decade. The new clause goes to the heart of the issue: what action should the Government and regulators take to try to ensure that large banks and other institutions advancing credit that can be a risk to the whole system are kept under sensible control, so that we can be pretty confident that, if something goes wrong or the world economy dips, they have the necessary money to pay the bills and deal with any losses that might arise?
If we look at the tragic history of the previous decade, we can see that the then banking regulator in the United Kingdom—I think that it has now admitted this—got it wrong both ways. It wanted the banks to have too little capital, cash and protection, and in the run-up to the credit crisis in 2008 it allowed the most enormous expansion of leverage, which previous generations of regulators had not permitted. Then, in the ensuing panic, when interest rates had to rise to tackle the problem of inflation, it lurched to wanting very high amounts of capital, but at the time the banks could not generate profit and so found that very difficult. That resulted in the previous Government’s decision, in two of the worst cases, that capital should be forthcoming from the state and taxpayers themselves. I think that we all agree that we do not want to go back around that course or to get to the position again where some Members of this House feel that the only option is for the state to provide taxpayer support for organisations that have been too leveraged.
New clause 9 suggests that it is possible to set a leverage ratio for the system as a whole, and it might be, and that might be desirable, and I look forward to the Minister’s response. Of course, the regulator already does that in a way because it sets individual target ratios or capital requirements for all the major banks in the system, so if we aggregate those we get to its view of the aggregate amount of leverage. As the hon. Member for Nottingham East (Chris Leslie) has rightly said, if that overall leverage were to be set for the system as a whole, the regulator would still need to interpret that bank by bank. Some banks would be super-prudent and some would be straining at the other end of the spectrum and might be under special measures with the regulator to try to get their balance sheets into shape.
My particular worry at the moment is that it is never easy managing the transition. We would all be delighted to wake up tomorrow and discover that all the banks are super-safe, but if the price of getting to that stage too quickly is no growth in the economy or, worse still, the onset of another recession because the banks cannot finance the recovery, that would be a bad idea. Many of us would like to see the banks get to better ratios by writing more profitable business and generating more legitimate and sensible levels of profit, rather than having the regulator run the risk of moving too quickly to demand that they have much better ratios. The banks would then have to achieve those better ratios by not writing any new business and by trying to get old loans back ever more quickly from businesses that might find it difficult to repay them. Some of those banks, not being very profitable, could not trade themselves out of the difficulties that they found themselves in.
We also need to be conscious of what is happening globally, because although we should not chase the rest of the world if it has a group of regulators that are being far too generous and wish to re-enact the boom-type crisis of the previous decade—I do not think that we are in that position any more; I think that the regulators of the world are all generally trying to be more cautious—we need to ensure that we do not do anything in Britain that is particularly penal. What we need in order to have a prosperous economy is banks with sufficient profit, reserves and capital to be able to finance a normal recovery. It is very unpopular in this country to speak up for banks making profits at the moment, or indeed at any time, but it is important that they generate reasonable working profits, because that is the best way to make them more solvent.
Mr Ruffley
Is my right hon. Friend as unconvinced as I am by the relatively arbitrary figure of 4% being preferable to 3% for the leverage ratio? Like him, I believe that, if there is going to be any tightening on capital adequacy or leverage, it should be done when the recovery is more surely under way, and 3% is preferable to the 4% recommended by the Vickers commission and the parliamentary commission.
Mr Redwood
I think that I agree with my hon. Friend. What I am suggesting is that I would like to get closer to 4% and further away from 3% by growth, and I think that that could be inferred in Labour’s new clause, because I noticed that the hon. Member for Nottingham East wisely did not pledge himself firmly to 4%. Although he might secretly want 4%, like the rest of us he is probably wise enough to know that, although it might be nice to have 4% in due course, to lurch straight to a target that some big banks could not meet might be very damaging to the economy.
Neil Parish (Tiverton and Honiton) (Con)
One of the problems at the moment, as I know from my constituency, is that some companies are still finding it difficult to get money from banks, so the higher the leverage requirement, the more the banks will say that they have to keep the capital and cannot lend it. I agree with my right hon. Friend entirely that we have to be very careful about how we move from 3% to 4%, because otherwise it is companies and growth that will suffer.
Mr Redwood
I think that we have wonderful agreement across the Chamber on this, which might hearten the Minister. We would be happier with 4% than with 3% in general terms, but we do not want to get there too quickly if that means a further jolt to expectations and confidence and further actions by banks to pull back loans, rather than financing the recovery that we clearly need from them.
Mr Love
One of the banking commission’s recommendations was that that should be devolved to the regulator to decide and that we should not set a target or a figure. The Government seem to be resisting that, and for the reasons that have been outlined in relation to growth and living standards. What does the right hon. Gentleman think about the proposal to give that to the regulator earlier than the Government suggest?
Mr Redwood
I think that a Government have to take responsibility for the big calls on economic policy. They can take very good advice from independent regulators and the Bank of England, and sensible Chancellors take good advice, but ultimately it is the Chancellor of the Exchequer and the Prime Minister of the day who have their names on all that, and the electorate will expect them to be responsible. I think that people believe in independent central banks and independent regulators up to the point where they get it wrong, and then they look to politicians to take the blame. We have just been through a period when the banking regulator, by its own admission, got it very visibly wrong.
Mr Redwood
It is important that we should have proper discussion and informed debate, taking the best advice, so that we can try to get things right for a change. We owe it to all our electors and the economy generally to try to get the matter right.
Time is not generous, so I will be brief. My worry is that, under the previous Labour Government and in the early days of the coalition, we were running a strange policy in which, on the one hand, the Bank of England was trying to depress the vehicle’s accelerator by creating a lot of extra money and saying, “We really need to get some of this money out there to do some good in the economy.” On the other hand, the banking regulator was depressing the vehicle’s brake, saying, “No, you can’t possibly spend that money to create more credit and do more things. The priority is for the banks to sit on the money to have better cash and capital ratios. They probably need to wind down their loan books, which we think are too big.” My observation is that if we try to drive a vehicle with one foot on the accelerator and one on the brake, the brake normally wins.
Mr Ruffley
As has been mentioned already, some in the Bank, including Sir Mervyn King, argued that insufficient lending is a consequence of insufficient capital. I put that to Mr Bailey a few days ago in the Treasury Committee. I asked him about the net new lending level now compared with when funding for lending began last August, and he said that it was flat. Is that not evidence for his proposition that we cannot have tighter adequacy requirements on capital and lots more new lending? The figures show that lending is flat.
Mr Redwood
Indeed. That point also shows that we need banks to be profitable—particularly RBS, which is still largely state owned. Until the bank is making profits, its capital ratios will not improve quickly enough and it will then not be in a position to lend the money that the Government would like it to. The taxpayer would be grateful if it could be more profitable, because our shares would be worth more, which would be in the general interest.
I conclude by making the same point to the Minister. Yes, I want us to get to stronger banks with tighter ratios, but I want us to get there through growth and growth in bank profits—particularly for HBOS and RBS, in which we have a large state stake and whose results have been disappointing for a number of years. If we can get to that happy position, we can have a bit of growth and some more profitability and then the regulator will have to have a sensible conversation with the banks; it will say that some of the money has to be put into cash and capital so that they are stronger. We will be the better for that.
Mr McFadden
I will not detain the Chamber for long; I just want to make a few points.
The argument is really about complexity versus simplicity in how banks are regulated. One of the points that my hon. Friend the Member for Nottingham East (Chris Leslie) is trying to bring out is the inadequacy of the over-complex Basel regulations, which have allowed banks to game the system and say they had hugely different capital ratios on similar classes of assets in different institutions. The truth is that the Basel system is so complex that it does not give confidence about the safety of our banks. That is why this debate about leverage is so important.
In all the debate about ring-fencing, separation and so on, what has perhaps been under-discussed is the fact that not enough attention has been paid to leverage—a basic measure of banks’ safety or resilience against future risks and very important in respect of banks’ ability to absorb losses. One of the features consistently pointed out, both to the Treasury Committee and the Parliamentary Commission on Banking Standards, was that in the run-up to the crisis banks were hugely over-leveraged. That meant that their capacity to absorb and deal with problems when they came was minimal.
Our banks still have very high gearing today. The banks lobby hard on the issue. I counsel caution on the basic trade-off that has been raised about lending and leverage. There are other ways for banks to improve their capital ratios than simply by reducing lending. They could, for example, look at the proportion that they give out in remuneration every year; that could make a difference to their capital ratios. Over the past decade or two, vast amounts of money have been paid out in remuneration that could have improved capital ratios without having any effect at all on lending. Let us not fall for the argument that we can either have banks that lend, or safe banks, but we cannot have both. It would be wrong of us to fall into that false dichotomy. We should aim for banks that are both safe and have the ability to lend.
Greg Clark
It is a pleasure to respond to this important debate. First, I should like to correct a grievous omission in my previous remarks. During my paean to the members of the parliamentary commission, I neglected to include my hon. Friend the Member for Wyre Forest (Mark Garnier), who was behind me and therefore was invisible to me. He has been in the Chamber throughout this debate and his contribution is no less sterling and distinguished than those of the other parliamentary commission members whom I did mention. I apologise.
The new clause requires the Treasury to set a leverage target for the
“overall leverage of the…financial system”.
I welcome what I think is the spirit of the new clause. Problems with risk weights clearly contributed to the financial crisis; the right hon. Member for Wolverhampton South East (Mr McFadden) made that point. Those problems must be addressed if risk weights are to have a place in the regulatory regime of the future.
I also share the concerns raised by the parliamentary commission about the importance of having a robust minimum leverage ratio required by the regulator. As my right hon. Friend the Member for Wokingham (Mr Redwood) said, there is clearly support among Members on both sides of the House for that notion. We have consistently argued for a binding minimum leverage ratio to be implemented internationally, to supplement the risk-weighting requirements.
As has been said, the Basel III standard of 3% will come into force in 2018, following an observation period beforehand and a final calibration of the leverage ratio in 2017. Of course, national supervisors must be equipped to respond to new risks as they emerge in banks and financial markets. The PRA, in this country, is empowered to ensure that banks’ risk models are appropriately conservative and, where necessary, to set higher capital requirements.
As every hon. Member will be aware, the PRA has recently announced that major UK banks need to set out and implement plans to improve their leverage ratios and so to migrate further towards the new Basel III standard even now. The FPC has already been given a number of directive powers, including a counter-cyclical capital buffer and the power to set time-varying sectoral capital requirements. The Government have also made clear their intention to give the FPC the power to vary through time the baseline leverage ratio requirement, always subject to its never being below the requirement determined by Basel III.
Let me address the new clause, in whose support the hon. Member for Nottingham East (Chris Leslie) spoke. The first thing to say is that it requires the Treasury to give the Bank of England a target for the overall leverage of the UK’s financial system; I think I understand the hon. Gentleman correctly when I see an allusion to the inflation target perhaps given to the Bank of England. I have to say, though, that that pulls in the opposite direction to the parliamentary commission’s recommendation, which calls for the FPC—in other words, the Bank of England—to be given the power to determine leverage ratios. In its first and final reports, it noted that
“the leverage ratio is a complex and technical decision best made by the regulator and it certainly should not be made by politicians.”
The new clause cuts across the views of the parliamentary commission, if delivering that recommendation were its intention.
Moreover, the new clause would require a target for the overall leverage of the UK’s financial system. Again, this is not quite the right approach. Banks should certainly be subject to individual leverage requirements to ensure that they have sufficient capital to absorb losses, but an average leverage ratio for the entire financial sector could serve to conceal the risks in particular institutions. It would seem perverse to require the Treasury to set a target for overall leverage and so create an onus on the FPC to allow some banks to remain highly leveraged as long as this is offset by smaller or more conservative institutions running with less leverage. A system-wide average, or net, leverage ratio might be of little value in tackling excesses of leverage, and it could be positively counter-productive.
Another feature of the new clause would be dangerous. The proposal for a target requires the FPC to pursue action to meet the target. It is suggested that the FPC take action to increase leverage in the system when it is less than the target level that the Government are required to set. I am not clear how or why the FPC would want to do that. The target approach seems to me to be wrong. Financial stability is not like price stability; it cannot be boiled down to a single, symmetrical target. As a recent Bank of England paper concluded:
“No single set of indicators can ever provide a perfect guide to systemic risks, or to the appropriate policy responses…Judgement will, therefore, play a material role in all FPC decisions and policy will not be mechanically tied to any specific set of indicators.”
We need to apply caution in any consideration of enshrining in law a system that focuses on one target for systematic financial stability. Goodhart’s law is relevant in these circumstances:
“When a measure becomes a target, it ceases to be a good measure.”
I therefore hope that on reflection the hon. Gentleman will withdraw his new clause.
Chris Leslie
I am grateful for the quality of the debate that has taken place in the short time we have had.
I am glad that we tabled this new clause on leverage, because otherwise we would not have had the opportunity to start to focus on the issue. I understand what the right hon. Member for Wokingham (Mr Redwood) said about getting the balance right and the care and caution that are needed as we move towards what we want, which is a better, safer level of leverage within the overall system. It is worth reiterating that we want to do this only to make sure that banks do not over-extend themselves and become so lopsided that when they topple over they are not able to absorb the losses should things take a turn for the worse.
I am particularly grateful for the contribution from my right hon. Friend the Member for Wolverhampton South East (Mr McFadden), who rightly pointed out that saying that we need action either on leverage or on getting lending going into the real economy does not represent opposite poles of the argument. It is not as clear as that. Some are arguing not only that the extra capital could be lent out but, as he said, that compensation ratios, as they are sometimes known—the remuneration levels within banks—could also be tackled. Given that we are the major financial centre worldwide, we should not just be leaving this to international regulators. We certainly should not be leaving it to the European Union completely to decide these things for us. We have a duty in the UK to make sure that we think these things through properly and spend much more time on them.
Mark Garnier
The hon. Gentleman proposes that the individual leverage ratios of the banks be published, but if that information were in the public domain it could have implications for a bank’s funding costs. If the regulator deems that a particular institution has a greater risk, and therefore looks at a lower leverage, that will clearly have implications for the business.
Chris Leslie
I would tend to err on the side of publication and transparency. It is long overdue that we have better insight into banks’ balance sheets and the quality of their assets generally.
If we are to have this architecture, it could be a useful dynamic to have a leverage target set by policy makers—by Government. I slightly take issue with the parliamentary commission on this. There is a systemic aspect that ought to rest in the hands of politicians. Ultimately, the buck stops with us and Parliament is sovereign; the arguments about that are well known. However, as the commission said, the operational decisions taken institution by institution have to be left to the regulator. It would be invidious for that to be in the hands of the Treasury.
Mr Redwood
RBS, against the wishes of some of us, had been allowed to grow to a colossal size and to gear excessively. At the point when it got into trouble, it had a balance sheet of £2.2 trillion —almost four times the tax revenue of the state—and if it lost 2% of its asset value it lost the equivalent of the defence budget for a whole year. Is not that of interest to those conducting government?
Chris Leslie
There is a rare consensus across the Chamber in some respects. We have to agree that the UK economy, whether it is mid-sized or not, is potentially adversely affected by our vast financial sector.
I offered new clause 9 in the spirit of consensus to try to get some engagement from the Government. I am disappointed by the Minister’s attitude of saying, “We’ll just leave this and do it internationally. We’ll come to it in 2018 through the normal conveyor belt.” The Government must address this issue far more constructively and engage with it far more seriously, because it really does matter. We need action on leverage and it is important that we put on record the essential characteristics that it could and should have within our economy as a whole. I am afraid that I therefore wish to test the view of the House.
Question put, That the clause be read a Second time.
Mr Deputy Speaker (Mr Lindsay Hoyle)
With this it will be convenient to discuss the following:
New clause 3—Professional standards—
‘After section 65 of FSMA 2000 insert—
“65A Professional Standards
(1) The regulator will raise standards of professionalism in financial services by mandating a licensing regime based on training and competence. This must—
(a) apply to all approved persons exercising controlled functions, regardless of financial sector;
(b) specify minimum thresholds of competence including integrity, professional qualifications, continuous professional development and adherence to a recognised code of conduct and revised Banking Standards Rules;
(c) make provisions in connection with—
(i) the granting of a licence;
(ii) the refusal of a licence;
(iii) the withdrawal of a licence; and
(iv) the revalidation of a licensed person of a prescribed description whenever the appropriate regulator sees fit, either as a condition of the person continuing to hold a licence or of the person’s licence being restored;
(d) be evidenced by individuals holding an annual validation of competence;
(e) include specific provision for a Senior Persons Regime in relation to activities involving the exercise of a significant influence over a controlled function under section 59 of the Act.
(2) In section 59, remove “authorised” and insert “licensed” throughout the section.”.’.
New clause 4—Duty of Care—
‘At all times when carrying out core activities a ring-fenced body shall—
(a) be subject to a fiduciary duty towards its customers in the operation of core services; and
(b) be subject to a duty of care towards it customers across the financial services sector.’.
New clause 5—Remuneration reform—
‘Within six months of Royal Assent of this Act the Chancellor of the Exchequer shall, in consultation with the appropriate regulation, lay before Parliament proposals on reform of remuneration at UK financial institutions which shall include incentives to take account of the performance and stability of a UK financial institution over a five- to 10-year period.’.
New clause 7—Protection for whistleblowers—
‘(1) After section 43B(f) of the Employment Rights Act 1996 there is inserted—
“(g) that a breach of regulated activities under FSMA 2000 or the Financial Services Act 2012 has been committed, is being committed, or is likely to be committed.”.
(2) After section 43B(5) of the Employment Rights Act 1996 there is inserted—
“The chairman of the board of directors of any relevant UK financial institution will be informed of any protected disclosure made by a worker which qualifies under the terms of Part IVA of this Act.”.’.
New clause 11—Reckless misconduct in the management of a bank—
‘(1) Within the three months of Royal Assent of this Act the Government shall publish proposals for the creation of a new criminal offence of reckless misconduct in the management of a bank.
(2) The new offence in subsection (2) should cover those approved persons who are licensed under a Senior Persons Regime.
(3) The Government shall bring forward further proposals within three months of Royal Assent of this Act for the civil recovery of monies obtained by individuals who have been found guilty of reckless misconduct in the management of a bank.’.
New clause 13—Financial Services Crime Unit—
‘(1) The Treasury shall conduct a review into the creation of a Financial Services Crime Unit and consult on its proposals for the Financial Services Crime Unit’s powers and responsibilities.
(2) The Treasury shall lay its proposals before both Houses of Parliament no later than six months after this Act comes into force.’.
Stephen Barclay
In speaking to new clause 2, which I will not press to a vote, I wish to follow the line of argument pursued by my right hon. Friend the Member for Wokingham (Mr Redwood) on new clause 9. He drew attention to the tension created by building up capital while also lending more and used the analogy of driving with one foot on the accelerator and the other on the brake. If I may, I will take a step outside the car. With new clause 2, I wish to draw the House’s attention to a similar, I am sure unintended tension. The Government are taking a positive step forward, because in paragraphs 2.13 and 2.14 of their response to the parliamentary commission’s report, they make the welcome announcement that they accept the premise of reversing the burden of proof. In doing so, however, they will adopt a measure suggested in paragraphs 1170 and 1171 of the commission’s report that will create a potential handicap. A new condition will be attached to using that burden of proof, whereby the regulator must have concluded a successful enforcement action against the firm prior to doing so.
I do not think there can be any doubt about the merits of reversing the burden of proof. It is clear that if the regulator is required to sift through reams of e-mails looking for evidence to incriminate a senior banker, it will be a time-consuming and costly exercise. It is also highly likely that it will fail, because senior executives are not so stupid as to write boastful and wilful e-mails such as we saw from some of the LIBOR traders, who bragged of having their bottles of Bolly. Most senior executives are wise to the risks of e-mails and would not fall into such a trap. It is proportionate and reasonable to argue that senior executives who say that their hands-on leadership is sufficient to justify very high individual bonuses should also, on the other side of the coin, be able to demonstrate that they have personally acted reasonably.
The Government’s announcement that they will reverse the burden of proof is extremely welcome. However, the acceptance of paragraph 1171 of the Commission’s report could lead to a real impediment. If we open the door to personal enforcement, why would a chief executive wish to settle on behalf of their firm? We are trying to make it easier for the regulator to focus in a time-efficient and cost-effective manner on the individuals who should be held responsible, but that will be impeded by the additional requirement for enforcement to be concluded against the firm. The senior leadership whom we want to target will be incentivised to drag out proceedings and impede any settlement with the firm. I do not believe that is the Government’s intention, but I wished to draw the Minister’s attention to it so that the issue could be discussed in more detail and tackled in the other place.
I do not share the confidence of some colleagues who have spoken about the ability of criminal sanctions to operate effectively. They are a welcome tool to have, and many of our constituents would like the golden handcuffs to be replaced with the prison variety. Indeed, the images on US television of white-collar arrests and convictions have a powerful deterrent effect. My concern, however, is that if we look at the individual fines and enforcement to date, we see that the regulator has struggled to reach the evidential level required to prosecute individuals successfully. Now we are suggesting that it will have to meet a higher standard of proof to secure criminal convictions. It is a bit like asking a hurdler who has just failed at one level to jump over a much higher hurdle.
The reversal of the burden of proof is one aspect of what we need, and the deterrent effect of criminal sanctions is another, because it brings with it the power of the headline. The question is, will we fall into the trap that we so often fall into in this House of passing legislation that sounds tough but proves difficult to use in practice? My fear is that the standard of proof required of the regulator to deliver a criminal prosecution will make it a tool that is rarely used.
We therefore need to consider how we can target individuals, not firms, because that will drive the culture of firms. Currently, where there is wrongdoing, a firm will settle quickly and get a 30% discount. The more junior staff—the heads of the divisions responsible—are quickly exited, and the senior staff wilfully claim blindness, because the most controversial briefings are usually done orally. Reversing the burden of proof will address part of the ill, but through the new clause I wish to draw attention to the limitations of fines on firms, which at the end of the day penalise shareholders and pension funds. Our constituents pay twice—first for the bail-out, and then through the impact on their shareholding.
Cathy Jamieson (Kilmarnock and Loudoun) (Lab/Co-op)
It is a pleasure to speak to this group of new clauses, and I thank members of the banking commission—a number of whom are with us today—for their thoughtful work, and for the time and energy they put into ensuring that we had a series of recommendations, which have given us the opportunity to table a number of amendments in Committee and on Report.
The Opposition tabled amendments in Committee to reflect the commission’s recommendations, but for various reasons—some of which I could understand and some of which I could not—the Government did not see fit to accept them. There was some disappointment when we got the opportunity to scrutinise the original Bill that it was so thin—to be fair, the Government recognised that in their response published today, but we must get to annex B2 to find that acknowledgment. At times it would have been good to have a clearer indication of the Government’s direction of travel, and perhaps some of the details to discuss in Committee. As is often said, however, we are where we are, and we are now discussing the Bill in the context of the report published today.
No doubt all Members have had the opportunity to read the Government’s report, which provides a slightly more detailed response to the report by the Parliamentary Commission on Banking Standards. There are, however, some areas where clarification or further information from the Minister would be helpful. The new clauses were tabled before we were aware of which provisions the Government intended to accept, and we may have tabled a number of them differently—or not at all—had we known their intentions. Nevertheless, there are a couple of issues that we believe are not covered by the report and the Government’s response.
To put my remarks in context, the areas where quick implementation can be taken forward have been highlighted and the issues that require more detailed work have been identified. Where the Government do not agree with the commission has also identified. I will come to some specific issues in the new clauses, but it is worth noting that the Government now accept the need for change and action in a number of areas in which the Opposition have consistently made the case on Second Reading, in Committee and today.
The Government have announced plans to implement measures to improve individual accountability, and some of our new clauses relate to that in the overall context of conduct and remuneration. The Government have mentioned the tough new senior persons regime governing the behaviour of senior bank staff, outlined a willingness to take forward work on new banking standards rules to promote higher standards for bank staff, and—this was controversial in some quarters—we are pleased that they have at last decided to introduce a new criminal offence for reckless misconduct for senior bankers. We have heard from the hon. Member for North East Cambridgeshire (Stephen Barclay) about reversing the burden of proof so that bank bosses are held accountable for breaches within their areas of responsibility. The Government have made further commitments to work with regulators to implement the commission’s proposals on pay, allowing bonuses to be deferred for up to 10 years, and enabling 100% clawback of bonuses where banks receive state aid. All those areas are relevant to our discussion.
Some of the proposed reforms are either already enshrined in EU legislation or are part of forthcoming EU legislation, in some cases specifically relating to bonuses capped to salaries and bonus limits on bailed-out banks. Therefore, the Government would have had to consider the issue anyway, notwithstanding the fact that the Opposition have been pressing them to do so.
On new clause 2, the hon. Member for North East Cambridgeshire spoke eloquently about the culture involved. We can debate legislation and change as many regulations as we like, but if we do not get into the heads of those who make decisions and create that culture, we will not change enough to ensure that past scenarios do not happen in the future. The hon. Gentleman said that he did not intend to push the new clause to the vote. I had assumed that perhaps the Government would have agreed to it and that he would have been acclaimed as the favoured son who had tabled a new clause that the Government accepted—and therefore his record would have been better than mine; throughout the Bill’s time in Committee, I managed to get only one word changed, much to the chagrin of my hon. Friend the Member for Nottingham East (Chris Leslie).
New clause 3 was inspired by the commission, and builds on an amendment that was tabled in Committee and recommendations in the commission’s final report. It would introduce a licensing regime for
“all approved persons exercising controlled functions,”
to ensure that such persons have adequate standards of competence and integrity. Again, that was a feature of the discussion in Committee, and we were keen for reforms to be brought forward to ensure that future banking misconduct is prevented, whether that is fixing LIBOR rates or mis-selling financial products. In Committee we argued that similar regimes have applied to other professionals, and there is no reason in principle why that should not be the case in the banking and financial services sector. Just as with lawyers, doctors or other professionals, misconduct in banking and financial services causes potential injury, injustice or financial loss. In the financial sector, the consequences and costs of bad behaviour cost billions and harm the whole of society, so we believe it right to introduce safeguards similar to those in other professions.
We tabled new clause 3 because we wanted to introduce our senior persons regime and revised set of banking standards rules, as recommended by the Parliamentary Commission on Banking Standards, and it is good that the Government intend to take that forward. In his response, will the Minister provide a further flavour of how he intends to do that and give some detail, particularly on the scope of the legislation he proposes to introduce?
Why did the Government not feel able to introduce such a measure at an earlier stage in Committee? We would have welcomed the opportunity to scrutinise, discuss and probe the Bill in slightly more detail then. Will everything now be done in the other place, and will there be time for consideration in this Chamber? In his opening remarks I think the Minister gave an assurance that there would be ample opportunity to discuss those issues in the Chamber, but it is worth noting that when the Bill passes into statute as a result of all the work done to it, it will be very different to the one initially introduced, and it is right and proper that we have the opportunity to scrutinise it at every stage.
The Minister will be familiar with the amendment that we tabled in Committee on the duty of care, and we have now tabled new clause 4, which would introduce duties of care for ring-fenced bodies—first, a fiduciary duty in relation to the carrying out of core services, and secondly a more general duty of care across the financial services sector. As I outlined in Committee, we bring this forward because we feel that it would send an important signal to the general public, who still have some way to go before trust is restored in the banking and financial services sector.
Mr Love
The current regime for the regulator is “treating customers fairly”, which is exactly what the banks did not do in the PPI scandal. Does my hon. Friend agree that we need something stronger, and that a duty of care is a step in the right direction, signalling that we need to do something about the scandals that have happened in the past?
Cathy Jamieson
My hon. Friend is right and he speaks with great experience, both because of the work he has done in this House and on the banking commission. He is right to say that the scandal of the PPI is exactly why today’s consumers want further assurances that the banking industry and the financial services sector are not simply about using consumers’ possible lack of knowledge or understanding of the system to turn a quick profit with no thought to the longer term, either for the individuals or for the wider financial sector. That is why we have tabled the new clause.
I suspect that the Minister may say much the same to me this evening as he said in Committee, as he felt that the amendment was unnecessary. Nor was it drafted in the most technically perfect way. However, it would be helpful if he were able to confirm that at the least the idea of a fiduciary duty—a duty of care—will be significant. I feel minded to test the will of the House on this new clause.
Mr Ruffley
On a point of information, what fiduciary duties, other than a duty of care, does the hon. Lady envisage?
Cathy Jamieson
I could go back through some of the issues that were raised in Committee. As I outlined, some of the duties that would be expected are those defined and accepted in common law already. What we want to do is try to put them in legislation to give a clear signal to consumers that things have changed and to try to rebuild trust in the banking system. I do not think that the customers of the banks think that it is unreasonable to have something that says that the banks should act in consumers’ interests when looking after their money.
New clause 5 reflects another amendment that we tabled in Committee. It is important to have assurances from the Government in the absence of knowing their intentions about remuneration reform. We tabled new clause 5 because we want the banks to take account of performance and stability over a five to 10-year period. That would reduce unnecessary risk-taking, force bankers to take a longer-term view, and end rewards for short-term profit. We tabled an amendment on this in Committee, and the parliamentary commission took a similar view in its report, which states:
“The Commission recommends that the new Remuneration Code include a new power for the regulators to require that a substantial part of remuneration be deferred for up to 10 years, where it is necessary for effective long-term risk management.”
That was raised by the Treasury Committee in January, when the Bank of England director Andy Haldane called for various reforms.
Stephen Barclay
Does the hon. Lady not recognise that the difficulty with catch-all provisions, such as that for a 10-year period, is that they capture the good as much as the bad? New clause 2 would create targeted regulation to focus on those who have done wrong, instead of a catch-all provision that captures everyone.
Cathy Jamieson
I might have been tempted to support new clause 2 had the hon. Gentleman decided to put it to the vote, and I look forward with interest to hearing what the Minister has to say. I understand the issues relating to length of time and the dangers of a catch-all provision but, in the aftermath of the banking crisis, the legal and regulatory structures, and the further changes that the Government promise to introduce, we need to ensure that the banking culture really changes. New clause 5 attempts to ensure that banks think for themselves about how to ensure that their performance is sustainable. Now that the Government have moved to an acceptance of the broad principle, the devil will be in the detail of what they do next. Perhaps the Minister will have more to say on that.
Mark Garnier
The shadow Minister raises the 10-year deferral of bonuses recommended by the Parliamentary Commission on Banking Standards. We made that recommendation so that we could at least see the business of a bank through a business cycle, as it can take 10 years to expose irregularities. One problem occurs that when people in receipt of such bonuses—there are already some deferred bonuses, in particular in UBS—want to move to another institution, they are bought out of their held-back bonus. Does the hon. Lady have any proposals to deal with that?
Cathy Jamieson
The hon. Gentleman makes an extremely good point. It is perhaps worth remembering that not only did the Parliamentary Commission on Banking Standards make that recommendation, but Andy Haldane supported it when he came before the Treasury Committee. I am sure that the Minister will have something to say on that when he sets out his next set of actions.
New clause 7 relates to protection for whistleblowers. It is important to ensure that workers are protected if they make a disclosure in the “reasonable belief” that misconduct has occurred, is occurring or could occur. The new clause would amend the Employment Rights Act 1996 and impose a duty on managers to inform the bank chairman—or chairwoman, if that is the case—of any report of wrongdoing that qualifies as a “protected disclosure”. This is an updated version of a clause tabled in Committee, and reflects the final report of the parliamentary commission, which in paragraph 788 states:
“A non-executive board member—preferably the Chairman—should be given specific responsibility under the Senior Persons Regime for the effective operation of the firm’s whistleblowing regime. That Board member must be satisfied that there are robust and effective whistleblowing procedures in place and that complaints are dealt with and escalated appropriately. It should be his or her personal responsibility to see that they are.”
In new clause 7 we are attempting to trigger a cultural change in the financial services sector. There is no doubt that a bank employee would wrestle with their conscience before deciding to break ranks. If an honest trader suspects wrongdoing and is considering informing the authorities, there must be protections to mitigate his or her fear of losing their job.
The LIBOR scandal illustrates the importance of making it easier to report wrongdoing. At that time there was a quite a lot of speculation in the press and elsewhere about the accuracy of LIBOR, yet nobody came forward with the evidence. New clause 7 seeks to bolster the maintenance of law and order—I think everyone would generally agree with that—and would make it easier for the regulators and the banks’ compliance teams to do their jobs.
I looked closely at the Government’s response to the commission today, which says:
“The Government recognises the important role that whistleblowing can play in exposing wrongdoing”.
It continues:
“BIS is publishing a ‘call for evidence’ to establish a strong evidence base to help Government better understand the operation of the whistleblowing framework in today’s employment environment”.
It seems that the Government are now linking whistleblowing in the financial services sector with the wider review. We need to be careful about how a code of conduct, support for regulators and the role of regulators—including their interaction with employment tribunals, which is how the report couches this issue in context—are dealt with. Will the Minister say in his response when he anticipates the review being completed and what legislative vehicle would be proposed to implement any recommendations? It was not immediately apparent to me on reading the report that that had been established or thought through. Does he agree that any delay in dealing with the issue would risk putting that change out of sync with some of the other important changes that will be made to banking and the banking culture?
David Rutley (Macclesfield) (Con)
I am following the hon. Lady’s argument with interest. Proposed new section 43B(g) of the Employment Rights Act 1996 refers to where
“a breach of regulated activities under FSMA 2000…has been committed…or is likely to be committed.”
So that we can understand the new clause better, how would she determine whether something was “likely” to be committed?
Cathy Jamieson
The hon. Gentleman makes a useful and probing point—I wish I had had the opportunity to probe the Government’s proposals in the same way. The point is to look at patterns of behaviour and conduct. The important thing is that this change or anything that the Government introduce should be robust and should stack up. That is why I was particularly keen to know how the Minister sees this issue being taken forward. However, I recognise that there is a wider context, so if he could respond by giving me some assurances on this issue, I would probably be tempted not to press new clause 7 to a vote.
Let me briefly mention new clause 11, which deals with criminal sanctions. New clause 11 was also inspired by the work of the Banking Commission. It would require the Government to bring forward proposals for the new offence of reckless misconduct in the management of a bank covering the people licensed under the senior persons regime and would seek civil recovery of money from people found guilty of the offence. Although that might be controversial in some areas, it is important. I welcome the fact that the Government now seem to be moving on this, and I await the detail with interest. It is vital that bankers are held to account for their actions. That is important not just for any action after a future crisis, but as a deterrent, should any bank executives be tempted to take unnecessary or reckless risks.
Richard Fuller
I do not wish at this moment to be unduly partisan, but could the hon. Lady advise us on the evolution of the Opposition’s thinking? Was the imposition of criminal sanctions for the reckless management of banks discussed in the previous Government?
Cathy Jamieson
As I am sure the hon. Gentleman is aware, I was not in this place or, indeed, a member of the previous Government. [Interruption.] I hear someone saying “Shame”. I do, however, think it would be appropriate to look at the circumstances in which we are operating at present. In the same way as the hon. Gentleman did not wish to be partisan, I will resist the temptation to make an incredibly partisan response. Instead, I simply say it is important that the Government look at this. I welcome the fact that they seem to be willing to move on this, and the parliamentary commission was very clear that:
“It is inappropriate that those found guilty of criminal recklessness should continue to benefit from remuneration obtained as a consequence of the reckless behaviour.”
That statement sits in the context of the issue of being able to claw back.
Mr Love
This recommendation emerged from an all-party commission, with all parties supporting it. It is important to remember that it has the effect of signalling that we treat so seriously the misdemeanours that have occurred in the banking sector that we deem that those found guilty should face a criminal sanction.
Cathy Jamieson
Again, my hon. Friend makes an important point that this is an all-party stance and that everyone on the banking commission took this issue seriously.
It is worth remembering that in response to a question from the Leader of the Opposition last month, the Prime Minister told the House that he would use this Bill to implement the report of the parliamentary commission. The Leader of the Opposition asked:
“Following the Parliamentary Commission on Banking, can the Prime Minister confirm that he supports its important recommendations on bonuses and criminal penalties, and that he will use the banking Bill to implement them?”
The Prime Minister responded:
“Yes, I do support both those measures...Penalising, including with criminal penalties against bankers who behave irresponsibly— I say yes. Also, making sure that for banks in receipt of taxpayers’ money we can claw back and have a ban on bonuses—I say yes too.”
The Leader of the Opposition then asked a further question, to which the Prime Minister replied:
“We will be using that Bill to take these important steps.” —[Official Report, 19 June 2013; Vol. 564, c. 883.]
I hoped the Minister would have been able to bring forward appropriate amendments or new clauses—or whatever is needed—at this stage, rather than leaving that to elsewhere. I hope he will be able to give us some further information on how the work will be progressed and when he now expects to give us more detail.
New clause 13 relates to the financial services crime unit in the Serious Fraud Office. We raised this issue in Committee, and my hon. Friend the Member for Nottingham East gave an eloquent description of some of the areas that an FSCU would be able to address. This new clause would require the Treasury to report on the establishment of the FSCU and to do so within six months of the Act coming into force.
I fear the Minister might sigh and think, “Here go the Opposition once again, asking for another report to be produced.” Before he says that or any Member seeks to intervene to make that point, I will say that the reason we are asking for these reports to be produced is to ensure that progress is made and that things do not just gather dust on a shelf somewhere.
We know we have to look at the resources available to tackle white collar crime. Financial products are becoming ever more complex, and they are being traded faster, and increased resources could enable specialist police officers to develop their expertise. There are huge financial incentives in looking at developing this, too. It is worth remembering that fraud costs Britain about £73 billion a year, according to the Home Office’s National Fraud Authority. As my hon. Friend the Member for Nottingham East recalled in Committee, Andrew Bailey, the PRA chief executive, said it was “more than odd” that bank directors had not faced formal charges over the events leading up to the crisis. The Serious Fraud Office has a bit of a mixed record on tackling the high-profile cases. The Home Secretary was forced to perform a bit of a U-turn on her plans to abolish the SFO. It is clear that the SFO needs to be improved. The LIBOR scandal again shows that misconduct in financial services can have ramifications for traders, for industry, for shareholders, for the reputation of the City and, indeed, for criminal law.
Stephen Barclay
I seek to understand the scope of new clause 13 and the financial crime unit. Would it have taken criminal sanctions against the auditors of RBS, who so failed that they required the then permanent secretary of the Treasury to seek a letter of direction?
Cathy Jamieson
I am sure the hon. Gentleman will not be surprised to learn that I am not going to go into the detail of that case. He has had a career in the banking sector dealing with such issues, and he will be as aware as I am that looking at one case in isolation is sometimes not the best way to appreciate the overall picture. The overall picture is what I am interested in, and why I specifically mentioned LIBOR, because it is already a criminal offence to attempt to fix that rate. We need to seek to ensure that the SFO has the resources necessary to tackle this and to prevent any further scandals.
We have tabled new clause 13 to give Parliament a chance, once again, further down the line to discuss the creation of a new agency, and we hope it would send a firm message to those tempted to engage in criminal conduct. I hope that the Minister may be able to say something more on that in his response. He did not seem to be persuaded in Committee of the need for a new unit or even a subdivision. My recollection is that he took that view, “Its all fraud and there is no need to have a specific unit or part of an organisation dealing with it.”
I think I have covered a number of issues relating to these proposals. Once again, it is important to put on the record the fact that although we have had the opportunity to raise some of these issues in Committee and this evening, it is unfortunate that on Report we are not going to be able to scrutinise the detail of some of the new clauses—it is fair for us to assume that they might have been tabled at this stage. I seek the Minister’s further reassurance that we are going to get the important detail of how he intends to proceed, that we will see as much as is possible of the draft new clauses and legislation as things are taken forward, and that we will have an appropriate opportunity to discuss all that further in this place.
Richard Fuller
I am very grateful for the opportunity to catch your eye, Madam Deputy Speaker. I wish to discuss the proposals in this group, particularly new clauses 11 and 2. I am not a member of the Treasury Committee, I was not a member of the Parliamentary Commission on Banking Standards and I was not even on the Public Bill Committee, so I hope that other hon. Members will permit me to make a few perhaps less-informed commentaries about these proposals on conduct and remuneration, and the issues they raise, and perhaps come at this from a different perspective.
May I start by thanking the commission for its work on this issue and, in particular, my hon. Friend the Member for Wyre Forest (Mark Garnier), who made an extraordinarily strong contribution? Collectively, they have a much greater claim than Goldman Sachs to have been doing God’s work on financial services. I thank the Government and congratulate them on their speedy response to the recommendations. I also thank the Minister for allowing us to see the document ahead of today’s debate.
I remember the evening when the membership of the commission was established. It was a late evening, and quite warm. It might have been 10.30 pm, 11 pm or even later and hon. Members were keen to get back to their duties in responding to their constituents. I got up to speak with some trepidation, as hon. Members were hoping that the membership would go through on the nod, to make the point that for my constituents in Bedford and Kempston the commission would fail in its duty if, as a result of its actions, nobody went to jail. It is in that spirit that I want to comment on the new clauses today.
Richard Fuller
I am grateful for that intervention. A lot in the commission’s recommendations reflects the seriousness with which it considered that point, and rightly so. In the intervening 12 months, I have dealt with constituents whose businesses have been put at risk because of the fraud of interest rate swap mis-selling and whose lives have been rent asunder by payment protection insurance mis-selling, and the Government have also taken action on the fiddling and fixing of LIBOR. Beyond that, some of us have been dealing with regulatory failures on Equitable Life. My view is that jail for such bankers and for those responsible is the only fair outcome for the victims of those scams. Despite the intervention from the hon. Member for Edmonton (Mr Love), I must still ask where justice is to be found for the victims of those crimes in the recommendations and in the amendments tabled today.
Banking is full of honest and decent men and women. As my hon. Friend the Member for North East Cambridgeshire (Stephen Barclay) said, one of the attractions of new clause 2 is that it focuses like a laser beam on the individuals who are responsible and culpable. If we fail to do that and those people do not go to jail, where is the justice for all the other people who work in financial services honestly on behalf of their clients every day?
It is not a habit of this House to consider retrospective legislation, but I want to mention that in a minute. First, let me ask the Minister a couple of questions. In the senior persons regime and the actions that would be covered by new clause 11, the focus is on named individuals at the top. As we saw in the interest rate swaps, a lot of the decisions made by the senior ranks at the banks were translated into budgets and business plans and transferred down through the hierarchy of the banks. Perhaps the Minister, when he considers the issue of conduct, could answer the question of how those extensions beyond the senior persons regime will be handled.
Mark Garnier
I am grateful to my hon. Friend for his comments about my contribution to the Parliamentary Commission on Banking Standards. He raises a number of points and as the chairman of the sub-panel that considered below board level corporate governance I can say to him that the management structures of banks are so fiendishly complex that there is little way that the senior managers of banks can translate their wishes all the way down to the bottom. Other evidence gave reasons why the senior management in banks can effectively set up what amounts to an accountability firewall, thereby putting wilful ignorance between them and the activities that go on in the front line and absolving themselves from any responsibility for any misconduct at the bottom end of the bank. That is a very serious issue.
Richard Fuller
I am grateful for that intervention, but I do not want to attempt to get into the debate that the commission has considered thoroughly and much more knowledgably than I would be able to do.
The House does not frequently indulge in passing retrospective legislation, but if the senior persons regime is appropriate, is there merit in applying it retrospectively, if only in the form of an exercise through which to judge the conduct of those involved in financial services—in the banks and elsewhere? Whether that took the form of a self-audit conducted by the financial institutions themselves, or further work for the banking commission, to the extent to which that would be feasible, it would be welcome.
Stephen Barclay
Does my hon. Friend share my incredulity that when David Strachan conducted his review at the Financial Services Authority following the Legal and General case and brought forward his recommendations for a light-touch enforcement regime, the vice-chair of the FSA was Sir James Crosby, who is one of the three figures who are especially criticised in the banking commission’s report? We have a multi-layered, light-touch enforcement regime that often creates a disincentive to the regulator—this is why market abuse often involves criminal sanctions, not civil sanctions. One of the people criticised in the banking commission report actually designed the system that applies to the regulator.
Richard Fuller
I am appreciative of that intervention, which adds not only to my body of knowledge, but to the commonly held disgust that, following all these efforts involving the best minds we can put in place, no one is going to jail. In the absence of anyone going to jail, we have gone through all the fraud, all the mis-structured, light-touch regulation and all the mis-positioning of responsibilities without a single person being truly accountable. If there is a point on which I disagree with my hon. Friend, which I rarely do, it is that he said in his speech that financial penalties are likely to be more successful. He might have a point in saying that there will be more successful prosecutions, but the loss of one’s liberty cannot be put in a discounted cash flow—there cannot be a beta high enough. If we want to change behaviour, we have to show that people will go to jail and lose their liberty. If, having gone through the worst financial recession that we have experienced in our lifetimes, not a single person goes to jail as a result of all our work, I do not care that there is a cross-party consensus because, in my view, this is failing the people.
Jonathan Edwards
To what extent has the hon. Gentleman been influenced by events in Iceland, where the bankers were all purged? They were jailed, as were some very senior politicians, including the then Prime Minister.
Richard Fuller
I must admit that I am not particularly familiar with Iceland—certainly not as familiar as the hon. Gentleman is—but he makes an important contribution. Other regimes look at things differently, and are far stricter than we are. Normally, we would look at how United States regulations dealt with some of these things. In the past, they have been more successful than they have been recently as regards criminal prosecutions in financial services. Many people in the United States were held criminally responsible for their actions in the savings and loans scandal; the same has not happened in this financial crisis.
I respect the work of the commission, and I am nowhere near as smart as it is on these issues, but I have to say that no one has gone to jail, and that is not good enough.
Mr Love
I will comment on the commission’s thought processes on some of the issues that the hon. Gentleman mentioned. He will remember, as we all do, the evening on which we set up a special parliamentary vehicle in the wake of the LIBOR rate-rigging scandal. Since 2008, there have been a variety of critical events, including the credit crunch and the recession. All that led to a catastrophic decline in the reputation of the financial services sector. Trust in bankers sank to an all-time low, and frankly LIBOR was the last straw. This was truly shocking behaviour on an unprecedented scale. Something had to be done, and the focus was very much on our terms of reference on standards and culture.
As a result, the commission had to answer some tough questions, and the hon. Member for Bedford (Richard Fuller) has posed some of them: why had so few bankers been held to account for their failings? Why had it appeared that bankers pocketed the gains, but passed on the losses to the taxpayer? Why were customers who should have been treated fairly treated in the exact opposite way—a point that my hon. Friend the Member for Kilmarnock and Loudoun (Cathy Jamieson) raised? We tried to answer those questions through three themes that came out in our report. The first theme is individual responsibility.
When all the head bankers came before us, we were genuinely shocked to hear that they denied any responsibility for what happened in their banks. Whether it was ignorance of the serious failings happening under their noses, or because there was collective decision making, the result was the same: no one could be held to account. That, we discovered, was the result of the failure of the approved persons regime, which did not attribute responsibilities to senior staff, who, as a result, could not be held to account.
Two steps are proposed to try to address that problem. First, we have already mentioned the new senior persons regime, designed to ensure that the most important responsibilities are assigned to specific individuals, who will more easily be held to account for them. Secondly, for a much wider group—not every employee, but those who could do serious harm to the bank, or its customers, due to their customer-facing position—we propose a new licensing regime, with a set of banking standard rules that enable them to be held to account.
However, for people to be held to account, we need more effective sanctions, and that is the second theme of the commission’s report. Identification of those responsible under the new regime will provide a stronger basis for the regulator to enforce existing civil penalties, such as fines, restrictions and bans. One of the great difficulties was assigning responsibility; we hope that individual responsibility will address that.
Given the seriousness of the wrongdoings—an issue mentioned in earlier contributions—the commission is recommending two new, far-reaching powers. New clause 2 does not address this point, but under certain conditions, the regulator should be able to impose a full range of civil sanctions, unless the person can demonstrate that reasonable steps were taken to prevent or mitigate the failing. In effect, that does what new clause 2 suggests: it reverses the burden of proof, but only under certain conditions.
Stephen Barclay
In essence, the hon. Gentleman is describing the purpose of new clause 2. Earlier, I alluded to the fact that there is a condition that militates against the effectiveness of the new clause: the tool can be used only if there is a successful prosecution, which gets in the way. As much as I agree with my hon. Friend the Member for Bedford (Richard Fuller), does the hon. Member for Edmonton (Mr Love) agree that we need to be careful about changing the law retrospectively, particularly on custodial sentences? One of the issues that we are addressing today is how we get it right for the future, and what the sanctions should be.
Mr Love
Personally, I oppose retrospective legislation. It was not considered by the commission, which does not make any recommendations on it. I suspect, however, that none of its members would be in favour of addressing these issues in that way.
The other change is the much publicised criminal offence of reckless misconduct in the management of a bank, which normally carries, as has been suggested, a custodial sentence. Importantly, we have laid down preconditions before a charge of that nature can be brought. There must be a cost to the taxpayer—the bank has turned to the taxpayer to bail it out; or there are consequences for the financial system—stability is critical, and anything that destabilises the system should be subject to a criminal sanction; or there is serious harm to customers. We think that we have framed a big change in the law. Bankers continually ask why they are singled out as the only commercial group that can be charged in that way. It is a delicate balance, and I hope that the Government will look seriously at what we are trying to do.
The third area I want to touch on is remuneration and incentives. The reality is that rewards have been huge, and still are huge for a more limited supply of senior bankers. That incentivises excessive risk taking and, occasionally, misconduct. The commission concluded that risk and reward are still misaligned, particularly when making pay awards over a short period. It therefore sees advantages in making a significant portion of remuneration variable, rather than fixed. We do not have much sympathy for the European solution in relation to that, but we think that reform is necessary in this area. More variable pay should be deferred to take into account changing circumstances at the bank at which the banker works, with power for the regulator to extend the period for up to 10 years. To those who say that that is a long time, many banks have a good year, but then some less good years, and the commission wanted to recognise that that can go on for an extended period.
Regulators should be able to limit or prohibit sales-based incentives. We were shocked at the way in which sales-based incentives were used to create the mis-selling scandals of PPI and interest rate swaps. There was a cascading group of incentives from senior management through to the customer-facing end of the bank, and we think that that made a major contribution to the problems that arose. We want to give the regulator much stronger powers. Where a bank requires taxpayer support, the regulator should have discretionary power to cancel all deferred compensation. It is shocking that, as happened in some banks, they were still paying remuneration to employees after the bank had taken on taxpayer funds.
The issues of conduct and remuneration that I have raised lie at the heart of what the commission thinks needs to be done in respect of culture and standards. These recommendations have been much debated and discussed. We have done everything we can to make them practical and realisable, and I hope that, when there is an opportunity to debate them in the other House, or when they come back to this place, the Government will give serious consideration to those recommendations.
Mr Ruffley
I shall make two brief points. First, I congratulate my hon. Friend the Member for North East Cambridgeshire (Stephen Barclay) on drawing attention to something very important to the House—that it is this Government who have got behind the idea that there should be, in certain limited circumstances, a custodial sentence for breach of a new criminal offence. It is worth reminding ourselves that although the crash occurred in autumn 2008, the then Labour Government had 2009 and the first five months of 2010 to do something about it, but it is this Government who have made their intentions clear regarding custodial sentences. For that, Ministers should be congratulated.
The second and final point is that we cannot let this debate pass without reminding ourselves of the fact that existing criminal law was not being enforced in relation to the allegations of LIBOR rigging. The Parliamentary Commission on Banking Standards came into existence as a direct result of the allegations about rigging the LIBOR market. The custodial sentences available for those activities were not seriously taken on board by the Serious Fraud Office, for in 2011, it is said, the SFO inquired into whether existing criminal offences had been committed by those manipulating the LIBOR market, and concluded that they had not.
This time last year the Chancellor of the Exchequer told the House that he would ask the Serious Fraud Office to take another look to see whether criminal offences had been committed under existing criminal law. Leading counsel advised me and I said in the Chamber that there were, on the face of it, breaches of section 2 of the Theft Act 1968 through false accounting, the common law offence of conspiracy to defraud, breach of the Proceeds of Crime Act 2002, and possibly even breaches under the Fraud Act 2006.
Although the Minister clearly cannot intervene in investigations by the Serious Fraud Office because prosecutorial authorities are quite separate from the Executive, which has always been the case and will, I am sure, continue to be the case for centuries to come, it would be useful for him to indicate what the state of play is in relation to breaches of existing criminal law that might give rise to custodial sentences in the case of those engaged in LIBOR rigging.
Greg Clark
It is a pleasure to respond to this well-informed debate. I start by welcoming the hon. Member for Kilmarnock and Loudoun (Cathy Jamieson) to the Opposition Dispatch Box. She proved rather more persuasive in Committee than her hon. Friend the Member for Nottingham East (Chris Leslie), as I was able to accept at least one of her amendments. I think that it was a single word, but I am sure that it was an excellent one, historically so.
We are considering a large group of amendments, as has been evident in the range of the debate, and it has given us the opportunity to have an initial discussion of the parliamentary commission’s recommendations on questions of individual accountability and corporate governance. We agree with the recommendations that have been made. The commission’s report has at its heart the essential point that the UK banking system depends totally on the trust it commands. If it cannot count on the trust of its customers, it cannot truly serve businesses and people, which is the only purpose of banking. If it cannot count on the trust of businesses and people in this country, it cannot possibly sustain a reputation for international pre-eminence, which is what we all want to see.
The commission’s conclusions are comprehensive. Never again must directors of banks be able to preside expensively over failure or misconduct and then claim that they simply did not know what was going on. Never again must banks simply, as the commission sees it, contract out ethical judgments to the regulator. Never again must senior bankers be able to make one-way bets with the money of ordinary working people and walk away financially unscathed, leaving taxpayers with a crippling bill.
Specifically, we will enact the new senior persons regime that the commission proposes and introduce new banking standards rules to require high standards among all staff. We will introduce the new criminal offence of reckless misconduct that has been suggested for senior bankers. We will reverse the burden of proof so that the bosses are held accountable for breaches within their areas of responsibility. We will work with the regulators to implement the commission’s proposals to defer bonuses for up to 10 years and to enable 100% clawback of bonuses where banks receive state aid. We will ask the regulators to implement the commission’s recommendations on corporate governance to ensure that firms have the correct systems in place to identify risks and maintain standards of ethics. As I have said in earlier debates, where legislation is required, we will propose amendments in the autumn in the other place.
Let me deal specifically with today’s amendments and new clauses. New clause 2 was ably moved by my hon. Friend the Member for North East Cambridgeshire (Stephen Barclay). In a powerful speech delivered without notes, he explained that the new clause seeks to reverse the burden of proof when taking action against a senior person where there are regulatory failings by a firm in that person’s area of responsibility. As the hon. Member for Edmonton (Mr Love) pointed out, that is one of the parliamentary commission’s recommendations, but I think that my hon. Friend campaigned for that even before the commission reported, drawing on his own experience as a regulator. I say to the hon. Member for Kilmarnock and Loudoun that my hon. Friend needs no tawdry trinket of the Government accepting his amendment to be lionised in this House for the contribution he has made. We very much accept the thrust of his recommendation and that of the parliamentary commission.
The PCBS put it this way:
“Senior managers of banks will no longer be able to hide behind an accountability firewall, where they are too distant from the consequences of their responsibilities to be held directly accountable when things go wrong.”
At present, the regulator has to be able to show that the person knew what was going on. That cannot be right. It means that while regulators can take action against the firm’s junior employees who might be implicated, they are unable to pin responsibility on someone higher up the chain just because, as the Commission put it, the e-mail trail goes cold when it reaches their level of management. I will take on board the case my hon. Friend made on whether it is necessary to require the corporate offence to be committed, and we will reflect on that before the Bill goes to the Lords.
New clause 3 reproduces a new clause that was considered in Committee, when I predicted that the parliamentary commission would have something to say about the approved persons regime and a code of conduct. My predictions proved uncannily accurate. The commission’s recommendation that the approved persons regime should be replaced is, of course, a major feature of its report, which we accept. We will bring forward amendments to introduce the new senior persons regime to replace FSMA’s approved persons regime. As the commission recommends, the new regime will ensure that key responsibilities within banks are assigned to specific individuals who are aware of those responsibilities and have formally accepted them. As part of the regime, we will implement the commission’s more detailed recommendations, including reversing the burden of proof, which I have just mentioned, and allowing regulators to make the approval of senior persons subject to conditions and time limits.
The regulators will also be able to make rules about the conduct of senior persons, replacing the current system of statements of principle and codes of practice. The new clauses will put in place new arrangements for regulating the conduct of individuals who are not covered by the senior persons regime. The arrangements will include provisions to allow the regulators to make rules covering financial services employees whose appointments are not subject to regulatory pre-approval.
My hon. Friend the Member for Bedford (Richard Fuller) is absolutely right: it is plausible that the deficiencies in the approved persons regime may affect not just the banking sector but other parts of the financial services industry. The relevant FSMA provisions apply to all parts of the sector, so it might be operationally simpler to apply the regime to the industry as a whole. The Government will consider, with the regulators, whether the relevant provisions should allow for the wider application that my hon. Friend has in mind.
As the hon. Member for Kilmarnock and Loudoun said, new clause 3 would not deliver the extent of the reforms that the Parliamentary Commission on Banking Standards is seeking. On that basis, I hope that the hon. Lady will withdraw the new clause.
New clause 4 also reflects a debate that we had in Committee. The commission did not recommend the introduction of a fiduciary duty or duty of care, but it did recommend an alternative route. It said that the Department for Business, Innovation and Skills should consult on changing the duties of the directors of ring-fenced banks, to prioritise the safety and soundness of the firm first, over the interests of shareholders.
The Government strongly believe that bank directors must maintain an awareness of their responsibility to safeguard the security and stability of the firm. Changes that will support a focus on stability and soundness—for example, giving directors specific duties under the proposed senior persons regime—will help. We will indeed consult on whether changing directors’ duties will help further to accomplish those intentions. I hope that that will reassure the hon. Lady.
A duty of care specifically towards customers across the financial sector is difficult to make sense of, as we have previously discussed. Would it mean, for example, that a bank had a duty of care not just to its own customers and those of its competitors but, as the proposed duty is to customers across the financial sector, the customers of an insurance company with no relevance to the firm itself? The new clause has been tabled to confirm the Government’s intentions on the wider duties of banks and their directors, and I hope that the hon. Lady is satisfied.
New clause 5 refers to remuneration. Of course, the Government have already taken significant steps in that regard; under the remuneration code, large parts of bonuses must be deferred and paid in shares, and cash bonuses must be limited. However, it is a question of not just the quantum of bonuses, but how they are decided in the first place. Next year, shareholders will have a binding vote on executive pay.
We strongly support the proposals made by the parliamentary commission. In particular, the commission has recommended that the regulator should have the power to require a substantial part of remuneration to be deferred for up to 10 years when that is necessary for effective long-term risk management. There is a subtle but critical distinction between the commission’s recommendation and the new clause. The power should be with the regulator to determine whether and in what circumstances to require extended deferral; my hon. Friend the Member for North East Cambridgeshire made that point.
The commission has commented that no single deferral period is appropriate but that it should be determined in accordance with the nature of each business and the risks and activities of the employee in question. The Government agree and will ask the PRA to consider the powers that it has to extend deferral periods as part of its consultation on implementing the commission’s proposals. I hope that that commitment will reassure the hon. Member for Kilmarnock and Loudoun and that she will not feel the need to press the matter further.
New clause 7 deals with protections for whistleblowers. As the hon. Lady said, we debated this in Committee, so I do no want to detain the House further today other than to reassure her that, as I explained on that occasion, these provisions already exist in legislation. Disclosures about criminal offences are already covered by the Employment Rights Act 1996. Disclosures about regulatory breaches are covered by FSMA. This proposal would cover, for example, disclosures about the breaches of the regulatory requirements in relation to the ring-fence. I assume that the second requirement is designed to give effect to the commission’s proposal that a non-executive board member, preferably the chairman, should be given specific responsibility under the senior persons regime. Again, the powers to enact this are already available to the regulator under FSMA, and we have indicated that we support the thrust of these recommendations.
Greg Clark
This summer.
New clause 11 concerns the new criminal offence of reckless misconduct recommended by the parliamentary commissioner. As we have already announced, we agree with the commission’s recommendations and will over the summer draft amendments to create such a legally watertight criminal offence, including compliance with the European convention on human rights. As my hon. Friend the Member for Bedford suggested, the commission did not recommend retrospectivity, and these provisions are intended to enact its recommendations. I hope that he will understand that.
My hon. Friend the Member for Bury St Edmunds (Mr Ruffley) was absolutely right to point out that it was of course this Government who first raised the possibility of criminal sanctions for managerial misconduct in July last year. We are grateful to the commission for its extensive work. We will follow its advice on misconduct committed by persons covered by the regime that is being set up. The commission noted the legal challenges involved in mounting a successful prosecution, but we absolutely agree that the creation of this offence should be justified by the signal that it sends and the potential deterrent effects it can have. We have to make it clear that reckless behaviour by those in charge of our banks cannot be tolerated.
New clause 13 proposes to create a new financial services crime unit. A similar amendment was discussed at some length in Committee. I can assure hon. Members that the Government fully recognise the importance of tackling financial crime. There is to be a dedicated command within the new National Crime Agency responsible for directing the national response to economic and financial crimes. The economic crime command will have a clear remit to reduce the threat from economic and financial crimes, working collaboratively across the different sectors. Substantial progress has already been made in establishing the National Crime Agency and driving early operational success against criminals who seek to engage in economic and financial crimes.
The Government accept the broad recommendations of the parliamentary commission on each of these matters. We will be acting quickly to take the opportunity afforded by this Bill to make amendments that are legally watertight and likely to pass into law in the early part of next year, just six months after the parliamentary commission’s extensive report. In acting in this way, we are keeping faith not only with the recommendations of the parliamentary commission but with the urgency of the need to enact these reforms, which I commend to the House.
Stephen Barclay
We have had a full and constructive debate that builds on the cross-party nature of the work of the banking commission. That has been reflected in the consensual tone of hon. Members’ speeches. I am very reassured by the comments of my right hon. Friend the Minister about the Government’s willingness to look at the outcome that new clause 2 seeks, which is in line with the comments made by Members across the House. For that reason, I will not press the new clause to a vote but ask leave to withdraw it.
Clause, by leave, withdrawn.
New Clause 4
Duty of Care
‘At all times when carrying out core activities a ring-fenced body shall—
(a) be subject to a fiduciary duty towards its customers in the operation of core services; and
(b) be subject to a duty of care towards it customers across the financial services sector.’.—(Cathy Jamieson.)
Brought up, and read the First time.
Question put, That the clause be read a Second time.
Business without Debate
21:47 - The House divided: - Ayes: 274 / Noes: 214 - Question accordingly agreed to.
Care Services (Bradford)
(10 years, 9 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr David Ward (Bradford East) (LD)
The very first time that a son or daughter is asked by one of their parents, “And who exactly are you?”, is a chilling and frightening experience. It is a question of good days and bad days. In most cases there will be many good days—many fun days. It is not the end of the world, but it is very much the end of a world that the son or daughter knew. My hon. Friend the Minister is more conversant with the figures than I am, but they are startling for us as a nation. Some 800,000 people suffer from dementia. We are told that the figure will increase to 1 million in the next 10 years or so. The Alzheimer’s Society believes that the cost to us as nation of supporting those people is £23 billion, and that is with only half of those who have dementia being diagnosed with it.
However, I am here to tell a good story, about the work going on in Bradford. I would not be forgiven by Cathy Henwood, the dementia-friendly communities co-ordinator in the Alzheimer’s Society, if I did not point out that we were doing dementia-friendly work in Bradford before the Prime Minister’s challenge, which I will return to later. The dementia measures taken in Bradford have been well supported by the council. Stage one of the work included the recruitment of a small pilot group of organisations, such as the gurdwara, the Church of England, the community centre, a local branch of Lloyds TSB, a pharmacy and others. They were asked to review their organisations and write action plans. A checklist was produced by the Alzheimer’s Society to help them do that. That list was developed with people who had dementia and those who cared for people with dementia.
The second stage of the work is where my patch of Idle, where I live, came in. It is a village—yes, I was an Idle councillor for 26 years. The Alzheimer’s Society developed a community-based approach to supporting people with dementia which started in Idle and Thackley. The area happens to have three Liberal Democrat councillors, I am pleased to say, and they were determined to put together supportive structures for those with dementia in their ward development plans. Councillor Jeanette Sunderland leads the Lib Dem group. She and her colleagues Councillors Griffiths and Reid, working with the Alzheimer’s Society, held a community meeting on a bleak and snowy day in January—we do have some bleak and snowy days in Bradford in January. It was nearly cancelled but it went ahead despite the weather, and 40 participants turned up and 14 people signed up and agreed to stay involved. That meeting was partly for awareness raising, with a speaker who had dementia, and with information about the effects of dementia and how to help, and it was also partly a consultation, with discussion about what is good about living in Idle and what would be problematic for people with memory problems—what could be changed, and so forth.
A number of subsequent meetings have been held, as was a support group meeting, with both carers and those with dementia, at a volunteer event. All was going well. As of April, with some funding from the Joseph Rowntree Foundation and Bradford council, this work was looking to expand out of one ward out of the 30 in Bradford to work with 20 communities in total over a two-year period.
There was an announcement in the Telegraph and Argus about the Bradford District Dementia Action Alliance, which had brought together lots of groups and organisations, including the Yorkshire police, the Bradford royal infirmary and St Luke’s hospital, Bradford university and Bradford college. They have now been granted early adopter status for the dementia-friendly community recognition programme.
This is all really good news, added to which I believe it is important to congratulate the coalition Government on the focus they have placed on this, for example with the Prime Minister’s welcome launch of the dementia challenge. So far, so good, then.
The background to this at the national level is as follows. There is a £2.68 billion reduction in adult social care funding either so far or through to March 2014, and locally a 16% reduction over the last two years in adult and community service budgets, which amounts to £23 million in Bradford. A joint survey by Age UK and the College of Social Work found that 94% of people witnessed a squeeze on budgets for care services in the past three years, and 81% said they were seeing negative impacts on social care.
The Minister will, I am sure, refer to the Government funding that has recently been made available. That is focused on the crucial integration of health and social care, but integration can happen at any level of support, of course. Eligibility is the gateway to support; it provides the level at which a person can access support. As the Minister well knows, Bradford’s council is consulting on changing the criteria in Bradford, and that consultation will run until 4 August. I am pleased to say that on 15 July the former care Minister, my right hon. Friend the Member for Sutton and Cheam (Paul Burstow), will be coming to Bradford to launch the Bradford Cares campaign, which is supported by Scope. It is running a national campaign, but we will run a local version of it, in which we will seek to persuade the people of Bradford to support our campaign against the council’s proposed changes. We feel it is particularly relevant to those with dementia because, as the Minister knows, people with dementia are often physically able. With a little help and support, they are quite capable of looking after themselves.
When I was a councillor chairing the area committee we looked at the issues affecting elderly people and we assumed that they would relate to benefits, housing, adaptations and so on. It became evident that the crucial issue facing many elderly people was isolation, the impact of which, as we know, can lead to a deterioration in a person’s condition, particularly if they have dementia. Early intervention, not integrated intervention, is the key. This is about providing moderate care not only because it is relatively inexpensive, but because we know that investing in this form of support can save up to 130%.
If Bradford council’s decision goes through, it could well affect 2,000 people. We believe that if the council is doing this on the basis of concern about cost, it is very much a false economy, as it will cost the council more in the long term. I fear that despite the great strides that will be made by finally having integrated care systems, a change in eligibility thresholds will mean that hundreds of thousands of people will still not get the key early and preventive care about which I know the Minister cares passionately. They will not receive the care that they so desperately need and that is why it is so important to consider the eligibility criteria. As the Alzheimer’s Society has highlighted,
“setting the eligibility threshold at substantial will fail to make the shift to a system of prevention whereby people get the support they need to cope at home and avoid unplanned admissions to hospital and residential care.”
My Liberal Democrat colleagues on Bradford council have put down a motion for debate tomorrow, applauding the work that is going on in Bradford, particularly the Bradford District Dementia Action Alliance. We have had some cross-party coalition work on dealing with dementia, and I urge all Bradford councillors to support that motion, with the goal of making Bradford a dementia-friendly district by 2015. The dictionary definition of “to care” is to
“take thought for, provide for, look after, take care of”.
We must take care, and we must not care less.
I look forward in particular to the Minister’s response on integration. I know he sees it as a great opportunity, but my concern is that unless it operates at an appropriate level we will not only lose the savings that are possible through preventive work but see a deterioration in many people’s conditions and a growing cost. We are still at an early stage in the development of the health and wellbeing boards, and change is also happening in the national health service as a whole. These are risky days for many people, and although the additional funding to support integration must be welcomed, we must ensure that it is at the appropriate level.
The Minister of State, Department of Health (Norman Lamb)
I congratulate my hon. Friend the Member for Bradford East (Mr Ward) on securing the debate and on all the work he has done both in Bradford and to bring the stories from Bradford to a national forum. He has done more than anyone to highlight the importance of care services and working with the community to improve services for people. Indeed, the extraordinary consultation exercise he undertook following the White Paper last year was an exemplar of how to engage with the local community. The extent to which people felt able to comment and give their views and ideas was commendable.
I also congratulate the Bradford District Dementia Action Alliance on its work. My hon. Friend made the point that Cathy Henwood from the Alzheimer’s Society had identified Bradford as developing the concept of dementia-friendly communities before the Prime Minister’s dementia challenge, but I am pleased that he acknowledged that the Government have done a lot to highlight the importance of improving dementia care. The Prime Minister’s dementia challenge highlighted three strands: improving health and care services; creating dementia-friendly communities, which is exactly what is happening in Bradford; and a much greater focus on research so that we can find cures, understand better how to prevent some types of dementia, such as vascular dementia, and understand through research how best to care for people with dementia. The Government are more than doubling the amount spent on research, which is a good thing in itself.
The work about which my hon. Friend spoke started in the ward of Thackley—
Norman Lamb
Idle and Thackley—those wonderful names. Local councillors got the community involved and that is exactly what needs to happen. When we talk about how to meet the extraordinary challenges of the future, with an ageing community, there must ultimately be collaboration between statutory services and the community. Bradford appears to be showing the way in which that can be done and I stress that it requires the integration of services and care shaped around the needs of the individual with preventive care to stop the deterioration in their condition.
My hon. Friend will be aware of the need for the care and support system to change as local authorities face challenges resulting from an ageing population. That is why the coalition Government have decided to reform the system of care and support. He talked about the situation in Bradford and I understand that more than 71,000 people there are aged 65 and over, about 14% of its total population. Bradford’s joint strategic needs assessment for 2012 predicts that by 2033—not that far off—the number of local people over 90 will increase from 2,800 to 8,700, an increase of more than 200%. We all face an extraordinary challenge.
As we debate access to care and support services, I am aware that City of Bradford metropolitan district council sets its eligibility criteria at moderate. The report that my hon. Friend published earlier in the year indicated that 97% of people who replied to his survey welcomed setting the eligibility criteria at that level. Bradford council now proposes to change its band to substantial, because of pressures on its budget, and that would affect about 25% of people who currently receive care and support. I completely understand that the Bradford Cares campaign wishes to ensure that services are maintained at the existing level.
The care and support White Paper, which was published in July 2012, is an important and fundamental step towards addressing the challenges of an ageing society. Our reforms will focus more attention on people’s well-being—that is at the centre of everything that the Care Bill tries to achieve—and independence throughout their lives, rather than waiting for people to reach crisis point. They will also put people in control by giving them a far greater say about their care and support, as well as by ensuring that services are designed around what people actually want and by putting their priorities and preferences above and beyond the needs of the institution. My hon. Friend will be aware that the Care Bill, which has been widely welcomed, will be a single, modern statute for care and support. It will make legislation clearer and fairer, and it will be built around people not processes, and individuals not institutions.
As the Government’s White Paper made clear, our vision is a modern care and support system that promotes people’s well-being by enabling them to prevent and postpone the need for care and support, and puts them in control of their lives so that they may pursue opportunities, including education and employment, and realise their potential. Assessments will remain an integral part of the system, but rather than acting primarily as a gateway to the adult receiving care and support—or not, if they fail the assessment—the future system will place much more emphasis on the role of the assessment process in supporting people to identify their needs, to understand the options available, to plan for meeting care needs and caring responsibilities, and to reduce or delay needs, when possible.
Any adult who appears to the local authority to have care and support needs, whatever the level of need, has the right to an assessment. That right will cover carers, so this is an extension of their existing rights. The low threshold for entitlement to an assessment will mean that authorities will have earlier contact with far more people with low-level needs.
Mr Ward
May I say how much I welcome the policy on the assessment of carers? Many carers who visit my constituency office are on the verge of needing care themselves because of the stress that they are under. It is the failure to identify their personal needs and the support that they require that puts them in such a stressful position.
Norman Lamb
My hon. Friend is absolutely right. The Care Bill’s provisions on carers represent an enormously welcome advance. In a sense, they will give carers the same entitlements to assessment and then support, if that is deemed necessary, as the people for whom they care.
The “Fair access to care services” framework was introduced in 2003. It aimed to provide a fairer and more transparent system for the allocation of social care services. The assessment and eligibility framework was reproduced in the “Putting People First” guidance that was published in 2010. The current assessment and eligibility framework is graded into four bands: critical; substantial, which is the case for most local authorities; moderate, which applies to Bradford and some 15 other authorities; and low, which covers only two or three councils. Local authorities can choose which band they wish to set for their local criteria, and Bradford has the legal power to change its eligibility criteria, as long as it consults its local community.
People continue to tell us, however, that the process for determining who is eligible for care and support is confusing and unfair. Decisions are not transparent and there is variation across the country, and the end result is that people can be left without the support that they need. The existing assessment and eligibility framework is therefore not working effectively, and that is widely recognised. That is why we are introducing a national minimum threshold for eligibility through the Care Bill. The Bill will set out the eligibility criteria—the point at which local authorities must meet an adult’s care and support needs, or a carer’s support needs. Local authorities will remain able to meet lower needs locally, if they choose to do so.
On 28 June, we published a set of draft regulations that set out the national eligibility criteria. These are intended to describe an equivalent level to the “substantial” level used by the vast majority of councils. We have committed to providing funding that will maintain the same level of services when authorities move to the new system in April 2015. This is the beginning of engagement with stakeholders before we formally consult on the regulations next spring. I assure my hon. Friend that the setting of the threshold is about establishing a minimum standard, not taking away councils’ discretion to go further. Of course, the more preventive care that can be given, the better, because that improves well-being and ultimately reduces the cost to the system, which is exactly the point that he made.
Under the current spending review, local authorities should be able to protect access to care, but we know that not all the money that was earmarked for care services has been spent in that way. Ultimately, spending on social care is a matter for local people in local authorities, and councils such as Bradford have to make tough decisions. However, we cannot improve care and support simply by throwing ever more money into the system; on the contrary, we need to work in more innovative and effective ways, exactly as is happening in Bradford, where there is really impressive work on dementia-friendly communities. That is exactly the sort of collaboration that we need to encourage.
Local authorities across the country have already been redesigning services to find more efficient ways of working. For example, many local authorities are concentrating on better integration between health and care services, improving co-operation and reducing duplication. That means better use of money, and improved care.
My hon. Friend referred to this year’s spending review settlement. It includes a £3.8 billion pooled health and social care budget to make sure that everyone gets a proper, joined-up service, and the care that they need from whoever is best placed to deliver, whether that is the NHS or the local authority. The £3.8 billion fund, shared between the NHS and local authorities, will deliver integrated services more efficiently for older people and, crucially, disabled people. It covers ensuring that health and social care work together to improve outcomes for local people, through better sharing of information, so that people need explain their problems only once; intervening early, so that older and disabled people can stay healthy and independent at home, avoiding unnecessary hospital admissions and reducing visits to accident and emergency departments; and delivering care that is centred on the individual, rather than on what the system wants to provide. Examples include NHS and social care staff working together to provide seven-day working, and better data-sharing to ensure that people can leave hospital as soon as they are ready.
The Care Bill includes a duty to provide preventive services; that is exactly the sort of thing that my hon. Friend is advocating for Bradford. That new duty on local authorities is seen by many people as potentially transformative. The White Paper sets out our ambition for health care and support to be organised around the needs of the service user, rather than focusing on organisations and services. We want a reformed system, in which organisations work together to give individuals real control and choice over the care that they receive. Good practice already exists, and we need to learn from and build on that.
I understand that Bradford’s clinical commissioning groups are working with Bradford council to deliver a three-year integration programme, which will cover all the services that help to support people so that they can remain at home, stay in their community, and regain and retain their health, well-being and independence. We want to encourage and support local experimentation, to allow areas to provide integrated care at scale and pace. We are working to support local initiatives and to identify what needs to happen to drive change at the national level. We want to learn what works well and how to overcome barriers, and to pass those lessons on to others.
On 14 May, the national partners in health care and support, including the Department, published a document entitled “Integrated Care and Support: Our Shared Commitment”, which sets out 10 commitments that the national partners have made to enable and encourage change to scale and pace, as well as expectations on local areas in return. The national partners have invited the most ambitious areas to apply to become pioneers and act as exemplars to address local barriers and support the rapid dissemination, promotion and uptake of lessons across the country. The national partners will provide the pioneer sites with dedicated central support to help them to break down barriers to delivering integrated care and support.
It is really exciting that the coalition is acting to end that long, historical divide between health and care services and, indeed, between mental and physical health services. The potential for integrated care, with a focus on prevention, and collaboration between the statutory services provided by the national health service and the local authority and the community, exactly as is happening in Bradford, can provide the early intervention that my hon. Friend discussed, and it can address isolation. He mentioned that pernicious problem. Many people live on their own, and often lead lonely lives and, as he said, both their mental and physical health deteriorates. If we can get the community to support the statutory services, providing companionship and friendship, and giving people a better life, the combination with a much more joined-up service from the statutory services can achieve the breakthrough that he described in his community.
I conclude by applauding the impressive community work in Bradford, which began in one local community, but which has the potential to spread to 20 other local communities. That is exactly what should be done, and with the support of the Care Bill, we can make that a reality, not only in Bradford but across the country.
Question put and agreed to.
Objections to a free school (Edgware)
Written Statements
ECOFIN
(10 years, 9 months ago)
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The Chancellor of the Ex chequer (Mr George Osborne)
A meeting of the Economic and Financial Affairs Council will be held in Brussels on 9 July 2013. The following items are on the agenda to be discussed.
Presentation of the Lithuanian Presidency Work Programme
The presidency will present its six-month work programme for ECOFIN.
Follow-up to the European Council on 27-28 June 2013
Ministers will hold an exchange of views on the June European Council conclusions.
Adoption of the euro by Latvia
Following the recommendation adopted at June ECOFIN and the positive assessment of Latvia’s convergence programme and criteria at European Council, ECOFIN will adopt the legal acts concerning the adoption of the euro by Latvia.
Implementation of the two-pack
The Council will seek to endorse the code of conduct for the euro area member states on draft budgetary plans and the Council will be invited to confirm its intention not to raise objections to the delegated regulation proposed by the Commission, on content and scope of the reporting obligations for euro area member states subject to an excessive deficit procedure.
Follow-up to G20 Finance Deputies meeting on 6-7 June (St Petersburg) and preparation of G20 Meeting of Finance Ministers and Governors of 19-20 July (Moscow)
The presidency and the Commission will debrief Ministers on the G20 Finance Deputies meeting. Council will then be invited to endorse the EU terms of reference for the forthcoming G20 Finance Ministers’ and Central Bank Governors’ meeting.
Any other business—Current legislative proposals
The presidency intends to give a state of play update on the market abuse directive/market abuse regulation.
Education Reform (National Curriculum)
(10 years, 9 months ago)
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The Secretary of State for Education (Michael Gove)
On 7 February this year, I made a statement outlining the next stage in our programme of raising standards in schools. I outlined draft programmes of study for a revised national curriculum, a new approach to qualifications for secondary school students and also a new and fairer way of holding schools to account for the quality of their teaching.
No national curriculum can be modernised without paying close attention to what is been happening in education internationally.
Officials in the Department for Education have spent years examining and analysing the curricula used in the world’s most successful school systems such as Hong Kong, Massachusetts, Singapore and Finland.
Informed by that work and in consultation with subject experts and teachers the Department produced a draft revised national curriculum, which we put out for public consultation five months ago.
We have given all the submissions we received during the consultation period close and careful consideration, and today we are publishing a summary of the comments received and the Government’s response.
We are also publishing a revised national curriculum framework for all subjects except key stage 4 English, mathematics and science.
Copies of each of these documents have been placed in the Library of the House. A consultation on key stage 4 English, mathematics and science will follow in the autumn, once decisions on GCSE content for those subjects have been taken.
The publication of our proposals provoked a vigorous and valuable national debate on what is, and what should be, taught in our schools. We have welcomed this debate.
It is right that every member of society should care about the content of the national curriculum, not only because it helps to define the ambitions that we set for our young people, but because of what it says about the knowledge that we, as a society, think it is essential that we should pass down from one generation to the next.
The updated national curriculum framework that we are publishing today features a number of revisions to the draft made on the basis of evidence and arguments presented to us during the consultation period. In particular we have revised the draft programmes of study for design and technology to ensure that they sufficiently reflect our aspirations that it should be a rigorous and forward-looking subject that will set children on a path to be the next generation of designers and engineers.
We have also revised the programmes of study for history. We have given teachers a greater level of flexibility over how to structure lessons and we have increased the coverage of world history, while also requiring all children to be taught the essential narrative of this country’s past.
Other significant changes include the inclusion of a stronger emphasis on vocabulary development in the programmes of study for English and greater flexibility in the choice of foreign languages which primary schools will now be required to teach. And perhaps the most significant change of all is the replacement of ICT with computing. Instead of just learning to use programmes created by others, it is vital that children learn to create their own programmes.
These changes will reinforce our drive to raise standards in our schools.
They will ensure that the new national curriculum provides a rigorous basis for teaching, provides a benchmark for all schools to improve their performance, and gives children and parents a better guarantee that every student will acquire the knowledge to succeed in the modern world.
Having confirmed our intentions for the new national curriculum we are, in accordance with the legislation that underpins it, commencing a one month consultation on the legislative order which will give it statutory effect. Subject to the outcome of that consultation, we intend to finalise the new national curriculum this autumn so that schools have a year to prepare to teach it from September 2014.
British Indian Ocean Territory
(10 years, 9 months ago)
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The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mark Simmonds)
On 20 December last year my right hon. Friend the Foreign Secretary announced that we would take stock of our policy on the resettlement of the British Indian Ocean Territory (BIOT). I wish to update the House on this process.
This Government have expressed their regret about the way resettlement of BIOT was carried out in the late 1960s and early 1970s. We do not seek to justify those actions or excuse the conduct of an earlier generation. What happened was clearly wrong, which is why substantial compensation was rightly paid. Both the British courts and the European Court of Human Rights have confirmed that compensation has been paid in full and final settlement.
Decisions about the fixture of the BIOT are more difficult. Successive British Governments have consistently opposed resettlement of the islands—on the grounds of both defence and feasibility.
The Government must be honest about these challenges and concerns. Long-term settlement risks being both precarious and costly. The outer islands, which have been uninhabited for 40 years, are low-lying and lack all basic facilities and infrastructure. The cost and practicalities of providing the levels of infrastructure and public services appropriate for a 21st century British society are likely to be significant and present a heavy ongoing contingent liability for the UK taxpayer.
However, the Government recognise the strength of feeling on this issue, and the fact that others believe that the resettlement of BIOT can be done more easily than we have previously assessed. We believe that our policy should be determined by the possibilities of what is practicable.
I am therefore announcing to the House the Government’s intention to commission a new feasibility study into the resettlement of BIOT.
While we believe that there remain fundamental challenges to resettlement, we are resolved to explore these in partnership with all those with an interest in the future of BIOT. We are determined that this review will be as fair, transparent and inclusive as possible, so that all the facts and factors affecting the issue of resettlement can be shared and assessed clearly.
As part of the process, officials are meeting with a wide range of interested parties, including Chagossian communities in Mauritius, the UK and in the Seychelles. We know that there are strong views and expertise within the House and we welcome contributions from all.
The results of these consultations will inform directly the detailed shape of the new study. Though this will be a study commissioned by the Government, we will ensure that independent views from all interested parties will be used when considering how we take the study forward. Our intention is to make the remit of the study of resettlement as broad as possible, so that all the relevant issues—practical, financial, legal, environmental, and defence matters—are given full and proper consideration.
It is important that we take this forward carefully. The last feasibility study 10 years ago took 18 months. The new study is unlikely to be concluded any more quickly. I will update the House once the initial consultation has been concluded.
Proceeds of Crime Act 2002 (Annual Report)
(10 years, 9 months ago)
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The Minister of State, Home Department (Mr Jeremy Browne)
My right hon. Friend the Home Secretary has today laid before Parliament the 2012-13 annual report of the appointed person under the Proceeds of Crime Act 2002. The appointed person is an independent person who scrutinises the use of the search power to support the measures in the Act to seize and forfeit criminal cash.
The report gives the appointed person’s opinion as to the circumstances and manner in which the search powers conferred by the Act are being exercised. I am pleased that the appointed person, Douglas Bain, has expressed satisfaction with the operation of the search power and has found that there is nothing to suggest that the procedures are not being followed in accordance with the Act.
From 1 April 2012 to the end of March 2013 over £65 million in cash was seized by law enforcement agencies in England and Wales under powers in the Act. The seizures are subject to further investigation, and the cash is subject to further judicially approved detention, before forfeiture in the magistrates court. These powers are a valuable tool in the fight against crime and the report shows that the way they are used has been, and will continue to be, monitored closely.
Grand Committee
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)
Good afternoon, my Lords. I remind the Committee that, in the event of a Division in the Chamber, the Committee will adjourn for 10 minutes from the sound of the Division Bell.
Public Bodies (Abolition of the Registrar of Public Lending Right) Order 2013
Lord Gardiner of Kimble
That the Grand Committee do report to the House that it has considered the Public Bodies (Abolition of the Registrar of Public Lending Right) Order 2013.
Relevant documents: 2nd Report from the Secondary Legislation Scrutiny Committee, 2nd Report from the Joint Committee on Statutory Instruments.
Lord Gardiner of Kimble
My Lords, the Government are proposing to use the powers in the Public Bodies Act 2011 to abolish the registrar and transfer its public lending right functions to the British Library. Both the registrar and the British Library are non-departmental public bodies of the Department for Culture, Media and Sport.
The Public Bodies Act 2011, which received Royal Assent in December of that year, is the legislative vehicle resulting from a 2010 government-wide review of all public bodies. Its overriding aims are to increase transparency and accountability, cut out duplication of activity and discontinue unnecessary activities. In conducting individual reviews of their own public bodies, departments were asked first to address the overarching question of whether a body needed to exist and whether its functions needed to be carried out at all and, following from this, whether it met specific tests that would justify its retention.
The department was of the view that the public lending right functions must be maintained as they are required by law, but that it was not necessary for the registrar to be retained as a stand-alone public body in order to carry out those functions. Therefore, options for a suitable, and more efficient and economical, home were explored.
Perhaps I may give some brief background on the public lending right scheme and the public body managing it, formally known as the Registrar of Public Lending Right. The position of registrar was established by the Public Lending Right Act 1979, which gave authors a legal right to receive payment for the free lending of their books by public libraries. Under the 1979 Act, funding is provided by central government, and payments are made to eligible authors and other rights holders in accordance with how often their books are lent out from a sample of UK public libraries. The registrar is a corporation sole and is appointed by the Secretary of State for Culture, Media and Sport to maintain a register of eligible rights holders and books, and to supervise the administration of the scheme. Around 23,000 rights holders receive a public lending right payment each year, up to a maximum of £6,600.
The registrar receives grant in aid from the department to fund both the administration costs and the payments to authors. Given the current economic climate, the decision was taken in October 2010 to reduce the resource grant-in-aid budget for public lending right by 15% in real terms over the spending period from April 2011 to April 2015, and the proportion of grant in aid used to administer the scheme was capped at £756,000 a year. With the registrar currently operating at near maximum efficiency, and given the limitations in efficiency savings that a body of its kind could make, this necessitated some radical thinking in order for the public lending right scheme to operate within its new budget while minimising the effect of the reduction in funding on authors.
Transfer of the public lending right functions to the British Library emerged as the preferred option because it fulfils the Government’s aims of maximising the efficiency, economy and effectiveness of the public lending right scheme and reducing the number of public bodies. The transfer offers greater efficiency savings than are achievable by a stand-alone body the size of the PLR. The transfer is expected to save £750,000 in real terms over 10 years and therefore maximises the proportion of available grant in aid which could be allocated to authors.
This low-risk transfer will retain the operation and workforce in Stockton-on-Tees, which is working well at present and is highly valued by respondents to the consultation, and the increased efficiency and economy of the scheme will benefit PLR rights holders. Furthermore, the transfer would not only ensure continuity of efficient systems and processes but would develop a more solid infrastructure, which the larger organisation enables.
Subject to the approval of Parliament, it is expected that the abolition of the registrar and transfer to the British Library will take effect on 1 October 2013. The current registrar will be contracted by the British Library from the transfer date for an appropriate period of time, likely to be until March 2015, to ensure a smooth transition and successful transfer of knowledge.
I turn now to the scrutiny given to this order, which was laid before Parliament on 9 May. Orders under the Public Bodies Act have a minimum 40-day scrutiny period, with a committee of either House able to extend this to 60 days if that is felt necessary. This order has been scrutinised by several Select Committees: in your Lordships’ House by the Secondary Legislation Scrutiny Committee; in another place by the Culture, Media and Sport Select Committee; and collectively by the Joint Committee on Statutory Instruments. None of these triggered the optional 60-day extended scrutiny period.
The Secondary Legislation Scrutiny Committee reported on this order on 23 May. The committee was satisfied that the order met the four tests set out in the Public Bodies Act, noting in particular the strong case of increasing economy. The Act states that a Minister may make an order,
“only if the Minister considers that the order serves the purpose of improving the exercise of public functions”,
having regard to: securing accountability to Ministers, which the order achieves by amending the British Library Act 1972 to stipulate that its annual report must include a report on the PLR scheme; efficiency, which the order achieves by enabling the more efficient running of the PLR scheme through a larger non-departmental public body, with all the advantages of shared back-office services and economies of scale; effectiveness, which will be maintained as authors will continue to receive the same high-quality service already provided by the PLR office; and economy, with the savings in running costs to maximise the proportion of grant in aid available for distribution as PLR payments.
The committee recommended that the department should carry out a review of the effectiveness of the post-transfer arrangements in spring 2016; that is, within a year of the end of the transition period. The department acknowledges the conclusions of the committee and has taken on board the views expressed; in particular, it agrees with the recommendation to review the transfer in 2016.
The department remains committed to the public lending right scheme, which is a source of income for many authors and other rights holders. The value that the Government place on the PLR scheme was evident in the recent announcement that the scheme will be extended to cover on-site loans of e-books and audiobooks, with effect for loans from July 2014. PLR will continue to evolve in line with technological advances in public libraries, and the department is committed to ensuring that the scheme continues to be managed as efficiently and economically as possible, for the benefit of authors.
In challenging economic circumstances, the transfer offers the best means of safeguarding the future of the scheme and maximising the proportion of available grant in aid to be distributed to authors, thereby supporting and rewarding their creativity at the same time as offering better value for money to the taxpayer. Therefore, it is right that the functions should be transferred to the British Library, and I commend this draft order to the Committee.
Lord Stevenson of Balmacara
My Lords, I want to start where the Minister finished, by welcoming the extension of the PLR to e-books and audiobooks on-site. This was subject to much discussion in the Chamber a few weeks ago, when the Minister was not able to give us an assurance one way or another, but, since then, other events have intervened. The Chancellor’s announcement in the recent spending review was very welcome. However, I note that this applies only to e-books and audiobooks borrowed on-site. It still leaves open the question of how the PLR is to be extended—if, indeed, it is to be extended—to those borrowed through the web or alternative ways yet to be discovered. Given the way in which the technology is moving, e-books will not be requested in terms of their physical presence in the library. Perhaps the Minister could respond to that when he sums up this debate.
I would also like to praise the way in which the department has gone about this operation. It has been a long time since I have read such a good consultation exercise. I am constantly coming up against them in secondary legislation debates, where they are sometimes somewhat perfunctory in approach. This seemed to be a genuine consultation which offered real alternatives and suggested possibilities available for those who wished to consult. It is a model of its type. The department should be very pleased that it has been bold enough to try to take this all the way out and to take responsibility for the answers that came back.
The problem with a consultation as open as this is that it might get answers back that, perhaps, the department was not looking for. It is therefore not altogether surprising to discover that nearly 95%, I think, of those who responded were against what the department was proposing. Given that the department consulted authors and others interested in the written word, the responses were somewhat well written, rather redolent of deeper and other worries, and must have made rather uncomfortable box reading for the Minister when he came to review them. Not surprisingly, the department has found a way of eliding any real criticism from approaching its proposed solution. It will not take account of the consultation or, indeed, the very singular report that came in from those who were consulted. I am sorry about that. It is quite clear that this measure does not command support among those who were consulted.
That raises the question of why this is being done. Is it because the department wants to reduce the number of its bodies? I find that rather surprising because it was clear throughout both the consultation exercise and, indeed, the reports of the various committees of your Lordships’ House and the other place that have looked at this, that the registrar does a good job and has done it with considerable economy. There are no apparent suggestions that the registrar is at fault in any of the ways in which it is going about its job. The registrar is regarded as a friend of the authors and seems to have good relationships also with the public libraries that have to come up with the funding as a result of the lending and to work with a very small staff and a very inexpensive foundation in Stockport. The registrar seems to be doing a very good job indeed.
It is relevant that the jobs have been located to a relatively poor area of the country, and it is good that there are jobs of this high calibre there involved in such good activity. It is therefore a bit surprising that the department does not recognise that, by making this change, we are also introducing some risk about whether those jobs will continue. The real essence of what is requested at the heart of this proposal is that costs be reduced rather than that the number of bodies be reduced, because the transfer is actually being made to the British Library. Although it looks as though we are losing one body and simply absorbing it into another, it is clearly a different function which must be added on to the existing work of the British Library. To some extent, therefore, there is not really a reduction in its activity or the management spread in which it will be involved.
On the cost argument, which I presume has been part of this, there will also be costs in the British Library. The change seems to be financed by the reduction of one post—that is, the loss of the registrar post. Indeed, the whole operation seems to revolve around the fact that the cost of that post will no longer be counted against departmental spend. Of course, when the Minister introduced this, he made clear that it was now unlikely to result in savings until March 2015, which perhaps cuts into the overall savings that have been requested. Several respondents and both committees which have looked at this have pointed out that the existing provision in the registrar’s office is extremely efficient. When the House of Commons reviewed this in May, it said:
“So far the office of the Registrar has been successful in keeping its operating costs below the budget cap of £756,000 per annum which was set at the last comprehensive spending review. Operating costs in 2011/12 represented 11.6% of the PLR payments … made to authors”.
It goes on to say:
“The Registrar has identified savings that will bring annual running costs down further … from 2014/15 onwards”,
which seems to be well within the 15% real-terms reduction that was requested by the department.
Lord Gardiner of Kimble
My Lords, first, I thank the noble Lord for his generous opening remarks. I have studied a number of the consultation replies and, indeed, it has been a thorough piece of work. The noble Lord asked a number of questions with which I would like to deal.
On the extension of the PLR to remote loans of e-books, to put that in some sort of context, in 2011-12 almost 9 million audiobooks were borrowed, compared with 850,000 e-books. For the moment, therefore, audiobooks will be an important advantage for authors, although we absolutely need to ensure that, as technological changes emerge and increase, we recognise that there may need to be some further consideration. One of the main issues with which we would need to wrestle if there were to be consideration of extending PLR to remote loans is that any amendment we would seek to pursue to extend that right to incorporate remote lending would be subject to consideration of whether it would be compatible with the copyright directive. We would need to look into those matters. However, I am alive to the fact that this is very much an issue.
For the record, the registrar is based in Stockton-on-Tees, not Stockport. As the noble Lord says, the British Library is in Boston Spa, so they are two northern locations. It is fair to say that the department was very conscious of the responses, which is why, among other things, the British Library is retaining the current office in Stockton-on-Tees and authors will continue to receive that same service. As I have also mentioned, I want to acknowledge Dr Parker, the registrar, who will continue until 2015. That continuity is important to reassure authors and public lending right holders.
The other point is that the transfer is expected to save £0.75 million in running costs, in real terms, over 10 years. Minimising the cost of running the scheme maximises the proportion of grant in aid that will be available to be distributed as public lending right payments. We are trying to calibrate it so that the authors get as much as possible. The British Library is a larger non-departmental public body, which will help provide a solid infrastructure for the work that we think is very important to safeguarding the future of the scheme.
I can give categorical reassurances that there is a considerable desire to ensure continuity and that authors and public lending right holders are safeguarded. There is also the good news that we will extend, from next year, the loans of audiobooks and e-books on-site from public libraries. It is an advance, at least. The department is right in safeguarding the scheme but also maximising the available proportion of grant in aid. I commend the draft order to the Committee.
Producer Responsibility Obligations (Packaging Waste) (Amendment) Regulations 2013
(10 years, 9 months ago)
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Lord De Mauley
That the Grand Committee do report to the House that it has considered the Producer Responsibility Obligations (Packaging Waste) (Amendment) Regulations 2013.
Relevant document: 5th Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley)
My Lords, this instrument seeks to correct an error in the 2012 regulations. The error concerns the formula used for calculating the glass remelt recycling target for producers of glass packaging. The consequence is that the proportion of producers’ glass obligations that have to be met by evidence from remelt applications is inadvertently higher than the intended 63% for 2013-15. This instrument corrects that mistake by substituting an amended formula which ensures that the 63% glass remelt target is correctly applied to a producer’s glass recycling obligation for 2013-15 and 64% for 2016-17. My officials have worked with the Environment Agency to correct the error and to check that no further changes are needed to the 2012 regulations.
Prior to the 2012 regulations coming into force, Defra carried out a written consultation, with officials engaging with a broad range of representatives from industry, regulators and other interested parties. The consultation included the correct target of 63% but the draft regulations accompanying the consultation contained the error, which went unnoticed at the time. To correct it, we recently completed a public consultation on this revised draft instrument. We invited views on the plans to correct the error and there were no responses.
In practical terms the error has had no impact on business, with UK environment agencies using a correct version of the formula and enforcing against the intended 63% target. This instrument does not impose any new burden on any business. However, I apologise unreservedly for the error and hope that I have adequately explained that this instrument is intended to do no more than correct a mistake. I commend the draft regulations to the Committee.
Lord Knight of Weymouth
My Lords, I am grateful to the Minister for introducing these regulations, and in particular for his apology. He will not be surprised, and may be relieved, to know that I do not oppose them since obviously it is appropriate to correct the error. Indeed, when I first looked at the regulations I naively did what people do, and that is simply to look at them. Of course, there is no mention of the error. I looked at the impact assessment, where again there is no mention of the error. My first question to the Minister, therefore, is what has been the impact of the error? What has been the cost to the taxpayer of getting this wrong and having to reconsult, even though there were no responses to the consultation?
The Explanatory Memorandum is perfectly clear: the instrument corrects an error in the formula for calculating the glass remelt recycling target for producers of glass packaging. He is not yet on his feet in the other place, but we anticipate from the media that the Secretary of State for Education will shortly be announcing changes to the national curriculum, among which will be that primary school children will have to learn their fractions. It is worth asking when Ministers will learn theirs too, so that we do not make these errors in the future.
The regulations are fine and they do a perfectly good job. I note in passing that these are regulations which the Government support—and that occasionally the Government support regulation. These are also regulations from Europe—and occasionally the Government support regulations from Europe. These are also regulations that gold-plate EU regulations, so there are times when the Government support the gold-plating of EU regulations. As I say, that should just be noted in passing. Having dealt with these regulations around a year ago, we are here because an error was made, so my only question of any substance for the Minister is: how much is it costing us?
Lord De Mauley
My Lords, as always, I am most grateful to the noble Lord for his comments. Before I address them, perhaps I could say that the target we are talking about offers both economic and environmental benefits for the United Kingdom. As valuable resources for our industries become scarcer and more expensive, we need processes in place to recycle and recover them in order to retain as much of their value as we can in the economy. Indeed, the Government want the United Kingdom to move towards a zero waste economy; that is, an economy where resources are fully valued. We want to see material resources reused, recycled or recovered wherever possible, and only disposed of as a last resort. The targets in these regulations play an important part in achieving this ambition. They will help the UK to go further in recovering the value of discarded packaging materials and help to tackle the wasteful practice of burying these resources in landfill. Overall, we estimate that the whole package of targets will provide a net benefit of over £180 million to the UK economy over the period from 2013 to 2017. Over 95% of those benefits will come from revenue generated from recycled materials. We will also see greenhouse gas savings associated with diverting waste from landfill and energy savings from replacing virgin materials with recycled ones.
The Government recognise that the economic benefits will not be shared by all. These regulations will place an increased cost burden on the producers of packaging materials. However, the recycling targets will help to support wider growth and the creation of jobs in the recycling sector. I am pleased to say that when we consulted on the regulations, most businesses, including the majority of those on which the increased costs will fall, supported our approach. As I said, I am sorry for the error made in the 2012 regulations and I thank the noble Lord for taking the time to debate this instrument today. It will permit producers to continue to meet their obligations under the correct glass remelt recycling target.
We have not calculated the cost of correcting the error. I do not anticipate that it will be material. It will consist basically of official time to check the regulations and prepare amended regulations. As I said in my opening speech, the effective cost of the correction is nil, because everybody has been operating on 63% anyway. The only other thing I would say to the noble Lord is that I always enjoy being ragged by him about my mathematics. With those comments, I commend the regulations.
Natural Resources Body for Wales (Consequential Provision) Order 2013
(10 years, 9 months ago)
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Baroness Randerson
That the Grand Committee do report to the House that it has considered the Natural Resources Body for Wales (Consequential Provision) Order 2013.
Relevant document: Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson)
This order was laid before the House on 3 June 2013. First, I apologise to noble Lords for an error that appeared in paragraph 3.2 of the Explanatory Memorandum. The memorandum omitted to note that Part 7 of the draft order will apply retrospectively from 1 April 2013. Part 7 concerns transitional and savings provisions. This is in line with the provisions for Parts 1 to 5, and Articles 29 to 31. This administrative error has been amended, and corrected versions are now available.
The order is made under Section 150 of the Government of Wales Act 2006, which allows for consequential amendments to primary and secondary legislation in consequence of provisions made by an Assembly Act or subordinate legislation. The order is made as a consequence of the Natural Resources Body for Wales (Functions) Order 2013, brought forward by the Welsh Ministers, which was approved by the National Assembly on 19 March 2013. I shall refer to this as the functions order. The order transferred functions in relation to Wales from the Environment Agency and the Forestry Commission to the new body, Natural Resources Wales. It also abolished the Countryside Council for Wales and transferred its functions to the new Natural Resources Body for Wales.
This consequential order provides for the completion of legal arrangements for the Environment Agency, the Forestry Commission and Natural Resources Wales to operate together in their respective areas in the most effective and efficient manner. For example, it makes provision to remove Welsh Ministers from the appointment and funding of the Environment Agency and the Forestry Commission. It also amends the Environment Act 1995 to ensure that the new Natural Resources Body for Wales can make appropriate charging schemes in relation to the EU Emissions Trading Scheme, and that the Environment Agency and the Natural Resources Body for Wales can make cross-border arrangements for cost recovery and charging for water abstracting licences.
In preparing this consequential order, the Wales Office worked closely with the Department for Environment, Food and Rural Affairs and other key UK government departments, as well as the Welsh Government. We are all agreed that the provisions in this order are necessary to ensure that Natural Resources Wales can exercise its functions to fulfil its remit and co-operate effectively with its counterpart organisations across the UK.
This order is also important to the UK. Without it, the Environment Agency and Forestry Commission in England will be unable to delegate their functions to the Natural Resources Body for Wales and similar bodies across the border, and would therefore be unable to fulfil their remit efficiently and cost-effectively. For example, in the event of a pollution incident in Wales that impacted on England, the Environment Agency in England would not be able to delegate the clean-up to the Natural Resources Body for Wales. This could result in unnecessary duplication of decision-making and deployment of staff, and a waste of Environment Agency resources. That is just one example of the importance of this order to both the UK and Welsh Governments.
This order demonstrates the UK Government’s continued commitment to working with the Welsh Government to make the devolution settlement work. I hope that noble Lords will agree that this order is a sensible use of the powers in the Government of Wales Act 2006 and that the practical result is something to be welcomed. I commend this order to the Committee.
Lord Knight of Weymouth
My Lords, I am grateful to the noble Baroness for introducing the order so clearly. She will perhaps be relieved to know that I have not suddenly taken on shadow Welsh Office responsibilities but that in the comradely spirit of the Front Bench I am helping out and using my experience in shadowing Defra to have a look at the order and make sure that everything is as it should be from our point of view.
I can say from the outset that we are supportive of the order. From my reading of the Explanatory Notes and the other documentation, it appears that all the consultations have been carried out well by the Welsh Office and the Government. Obviously, the order brings forward measures that have come from the Welsh Assembly Government and we would not want to get in the way of their fine work.
Therefore, my only question to the Minister—and not wanting to delay the Committee—is that the merging of the devolved functions of the Environment Agency and the Forestry Commission with the Natural Resources Body for Wales will produce some interesting learning for the rest of the United Kingdom in terms of joined-up working in this area. Does the Minister know of any mechanisms that the Environment Agency, the Forestry Commission or indeed Defra will be putting in place to ensure that we can learn those lessons and see whether or not there are aspects of joint working that we could do better here as this new body proceeds in Wales? It is not always fashionable, I know, for us in England to learn from Wales—sometimes it is more likely for Ministers to be sent to New Zealand than across the Severn Bridge—but there are things that we could learn from our friends in the devolved Assembly and I would be interested in the Minister’s response.
Baroness Randerson
I thank the noble Lord, Lord Knight, for his positive words in support of this order. Referring specifically to the noble Lord’s question, it is very much the case that close and co-operative working will continue between the Environment Agency, the Forestry Commission and the new Natural Resources Body for Wales. It is essential that that close co-operation will continue, from the perspective of both England and Wales.
First, there will be training co-operation, which will greatly benefit the new body in Wales because it will be able to call upon training opportunities in England, where the numbers undertaking training are very much larger and therefore there is a wider range of opportunities. Close working is also very important because, of course, rivers do not follow national boundaries. The organisations concerned—the predecessor organisation in Wales and the continuing organisations in England—are used to working together and co-operatively in order to reduce costs. They work across border when there is agreement and it is essential that that kind of co-operation continue. I think that so long as there is co-operation, both in operational working and in training, there will be ample opportunities for the organisations which continue to exist in England to learn and to observe what is taking place in Wales.
Perhaps I may also briefly mention to the noble Lords that there was recently a triennial review of the Environment Agency and the Forestry Commission in England which looked at whether those bodies should continue in their current form, should be reformed or should be merged. That triennial review concluded that the bodies should continue but that there should be reforms. I think it is important that the lessons from that review be taken. By the time of the next triennial review, which will be in 2016, there will of course be ample opportunity to have learnt from the experience in Wales. With those comments, I commend the order to the House.
Education (Amendment of the Curriculum Requirements) (England) Order 2013
(10 years, 9 months ago)
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The Parliamentary Under-Secretary of State for Schools (Lord Nash)
My Lords, I am grateful for the opportunity to debate the Government’s proposals for replacing the national curriculum subject of information and communications technology with computing in schools in England.
As noble Lords will know, the study of information and communications technology—commonly referred to as ICT—is a compulsory national curriculum subject in maintained schools in England at key stages 1 to 4. In February, my right honourable friend the Secretary of State for Education announced his intention to replace the national curriculum subject of ICT with computing. The report on the consultation on this proposal, published on 3 May, showed significant support for such a change, with the largest single group of respondents being in favour. I will outline the reasons why we think that this change to the name of the subject is necessary.
In spite of the revolution in how we use digital technology in society and in work, decreasing numbers of young people are obtaining computer science qualifications beyond age 16. Between 2003 and 2012, the number of students taking A-level computer studies fell by 60% and is now fewer than 3,500 entrants per year. Similarly, the number of entrants to undergraduate computer science degrees fell by 23% between 2002-03 and 2010-11, at a time when undergraduate enrolments grew in all other STEM—science, technology, engineering and mathematics—areas.
This is a major problem, since the UK’s long-term economic prosperity depends on our ability to be world leaders in developing digital technologies and understanding how they can transform all sectors of the economy. It is estimated that, over the next seven years, around 2 million new jobs will come from sectors that rely on technology, mathematics and science.
Baroness Jones of Whitchurch
My Lords, I thank the Minister for his explanation of the proposed name change; indeed, the order is narrow in its intent. On the whole, we welcome the change and the need to revitalise the ICT curriculum. We take on board the concerns that were raised by Ofsted, that the curriculum and teaching approaches had not kept pace with the rapid technological developments outside the school environment. While we share the concerns of many of the respondents that the term “computing”, which is now being adopted, suggests too narrow a focus, we also recognise the need to send a signal that the content has been substantially modernised.
We are also aware that, of all the subjects in the national curriculum, this one will continue to have challenges in keeping up with the pace of change. For example, it is easy to foresee that what we are now celebrating as a new computing course will appear in a few years’ time to be dumbed down and irrelevant to the demands of employers in the future. However, in the mean time, I have a few questions that I hope the Minister can address.
First, on professional development, the Minister made the point that some money was being made available for some of the professional development work. Does he feel that it will be sufficient? There is a serious issue about ongoing professional development throughout the system, starting at primary level, where updating computer skills will be part of a range of updated skills which all primary teachers will need to deliver the new curriculum. It is also an issue at secondary level, where it may not be easy but is possible to recruit specialist staff with up-to-date computing skills. However, if you are not careful, that knowledge and those skills can fall out of date very quickly.
Secondly, what more are the Government planning to do to attract new specialist computing staff to teach in schools? It is fairly obvious that there would be alternative, better paid jobs for high-class performers in computing. They may not necessarily rush into the teaching profession.
Thirdly, can the Minister confirm that the change in name does not represent a narrowing of the curriculum, and that pupils will be taught some of those broader skills such as internet use and safety, word processing and data processing, so that the subject will actually give people a range of knowledge and skills which the word “computing” does not necessarily encompass?
Fourthly, the teaching will be successful only if it is supported by sufficient funds to modernise IT facilities and to keep modernising them as technology changes. The noble Lord made reference to some low-cost initiatives in terms of facilities in schools. However, I have seen reference to 3D printers. That is fine, it is just one example, but 3D printers are very expensive. The fact is that, for children to have an up-to-date and relevant experience, you would need to keep providing not just low-cost but some quite expensive technological equipment in schools on an ongoing basis. Will sufficient funds be available to do that?
Finally, given that computing skills and the supporting equipment that would be needed are increasingly integral to the teaching of all subjects, not just computing, have the Government given sufficient thought to what computing skills should be taught within the confines of the computing curriculum and what computing skills need to be provided with all the other arts and science subjects that people will be studying, in all of which pupils will increasingly require computing skills to participate fully? Has that division of responsibilities been thought through? I look forward to the Minister’s response.
Lord Knight of Weymouth
My Lords, I draw the attention of the Committee to my interests in this area. I am a trustee of the e-Learning Foundation and have various other interests, including working with the Times Educational Supplement and with smart technologies. I am also a trustee of Apps for Good.
I, too, attended the Bett conference at the beginning of last year, when the Secretary of State, Michael Gove, who is now on his feet in the other place talking about these issues, announced the disapplication of the programme of study for ICT. I broadly welcomed that announcement. It goes back to my dissatisfaction when I was Schools Minister with the ICT curriculum, particularly at key stages 3 and 4, and to how unengaging my son found the experience of doing the European Computer Driving Licence. My attempt to change things was to get Jim Rose’s primary curriculum review to include ICT as a core subject alongside English and maths. It was a battle that I eventually won by subterfuge, and Jim’s review included ICT at its core. I wanted young people starting secondary school to be plug-and-play ready to use ICT across the whole curriculum in their learning.
I was also informed, as I think the Minister was, and as he mentioned in his opening comments, by the changing nature of the labour market, which is essentially hollowing out due to globalisation and technological change. The growth in high-skill, high-wage work is at the higher end of the market and is very much informed by technology and people who are confident with it. Not all of it requires programming skill. Therefore, my first question is: how will the Minister ensure that digital skills remain across the whole curriculum and inform the way in which young people learn in all subjects, not just in the subject called computing?
I cannot see any occupation where we will not require people to be confident in using the internet and technology, and to have a basic understanding of how it works. I am chair of the Online Centres Foundation, which just today was renamed the Tinder Foundation. We are very active in digital inclusion, and we see people referred to us from jobcentres so that they can not just process a claim but apply for jobs, because 70% of employers require you to apply online. These are fundamental skills for every child to learn in order to be confident leaving school.
The issue of digital skills across the curriculum raises an additional question. It is a perhaps unfashionable question about pedagogy. As a Minister, I was always slightly reluctant to get involved in pedagogy because I am not a trained teacher. However, I regret that, and I have looked at the amount of investment that has gone into technology in schools over time and have seen that some of it was not spent well, because not every teacher was taught to be confident in using it, and to shift their pedagogy in order to use it well.
I have that worry about 3D printers, and I am specifically interested in finding out from the Minister whether, as 3D printers land in schools, they are not going to be used to prop doors open or get dusty in cupboards. Last Friday I was talking to teachers from the Isle of Portland Aldridge Community Academy down in Dorset following their being shortlisted for a TES Schools Award. Unfortunately the school did not manage to win an award, but it is worth noting that both the nominated projects involved 3D printers, so I can see that some fantastic pedagogy may emerge from this technology that encourages highly engaged teaching and learning.
Lord Nash
I am grateful to the noble Baroness, Lady Jones, and the noble Lord, Lord Knight, for their excellent speeches and their broad support for the name change and the need to revitalise the ICT curriculum. The noble Baroness asked the very important question of what steps the Government are taking to ensure that the professional development of teachers keeps pace with the curriculum change. In addition to the points I mentioned in my opening speech, and to provide more detail on one of them, the National College for Teaching and Leadership has established an expert group to signpost schools, teachers and trainees towards existing high quality curriculum resources. We will consider the group’s recommendations carefully as we prepare for the implementation of the new national curriculum from September 2014. The £2 million funding for the computer science CPD runs until 2015. By then, we will ensure that teachers in approximately 16,000 primary and secondary schools are capable of teaching computer science. We think that this number is very adequate.
Secondly, the noble Baroness asked what the Government are planning in order to ensure that we attract new specialist computer staff to teach in schools. We have made available bursaries of up to £9,000 for suitably qualified candidates to help ensure that computer science undergraduates consider teaching as a career option. Furthermore, there are up to 100 scholarships worth £20,000 each for exceptional applicants. Initial teacher training providers are also offering subject knowledge enhancement courses to graduates from non-computer science courses which have a significant technology component. These courses will provide candidates with the computer science knowledge they require to go on to study the computer science PGCE.
Thirdly, the noble Baroness, Lady Jones, asked me to confirm that the change in name does not represent a narrowing of the curriculum and that pupils will be taught e-safety. I can confirm that the name change represents a rebalancing rather than a narrowing of the curriculum. The purpose of the study statement for the new computing curriculum states that pupils should become digitally literate—as the noble Lord, Lord Knight, stated was so important—through this particular curriculum subject. There is content on digital skills at key stages 1 to 3. Keeping our children and young people safe on the internet is a top priority for this Government and the noble Lords know that it is an area in which we are doing a great deal of work. This is why for the first time children will be taught in primary school how to stay safe on the internet, to keep personal information private and to use technology respectfully and securely. We have also strengthened the requirements around e-safety at key stages 3 and 4. Throughout their schooling, pupils will be taught to recognise inappropriate contact and conduct as well as to know each appropriate way to report concerns. We have been advised on this by leading e-safety experts, including the Child Exploitation and Online Protection Centre, the UK Safer Internet Centre, the NSPCC and Professor Sonia Livingstone.
Fourthly, the noble Baroness asked whether the teaching would be successful. It needs to be supported by sufficient funds to modernise ICT facilities and keep them current. Evidence from the British Educational Suppliers Association shows that school spending on digital technology, hardware, software and services is increasing annually. Schools are choosing to make this expenditure—there is no ring-fenced capital or revenue funding for digital technologies. I agree with the noble Lord, Lord Knight, that if it were true that there was only one official focusing on this in the department, that would be too few. I understand that there is one leading official who is supported by the STEM team. However, I undertake to investigate the position further so that we can consider whether we have enough support.
We will work with the Design and Technology Association, the Royal Academy of Engineering and others on support for the new design and technology curriculum, including 3D printers. We are working with teachers to identify the resources that schools can use to teach computing and design and technology. I was delighted to hear that the noble Lord, Lord Knight, recently visited the Isle of Portland Aldridge Community Academy and thereby celebrated the success of the sponsored academy programme initiated by the previous Government. The noble Lord asked about the pupil premium and whether it can be used for purchasing personal devices. I know that some schools provide iPads and I am sure that it will become a growing trend. It is a scenario that I would be grateful to discus with him further because his expertise is clearly greater than mine and I would welcome the opportunity of doing so.
The noble Baroness, Lady Jones, asked whether, given that computing skills and equipment are increasingly integral to the teaching of all subjects, the Government have given sufficient thought to what computing skills should be taught. As she knows, this Government are keen to trust teachers to use their own discretion. Together with the training that we will be providing, it is up to schools to determine where and how they teach computing skills in the context of other curriculum subjects, although clearly some areas of the curriculum have strong affinities with the content of the computing programmes of study, most notably maths and design and technology. The noble Baroness pointed out that this subject will need to be refreshed constantly. I hope that this is the start of that process so that in future all Governments keep it constantly under review, which is so important in such a fast-moving world.
In addition to the publication today of the new curriculum for computing, I look forward to the implementation of the new national curriculum in its entirety and, in particular, a return to its intended purpose: a minimum national entitlement organised around subject disciplines across core and foundation subjects. The new national curriculum will provide schools with a set of expectations that match those in the highest-performing education jurisdictions in the world and will challenge them to realise the potential of all their pupils in an increasingly competitive global marketplace.
Armed Forces (Retrial for Serious Offences) Order 2013
(10 years, 9 months ago)
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Lord Astor of Hever
That the Grand Committee do report to the House that it has considered the Armed Forces (Retrial for Serious Offences) Order 2013.
Relevant document: 5th Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)
My Lords, there are two instruments for consideration today, the Armed Forces (Retrial for Serious Offences) Order 2013 and the Armed Forces (Court Martial) (Amendment) Rules 2013. I shall say a few words on each, starting with the former. For your Lordships’ convenience, I shall refer to it as the retrial order.
This instrument enables persons acquitted of certain very serious offences by a service court—for example, the court martial—to be retried in the service justice system. This may happen only if new and compelling evidence comes to light in relation to those offences and if it is in the interests of justice for a retrial to take place. These are high hurdles to clear.
Our purpose in making this order is to follow the same path as Part 10 of the Criminal Justice Act 2003, which reformed the law relating to double jeopardy. Before the 2003 Act, a person who had been acquitted of an offence could not be retried. The 2003 Act changed the law to permit retrials in respect of a number of very serious offences where new and compelling evidence has come to light, but separate provision is required to apply this to our service justice arrangements.
We are now filling that gap. I do not want to give the impression that this measure is driven by specific concerns about members of the Armed Forces who are evading justice because they cannot currently be retried. It is intended simply to bring the two systems of justice into line on this matter, extending the same principles from one to the other; nor would I want to give the impression that we are doing this now for any reason other than we want to have the legislation ready.
The Armed Forces (Retrial for Serious Offences) Order makes provision for the retrial of persons previously acquitted in the service justice system of a “qualifying” offence. Qualifying offences are set out in Schedule 1 to the order. They include a very limited number of criminal offences—such as murder, manslaughter and rape—and, because this legislation is for the services, a small number of disciplinary offences, such as assisting the enemy.
The order sets out the arrangements governing the investigation, charging and application for a retrial of an acquitted person for a qualifying offence. Retrial is a complex matter and there are, as I said, high hurdles to get over first. In broad terms, the order will enable the service police to reinvestigate the commission of a qualifying offence by a person previously acquitted of the offence. Investigative measures may, in most cases, occur only if the Director of Service Prosecutions consents; and he may only give his consent if he is satisfied that it is in the public interest to proceed with an investigation and that there is either some new evidence that warrants an investigation or some evidence would come to light if the investigation takes place.
However, there is a power for service police to take investigative steps without the consent of the Director of Service Prosecutions if it is necessary to do so to prevent the investigation being prejudiced. Additionally, a person previously acquitted of a qualifying offence may be arrested only if a judge advocate has issued a warrant for their arrest. Where a person has been charged with a qualifying offence, and if the Director of Service Prosecution consents, a prosecuting officer may apply to the Court Martial Appeal Court for an order to retry the person. Where such an application is made, the court must make the order applied for if it is satisfied both that there is new and compelling evidence against the acquitted person and that it is in the interests of justice to do so. As the Committee will recognise, therefore, a strong set of safeguards has been built into the new procedures.
It is important to clarify the position of those who have left the Armed Forces. In most cases, there are strict limits in place that prevent former service personnel being charged with a service offence when they have been out of the Armed Forces for more than six months. However, this time limit can be waived if the Attorney-General consents. The time limit applies in relation to all former service personnel who are suspected of committing a service offence and not just to those who might face retrial. These provisions also apply to civilians subject to service discipline.
The order also makes provision for the production of evidence and attendance of witnesses at the hearing. It creates a right of appeal to the Supreme Court. There is provision for the Court Martial Appeal Court to make an order restricting the publication of material which might otherwise prejudice the administration of justice and, furthermore, it makes it an offence for a person or an organisation to breach an order prohibiting publication. It provides for the period of time in which certain arrangements for the retrial must be made and for the holding in custody, and release from custody, of a person, previously acquitted, who is charged with a qualifying offence. There are also a small number of supplementary provisions relating to the rules governing the service of documents and the exercise of functions of the Director of Service Prosecutions and the Court Martial Appeal Court.
I now turn to the second order, the Armed Forces (Court Martial) (Amendment) Rules 2013. The court martial was established by the Armed Forces Act 2006 as a standing permanent court that replaced the system of ad hoc courts martial that were convened by the services. The court martial may sit anywhere, within or outside the United Kingdom. It comprises a civilian judge, known as the judge advocate, and lay members—sometimes referred to as the board members—who are usually officers or warrant officers. Its rules of procedure are set out in the Armed Forces (Court Martial) Rules 2009. I shall call these the 2009 rules. These broadly follow those that apply in the civilian system, but reflect the different make-up of the court martial. The main purpose of the second instrument before us today is to amend these rules, specifically Rule 29, to reduce, in certain circumstances, the number of lay members that sit on the panel of the court martial.
The court martial rules—in fact, the rules of all service courts—are kept under review by the Service Courts Rules Review Committee. This is a non-statutory body under the chairmanship of the Judge Advocate-General. Currently, Rule 29 of the 2009 rules provides that where court martial proceedings relate to a more serious offence, there shall be at least five lay members. The Service Courts Rules Review Committee considers that in cases where a defendant or co-defendants all enter a guilty plea before the trial begins, it is not necessary to have five lay members. It has therefore recommended an amendment to Rule 29 that reduces the minimum number of lay members required to sit in the court martial in these circumstances from five to three. The aim of this is to reduce delay and the cost of proceedings in the court martial, but it is not cutting corners. It is a sensible adaptation of the system to a particular set of circumstances.
The instrument does two further things. It prescribes a procedure for the court martial to certify to a civilian court, which has the power to commit for contempt, the failure of a person to comply with an order of a judge advocate to produce material to a service policeman or to give a service policeman access to it. It also removes a piece of legislation made obsolete by changes made in the Armed Forces Act 2011.
The Armed Forces Act 2006 gave Her Majesty’s Armed Forces a service justice system that provides consistent and fair access to justice for all, whether they are in Aldershot or Afghanistan. We have faith in this system and, more importantly, our Armed Forces have faith in it. However, we continually look for ways to enhance our processes and to keep the service justice system in line with its civilian counterpart. The orders that we are considering today contribute to that effort.
Finally, I will say a few words about ECHR issues. It is the custom for Ministers commending instruments subject to the affirmative procedure to say whether they are satisfied that the legislation is compatible with the rights provided by the European Convention on Human Rights. I am happy to inform the Committee that I believe that the instruments we are considering today are indeed compatible with the convention rights.
Lord Trefgarne
My Lords, I am of course grateful to my noble friend for what he said but will make just a few remarks about the Armed Forces (Retrial for Serious Offences) Order. We need to be careful that we do not surround the activities of our Armed Forces, in particular our Special Forces, with such a panoply of legislation that they will have difficulty discharging their duties in the manner that we would wish. Of course the Armed Forces cannot be exempt from the law, but if they are at risk—or fear that they are at risk—of too zealous an application of the relevant legislation, there may be difficulties of a wider kind.
I apologise for going back so far, but some of your Lordships may recall an incident in Gibraltar in 1988 when Special Forces were involved in an operation against IRA suspects. At the time, there was much initial discussion, although it did not go on for ever, as to whether they had complied with the law or not. It was a very finely balanced judgment and a question of whether they had complied with the rules of engagement, as they are called, laid down by Ministers in respect of the use of firearms in circumstances such as then prevailed. I was much involved in the discussion; indeed, there was a very important debate in your Lordships’ House at that time, to which I replied. It was established that they had indeed complied with the required legal provisions and therefore that no question of any offence arose. However, there was a coroner’s examination of the matter in Gibraltar. The outcome of that was not initially certain but eventually it was clear.
It is important that in general terms we do not surround our Armed Forces, and particularly our Special Forces, with such a panoply of rules and regulations that when the time comes for them to do maybe some pretty dreadful—but nonetheless necessary —things, they are inhibited by a possible fear of vexatious prosecution or perhaps a second prosecution, as provided for by this order. I need to be careful, as there is a particular case before the courts at present which must take its course. However, I hope my noble friend can assure me that nothing in this order will create a situation where the activities of our Armed Forces, including our Special Forces, are placed at risk or in greater difficulty.
Lord Rosser
My Lords, we have two orders which, on the face of it, go in slightly different directions. The second order, on the reduction in the number of lay members who sit in a court martial in sentencing proceedings for serious cases where a guilty plea has been entered, could be argued to be weakening the panel, at least as far as lay members are concerned.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)
My Lords, the Division Bell is ringing. The Committee will adjourn for 10 minutes.
Lord Rosser
Perhaps I may resume my contribution, which I had hardly started. I should say again that the second instrument we are discussing, on the reduction in the number of lay members who sit in a court martial in sentencing proceedings where a guilty plea has been entered in serious cases, could be argued to be weakening the panel, at least as far as lay members are concerned. The first instrument we are considering seems to go in the other direction, since among other things it now provides for a panel to be able to hear a case again if new and compelling evidence comes to light following a person or persons being acquitted of certain serious offences.
I understand what has driven the order; namely, bringing service proceedings into line with the civilian justice system. I had assumed that the terms of the order would apply only if the person or persons concerned in respect of whom new and compelling evidence had come to light were still members of the Armed Forces, but I think that the Minister referred to a six-month period that could possibly be waived. I am not sure whether that means that for a period of six months after someone has left the Armed Forces, in the circumstances set out in this order, they could still be recalled and retried through the court martial system. I would be grateful if he could clarify the situation when he responds. What would happen if there were two or more defendants, one or more of whom was still in the Armed Forces and one or more of whom was not? How would the reopened case be dealt with? Would it be dealt with within the court martial system?
As I say, I understand what is driving the order, but what is driving the second instrument is a little less clear. Paragraph 7.2 of the Explanatory Memorandum states that the change being proposed,
“is aimed at reducing both delay and the cost of proceedings”.
Reducing delay can certainly be in the interests of justice, but reducing the cost of proceedings sounds as though the instrument is, at least in part, financially rather than justice driven, or at least financially at least as much as justice driven. No figure is given for the reduction in the cost of proceedings, and, as far as I can see, the Explanatory Memorandum is also silent on what the reduction in delays would be, and on how such a reduction would be achieved as a result of the proposals set out in the rules.
Currently, at least five lay members are required to sit in court martial proceedings that relate to a more serious offence, as listed in Schedule 2 to the Armed Forces Act 2006. Under the new rules, the minimum five lay members would be reduced to a minimum of three and a maximum of five in cases relating to a more serious offence where the defendant or defendants entered a guilty plea before the trial began, and where sentence had to be passed. As the Minister said, this arises from a review and recommendation of the Services Courts Rules Review Committee. Is there to be any reduction in the number of non-lay members sitting in court martial proceedings? Are lay members represented on the Services Courts Rules Review Committee that carried out the review and made the recommendation in front of us today?
It would be helpful to know what the savings would be, since it is not immediately obvious that savings of any significance are likely to arise, unless reducing the number of lay members from five to three will be used as a reason for reducing the total number of lay members eligible to sit. To enable me—if nobody else—to get some feel for the impact that the proposed changes might have, perhaps the Minister will answer the following questions, if not today then at a later date. How many court martial proceedings with lay members were held in 2012? What was the total number of cases they heard? What was the total number of days in aggregate for which the courts martial sat? Is the number of sitting days going up, going down or remaining static each year? What is the total number of lay members eligible in aggregate to sit in court martial proceedings? What is the average number of sitting days for a lay member each year?
Furthermore, in how many cases in 2012, if this statutory instrument had been in effect, would the number of lay members sitting on a panel have been reduced from five to three, and what percentage of cases where the sole defendant or co-defendants pleaded guilty before the commencement of the trial would that have represented? Does the change provided for in the statutory instrument have the support of the lay members currently eligible to sit?
Paragraph 8.1 of the Explanatory Memorandum states that the rules have been the subject of “rigorous consultation” with the various bodies and organisations to which it refers. I am not sure of the difference between “consultation” and “rigorous consultation”, and I suspect that the Minister is not, either. Therefore, I am not inviting him to answer the question. However, does one of those bodies and organisations listed in the Explanatory Memorandum as having been consulted represent or speak for the lay members whose numbers are going to be reduced under the terms of this statutory instrument?
I conclude by saying that while we have no intention of opposing the order and rules, I would be grateful if the Minister would respond, at some stage if not today, to the points I have made. Unless there is a corresponding reduction in non-lay members sitting in court martial proceedings, the statutory instrument alters the balance between lay members and non-lay members in sentencing for serious offences where a guilty plea has been entered. I am not clear of the justification for this, in the interests of justice. The decision on whether one is found guilty of an offence is a profoundly significant one for a defendant, and so, too, is the decision on sentence where lay membership involvement has been reduced where there has been a guilty plea, since that sentence—we are talking about serious offences—can take away an individual’s liberty for a considerable period of time.
Lord Astor of Hever
My Lords, I am grateful for the support that both noble Lords gave to the two instruments that we have considered today. Taking the question from my noble friend Lord Trefgarne first, I agree with him that we should not surround our Armed Forces, particularly our Special Forces, with too much of a panoply of legislation. However, we feel that we have got this right. My noble friend mentioned the Special Forces, and in particular the Gibraltar case. He has raised a really important point, not just for Special Forces but for all members of the Armed Forces, and I am very grateful to him for that. My answer is that our Special Forces personnel are in the same position as regards the law as any other member of the services. I am sure that neither they nor the Committee would wish it to be any other way. However, I emphasise that there are a strong set of safeguards before any retrial can be set in motion. I stress that the particular demands of service life and the requirements of operations are always in the minds of those investigating and prosecuting alleged offences.
I turn to the questions asked by the noble Lord, Lord Rosser, although I will not necessarily deal with them in the order that he asked them. First, he asked whether there are lay members on the Service Courts Rules Review Committee and whether the order has their support. The committee is chaired by the Judge Advocate General—the senior service judge—and includes the Director of Service Prosecutions and legal and policy representatives from the Ministry of Defence. The Association of Military Court Advocates is also represented. In its work, the committee consults the services, the Service Prosecuting Authority, the Association of Military Court Advocates and the Military Court Service. It does not make the rules itself but makes recommendations to the Secretary of State, who does make the rules, and any necessary changes, through the procedure being used today. As I explained, this order is the result of a recommendation from the committee.
The noble Lord asked how many court martial sittings there were last year with lay service members on the panel. Last year, I understand that 516 service personnel were court-martialled with lay members. How many cases were heard in a court martial is, in essence, the same question, and the answer is also 516. The court martial sat for 689 days in 2012. The noble Lord asked if the number of sitting days was going up, going down or staying the same. I am advised that it appears to be staying the same.
The noble Lord asked about the total number of lay members who are eligible to sit. In principle, all officers and warrant officers of the three services who are eligible and qualified in accordance with the Armed Forces Act 2006 may sit in the court martial. In some cases, certain civilians may also be eligible. Who is eligible in any given case depends on a wide range of factors specific to each case. I am aware that that may not fully answer the noble Lord’s question, and I will pad that out in a detailed answering letter.
The noble Lord asked whether it weakens the panel for a court martial if it is reduced from five lay members to three. We feel that it does not. In fact, most courts martial have a three-man lay panel for sentencing and for trial purposes. This change simply recognises that, where an accused is charged with a more serious offence and admits his guilt, there is no need for a five-man panel.
The noble Lord asked about the average number of sitting days per lay member per year. Again, we will have to do a bit of digging around to find out the answer to that. I shall write to the noble Lord.
Finally, the noble Lord asked what the difference is between “consultation” and “rigorous consultation”. “Rigorous consultation” is a shorthand way of referring to the fact that any proposals that we make for changes to the service justice system are based on a collaborative and open process between the Ministry of Defence and those who administer, and are subject to, the service justice system.
I shall study the official record of the points that have been raised and will write if I have anything to add to our exchanges.
Armed Forces (Court Martial) (Amendment) Rules 2013
(10 years, 9 months ago)
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Lord Astor of Hever
That the Grand Committee do report to the House that it has considered the Armed Forces (Court Martial) (Amendment) Rules 2013.
Relevant document: 6th Report from the Joint Committee on Statutory Instruments.
Social Security, Child Support, Vaccine Damage and Other Payments (Decisions and Appeals) (Amendment) Regulations 2013
(10 years, 9 months ago)
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Lord Freud
That the Grand Committee do report to the House that it has considered the Social Security, Child Support, Vaccine Damage and Other Payments (Decisions and Appeals) (Amendment) Regulations 2013.
Relevant document: 5th Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)
My Lords, I am pleased to introduce this instrument, which was laid before the House on 13 June 2013. I am satisfied that it is compatible with the European Convention on Human Rights.
The regulations provide for the introduction of the mandatory reconsideration process for vaccine damage payments, child support maintenance payments, mesothelioma lump sum payments and all social security benefits, save for universal credit and personal independence payment, which have been subject to mandatory reconsideration since April this year.
Currently, a claimant can ask for a decision to be reconsidered by a decision-maker, which may result in a revised decision. In practice, however, many people do not do so and instead make an appeal from the outset. This is more costly for the taxpayer, time-consuming, stressful for claimants and their families, and for a significant number of appellants unnecessary. I say this because the reason that the vast majority of decisions are overturned on appeal is because of new evidence presented at the tribunal.
I hope that noble Lords will agree that we need a process that enables this evidence to be seen or heard by the decision-maker at the earliest opportunity. It is accepted that this does not mean that all decisions will be changed and that appeals will be unnecessary, but we believe we should have a process that at least promotes this possibility. Mandatory reconsideration does just that.
Mandatory reconsideration will mean that applying for a revision will become a necessary step in the decision-making process before claimants decide whether they wish to appeal. Importantly, the intention is that another DWP decision-maker will review the original decision, requesting extra information or evidence as required via a telephone discussion, and, if appropriate, correct the decision. When this happens, there is no need for an appeal—an outcome that is better for the individual and better for the department.
I assure noble Lords that claimants will of course be able to appeal to Her Majesty’s Courts and Tribunals Service if they still disagree with the decision. The means of doing this will be set out in a letter detailing the outcome of the reconsideration and the reasons for it. We would hope that because of the robust nature of the reconsideration and the improved communication, this new process will result either in decisions being changed or, where this does not happen, claimants deciding that they do not need to pursue an appeal.
We undertook a formal consultation before we introduced mandatory reconsideration for universal credit and personal independence payment. A number of respondents suggested that there should be a time limit on the reconsideration process and there have been further representations about this. While we understand the concerns, we are not making any statutory provision for it. Some cases are more complex and require additional time—particularly, for example, cases where extra medical evidence may need to be sought. Others will be completed in days. It will be a case of considering each case on its merits.
However, we are considering the scope for internal performance targets. While these will reflect the requirement to deal with applications quickly, it will not be at the expense of quality. The process will fail if clearance times become the driver. We will be back with unnecessary appeals and all that that entails. It is a balancing act which we must get right. We will monitor developments closely and adjust accordingly. We may in due course learn from the experience of UC and PIP but at this time we have had so few requests for mandatory reconsideration that we have not as yet learnt anything which will inform our future handling of these applications. We will of course continue to monitor the situation ahead of October.
I turn now to the payment of benefit pending reconsideration and appeal. This has caused a lot of concern, particularly in relation to employment and support allowance. First, I want to make the point that there is no change from the current policy. If someone is refused benefit under the existing provisions and they request a revision of that decision, benefit will not be paid pending the consideration of that request. It will be the same for mandatory reconsideration. Secondly, there is no change in relation to appeals. If someone appeals a decision under the existing provisions, no benefit is paid pending the appeal being heard—save for ESA, which I will come to. This must be right. It would be perverse to pay benefit in circumstances where the Secretary of State has established that there is no entitlement to benefit.
I turn now to ESA. At the moment, if someone appeals a refusal of ESA, it can continue to be paid pending the appeal being heard. This is not changing. What is changing is that there can be no appeal until there has been a mandatory reconsideration. There could therefore be a gap in payment. However, during that period—and I repeat my message that applications will be dealt with quickly so that this is kept to a minimum—the claimant could claim jobseeker’s allowance or universal credit. In other words, alternative sources of funds are available. The claimant may choose to wait for the outcome of his application and, if necessary, appeal and be paid ESA at that point. It is accepted that the move from stopping ESA to claiming and being paid jobseeker’s allowance will not happen overnight, but provided that the claimant does not delay in making his claim, the wait for his first payment of jobseeker’s allowance should be short.
Finally, another change to mention linked to the introduction of mandatory reconsideration is that all appeals will be made directly to HMCTS and not as now to this department. This change brings the DWP in line with other departments’ appeals processes. This is a positive move as it will allow HMCTS to book hearing dates more quickly than is possible currently. The department believes that the regulations will result in a clearer, escalating dispute process that will deliver a fair and efficient system for people who dispute a decision. I commend this statutory instrument to the Committee.
Baroness Sherlock
My Lords, I thank the Minister for his explanation of these regulations, which will extend the provision of mandatory reconsideration to a range of benefits and payments administered by the DWP. I also thank the Minister for clarifying which benefits the regulations will apply to—I understood him to say that they would apply to all benefits administered by the DWP with the exception of universal credit and PIP. When he comes to respond, can the Minister clarify the way in which these regulations will apply specifically to JSA and ESA? I had thought that they were in some part addressed by earlier regulations. It is possible that only the direct lodgement elements of JSA and ESA are affected by these regulations, the commencement having been done by the previous set. Perhaps the Minister could clarify that when he comes to respond.
Lord Freud
I thank the noble Baroness for responding with her customary detailed and forensic approach to this. She has raised a number of important issues, which gives me an opportunity to set out the Government’s thinking a little further. I can assure the noble Baroness that we will be closely monitoring the new process and its impact on claimants and appeals during the early stages of its implementation. Clearly, it is a key change and we must get it right. I will deal with as many of the specific questions as I can and turn to the printer to answer the others.
The noble Baroness asked, first, to what these regulations apply. Earlier regulations dealt with the contributory JSA and ESA—in practice we have taken that apart—which is the new ESA and JSA element. These regulations apply to the legacy versions of income-based ESA and JSA. The two income-based benefits will be gradually replaced by universal credit.
On the question of conditionality, we would see modified conditionality for a person requesting mandatory consideration—that is, conditionality that would be adjusted for the fact that the person was in that position. This is the current position and, in practice, there will be no change on that basis.
On the publication of data, the issue is that the data effectively will not meet the standards for publication, which, as the noble Baroness knows, are pretty strict. That means that they will not be publishable because the collected data will not be validated. That is the issue. A validation system for this would be costly. Therefore, we have no plans for publication, although we will look at how we can get more information out. We are looking at how we monitor the process in the early period to make sure in particular that we get the timings right and that appropriate information is made available.
On the question of late application for reconsideration, the decision-maker is in a position to extend the time to apply if the claimant has good reason for not having applied within the deadline, which is one month. However, there is an absolute deadline of 13 months that the decision-maker cannot go beyond.
I think that I have answered the bulk of the questions, but there are a few more on which I will write to the noble Baroness to make our position clear. On that basis, I commend these regulations to the Committee.
House of Lords
Child Safety: Video Games
(10 years, 9 months ago)
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Baroness Massey of Darwen
To ask Her Majesty’s Government what age restrictions are applied to the sale of video games; and how they will encourage parents to safeguard children against inappropriate materials.
Baroness Garden of Frognal
My Lords, in 2012, we brought into force changes to the Video Recordings Act so that, unless they are entirely suitable for all audiences, video games must carry age ratings. The ratings system used is the pan-European game information, PEGI. It is an offence to sell PEGI 12, 16 or 18-rated games to those younger than the rating. The age ratings empower parents to make informed decisions about the suitability of games for their children.
Baroness Massey of Darwen
I thank the Minister for that comprehensive reply. I am sure that she is aware that some video games are extremely pornographic and violent and that, even for adults, there should be enforced regulation on them. Is she further aware that some parents and other adults buy these games for children inadvertently because the labelling is unspecific and unclear? Will she explain how the Games Rating Authority is dealing with putting better controls for parents on those games?
Baroness Garden of Frognal
The noble Baroness makes some valid points there. The PEGI ratings now have traffic light warnings to try to make it clearer which are the particularly inappropriate games for children. It is also trying to make clear that the age-rating symbols relate to the content of the game, not to the playability, because that has also been a misunderstanding. There are prominent statements on the website, askaboutgames.com, which has had a quarter of a million visitors since it was set up, and which has a great many explanatory aspects. The noble Baroness is right that there are different sorts of unsuitability—but there are symbols on the PEGI guidance as to whether the game involves violence, pornography, fear, and so on, which again should guide both parents and young people.
Lord Storey
My Lords, the Minister will be aware that parents generally have regard to the classification of films by the British board. That is probably a result of widespread consultation with parents. Will the games industry regulatory body have the same consultation with parents to ensure that they understand how the labelling and marking works?
Baroness Garden of Frognal
My noble friend makes a valid point. Of course, we need to get the communication to parents as accurate as we can. The difference between film classification and games classification is that games are interactive, children are playing them with people on screen, and the graphics have become ever more lifelike and realistic since the days when they were little cartoon characters, so it is really important is that both children and parents are aware of what these games mean.
The Earl of Listowel
My Lords, is the Minister also concerned about the number of children who become so engrossed in these games that they neglect their friendships, their schoolwork and their sports? Is advice being given to parents about tackling the problem, and are services available to parents when children are so engrossed in games that they neglect the rest of their lives?
Baroness Garden of Frognal
The noble Earl is right to highlight the addictive nature of some of these games. There are various parental controls. There can be timings, for instance, put on the games to ensure that children automatically have a break after a certain length of time. However, a lot of this will be up to parents, and the more guidance we can get to them the better because, as the noble Earl knows, these games can be addictive and can cause children to spend an awful lot of time on them.
Baroness Uddin
My Lords, does the Minister accept that, while it is very important to ensure that parents take their full responsibility, parents must know the fullest amount of information available about the illegality of some of these games? I note the fact that this is not all the Government’s responsibility, but what is her department doing to ensure that information is communicated to parents? Also, many parents do not speak good enough English, so how would she ensure that broader ranges of parents are aware of these games being illegal?
Baroness Garden of Frognal
There are also a great many initiatives from internet service providers, which are collaborating very constructively with the Government. There is the Internet Watch Foundation, for instance; we are also working with the Child Exploitation and Online Protection Centre, CEOP, to try to make sure that there are mechanisms within the games, which can be controls. If there are ways in which children can be identified from playing the games, they will be prevented from doing that. It is ongoing work, and we are working very constructively with all those concerned to make sure that the information gets out correctly.
The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford)
Forgive me, but it is this side and then we will come to the noble Baroness, Lady Howe.
Lord Eden of Winton
I am grateful, my Lords. Very quickly, while welcoming very much the answers that my noble friend has given, I wonder whether she is aware that, whether or not these games are good in intent for children, they are very attractive to them. Placing the onus on the parents is therefore rather a heavy duty, and we should not leave them alone. Will she give consideration to tackling this problem at source, with the producers and purveyors of these products being taxed or their products made less attractive to them financially in some way?
Baroness Garden of Frognal
As I made reference to before, we are working very constructively with the internet service providers’ industry, which is as concerned to make sure that inappropriate materials are not accessed by young people online. The providers are very well aware of the damage that it can do to young children to find themselves, perhaps inadvertently, drawn into a game which shows extreme violence or engenders extreme fear. It is a matter for all parties to work together on this one.
Baroness Howe of Idlicote
My Lords, to finish what I was saying, would the Minister further urge the games regulator, the GRA, to consider following the example of the BBFC by promoting understanding of classification through a programme of specific visits to schools, along with education through its website and apps?
Baroness Garden of Frognal
Again, the noble Baroness makes a very helpful point. There is a lot of information going out to schools in the form of posters. Of course, internet safety is one part of the school curriculum that tries to ensure that young people themselves are aware of what the dangers are. We are getting co-operation, and indeed funding, from the providers.
Lord Stevenson of Balmacara
I do not know whether I heard the noble Baroness correctly. I think she said that traffic lights were being introduced on to the packaging for these things. It strikes me that indicating red for danger or red for encouragement might be a difficulty in this area. My main point is that PEGI is an industry-led body and that one increasingly finds that in video games inserts are being used from films and related materials. Is there not a case for trying to get co-ordination across this, and having some sort of accommodation with the BBFC?
Baroness Garden of Frognal
The BBFC is indeed involved in this. It has just become the independent reviewer of the content of mobile operators and, as the noble Lord says, there is some overlap between what goes on in the film industry and what goes on in the video games industry. It is a question all the time of trying to keep one step ahead of cunning children, who have a tendency to be one step ahead of their parents.
Education: Sex Education
(10 years, 9 months ago)
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Baroness Gould of Potternewton
To ask Her Majesty’s Government which organisations and individuals have challenged their proposed changes to sex education.
The Parliamentary Under-Secretary of State for Schools (Lord Nash)
My Lords, as part of the national curriculum review, the Government received representations from organisations and individuals on the draft curriculum for science, which includes information on reproduction and the human life cycle. A number of organisations, including the Sex Education Forum, were signatories to a letter to the Times on 15 April outlining concerns that the science programme of study omitted detail on reproduction and growth. I assure noble Lords that we have taken their representations on board, and revised programmes for study have been published this morning.
Baroness Gould of Potternewton
I thank the Minister for his reply. I have some inkling of what is in the Statement, although I look forward to reading the document in full. Does he accept that the proposed watering down of the biological sex education content within that document means that many pupils will leave primary school with little knowledge of the human life cycle? Within that context, does the document state explicitly that the menstrual cycle shall be taught without details of hormones? Can the Minister indicate how that is going to be monitored in schools? If a teacher does in fact mention hormones, are they likely to be disciplined?
Lord Nash
My Lords, in the new curriculum there is as much, if not more, about reproduction and the life cycle as in the previous curriculum. Key stage 2 science includes changes experienced in puberty, but this Government believe that it is right that teachers should make the final decision about when and how that content is covered. Of course, Ofsted inspects to ensure that pupils receive the right cultural, moral and social experience.
Baroness Walmsley
How many young people themselves have been consulted about the content of this curriculum? If a lot of young people had been, I am sure they would have told the Government that they want to know the information in time, before the hormonal changes take place. Timeliness is related not only to puberty but to contraception, sexual health and the prevention of unwanted teenage pregnancy.
Baroness Massey of Darwen
Have comments by the National Youth Parliament been taken into account? Could the Minister give us a hint as to the Government’s response?
The Earl of Listowel
What progress are we making in terms of how our closest neighbours deal with teenage pregnancy? What are we learning from them in their teaching of sex education?
Lord Nash
Our teenage pregnancy rates are now at their lowest level in more than 40 years, and data for 2011, released by the Office for National Statistics in February this year, showed a continuing decline. The Government believe that the best protection is a good education, and we believe that our curriculum reforms will strike the right balance to allow all schools to improve their focus on the issues that are relevant to the circumstances.
Baroness Brinton
My Lords, I am sure that the House is pleased that the Government have put more about sex and relationships into the curriculum, but surely some concerns must remain if academies can choose not to teach it. How are the Government going to ensure that academies teach young people about sex and relationships?
Lord Nash
My noble friend is quite right that academies are not obliged to teach sex education, although, if they do, they have to have regard to the Secretary of State’s guidance on these matters. I repeat the point that Ofsted inspects for all social, moral and cultural provision in schools, and we will be ensuring that it focuses on this point.
Japanese Knotweed
(10 years, 9 months ago)
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Baroness Sharples
To ask Her Majesty’s Government what progress has been made in eliminating Japanese knotweed in the United Kingdom.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley)
My Lords, we commenced a controlled release of Aphalara itadori to tackle Japanese knotweed in 2010. The signs are encouraging for the establishment of this highly specialist psyllid. Aphalara successfully overwintered but numbers remained low and so additional releases were made in spring 2012 and spring 2013. No non-target impacts have been observed by the programme of close monitoring.
Baroness Sharples
Will the psyllid really be enough to kill off this pernicious weed? There are increasing reports of wretched owners of land who have had their land affected by Japanese knotweed and have been refused mortgages. Why can we not give them natural Roundup which is unpolluted? I managed to kill off my knotweed a number of years ago.
Lord De Mauley
My Lords, experience from around the world has shown that biocontrol tends to take five to 10 years from the initial releases to achieve effective control. Despite poor summer weather since its release, Aphalara has shown that it can survive in small numbers and overwinter in the wild here. The question is how we can encourage it to achieve survival in larger numbers.
My noble friend mentions mortgages, and we are aware that some mortgage lenders have become reticent to lend if Japanese knotweed poses a threat to the property concerned. We have undertaken some work to estimate the impact of this. The RICS believes that recent concerns by valuers and lenders are often based on misunderstandings, and it consulted on that in 2011 in order to help valuers and mortgage lenders to understand the implications. Cornwall council has also provided guidance for mortgage lenders.
On the use of Roundup, I understand that others have also had success with it. Of course, it needs to be applied with care, and we are also looking carefully at a couple of other possible biocontrol options.
Lord Dubs
My Lords, if the Government are not willing to legislate, can the Minister at least urge local authorities to co-operate locally? When a resident spots knotweed in an adjacent property, the local authority can be helpful in identifying the owner of that property so that something can be done about it. At the moment, some local authorities wash their hands of the problem.
Lord De Mauley
Yes, my Lords. I understand the point that the noble Lord makes. We have to balance, on the one hand, a determination to control this odious invasive species and, on the other, an imperative not to unnecessarily penalise people who are simply not in a position to do anything about it. However, I take the noble Lord’s point.
Baroness Gardner of Parkes
I did not take in the name of the treatment—it was “apha” something—but is there any risk of it becoming like the Hawaiian cane toad of Australia and proving to be a menace in itself?
Lord De Mauley
Yes, my Lords. It is called Aphalara itadori and my noble friend is entirely right. On top of research work that has already been done testing it against more than 90 plant species, we are going through a phased release over five years to make absolutely sure that it focuses entirely and exclusively on Japanese knotweed. That is a really important point.
The Countess of Mar
My Lords, Japanese knotweed is frequently found on publicly owned land, such as railway property and council land. In view of the fact that the Government seem to be totally unable to enforce regulations regarding ragwort, how can any rulings be given on Japanese knotweed?
Lord De Mauley
The noble Countess has a point but this Question is about the use of a biocontrol against it. She mentions Network Rail, which, as a matter of interest, is a member of the project consortium for the natural control of Japanese knotweed and is fully involved in discussions about how the trial proceeds. Along with Defra, it sponsored the Environment Agency knotweed code of practice, published in 2006. It has been a major funder of the research and was among the instigators of the project.
Lord Davies of Oldham
My Lords, the Minister will be aware that the Royal Horticultural Society calls this plant “a real thug”. It does so because of the immense damage that it does. There was a person in my neighbourhood whose house was worth £350,000 but was sold for £50,000 because the weed had invaded the premises. We are also well aware that Network Rail spends a very large sum of money every year protecting the permanent way from knotweed. I fear that the Minister is talking rather gently about a very severe problem, and I hope that he will inject some urgency into the Government’s response.
Lord De Mauley
My Lords, I am aware of frankly tragic stories about people having trouble selling properties and obtaining mortgages, and I have huge sympathy for them. That is why this work is so important.
Lord Greaves
My Lords, I congratulate the noble Baroness, Lady Sharples, on her persistence in this matter, which is vital, and I congratulate the Government on the continuation of the experiments with the psyllid Aphalara itadori. Is it not the case that under the Wildlife and Countryside Act 1981 it is already an offence to plant or cause this species to grow in the wild? Is it not time that that was strengthened and that allowing this plant to grow on your land without taking steps to remove it became an offence?
Lord De Mauley
My noble friend is certainly right that it is an offence to allow it to be introduced into the wild but we think that that is a step too far. It is a real challenge to get it under control and we want to find an effective biocontrol before we consider a move such as that suggested by my noble friend.
Lord Glenarthur
My Lords, can my noble friend say to what extent the spread of this knotweed has developed throughout the whole of the United Kingdom and to what extent the devolved Administrations are playing their part in trying to eradicate it?
Lord De Mauley
That is also an important point. The Welsh Government are a member of the project consortium for the natural control of Japanese knotweed and have been a major funder of the research. The licensing authorities in England and Wales work closely together to ensure a consistent approach. We have kept the Scottish Government updated at key points in the project, although, to answer my noble friend’s first question, Japanese knotweed is not such a significant problem in Scotland.
Lord De Mauley
My Lords, they are blessed with this psyllid, Aphalara itadori, and that is where we got it from. The issue is to ensure that it is as effective under our conditions as it is under Japanese conditions.
Baroness Byford
My Lords, is it not important that the Government take great precautions to prevent the importation of things such as Japanese knotweed? Such things do not just arrive; they are brought in. I know that there have been discussions at European level on the control of imports of plants; for example, Ash plants that might affect our trees, and many others. That is crucial because once Japanese knotweed gets hold, you cannot stop it.
Lord De Mauley
My noble friend is quite right. A non-native species risk assessment of Japanese knotweed has been carried out under the GB non-native species mechanism. It is one of more than 50 risk assessments on plants that have been published. Japanese knotweed is assessed as high risk. There are many others. My noble friend will be aware that we are doing considerable work bearing down on pests such as this which are coming at us from abroad.
Baroness McIntosh of Hudnall
Will the noble Lord explain to those of us who are enthusiastic gardeners but have never seen Japanese knotweed what we should be looking out for? On a more serious note, is he confident that public information—for example, in garden centres and other places where people purchase plants—is at a sufficiently high level to ensure that people who should be aware of what to look out for know what they should be looking for?
Lord De Mauley
My Lords, I quite agree with the noble Baroness that public awareness is one of the most important aspects. I will resist the temptation to describe the appearance of Japanese knotweed in front of your Lordships.
Lord De Mauley
All right then. Defra is helping with the start-up of local action groups which are being established across England to reduce or eradicate invasive non-native plants, including Japanese knotweed. One of the objectives of these groups is to raise awareness of the environmental, social and economic problems that invasive non-native species can cause. They are raising awareness on a local and national scale with landowners, volunteers, potential partners and other interested parties. I should also say that information on GB non-native species is available on the secretariat website, which includes an identification sheet.
Legal Aid, Sentencing and Punishment of Offenders Act 2012: Part 1
(10 years, 9 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, post-legislative scrutiny of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will take place, as is normal, three to five years after Royal Assent. However, the Ministry of Justice will carry out a variety of exercises to monitor the impact of the Act from now on.
Lord Bach
My Lords, I am grateful to the Minister. However, does the evidence available not point clearly to a world where not-for-profit organisations will be decimated, and their clients—often the poor, disadvantaged and sometimes disabled—will no longer have access to legal advice? Just look at what is happening already. Birmingham Law Centre is closing, the well renowned Mary Ward Centre in London, which had 800 welfare benefit cases last year, has precisely nought at the moment, and Coventry Law Centre—I declare my interest as patron of that organisation, which has a superb reputation—has had to turn away from reception at least 350 people who had housing, immigration, debt, employment and family legal issues. I put it to the Minister that this is not good enough for a country that, until this legislation, could pride itself that its legal system tried to be fair to everyone. What are the Government going to do about it?
Lord McNally
My Lords, the Act has been in force for 99 days. It is difficult to get an accurate picture of what is happening in this sector because of a surge of applications before 1 April. However, as I said, the department is carrying out a variety of checks and researches on the impact and we will keep a careful study of what happens.
Lord Marks of Henley-on-Thames
My Lords, can my noble friend say at this stage how far organisations such as Citizens Advice appear to be coping with the changes? In particular, what, if anything, are the Government doing to assist Citizens Advice and others in the sector to introduce new methods of working to help them provide their services where legal aid is not available?
Lord McNally
My Lords, I think we have had these figures before, but since 2010 the Government have provided around £160 million to support the not-for-profit sector, £107 million for the transition fund administered by the Cabinet Office and £20 million via the advice services fund 2011. In 2010-11, the income of the national citizens advice organisation was £62.3 million, with one of its largest grants being £18.9 million from the Department for Business, Innovation and Skills. However, Citizens Advice is also getting contracts under the new Legal Aid Agency civil contracts; 35 such contracts were granted to citizens advice bureaux.
Lord Goldsmith
My Lords, is the Minister able to help us on this despite the fact that the post-legislative scrutiny has not taken place? In addition to the places that my noble friend Lord Bach referred to, the Fulham Legal Advice Centre closed last month, I understand as a result of losing the money which used to come from those areas of work that have been taken out of scope under LASPO. Half the caseworkers in the Surrey Law Centre, which I believe serves the Lord Chancellor’s own constituency, are being made redundant through lack of funds. I declare an interest as chairman of the Access to Justice Foundation and president of the Bar Pro Bono Unit, both of which are involved in providing support to the not-for-profit sector in giving free legal advice. Can the Minister also confirm that these problems are happening against a background of increasing demand? There has been a 100% increase in inquiries to the LawWorks inquiry line and a 26.7% increase in inquiries to the Bar Pro Bono Unit. Will the Minister say what more the Government will do, rather than simply leaving it for three to five years to do a review?
Lord McNally
On the contrary, I thought that I had made it clear in my Answer that we are not leaving it for three to five years. The intention is to monitor and review the impact of LASPO on all the affected groups outlined in the equality impact assessment. The Legal Aid Agency, Her Majesty’s Courts and Tribunals Service and providers will complement the use of administrative data with bespoke research exercises where appropriate. We have worked with the Legal Services Board and the Law Society to carry out a survey of providers of legal advice that will provide a baseline against which changes might be measured in the future. Ad hoc reviews are also conducted where a provider stops undertaking legal aid work.
I am not pretending that law centres have not been hit by this change. However, as I indicated in the previous answer, we have given a lot of money to the transition fund to help law centres and other not-for-profit sectors to reorganise so that they remain effective.
Lord Naseby
Is it not extraordinary that lawyers in the United Kingdom appear to think that around £220 million—the saving required—is a figure that should be brushed aside, and that after just three months there should be a review of the whole process? I urge the Minister to give a strong answer to the judiciary’s response to the consultation, particularly given that the response stated:
“Many young and talented lawyers are no longer choosing to practise in crime”,
which in the long term will affect the quality of the defence and prosecution barristers involved in criminal trials. Is it really the responsibility of the legal aid budget to fund that dimension of legal practice?
Lord McNally
Welcome though my noble friend’s intervention was, he is treading on areas that we will be debating on Thursday, when we have a very full and interesting debate on legal aid. I will say, however, that the noble Lord, Lord Bach, spent most of the last year predicting a perfect storm when LASPO came into effect. In fact, there has not been a perfect storm: the market is adjusting and advice is being given. However, the not-for-profit sector has had to make the adjustment that many others, including my own department, have had to make in the face of economic realities.
Children and Families Bill
(10 years, 9 months ago)
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Lord Nash
That it be an instruction to the Grand Committee to which the Children and Families Bill has been committed that they consider the Bill in the following order:
Clauses 1 to 6, Schedule 1, Clauses 7 to 12, Schedule 2, Clauses 13 to 72, Schedule 3, Clauses 73 and 74, Schedule 4, Clauses 75 to 87, Schedule 5, Clause 88, Schedule 6, Clauses 89 to 98, Schedule 7, Clauses 99 to 112.
Marriage (Same Sex Couples) Bill
(10 years, 9 months ago)
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16:57 - Division on Amendment 1 - Ayes: 119 / Noes: 314 - Amendment 1 disagreed.
18:48 - Division on Amendment 3 - Ayes: 103 / Noes: 278 - Amendment 3 disagreed.
Lord Mackay of Clashfern
( ) Marriage between opposite sex couples shall be referred to as “marriage (opposite sex couples)”.”
Lord Mackay of Clashfern
My Lords, I should first declare an interest. I am the honorary president of the Scottish Bible Society and a member of various Christian groups. I have also been for quite a long time a member of Barnardo’s, which has a certain amount of interest in this area of the law.
The purpose of the first amendment, and of the second amendment that is to be taken with it, is to recognise in the Bill the distinction that exists in fact between marriage for same-sex couples and marriage for opposite-sex couples. I have used only language that occurs already in the Bill. It is striking that the Bill is called the Marriage (Same Sex Couples) Bill. Therefore, I cannot see that what I propose can be objectionable to anybody who wishes to further the Bill in the future. If it is appropriate to refer to what is now being introduced as the Marriage (Same Sex Couples) Bill, it must surely be right to use that name to refer to what exists already in the law, and will continue to exist in the law after this Bill becomes an Act, as I certainly expect that it will.
It seems to me obvious that there is an important distinction between these two types of marriage. My understanding is clear that the Government wish to afford the gold standard to same-sex marriage. That means using the word “marriage” to describe what is involved, which I accept for the purposes of this amendment. Therefore, I cannot see that it in any way degrades what is asked for and granted to same-sex couples in the Bill. The Bill makes distinctions between same-sex marriage and opposite-sex marriage in a number of respects. I need not mention the more technical ones, but there is a fundamental difference in relation to the consummation of the marriage and on the effect to a child of being born to a member of a same-sex couple. That has a very important effect on children.
My understanding is that opposite-sex marriage is a uniquely well designed system for the bringing into the world, and the nurture in the world, of children because opposite-sex marriage involves a direct link between the child and two parents, which arises from the nature of the child’s birth. That, I think, is not in any way replicated in any other form of marriage. Of course, it is possible for children to become children of a marriage in various ways—for example, by adoption and by in vitro fertilisation, which have their own characteristics. Those of your Lordships who sat on the Human Fertilisation and Embryology Bill Committee some time ago, which sought to amend the 1990 Act, will remember hearing people born by means of IVF give very cogent and sensitive evidence on the difficulty of getting information that that had happened and of tracing their roots. I am sure your Lordships are aware that tracing one’s roots and being able to say something about one’s ancestry can be an important factor in the nurture and development of children and, indeed, in the well-being of adults, as people have a great interest in that.
It seems to me essential to recognise that distinction in the Bill as a matter of ordinary drafting. This is not a marriage Bill; it is a Bill which adds to the existing structure a new concept, as I think we should recognise throughout the Bill. It is recognised in the Bill’s Title and is reflected in the heading of various documents, including today’s Marshalled List. In my submission, it is vital that we do not lose sight in future of that aspect of what people have called “traditional marriage” as it is an extremely valuable part of the arrangements that we have had for the birth and nurture of children.
I said in Committee and I say again that the protection of children by marriage, when it works, is extremely important and so far the state has not been able to devise a system which is equally effective. I speak in the presence of people who know much more about this than I do, but I believe that when the natural family fails a child and he has to go into care—which sadly happens, though fortunately not in the majority of cases—one of the difficulties as a matter of practice is to get a bond between a child and a particular individual in, for example a local authority. That is for the very practical reason that local authority staff change and take over different responsibilities and so on. I am sure that that is not the only difficulty, but it is certainly an important one.
I have said that the Bill deals with same-sex marriage and opposite-sex marriage differently in various places and mentioned the technical situation of a child born to a member of the marriage. That child does not enjoy the protection of the marriage on birth. It may be possible for the child to be adopted by the couple, but that is a different process. It is not a direct result of being born to a partner in the marriage. However, perhaps the most striking difference in treatment between same-sex marriage and opposite-sex marriage is in relation to the churches and religious organisations. The nature of the treatment in these two groups is very different indeed. Therefore, it seems only sensible to recognise as a matter of definition what it is that the different treatment applies to.
In my submission, this is the minimum that will secure recognition in the Bill of the distinction between the two. I believe that it completely meets the aims which were intimated as part of what this Bill is about in the sense that it gives marriage with the gold standard to same-sex couples, while retaining, without differentiating to any extent between the two as a value judgment, the essential distinction. This is not a matter of arbitrariness, but of simple fact. Recognising that fact in the Bill seems to me to bring it much closer to what ordinary people—and I count myself in that category—understand the Bill to do. Trying to make out that the two are the same seems to many people, including myself, to be an exercise in fantasy. The factual position is that there is a fundamental distinction which no majority in Parliament or elsewhere can annihilate.
Your Lordships will understand that Amendment 2 is complementary. Later amendments are consequential if the first two are accepted. I am sorry that there are so many of them. This is the minimum that seems to work, although I and other noble Lords think that it may be possible to go further. The later amendment of the noble Lord, Lord Armstrong, to which I and others have added our names, indeed goes further than the minimum. However, my amendment is the essential minimum and if your Lordships were to accept it, a question would remain as to whether the Bill should go further. I beg to move.
Lord Glenarthur
I very much support my noble and learned friend. The debates at Second Reading and in Committee referred to the word “marriage” as being the point at issue and how it could be described in the Bill. The problem with the Bill has been the word “marriage” and it is difficult to find another solution to that problem. For those who have concerns about finding a way to redefine marriage, which the Bill tries to do, it seems sensible, notwithstanding all the sensible comments of my noble and learned friend about the relevance of children to all this, to have a form of words that qualifies marriage under all its circumstances rather than totally redefines it. I very much support the amendment.
Lord Anderson of Swansea
My Lords, it is good to follow the noble and learned Lord, who describes himself as an ordinary person but who happens to be a former Lord Chancellor, one of the most distinguished lawyers in this country. I congratulate the noble and learned Lord on his diligence and ingenuity. I wish that I had thought of the amendment, in which he reproduces the title of the Bill. He clearly sees both sides and has made a serious effort to build a bridge between what might otherwise have become a very polarised debate. Yet, he has given both sides the substance of what they seek.
There are those who believe in traditional marriage, the definition that has existed since time immemorial, and others who wish to extend the definition to include same-sex couples. The Government wish to change that definition with all deliberate speed. I shall not linger on this matter but the deliberate speed is something that puzzles many of us, given that it looks as if the Government were converted to this idea only some time after the election manifestos of three years ago. Now there is nothing stopping them in their haste to get the Bill onto the statute book. Tradition has to be got rid of speedily.
For some, marriage is not just a ceremony with an approved form of words and mutual vows but a sacrament that has existed for many years. I, for example, look forward to my wife and I renewing our vows in a church with the local vicar on the occasion of our golden wedding anniversary in September. For us, our marriage 50 years ago was not some simple ceremony but a form of sacrament before God. Some hold that dear for that reason. For others who have come to their view only over the past year or two—and I include the Government and the official Opposition—the extension of the definition is necessary for equality. Perhaps that is as part of a Damascene conversion as they did not think so a year or two ago.
The amendment of the noble and learned Lord allows two things. Same-sex couples will be able to say in all honesty that they are married and truthfully assert that status when they discuss their marriages with other people. At the same time, the proposal recognises that same-sex marriages cannot be the same as traditional marriages. The noble and learned Lord mentioned characteristics such as non-consummation, adultery, being physically different, and the effect on children, a subject in which he has had a close interest. It is therefore absurd to try to make the same that which is essentially different. The amendment therefore allows for same-sex couples to be distinct but at the same time to be married and to be able to say so when they discuss their relationship with other people. It is an ingenious effort to bridge the gap, which I wholeheartedly support and commend to your Lordships’ House.
Lord Lester of Herne Hill
My Lords, we all agree that marriage is a vital institution. The exclusive commitment of two individuals to each other nurtures mutual love, support and stability. For those who choose to marry and their children, marriage provides legal, financial and social benefits and, in return, legal, financial and social obligations.
Two competing views of marriage were helpfully identified by Justice Alito in his opinion in the United States case of Windsor on 26 June, in which he dissented from the majority—the majority having decided that the denial by the Defense of Marriage Act of federal benefits to same-sex couples lawfully married under New York law was unconstitutional.
In his dissent, Justice Alito referred to the traditional conjugal view that sees marriage as,
“an intrinsically opposite-sex institution—the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so … Throughout human history and across many cultures, marriage has been viewed as an exclusively opposite–sex institution and as one intrinsically linked to procreation and biological kinship”.
That is the view of my noble and learned friend Lord Mackay and others who have spoken so far.
Justice Alito then referred to what he called the newer view that is the consent-based vision of marriage,
“a vision that primarily defines marriage as the solemnization of mutual commitment—marked by a strong emotional attachment and sexual attraction—between two persons. At least as it applies to heterosexual couples, this view of marriage now plays a very prominent part in the popular understanding of the institution … Proponents of same-sex marriage argue that because gender differentiation is not relevant to this vision, the exclusion of same-sex couples from the institution of marriage is,
what he describes as,
“rank discrimination”.
The Bill removes that rank discrimination by securing equality for same-sex couples according to the newer view of consent-based marriage while protecting the traditional conjugal view of opposite-sex marriages for religious organisations such as the Church of England, the Catholic Church and others which do not wish to celebrate or solemnize same-sex marriages. It protects freedom of religion in that important way.
The supporters of this group of amendments—I shall make only one short speech on all of the amendments, which are grouped together on an industrial scale—do not like the Bill and seek to substitute for the phrase “the marriage of same sex couples” the phrase “marriage (same sex couples)”. They believe strongly in the traditional conjugal view of marriage as being much better, as we have heard, for the upbringing of children and they do not believe that the marriage of same-sex couples is to be regarded equally. They reflect their deeply held religious beliefs that I understand and fully respect.
However, these amendments would obscure the main purpose of the Bill, which is to enable same-sex couples to marry in accordance with the newer view of consent-based marriage because they are excluded under the traditional conjugal view of marriage. There should be no hierarchy that puts traditional marriage above consent-based marriage, whether in the definition of the marriage of same-sex couples or whether they are to be treated equally in all respects with the marriage of opposite-sex couples.
The attempt to define same-sex marriage differently from opposite-sex marriage while claiming that they are somehow equal would inevitably be seen by ordinary men and women in the street—and by me, as a not very ordinary man in the street, I suppose—as attempting to give the traditional view of marriage a superior status. It is essential to be sure that the marriage of same-sex couples is not regarded as less worthy than the marriage of opposite-sex couples. That is why I cannot support these amendments.
The Earl of Listowel
My Lords, I listened with great interest as the noble and learned Lord, Lord Mackay of Clashfern, presented his case, particularly to what he said about children and families and the importance for children to grow up in a very strong environment, ideally with a father and a mother. I do not think that he said that specifically, but he talked about children coming into the care system and the difficulties at finding someone who will make a real commitment to the child. In my own family, marriage was fairly relaxed from a religious point of view, but it was there in preparation for having a child and gave us children a secure base to look forward to.
I listened to the noble Lord, Lord Lester, speaking about the old view and the modern view of marriage. The old view is there for families and to give a strong framework in which children can grow up, and the modern view is much more about individual adults choosing what is best for them and what they feel most comfortable with. I am reminded of a report from the Children’s Society—the Good Childhood inquiry—some time ago, which drew attention to exactly that change and shift in adults, and the unfortunate consequence for children, with so many children nowadays growing up without contact with their fathers. That freedom of choice for adults has become a very unhappy situation for many children who do not have that security of having a father around.
This is such a difficult question and it is helpful that the noble and learned Lord has tabled the amendment. It is important to distinguish between this new version of marriage that we are discussing today, and traditional marriage, especially as there is some misunderstanding about the impact of same-sex parenting and heterosexual parenting on child development. There are strong feelings on both sides, and some say now that the question is quite finalised: we all know that same-sex parenting has the same outcomes for children as heterosexual parenting. However, I think that there are a number of difficulties about that particular point of view, and I would say briefly that same-sex parenting has been around for only a short time; it is a new phenomenon, so scientifically there has not been the time for extensive or controlled research to verify either way, or to provide data on these outcomes. We will come back to this later in the debate, but I support strongly what the noble and learned Lord proposes, and I hope that the Minister will feel inclined to accept it.
Baroness Butler-Sloss
My Lords, I am grateful to the noble and learned Lord across the Chamber. I want to make a brief point to the noble Lord, Lord Lester. If the noble and learned Lord, Lord Mackay, had asked for the phrase, “traditional marriage”, the point made would have some benefit and would be something that we should perhaps take into account. But the amendment refers to “same sex couples” and “opposite sex couples”, so how on earth can anyone suggest anywhere that one sort of couple is better than another sort of couple? They just happen to be different—different and equal. So I cannot see how the noble Lord, Lord Lester, can make the point that one group will be downgraded because they are the same sex and another will not be downgraded because they are opposite. That is not an argument that can be used in the present wording—very clever and careful wording, if I may respectfully say so—of the noble and learned Lord’s amendment.
The Lord Bishop of Chester
My Lords, I find myself asking, what would actually change in the Bill if we accepted the amendment? As I understand it, there would be recognition of difference yet equal treatment of the two types of couple. That is what would happen. Therefore, I ask the noble Lord, Lord Lester, who we all respect so greatly, is it the case that the couples would not be regarded equally when, in fact, the treatment of the couples would be exactly equal in law? The noble and learned Baroness, Lady Butler-Sloss, made a similar point. Would accepting the amendment of noble and learned Lord, Lord Mackay of Clashfern—there are two Lord Mackays now in the House—accord either of these forms of marriage a superior status, as was alleged? I do not see that on the face of the Bill. It simply accepts a certain difference.
Behind this lies a seductive aspect of the Equality Act itself, that any differentiation amid the protected characteristics is all the same. Therefore, the difference between a woman of childbearing age and a woman beyond childbearing age is just the same as the difference between a man and a woman. That is plainly not the case. There is a greater distinction between a man and a woman biologically than between a woman of childbearing age and one who is not. An element of recognition of difference within equal treatment in law is entirely consistent with the purposes of the Bill.
Lord Waddington
I read on Saturday a speech made by the most reverend Primate the Archbishop of Canterbury. I will not trouble the House with much of the speech, but it contained this particular passage:
“The opposition to the Bill, which included me and many other bishops, was utterly overwhelmed … There was noticeable hostility to the view of the Churches”.
I was not surprised by what I read. There are many of us not of the church who have experienced the same hostility to our views. I hope that supporters of the Bill do not forget that a substantial proportion of the population were, and are still, greatly disturbed that the Government should have introduced a measure that rejects the traditional view of marriage. Many of us are surprised that, far from trying to meet the concerns of such people, the Government have turned down every opportunity to soothe the susceptibilities of those who find the concept of same-sex marriage difficult to stomach.
Surely the Bill should not reach the statute book without the Government doing something to acknowledge that, until recently, it was almost universally accepted—it was certainly so accepted by the previous Government—that marriage could be only between a man and a woman. The views of those who still hold that belief are therefore worthy of respect and should be acknowledged in the Bill. The best way of doing that is not just by a declaration in the form set out in Amendment 4, but by a clear statement that the marriage of a same-sex couple and the marriage of an opposite-sex couple are equally valid but clearly different. The differences have been gone over time and time again since Second Reading and I will not go into them now, but they are different.
I do not think that so far this burying of traditional marriage, and putting something entirely new in its place, has yet been fully recognised by the populace. I wonder how many realise that this legislation authorises in law a man who is married to another man to be called a husband, and a woman married to another woman to be called a wife. Wife in its old meaning has been abolished by a little-read schedule to the Bill and, no doubt, the proper use of the term will soon disappear. These are dramatic changes—changes that pay no regard to the normal use of the English language, tradition, common sense or common courtesies. It is up to those initiating such change to try and make it reasonably palatable for those who were brought up to accept that marriage is the union of a man and a woman. I hope that, even at this late hour, the Government will recognise that they have some obligation in this matter.
Lord Pannick
My Lords, I do not support the amendments because each of them would wrongly suggest to the happy couple entering into a state of matrimony—to their families, their friends and to the world at large—that theirs is not a marriage like any other. The amendments would suggest that it is a distinct form of marriage to be placed in a category of its own. Since the very purpose of the Bill is to recognise same-sex marriages as the voluntary union of one man with another or one woman with another, in the same way as the voluntary union of a man and a woman, it would surely be bizarre in the extreme for us churlishly to take away by a subsection part of the recognition and status that the Bill will accord.
No one would seriously suggest, I assume, that there should be a legislative provision that states that marriage between divorced persons shall be referred to as marriage (divorced couples). The whole point of the Bill is that all lawful marriages, which will include marriages between same-sex couples, are marriages— although, as we all know from our personal experience, each and every marriage is unique.
The noble and learned Lord, Lord Mackay of Clashfern, emphasised that there are some respects in which the Bill treats a same-sex marriage as different from a marriage of an opposite-sex couple. But the whole point of the Bill, surely, is that, notwithstanding those differences, the Bill will implement the basic and vital principle that a same-sex marriage is a marriage with the same status and consequences as any other.
I entirely understand why those who are fundamentally and sincerely opposed to the Bill should wish to introduce these amendments. But they should recognise why those of us who support the Bill regard them as simply incompatible with the fundamental purpose of the legislation.
Lord Mackay of Clashfern
The noble Lord said that the two types of marriage are to have exactly the same consequences. I think I heard him correctly.
Lord Pannick
I said that I understood the noble and learned Lord’s point that the Bill in various respects, which he referred to, treats same-sex marriage and opposite-sex marriage as distinct in various respects. But I made the point that the purpose of the Bill is nevertheless to recognise that each category should be accepted as a lawful marriage for the purposes of the law of England.
Lord Mackay of Clashfern
The noble Lord will be able to say which of my amendments in any way detracts from that. I understood him to say in his earlier submission that there was no difference in consequence. There is a very vital difference in consequence in this respect: a child born to a woman in a same-sex marriage is not a child of the marriage.
Lord Pannick
I respectfully object to the suggestion that a Bill with these purposes and valuable effects should distinguish between same-sex marriage and opposite-sex marriage and necessarily imply a division between them. That is what I object to.
Lord Cormack
My Lords, I added my name to the amendment because I felt that it was not churlish, derogatory or demeaning. In fact, it indicates that those of us who have profound misgivings about the Bill have done all that we can to acknowledge the validity of the arguments of those who are its champions. All the amendment does is repeat certain words that are in the Bill. The noble Lord, Lord Pannick, or any other noble Lord can talk until he is blue in the face without altering the fact that there is a difference between a same-sex marriage and a marriage between a man and a woman. All this amendment does is acknowledge that. It concedes the word “marriage”.
Lord Alli
My Lords, I fear that my response will disappoint the noble Lord, but let me try to explain why. The amendment seeks to create two classes of marriage. It is conceived from the notion, as the noble and learned Lord said, that what same-sex couples want is use of the word “marriage”. It simply misses the point. What same-sex couples want is marriage itself. They want to share with opposite-sex couples the joy of married life, and to be treated equally by the state and by society. They do not want to be “married (same sex couples)”, and I suspect that opposite-sex couples do not want their union bracketed, either.
The noble and learned Lord has gone to a huge amount of trouble to identify and draft amendments to ensure that the brackets are in the right places and the sexual orientation identifiers placed at any and all opportunities. The question that perplexes me is: why is that necessary? Why does the noble and learned Lord want to pick out gay couples in such a public and conspicuous way? I understand that those opposed to same-sex marriage, having lost the vote at Second Reading, now want a second—and, judging by the Marshalled List, a third, fourth, fifth and sixth—bite of the cherry. “Give them marriage”, says the noble and learned Lord, “but not the name. Call it something else: ‘traditional marriage’ and ‘marriage (same sex couples)’—anything but marriage itself”. That is a new battle; in that way we can preserve the inequality between same-sex and opposite-sex marriage.
If we do that, what of international recognition? This amendment would allow other countries to treat same-sex couples differently from opposite-sex couples. Those countries will say, “We recognise only marriage (opposite sex couples)”. We will draw in statute a difference for others to exploit. That is a bad idea. The word “marriage” should be able to be used by couples regardless of their sexual orientation.
I have a great deal of respect and admiration for the noble and learned Lord and agree with much of what he says on many occasions, but I find myself diametrically opposed to his view on this matter. I do not think that the noble and learned Lord or other noble Lords who have spoken in support of this amendment will ever see this Bill as I do. The amendment that the noble and learned Lord has crafted is a means of dividing us, not uniting us. It pours salts on to wounds at a time when we should be healing. It will allow others—not noble Lords in this place—to create mischief where none was intended. It will be argued that Parliament made the distinction so must have had a purpose in doing so. There the discrimination begins.
We have an obligation in this House to make good and to rebuild once this Bill is passed. This amendment would leave a scar on the Bill for another day, and another battle to be fought. For those reasons, and many more, I hope that this amendment will be defeated. Two classes of marriage, however well disguised, is the very opposite of what this Bill is designed to do. Giving us the use of the word “marriage” with one hand and taking back its exclusivity with the other would be a fatal blow to the intentions of the Bill. Just to be clear, I do not find the amendment acceptable in any shape or form. I hope for the reasons that I have tried to express that the noble and learned Lord will understand why I do not share his view.
Lord Skelmersdale
Is the logic of the noble Lord’s position that this Bill should not be called the Marriage (Same Sex Couples) Bill but the Marriage (Amendment) Bill? Would he be interested in putting down an amendment, if it is not too late, to that effect?
Lord Deben
My Lords, it is always with very great care that one clashes with the noble and learned Lord, Lord Mackay, particularly when one has to suggest to him that there is an illogicality in the argument that he has put forward. He said, on the one hand, that there is a whole range of differences between same-sex marriage and opposite-sex marriage. In that, he is not only right but obviously right. He then attached to that the reason for making this distinction in the Bill, but it is a distinction that does not need to be in the Bill because, as he says, it is universally recognised. Therefore, making the distinction in the Bill must be for a different purpose.
As we have heard the debate continue, we have moved from the careful language of the noble and learned Lord to expositions which explain the purpose of the amendments. When they are referred to as modest amendments, I think only of the modest proposal which, in Dean Swift’s writing, went rather further than that title suggested. This modest amendment is here for a purpose. It is to say now what has so far not been able to be said more directly, which is, “Wait a moment, it is not quite what you say”. We will have made sure that in the Bill, and therefore in the Act, we make a distinction that can be referred to and used not only internationally, as the noble Lord, Lord Alli, said, but at home.
I think that Christians should be even more strongly opposed to this than others because the Bill is specifically designed to give us an absolute right to maintain our view about marriage. It does so on the basis that it gives the state an absolute right to maintain its view about marriage. That was, after all, something that was started back in the days of Henry VIII, when the state said that it could make its own decisions about what marriage meant, even though that meant disagreeing with the highest powers in the church.
I am not suggesting that the state should go any further in its relationships with the church than Henry VIII did, but I am suggesting that this is an historic decision and one that we should respect. The church, under the quadruple lock, is absolutely able both to perform and to give its teaching about marriage. That is a teaching which I wholly support. As a convert, I have to, otherwise I would not have made that decision and choice. However, I also believe that parliamentarians have a duty to the whole nation, and those in the whole nation who seek marriage do not seek marriage followed by brackets. Indeed, I think that opposite-sex couples ought to object to this. Why should they have marriage so defined?
I turn to the second argument, which is that in the very clear words quoted by the noble Lord, Lord Lester, there is now a different way of looking at marriage from the historic one. That was rapidly picked up by those who want to support the amendment. I hope that we will think carefully about this. Differentiating between same-sex marriage and opposite-sex marriage because you think that the one is about a new view of marriage and the other is about an old view is of course not correct. If you wanted to distinguish between the new view and the old view of marriage, you would have to have more brackets. You would have to have “(traditional) marriage” for opposite-sex marriage and “(new) marriage” for opposite-sex marriage. No one in this House would suggest that as one approaches the registry office or the smart hotel, one should go up with a list of alternatives, asking, “Am I going in for marriage-light or marriage-heavy? Am I taking marriage in this way or that way?”. From much of my experience of some 35 years in surgeries as a Member of Parliament—more, if you take in the period of candidacy—I do not think that anybody would understand having to fill in a form on that basis.
The Earl of Listowel
My Lords, before the noble Lord sits down, he has made many important points but in his first point I think he was saying that there is no risk of confusion in the public mind and no need for this differentiation because it is all clear. However, is there not a risk in terms of raising children? There is a real question in the public mind about having children raised by, for instance, two men or two women and about children being raised without a father. I must not go on, of course, and this is a simple question. However, there is confusion, and is not the benefit of this amendment that there would be less confusion?
Lord Deben
I very much thank the noble Earl for that question. It would be germane if we were in France and debating the French changes, because France changed the law about adoption. The whole system was changed. We, of course, are not changing the law, as that provision is already there and is not altered at all. If that was where we were and what we were doing, there would be a different argument because I have to tell the House that I have a huge problem with the creation of babies in a world in which there are so many babies waiting for adoption. I have not yet come to believe that there is enough evidence to say that same-sex adoption is the same as or equal to opposite-sex adoption, but none of those issues is before us today. If they were, we would have a different argument. Because they are not, the proposed change is naked and unashamed. It is not about children or any of those things. It is about two different sorts of marriage and the difference will be upheld by those of ill will and by some of those of ignorant will, and we should not have it.
Lord Fowler
My Lords, I have had great respect for my noble and learned friend Lord Mackay of Clashfern ever since we sat in Cabinet together, but on this proposition I am afraid I cannot support him. He seems essentially to be making a division between one group and another when the whole aim of the Bill is to eliminate divisions and to seek to create some equality. To that extent, the amendment goes against the spirit of the Bill, which both Houses of Parliament have given massive majorities, and I think there is a limit to the number of times that we can debate the Second Reading in this House.
I have been told by, among others, my noble friends Lord Waddington and Lord Cormack that we must listen to what is being said outside this House. I agree, but that is an argument that goes both ways. We should also take into account what gay and lesbian people feel about the way that they have been treated and whether this is yet another attempt to create an underlying division between them and the rest of society. The reason they will feel that—and this is a point that my noble friend Lord Deben referred to in his excellent speech—is the discrimination and prejudice that they have faced over the years in this country. Of course it is true that homosexuality is no longer an offence in the United Kingdom, but let no one believe for a moment that the prejudice has vanished with it. It is true that it is not so bad here as in some notoriously homophobic countries overseas. I have just returned from Russia, where I have been looking at exactly these kinds of issues and where a new law has been passed to stop gay issues being discussed, making gays and lesbians subject to attack.
However, we still have a mountain of prejudice to overcome here in this country. A few days ago I was listening to a much respected figure in the HIV world who said that if he was walking down the road in this country arm-in-arm with his male partner, he could not be sure that he would not be verbally or even physically abused. That is Britain as it stands today, viewed from his eyes. I listened to the gay footballer Robbie Rogers—a committed Christian, incidentally—who came out only after he had left British football. One cannot speculate too much about the reason for that or about the reaction that he would have received had he done so before.
We can listen to the YouGov survey on behalf of Stonewall, which showed that over the past five years 2.5 million people of working age have witnessed verbal homophobic bullying at work, 800,000 people of working age have witnessed physical homophobic bullying at work and two-thirds of people aged 18 to 29 say that there was homophobic bullying in their school. That is not a record that this country can be remotely proud of. It is that sort of thing that underlies my opposition to my noble friend’s amendment.
The overriding goal of policy today should not be to underline differences but to underline the goal of equality of treatment. That intention was overwhelmingly backed by the votes of both Houses of Parliament, and I certainly do not believe that we should try now to unpick the votes of the two Houses at Second Reading in this amendment.
Lord Richard
My Lords, I have an enormous respect for the noble and learned Lord, Lord Mackay, as he knows, but as a long-standing judge he also knows that when one says, “With the greatest respect”, one knows precisely what the phrase means. I have great respect for him and his argument but I am afraid that, on this, he is wrong. He is wrong because the reintroduction of a distinction that the Bill takes out is dangerous, destructive, divisive and debilitating.
I listened to this debate with great care and, with great respect to the noble Lord, Lord Cormack, he let the cat out of the bag when he stood there and said, “We have given you marriage, now give us the distinction”. That is a contradiction in relation to the Bill; the whole point of the Bill is that there is no distinction in relation to marriage. Marriage is something that will be available to gay couples in the same way that it is available to non-gay couples.
As I say, I have listened to this debate and it has gone round and round, but I have little doubt which way I shall vote if a vote takes place.
Baroness Kramer
My Lords, I have not spoken before in this debate; it has taken an exercise of will power, but I have been conscious that time is an issue, and that is true for many of my colleagues on these Benches. I moved the first civil partnership motion at my party’s conference in 2001, having turned to my noble friend Lord Lester for legal advice. I am happy and honoured that that process played a role in bringing us to the incredibly important civil rights legislation that we have in front of us today. I did so motivated by close family and friends who are bisexual, gay and straight but who believe that these changes are extremely important.
What drove me to speak today on the amendment moved by the noble and learned Lord, Lord Mackay, were the comments of the mother of a good lesbian friend who said to me, “Why is it so important to those people”—she means the noble and learned Lord, Lord Mackay, and others, and she means no disrespect—“to mark out my daughter as different and to mark out her relationships as different?”. There are many differences, and others have described them. Every marriage is different and many of us fall into a variety of different categories. However, there are those we choose to mark out, and it is a choice—there is nothing inevitable about marking out a difference. That choice says something about the values of the society of which we are a part and something about ourselves. I have struggled today to understand why creating and reinforcing that sense of us and other is so important, and it seems to me to lie behind those amendments.
I promised that I would be brief. I spent some years, as noble Lords will know, in the United States, so perhaps I come to some of these issues of civil rights with a slightly different perspective. I am conscious of the dissenting view of Justice John Marshall Harlan in 1896 in Plessy v Ferguson. It was that Supreme Court ruling that created the basis for separate and equal. I thought I would read noble Lords one of his sentences, slightly paraphrasing. He said, “The thin disguise of equal”, and have we not heard today that these changes still permit equal? However, he said, “The thin disguise of equal will not mislead anyone”, and I believe that the changes proposed today will not mislead anyone. They are not a mechanism for recognising the common institution of marriage, which unites every adult engaging in a committed, loving and public relationship and who chooses to express that through marriage, whether it is with a person of the same sex or a person of the opposite sex. I ask that this House recognises that the thin disguise of equal is not where we should be on this crucial piece of civil rights legislation.
Lord Elystan-Morgan
My Lords, I respectfully disagree with the noble Lord, Lord Deben, who made an excellent speech. Although I agree with his basic submission, I disagree with his argument that this is a wrecking amendment. It is not a wrecking amendment, but it is an amendment that, if carried, could defeat the whole purpose and objective of this legislation. It is on that basis that we should look at it this afternoon.
The issue is important but simple: whether you elongate the institution of marriage to include same-sex marriage as one indivisible institution, or draw a dividing line through it—a frontier line that will create two categories of marriage, one a gold standard and one a standard of baser metal. That is the issue.
There are three arguments that can be put very briefly in favour of opposing the amendment and accepting the elongated institution argument. First, marriage has passed through many different phases, definitions and concepts in the past 200 years. Before the 1836 legislation, all people who wanted to get lawfully married had to be married in the Church of England. Many, like my forebears, found that extremely distasteful but that was it—it was a fait accompli. Before the Married Women’s Property Act 1882, a married woman could not hold property; it became her husband’s upon marriage. All that she could cling to was what was called her paraphernalia. That changed everything. Before 1991, where two persons were married and no separation order had been made by the courts, a man could rape his wife and she would have no redress. Do you think that did not change the institution immensely? One may point to a number of other phenomena that have in total, and in many cases individually, changed the situation fundamentally. That is the first argument: there have been changes in the law that have fundamentally metamorphosed the whole concept of marriage.
Secondly—I say this with very great diffidence as a Welsh Presbyterian—there have been changes in the spiritual world as well. The Book of Common Prayer justifies marriage in three ways: first, for the procreation of children; secondly, so that the temptations of adultery and fornication should be removed; and thirdly, so that there should be a lifelong, devoted, loving partnership between two people. As far as the first is concerned, you might say that people who are beyond child-bearing age are logically in breach of that precept, but nobody in his or her senses would argue that. However, I know many young people who, for professional reasons, have married on the basis that they will not have children. That is the clearest understanding and agreement between them. Do you say that their marriage should be placed in some hermetically sealed compartment on that account? I would not argue that. Essentially, is one not justified, to a large extent, in saying that the essence of marriage today for so many people is that lifelong commitment of love, affection and loyalty? If that be the case, one can say, yes, in the spiritual world, too, there have been massive changes that have been accepted by society.
There is a third justification. Many Peers have already spoken of the days before 1967, when homosexuality was a very grave offence. I remember well over 60 years ago, when I was a young law student, going along to the assizes and seeing the local vicar, the nonconformist minister, the accountant, the solicitor and many similar people of high standing in society, all being sent to prison for four or five years for what we would today call “lavatory cases”. I remember thinking, “There must be some better way of dealing with this problem”.
I have argued with myself a great deal over the past few weeks as to where I stand in relation to this matter. I have asked myself whether this change—the concept of single-sex marriage, which is of course a massive change—is of such magnitude as to demean and in some way unsettle and undermine the concept of marriage. I have asked myself whether it any way demeans or changes my own marriage. I was supremely happily married for 48 years to a very splendid lady, who died six years ago. I am sure that if she were alive today, she would say to me, “Yes, there is a third argument: the argument of reasonableness and tolerance”.
As a community we have treated these people abominably, in a way that is a disgrace to our religion and to so many things that we believed we stood for as a community. Now we have a chance to make up for that, and we will do exactly that by elongating and not dividing.
Lord Phillips of Sudbury
My Lords, I apologise to my noble and learned friend Lord Mackay of Clashfern. British Rail prevented me from being here when he opened this debate. However, I have had the advantage of long discussion with him concerning his reasons for putting forward the amendment and I support it.
This is not an easy debate. I am sure that there are many in the House now who sway this way and that. The issues are highly complex and diverse and we have heard some outstanding speeches today. However, I disagree totally with one of the things that my noble friend Lord Fowler said when he put it to the House that if we passed this amendment it would add directly to homophobia in this country. If I was even a little in agreement with him on that, I would not be standing and speaking here. However difficult it is to assess the reactions of the great people of this country to matters such as this, far from increasing homophobia, Amendment 1 could ease the passage and consequences of this profoundly important measure for the millions of our decent, not prejudiced and not homophobic countrymen who currently believe that we may be foisting on them what they would call an untruth—they might call it dishonest or a public relations exercise.
Whether we like it or not, millions of our decent fellow-citizens will agree totally about same-sex couples having the same esteem, love and life-long commitment, and so on, but, as has been said many times, and so one need not elaborate on it, they believe that unions between same-sex couples and opposite-sex couples are different and that they have profoundly different potential consequences. To say that many opposite-sex couples are disabled, too old or disinclined to procreate is not an answer to the fundamental factual and real difference. That is where, I repeat, millions of our countrymen sit at this time. The noble Lord, Lord Pannick, talked about an inferior status, but they do not want to create anything of the sort. Nobody is interested in belittling the commitments made by homosexuals; there are a few, but, I maintain, not many. However, what they do say is, “Why are we pretending that it is exactly the same when it is profoundly different in one particular?” Why not use the word “marriage”, since that is the important thing, and then have the qualification? It is not even as though the qualification is very novel: it is in the Title of the Bill as we sit here. I believe that in time—and I do not think that it will be a long time—people will concentrate on the word “marriage” and the bracketed bit, frankly, will fade into lesser and lesser significance as the public mind progresses.
One might ask, “Why have that wording?” I actually believe—this is the nub of it—that we will ease the passage of this important measure if we put Amendment 1 in the Bill. We will salve the present discontent that so many people feel about the Bill as it stands. That is why I shall vote for Amendment 1.
Baroness Howarth of Breckland
Before the noble Lord sits down, does he not think that that has already been achieved by the lock? I am always interested when the right reverend Prelates join in the debate. The only other intervention I have made in these debates was to ask the most reverend Primate the Archbishop of York whether, if the Bill goes through, the Church of England will marry gay couples. We know the answer to that. Those people who object already have a huge lock—I am not sure that I am happy about that in itself—and that holds enough.
Lord Phillips of Sudbury
The noble Baroness raises an interesting point. The quadruple lock is important to people of religious faith. However, I am not talking just about people of religious faith. The current objection goes way beyond that category.
Lord Winston
Is the noble Lord aware of the research on children who are being raised by people who are gay—either lesbian or male homosexual? There is now a large and incontrovertible body of research evidence—particularly from Professor Golombok of the University of Cambridge—which shows that on average such children do better than children who are born in the normal way of current marriage. That is an important point as several noble Lords have raised the issue of procreation. We have to understand that there is no evidence at all that children are worse off as a result of having parents who are in a gay partnership.
Baroness Northover
I remind noble Lords that we are at Report stage and that interventions, if they must happen, should be very brief—namely, a quick question of clarification rather than, in effect, another speech. I also remind my noble friend that those who speak in each debate should be here at the beginning. I realise that there are problems with trains. Nevertheless, there are a lot of noble Lords seeking to get in.
Lord Phillips of Sudbury
If I may answer briefly the noble Lord, Lord Winston—
Lord Davies of Coity
My Lords, Amendment 1 is very simple and I give it wholehearted support. Some things have been said during the debate on which I want to comment. The noble Lord, Lord Fowler, talked about prejudice. Yes, there is prejudice. For example, there is prejudice about capital punishment and there is prejudice about the European Union. We do not ban them. In fact, we might be having referendums on them shortly. Nevertheless, there is prejudice.
This amendment is a simple one. It distinguishes between natural relationships between men and women on the one hand and relationships between men and between women on the other. That is fine. However, everyone has a vested interest in this debate. I have one, for example, and the noble Lord, Lord Alli, has one as well.
I have been married to my wife for 53 years and have four daughters. My second daughter wanted a second child and tried IVF nine times before she succeeded in having one. When I went to the IVF clinic, I saw the faces of women who wanted nothing else but to have children. This amendment protects those children as well as giving members of the gay community the opportunity to marry. They want to have that opportunity and they will get it. However, a marriage between a man and a woman has to be identified because it is natural and should exist separately in the way that this amendment provides for.
Lord Elton
My Lords, my father told me that when this House was evacuated from this Chamber to let the House of Commons sit here, the Lords moved to the Robing Room. The space there was limited by the voting lobbies on either side, the rails below the Throne and the Bar at the bottom of the House. He said that the result was not really a Chamber but a rather comfortable drawing room, in which one could not have oratory but only talk to each other. He thought it was a great pity that the Lords returned to this Chamber. We have heard a lot of oratory today and I think sometimes it moves people to go a little further than they intended. For instance, my noble friend Lord Deben said that anyone who opposed the amendment did so out of ignorance or something—
Lord Deben
I am sorry. If that was said, it was a mistake. I said that, were we to pass this amendment, some people outside, either through ignorance or bad will, would use it in a way which would be damaging and divisive.
Lord Elton
I am delighted. I can move swiftly on to my other small, brief point, which is simply that after a battle the battlefield is covered with broken lances, some of which are worth picking up and mending. We have to distinguish between “equal” and “the same” and the difference has to be understood. Underlying this there is an assumption that if something is different it cannot be equal. I ask your Lordships to look at other noble Lords around the Chamber for a moment or two and remember that this is a House of Peers. We are all equal and, by gum, we are all different.
Lord West of Spithead
My Lords, in the mid-1990s I was the Naval Secretary with responsibility for naval personnel and the Special Investigation Branch. On taking up that post, I discovered the degrading treatment that was meted out to people suspected of being gay, who had anonymous phone calls made about them. It was still illegal to be gay in the services. I was shocked and appalled at how gay people were treated. I stopped that behaviour immediately and then pushed very hard to allow them to be accepted in the Armed Forces. Thank goodness, that happened because it worked brilliantly and it is a good thing to have done. We have a terrible baggage from how we have treated homosexuals and lesbians in this country, as was said by the noble Lords, Lord Deben and Lord Fowler, and others. I am afraid that this is a wrecking amendment. When I came into the Chamber, I did not know how I would vote on the amendment. However, having listened to the arguments put forward, I fear that this is a wrecking amendment. The noble Lord, Lord Pannick, is absolutely right: every marriage is different. Will this demean my marriage? It will not do so at all. I believe that the people we are discussing should have the opportunity.
Baroness Howarth of Breckland
My Lords, I have not made a speech in this debate, just two short interventions, and I wish to speak briefly now. Having talked to dozens of gay people recently and to my ordinary friends who wanted to discuss the Bill, it is clear that the only thing gay and lesbian people want is to be treated as ordinary people. They do not want to be (extraordinary) people. People who are on the receiving end of prejudice, particularly when they are practising Christians and live profoundly Christian lives, know what those brackets mean. They mean that you are different; you are not ordinary. Being ordinary means living in your community and bringing up children—maybe lots of children. It means going to church regularly and being accepted on the same basis as every other Christian in your community. It means sharing with your fellows on an equal basis. Gay and lesbian people do not want brackets as they make them different and will make them even more different as they travel across the world. I beg your Lordships, in common decency, to give gay people what they want: simply to be ordinary.
We are all much aware of the noble and learned Lord’s concern about family and children, because he has spoken about them many times in this Chamber. However, with respect, these are not the issues being discussed in this Bill. I agree with many noble Lords who said that this will probably be known as the “brackets” amendment. We do not want or need brackets in this Bill, because its very purpose is to provide for the state to recognise equally the relationships of couples who wish to make a loving and lifelong commitment to each other, regardless of whether they are members of the same sex or of the opposite sex.
I accept that this purpose moves the statutory concept of marriage beyond that which proponents of traditional marriage agree. This amendment is about creating two classes of marriage. I congratulate my noble friend Lord Anderson, who spoke of celebrating his special wedding anniversary, but I hope that I will live long enough to celebrate silver wedding anniversaries of same-sex marriages which will take place next summer. My noble friends Lord Alli and Lord Richard, and the noble Lords, Lord Fowler, Lord Deben, Lord Pannick and Lord Lester, put the case powerfully and well.
I am surprised by the opposition to equality of marriage from the noble Earl, Lord Listowel, given his work with children, for which he is famous in this House. If he had discussed this with young people, as I have, he may find that in most cases they really do not understand what the fuss is about or what the problem is here. I do not think that the problems faced by the types of young people the noble Earl helps and supports are a result of, for instance, the proposal for same-sex marriage. That cannot be the case.
I would say to the noble Lord, Lord Waddington, that I have not seen any hostility to the church during the course of these discussions. My noble friend Lady Royall and I have met both the Church of England and the Roman Catholic Church on several occasions throughout the course of this Bill. They were friendly exchanges and friendly discussion. We disagree with each other on some of this Bill, but I have not seen any unfriendliness, nor do I think that the dismal picture that the noble Lord paints will come to pass.
I do not think that the word “wife” will be abolished. As a wife, I certainly do not think so and I hope that nobody will put any ideas into my husband’s head. We wives are probably very safe with the passage of this Bill. My noble friend Lord Alli asked the question, “Why do same-sex couples have to have bracketed marriages?”. I agree with him that it is a bad idea. We should defeat this amendment.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble and learned friend for introducing his amendment and for all the contributions to the debate. One or two noble Lords referred to this issue as being complex. I disagree with them. What is before us is very simple. There is one institution of marriage, it is one of the most important institutions that we have, and we want gay and lesbian couples to be a part of it in exactly the same way as any other couples who wish to be married. These amendments create two separate, potentially legal institutions and, therefore, undermine the fundamental purpose of the Bill, as other noble Lords, including the noble Lords, Lord Pannick, Lord Alli, Lord Deben and Lord Richard, have said.
Every time that we have introduced a change in support of gay rights, it has been hard-fought for and not always been easy to progress. None the less, it has made it easier to take the next step. Each step makes it easier for gay men and women to live their lives in the same way as straight men and women. I noted what the noble Baroness, Lady Howarth, said about gay men and women wanting to live ordinary lives. The more that we allow them to do so, and to see them doing so, the more it leads us to believe that we should remove from them any barriers to being able to do just that.
The creation of civil partnerships was a massive step forward. Through them, we gave gay couples equal rights. I was not in Parliament at the time, but I guessed that Parliament decided that the difference between us justified keeping gay men and women out of the institution of marriage. However, over the past eight or nine years, as we witnessed civil partnerships taking place and have become familiar with couples in civil partnerships, we as a society have realised that the exclusion of gay men and women from marriage is not justified.
My noble friend Lord Cormack said that he wanted us to reach a compromise and that the amendment represented that. I say to him and to all noble Lords who support him and these amendments that the time for compromise is over. We now understand that serious relationships between gay men and between gay women are no different from serious relationships between straight men and women. I have said many times during the passage of the Bill that gay couples want to settle down for exactly the same reasons as all other couples do. They are two people who love each other, want to commit to each other, want to provide security and stability for each other, and want to be a team, a partnership and to support each other. Like straight people, that is what leads gay people to want to marry. There is no difference there between us.
My noble and learned friend Lord Mackay pointed to differences and raised the issue of procreation and children to illustrate his argument. The Bill as it stands distinguishes between same-sex couples and opposite-sex couples only as far as is necessary to achieve a practical result. My noble and learned friend talked at length about children. In response, I should make just a few points. The first, which is really important, is that if we enact the Bill, the children of same-sex couples will be able to enjoy the same status as other children. That is a fantastic thing to be able to achieve. It will mean that children at school will not be treated differently, as their parents will be married in the same way as other parents may be.
The Earl of Listowel
I thank the noble Baroness for her reply to my question about research into outcomes for children of same-sex couples. It is encouraging and reassuring, to some extent, that there is positive research about the experiences of two women bringing up a child. However, is she aware that it is still early days in terms of research? We have not, for instance, looked very deeply at what happens to children being brought up by two men. We have not looked at issues around lower income couples and the outcomes for them. Surely we need to keep in mind, and be critical about, all the research because we know, for instance, about poor outcomes for boys who grow up without fathers. We need to look at the research critically because it is still early days.
Baroness Stowell of Beeston
I would disagree with the noble Earl’s suggestion that there is a difference in outcomes for children of same-sex couples, but that is a debate for another day. That argument, and the points he makes are not relevant to the amendments before us, which are about creating two different types of marriage. We are saying that there is only one institution of marriage, and both gay and straight couples who want to get married should be able to be part of that one institution on equal terms.
Lord Mackay of Clashfern
My Lords, I am obliged to all those who have taken part in this debate, whether supporting or opposing my amendment. It is interesting to hear what people have to say. I quite understand that the noble Lord, Lord Alli, does not like the brackets, but they have been put in by Government in the Bill’s Title. I thought, what else can I do but accept the Government’s guidance on the matter? However, I think perhaps that that is not the noble Lord’s most important point.
My noble friend Lord Deben, in a characteristic speech, said that the distinction between the two types of marriage was universally recognised, so why should it be recognised in the Bill? If it is universally recognised, surely it would be right to recognise it in the Bill because it is founded on the absolute fact of what occurs. The two are distinct. I do not try to separate them; I just distinguish because they are distinct in fact, and nobody can alter that. The idea that I am trying to wreck the Bill is not correct, I am sorry to say—well, perhaps I am not sorry; I should be glad to say that it is certainly not correct. I want to recognise in the Bill a distinction which, according to my noble friend Lord Deben—and who higher an authority?—is universally recognised. It damages the Bill in the eyes of ordinary people when it is not seen that that is recognised.
My noble friend said that I went on at length about children. I am sorry if I went on too long, but it is a very important factor. Children are very much at the centre of the institution of marriage as it was—and is until the Bill is passed. They are very much at the centre, and indeed, as your Lordships know, in relation to divorce and all that, elaborate provisions were made for children. Children are very important to marriage. There is a statement about children in the Bill which I regard as very important. Paragraph 2(1) of Part 2 of Schedule 4 states:
“Section 11 does not extend the common law presumption that a child born to a woman during her marriage is also the child of her husband … Accordingly, where a child is born to a woman during her marriage to another woman, that presumption is of no relevance to the question of who the child’s parents are”.
Therefore, the situation is that when two women are married under the Bill, and one of them has a child, that child has the same status as if the woman were single. If that is not a distinction—it should be recognised at some point, whether in brackets or otherwise—I do not know what an important distinction can be. If the Government want to improve on the brackets, I shall be happy that they should do so, but I believe that there is a universally recognised distinction between the marriage of two men or two women on the one hand and the marriage of a man and a woman on the other. These are facts that depend on something outside, and impossible to move, or remove by this legislation. The Bill would be improved by people realising what it does and recognising this universally understood distinction.
My noble friend Lord Lester quoted from the dissenting judgment of one of the Justices of the Supreme Court of the United States. He distinguished between the two types of marriage: the one slightly older and the more recent one. I want to include in the Bill recognition of that distinction. The quotation of the noble Lord, Lord Lester, seemed to imply the necessity for some form of sexual relationship in both types of marriage. I pointed out, and I think it has been accepted so far, that same-sex marriage is not gay marriage—it is quite wrong to describe it thus. It includes gay marriage, of course, but it is wider because it involves same-sex couples, whether gay or not. Platonic relationships are perfectly possible under the Bill.
Lord Lester of Herne Hill
I am grateful to the noble and learned Lord. The reason I was quoting Justice Alito was simply to say, as he did, that the choice is for the legislature, and that we have in the Bill protected both kinds of marriage. That is why I did so.
Lord Mackay of Clashfern
Exactly, the choice exists. We have chosen—I want to make it clear that we have chosen—to embrace both in our definition of marriage because that is what I am doing. The idea that my noble friend Lord Lester suggested, that I preferred one to the other or said that one was superior to the other, is quite unfounded so far as these amendments are concerned. There are later amendments that may go further, but this amendment strikes me as the absolute minimum to recognise the distinction that exists in fact. I moved the amendment and I would like to seek the opinion of the House.
Lord Mackay of Clashfern
Lord Mackay of Clashfern
My Lords, I give notice that, following that vote, I will not move a large number of other amendments in my name.
Baroness Cumberlege
“(6) Any duty of a person employed as a registrar of marriages on the date this Act comes into force (“relevant registrar”) to solemnize marriages is not extended by this Act to marriages of same sex couples if the relevant registrar has a conscientious objection to doing so.
(7) Nothing in subsection (6) shall affect the duty of a relevant registrar to carry out any other duties and responsibilities of his employment.
(8) The conscientious objection, under subsection (6), must be based on a sincerely held religious or other belief concerning only the marriage of same sex couples and in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.”
Baroness Cumberlege
My Lords, in Committee, I introduced an amendment that allowed civic registrars to exercise a right to conscientiously object to conducting same-sex marriages. Although there was some support for that amendment—in fact, there was quite a bit—I sensed there would be much more support for a transitional amendment that would protect only registrars in office now; they would be protected only once the Bill becomes law. These men and women are already in post and were, in effect, exempt when the law on civil partnerships was introduced in 2004. I am very grateful to the noble Lords who have put their names to this much narrower and more focused amendment, and to those who wished to put their names down. They were restricted by the fact that only four names are allowed.
We understand the nervousness about allowing future registrars to object conscientiously, but why not take those who are in office now? Without protection, those registrars will be faced with an impossible position: resign and face possible unemployment, given how difficult it is to find a job in today’s labour market; or stay and act against their conscience. The lack of protection is unfair and inconsistent with other areas of law, and it will unduly limit the freedom of thought, conscience and religion.
We need to be fair to all. We need to ensure that those who wish to can exercise a conscience clause and that those who want a same-sex marriage can marry. Nothing in the amendment would prevent couples of the same sex marrying. In the spirit of tolerance and respect, we have considered and dealt with almost every concern put to us in this House and the other place. The noble Baroness, Lady Thornton, asked whether a previous amendment would open the door to registrars conscientiously to object to other things, such as mixed-race marriages. That was never our intention, and this amendment makes it clear beyond doubt that registrars will be able to object conscientiously only to same-sex marriages. We have done so by making it absolutely clear in proposed new subsection (6) that the conscientious objection applies only to the solemnisation of marriages. That is reinforced by proposed new subsection (8), which states that the religious or other belief on which the conscientious objection must be sincerely held must concern only the marriage of same-sex couples. Any other conscientious objection to marriage will not be covered by our amendment, so it will not allow registrars to object to conducting marriages for any other reasons.
The noble Baroness, Lady Barker, seemed concerned about the scope of our previous amendment. She was under the impression that it would allow registrars conscientiously to object to more than the conducting of marriage. She was concerned that a registrar could, for example, sit in a register office at interview and refuse to assist any same-sex couple. Again, that is not what we intended. Therefore, our amendment has been revised to make it abundantly clear in proposed new subsection (6) that a registrar may conscientiously object only to conducting a same-sex marriage. Proposed new subsection (7) puts that beyond doubt by stating that any other activities will not be covered. Our amendment will not allow registrars to treat same-sex couples differently; it will merely allow them to refrain from solemnising their marriages.
I stress that our amendment is not unprecedented; it is nothing new. My noble friend, replying to the debate in Committee, attempted to draw a distinction between our conscience clause and others found in English law. I drew the attention of the House to numerous other cases, such as a doctor’s right to refuse to give contraceptive advice, a person’s right not to participate in work involving the treatment and development of human embryos, and the right of a Sikh not to wear a motor cycle helmet or a safety helmet.
Although the protection for teachers is not explicitly framed as a conscience clause, such as in our amendment, it operates like one nevertheless, because it also allows atheist teachers to refuse to conduct religious education without suffering any detriment. That operates at voluntary-aided faith schools and, interestingly, at non-faith schools. I am not saying that the registrar scenario is like that of a doctor not giving contraceptive advice or a teacher refusing to teach religious education.
Those conscience clauses and others—of which there are many—are all different, and they all allow a person to refrain from undertaking different activities. The difference did not prevent conscience clauses in those cases, so why does it in this case? What makes registrars so different as to warrant their forcible registration? Is the belief about marriage not as valuable as a belief about contraception? Is the belief about marriage not as worthy of protection as a teacher’s conscientious objection to teaching religious education? It is not, with the greatest respect, an answer to say that they perform a civil or a public function because doctors, medical professionals, teachers and so on, all of whom have the right to object conscientiously to some activities, also perform public functions for civil society. Not only is it therefore not fair to force all registrars currently in employment to conduct same-sex marriages if they conscientiously object to them, it is also unnecessary.
I am grateful to my noble friend for copying to noble Lords a letter from the chairman of the national panel for registration, but it takes us no further. Jacquie Bugeja, with whom I had a very interesting and long conversation, does not tell us in her letter, when referring to three consultation meetings, how many registrars attended each meeting. Only one or two registrars could have turned up, for all we know. Were the registrars who were not present asked for their opinion? For those who were, was there a general discussion or a confidential questionnaire? What was the format? In conversation, Jacquie could not tell me how many registrars were canvassed for their views. She said that it was left to local discretion within a local authority and that there was no follow-up by the panel.
We have not been able to find the minutes of the meeting of 2 June 2012. If there was no confidential questionnaire, registrars could have been reluctant to voice opinions. They could have risked disciplinary action being taken against them or being dismissed, as experienced by the unfortunate Miss Ladele. The second meeting was simply for 10 managers, whom we know are fearful that a conscience clause might cause them managerial inconvenience. Who attended the most recent regional meetings, held last month? Was it again just the managers, and how and where were those meetings held? What was the format and where are the minutes published for such an important issue?
The letter makes a series of unsupported statements, including that for the past 176 years registrars have been carrying out their duties and have never wanted a conscience clause. Of course they have not; they have never needed one. Local authorities up and down the country were able to accommodate their registrars’ conscientious objections. When an authority did not, it was taken to the European Court of Human Rights. The Joint Committee on Human Rights recognised the argument that registrars currently in office would not be free to hold to their beliefs if they were automatically designated as same-sex registrars. I welcome this conclusion and I urge noble Lords to support and accommodate the registrars currently in office. It is the right and the fair thing to do. In the spirit of tolerance and freedom of the individual, which is the hallmark of this House, let us together protect the registrars’ freedom of thought, conscience and religion. With this very modest but important amendment, we seek to do that. I beg to move.
Baroness Williams of Crosby
My Lords, I am a signatory to this amendment. I realise that the time is going by and I shall make my remarks in support of my noble friend Lady Cumberlege brief ones. Interestingly, there is a real dilemma here about both equality and liberty. Although the amendment is brief and limits itself to a modest request, it has considerably greater implications than may at first be realised.
A registrar is the first step towards a career in public life for a great many people. It is a job which they do for the community and one in which they reflect their community’s interests and concerns. It is a crucial step on the path towards the integration of different minorities, regardless of religion, language or earlier origin. It is therefore all the more important in communities where a large minority is present—let us say Muslims, or other religious groups—to make it possible for them to become registrars. To my regret, this amendment is limited quite deliberately to those already in office. I personally think that it would be better if it applied to anyone applying for this job, which, I repeat, in my view at least is the very first rung of a professional career in public life.
I shall take this one step further. There are some religions that, for deeply held principles, very strongly cannot accept the idea of single-sex marriage. That includes most of the Muslim faith and those who are supporters of Orthodox Jewry. It seems only right that registrars who hold those faiths, and who have done their job properly and intend to go on doing it well, should not be excluded from entry into that profession or, even worse, forced out of it when they have already been in it for several years and have performed satisfactorily. I can think of almost nothing crueller than to announce that after two or three years a registrar who has been behaving himself or herself in an upright and proper manner should be compelled to leave their job, often at a time when they have children and other responsibilities, because of this legislation. I cannot for the life of me believe that most people in this Chamber who believe in equality and human rights would want to see that happen.
Frankly, I do not understand why this relatively limited change could not be made easily to permit people to make this decision on conscientious grounds— for example, as my noble friend said, in cases of giving advice on contraception or taking part in abortion. This very limited right, linked to one particular thing, would allow their conscience to be exercised.
I have two important points to add on this. The numbers concerned would be relatively small. I have recently looked at the record following the passage of gay rights in Spain, and one is talking of a few score people every year. That means that any decent register office could easily, by dint of rotation or of acceptance, treat this rather in the way that they do, quite properly, in the case of a registrar or an assistant registrar who becomes pregnant, covering for them in their enforced absence. That happens to all of us virtually every day of the week in existing forms of employment. It happens to civil servants, lawyers, teachers and doctors, and there is no reason on earth why it could not happen to registrars.
I have to say to the Minister that I find this insistence on such people not being able to have a conscientious objection puzzling, given that we know in advance that certain religions will find this very hard to accept. On the kinds of grounds that my noble friend has already talked about, it would seem sensible to make this exception in such cases.
I believe that this is genuinely a conflict about equality and liberty. I personally believe very strongly that opening the doors of becoming a registrar to people of all races and religions of this country is an important tool in advancing the integration of our communities. I point particularly to those communities in the Pennines and other parts of the country where there may be a very substantial minority, or even sometimes a majority, of Muslim British citizens, and we should ensure that they, too, are treated in an absolutely equal way.
I strongly commend my noble friend’s amendment. I add one thing to what she said about attempting to discover the opinions of registrars. It is always a mistake to ask the opinions of managers about the views of the people they manage, unless you have a proper method of discovering what they are. Surely we know from the sad history of Mid Staffs that one of the things you should not do if you smell difficulties is to talk to the top management and assume that they truly reflect what the ordinary, everyday workforce thinks, because often they have a very strong in built desire to avoid any problems of managerial difficulty, which they always see as too big an obstacle. I strongly support my noble friend’s amendment.
Baroness Butler-Sloss
My Lords, I too have put my name to this amendment. It is a narrow and transitional amendment and does not in any way affect the fundamental underlying purpose of this Bill. Marriage registrars carry out a particularly attractive job. On the number of occasions where I have been to a civil ceremony, I have watched, with mounting enthusiasm, the way in which the registrar has made the marriage ceremony a really important occasion. I assume—and, indeed, I hope, since this Bill will become law—that the majority of registrars will give the same enthusiasm and pleasure to the single-sex couple as I have seen them do in those services. I am about to go to yet another great-nephew’s wedding, which will be a civil ceremony.
However, when a number of registrars took the job, the idea that marriage would be between single-sex couples was not even a blink on the horizon. I can understand perfectly well that those who come in in future will take a job in which they recognise that they will marry everybody, whether that is two males, two females or a male and a female. For those already in the post, for the reasons that the noble Baronesses, Lady Cumberlege and Lady Williams of Crosby, have both put forward, this is a small and special group. It would be particularly sad if, having given to the minority in this country the right to marry in the same way as the majority, we cannot recognise that there remains a minority who cannot take it. Are we to say that that minority, those who came into post before one ever thought there would be same-sex marriages, is not to be recognised at all?
As has already been said by the noble Baroness, Lady Cumberlege, what will these people do if they cannot marry but are ordered to do so? If this Bill will not permit them by the amendment to say no, will they have to resign? Will they get a job in this time of stringency and austerity in which we now live, when the job market is difficult? I ask the House to think about a small minority who would have had no idea that this would happen, and whose Christian beliefs would not permit them to marry the couples who will be able to marry by this Bill.
Lord Lester of Herne Hill
Will the noble Baroness explain why, when we brought in the race and gender discrimination and other controversial legislation, we never made transitional provision for those public officers to be able to discriminate, as they had been before, that we should now do so with this form of discrimination?
Baroness Butler-Sloss
It happened with abortion but, if I may say so, it was not a marriage. We all know how special marriage is; for goodness’ sake we would not all be here, voting in different ways, if we did not think that marriage mattered in a special way. It is for that reason, despite what the noble Lord, Lord Lester, says.
Lord Anderson of Swansea
Is the distinction not this: that there is no mainstream church, be it a Christian church or a Muslim group, in this country which believes in the principles of racist intolerance, whereas there are many mainstream people, Muslim and Christian, who do believe in traditional marriage? It is quite a simple distinction, which perhaps the noble Lord will consider.
Baroness Butler-Sloss
I had just about finished, but I had not actually sat down. I just want to say that I think this is a rather special, entirely transitional and narrow matter which I ask the House to treat with some degree of sympathy. It is rather different from the last vote that we had, which was on an important and fundamental point. There is nothing fundamental about this; it is a matter of helping a small minority.
Lord Mackay of Clashfern
My Lords, I put my name to this amendment too. I do not think that the fact that it is a public office is a distinction that is important. The important thing is that the law is changed after somebody has taken a job, and that law affects the conscientious view that that person has of the job. The nearest thing that came to my mind, in my own experience and connection with this, was when Sunday trading was introduced, again on a free vote. Those who were employed were given terms in relation to that. It seems to me that some such allowance is only fair, and fairness should apply in public offices as well as in private offices.
Lord Pannick
I apologise to the noble and learned Baroness. For my part, I cannot accept that a public official is entitled to protection against the requirement to perform his or her basic obligations in relation to the official duties which they are contracted to perform. As was pointed out in Committee, a judge or a magistrate who administers the law of the land cannot refuse to administer laws to which he or she objects. The law may well be clarified after that judge or magistrate has been appointed. No doubt some registrars have a conscientious objection to marrying divorced couples; I cannot see that a conscientious objection to same-sex marriage is any different.
Of course, as has been pointed out, the law does allow, in various contexts, for conscientious objections, including doctors and abortion and teachers and religious education. Sunday trading was mentioned by the noble and learned Lord, Lord Mackay of Clashfern. The difference, as I see it, is that the registrar is performing the function of the state, and the function of the state in this respect is to marry people. The law, not the registrar, determines who is eligible to marry. It is unfortunate if registrars take the view that they cannot continue to perform this role, but no one is asking them to approve of or bless same-sex marriage; all that they will be required to do is to perform the official function that they have contracted to undertake.
Lord Elton
Before the noble Lord sits down, I wonder if he could enlighten me; I am only an ignorant layman. Am I right or wrong in believing that judges can in fact pass a case to another judge if they have difficulties with it, such as we have been talking about?
Lord Pannick
I am not aware that judges have an ability to refuse to hear and determine cases on the basis that they disapprove of the particular law of the land that they are charged with the duty to enforce. They accept as part of the job that their job is to apply the law; the law is made by Parliament.
Lord Deben
I believe that on this occasion we should remember what we have just done. We have just asked those who disagree with the view that I and others have taken, to understand why it is that marriage has to be the same for both single-sex and opposite-sex couples. Those of us who have done that have now got to think carefully about opposing this amendment. I support this amendment because I think generosity ought to be at the heart of everything that we do. I do not understand why it is unreasonable to say that those people, who took on a job with particular rules and very clear circumstances, should now be unable to carry through that job in the context of wider views and beliefs. It seems to me a very small thing indeed, but it is crucial to say this about the society we live in.
I remember the disgraceful behaviour in a previous Bill because of which many children have not had the opportunity of being adopted because we did not allow those for whom this was a matter of belief to continue to run adoption agencies unless they were prepared to offer for adoption children from same-sex marriages. As all those agencies always passed people on to those adoption agencies that did do that, there was no reason to do it, except that sometimes we mistake toleration for agreement. In other words, what we mean by toleration is that we should tolerate those things with which we agree. I think toleration is about being prepared to tolerate those things with which we do not agree.
I cannot see the comparison between the judge and the registrar. The job of the judge is consistently and continuously to interpret the law. He or she knows from the moment when they accept being a judge that that is what their job will be. They know that in future there may well be laws with which they do not agree, so it is perfectly proper to insist that they should use their technical ability to impose sentences for things which perhaps they feel ought not to be crimes or, the other way, to be less strict on things which they think ought to have been much better assessed by Parliament. But that is not true of registrars who are now registrars. There must be many who never thought that this change would take place. It has been a remarkable change in human society. It is one I wholly approve of, but I cannot pretend that it has not been very rapid.
Therefore, I ask this House to accept this in the same spirit that we who have sought to get this Bill through have asked others to accept something that is so different from the way in which they have previously thought. I hope that we will be magnanimous and generous enough to say that this is, after all, something that could properly be done, because it will not be for ever; it is merely referring to those people who are now in place. I would have much more difficulty were it not doing that. It seems to me that we ought to be a society capable of including this because, if we are not, we give to those who do not want the changes here every reason to believe that we have put intolerance in the place of a liberal approach.
I hold it to be one of the great achievements that we have reached this way of looking at our fellow citizens. We ought also to think of those who through no fault or choice of their own were unable to imagine that they would now be asked to do this. After all, it is a terribly simple matter. We are just making sure that, when such a thing arises in a registrar’s office, Mrs Jones or Mr Smith is not asked to perform that particular ceremony. If this House cannot see that that is the same spirit as the spirit that puts this Bill through, we must be much mistaken.
Baroness Richardson of Calow
My Lords, I recognise what the noble Baroness said about how important it is for a marriage to be conducted in a very proper way. Sometimes the presence of a registrar can make a marriage very special, but the registrar is invited to register a marriage, not to make it or to bless it. If he or she does not register it, someone else will have to. It is not going to make a difference to whether that marriage takes place. We need to have concern for smaller registry offices that do not have a huge number of registrars and which would have to make a rota that took into account people’s sensitivities. This is going a step too far.
Lord Alli
My Lords, we debated at Second Reading and in Committee the rights of this group of employees not to conduct same-sex marriages. I understand that it might seem unfair to some that registrars who do not approve of gay marriage should have their jobs put at risk if they refuse to marry same-sex couples. Registration is the core of what those public employees do. It is not an add-on. It is their refusal to do a substantial part of their job that creates the issue, not their religious belief. We divide church and state, and I think it is dangerous to let church bleed into state functions. I believe that every citizen of this country has a right, regardless of colour, creed, background, religion or, indeed, sexual orientation to have equal access to the goods and services offered by the state. We all pay for them.
Lord Deben
That would be a reasonable argument and one that I would support for people in future, but does the noble Lord accept that there ought to be some generosity towards those who have chosen this profession and for whom the matter of registration—and it is that—stretches their beliefs to a degree that means that they cannot do it? It is not for us to decide what is a proper belief; that is one result of a division between church and state. We ought to be able to allow the small number of those for whom this is true to continue in their jobs until they move on.
Baroness Williams of Crosby
Would the noble Lord, Lord Alli, consider looking at other countries and at what has happened in cases where public servants have questioned the conscience of the state in asking them to do things that they believed to be deeply wrong? How much we all feel in debt to those brave people who stood up in countries such as Germany in the 1930s, and elsewhere, because they believed they had a conscientious objection to what the state was ordering them to do.
Lord Alli
I understand the point the noble Baroness, Lady Williams of Crosby, is making, but it undermines her argument when she and the noble Baroness, Lady Cumberlege, seek to rubbish the national panel for registration and the opinions it gave and question the core of what registrars are saying. They are saying that they do not want this.
In Committee, I said that we have to divide church and state, and this is the other side of the coin. If the noble Baroness, Lady Williams of Crosby, wants me to accept what she just said, would she accept that the church has made it very clear that it wants an absolute opt-out? It has insisted, quite rightly, and I am happy that it has done so, that any individual priest or cleric, no matter how strong their belief in same-sex marriage, should not be allowed to opt in until the religious organisation has agreed. There is a blanket exemption, so if I were a priest—the Bishop of Salisbury—and I deeply believed that I should be allowed to marry gay couples, why could I not opt in? There is a blanket ban from the churches. Individual opt-in and opt-out are not on the table. The churches themselves ruled it out at the beginning of this process. No priest can opt in; no registrar can opt out. If we accept the case for religious organisations barring individuals from opting in, we, too, must accept the case for civil registrars not being able to opt out. We have discussed this issue at length; we need to resolve it today.
Lord Lester of Herne Hill
My Lords, I cannot remember whether the Race Relations Act 1976 had already come into force when I got married 41 years ago in the Brixton register office. However, suppose that that Act had not come into force at that time. In Brixton, there are a lot of black people. If I had wanted to marry a black person and we turned up at the Brixton register office, where the registrar looked at us and said, “I’m very sorry, but I have a conscientious objection to mixed marriages. I don’t wish in any way to undermine you, but I just can’t do this”, that would be impermissible. A public servant who is performing statutory duties must not discriminate on any forbidden grounds.
Lord Cormack
Will my noble friend concede that there is a difference between racism, which is bigotry, and a deeply held belief?
Lord Lester of Herne Hill
My Lords, I understand the difference. Bigots normally have deeply held beliefs. My point is not about the sincerity of the belief but the discriminatory conduct of a public officer. We have never before, in the various phases of introducing and enacting—
Baroness O'Loan
The noble Lord said that that would have been possible only in cases where one is lawfully permitted to say, “I cannot marry you”. The noble Lord said that it was for Parliament to decide. If that is the case, what we are trying to decide here is: what does Parliament want to decide? We cannot make a decision until we have decided it, so the question must be open. We have situations in which Parliament has decided that it is perfectly legitimate for someone to exercise their freedom of conscience—
Baroness O'Loan
I am asking the noble Lord the question. Surely the noble Lord will agree that there is an exception in that situation in which Parliament has decided. We could make another exception.
Baroness Northover
My Lords, before the noble Lord answers, I remind the House that noble Lords can be interrupted with a brief question for clarification. Noble Lords have an opportunity to make a speech—one speech.
Lord Lester of Herne Hill
My Lords, of course Parliament may decide to create an exception through this amendment. I am explaining why I could not support it. The first reason is that it would legitimise discrimination by public officers who are performing their statutory duties. My noble friend Lord Deben says, “Let’s show a bit of generosity”. I reply, yes, let us show a bit of generosity to those who would be the victims of this practice, who would find that they could not have a civil marriage registered by a public official—that is all it is—because of his or her conscientious objection.
Lord Deben
I am sorry, but surely that cannot be true, because the case would never get to that. You would know that if a same-sex marriage had been offered, there would be a registrar who would be willing to do that. It would be privately arranged; there would be no victim in this. That is clearly different from what my noble friend says.
Baroness Northover
My Lords, I apologise, but we are moving away from brief questions of clarification and on to debate, which is permitted in Committee, but we are now on Report. Noble Lords will have a chance to speak if they have not already done so.
Lord Lester of Herne Hill
My Lords, my last point is simply that this is a very old story. In the case of Ladele, which was one of the cases that went to the Strasbourg court, our courts decided that a registrar could not exercise conscientious objection in relation to civil partnerships. The Strasbourg court upheld our domestic courts’ judgment to that effect. My noble and learned friend Lord Mackay of Clashfern took objection to it and we debated it at the time. The current position is that, under Strasbourg law as well as domestic law, there is no right to conscientious objection in this context, and nor should there be.
Baroness Knight of Collingtree
My Lords, in the first debate on the Bill, I warned that we were losing the right to have and live by a conscientious objection all the time. I gave a number of instances, one of which has been referred to today, which was the simple and widely known fact that all Catholic adoption agencies have had to close because they are not happy about putting a child in a home where there are two men or two ladies. I agree completely with what was said in the earlier debate about the monstrous way that we in this country and, I am afraid, other countries have treated homosexuals in the past. However, those who point out how wrong that was are saying, “But it’s only wrong up to a point. We can demand that other rules are made that aren’t fair”. More and more I come to the conclusion that one person’s human rights are the denial of another person’s human rights.
We agreed years ago—I think the first well known example occurred during the First World War—that people were able to have a conscientious objection to fighting. They were given other jobs, which were extremely important in the war effort, and that happened in the last war, too. We must guard and guide that trend. It is woefully and obviously wrong to say today that it is right that conscientious objections shall, in certain circumstances, be smothered. It has to be wrong. We must stand and defend those conscientious objections.
I am also very concerned about what the noble Baroness, Lady Williams, said. She pointed out, unless I misheard, that being a registrar was the first step to a whole career. The fact that apparently we can do nothing about these future circumstances must mean that many people will not be able to go into the career that perhaps they have planned for many years. I urge noble Lords to recognise that it is very dangerous for a free country to deny a person’s right to live by their conscience. We may not agree—it is not important at all—but everybody has a right to their conscience and to live by what it tells them. It is only fair to say that we must try to give the same human rights to everyone.
I know that the noble Lord, Lord Alli, is a fair man. I think that when he considers again his suggestion that just because you have a certain job you should be forced to act against your conscience, he will see that that is the wrong road to take. I support, with many congratulations, those noble Lords who put their names to this amendment, the aim of it and what will happen. I am quite sure that plenty of other registrars who do not hold the same view will be available, and couples who wish to be married will easily be able to be married by them.
Lord Higgins
My Lords, the crucial point is that we have to take account of the fact that some individuals may be affected. What representations have been made on their behalf is not the point. We need to allow for the fact that some such individuals may have serious grounds of conscience. I turn to the point made by the noble Lord, Lord Pannick. He says that these people have a contract, as registrars, to carry out marriages. However, the crucial point is that the marriage that they are now asked to carry out is not what they understood marriage to mean when they signed the contract. We have to take account of the fact that we are changing the rules after they have accepted the job. On a purely transitional basis, there is an overwhelming case for us to agree this amendment.
Lord Wills
Before the noble Lord sits down, is he saying that it is completely unreasonable to expect a registrar, in this modern day and age, not to have foreseen that the current measure would come before Parliament at some point in the foreseeable future? Does he think that that is an unreasonable proposition?
Lord Higgins
I had already sat down. However, it seems to me that there is no reason to suppose that anyone would have anticipated this. When I led from the opposition Front Bench on same-sex partnerships, no one envisaged this; indeed, a number of people said that it was not going to happen.
The Lord Bishop of Chester
My Lords, as a bishop of the Church of England who is constrained by the church not to conduct same-sex marriages, the vision of the noble Lord, Lord Alli, has stimulated me briefly to rise to my feet. I suppose that I should declare an interest, given that I am a sort of registrar. Perhaps I am the only one here, as a bishop of the Church of England.
This is a modest amendment, as has been pointed out, but it has a certain symbolic importance. A lot turns on the status of the issues that we talk about, and that has dogged our debates throughout. The noble Lord, Lord Lester, asked why there is an exception in this case. However, the law does make exceptions in relation to the strongly held beliefs of a significant number of members of a religious body in relation to sexual orientation. The law allows religious bodies to have single-gender priesthoods or whatever. We have agreed exceptions in that area that we have not agreed in other areas, such as divorce. That is why the parallel between same-sex marriage and divorce—I think that the noble Lord, Lord Pannick, raised that point—does not quite follow. It depends on what one regards as the status of the different issues. For example, as I pointed out at Second Reading, historically the canons of the Church of England have never banned clergy from remarrying divorced people. A different status applies in this instance.
One of the problems is that a lot of people here feel—and I understand why—that this whole issue is a no-brainer, and that anyone who is opposed to same-sex marriage is almost de facto and de jure homophobic. That rather destroys the concept of reasonable debate. I find that that happens in the Church of England over the issue of women bishops: if you are opposed to that, somehow a glaze goes over people’s eyes and they cannot speak to you at all. As the noble Lord, Lord Deben, said, it is about having tolerance in the democracy in which we live. The issue is a small one.
As I understand it—though I speak as a fool in the presence of so many lawyers—the principle in this country is that we do not legislate retrospectively unless there is a compelling reason to do so. I do not think that a compelling reason to force existing registrars to conduct same-sex marriages has been demonstrated in our debate. In that spirit, I hope that we can accept the amendment.
Lord Anderson of Swansea
My Lords, the question has been posed whether it was reasonable for an existing registrar to have anticipated that at some date unspecified in the future the law in respect of same-sex marriage might be altered.
Let us consider a registrar who is now, perhaps, 45. Almost 10 years ago we had the Civil Partnership Act. During the passage of that Bill through this House the noble and learned Baroness on our Front Bench said in terms that there would be no relevance for marriage. That was said clearly in terms. If that same registrar—who might have been put off by the possibility of same-sex marriage—had looked at the manifestos of the different parties at the last election, not one of which mentioned same-sex marriage, should he nevertheless have anticipated that there was a faint possibility of that happening? Of course not. It is wholly unreasonable, even in the light of the recent past and the stampede over the past years, to imagine that someone would have anticipated that the situation would change.
Effectively, we are talking about tolerance, generosity and whether the way of the majority—the 3:1 balance we had in the last vote—will be juggernaut-like and we will go on nevertheless.
The noble Lord, Lord Lester, talked about victims. He talked about the victimhood, if I can repeat that word, of the couple who are not married because the registrar has an objection. However, what is certain is that a registrar will be a victim because—given the identikit of the person I have mentioned, who is perhaps in mid-life, has been a registrar for a number of years and did not anticipate the change—his job will go. Being a registrar does not provide specific training for anything else. He will face the fact that the terms and conditions of his employment, on which he embarked some years ago, have been fundamentally altered. However, there is no reasonable prospect of victimhood for the gay couple who quite properly ask to be married, because there can be a reasonable accommodation. There will be a team or group of registrars in a particular district, and the couple can avoid the one individual who has a conscientious objection and, without any fuss, move their case to someone else. After all, I suspect that, after the initial surge of gay people who want to get married, there will be very few cases and relatively few registrars involved. If the district is very small, an arrangement can be made with an adjoining district—as in other areas of local government administration—for the relatively small number of cases that occur.
The noble Lord, Lord Pannick, took a fairly absolutist view, in my judgment. Public officials enforce the law; the registrar is a public official; he enforces the law or he takes the consequences. However, I think that there are other public officials for whom accommodations are found in statute. Doctors, given our National Health Service, are also public officials in the broad definition of the term, and so are teachers. Given that teachers overwhelmingly receive their salaries from the state, their terms and conditions of employment come from the state, yet we find exception for them.
In effect, the number of registrars likely to be involved is small. This is a transitional arrangement. For me, this is a test case of the absolutism, tolerance and generosity of the Government. Equally, it is a test case for the Opposition, who are currently cheerleaders—although perhaps I should refrain from using that word—for the Government. The proud tradition of my party over the centuries has been to look after the small person, the “village-Hampden” or the person with a conscientious objection who might be hurt by changes. I hope that we shall not abandon that proud tradition and will accept this small, transitional and quite proper amendment.
Baroness Berridge
My Lords, I rise to support this amendment, which is recommended in the report of the Joint Committee on Human Rights in relation to the Bill. I serve on that Joint Committee.
In Committee, your Lordships heard emotional exchanges about what was or could be the experience for gay couples seeking a civil marriage if there was any form of conscientious objection. Those scenarios were upsetting. The argument that public services should be available to all service-users is compelling but I do not believe that it is unassailable. A number of individual registrars who are currently in post did, indeed, contact their MPs to say that they would consider resigning their posts should they not be allowed to object, on the basis of conscientious objection, to performing these ceremonies. I asked Simon Hughes MP, who serves on the committee, specifically about that question, as no Select Committee of this House should make recommendations that are unsupported by evidence.
I believe that the distinction between choice and conscience is important here, in that if people say that their conscience does not permit them to do this, that means that it does not allow them even to enter a process of choice. They are not expressing a mere preference. Neither time nor expertise allows me to go into that issue in any greater depth. I am sad that the noble Baroness, Lady O’Neill, is not in her place on the Cross Benches; I am sure that she could elucidate that point more eloquently than I can. However, there is a difference between choice and conscience.
I believe that it is this Chamber’s role to reach an accommodation that will enable same-sex couples to marry under the new law without causing the possible dismissal of a small number of public servants. I should be grateful if my noble friend the Minister would clarify whether the role of the registrar is limited just to the action of registration, as this matter caused some confusion in Committee when your Lordships considered the role of authorised persons. As regards Ms Ladele, I believe there is an arrangement in the Civil Partnership Act whereby certain personnel do not have to conduct civil partnership ceremonies if their local authority permits them not to do so. I leave it to the Front Bench, with its expertise, to clarify those two matters.
Given that the parameters of culture are changing so rapidly, I believe this amendment to be a suitable compromise between two different groups of our citizens, each with deeply held convictions. The ability of all citizens to access public services is not violated by certain public servants having a limited exemption. Having heard the arguments and circumstances outlined in Committee, I repeat that the exemption must be applied carefully and sensitively. It is not a perfect solution for either side but it is a sensible and reasonable compromise in the circumstances.
Lord Mawhinney
My Lords, I commend my noble friend Lady Cumberlege for moving this amendment. I was equally impressed by the supportive speech made by the noble Baroness, Lady Williams of Crosby. While she was speaking, I was reminded of something which my noble friend Lady Stowell of Beeston said at Second Reading, and I will limit my comments to this one issue. I interrupted her when she said that she had great respect for those of us who had religious and conscientious views on the principle and substance of the Bill. I, perhaps ungraciously—if that is so, I apologise—and perhaps mischievously, said words to the effect that I wished I had a tenner for every time in the past 35 years I had heard a Minister say at the Dispatch Box how much he respected views with which he did not agree and then promptly ignored them. I remind my noble friend of that exchange because it seems to me that this is an excellent opportunity for her to demonstrate that she really does respect those whose views and consciences differ from those held by the majority in this House. An acid test of that respect would be to accept this amendment.
Baroness O'Loan
No, I asked the noble Lord, Lord Lester, a question. I will speak briefly as this is a modest amendment. The question has been asked as to why registrars should be exempt. Three years ago, the leader of the Government said that there would be no legislation for same-sex marriage. Therefore, it is not inconceivable that the people employed in registry offices might have formed a legitimate expectation that that would be the case. We have to accept that a consequence of this legislation will be to exclude from being employed as registrars people in the Islamic, Sikh, Orthodox Jewish and Christian communities who have profound beliefs. We simply have to accept that consequence. It is for Parliament to legislate and if Parliament makes that decision, that is proper. However, we have to bear in mind that there is a significant problem for Islamic women who get married in a religious wedding, think they are married and then find that, because there has been no civil marriage, they are not married and can be set aside.
Marriage is a foundation stone for what stability remains in our society. We must do all we can to enable existing registrars, who may be members of those religions and who will be excluded from being employed as registrars—Muslims, Sikhs, Orthodox Jews and certain Christians—to continue to do their job. That spirit of generosity of which so many Members have spoken is very much part of the tradition of this House. I support this amendment because of its significance for those communities and because of the need to care for all the communities in our great country.
Lord Vinson
The noble Lord, Lord Lester, gave the impression that registrars who were not happy with same-sex marriage would make their feelings known. It would be much more sensible to allow registrars with deep religious convictions who feel that they cannot conduct same-sex marriages to say quietly when the roster of registrars is being sorted out, “Do you mind if I am off with a cold on Tuesday?” as everybody will understand why that is being done. We are talking about a very small exception here. The converse is to make such people conduct these ceremonies. We are told—it is true—that registrars conduct ceremonies with spirit and feeling. If ever I married again—God forbid—I would not want a registrar to conduct the ceremony through gritted teeth because he did not like doing it. This is a thoroughly sensible amendment. I remind all those who are against it of the very moving words attributed, I believe, to Christopher Fry about the downtrodden not treading down.
Lord Peston
My Lords, I reluctantly totally oppose this amendment. Those who are totally opposed to same-sex marriage have day in and day out taken up an enormous amount of your Lordships’ time in making their case. This is the dying embers of their attempts to go on making their case. It has nothing to do with tolerance. No one is remotely asking those registrars who oppose same-sex marriage suddenly to say that they are now in favour of it, as happened under the old Stalinist rules. No one is remotely asking them to do that. They can say what they truly believe for as long as they like and where they like. The noble Lord, Lord Pannick, made the central point—I would have thought that was enough to end the debate—when he said that all we are asking them to do is the job they are paid to do. That is the beginning and end of the story. There is nothing more to be said. This has nothing to do with tolerance. When I think of some of the things I have had to tolerate with which I do not agree, I shudder, but one does one’s job. As the noble Lord, Lord Pannick, so excellently said, we are not asking these people to change their minds. They can keep their views but they must do the job they are paid for.
Baroness Howarth of Breckland
I apologise to the noble Lord for interrupting but I am anxious to ask a simple question. I have been a public servant for many years and have had to make difficult assessments and understand the nature of different staff and what they bring to the job. The arguments about generosity and inclusiveness are extremely attractive, but how does a manager decide who has a genuine conscientious objection and who has not? Unless you have criteria and people have previously said something about where they stand on the issue, it will be very difficult to make that decision. Unless there is absolute clarity about the matter, some people will choose not to perform a ceremony because they do not want to do it as opposed to having a conscientious objection to doing it. What about all the other conscientious objections that people may have? Should they not be able to object to marrying people who have a serious criminal history? What if they discover that one of the marriage partners has been a paedophile? Do they have the right to voice a conscientious objection to marrying them? This argument could get us into enormous difficulties if we carry it through.
Lord Elton
My Lords, the noble Lord, Lord Peston, is right in one respect: we are making a meal of a very small issue. At Second Reading, the House agreed to swallow a camel. We are now straining at a gnat, if I may use an image which the right reverend Prelate will understand. The noble Lord, Lord Lester, quoted the Ladele case at Strasbourg. That case proved that there are registrars with conscientious objections and that if the law is not amended they will lose their case and their job.
It also proves that if there was one registrar who was able to go all the way to Strasbourg, then there must be at least a few dozen others who were not able to afford it. It is that handful that we are talking about. If you doubt that it is a handful, then listen to the national panel, who assure us that there is none, which means there can be only very few. This amendment is concerned only with seeing that for the remaining part of their careers those people do not suffer for what, in their eyes and certainly in mine as well, is an unavoidable injustice.
If we are all to be as generous and big-hearted as we say we want to be and get closer together, can your Lordships not find it within yourselves to look at these few people? We are looking for justice, not vengeance. Surely we can find in ourselves the guarantee that these people will not lose their jobs and their pensions because they have a belief that was valid for their job when they took it on and the job then changed.
Lord Walton of Detchant
My Lords, this may by no means be exact, but when the Abortion Act became law many years ago, it was quickly recognised that doctors, particularly obstetricians, who were of a particular religious faith, might well have a serious objection to carrying out abortion on ethical grounds. That was even if, on complete medical advice and investigation, patients had been shown to have fulfilled all the criteria established by law. Some could have argued that those refusing to conduct abortions were not fulfilling their terms and conditions of service within the National Health Service. That argument was not widely used, but on the other hand it was quickly recognised by the doctors’ regulatory authority, the General Medical Council, that it was proper for doctors of that particular religious persuasion, who had an immensely powerful objection to carrying out abortion, to be able to refuse to do so on religious and ethical grounds. However, they were advised that in those circumstances they should do their best to see that the individual in question who had fulfilled all the conditions set down by law should be referred to another consultant who might be willing to carry out that procedure.
To the best of my knowledge, registrars who are public servants do not have a regulatory authority. It may be argued that those who refuse to carry out and register a single-sex marriage on religious or conscientious grounds do not fulfil their existing terms and conditions of service. This is a simple amendment. It protects those registrars at present in post who object to carrying out single-sex marriages on powerful conscientious grounds. Once they have retired, the issue will no longer be with us. All registrars appointed in future will recognise that the terms of this law on single-sex marriage apply to them and they will not have the right to object on grounds of conscience. This amendment protects the ones who are at present in post and we should strongly support it.
Baroness Noakes
My Lords, it is distasteful to equate what happened in the Abortion Act with what we are dealing with here, which is two people coming together to formalise their loving relationship under law. We are talking about two completely different things. We are accustomed in this House to legislating on the basis of evidence. We have heard no evidence that this amendment is needed. I am sure that if registrars out there wanted this amendment they would have been flushed out by now. We have heard evidence to the contrary. The National Panel for Registration thinks that this is neither necessary nor desirable. This is another attempt to undermine the status of marriage being created by this Bill and which I support.
Lord Deben
I really do think that my noble friend has to withdraw that. I have fought in favour of same-sex marriage the whole way through. I am not trying to undermine it. I am standing up for toleration. Toleration, even if it is for two people, is worth while.
Baroness Noakes
I accept what my noble friend says about his position, but I do not think it is the position of those who put forward the amendment.
Baroness Barker
My Lords, I want to draw to the attention of the House something which has not been mentioned so far in all these debates. I listened with great care when the noble Baroness, Lady Cumberlege, introduced the amendment. She drew the attention of the House to subsection (7) of the amendment:
“Nothing in subsection (6) shall affect the duty of a relevant registrar to carry out any other duties and responsibilities of his employment”.
Registrars do not just officiate at weddings. They register births and deaths. If this amendment were passed, it would mean that for a generation we would continue to have acting as registrars people who could not bring themselves to extend the full respect and dignity to same-sex relationships that they do to others.
It may be the case that it is wrong to ask them to perform what is, in the end, not a religious ceremony in any way but a public ceremony. However, to me it is utterly intolerable that a gay person going to register the death of their partner in life should have to do so in the presence of somebody who cannot bring themselves to extend the respect to them that they would to anybody else.
Lord Touhig
My Lords, I had not expected to speak in this debate, although I have listened throughout. My mind goes back to 1967, when a dear friend of mine—and a friend for more than 40 years afterwards—introduced a Bill in the other House to decriminalise same-sex acts. Leo Abse was denounced and vilified, he had human excrement pushed through his letterbox, and it was an intolerable time for him and his family.
I have too much respect and affection for Leo Abse to presume to say what his view would be today. I rather think he would support this Bill, but I know one thing. When he announced his retirement and spoke to a meeting of the Pontypool Constituency Labour Party, he said: “I have only one bit of advice for my successor. Tolerate everyone, tolerate everything, but do not tolerate the intolerant”. As I have witnessed this debate today, I have sensed a degree of intolerance. Wherever we stand on this issue, it is right and important that the majority tolerates the minority. I hope the House will recognise that as we bring this debate to a conclusion.
Baroness Thornton
The arguments of the noble Baronesses, Lady Cumberlege and Lady Williams, and the other movers have not convinced these Benches that the conscience clause amendment is a good idea, any more than we thought in Committee. Notwithstanding the appeal about registrars from the noble Lord, Lord Deben, I really am puzzled as to why he supports this amendment. I am not inviting him to explain again, but we need to be clear that this is not about tolerance and generosity.
In this House we have shown enormous tolerance and generosity to each other. Those of us who support this Bill have also shown huge tolerance and generosity—sometimes enormous generosity—to views that have been expressed which, if not offensive to people who are homosexual, are certainly hurtful to them. We have shown huge tolerance and generosity all the way through the debate. I draw to the right reverend Prelate’s attention that I have probably sat through every single moment of the discussion about this Bill. Nobody used the word “homophobic” until the right reverend Prelate used it today. That has not been mentioned in this Chamber—and that is right, because it is not appropriate that it should be mentioned at all.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I thank my noble friend Lady Cumberlege for moving the amendment, which has undoubtedly generated a good debate. Amendments 3 and 11 would provide a conscience clause for marriage registrars regarding their duty to conduct or participate in marriages of same-sex couples on the basis of a religious or other belief about such marriages. Specifically, Amendment 3 would amend Clause 1 to provide that for registrars who are already in post once this Bill comes into force the duty to solemnise marriages is not extended to same-sex couples. Amendment 11 removes “registrar” from the definition of “person” in subsection (4) of Clause 2 to protect registrars from being compelled to be present at religious same-sex marriage ceremonies, no doubt in circumstances where a particular religion has opted in. The amendment would apply only to registrars participating in religious ceremonies, not to the Registrar General or superintendant registrars.
This issue was much debated in Committee. Since then, I have had the opportunity, along with my noble friend Lady Stowell, to meet my noble friends Lady Cumberlege, Lord Elton, and Lady Williams, and the noble and learned Lord, Lord Lloyd of Berwick, to discuss these issues. As we indicated in our response to the Joint Committee on Human Rights, it is important to say that it did not come to a final conclusion on this issue, although it recommended that the Government reconsider the issue with a view to bringing forward amendments in your Lordships’ House to put in a transitional arrangement to deal with the concerns of those in post as marriage registrars. We have considered this position but, as I shall set out, we do not see a need for amendments to provide a conscience clause for marriage registrars, even on a transitional basis.
I therefore wish to reassure your Lordships’ House that the points made in the debate, particularly those made by my noble friend Lady Williams of Crosby about the impact on particular religions, have been considered. I admit that I felt slightly uncomfortable because the strongest support for the Government’s position perhaps came from two eminent lawyers, my noble friend Lord Lester and the noble Lord, Lord Pannick, and I wondered whether I was being too lawyerly about this issue. I tried to take on board the comments of my noble friend Lord Deben about being charitable and thinking generously but, at the end of the day, even with charity, there is an important matter of principle here. Marriage registrars are public servants performing statutory duties on behalf of the state. They should be expected to perform their duties in accordance with the law, without discrimination. An important distinction can be made between the conscience clauses with regard to abortion and circumstances in which we are asking people to perform duties on behalf of the state, without discrimination.
In extending marriage to same-sex couples, the Government have made it clear throughout that the Bill should protect and promote religious freedom. A substantial amount in the Bill does that. As the noble Lord, Lord Peston, said, registrars of whatever hue will still be able to express their views on same-sex marriage, but the right to freedom of religious expression has to be balanced with the need to protect others from discrimination. The recent judgment of the European Court of Human Rights in the case of Lillian Ladele, referred to by my noble friend Lord Lester, supports this view and the balanced position that we have taken.
Acceptance of the amendment would allow registrars to discriminate against people because of their sexual orientation. Functions performed by marriage registrars are entirely civil and secular in nature and they should not be allowed to pick and choose the members of the public to whom they provide that service. Treating members of the public less favourably than others because of their sexual orientation is fundamentally wrong, in the same way that it would be wrong to discriminate against them because of their race, religion or belief.
On the face of it, some powerful points were made, not least about doctors in relation to abortion. One should think about it for a moment—and perhaps I may put it in the following way. Let us imagine that a doctor were to say, “As a matter of conscience and belief, I am not going to perform an abortion on this person because of their race or ethnicity, but I will perform an abortion on another”. Perhaps that demonstrates the point that we are trying to make. It would not be the question of conscience about performing the act of solemnising a marriage that is at issue; it is the question of discrimination that is at the heart of this issue, and that is why the Government do not support the amendment.
I have been asked, “Where do you draw the line?”. I appreciate what my noble friend Lady Cumberlege said about the amendment being restricted to the solemnisation or belief that it is wrong to have a marriage of same-sex couples. There are other subjects—and I bow to the right reverend Prelate the Bishop of Chester, who said that divorce was not an issue in the canon law of the Anglican Church. However, it is my understanding that, until relatively recently, the Anglican Church did not marry people who had been divorced on grounds of adultery or other reasons, if a person’s original spouse was still alive. I think that that is now possible with the permission of the bishop. In those circumstances, if the Anglican Church was not going perform a marriage and the person had to go down the road of a civil marriage if they wished to contract a second marriage, where would we have been if the registrar had said, “I have profound beliefs against marrying divorcees, particularly if one of the grounds for divorce has been adultery”?
The Lord Bishop of Chester
I wish purely to clarify the matter. I know that I am speaking to a distinguished lawyer but the law of the Church has never prevented clergy from remarrying divorced people, and for the past 30 years of my ministry I have done so. It is true that 30 years ago I was in a minority and that there is now much greater encouragement, but in legal terms there never was a blanket ban on clergy remarrying because statute law permitted divorce.
Lord Wallace of Tankerness
I am grateful to the right reverend Prelate for clarifying that, but he said that 30 years ago he was in a minority and he may agree that some high-profile marriages of divorcees have taken place in the Church of Scotland because of the apparent rules of the Anglican Church. The point remains that there may have been people with profound religious views on why they should not remarry a divorcee who was divorced on the grounds of adultery, but if the route of a civil registry marriage had been cut off, they would have found life to be very difficult indeed.
Equally, I have heard what has been said about the National Panel for Registration. Concerns were expressed in Committee about the consultation that it had undertaken, and that is why my right honourable friend the Secretary of State sought further—
Baroness O'Loan
The Minister said that it would have been profoundly difficult if that route had been cut off. Does he think that this amendment would cut off the possibility of people of the same sex marrying?
Lord Wallace of Tankerness
I was making the point that there are a number of grounds on which one might say one had a religious belief. Are we to have a hierarchy of religious beliefs, some of which will allow a registrar to exercise a conscience clause and some of which will not? However, as the noble Baroness, Lady Richardson, said, there might be some areas of the country with a small number of register office staff where it could be difficult to find a registrar who would marry them.
We sought further information from the National Panel of Registration and its letter has been placed in the Library of your Lordships’ House. As my noble friend Lady Noakes indicated, there has not been a huge demand for this amendment, quite the contrary. It would be easy to dismiss this letter but very often the House calls for the views of bodies which represent particular organisations. The letter states:
“The objection to a conscience clause is based on Registrars being local authority employees who are expected (and willing) to carry out all the functions that their role covers. On a daily basis, Registrars deal with many scenarios that for those with strong beliefs (religious or otherwise) would possibly not be able to carry out. Examples include: registering the birth of a child from a same-sex couple; undertaking marriages for previously divorced persons; or carrying out civil ceremonies and registrations. Registration Services and, in particular, the Registrars, are passionate and proud about the services they deliver and the customers they work with. For the past 176 years, Registrars have been carrying out their duties and have never wanted a conscience clause, and do not see the need for one now … The beliefs we bring to work are respect and tolerance and we would wish that to continue”.
Lord Elton
Could my noble friend read on? Does it not say that,
“we leave beliefs at home”?
Does that not say a great deal about this?
“In the Registration Service we leave beliefs at home and deliver neutrally”.
That is the point made by the noble Lord, Lord Peston. The registrars are free to express their beliefs. There is nothing in this legislation that curbs their ability to hold these beliefs and to express them. However, in the performance of the duties they do on behalf of the state, we are saying that they should not be able to do that in a way that discriminates. It would not be appropriate for us to put on the statute book legislation in which the state legitimises discrimination.
Lord Higgins
If it is true, as the Minister says, that the Panel of Registration says there are no registrars who want this, we will pass the amendment and it will have no effect. The question is whether there are some who we do not know about who would wish to exercise their views as far as conscience is concerned.
On the other point, that they have taken on a job and they then find that it has changed, surely, on a transitional basis—and I stress that—they ought to be able to say, “We are perfectly happy to go on with the original contract”.
Baroness Farrington of Ribbleton
Perhaps I may I remind noble Lords that this is Report. People should ask very brief factual questions and no one should speak after the Minister has spoken except the mover.
Lord Wallace of Tankerness
My Lords, in response to my noble friend Lord Higgins, the national panel has made it clear that it is not seeking this. He said that if no one wants this, it does not matter. However, I believe that it does matter.
The points made by my noble friend Lady Williams are very challenging to someone who has natural liberal instincts about the individual but, at the end of the day, after a great deal of careful thought and examination, the principle that persuades me that we are right in this is that when someone performs a function on behalf of the state we should not put into legislation something which allows them to act in a discriminating manner. I ask my noble friend to withdraw the amendment.
Lord Lester of Herne Hill
Would I be right in saying that if this amendment goes through, there will be detriment to people seeking to marry?
Lord Lester of Herne Hill
Would I be right in saying that if this amendment goes through the result will be detriment suffered by some who are seeking civil marriage?
Lord Wallace of Tankerness
My Lords, that might be a possibility, particularly in areas where there are very few registrars, as the noble Baroness, Lady Richardson, pointed out.
Baroness Cumberlege
My Lords, I sense that the House will want me to be very quick, so I shall be. I thank all noble Lords who have taken part in this very interesting debate, albeit, I accept, on a very narrow subject. I particularly thank my noble friend Lady Williams for her powerful support for the amendment, and I thank my noble friend Lord Deben. The tenor of the amendment is about a bit of tolerance and generosity. This is the moment when perhaps we ought to be giving a little bit to some people who have a conscience clause.
I want to say something very briefly about marriage and about what the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Peston, said. To me, marriage is very important. I married when I was 17 and have to say that it was the best decision of my life. I love my husband to bits and he is great. I can remember every moment of that service. I even remember that the priest, very sadly, forgot to give me my passport. We were going on honeymoon and had to go back to collect it. Marriage is terribly important; we would not be having this Bill or these debates if people did not think it was very important. The people who conduct the marriage are equally important. I very much accept what my noble friend Lord Vinson said. If there is somebody who does not believe in it or who thinks that it is just something you have to go through, it is not the same as someone who really believes in it and wants to see a couple happily married and continuing in later life.
For those people who have a conscience clause, it is much fairer to the same-sex couples who are getting married to have somebody who believes in what they are doing and who rejoices with them in this very special event in their lives. I would love to go through all the arguments, but I will not do so. The managerial arguments are bogus because any good manager knows how to manage a workforce. There are women who inconveniently get pregnant and there are people who are ill, but you still have to manage your workforce, so I do not agree with some of those concerns.
It has been a very interesting debate. I am extremely disappointed by my colleagues on the Front Bench and my noble friends whom I hoped would give a little tonight. I hoped that we could have some accommodation in the spirit of generosity, but that is clearly not the case. Therefore, I want to test the opinion of the House.
“Belief in traditional marriage
Nothing in this Act shall contradict the principle that a belief that marriage is the voluntary union of one man and one woman for life to the exclusion of all others is a belief worthy of respect in a democratic society.”
Lord Dear
My Lords, in moving Amendment 4, I draw attention to the fact that this is a more tightly drawn version of the two amendments that I spoke to in Committee—when I had a voice—on 17 June, which were then Amendments 7 and 8. Instead of getting into the detail, which I did then, on how employers or public sector bodies treat individuals, this amendment is simply a declaration that the belief in traditional marriage is worthy of respect in a democratic society. It makes it clear that it is vital for individuals claiming protection under human rights or discrimination law who are not card-carrying members of any particular religion, but it would be helpful to people who are religious as well.
There are basically two sets of words in this very short amendment. The first refers to the,
“belief that marriage is the voluntary union of one man and one woman for life to the exclusion of all others”,
and the second refers to,
“a belief worthy of respect in a democratic society”.
The first set of words is the existing legal definition of marriage as,
“the voluntary union of one man and one woman for life, to the exclusion of all others”.
That is the definition found in case law as far back as 1866 in the case of Hyde v Hyde and Woodmansee, and was given by Lord Penzance in that leading case. Until now, every couple at the point of marriage declares that they are entering into marriage as defined by English law, which is, as I have said, a voluntary, lifelong and exclusive union. We know that things can go wrong in marriage and there is, of course, legal provision for divorce. Throughout history and across cultures, the definition of marriage has been understood in the terms that I have just repeated.
Even before the Bill becomes law, people who support traditional marriage are now often accused of discrimination. It is said—I cannot vouch for it, but it was sprayed all over the newspapers recently—that in a draft version of a speech by the Deputy Prime Minister some were described as bigots. They have certainly been likened in the House of Commons to racists and advocates of the slave trade. However, it is generally accepted that, no matter how one looks at the opinion polls and so on, a great many people in the UK do not accept the new gender-neutral definition of marriage proposed by the Bill. They may accept the Bill, and many do, but they object to the gender-neutral definition, which embraces them as well. I contend that they cannot be expected to jettison their deeply held beliefs overnight; nor, I suggest, is it the proper role of law to seek to coerce people to do so.
I was much impressed and heartened by the comments of the noble Lord, Lord Deben, who talked about generosity. I made a note of that at the time. It seems that those words have been played into. The word “generosity” and, later, the words used by the noble Lord, Lord Elystan-Morgan, “reasonableness” and “tolerance”, have been much in vogue over the past half hour or so in your Lordships’ House. I applaud that. What we are looking at is recognising the traditional view of marriage as held by many people, who still cling to that as the ideal. That takes care, very briefly, of the first part of my amendment.
I turn to the words,
“worthy of respect in a democratic society”.
That concept—those words—is the key test in human rights law. Case law from the European Court of Human Rights and, indeed, the highest courts in the UK, also hold that for a belief to be protected in law it must pass this legal threshold. Stating in the Bill that the belief in traditional marriage meets this test would provide very valuable help to everyone who holds that belief. It is particularly important for individuals who are not, as one may say, card-carrying members of any particular religion.
A great many people in this country have a deeply held belief in marriage that is not, to them, part of an overall religious or ethical belief system. The belief is more likely to be recognised and protected in law where it flows from an underlying, religious belief system. It is less likely to be afforded protection where a person holds a belief that could be written off as mere opinion. The case law on that I quoted extensively in Committee. I will not go through it again. The references can be found in Hansard, when I quoted from Grainger plc & others v Nicholson and the Williamson case.
The words,
“worthy of respect in a democratic society”,
are the acid test. The Minister said in Committee:
“A belief that marriage should be between a man and a woman is undoubtedly worthy of respect in a democratic society”.—[Official Report, 17/6/2013; col. 75.]
There can be no objection, she said, to putting this in the Bill. The enacting of the Bill should make it abundantly clear that a belief in same-sex marriage is worthy of respect. Millions of people who hold to a traditional belief in marriage are left unsure today by what is going on in this House and in another place as to whether their belief is similarly worthy of respect. I contend that it is necessary and that it takes absolutely nothing away from the Bill, or what the Bill seeks to set out, to include the amendment.
The noble Lord, Lord Phillips of Sudbury, who is not in his place at the moment, spoke very powerfully about the millions of decent people who, as he put it, are not homophobic, who are concerned and confused by what the Bill will mean for them. They show a great deal of tolerance and understanding about why the Bill is coming in and in many ways support the general thrust. However, at the same time, the noble Lord talked about avoiding discontent in that very large number—my words, not his. What he was really saying was, “Don’t damage the purpose of the Bill in the eyes of the general public”.
The Bill will pass. That was evident from Second Reading and from today in the two votes that have taken place already. The Bill will pass, but it should be enacted in a climate of acceptance. With some people that will be a grudging acceptance, although not in my case, and with others a warm acceptance. However, it should come in in an atmosphere of acceptance and those words of tolerance and generosity that we have heard much play made of today. It should not come in in a climate where no concessions are allowed at all for those who seek to understand those millions of people outside who are confused and who look for some sort of reassurance—a safety net if you like—that they can quite properly express a view and a belief and not be punished for it. I beg to move.
Amendment 5 (to Amendment 4)
Lord Cormack
Lord Cormack
My Lords, I will not detain the House long. I do not disagree with what the noble Lord, Lord Dear, said, but I seek to sharpen up his amendment for two reasons. First, I have been approached by many people during the passage of the Bill through your Lordships’ House who believe very firmly that marriage is between a man and a woman and wish to see that recognised at all appropriate points, but have themselves not been able necessarily to sustain marriage for life.
It is a fact of life—the noble Lord, Lord Dear, briefly alluded to it—that many marriages do not stay the course. There are many in your Lordships’ House who have been married more than once. That does not in any sense weaken or invalidate the marriage, or make those noble Lords who have had more than one marriage believe less in marriage as an institution. But we live in a very different world from that of 1866 cited by the noble Lord, Lord Dear. Even within the clergy, I have many good friends, some highly placed within the Church of England, who have had a marriage that has come to grief. Some have remarried and some have not. In that spirit of tolerance, understanding and generosity, to quote my noble friend Lord Deben in a previous debate, it would be more inclusive just to omit those words. That does not in any sense weaken the thrust of the amendment of the noble Lord, Lord Dear; it merely brings it up to date and recognises the world in which we live.
My second amendment is slightly more playful in that I would take away the words “in a democratic society” because this belief is worthy of respect in all societies, democratic or not. We recognise that. It is certainly not an amendment to an amendment that I would press. However, I must say to your Lordships’ House that those of us who believe in traditional marriage but are not in any way opposed to equality—one must repeat that, as one has many times during these debates—feel that including something along these lines in the Bill could not do any harm and could be of some reassurance to many people outside this House. They are the sort of people referred to by the noble Lord, Lord Dear, and by the noble Lord, Lord Phillips of Sudbury, in what I thought was a very moving speech in an earlier debate this afternoon. I beg to move the amendment to the amendment.
Lord Pannick
My Lords, nothing in the Bill prevents the noble Lords, Lord Dear and Lord Cormack, believing and expressing a belief in so-called traditional marriage. Contrary to the speech of the noble Lord, Lord Dear, there is nothing in the Bill that “coerces” people to “jettison”—the noble Lord’s words—their beliefs in any of these respects. This has repeatedly been explained by noble Lords and to noble Lords during our debates on the Bill. If, as the noble Lord, Lord Dear, suggests, millions of decent people have concerns, they are completely unfounded and it does no service to them whatever to give credence to such basic misunderstandings.
Lord Deben
As has been mentioned on several occasions, I want to expand on why I think this is a really dreadful amendment. It is dreadful for the reasons that my noble friend Lord Cormack has explained. He has amended the comments of the noble Lord, Lord Dear, because nobody really knows what people mean by traditional marriage. That is one of the difficulties. The amendment is a blunderbuss.
My problem is that if we put this into the Bill, that would suggest that somebody actually thinks it might need to be in the Bill. However, there is no reason for that. The noble Lord, Lord Pannick, is absolutely right about that. If we have to put this in, what other definitions of marriage will we have to put in? Do we say, “Nothing in this Act shall counteract the opinion that some people believe X, Y and Z”? All Acts would be interminable and intolerable if we added all the things that they did not have a reference to, but that is exactly what the noble Lord, Lord Dear, has put forward.
However, the problem is much more basic than that. There is a fundamental difference, although it is not something that is shared across every side, in arguing that in all circumstances we should be wary of not having a conscience clause. I am always in favour of conscience clauses because I never know when they will come for me. That is my honest view about conscience clauses. Therefore, I always want to lean over backwards towards people who are in a position—not one that they have chosen—where they may feel that their conscience prevents something. That is why I take that view. However, I do not believe that you can reasonably undermine the value of a Bill by putting into it a phrase that is designed to say, “Look, we’ve had to pass this Bill but a lot of us don’t really think like that. We’re not really on that side and we just want to—nudge, nudge—put this in to make sure that you realise that we weren’t really on that side”. That is a game to deny the reality of the Bill.
The Bill is a generous one and if it is too generous, it makes up for the exact opposite way in which we have acted until now. Please, do not allow the Bill to be undermined by an addition of this kind, which is already a matter of disagreements between the two people who are proposing it and which, after all, could be expanded to any lengths you like to include anybody who might feel that they had not had their particular views heard. It is not a sensible amendment and we should refuse it.
Lord Lester of Herne Hill
My Lords, the law on traditional marriage is contained in the Marriage Act 1949. Nothing in the Bill affects the rights and duties under the Marriage Act 1949 of what is called traditional marriage. If it did so, the amendment might have some kind of purpose, but it does not. If it does not undermine the ability to marry under the Marriage Act, does it create any sort of belief that that form of marriage is in some way undesirable? No, it does not. Nothing in the Bill suggests anything wrong with the traditional view of marriage. What it does do is to create another form of marriage and treat it as part of the concept of marriage. That does not undermine traditional marriage unless you take the view, as some do, that we should not have the Bill at all.
Baroness Royall of Blaisdon
My Lords, the noble Lord, Lord Dear, spoke of traditional marriage being worthy of respect. Indeed, traditional marriage, in his words, is worthy of respect. But, the great thing is that after the passing of this Bill, same-sex marriage will be equally worthy of respect. That will be a matter for celebration. This is because at the moment marriage is a voluntary union of one man and one woman, but with the passing of this Bill I am delighted that marriage will be extended to the voluntary union of one man and one man, and one woman and one woman. I think that we are really motoring along.
No one is asking people to abandon their beliefs. The Bill does not suggest in any way that they should or that they must, as has been said so many times in the debates thus far. The reality is that it is absolutely clear that alongside the protections in the Human Rights Act, the common law protection of freedom of speech and the existing protections in the Equality Act 2010, religion or belief will continue to ensure that it is unlawful for an employer, service provider, public body or anybody else to discriminate. There is absolute freedom of speech. The Minister could not have been clearer when she said in Committee that:
“The Bill absolutely makes it lawful, and continues to make it lawful, for people to believe that marriage should be only between a man and a woman”.—[Official Report, 17/6/13; col. 72.]
That is clear.
Baroness Knight of Collingtree
I am most grateful. I ask a very quick question, in the light of the fact that the noble Baroness just told the House that nobody will be forced to act against their conscience. Have we not recently passed an amendment which will make it very likely that a number of registrars will be forced to do so?
Baroness Royall of Blaisdon
My Lords, the issue pertaining to registrars is not to do with conscience but with the fact that registrars are public servants, and they are upholding the law. In being a registrar they are doing their duty as public servants. Their beliefs are nothing to do with their work as a registrar. This amendment is completely different. It is to do with freedom of belief and freedom of expression, which I believe are a hallmark of democracy. Individuals must be able to reasonably express their views on these issues, as indeed they are.
The amendment put forward by noble Lord, Lord Dear, and the amendment to that amendment put forward by the noble Lord, Lord Cormack, are not only unnecessary, but they could dovetail into some concerns expressed earlier by the noble Lord, Lord Elystan-Morgan. He was concerned about having a sort of gold hallmark of marriage, and then a sort of tarnished, baser metal marriage for same-sex couples. We want marriage for same-sex couples and heterosexual couples to have equality of esteem. They must have this. I am therefore against the amendment.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Lord, Lord Dear. In introducing his amendment he reminded us again that we should try to ensure that we are tolerant, generous and courteous, not only in our debates in this House but also in the legislation that we are bringing forward. I argue that we are doing just that. The noble Baroness, Lady Royall, just quoted something I said at an earlier stage. The Government are very clear that the Bill does not only allow same-sex couples to marry; it also protects religious freedom and ensures that no belief that anyone holds now is affected by the introduction of this Bill. As I said at earlier stages, we are clear that the belief that marriage should be of one man with one woman is protected under the Equality Act 2010. It meets the established criteria set out in case law.
The noble Lord, Lord Dear, referred to the case of Grainger plc v Nicholson, which specifically included beliefs worthy of respect in a democratic society. Equally, Article 9 of the European Convention on Human Rights guarantees that everyone has the right to freedom of thought, conscience and religion. This means that everyone has an absolute right to hold any belief. However, of course the right to manifest one’s belief is qualified, and the state can regulate that in certain circumstances where that is necessary for the protection of the rights and freedoms of others. As I have made clear, it is perfectly possible for somebody to not only have that legitimate belief but also to be free to express that belief. To follow up on the exchange that just took place between my noble friend, Baroness Knight, and the noble Baroness, Lady Royall, the difference is that what is not possible is for somebody to withhold their services because of the belief they hold. There is nothing to stop them from having that belief. The amendment is therefore unnecessary. It states something that is entirely true—that the Bill does nothing to undermine the principle that a belief that marriage is,
“union of one man and one woman for life to the exclusion of all others is a belief worthy of respect in a democratic society”.
Of course it is, and this Bill raises no doubt about it.
As has been pointed out, the view that a marriage of a same-sex couple, like the marriage of an opposite-sex couple, is a valid marriage is also a belief worthy of respect in a democratic society. As was said by the noble Baroness, Lady Royall, and my noble friend Lord Deben, if we are going to state that the one belief is worthy of respect, we ought to state that both are worthy of respect. As it stands, this amendment suggests that a belief of the kind it covers, concerning marriage between a man and a woman, is in some way superior to a belief that marriage of a same-sex couple exclusively and for life is to be welcomed as an equally valid relationship. Therefore the amendment goes against the entire point of the Bill.
I also caution the House on a further point of principle. We risk getting into rather dangerous territory if we start to set out in statute which beliefs are worthy of respect or protection in law. It may seem easy here, where there is absolutely no doubt that the belief concerned is mainstream and uncontroversial, but it would not be wise for legislation to list beliefs, just as we do not list religions. Otherwise we get into the arena of state-sponsored religions and beliefs. It would also be an impossible task to list all religions and beliefs that are protected, which would cast doubt about whether unlisted beliefs are protected. That point was made in this debate by some noble Lords who are lawyers.
I now touch on Amendments 5 and 6, put forward by my noble friend Lord Cormack. I will go not into detail, because they do not affect the fundamental point I am making, which is that these amendments are unnecessary. They risk creating the suggestion that a belief in the validity of the marriage of same-sex couples is to some extent less worthy than a belief that marriage should be of one man with one woman. As I have explained, it would be most unwise to seek to legislate for what is or is not a belief worthy of respect.
All that said, and just to be absolutely clear, of course none of that means that it is not absolutely legitimate for people to hold the view that a marriage should be between a man and a woman, and for them to be able to express that view. I have stated that many times and I will continue to do so, because it is such an important part of what we are ensuring will remain the case when, as we hope, the Bill becomes an Act of Parliament.
Finally, in response to the noble Lord, Lord Dear—
Lord Butler of Brockwell
My Lords, it would greatly reassure me if the Minister were to give an absolute assurance that somebody who says that they believe that marriage is the voluntary union of one man and one woman for life to the exclusion of all others is not in any danger of being charged with making a homophobic remark.
Baroness Stowell of Beeston
I can give your Lordships absolute, categorical reassurance that anybody who expresses that view is being absolutely lawful. What I cannot give the noble Lord categorical assurance on, which is something that we debated at length at earlier stages of the Bill, is that there may not be somebody out there who decides to try to take action against them. If they were to do that, the law would protect them, because the view that the noble Lord has just expressed is absolutely lawful. It is legitimate, and they can hold that belief and express it. Clearly, as noble friends who are lawyers have reminded me before, whenever a judge hears a case he has to take in all manner of different contexts in order to consider the way in which those words are expressed. But I believe that I can give the noble Lord the reassurance that he is looking for on that point.
Lord Elton
My Lords, on that point, could my noble friend tell me whether she had a letter from a Mr Tony Miano, which is relevant to this. If not, may I pass it to her to read before Third Reading?
Baroness Stowell of Beeston
If the gentleman that my noble friend refers to has written to me, the letter has not reached me, but I have seen a copy because I know it has been circulated widely. I am aware of it. What his experience tells us is the point that I just made, if I understand that experience rightly and it was as has been reported in the media. I was not there and do not have the full details of the event. If he expressed views as I have just explained, he was being absolutely lawful. I understand, according to news reports, that he was arrested, but no charges were brought against him because the law is clearly on his side.
My noble friend has just given me the opportunity to remind noble Lords of something. I was going to make this point in any case to the noble Lord, Lord Dear, because he said we are not making any concessions in this area. It is important to remind him and the House that we have amended the Public Order Act to make it absolutely clear in the provision that already exists in that Act that it is absolutely lawful for people in public discourse to express this view. We were happy to make that amendment to a section that already exists. That change has been made. On a general basis, I also point out to the noble Lord and the House that later we will debate an amendment we are moving in the context of greater clarity for the protection of religious freedom around the meaning of the word “compel”. We are listening and we are making changes where we think it is right to do so and no harm will be done. In that context, the proposal that the noble Lord has put forward is not necessary for all the reasons I have explained. I hope that he feels able to withdraw his amendment.
Lord Dear
My Lords, I am much reassured by what the Minister said. She mentioned the Public Order Act. Of course, that allows me to parade, after a defeat here, a success in removing the word “insulting” from Section 5 of the Public Order Act shortly before Christmas with a fairly substantial majority. That was taking the word “insulting” out but leaving in “threatening” or “abusive” words or behaviour in a public place. Amendment 4 is really aimed much more at comments made in private, not in a public place, as defined by the Public Order Act, which the noble Baroness alluded to.
I remained concerned. I mentioned before, as did others today, the large number of people who are concerned about a change to life as they see it, to put it in those terms. Certainly, from my own personal point of view, I would not withhold the words “worthy of respect” from same-sex marriage if this Bill becomes law. Undoubtedly, it will do. The moment it becomes law, I shall accord that respect, undauntedly, to those who are in a same-sex relationship as I do to those in a traditional relationship. I hope, too, that that will go for the vast majority of people in this country.
I am much reassured by the response given to the question posed by my noble friend Lord Butler of Brockwell because I was going to make the same point. He saved me from posing that question again and perhaps losing my voice in the process. I hope that, in future, we will find that this short debate has been unnecessary and that in fact the holding of a belief and espousing that belief into some sort of fairly anodyne comment—one not meant to insult, a simple “I believe X”—will not get those people into trouble. The Minister has been so fulsome in the way she responded to that question that I have great pleasure in withdrawing the amendment.
Lord Elton
Before the noble Lord does that, can I just remind him that we are actually debating the amendment to his amendment? The last word on that has not yet been said.
Lord Cormack
My Lords, I am most grateful for the generosity and courtesy of my noble friend Lord Elton. I will not detain your Lordships. I wish to withdraw the amendment to the amendment. Having understood that that desire is similar to that of the noble Lord, Lord Dear, we appear to be in accord.
Added Tribunals (Employment Tribunals and Employment Appeal Tribunal) Order 2013
(10 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
That the draft order laid before the House on 24 April be approved.
Relevant document:1st Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I shall also speak to the draft Employment Tribunals and Employment Appeal Tribunal Fees Order 2013. The purpose of these orders is to make provision for fees to be paid by those who present claims or make appeals to employment tribunals and the Employment Appeal Tribunal. They also make provision for fees to be remitted or waived in full or in part if the person cannot afford to pay using the existing civil courts remission scheme.
Bringing a claim or an appeal to employment tribunals and the Employment Appeal Tribunal is currently free of charge. In 2012-13, the cost of running the employment tribunals system was £74.4 million. That cost was entirely met by the taxpayer. While the Government are committed to providing a fair system for those who need an independent tribunal to settle an employment dispute, we also believe that it is perfectly reasonable that those using the tribunals should contribute to their cost, where they can afford to do so. It is important that noble Lords understand that introducing fees into these tribunals is not an attempt to deter individuals from bringing claims—vexatious or otherwise—and given the mitigations in place we do not believe the provisions of this order will do so.
Employment tribunals were originally intended as the option of last resort in disputes when all other resolution services had failed. Over time that status has eroded and claims are now often launched prematurely, without exploring alternative options for resolving disputes. The introduction of fees can support a necessary change in the mindset of users and help to reset the system by encouraging individuals to stop and think about whether a dispute can be settled without recourse to a tribunal, and whether it is really necessary to submit a claim. Complementing that aim, mandatory early conciliation will be introduced in 2014, meaning parties will not be able to bring a claim to the tribunal without first having sought a conciliated resolution via ACAS.
The Government are also implementing a brand new simplified set of rules and regulations governing procedure in employment tribunals. The simplified rules attempt to roll back and reset unnecessary complexity in tribunal rules, creating increased clarity and understanding for the lay person. This ought to reduce claimants’ reliance on legal representation and help return employment tribunals to the role envisaged when they were first set up.
Responsibility for the wider employment law, including the rules, lies with the Department for Business, Innovation and Skills. Should issues arise in this debate that are beyond my remit I will ask my colleague, my noble friend Lord Younger, to respond in writing should it be necessary. I am confident that noble Lords will see that these proposals are not an attack on employment rights or on people with low incomes. They simply reset the system that this Government inherited and reduce the taxpayer subsidy of employment tribunals by transferring some of the cost to those who use the service, while protecting access to justice for all. Assuming parliamentary approval, the instrument is due to come into force on the day after it is signed and made. We are confident that, subject to that approval, fees will come into effect on 29 July this year.
I turn now to the provisions of each order. Parliament has already made provision for fees to be charged in tribunals under Section 42 of the Tribunals, Courts and Enforcement Act 2007. The added tribunals order provides for employment tribunals and the Employment Appeal Tribunal to fall within the provisions of Section 42 as added tribunals allowing the Lord Chancellor to prescribe fees by order for anything dealt with by them.
The fee structure provided in the fees order reflects the decisions made and announced after the Government’s consultation paper, Charging Fees in Employment Tribunals and the Employment Appeal Tribunal. We considered the views expressed by those who responded to the consultation, and settled on a final structure taking proper and full account of those views.
Part 2 of the order provides for claimants to pay an “issue fee” covering a contribution to the pre-hearing costs, and then a “hearing fee”, payable 3 or 4 weeks before a hearing, should that stage in proceedings be reached. It also outlines a number of application fees, payable by the party making the application, and a fee for judicial mediation, payable by the respondent.
Sections 5 to 10 provide the fees payable. Two levels of the issue and hearing fees are proposed, and are defined in the order as type A and B claims. Claims are allocated to type A or B depending on the nature of the complaints described in the claim form. Type A claims are those which are simpler for the tribunal to deal with and so cost less for a claimant to bring—namely, £160 at issue and £230 before the hearing. Type B claims are more complicated, requiring more tribunal time and resources to determine. Therefore they attract higher fees of £250 at issue and £950 at hearing. Where there is a mixture of type A and B claims within the same claim form, the higher fee will be paid.
Sometimes in the employment tribunal two or more claimants present their claims on the same form. The order defines this as a fee group, and the number of people in the fee group also affects the fee due to be paid. There are three bands of fees, increasing on a sliding scale depending on the number of individuals named within a form. If claimants present their claims in this way, the fee payable per person will usually be much lower—and will never exceed—the amount that they would have paid if they had sent their claim separately.
In certain circumstances, Article 12 provides a safeguard ensuring that no one in a fee group will have their claim struck out because of the failure of others in their group to arrange a group payment if they themselves are willing to pay the single fee.
Part 3 of the order provides for fees in the Employment Appeal Tribunal. A flat fee regardless of claim or appeal type will be required on instituting an appeal. A further flat fee will be required ahead of the full hearing of the appeal. Part 4 of the fees order provides for transitional arrangements and remissions. Fees will be charged from the date of the order, so that those who have commenced their claims or lodged their appeals before this date will not pay any fees. Schedule 3 of the fees order makes provision for a range of remissions or fee waivers based on the existing HMCTS civil courts scheme. This scheme will ensure that access to justice is protected by reducing or remitting fees for individuals who provide evidence of being in receipt of particular qualifying benefits, or that their income is below certain thresholds.
The Government are fully committed to ensuring that tribunals remain accessible and continue to provide an effective service which is responsive to users. This measure provides for the users of the Employment Appeal Tribunal to make a contribution towards the provision of that service and to better balance the cost of providing access to justice between the user and the taxpayer without restricting that access.
I therefore commend the orders to the House and hope that noble Lords agree that the measures which I have proposed today should proceed.
Lord Beecham
My Lords, we live in a world where failed bankers and departing BBC executives are awarded compensation for their loss of employment running into millions or hundreds of thousands of pounds, often at the taxpayer’s expense. We seem to be about to live in a world where employees, often low paid, not only no longer receive legal advice or legal aid to pursue a claim arising out of their employment problems but will have to pay significant sums to have their case dealt with by an employment tribunal. It costs only between £35 and £70 to issue a money claim of up to £1,000 in the civil courts but, as the Minister confirmed, it will cost £160 to issue a type A claim—for example, for wage theft, withheld holiday pay or all manner of modest claims—in the employment tribunal, and a further £230 for a hearing, with higher fees where a number of claimants seek the same remedy.
In the more serious type B cases, to which the Minister referred—for example, for unfair dismissal, discrimination or equal pay—the fees rise to £250 to issue a claim and £950 for a hearing. The result is that it costs more for a type B hearing at an employment tribunal than it does to lodge an appeal in the Supreme Court, which costs £1,000, and even with a hearing the total Supreme Court costs are only £1,600—£350 more than for a hearing in the employment tribunal.
The Government are anxious to market our courts to the likes of libel tourists or Russian oligarchs but evidently loath to facilitate access to justice for our own citizens seeking redress in the form of modest payments, frequently amounting to only a few hundred pounds, and often less than £100.
The Government’s own impact assessment demonstrates that 22% of employment tribunal claimants are disabled, with 40% of those claiming discrimination in that category. There is a rising number of claims stemming from pregnancy and maternity issues. Those are particularly vulnerable groups of people who will have to put up the money, disproportionate to any other form of civil litigation, to have their case heard.
In any case, the number of claims has fallen over the past two or three years, and the impact assessment shows a saving of only £12 million. The Minister is right when he refers to the overall cost being about £70 million, but the result of these measures will be, only if people pay the sums, to gather in only £12 million.
The proposed fees for multiple claims to which the Minister referred—for example, in relation to equal pay—compound the injustice. For example, seven supermarket workers claiming for an improper shortfall in their pay amounting to only, in one case, £313.90 between them will have to pay £320 to issue the claim and £460 for a hearing. Given the uncertainties, many people will simply be deterred from bringing a case, not least because the money has to be paid up-front, and in the absence of legal advice potential claimants will not have a ready notion of their prospects of success.
The response to the Government’s consultation paper on the issue contains an interesting passage which I quote in full:
“Employment Judges in Scotland consider that there is a significant risk that if a claim is for a small amount of money then a claimant will be discouraged from pursuing that claim, even although they are legally entitled to the sums due. For example, say an individual is entitled to one week’s wages in respect of holiday pay and the individual is paid just above the threshold which would allow them to qualify for remission. That person may decide that they will not pursue the sum due. This could have the consequence of encouraging a less than fair employer to routinely deprive employees of small sums of money to which they are entitled on the basis that the risk of them pursuing a claim will be small”.
The Government airily dismiss this response and disingenuously aver that claimants will not be deterred from lodging claims. What steps will they take and how soon to ascertain the actual impact of these changes? What do they propose to do about the startling fact revealed by the Ministry of Justice’s own study in 2009, which showed that 40% of awards in England and Wales are not paid at all and that fewer than 50% are paid in full?
In relation to concerns raised by Money Advice Group about the situation of claimants whose employers have ceased trading, and against whom claimants have to lodge a claim to access any payment from the National Insurance Fund, the Government said that they would explore the issue further. I invite the Minister to say whether they have reached a conclusion and, if so, what it is. If he is not in a position to do that tonight—and of course I understand that he may not be—no doubt he will write to me and place the answer in the Library.
Of course, not all claims are for monetary compensation. For example, for a claim under Section 12 of the ERA 1996 to determine the particulars of employment there is simply no monetary component, yet the fee, which will be significant for a number of claimants, will still have to be paid. It should also be noted that there are problems with the timescales—for example, in relation to the payment of the fee or in applying for remission of fees. As the Minister said, there is a remission scheme but this pitches the threshold very low. For example, no fee is payable if the disposable monthly income of the applicant and any partner is £50 or less, with a graduated cap beyond that. That is a very low threshold. Crucially, there will also be a capital limit of £3,000. Ironically, a claimant who, shortly before bringing a case because he is being dismissed, receives a redundancy payment—the claim may not necessarily be related to the dismissal but may relate to other matters—will have that payment counted towards the capital limit.
With a matter of only weeks to go before the new system becomes operational, I understand that there has been no user-testing of it, nor any detailed guidance published about how to apply for remission or appeal against refusal of remission. I do not know whether the noble Lord can enlighten us as to whether and when such testing has taken place or will take place, or when the guidance will be issued.
To be fair, there may be cases, usually affecting large claims, where respondent employers feel that it may be more economic to settle a claim even though it may be without merit. Recent changes in procedure initiated by Mr Justice Underhill may well mitigate this problem, and streamline and improve the management of cases, but in any event the fees for that type of case are unlikely to deter claimants who seek substantial sums from hoping to secure a settlement, while at the same time making it difficult for genuine claimants of moderate means and with more modest claims to pursue their remedy. For a settlement of £50,000, somebody may be prepared to gamble £1,200 or £1,500. Somebody seeking a payment of £50 or even £500 would be much less likely to stake a fee which is close to, or even exceeds, the amount claimed. It should also be stressed that the Gibbons report of 2007 made it clear that only a very small minority of claims could be described as vexatious.
My noble friend Lady Donaghy, with her long experience of ACAS, will no doubt comment on how the role of that organisation might be deployed to improve the working of the system, with or without the proposals in the regulations.
There would be little objection, perhaps, to a modest fee being levied that was much more proportionate to the amount claimed, as occurs in other jurisdictions. However, the Government’s proposal seems to be another in a long series of changes favouring defendants and making access to justice more difficult for ordinary people with meritorious claims. As such, it is deeply regrettable.
Baroness Turner of Camden
My Lords, we have seen a series of government proposals over the past year, all designed to reduce employment rights and all apparently in the belief that this will promote employment. So a supine, disposable workforce is expected to result in increased employment. This is entirely wrong. We have legislation now making it more difficult for a dismissed worker to claim unfair dismissal. Already, a worker must be in the job for two years before any such claim can be made. Then a series of steps has to be taken before the case can get to a tribunal. The Government have admitted that they want to make access more difficult, and their policies certainly have done so. Now, the Government want to charge and a complicated system is being proposed.
Level A claims for unpaid wages, and smaller claims under category A, are to have an issue fee of £160 followed by a hearing fee of £230. For unfair dismissal, the charges are much greater, being £250 and then £950. We are told that vulnerable and poorer people will not have to pay but the TUC research indicates that a significant number of people on the national minimum wage and living wage rates will have to pay. It is clear that the Government are moving in the direction of the Beecroft proposals, which were widely condemned even by employers. The Government are trying to do that without seeming to do so. The scheme by which employees give up employment rights in return for shares in the employing company, which incidentally was voted down in this House when first proposed, is not meeting with much success even though the Government managed to get it through the Commons.
The latest proposal about charging for tribunal access is part of the same mindset. An employee seeking access to a tribunal following what he or she deems unfair may have been in the job for a number of years. Losing the job could have a distressing effect not only on the employee but the family, leading perhaps to further benefit claims as well as the illness of the dismissed employee. An appeal to an ET before a judge sitting alone will cost more money, and lay members, who bring experience and knowledge of workplaces, are being dispensed with. The Government are clearly expecting that the whole process will seem too complicated and costly for most employees and that there will be very few claims as a result—with no legal aid, of course, in employment cases. Furthermore, employers will be less inclined to seek resolution internally, as they will understand well enough that the complex procedures and costs awaiting employees claiming unfair dismissal will put off any but the most determined.
Do the Government really think that a frightened, submissive workforce is going to assist us in our present economic difficulties? Of course it will not. Growth requires a committed and enthusiastic workforce. These latest government proposals are completely and utterly unfair. They should be withdrawn.
Baroness Donaghy
My Lords, I am grateful to my noble friend Lord Beecham for raising these issues, and I will not cover the ground that he has already covered. During Committee on the Enterprise and Regulatory Reform Bill, I congratulated the noble Lord, Lord Marland, who was then taking the Bill through this House, on the fact that the proposals regarding ACAS were right. They laid emphasis on mediation and settlement, and aimed to enhance ACAS’s role. I said that this was the right thing to do and I still think that. Both sides would receive a reality check and be in a much better position to take appropriate action after the ACAS procedures—that is, until these proposals came along.
Unfortunately, alongside the much needed reform that came up in the hands of the noble Lord, Lord Marland, there come these punitive measures for applicants to employment tribunals. It is a classic result of two government departments approaching a problem and coming up with contradictory results. What kind of mood will the client and the employer be in when they get to ACAS? The employer will hold his ground in the hope that the entry fee to the employment tribunal will be sufficient to put the applicant off. The applicant will feel that the cards are stacked against him or her and will be in no mood for conciliation. That is how to sabotage a perfectly good reform.
Today, I spoke to John Cridland, the director-general of the CBI, about these proposals because I knew his views when we were on the ACAS Council together. The CBI agrees with charging for employment tribunals but wanted a lower fee of around £100 and rules that apply more generally to each applicant, rather than all the exemptions and ceilings.
The CBI view is that the high fee is unhelpful. The exemptions defeat the purpose of the exercise and the proposals are confusing. It believes that the Ministry of Justice has concerned itself with recouping charges for its own cost base rather than as a deterrent for vexatious claims. The Ministry of Justice is not focused on how to influence culture, and John Cridland expressed frustration at the poor implementation that he fears, as do I, will get in the way of conciliation. My view is that this apparent deregulation and cut in public expenditure will set up a whole complicated bureaucracy because of the complexity of the scheme, and applicants will not know to which category they belong. This is more red tape, not less.
Baroness Drake
My Lords, on any reading this order raises the barriers to an effective remedy to enforce employment rights for ordinary people. Yes, some employees will bring cases without merit but in my experience, from 27 years as first an ET member and then an EAT wing member, most claimants have a genuine belief that they have experienced a wrong in the workplace and been treated unfairly. Similarly, some employers behave badly—not all are models of paternalistic virtues facing difficult employees.
Employment tribunals used to be viewed as the last-resort mechanism, but the structural shift in the UK economy has also seen a corresponding decline in collective representation throughout the private sector. People no longer have access to a network of union representatives to help them pursue their workplace dispute. The tribunal system is often the only route open to them.
The order is concerned less with protecting access to justice and more with reducing the number of ET cases by pricing workers out of the system. In the order we see the obstacles to access. The language in the Explanatory Memorandum reduces the enforcement of employment rights to a commercial transaction. Paragraph 4.19 of those notes observes that if some users’ expected costs of bringing a claim now exceed their expected benefits of doing so, the total volume of cases brought to the ET might reduce. Concepts such as “consumer surplus”, “level of utility” and “price elasticity of demand” are deployed to give a monetary value to claimants’ loss of satisfaction so that they will no longer choose to bring cases, thus reducing enforcing an employment right to something akin to purchasing a washing machine or an insurance policy.
The Explanatory Memorandum made depressing reading. It showed insensitivity to what drives some claimants. The motive is not always compensation. They can often feel frustrated and humiliated at the way they have been treated, and it becomes important to have a public record that they were badly treated. They may bring a case for unfair dismissal because they know that unless they can win that claim they cannot get a decent reference or a comparable job, and their “utility”, as the memorandum puts it, may be far greater than the financial value of any remedy if they win, the median value of which is only around £4,600.
For those on low incomes, filling in an ET1 application form to register their claim is a complex procedure, notwithstanding the proposed simplifications. A remission form has been added that has to be submitted with the claim, which itself has to be submitted within a statutory deadline. Add limited literary skills, English as a second language and a lack of confidence, and we can see how the very process itself will work against precisely the vulnerable people who are most likely to be taken advantage of in the workplace.
An employment tribunal claimant is more likely to be male and working full-time or unemployed, confirming that women in low-paid and part-time jobs are less likely to use the tribunal system to enforce their rights. This order will simply reinforce that.
For some types of cases, proportionality is lost. For claims on annual leave entitlements, unpaid wages, statutory redundancy payments or non-payment of the national minimum wage, the fees being set could be greater than the remedy being sought—even more so if you are a part-time employee.
The remission system will mean that significant numbers of individuals in couples earning national minimum wage rates will still have to pay fees to enforce their workplace rights, as will others on modest incomes. When it comes to equivalence, as other noble Lords have said, the proposed fees are higher than fees payable in the civil courts. For some, an appeal to the EAT will simply be out of their league, particularly when the cumulative effect of an issue fee, hearing fee, ET review fee, EAT lodge and hearing fees and their own legal costs are taken into account. That is deeply unfair. Appeals from employers could begin to dominate the EAT. Appeals to the EAT are on points of law, which require legal help and support to put forward.
Added to that is the uncertainty that the claimant may not get their money back for the fees paid if they win their case. Yes, it will be open to the ET to order an unsuccessful party to pay an amount up to the value of the fees—or less, the criteria are unclear—then add the possibility that the employer may not pay up on such a fees order, or even on any other element of the remedy, and the scales of justice start heavily to tilt against the claimant.
The Government are already facing two legal challenges, one from a trade union, the other from a firm of Scottish solicitors. The order could affect women disproportionately, particularly in multi-claimant equal pay cases. Take the level of fees, the way in which the fee group may operate and the fact that solicitors operating on a no-win-no-fee basis may be unwilling to pay fees up front because they become too expensive, and again, before the claimant can get their foot in the door of the tribunal, we see those doors slowly closing.
The Government want to encourage parties to settle at an early stage, but the fees could produce perverse incentives and negative behaviour, as my noble friend Lady Donaghy explained. Some employers could become less likely to agree a resolution. They may want to see the claimant’s money submitted first by registering the case, knowing that the claimant has to come up with the money. The worst employers may be emboldened to treat their employees badly, knowing that they may have to come up with significant amounts of money to pursue their case.
As for the vexatious employee, who seems to dominate this debate, employment tribunals already have case management powers, and can make orders for deposits and costs where a party is deemed to have acted vexatiously, abusively, disruptively or otherwise unreasonably or where the bringing of proceedings has been misconceived—that is a long list—and they are increasingly using those powers. Of course there is scope for improving the efficiency of the tribunal system—I sit in it, and could suggest several—and there are arguments for strengthening the judge’s case management powers. Parties should be encouraged to settle whenever possible, but employment judges already often encourage them to do so. However, the order will introduce unfairness and raise the barriers for ordinary people to get an effective remedy. It will not raise the barriers for the well paid executive, but it will raise them for the ordinary person.
Lord Monks
My Lords, we know that the Ministry of Justice is constrained by some very tight budgets and needs to save money. However, it is clear from these orders that it is proposing to save money very much at the expense of the low-paid and the most vulnerable in our society. The argument that was made by my noble friend Lord Beecham about the comparison with the fees at the Supreme Court tells its own story. The fees at the Supreme Court are disproportionately low compared to what will be the position in the tribunals. Therefore, I do not see the Minister’s argument that saving money has to be at the expense of those in the lower income parts of our society compared to those who are much better off and will be taking cases in the higher courts. The burden is in the wrong place.
Secondly, it is clear that this is all about deterring applicants. My noble friend Lord Young will remember debates on another regulation about raising the qualifying period for unfair dismissal. That took 3 million people out of the unfair dismissals scope virtually at a stroke. Now we have got this as well. As people have said, it is not going to deter the well paid executive who can see a crock of gold at the end of the case. Nor will it deter the union member, because we already know that unions are preparing to support their members in appropriate cases by covering the fees. It will be those who are on their own, probably low paid and vulnerable, and who will not find it easy to get a comparable job. They are being told to go away quietly. I think that is a green light to the heartless, careless, poor employer that they can now get away with it when previously they would have had to be more circumspect.
I do not put too much weight on the remissions scheme. The idea that if one has a £3,000 household investment income or savings certainly seems to be unfair because it lumps the household together for those calculations. I think it is still very much an attack on the low-paid, and the remissions scheme is nowhere near adequate to cover that. This is Beecroft by the backdoor. I know the Minister’s party colleague has been very strong in his condemnation of Beecroft, but why is it that these particular measures keep appearing, under a different guise for sure, and we keep seeing these attacks on employment rights in exactly the same spirit that Beecroft meant them in his original report.
I, too, add my voice to that of my noble friend Lady Turner in asking for these regulations to be withdrawn.
Baroness Whitaker
My Lords, I just want to speak briefly because I sat on employment tribunals for several years and I do not remember any vexatious claims. Although some were poorly argued, they would actually have done better with a lawyer. Of course conciliation is desirable where it can be arranged, but where it is not, I fear that these regulations will curtail access to justice. I am uneasy about the implication that assertion of rights is an unnecessary burden on business and therefore needs to be disincentivised.
There is exploitation and ill-treatment; I saw plenty of evidence of people sacked when pregnant or being sexually harassed. They were not glamorous bankers in the way that we read about them in the newspapers but, for instance, three cleaners whose lives were made a misery every day and people who were dismissed without a proper reason. The cases we found proved were brought by ordinary poor people who had lost their jobs. How could they afford to bring such cases under these regulations? I cannot imagine that they serve justice or provide that desirable balance between the interests of the employer and those of the employee; they distort it.
Lord Lea of Crondall
My Lords, it seems that after 13 years of improving the quality of the contract of employment, and I mean everything from holidays and maternity rights through to the quality of access to justice, we have been going backwards since 2010. A more unequal society is the same as a less just society; a society which protects the strong at the expense of the weak. Of course, this can all be reversed; we hope that it will be in a couple of years with the election of a Labour Government, and on this side of the House, that is obviously the constitutional remedy to which we look forward.
I will make another point about the culture within which these proposals keep coming forward, whether it comes from the Department for Business or the Ministry of Justice makes no difference. We have lost the culture of the department for employment where people understand what creates some sort of balance in the labour market. We are, after all, looking for a labour market in which the quality of employment and jobs go along with the quality of the contract of employment. One cannot have satisfying, quality work without this being looked at in a holistic fashion.
I take this opportunity to put on record that, despite the fact that the Minister personally has a great commitment to some of these matters, the Ministry of Justice is the wrong culture within which to have a sensible picture of where we need to be going so far as the quality of the contract of employment is concerned.
Lord Young of Norwood Green
My Lords, my noble friends have made the key points, but I want to emphasise a couple of issues. The Government wanted to do something really positive and constructive, as my noble friend Lady Donaghy said, and they started to do it by enhancing the role of ACAS and encouraging mediation. We support that wholeheartedly. It is the right way forward. It is positive, it is constructive, it does not discriminate against people regardless of their income and it does not swing the pendulum towards employers, as I firmly believe the current proposals do.
As regards reducing the number of claims or the claims that the Government believe should not be taken, it is interesting that the statistics demonstrate that the number of cases is coming down in any event. My noble friend Lady Drake brings a wealth of experience of employment tribunals and employment appeal tribunals. She pointed out that judges already have significant powers in dealing with vexatious claims, so that part of the problem could and should have been dealt with. In our view, this is an unfortunate piece of legislation that, as one of my noble friends said, does not reduce red tape. It adds complexity and tilts the balance against workers. I agree with my noble friends that this order ought to be withdrawn.
Lord McNally
My Lords, I thank all noble Lords who have taken part in this debate, many of whom I know have spoken from a wealth of experience of tribunals, ACAS and the trade union movement. It has been helpful to identify and address concerns. Doing so has enabled me to set on record why the Government have decided to introduce fees in the employment tribunal system and, crucially, what has been put in place to ensure that fees are not a barrier to those wanting to access the justice system.
In speaking to his amendment to the Motion on the fees order, the noble Lord, Lord Beecham, expressed regret that its provisions do not effectively protect access to justice, that some claimants will be deterred from bringing claims and that the remission system is inadequate. Neither I nor my government colleagues accept those arguments. We believe that the mitigations we have put in place will properly protect access to justice for those seeking to bring claims. The remission scheme will ensure that those on low incomes can apply to have their fee reduced or waived entirely and, given the importance of the issues at stake, the Government believe it is unlikely that fees alone will deter those with a strong case bringing a claim. These factors, together with the power for the tribunal to order reimbursement of fees paid, will help to ensure that access to justice is maintained for those who wish to bring a claim.
As I have mentioned, we hope that fees will encourage potential claimants seriously to consider options to resolve disputes outside the tribunal system. From 2014, mandatory early conciliation will mean parties cannot bring a claim to the tribunal without first having sought a conciliated resolution via ACAS. Any decrease in claims after the introduction of fees does not mean that claims are being deterred. It is more likely that disputes are being resolved without the need to use the tribunal, which benefits everyone.
The noble Lord, Lord Beecham, raised a number of issues. He asked whether fees should be charged for someone seeking a small amount. All claimants, irrespective of appeal or claim type should make a contribution to the cost where they can afford to do so, and everyone should also think carefully about entering into litigation irrespective of the remedy sought. Claimants should bear the cost of fees where they make an allegation in a claim and fail to pursue it or where the employer is judged to have acted lawfully.
The noble Lord said that the employment tribunal is more expensive than the civil courts. The civil courts do not offer a reasonable comparator in this instance as they charge at up to five points in the court process and fees are set to recover the full cost. Civil courts process significantly higher volumes of claims and therefore have lower unit costs. In the civil courts, parties open themselves to much wider cost powers, so there are different issues to consider.
The noble Lord asked about the changes to the process for the enforcement of awards when fees are introduced. The enforcement of employment tribunal awards is fast-tracked through the civil courts. There are no plans to make any changes as part of the introduction of fees. However, separately the Government have commissioned new research covering England and Wales and Scotland, and the findings are due to be published next year.
The noble Lord asked whether there will be guidance for those paying fees. We will ensure that all users are clear on the obligation to pay fees or to apply for a remission. Existing HMCTS guidance for employment tribunals will be updated to highlight the stages at which fees are payable. There will be fees and remission leaflets to explain the fees payable, how to pay and where to apply for remission.
Lord Beecham
Can the noble Lord say whether they will be in force by 29 July? Will they be available by that date?
Lord McNally
If they are not, I will write and tell the noble Lord. The noble Lord also raised the question of whether the Government know what the impact will be. It is difficult to predict the impact that the introduction of fees will have on behaviour. It may be reasonable to assume that if people who are thinking about bringing a claim have to pay to do so, they will more carefully consider whether they wish to do so and their chances of success than they would if the process was free. If this is a valid assumption, we would expect the number of speculative claims—and therefore the number of claims overall—to fall. We will review the impact post-implementation to ensure that the remissions system acts to ensure that only those who can afford to pay fees do so. To ensure that the fee-charging process is simple to understand and administer, we will examine impacts on equality groups in the light of experience and will verify the amount of fee income raised.
The noble Lord asked how we will review fees. Fees will be kept under review as part of an ongoing review of fees across the justice system. The review will seek to ensure that the remission system acts to ensure that only those who can afford to pay do so. The noble Lord, Lord Beecham, asked if redundancy payments will be taken into account in a remission of application. No, this is considered a capital payment under the current scheme. We are considering whether to change this as part of our recent consultation on remissions.
The noble Baroness, Lady Turner, raised a number of matters. Let me make it clear: we do not want a frightened or submissive workforce, as she implied. We want a highly skilled, adaptable, highly productive workforce that can compete in the world. It is important that the noble Baroness understands that introducing fees into these tribunals is not an attempt to deter individuals from bringing claims, and we do not believe that the provisions in the order will do so. Given the importance of the issues at stake, we believe, as I said, that it is unlikely that fees alone—
Lord Lea of Crondall
The Minister says that it is not likely to deter people. However, the memorandum states that that is the intention.
Lord McNally
We will not play with words. Of course, numbers will fall, so in that sense it will deter people. It will enable people to make better-informed decisions about what they are doing.
I pay tribute again to the vast experience the noble Baroness, Lady Donaghy, has of ACAS. I believe that making ACAS a first stop is a step forward and one to be much welcomed. Like all Members of the House I always regret when we are not able to receive the wisdom of the noble Lord, Lord Sugar, in person, but I note that he is in favour of more conciliation. The noble Baroness asked if the introduction of fees undermines the aims of early conciliation. We do not believe so. Fees can encourage parties to resolve their disputes as early as possible. In addition, respondents will be aware of the financial implications of losing a claim, including the ability of tribunals to order them to reimburse a claimant’s fee. Therefore, if a respondent waits to see if the claimant pays the fee, it could increase the respondent’s own cost. The noble Baroness also asked if this is designed to prevent weak and vexatious claims. We do not intend fees to prevent claimants bringing forward claims they believe to be genuine. We intend only that users who can afford to do so should contribute to the cost. If fees were to discourage those bringing speculative claims from doing so, this would be a positive consequence.
The noble Baroness, Lady Drake, acknowledged that this is a simplified scheme, and that is to be welcomed. It neither tilts the balance against workers nor closes the tribunal door. The noble Baroness also made the point that it was particularly disadvantageous to vulnerable people. Our initial analysis suggests that BME groups, women, younger people and disabled people are more likely to fall into the lower income bracket, so these groups are more likely to qualify for partial or full fee remission. The Government believe that it is right and fair that users of the Employment Appeal Tribunal, as with the employment tribunals, make a contribution towards the cost of their case when they can afford to do so. There are clear public policy reasons not to place the full burden on the taxpayer to subsidise fully a user who has already had the benefit of a previous judicial decision.
The noble Baroness, Lady Drake, also asked how fees will incentivise business to settle if only the claimant pays fees. Businesses will be conscious of the financial implications of losing a case, as well as the wider power of the employment tribunal judiciary to impose financial penalties on businesses that act unreasonably. Businesses will also be aware of the power of the tribunal to order them to reimburse the fees paid by the successful claimant.
The noble Lord, Lord Monks, intervened to tell us that, quite rightly, unions will support their members. I think that he was unfair in dismissing the impact of the remissions scheme. He asked whether we are trying to introduce Beecroft by the back door. No, we are not.
Is the court remissions scheme suitable to be used in employment tribunals? Yes, the remissions scheme is based on an individual’s ability to pay and the principles are the same as those that arise in the civil courts.
I fully acknowledge the point made by the noble Baroness, Lady Whitaker, that discrimination occurs in the workplace. That is why we need employment tribunals. There is a danger in overstating the impact of the decisions that we are taking tonight. I take on board the comments that have been made; however, as the noble Lord, Lord Young, said, this will enhance the role of ACAS. The truth is that people who wish to resolve an employment dispute have access to an independent tribunal, which is part of a justice system that is highly respected throughout the world. However, proceedings before the tribunals are costly and the Government believe that it is unfair that taxpayers have to shoulder all of that cost. To share the burden, we are proposing to charge fees to cover about a third of the cost of the tribunal. That, it seems to us, is both reasonable and right.
Those who can afford to will pay a fee dependent on the claim type they are bringing. Because of the remissions scheme we will put in place, no one should be denied access to the tribunal because they cannot afford it. The fees and the safeguards that we have built in represent a fairer way to share the costs of tribunals while fully preserving the principle of access to justice. I commend these orders to the House.
Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013
(10 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
That the draft order laid before the House on 24 April be approved.
Relevant document: 1st Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord McNally)
I beg to move.
Amendment to the Motion
Lord Beecham
At end to insert “but that this House regrets that the introduction of the draft order will limit access to justice and deter meritorious claims from people who have been wronged in the workplace; and will also create an inadequate remission system for low-paid and vulnerable claimants.”
Marriage (Same Sex Couples) Bill
(10 years, 9 months ago)
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22:45 - Division on Amendment 46 - Ayes: 32 / Noes: 163 - Amendment 46 disagreed.
23:48 - Division on Amendment 55 - Ayes: 15 / Noes: 84 - Amendment 55 disagreed.
Baroness Meacher
“Regulations
(1) The Secretary of State may by regulations make provision for the Registrar General to approve and permit organisations that are registered charities principally concerned with advancing or practising a non-religious belief to solemnise marriages according to their usages on the authority of a superintendent registrar’s certificate, and for related purposes.
(2) The regulations shall specify that such marriages may not take place in register offices, but may in particular—
(a) define minimum requirements any such organisation must meet before it may be considered for such approval;(b) define the procedures for the appointment of registering officers by such organisations, for the issue and custody of marriage register books, for the solemnisation and registering of marriages, and for related matters, and in these matters the regulations shall follow where convenient the several precedents to be found in the Marriage Act 1949;(c) create criminal offences of a kind similar to, and with the same maximum penalties as, offences under Part IV of the Marriage Act 1949;(d) include incidental or consequential provisions (which may include provisions amending an enactment);(e) include transitional provision.(3) The regulations under subsection (2)(a) must include provisions concerning whether an organisation—
(a) is a registered charity principally concerned with advancing or practising a non-religious belief;(b) has been in continuous existence for at least 10 years;(c) has been performing celebrations of marriage and other ceremonies for its members for at least five years, such ceremonies being rooted in its belief system;(d) has in place written procedures for the selection, training and accreditation of persons to conduct solemnisations of marriages; and(e) appears to the Registrar General to be of good repute.(4) The regulations shall extend to England and Wales.
(5) The regulations—
(a) shall be made by statutory instrument, and(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.(6) The Secretary of State must lay these regulations before Parliament within six months of this Act coming into force.”
Baroness Meacher
My Lords, the purpose of this amendment is to provide for humanist and other belief-based marriages to have legal recognition in England and Wales, which they have had in Scotland since 2005. I apologise to the Minister and your Lordships for the fact that I have been in five different countries over the past few weeks and have been unable to attend any of the previous sessions on the Bill. I pay tribute to the noble Lord, Lord Harrison, and the noble Baroness, Lady Massey, who tabled a similar amendment in Committee. I also convey the apologies of the noble Lord, Lord Garel-Jones, who is in hospital, I am sad to say. We were very keen to have his name on the amendment in view of the powerful speech he made in Committee.
It is gratifying that the humanist amendments have been supported on all sides of both Houses by people of religion and of no religion. Indeed, I hope the Minister will not mind if I quote her. She said that,
“of course everybody would support humanist marriages”.—[Official Report, 19/6/2013; col. 311.]
That, for me, is a tremendously valuable endorsement.
I applaud the Minister for tabling the government amendment, which takes a historic step towards eliminating the inequity in our system regarding humanist and other non-religious belief organisations. I offer the noble Baroness, Lady Thornton, my personal thanks for having worked very hard to ensure that belief-based marriages are given legal status. It is appropriate and helpful that the noble Baronesses, Lady Thornton and Lady Brinton, and the noble Lord, Lord Alli, have included their names on the government amendment, illustrating the strong support from all sides of the House for the key principle of our amendment, while acknowledging, probably very fairly, the Government’s commitment to a consultation on the issue.
Noble Lords may ask why I am moving this amendment, bearing in mind the fact that we have the government amendment. The answer is that the government amendment does not actually guarantee that humanist marriages will have legal status in England and Wales. The noble Lord, Lord Garel-Jones, said that,
“we in the humanist movement ‘will not cease from mental fight’ until we have achieved full recognition in the law for humanist marriage”.—[Official Report, 19/6/2013; col. 298.]
I feel a great duty to carry the torch for our dear colleague while he lies in hospital. It is very much in that context that I need to put some points on the record and seek some assurances from the Minister. In so doing, I seek to avoid a rerun of the Committee stage, albeit I was not here to listen to it, although noble Lords will be glad to hear that I have read it.
Religious marriages reflect the deepest beliefs and values of religious couples, but humanist beliefs and values are of equal importance to humanist couples. In an increasingly secular society, it is important that we do all we can to promote and recognise good values. Registry office marriages now account for two-thirds of marriages in this country. Those marriages may not involve the couple committing themselves in a ceremony to the all-important beliefs and associated values that they will need in times of trouble. If we want marriages to survive, we must nurture beliefs and values which will help couples to sort out their problems. There is also the equity issue. In the case of humanists, despite the cost and inconvenience, some have two marriage ceremonies to achieve the things they want: a meaningful wedding and one that has legal status. I hope that the Government accept that the inequity cannot continue beyond a short period to allow for a review and consultation.
Humanist marriage is well tried and tested. Scotland gave legal status to humanist marriages eight years ago and has some 3,000 such marriages each year. Humanist marriages account for 58% of the increase in marriages in Scotland in the last three years. All of them, of course, are belief and value-based marriages, and I am sure that noble Lords value that fact. Every year in England, the number of humanist marriages exceeds the number of Quaker or Unitarian marriages. Yet humanist marriages have no legal recognition, while these smaller minorities do have it. Legally recognised humanist marriages have strong support from the public, according to a YouGov poll—this is another important issue for the Government—with 53% in favour and only 12% opposed. Few policies, I suggest, have such a ringing public endorsement.
No one has any reason to fear the legal recognition of humanist and other belief-based marriages, again another important point. In particular, I do not believe that churches have anything to fear. Religious ceremonies already have the intrinsic characteristic of what, for me, is a good ceremony: a focus on important beliefs and values. I understand that the Church of England is relaxed about this amendment and I welcome that fact. I hope this also applies to the other great religions.
The professionalism of celebrants of humanist marriages and funerals is to be congratulated. Anyone who has attended a humanist marriage or funeral will attest that they are of the highest quality of ceremony that one could have. I have attended only two humanist funerals. They were professionally conducted, moving and memorable. Those who have been to other ceremonies have said the same to me.
Registrars suggest that this amendment represents a fundamental legislative change, but it is absolutely not. It builds organically on the existing law of the Marriage Act 1949. It is based upon the provisions that allow the Society of Friends to solemnise marriages, but adds some tighter controls which I would think the Government—and certainly I—welcome.
Let me refer to the Government’s objections to the earlier amendment. All these concerns have been fully addressed in this amendment. I believe that the Government accept that fact. The draft has been vetted and cleared by a number of marriage law experts, and we know from the opinion of Matrix Chambers that the amendment is compatible with the European convention. So there is no reason to reject the content of this amendment. We hope that regulations will reflect the essential points so carefully drafted for our Amendment 7. However, we understand the Government’s wish to undertake a consultation before introducing regulations to give legal status to humanist and other belief-based marriages.
I now turn to the Government’s amendment and hope the Minister can give us just four assurances. First, will she repeat in this House her officials’ assurances that they expect to complete the review, consultation and report well ahead of the end of 2014, which of course is the date given in the government amendment? Most importantly, can the Minister assure the House that regulations will be laid before the next general election? With eight years of experience of such marriages in Scotland and many decades of experience of analogous Quaker and Jewish marriages, I trust that this is not too much to ask. The important point here is that the amendment should not be kicked into touch. Can the Minister assure the House that the considerable and unique experience and expertise of the British Humanist Association will be fully taken on board in the review and consultation, and that the criteria set out in the amendment will be considered as a basic guide for the future regulations when the review is being undertaken? No one has criticised those principles and points in our amendment, and they would provide a good basis for future regulations. Finally, can the Minister confirm that it is not her intention that commercial organisations will be able to profit from the regulations on belief-based marriages?
In conclusion, I express my sincere thanks to the Minister for her support for humanist marriages and for ensuring that the Government take this matter forward. I beg to move.
Baroness Stowell of Beeston
With the leave of the House, perhaps noble Lords will allow me to speak to my amendment now for the convenience of this debate and respond to any questions raised at the end.
The noble Lords, Lord Lester, Lord Pannick, and the noble Baroness, Lady Thornton, have also put their names to Government’s amendment. I welcome back the noble Baroness, Lady Meacher. I am sorry that she was unable to be here for the debates in Committee. I echo her good wishes for a speedy recovery to my noble friend Lord Garel-Jones who we are sad to be missing this evening.
When I responded to the debate on this issue in Committee, I undertook to have further discussions with colleagues about what the Government could do about the proposals put forward by the noble Lord, Lord Harrison. I recognised the strength of feeling in that debate and am pleased to bring forward on behalf of the Government amendments that provide for a statutory review, including a full public consultation, on whether belief organisations should solemnise marriage and, if so, what such a provision would look like. Crucially, the new clause provides the means to make any future changes by providing an order-making power that may amend any England and Wales legislation, both primary and secondary. In taking this approach, the Government’s amendment reflects the solution proposed by my noble friend Lord Lester in Committee, supported by the noble Lord, Lord Alli, among others. Since then, I have had the opportunity to speak to some Members of your Lordships’ House with an interest in this matter. My officials have also met the British Humanist Association and the noble Baroness, Lady Meacher. I am grateful to all noble Lords who have given up some of their time to engage in discussion with the Government, and to the British Humanist Association for its constructive approach to finding a way forward on this matter.
Perhaps I may say a little more about the government amendments and why they offer the best way forward in resolving this important issue. The arrangements for the review, which will be a statutory requirement, must provide for a full public consultation, and the Secretary of State must arrange for a report on the outcome of the review to be published by 1 January 2015. The new clause gives the Secretary of State power to make provision by order permitting marriages according to the usages of belief organisations. Our amendment defines a belief organisation as an organisation whose principal or sole purpose is the advancement of a system of non-religious beliefs which relate to morality and ethics. I note what the noble Baroness, Lady Meacher, said about the importance of belief organisations and their purpose.
Such an order may amend any England and Wales legislation, both primary and secondary, and may make provision for the charging of fees. The point about fees is a technical one: it merely enables the Registrar General to charge a fee, as she does currently, to cover her costs in administering the service.
An order must provide that no religious service may be used at any marriage solemnised under the provisions of the order. This is because it has been a principle since their introduction that civil marriage ceremonies should be clearly distinct from religious marriage ceremonies. We do not want this review to open up the system by which religious organisations carry out marriages which has been in place for years, and this Bill has been drafted on those foundations. The intention is to maintain the distinction so that no religious elements should be used in a marriage according to the usages of belief organisations. Any order made under this clause will be subject to the affirmative procedure. So, were the Secretary of State to take advantage of the order-making clause, both Houses of Parliament would have an opportunity to debate it and the order would be subject to the affirmative procedure.
Although the Government maintain that this Bill is not the right place to make broader changes to marriage law, as I have said already, it would be wrong not to recognise the strength of feeling in support of the humanists. A statutory consultation as a means to effect any change is the right way forward in responding to the support for humanists, ensuring that the wider public are able to contribute to the debate, and securing that arrangements for belief-based marriages are made on a sound footing and that any implications of them are fully understood.
The noble Baroness, Lady Meacher, referred to what is already in place in Ireland and Scotland. There the law has been changed to allow for humanist and other belief marriages, but they operate a different system to what we have in England and Wales. None the less, in both those countries the changes were subject to extensive dialogue over a period of time with interested parties to develop a solution that fits with their marriage law. It must be right that, if we are to change the law in England and Wales, we should do so only after proper consideration, as it has already been given in Scotland and Ireland, and therefore after a proper public consultation.
In addition to a public consultation, we also need to give consideration to the impact of the changes on the voluntary, private and local government sectors and on religious organisations, although, as the noble Baroness, Lady Meacher, said, we have not received any suggestion from the churches that they object to the amendment we are bringing forward in order to achieve proper consideration. Likewise, consideration must be given to what safeguards may be required and how these should be established and, in particular, how we ensure that the significant legal commitment made through marriage is properly regulated and recorded. Such fundamental public policy changes would normally be subject to these considerations and a review and consultation will allow us to do this.
Furthermore, we need to consider whether there are other belief organisations in addition to humanists which may wish to solemnise marriage, and therefore draw up criteria accordingly. I note what the noble Baroness said about the criteria in the amendment in her name. While we will, of course, have due regard to the proposals put forward by the BHA, we need to make sure that the criteria are set in a way that would allow belief organisations other than the BHA to conduct marriages should they wish to do so.
Let me now respond to some of the specific questions put to me by the noble Baroness. She asked me about commercial organisations. I can confirm that it is not our intention to allow commercial organisations to solemnise marriage. Marriage is an important institution and marriage for profit risks undermining key safeguards—for example, it could increase the instances of forced and sham marriages—if the emphasis is simply on increasing the numbers of couples going down the aisle, as it were, as opposed to undertaking proper checks on the couples. I hope I am able to reassure her on that point. She asked me about taking account of the expertise and experience of the British Humanist Association. I can certainly give her an assurance that we would want to give due weight to the expertise of humanist celebrants during the design of the review and consultation. We will also look carefully at the criteria set out in the amendment tabled by the noble Baroness as part of our work on this.
The noble Baroness sought further assurance about future timings. As I have said already, the clause states that the outcome of the review must be published by 1 January 2015. I stress that this is a final date for publication. I am confident that we will be able to provide a response before that time. Over and above that, it would be premature at this time to give a commitment to implementing the regulations. We must consult openly. Ministers will consider the results of the consultation and will, of course, have regard to the debates in both Houses during the passage of the Bill. It is clear that Ministers will have the power to make these changes. That is power that they do not have now, so the power will be there to make the change.
I am very grateful for the constructive approach that has been taken by all noble Lords with an interest in this matter. I believe that the Government’s proposed approach offers the best way to address this issue. When it comes to the right point on the Marshalled List, I hope to move the amendments then, and I shall commend them to the House. As I say, I will be happy to respond to any further points that are made in debate.
Lord Alli
My Lords, I have added my name to Amendment 7. I have made my strong support for the legalisation of humanist marriages clear and said in Committee that the ball is well and truly in our court. In our discussions in Committee, the noble Lord, Lord Lester of Herne Hill, like the lone ranger, and not for the first time in this Bill, rode over the hill to our rescue and gave us this formulation. I am more than delighted that the Government have tabled the amendment, bearing the names of the noble Lord, Lord Lester of Herne Hill, and my noble friend Lady Thornton. I pay tribute to the noble Baroness, Lady Stowell, for all her efforts in securing the change in policy. I know that she spent many hours negotiating with many different interests, and it is to her credit that we have this amendment.
I also pay tribute to my noble friend on the Front Bench, Lady Thornton. I know that it is a personal mission for her and I believe that many of us in Committee were moved by her interventions on this subject. I hope that my noble friend’s sister is as proud of her today as we are on these Benches. I urge all those who support humanist marriage to support the amendment.
Baroness Brinton
My Lords, I, too, added my name to Amendment 7, and attempted to put my name to some of the government amendments but was pipped to the post by others. I, too, offer my thanks to Julian Huppert MP who started the process in another place, to the noble Baroness, Lady Thornton, and to my noble friend Lord Lester for the work they have done in conjunction with the Minister. We are extremely grateful for the progress that has been made in the short time since Committee. The only point I would reiterate from the debate in Committee is that this Bill is very much about equality. So far the equality has been based on same-sex and heterosexual marriage. This issue is vital for people who do not follow a religion or faith to be able to celebrate their marriages in the way they wish. It is long overdue and I am delighted that the government amendments pave the way. I look forward to the first humanist-celebrant wedding that I will be able to attend.
Lord Lester of Herne Hill
My Lords, I just wish to add that the process here has been admirable. Had we simply stuck with forcing through an amendment to do the trick, it would not have held in the other place. There would have been ping pong and no public consultation. Including sexual orientation discrimination in the 2006 Act and caste discrimination in the 2010 Act by regulation and consultation seemed to be the best way forward. I am extremely glad that that approach, which is in the amendment of the noble Baroness, Lady Meacher, and now reflected in the government amendment, does the trick.
The Minister has not mentioned Amendment 135, grouped here, which amends the Long Title. Although this sounds like me being a lawyer, I am very glad that it is there because I raised the point in the previous debate that, on the face of it, this was out of order. Once we amend the Long Title, it is in order and it means, in Amendment 135, that the Bill will also be for,
“permitting marriages according to the usages of belief organisations”,
and so on. I have one—not exactly caveat—point, which is that there are belief organisations and belief organisations. A line has to be drawn because there are some belief organisations that have no proper structure and may be in favour of witchcraft, paganism or matters of that kind. It will be necessary using the test of the European human rights convention or the Human Rights Act to make sure that the Government draw the line properly. A consultation is important to be sure of that. However, I congratulate the Government on doing this and the way in which it has been done. I think we will remember it in the future.
Lord Birt
My Lords, I, too, thank the Government for bringing forward the amendment, and all those who worked on all sides to make that possible. The amendment offers the possibility but—as the noble Baroness, Lady Meacher, makes clear—not yet a guarantee that humanists, and perhaps in due course other groups, will be able to conduct lawful marriages. As we have heard, that already happens in a fast-growing number of countries. Humanism is a movement. It is not bound together by belief in a supreme being or a formal body of doctrine, but by ethical conviction, a belief in rationality and the virtues of science, respect for nature and a commitment to optimise the sum total of human happiness here on earth.
The noble Baroness, Lady Meacher, mentioned this. Anyone who has ever attended a humanist ceremony of any kind will attest to its spiritual power, to the sense that it viscerally captures and conveys a strong sense of community feeling and the wonder of human existence. The noble Lord, Lord Norton, who I see in his place, spoke most eloquently—in one of the most powerful of many powerful speeches at Second Reading—explaining why overall he supported the Marriage (Same Sex Couples) Bill, emphasising that it extended freedom, the freedom of gays to marry. This amendment, it is hoped, paves the way for a further extension of freedom for humanists to marry as they would wish. Like everyone else, I congratulate the Government, and I look forward to the first gay humanist wedding.
Lord Harrison
My Lords, as mover of the original amendment in Committee, along with my noble friend Lady Massey, I rise not to detain the House but, first, to thank the noble Baroness, Lady Meacher, for so cogently presenting the case this evening. For all those who spoke in Committee, I think we have universal support. I reserve my particular thanks for the Minister for working so hard behind the scenes to bring to fruition today the amendment that she moved this evening. I thank her on behalf of all humanists.
The Lord Bishop of Chester
My Lords, I add a few words from my own perspective and possibly from the perspective of these Benches, which may not be exactly the same. The Church of England was caught on the hop slightly by this issue in the Commons. A lot of time was given to an amendment on this matter, whereas all our energies had been around the quadruple lock and associated issues.
A couple of years ago, in your Lordships’ House, I made clear my own commitment in principle to humanist marriage. It might have been one of my periodic jousts with the noble Lord, Lord Alli. I cannot remember the precise details of it, but I made it clear. The honourable Member for the Rhondda immediately said that I was completely in favour of his amendment in the House of Commons. This then goaded the Second Church Estates Commissioner to state that the Church of England was actually opposed to humanist marriage. It was all rather on the hop. In Committee, the right reverend Prelate the Bishop of Guildford said here in your Lordships’ House that he was, in principle, open to this development. Speaking for myself—I cannot speak more widely than that—it would make eminent sense for this consultation to take place.
There has been quite a lot of discussion of the Bill as if the objection to same-sex marriage was because of a particular religious understanding of marriage. I understand why that perception has been raised. However, it is important to say that, in Christian terms, marriage is not a possession of the church. It has always been seen as part of the creative order and for the good of creation as a whole. That has always been the position of the churches. I see no reason at all why the consultation should not lead to permission for humanist marriage and indeed for other belief organisations that meet the necessary criteria for doing this.
The Government’s amendment is important because it allows for time for consultation. One of our complaints has been that this process has been rather telescoped in relation to same-sex marriage. We need time to think through some of the implications. I said at Second Reading—I will not repeat my points—that many of the issues before us would be resolved if we went towards a more continental separation of a civil preliminary and then had other organisations celebrate marriage in this dual way. That would iron out a lot of our problems. That may not be part of the consultation, but at least it would give us time to think through some of the issues.
I would rather regret it if humanists were forced to register all sorts of premises, which is one solution that may arise because at the moment we have a premises-based system in England and Wales. In Scotland, there is a celebrant-based process. That needs some careful thought because there may be some hybrid. However, I welcome the consultation. Certainly for my own part, and I believe more generally from these Benches, I very much welcome the Government’s amendment because it gives time for a proper process of consultation.
Lord Cormack
As a lay man who is glad and proud to be a Christian, I should like to associate myself with most if not all of the right reverend Prelate’s remarks. I am not sure about those that touched on establishment because I am a strong believer in the established church and I wish it to retain its position as far as marriage is concerned. However, this is clearly a fair and sensible amendment and I am glad to give it my support.
Lord Anderson of Swansea
I support the concession. I support the review. My only question for the Minister is that there would clearly be potential problems with sham marriages. What is the nature of the protections that she thinks should be built into this welcome amendment to protect against that?
Baroness Thornton
My Lords, I join other noble Lords in congratulating everybody, really. This is one of those occasions. I congratulate the noble Baroness, Lady Meacher, the noble Lord, Lord Garel-Jones, who I hope will be back with us soon, my noble friends Lord Harrison, Lady Massey and Lord Alli, the noble Lord, Lord Lester, and the noble Baroness, Lady Brinton. Of course, I also sincerely congratulate the Minister and the very talented team who worked with her on this. Late on Thursday, when we were trying to get the amendment down, get my name on it and do all the clearances, I was in an LSE governors’ meeting. I texted the Minister to say that I thought we both needed a gin and tonic. I did not get one, but I hope she did.
I also congratulate the British Humanist Association, Andrew Copson its chief executive and his team who consistently jumped through hoops that had been set for them all the way through this process. They have sought all along the line to accommodate all the questions that have been asked. Noble Lords may remember that I said that my children would not be able to be married by a humanist celebrant in this country. I will now have to tell them that if they intend to get married they will probably have to have quite a long engagement. However, this is the House doing its job by doing good.
Baroness Stowell of Beeston
My Lords, I am very grateful to the noble Baroness, Lady Thornton, for reminding the House that I am part of a team. While I am very taken by the kind tributes made by the noble Lord, Lord Harrison, in particular, and the noble Lord, Lord Alli, it is important to stress that we have worked as a team in Government to be able to come forward with this amendment. We are very pleased to do so. I echo all the tributes just made by the noble Baroness, Lady Thornton. If it were possible in Lords-speak, I would say “Right back atcha”, as they might say somewhere else.
If I may, I will respond to some of the serious points that have been made. My noble friend, Lord Lester, is right that we are amending the Long Title of the Bill to ensure that this amendment is properly reflected in what will become an Act. I note his points about that. I also note his point about there being belief organisations and belief organisations, and the need for safeguards. I note the questions of the noble Lord, Lord Anderson, about what people call, in shorthand, sham marriages. I also note what the right reverend Prelate the Bishop of Chester said about various points of detail. All of these contributions have emphasised why this is important, and why we think it is the right approach to have this review and consultation and make sure that all of these matters are properly considered. That is what we will do. As I said earlier to the noble Baroness, Lady Meacher, it is in the Bill that we have to do that before 1 January 2015, so we will certainly make sure that it happens.
Baroness Meacher
My Lords, I must apologise to the House. I should have welcomed the noble Lords, Lord Lester and Lord Pannick, and the noble Baroness, Lady Thornton, for having their names on the Government amendment. I am very grateful to all those who have spoken in this short debate. They have been very coherent and succinct, and quite excellent. I am perhaps particularly grateful to the right reverend Prelate the Bishop of Chester for clarifying the position of the Church of England, and also giving his personal support to the principle behind this amendment. That is very valuable to all of us. I am very grateful to the Minister for her helpful remarks and the assurances that she was able to give us.
I was obviously disappointed that the Minister could not reassure us about the timing of the laying of regulations. I am not at all surprised, but of course it is a disappointment. The Minister will know that all of us, including the noble Lord, Lord Garel-Jones, will be on her tail to ensure that the strength of feeling in this House and the other place is followed through to regulations after the consultation, to ensure that in future humanist marriages will have legal recognition. I say a last thank you to the British Humanist Association, without which I could not have done this. I arrived back from elsewhere and its support for me has been fantastic. I am very willing and happy to withdraw the amendment.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I think it might help your Lordships’ House, and the progress of debate, if I do not say anything at this time on the other amendments, and respond to these in light of the debate that takes place. That will probably mean that I do not repeat myself.
Government Amendments 9 and 10 clarify the meaning of “compelled” in Clause 2, which provides important protections for religious organisations and their representatives from participating in religious solemnisation of marriages of same-sex couples. They have been tabled in response to concerns raised in your Lordships’ House and in the other place that the protection from compulsion set out in Clause 2 may be narrow because the meaning of compulsion is not clear. A number of noble Lords have raised that concern, not least the noble Baroness, Lady O’Loan, my noble friend Lady Berridge and the noble Lord, Lord Hylton.
Baroness Berridge
My Lords, I speak to Amendments 15, 16, 17, 21 and 22, in my name. I thank the Minister for tabling government Amendments 9 and 10. I thank the Government and the Bill team for listening to the concerns raised in Committee. Amendments 9 and 10 clarify the protections given to religious groups under the Bill. The groups, whose concerns had previously not been allayed, were some of those that perform marriages recognised under UK law, where their religious official also performs the function of the registrar. Unlike weddings that noble Lords may have attended at hotels where the registrar comes to do the ceremony, no registrar goes, for instance, to the Catholic Church: the priest is known as the authorised person and so relieves the local registrar from the need to officiate.
There are tens of thousands of authorised people in England and Wales, within many religious organisations, some of whom felt vulnerable to challenge under judicial review, the Equality Act and the Human Rights Act, such that they might have considered handing back their registration as authorised persons if the Bill had not been amended in the manner that the Government outlined this evening. This would of course have been unfortunate and a further financial challenge to local authorities, which would have had to employ more registrars to officiate at such weddings.
I am very grateful to the Government for the amendments, which mean that authorised persons are protected from the risk of challenge and that I will be able to assure those who have contacted me that, as far as is possible in legislation—there can be no cast-iron guarantee—their and their organisations’ decision whether or not to opt in is not amenable to challenge.
I am grateful for this clever amendment, which not only deals with the definition of compulsion but covers issues relating to the public function that is arguably exercised by authorised persons. In the light of my noble friend’s assurances, I will be pleased not to pursue my amendments.
Baroness O’Loan
My Lords, I shall speak to Amendments 22 and 23 and 19 and 18—I shall take them in reverse order in the light of the comments made by the Minister. First, I express my gratitude to the Government for tabling Amendments 9 and 10 on the meaning of the word “compel”. They make it clear that compulsion by any means will not be allowed under the Bill. Therefore, any detrimental or unfavourable treatment of a person—whether an individual or an organisation—because that person has not performed, has decided not to perform or has refused to perform, a Clause 2(1) or (2) activity will be absolutely prohibited. That is in line with the Minister’s statement during Committee on 19 June at col. 281, and I am content that the protection that was promised is now provided by those amendments.
Another of our concerns was that the word “compelled” did not make it clear that less favourable treatment by a public authority of a person who does not perform, decides not to perform or refuses to perform, a Clause 2(1) or (2) activity would be prohibited. A public authority could, for example, have used Section 149 of the Equality Act to treat a person less fairly. The amendments, however, again in line with the Minister’s assurances during Committee on 19 June, make it clear that such treatment would be unlawful.
My amendment uses the words,
“the imposition of any criminal or civil penalty”.
However, I am satisfied that the government amendments make it clear as expressed that any criminal or civil penalty—or indeed, any civil or legal action—against a person in those circumstances will be prohibited. A person is protected, therefore, when deciding not to perform or refusing to perform a Clause 2(1) or (2) activity from challenges under the Human Rights Act or the Equality Act, by way of judicial review or by any other legal challenge. That is made apparent in the government amendments.
Although I recognise that the Government never considered, and still do not consider, that the decision of whether to opt in under Clause 2(1) is a public function, I am content that the wording of the amendment alleviates the risk as I perceived it for the purposes of the Human Rights Act, the Equality Act and judicial review. The bracketed wording,
“including by the enforcement of a contract or a statutory or other legal requirement”,
which provides a non-exhaustive list of examples, is helpful in that regard. Again, the protection is in line with the Minister’s assurance during Committee, and we are content that that assurance is covered by the wording of the Government’s amendments.
I am most grateful to the Government for listening to our concerns and for allaying them so effectively. We are now satisfied that the Government’s lock is comprehensive and will protect persons, whether they be individuals or organisations, in the context of Clause 2(1) and (2).
I move to Amendments 18 and 19. Amendment 18 is designed to protect persons as designated in the Bill from unfavourable treatment following an expression of opinion or belief about same-sex marriage. I am aware that this issue has been debated to some extent under other amendments. Under Section 149 of the Equality Act, a public authority must always have regard to the need to provide all persons with equal opportunities, whether they be black, white, male, female, gay, lesbian, straight or whatever. In particular, public authorities must also be mindful of any disadvantage that is or could be suffered by any person with a protected characteristic, and the need to remove or minimise that disadvantage. Those protected characteristics have been well rehearsed in this House during this debate. They include age, sex, sexual orientation, religious or other belief and pregnancy.
Section 149 gives public authorities a lot of discretion in deciding whether to pursue a course of action. A public authority could decide to use its powers, for example, to try to eliminate or minimise disadvantages suffered by those in the LGBT community. That is a laudable aim but it could do so in a way which unnecessarily disadvantages those with religious or other beliefs about marriage. Section 149 does not force them to do so but it allows them to do so by giving them discretion. That discretion has expanded significantly over the years and the courts have interpreted it as a duty to further equality of opportunity, rather than a duty to avoid discrimination. The positive rather than negative duty has encouraged public authorities to pursue broad equality aims. Public authorities have, for example, denied public contracts to organisations which the public authority regarded as unsuitable to be associated with, for example on grounds of race, and the courts appear to have deemed this entirely lawful.
If a public authority decides to pursue equality of opportunity for the LGBT community, and if this is done in a way which unnecessarily disadvantages those of religious or other beliefs, the courts are unlikely to overturn such an action because of their general reluctance to second-guess public authorities in exercising their discretion. The protection from compulsion under Clause 2 gives protections only from actions arising or relating to the solemnisation of same-sex marriages. It is not at all clear from the Bill whether individuals employed by public authorities will be protected if they express an opinion or belief that marriage should only be between a man and a woman. At this point, I should say that I heard the noble and learned Lord, Lord Wallace of Tankerness, refer to something in relation to disciplinary authority. He was speaking quite quickly but it was something about disciplinary proceedings. Perhaps he could reassure me on that point when he sums up.
At the moment, it is unclear whether a teacher would be able to teach that marriage should only be between a man and woman, if that is their belief, because some pupils, parents and other teachers could find such teaching grossly offensive. It is not clear whether a school would be able positively to promote opposite-sex marriage unless it promoted same-sex marriage equally. It could be argued that such an expression would be contrary to the duty on public authorities to further equality of opportunity for the LGBT community and to foster good relations between people with different protected characteristics.
This is not based on hypothesis alone. A judgment was handed down just two weeks ago in which the public sector equality duty was one of the reasons used to dismiss Dr Hans-Christian Raabe from a position on the Advisory Council on the Misuse of Drugs, which he had been given some 17 days earlier by the Home department. He received a letter from the Parliamentary Under-Secretary of State for Crime Prevention, Mr James Brokenshire, telling him that his authority was being revoked because it had been discovered that some eight years ago, he had co-authored an article, Gay Marriage and Homosexuality: Some Medical Comments. He lost that judicial review; the judgment was in June 2013. That case shows very clearly that public authorities, MPs and Treasury solicitors are already relying upon the public sector equality duty to protect the LGBT community in a way which noble Lords stated during Committee it would be wrong for public authorities to do.
The Minister and others have relied on Article 9 and the fact that religion and belief is also a protected characteristic for the purpose of the public sector equality duty. They do that in order to suggest that this amendment is not necessary but it is in fact unclear whether expression of belief would be protected as a manifestation of religion or belief, following the case of Dr Raabe. It was asserted in that case that Article 9 of the European Convention guarantees only absolute entitlement to hold religious views. It does not guarantee absolute protection for their manifestation.
It was also asserted that there is a difference between acts that are a manifestation of religious belief and acts that are motivated by it. Again, if an expression or a belief is protected as a manifestation of religion or belief—for example, when someone reasonably expresses a view in favour of traditional marriage—it will not necessarily protect individuals because the public authority has to strike a balance somewhere between that characteristic and the other protective characteristic, which is sexual orientation. Effectively, the public authority has to choose between religion and sexual orientation.
It is not clear that the court would strike down a decision arrived at by a public authority in those circumstances that ranked the need to ensure equality of opportunity with regard to sexual orientation more highly than the rights of religion. The case of Ms Ladele is an example of that.
Lord Brennan
My Lords, the purpose of the legislature in this particular legislation is to achieve clarity, in so far as it can, so that its application in public life in this country will not produce dissension or disturbance. Therefore, when we look at the provisions of the Act, we should have in mind a saying of the American Supreme Court: “It is not for the courts to protect the people from the consequences of their political choices. It is for Parliament to legislate with clarity”.
I took part at Second Reading but not in Committee. That was to achieve two objectives. The first was some professional self-discipline; there is nothing less productive than lawyers telling the House what they think the law is or should be. Reserve is the order of the day when interpretation arises. Secondly, Committee was an opportunity for the Government to take the time that they said they would to consider concerns and produce remedies that they thought to be reasonable, in so far as remedies were required.
Government Amendments 9 and 10, I commend. They deal with the word “compel” and the concern about public function, and they deal with those matters comprehensively. I do not invite correction from my professional colleagues, but personally I cannot remember seeing in a statute—certainly not in one of this kind—the words “by any means”. That is an all-embracing, protective phrase and I commend the Government doubly for such a courageous use of language to achieve one of the protections that they said they wanted to achieve: institutional independence.
The phrase “by any means” is followed by some words in brackets. My noble friend Lord Alli has consigned the bracket to statutory ignominy. I prefer a comma; it is just as good. A comma relates to the effect of the legislation on compulsion on ordinary people in their everyday employment, and I invite the Minister to confirm that it is an example, not a definitive, sole exception. Therefore, Amendments 22 and 23, to which I put my name, I no longer consider to be necessary.
This generosity of spirit and this legislative wisdom should not stop here. The Government’s amendment to Schedule 7, dealing with the Public Order Act, remedies the concerns that those who express a public disagreement with same-sex marriage might be prosecuted under the Public Order Act, allowing for the expression of their views to be reasonable and not contrary to the Act. The amendments thus far have not involved the Equality Act, and the concern of many is not just Speakers’ Corner—homosexuality is a sin and so is adultery between opposite-sex people, or whatever it might be. The concern is that, when in the workplace, the expression of a genuine belief, whatever it might be—and let us not be distracted by the homosexual context of this—should not result in detriment to that person in their workplace or their ordinary life.
The Government said that the existing law can address these concerns. Indeed, on the third day of Committee on 24 June, the noble Baroness, Lady Stowell, said that, to avoid misapplication or misinterpretation of the equality law in this area, the Government, with the co-operation of the Equality and Human Rights Commission—I underline “and Human Rights”—will provide guidance to,
“provide adequate protections for religious organisations and individuals”,
and to say,
“why the equality duty cannot be used to penalise those who do not agree with same-sex marriage”.—[Official Report, 24/6/13; col. 603.]
I welcome that.
The Minister said that she would write to the noble Baroness, Lady O’Loan, which she has done, but without detail. There is time yet; Third Reading is next Monday. This topic must have been considered at some length. It is not complicated because the law appears to be straightforward, and so does the Government’s view, so let us have this guidance, at least in outline, in public by Third Reading. That will achieve two things. The outline will prevent further debate on this issue and will reassure all of us that the Equality Act will not be a secondary vehicle for public dissatisfaction and dissent on either side. I encourage the Government to take that action.
I have said nothing about the principle of this Bill. I have been talking about freedoms which we share: the homosexual right to freedom of certain kinds and the religious believer’s right to freedoms of certain kinds. This is a question of balance. I invite the Government to ensure that this Bill becomes law very soon with democratic balance, at least in the area of freedoms.
Lord Lester of Herne Hill
My Lords, like the noble Baronesses, Lady O’Loan and Lady Berridge, I am a member of the Joint Committee on Human Rights. Unlike them, I took the view, and take the view today, that the Bill is perfectly clear, even clearer with Amendments 9 and 10 for anyone who doubted it.
The Government responded to the Joint Committee on Human Rights report today. I do not know whether either noble Baroness has read the response but it has not been referred to so far. I have read it, and I am satisfied that it deals quite sufficiently with the doubts that were raised by the Catholic church through Aidan O’Neill QC and Professor Chris McCrudden, who is a member of my Chambers. I felt that the view expressed by the other side—by Robin Allen QC on behalf of the Equality and Human Rights Commission—was correct, but it became apparent that nothing would satisfy the noble Baronesses, Lady O’Loan and Lady Berridge, that there might not be issues that would still be raised. That is their view, and I respect it. I think the views that have been expressed raise fears that cannot be satisfied by language because, whatever we say in the Bill, I am sure that Members of the House will still raise question after question.
I entirely agree with the Government’s legal advice as expressed in the response to the Joint Committee on Human Rights, and I suggest that that response is placed in the Library so that people other than the Joint Committee on Human Rights can see what is said before Third Reading. No doubt it will also be repeated by the Minister in reply today, but it is helpful to have it as a matter of record.
I have been on that Joint Committee for 10 years and I am the last person standing out of the original members. In those 10 years, I have never known a situation like the one we were confronted with. We were deeply split and the only way in which we could produce a report was either by taking votes, as we used to do, which would have shown the differences, or by papering over the differences, which is what we did. Your Lordships should know that we were deeply split. The views expressed in the Chamber today reflect the ways in which we were split. I see that the noble Lord, Lord Faulks, is in his place. He, too, took an active part in those debates.
The Government have responded, and I congratulate them on the speed with which they have done so. I believe that what they have said is correct and that their citing of the law is also perfectly correct. I am glad that Amendments 9 and 10 have been moved. They are a bit verbose. I would have just said “by any means” without having to put words in brackets, but that is because I believe that at this time of night one should speak briefly and write briefly, if possible.
Baroness Butler-Sloss
My Lords, I have also put my name to the amendments in the name of the noble Baroness, Lady O’Loan. I share her view and the view of others and join in the congratulation of the Government on Amendments 9 and 10, which go a very long way and certainly meet Amendments 22 and 23. However, there is potentially a gap, shown by Amendments 18 and 19. I share the view of the noble Lord, Lord Brennan, and support his proposal that the guidance offered by the Government should be available. The gap that the noble Baroness, Lady O’Loan, has identified in Amendments 18 and 19 may well be met by that guidance, so it would be helpful for the Government to do that. I personally would wait to see that guidance before wishing to take Amendments 18 and 19 any further, although it is clearly not a matter for me but for the mover. However, the Government need to recognise that something needs to be said on paper to be sure that these points are met. To that extent, I differ from the noble Lord, Lord Lester.
Baroness Royall of Blaisdon
My Lords, I will briefly also congratulate the Government. With their Amendments 9 and 10 they have clearly assuaged the majority of people’s fears. My noble friend Lord Brennan said that they comprehensively assuaged fears, which must be a good thing. The proposal from my noble friend about guidance sounds entirely correct, but I know from long experience that sometimes guidance takes rather longer to draft than we might like. However, discussions about the guidance, even if it is not fully drafted, might be a way forward in this particular little logjam. I am very happy to support the amendments.
Lord Wallace of Tankerness
My Lords, I thank noble Lords who have spoken and who have welcomed the Government’s amendments. I am pleased that the amendments have given the reassurances that the noble Baroness, Lady O’Loan, spoke about, as did my noble friend Lady Berridge, and the noble Lord, Lord Brennan. Certainly, that was our intention, because we were conscious of the concerns that have been raised. I noticed that on the basis of that my noble friend Lady Berridge did not speak to Amendments 15 to 17. I also thank my noble friend Lord Lester for welcoming the Government’s response to the legislative report on the Bill from the Joint Committee on Human Rights. I can assure him that it has been placed in the Library, but I believe that the response is also available in the Printed Paper Office. I am glad that he welcomes these amendments and believes that the legal structure is in place to give the reassurances that have been sought. We have said on many occasions and from all parts of your Lordships’ House, not least from this Dispatch Box, that the security and protection of religious freedom that we wish to give to religious institutions is very much an important part of the architecture of the Bill. I hope that these amendments help to give that reassurance and to reinforce that protection.
Amendments 18 and 19, which the noble Baroness, Lady O’Loan, spoke to and the noble and learned Baroness, Lady Butler-Sloss, referred to, were rehearsed in Committee and I readily recognise the noble Baroness’s wish to explore the same ground again today. The intention of the amendments appears to be to ensure that any religious organisation or individual is not penalised by a public authority simply because they have expressed the view that marriage should be only between a man and a woman, or because they have decided not to participate in a religious solemnisation of marriages of same-sex couples.
It is important to remind ourselves that Section 149 of the Equality Act 2010 places a duty on public authorities to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between people who hold and do not hold particular protected characteristics. It applies to the protected characteristic of religion or belief, not just to sexual orientation, and, as we have already made clear, the belief that marriage should be of one man with one woman is a protected belief. Let me also make it clear that the equality duty is a duty to think, not to act or to produce a particular outcome; it does not require any particular outcome. If, for example, a public authority withdrew its facilities from an organisation or treated an employee less favourably, simply because of the expression of a belief about the marriage of same-sex couples, it would be acting unlawfully, both in failing to apply the duty properly and potentially committing an act of unlawful discrimination under the Equality Act.
Members of your Lordships’ House may recall that when we debated this in Committee, I referred to the decision of the Judicial Committee of your Lordship’s House in the case of Wheeler v Leicester City Council in 1985. That was a case in which the council banned a rugby club from using its ground after some of its members attended a tour of South Africa. The council was using a predecessor of a public sector duty to justify its actions. In that case, the House of Lords held that the decision was irrational; it also found that the decision was procedurally unfair and that therefore there was an improper purpose, which resulted in the council’s decision being quashed. I believe that the same reasoning would apply here.
The noble Baroness, Lady O’Loan, asked me about something that I said during my opening, when I moved the amendment. I am happy to repeat it. Clause 2 will clearly prevent criminal or civil action being taken against any religious organisation or representatives merely for refusing to undertake acts protected under this clause. That includes, but is not limited to—this picks up the point made by the noble Lord, Lord Brennan, that the words in brackets in the amendment are not exhaustive—disciplinary or other action taken in the employment context. In all circumstances, a person who has suffered a detriment simply because they have not done one of the acts specified in Clause 2 will be able to rely on the protections in that clause to show that such conduct is unlawful and to obtain a remedy within the context of the particular claim.
Furthermore, if a public authority is prevented, as Amendments 18 and 19 suggest, from having any regard to an individual’s or an organisation’s beliefs about the marriage of same-sex couples, it would be unable to consider how its own decisions could potentially discriminate against or otherwise disadvantage people who do believe that marriage should only be between a man and a woman. In fact, therefore, it could have the absolute opposite effect from that which I am sure that the noble Baroness seeks to achieve. I believe that that would be an unintended and harmful consequence of the amendment as drafted.
It is our view that an amendment of this kind would be unhelpful and unnecessary and that, rather than amending the legislation, the best way is to ensure that the equality duty is properly understood in the way that it is applied. We will seek to improve the guidance on its use; although, in all honesty, I cannot say that that will be made available before Third Reading. We are currently discussing with the Equality and Human Rights Commission how best to take forward our commitment to review the relevant guidance so as to include clear and helpful guidance for employers and public bodies in the context of this Bill when it is enacted. We will take that work forward as quickly as possible as part of the implementation of the Bill if enacted, although no timetable has yet been agreed. I believe that that is a sensible way to move forward.
Lord Brennan
I am grateful to the Minister for giving way. In the absence of the detail of the guidance, can he give the House a general assurance that the government guidance will make it clear to those responsible for applying the Equality Act that to do so in a way that raises the concerns that we are dealing with would be to act irrationally?
Lord Wallace of Tankerness
My Lords, it is very dangerous to try to draft guidance on the hoof, as it were. I think that I have expressed, both today and in Committee stage, in response to the amendments tabled by the noble Baroness—and, indeed, in a very detailed letter that I sent to those who had taken part in a similar debate in Committee and which is in the Library—the points that the Government believe are important and which provide the necessary protections. As my noble friend, Lord Lester, said in Committee, there is always the possibility of someone acting in an idiotic way. What we seek to do with the guidance most fundamentally is to try to eliminate—or to reduce to an absolute minimum—the number of times that anyone would act in an idiotic way.
I have one further point. I think that the noble Baroness, Lady O’Loan, raised the issue of the judgment in the case of Hans-Christian Raabe. I will quote from the High Court decision of Mr Justice Stadlen in order to allay, again, concerns that the duty is being misused.
In paragraph 256 of the judgment, his Lordship said:
“As I have said, there is in my judgment nothing to suggest that if Dr Raabe had expressed his opposition to same sex marriage and set out any religious basis for that opposition, that would have been considered by the Defendant or Mr Brokenshire to be a reason for revoking his appointment. In fact he did not set out any religious basis for the views expressed in the 2005 Paper and there is no reason to suppose that the revocation of his appointment would inhibit or deter any person who opposes same sex marriage on religious grounds from publicly expressing such views for fear of being rejected for a similar appointment in the future. Mr de la Mare pointed out the most obviously offensive features of the Paper did not form part of any religious belief”.
Therefore, it is very clear from his Lordship’s judgment that the concern which has been expressed did not form any part of that decision. In those circumstances, I again commend the government amendments to the House and hope that the noble Baroness, Lady O’Loan, will not pursue her amendments.
Baroness O'Loan
My Lords, I want to say something about the nature of the debate on the Bill in the House today and on previous occasions, as it is has been very acrimonious.
Baroness Stowell of Beeston
I am sorry to interrupt the noble Baroness. We are discussing government Amendment 9. Indeed, we have concluded our debate on it.
Baroness O'Loan
“( ) For the purposes of section 149 of the Equality Act 2010, no regard may be had by any public authority to the expression by a person of the opinion or belief that marriage is the union of one man with one woman.”
Baroness O'Loan
I thank the Minister and the noble Baroness for all that they have said and done and for their work in creating these comprehensive amendments. I will not move these amendments which do not seek to wreck the Bill or cause homophobia but are simply designed to reassure a huge range of churches beyond the established church in England and Wales. I hope that the Government will continue to keep your Lordships’ House informed about their work with the Equality and Human Rights Commission on guidance, as that is clearly vital. On that basis, Amendments 18, 19, 22 and 23 are not moved.
The Deputy Speaker (Lord Skelmersdale)
I am afraid that the rules do not allow me to do that. Is it your Lordships’ pleasure that Amendment 18 be withdrawn?
Baroness Northover
“(1) The Secretary of State may by statutory instrument make regulations about the procedures to be followed and the fees payable—
(a) on registration applications;(b) in relation to section 43B authorisations;(c) on cancellation applications.(2) The Secretary of State may by statutory instrument make—
(a) regulations modifying the application of section 41 or 43 in relation to buildings that are already registered under section 43A;(b) regulations about cases where a person makes applications under sections 41 and 43A, or gives or certifies authorisations under sections 43 and 43B, in respect of the same building at the same time (including provision modifying any requirement imposed by any of those sections or by regulations under subsection (1) of this section).(3) A statutory instrument containing regulations made under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(4) In this section—
“cancellation application” means an application under section 43C for the cancellation of the registration of a building;“registration application” means an application under section 43A for the registration of a building;“section 43B authorisation” means the authorisation of a person under section 43B to be present at the solemnization of marriages in a building registered under section 43A.”
Baroness Northover
My Lords, in moving Amendment 37, I shall speak also to Amendments 41, 54, 56 to 59, 91, 92, 108 to 110, 113 to 118 and 123 which together comprise the government amendments brought forward in response to the Delegated Powers and Regulatory Reform Committee’s fourth report which addressed this Bill’s approach to the exercise of powers. I start by thanking the committee for its scrutiny of the Bill. As always, the report was thorough and made sound recommendations, the vast majority of which the Government have accepted in whole or in part. I will explain the amendments broadly in clause order.
Amendments 37 and 41 will clarify the powers to make regulations in relation to the registration of places of worship for the solemnisation of marriages of same-sex couples and the arrangements for some shared buildings. Amendment 37 responds to the committee’s recommendation that powers of the Secretary of State in new Section 43D of the Marriage Act 1949—to make regulations about the registration of buildings which are registered as places of worship to solemnise same-sex marriages under the provisions of the Bill—should be subject to the affirmative procedure.
(1) The Secretary of State may by statutory instrument make regulations about—
(a) registration applications relating to other shared places of worship;(b) cancellation applications relating to other shared places of worship;(c) the sharing churches’ use of other shared places of worship (in cases where those places are registered under section 43A) for the solemnization of marriages of same sex couples.(2) The provision that may be made under subsection (1)(a) or (b) includes provision about the procedures to be followed on registration applications or cancellation applications.
(3) In this section “other shared place of worship” means a shared building—
(a) which has been certified as required by law as a place of religious worship, but(b) to which sections 44A and 44B do not apply because the building is neither—(i) subject to a sharing agreement, nor(ii) used as mentioned in section 6(4) of the 1969 Act.”
“Protection of teachers
(1) For the avoidance of doubt, nothing under or in consequence of this Act shall—
(a) affect the right of teachers to express their personal views about marriage in an appropriate way, or(b) mean that any teacher will be under any obligation to endorse a particular view of marriage.(2) Subsection (1) does not apply to a school designated as having a religious character by an order made by the Secretary of State under section 69(3) of the School Standards and Framework Act 1998.”
Lord Dear
My Lords, in moving the amendment, which seeks to protect the rights to conscientious exclusion for schoolteachers, I draw attention to the fact that teachers who have a conscientious objection to same-sex marriage are prevented from endorsing same-sex marriage, just as they are not required to give religious education or attend religious worship.
A ComRes poll conducted in January this year found that a quarter, 26%, of teachers said that they would either probably refuse to teach children about the importance of same-sex marriage or do so only reluctantly. More than half, 56%, were concerned that colleagues who expressed support for traditional marriage could harm their career prospects. The Government’s response to concerns expressed in this House about teachers’ concerns in this regard has so far been somewhat less than enthusiastic, despite being encouraged by the Joint Committee on Human Rights to,
“to consider whether specific protections are required for faith schools and for individual teachers who hold a religious belief about same sex marriage”.
The Minister, the noble Baroness, Lady Stowell of Beeston, said in Committee that,
“no teacher is under any obligation to endorse a particular view of marriage or would be in the future as a result of the Bill. Teachers are and will continue to be free to express their personal views”.—[Official Report, 19/6/13; col. 351.]
Amendment 46 simply seeks to place those promises in the Bill.
It is vital that teachers know that their freedom is protected. They are particularly concerned that they may be asked by senior staff or head teachers to promote same-sex marriage against their conscience. As Mr John Bowers QC, a leading counsel in this field of law, has indicated, a refusal to obey a lawful instruction could, in his opinion, be grounds for dismissal of that member of staff.
In Committee, I referred to a current case, the circumstances of which were set out briefly in Hansard on 19 June at column 336, in which a long-serving teacher at a girls’ school in south London is facing disciplinary proceedings for refusing to teach a presentation which stated, in effect, that any disagreement with same-sex marriage is homophobia. The Government have said:
“There is a significant difference between expecting a teacher to explain something and expecting them to endorse it”.—[Official Report, 19/6/13; col. 351.]
I ask Members of your Lordships’ House to put themselves into the position where a classroom of 13 year-olds are being taught about same-sex marriage and ask whether the line can be drawn between endorsement on the one hand and a pure explanation on the other. It is easy to imagine that class of 13 year-olds pressing their teacher to give his or her personal opinion.
That is particularly the case when the issue of same-sex marriage arises in contexts which are outside sex education. For example, should a primary school teacher with a conscientious objection to same-sex marriage be expected a read a book such as King and King, which is well known and endorsed and published by Stonewall, about two princes who get married? The teacher could well consider such a book to be an endorsement of same-sex marriage. She should have the freedom to decline to read the book without suffering detriment, a freedom that has already been denied to one such teacher who stopped reading a book about two male penguins raising a chick because she felt it conflicted with her beliefs. She was subsequently restricted from having her own class.
The amendment does not apply to schools designated as having a religious character in order to ensure respect for the values that underpin those schools. Schools with a religious ethos may well want to endorse the particular view of marriage upheld by the tenets of that relevant religion and should be left free to do so.
A further related issue is how the Bill, once enacted, will interact with sex education. Under the Education Act 1996, pupils are taught that the importance of marriage and family life should be encouraged. That is set down in Section 403. It applies to all state schools, both with and without a religious character. Church schools have a special protection but there are concerns for teachers and pupils across the state system. Clause 11 of the Bill redefines marriage for the purposes of all legislation, as we know, so teaching about the importance of same-sex marriage will be inherent in Section 403. As John Bowers QC stated in a legal opinion on Section 403 that the section,
“provides no exception for conscientious beliefs. Unless this were amended I envisage that there will be a duty on the teacher to promote marriage as newly defined”.
He went on to say:
“If the Marriage Bill becomes law, schools could lawfully discipline a teacher who refused to teach materials endorsing same sex marriage”.
He added:
“The stark position in my view is that a Christian teacher (or indeed any teacher with a conscientious objection) may have to teach about (and positively portray) a notion of marriage (and its importance for family life) which they may find deeply offensive”.
He goes on:
“Section 403(1A) of the Education Act would also in my view provide a legitimate basis for schools or LEAs which wish to promote a particular vision of equality to require all teachers to teach materials which endorse same sex marriage. The position of teachers who manifest a conscientious objection to doing so is not enviable”.
Lord Eden of Winton
My Lords, I thank the noble Lord, Lord Dear, for moving his amendment and I support what he said. I have one point to make, which I regard as important. In the real world, the teacher in a classroom often finds him or herself in a somewhat isolated position. It is not always easy to control a class of up to about 30 children. It can be difficult for the teacher to establish fully the nature of what he or she wants to get across. A side example, which appears more regularly than one would wish, is when a teacher has tried to discipline someone in the class. The net result can be—I have recent practical examples of this—that the father of the child takes the opportunity to address the teacher in an abusive and threatening manner. One does not want to see that extended into this realm.
It is most important that the guidance given to the teaching profession is clear on this matter and, more especially, that the guidance is given to the heads of the schools. There are associations in which head teachers are fully represented, and I should like an assurance from the Minister that the guidance will go to all those associations, making it abundantly clear that any teacher who feels as strongly as was indicated by the noble Lord, Lord Dear, and who wishes to refrain from teaching matters with which they are unhappy will be fully protected. I hope to have that assurance from the Minister in her reply.
Baroness Royall of Blaisdon
My Lords, we have debated this issue several times throughout the passage of the Bill. I believe it is absolutely clear that while teachers will be under a legal duty, as is right and proper, to teach the law of the land—that gay couples will be able to marry—that does not mean that teachers are going to be able to advocate this as the best form of marriage, and nor are they going to be asked to promote same-sex marriage. These are very different things. It is right and proper that teachers in our country should be expected to teach the law of the land—not to promote or advocate but just to teach.
The noble Lord mentioned conscience. I think that he was talking about opt-outs. It would be totally inappropriate for a teacher to opt out of teaching the law of the land. The noble Lord also mentioned a classroom of 13 year-olds and asked whether the line could be drawn between endorsement and explanation. I have utmost confidence in the ability of teachers to do this. They already do so in many circumstances and I see absolutely no reason why they cannot do this with same-sex marriage. I am utterly opposed to the amendment.
The Earl of Listowel
My Lords, my noble friend raises a very interesting question about how teachers will work with this legislation. At Second Reading, the noble Baroness, Lady Stowell, made it very clear that this is a Bill about same-sex marriage. The Government have no intention of dealing with any other issue; this is just about same-sex marriage. However, from our debates this afternoon, I think it is also clear that we agree that for many years marriage has been understood to be the stepping stone to starting a family. For many people, it is the basis for going on to have children. Therefore, it does not seem too far-fetched to think that if a Government bring forward a Bill to introduce same-sex marriage, they may by implication be saying, “We have looked at all the research about the outcomes for same-sex marriage and the outcomes for children growing up with two women or two men as parents, and we are sanguine about the results. We are quite confident now that there are no concerns at all about that fashion of bringing up children”. Clearly, from what the noble Baroness said at Second Reading, that is not the Government’s intention, but I can see that this may be a difficulty—that there may be a popular misunderstanding of the Government’s intention in this Bill. Therefore, we need to make the guidance very clear for teachers. My noble friend cited two concerning cases about teachers coming under pressure because they had a different view from that of their head teachers about what should be taught in this area. A lot of work needs to be done in ensuring that the best guidance possible is offered to teachers.
I reiterate that there are strong feelings on both sides of this issue. Some people feel very strongly that with same-sex parenting there is no difference in terms of outcomes for children, and there are others who are very strongly against it. The science so far does not prove the case either way, but both sides want to twist or bend it to a certain degree to make that conclusion. Therefore, this matter requires a lot of attention. There is a need to think really carefully about the evidence involved and to use it in advising teachers and other childcare professionals about the best framework for the best outcomes for children.
Baroness Barker
My Lords, it is deeply regrettable that the noble Lord, Lord Dear, chose to speak about the promotion of same-sex relationships. That brings an echo of some very bad policy from times past for some of us.
I have great admiration for teachers. One of the great things they do is to manage classrooms of 13 year-olds, who are extremely challenging. Teachers already face issues of this kind in their daily life. They already have guidance to which they refer in order to help them to do their jobs. I simply want to ask the Minister whether there is anything in this legislation that changes the existing position regarding the teaching of the subject of personal and sexual health education to children—a topic on which there have been endless debates, not least in your Lordships’ House, in great detail.
Baroness Massey of Darwen
I commend what the noble Baroness has just said about existing policies. I want to make one quick point. Teachers in schools do not usually teach in isolation. Behind them there is a school ethos and school policies developed by the staff and the governors and very often by the pupils themselves involving parents. That is the context in which teachers are teaching. The existing law will apply and I do not see any problem at all. I agree that the word “promote” in relation to these issues is a very unfortunate one. Teachers do not promote; they educate.
Lord Deben
We are in great danger of thinking about only this subject. Teachers constantly have to face this issue. I remember going to a Protestant school and being taught about transubstantiation. The teacher had a duty to explain that honestly and straightforwardly. He also had a duty to explain what he himself thought about it. I did not agree with what he thought about it. On the other hand, I was extremely well informed by how he explained it. That is what teachers are doing constantly, in all sorts of areas. That is all that is being asked.
It is right that the teacher should explain what the law is. It is right that the teacher should have to explain the arguments that led to the law being as it is. It is also perfectly reasonable—and 13 year-olds would certainly demand it—for the pupils to say, “Well what do you think about it?”. It is perfectly right for the teacher to say what he or she thinks about it, but with the proper politeness and courtesy that teaching implies.
We are making a great deal too much of this because this is the sort of thing that all teachers face all the time. The law is not being changed to make a special arrangement for this, because it is already covered. I really do not think that we should get hung up about this, because it will have to be dealt with immediately we change the law, whatever we do. That is what teachers are there for: to try to make people understand that this is what the law is and that there are arguments. Let us get the class to argue and discuss the issues. The only people who do not want that are the people who want teachers to promote one side or the other. Promotion of things does not have much place in the classroom.
Lord Curry of Kirkharle
My Lords, I support the amendment of the noble Lord, Lord Dear. Deep concerns were expressed at Second Reading on this issue. We all have huge respect for the role of teachers and admiration for what they do, but many are deeply concerned about the impact of the Bill. Indeed, in the Government's response to the Joint Committee on Human Rights, the door was left partially open in that the Government said that they would continue to engage with religious organisations and others to explore whether there was a case for further clarification in this area. I suggest that there is a case for further clarification. Rather than just rejecting this amendment, the Government ought to consider how they can respond to give greater clarity on the subject.
Lord Framlingham
My Lords, the noble Lord, Lord Deben, divided the issue into two—that teachers will have to explain the situation as it is and then, if asked, give their opinion. I am afraid that if we are not careful in this House, we are in grave danger of pretending things that will not happen. Anyone who has stood in front of a class knows that children are very cute. They want to know the truth and you have to be very honest. Teachers are teaching pupils about the ordinary, normal married state and same-sex marriage at the same time in as honest and fair a way as they possibly can. Then the pupils who are listening very carefully say, “But what do you really think Miss?” or “What do you really think about it Sir?” As the noble Lord, Lord Deben, said, teachers then have to give their opinions. If a teacher who does not believe in same-sex marriage and who has explained the situation factually is then forced into a corner and says, “I think same-sex marriage is an awful idea. I am sad that it ever happened and it is dreadful that it has gone through”, what then happens to that teacher?
Baroness Stowell of Beeston
I am grateful to the noble Lord, Lord Dear, for moving Amendment 46. This amendment obviously reflects the concerns he expressed about the potential effect of the Bill on teachers’ ability to express personal views about marriage, their employment rights and how they are expected to approach this topic in class. Noble Lords who have followed the passage of the Bill will know that these issues have been discussed at length in Committee, not only in this House but also in another place.
Before I respond to those three separate issues, I make the point that the way in which some contributions have been made to the debate this evening suggests that we are starting to confuse these three issues. I think it is important to see them as separate points. I start by addressing the point about freedom of expression generally. On this point I can be absolutely clear in response to my noble friend Baroness Barker, who asked about whether anything had changed in this Bill. Teachers are and will continue to be free to express a personal view about marriage or any other matter, provided they do so in a balanced and sensitive way. There is nothing in the Bill which will restrict anyone’s right to express the view that marriage should be between a man and a woman.
Amendment 46, put forward by the noble Lord, Lord Dear, aims to offer additional protections in this regard. This is unnecessary for exactly the same reasons that I spelled out in response to debates earlier this evening. I will not repeat them, but I just signpost for noble Lords Article 9 of the European Convention on Human Rights and the Equality Act 2010. Everything I have said previously applies here. People, including teachers, have the right to believe whatever they wish to believe, and nothing about this is changed.
The noble Lord, Lord Dear, referred to the specific case of a teacher whom he said had been told that it is homophobic to disagree with the belief that same-sex couples should be able to marry. Obviously I do not know the details of that case, but I can be absolutely clear, because of everything that is in the Bill and what we are legislating to bring about, that it is absolutely legitimate to have a belief that marriage should only be between a man and a woman. I can say categorically that, if somebody holds that belief, it is not homophobic.
I move on to how the Bill affects teachers’ employment rights. Like any other employee, teachers are protected from being discriminated against or harassed because of their religion or belief. Discriminating against someone because they hold or express a belief about marriage is unlawful under the Equality Act. I add that the noble Lord’s amendment risks casting doubt on that existing protection by discriminating against a teacher applying for a job in a non-faith school, because his or her belief about marriage would already be unlawful under the Equality Act. The point, which I have made in other debates, is that, if we start being specific on the face of the Bill about such things, we dilute the protections to which teachers, as indeed any other employee, have the right, and we put them at risk.
Subsection (2) of the noble Lord’s amendment would also cast doubt on the ability of teachers in faith schools who are not covered by this provision to express their personal views about marriage in an appropriate way. I am sure that he would agree that such an outcome would be undesirable, and harmful to the ability of teachers in faith schools to present their own views in an appropriate manner and in the broader context of that school’s faith ethos.
The noble Lord, Lord Curry of Kirkharle, referred to the Government’s response to the Joint Committee on Human Rights, and the point it makes about considering an amendment which relates directly to faith schools. I point out to the noble Lord that that is very different to the amendments we are discussing right now. That particular amendment, which the Government refer to in their response to the Joint Committee on Human Rights, is a very specific one, which we will debate on Wednesday. It is not this amendment.
Then we move on to the issue of the requirements and demands on teachers in the classroom and the content of their lessons. First, I must remind the House again that, although I know that this is not just related specifically to sex and relationship education, none the less sex and relationship education is not compulsory for primary schools. It is compulsory only for secondary schools. When the noble Lord referred to particular materials and the effect they may have on younger children, there is no demand or requirement on primary schools to teach sex and relationship education.
No teacher is under any obligation to endorse a particular view of marriage, or would be as a result of the Bill once it is in force. The noble Lord, Lord Dear, quoted me from earlier stages of the Bill. I will repeat myself briefly again because I am afraid there is no other way for me to make this point. I said:
“There is a significant difference between expecting a teacher to explain something and expecting them to endorse it”.
Those are two separate things, and by expecting a teacher to explain something, there is no requirement for them to say that what is the law of the land is something they personally support. They are at liberty to have their own personal views. As I said—and as the noble Baroness, Lady Farrington, made clear in her contribution in Committee and as my noble friend Lord Deben said in his contribution tonight—teachers,
“are required to explain the world around them in a way that is appropriate to the age and level of understanding of their pupils. This includes explaining some things which may be controversial and with which they may not necessarily agree”—
such as divorce and contraception. Teachers,
“are already very experienced in dealing with such issues and do so admirably and professionally”.—[Official Report, 19/6/13; col. 351.]
We would expect them to be able to handle this kind of change in the law as they already have done in the past with changes, for instance, that allowed civil partnerships.
The noble Lord, Lord Dear, referred to some specific material. I make the point to him that the Government do not specify the materials that any school should use to support teaching. The main point I make is that schools are required to maintain a policy on their approach to sex and relationship education and to make that available to parents because it is important that they consult with parents about their approach to education in this context.
The noble Lord, Lord Dear, and my noble friend Lord Eden asked about guidance. The Equality and Human Rights Commission guidance that we have talked about in the context of other debates includes technical guidance for schools in England dealing with the areas of the Equality Act 2010 which deal with the provision of education in schools. That will be reviewed as part of the work that the EHRC has committed to do to review its guidance in the context of this Bill when enacted. We are working with the EHRC to agree the plans and timetable for this work.
I understand the concerns behind the noble Lord’s amendment and the strength of his feeling in this area. I can only reassure him as clearly as I can that the protections are there for teachers in the context of their own employment rights, their own personal beliefs and their ability to express them, and also the requirement for them to teach the law of the land: they are under no obligation to promote or endorse anything that they do not agree with. As we have said at earlier stages in the passage of the Bill, to achieve the kind of tolerance, courtesy and generosity that we all talk about as being so important, it is incumbent upon teachers to be able to explain very clearly that there are many types of families and that same-sex couples will be able to marry in future. We want our children to be able to learn about the whole difference of views that there are in this country so that they can themselves ensure that we have the kind of society that we all feel strongly and passionately about. I hope that on that basis, the noble Lord feels able to withdraw his amendment. If he decides to press it to a Division, I will of course be voting not-Content.
Lord Dear
My Lords, first, I thank the Members of your Lordships' House who have spoken in favour of the amendment. I must say that I am a little confused by the statements made by the Minister.
I beg your Lordships’ indulgence to read very quickly what the amendment sets out. It states that,
“nothing under or in consequence of this Act shall … affect the right of teachers to express their personal views about marriage … or … mean that any teacher will be under any obligation to endorse a particular view of marriage”.
That sets out exactly what the Minister said in Committee. She also said:
“Teachers are and will continue to be free to express their personal views”.—[Official Report, 19/6/13; col. 351.]
That is fine, but 40,000 of them—more than 10% in the ComRes poll, when extrapolated, means 40,000 teachers in this country—have said that they would probably refuse to teach children about same-sex marriage, and 56% have said that they fear that this will lead to teachers being disciplined if they find themselves in that position.
I also beg the indulgence of the House in drawing attention to the fact that I have quoted extensively from John Bowers QC, leading counsel. I repeat:
“If the Marriage Bill becomes law, schools could lawfully discipline a teacher who refused to teach materials endorsing same sex marriage”.
That is from leading counsel eminent in this field. His view has not been challenged by either of the noble Lords, Lord Lester of Herne Hill or Lord Pannick, so I take it—
Lord Pannick
I made a speech in Committee. I have not repeated the points I made in Committee because I did not think that it would help the House.
Baroness Farrington of Ribbleton
My Lords, I have not repeated any of the comments that I made in Committee, but I am concerned whether leading counsel was asked whether teachers would be against endorsing same-sex marriage, because that has not been the tenor of any of the contributions, including those from the Minister. We are not talking about endorsement, we are talking about teaching the facts. I have been in politics a long time, and I have to tell the noble Lord, Lord Dear, that I know how to phrase a question to get the answer that I want.
Lord Dear
With the greatest of respect, I am not too sure what that point is set out to achieve.
The amendment states in paragraph (a) that nothing affects,
“the right of teachers to express their personal views about marriage in an appropriate way”.
That means that, if the amendment were carried, teachers can say what they like. The noble Lord, Lord Framlingham, made very much the same point: teachers, when pressed, can say “I do” or “I do not” endorse it under that protection. Under the clause, if teachers say, “I do not agree with it”, according to the opinion by John Bowers QC and others, they lay themselves open to disciplinary action or disadvantage. He continues:
“The stark position in my view is that a Christian teacher (or indeed any teacher with a conscientious objection) may have to teach about (and positively portray) a notion of marriage (and its importance for family life) which they may find deeply offensive”.
I am not going to weary the House by speaking any longer. However, if one believes the ComRes poll, 10% of teachers, which if extrapolated is 40,000 teachers in this country, are deeply concerned about this and have said that they will either refuse to teach it or find to do so abhorrent—that is my word, not theirs. It seems that there is so much doubt in that 10% of the teaching staff that we need to cover this. All that we are asking is simply to take the words that the Minister expressed on 19 June:
“Teachers are and will continue to be free to express their personal views”.—[Official Report, 19/6/13; col. 351.]
At the moment, it seems to John Bowers QC and others that if they express their own personal views on this, they are open to discipline and action. I therefore beg leave to seek the opinion of the House.
Lord Anderson of Swansea
“Employment protection
(1) After section 47F of the Employment Rights Act 1996 insert—
“47G Beliefs about the definition of marriage
(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer on the ground that the employee believes or expresses a belief that marriage should only take place between a man and a woman, provided that belief is expressed in a reasonable manner.
(2) This section is without prejudice to any rights which an employer may have under Schedule 9 to the Equality Act 2010.”
(2) In section 48 of the Employment Rights Act 1996, at the end of subsection (1) insert “or 47G”.””
Lord Anderson of Swansea
My Lords, I think I now have the message that the night is late and that I should be as succinct as I can be in moving Amendment 49. It, again, relates to employer-employee relationships and the adequate protections which, in my judgment, should be given to employees who are, of course, in a more vulnerable position as a result. Essentially, Amendment 49 seeks to protect the free speech of those who believe in, what I call in shorthand, traditional marriage. It provides protection, particularly in the workplace, for those who hold that view.
The amendment would insert proposed new Section 47G into the Employment Rights Act 1996 to prevent employers subjecting their employees to detriment for holding or expressing their belief. It is qualified only in that it protects the expression of belief in traditional marriage, and states that that belief must be expressed in a reasonable manner. Therefore, it is no protection to zealots who choose to travel well beyond the bounds of respect for the dignity of same-sex couples. The amendment is further qualified in that it does not affect employers such as gay charities and religious charities, which are allowed, under Schedule 9 to the Equality Act, to select job applicants on the grounds of sexual orientation and belief where there is a genuine occupational requirement for the job.
I should like to think that noble Lords will feel that all this is eminently reasonable. I look forward with interest to the Minister’s response and I hope that she will accept that this is a serious matter that deserves a serious reply. We are dealing with a view of marriage that was the orthodox view, and one that was accepted by the mainstream and, indeed, by all parties until some time after the 2010 election. Suddenly, there was pressure for change which gathered pace and the tide has swept on. There is a danger that supporters of traditional marriage will be left somewhat vulnerable on a sandbank unless there are adequate protections. These people are not bigots, as the Deputy Prime Minister called them, but ordinary people, many of whom are perhaps either in a majority or close to being in one. The question that we now have to ask ourselves is whether we should maintain space in the public square for those people to hold and express their views.
If an employer accepts the analysis that to be critical of traditional marriage is equivalent to being critical of black people and saying that they are not fully human, that may justify detrimental action. I hope that we can be assured that employers who take that view will not prevail.
Baroness Thornton
My Lords, I know that my noble friend is very concerned because cultural change is always difficult and sometimes painful, and I understand that. We have discussed these issues in some detail in Committee. I say to my noble friend that although the safeguards to protect people’s freedom of speech exist, we also have the safeguards under the Equality Act, which is a carefully considered piece of legislation. They set the boundaries and characteristics that allow religion and belief as a protected characteristic, so we have the safeguards that ensure that this amendment is not necessary. As several noble Lords have already said during this debate and in Committee, one cannot legislate against idiots taking silly cases. Although in some of the cases that my noble friends have mentioned people won those vexatious, silly cases, that does not mean that you change the fundamental laws and freedoms that we already have. We will be opposing my noble friend’s amendment.
Baroness Stowell of Beeston
My Lords, I will begin by saying a couple of things to the noble Lord, Lord Anderson. He is absolutely right that we feel very strongly about the need to protect the freedom of speech, which is what we are doing through this legislation. He also talked about this being a serious amendment, and that he wishes the Government to take it seriously. I can assure him that not only do we take this amendment seriously but that we have taken seriously all amendments that have been tabled, both in Committee and on Report, and will continue to do so.
The noble Lord mentioned various examples to illustrate his argument that employees need additional protection. I responded to all of them at various stages of the Bill, so I will not do so again now. However, he said that people feel concerned that once the Bill becomes an Act—and we hope that it will become an Act—they will not be able to maintain what he described as a mainstream view. I understand that concern; however, not only will it be possible for people to maintain and express their belief, we recognise that that belief is a mainstream opinion. We are not trying to say that it is a sidelined opinion—it is an important belief that many people hold, and we would not want to say anything to undermine people who hold that belief, as we respect them.
On the noble Lord’s amendment and its proposal to amend the Employment Act 1996, we are not convinced that it is necessary, or desirable, to provide additional protection for employees in this way who express a belief that marriage should be only between a man and a woman. Discriminating against an employee because of this belief would already be unlawful under the Equality Act, as the noble Baroness, Lady Thornton, said. That existing protection strikes the right balance in providing protection for the employee, while also protecting other employees and customers from discrimination and harassment. It is important to understand that the Equality Act is there to strike a balance. Employers must have the right to ask their staff to do what is necessary to run their business, provided that it is reasonable and lawful. Therefore, if an employer does not think it right that an employee should express personal views on this or any other subject to customers, for example in a restaurant or hotel, he should be able to ensure that his employees perform their jobs in the appropriate way. To be clear, that does not mean that an employee has no right to hold the opinion or belief that they do.
Furthermore, if we are to pick out this particular belief for protection in the Employment Rights Act, what is the justification for stopping there? Other beliefs are equally worthy of protection, including the belief that marriage can be enjoyed equally by same-sex couples. The principle applies to an enormous range of beliefs which are entirely legitimate, although the expression of them might impede the performance of the job in question.
Employees are already protected under discrimination law. The Equality Act already provides comprehensive protection against unlawful discrimination—both direct and indirect—harassment and victimisation. It would be a matter of fact whether conduct of an employer constitutes a detriment and whether it is imposed because of the employee’s belief that marriage should be of one man with one woman. If there is direct discrimination, it would not be capable of justification and would be unlawful.
We believe that these amendments are unnecessary and potentially damaging to the balanced way in which the Equality Act protects people from discrimination and harassment. There is no need for further protection to be added to the Employment Rights Act. I hope, therefore, that the noble Lord feels able to withdraw his amendment.
Lord Anderson of Swansea
I hear the Minister and my noble friend Lady Thornton. I remind them that the law is not being introduced into a vacuum, but into an atmosphere where there is already active hostility to those who hold a traditional view of marriage. There is a very active lobby that would seek to take to court, or bring pressure upon, employers in that respect: that is a fact of life.
My noble friend says that we cannot legislate against idiots—I think that that was her phrase—and, of course, we cannot do that. However, the problem is that if points are raised by individuals against employees or if employers act in a way of which we do not approve, that still raises fears and is still expensive for those who are the object of that.
My noble friend also said that some of those cases have been won. For example, Mr Adrian Smith won a contract action against his employers, thanks to some good legal advice. However, that was a Pyrrhic victory, given that he lost his job. As a result he had minimal compensation; so it is not quite as simple as the Minister has said. I hear her, though I am not wholly convinced by her assurances. In the circumstances, I think that it is appropriate to withdraw the proposed amendment.
Lord Anderson of Swansea
“Reasonable accommodation
(1) An employer has a duty to take such steps as are reasonably practical to accommodate an employee who has a conscientious belief that marriage is the union of one man to one woman for life to the exclusion of all others.
(2) The duty in subsection (1) applies where an employee would otherwise be required to act in a way which is contrary to their conscientious belief about marriage.
(3) For the purposes of subsection (1), an employee is as defined in section 230 of the Employment Rights Act 1996 but does not include a registrar, a superintendent registrar, the Registrar General or any person holding or exercising judicial office.
(4) This section is without prejudice to any rights which an employer has under Schedule 9 to the Equality Act 2010.”
Lord Anderson of Swansea
My Lords, this amendment is broadly in the same category as the previous ones and uses the phrase “reasonable accommodation”, which is well known in law. The purpose of this amendment is to protect employees from being compelled to act against their belief in traditional marriage, based on their conscientious objection.
For many centuries there has been a clear consensus throughout the United Kingdom, and indeed Europe and the Western world, that marriage is the union of one man and one woman. Until very recently—that is, until the galloping pace of the last year or two—that consensus went unchallenged. I assume that many doctoral students might find that an interesting example of pressure group activity.
Some have pointed to polls in an attempt to argue that there is now a consensus in support of same-sex marriage. The polls go in both directions, but at least we can conclude that there is a very substantial body of opinion—a very high proportion of the population—that remains in favour of traditional marriage. We therefore face the prospect of many of those people being unable in good conscience to embrace the new definition of marriage. How are we to respond to them? Freedom of speech is vital to everyone who subscribes to a traditional view, or where employment involves people being connected or intimately involved with marriage ceremonies.
I give the current Government credit for that. They have gone some way in an attempt to protect faith groups that are persuaded that marriage can only be between a man and a woman. In committee, the Minister emphasised that specific protections are in place to,
“ensure that religious organisations and their representatives who do not want to participate in same-sex marriage ceremonies cannot be compelled to do so”.—[Official Report, 17/6/13; col. 73.]
That was further elaborated today. The Minister added that,
“there are circumstances in which individuals need strong and effective protection in order for religious freedom to be safeguarded”.—[Official Report, 17/6/13; col. 74.]
Amen to that. However, with the exception of faith representatives who do not wish to solemnise same-sex marriages, the Bill currently contains no protection for other individuals; that is, individuals outside the ambit of the faith organisations. Therefore, for example, while a priest, minister, rabbi or imam is free to say that he does not believe in same-sex marriage and wants nothing to do with the ceremony, the Bill provides no protection at all for the chauffeur, seamstress, printer, photographer, caterer or marriage counsellor who may be no less committed to the principle of traditional marriage. Obviously, the normal legal principles would have to prevail—that is, that the relationship should not be too remote. This amendment therefore is based on the premise that not only church and faith leaders require strong and effective protection. In addition, a whole host of ordinary people will face crises of conscience. It is the job of this House and Parliament to protect minorities—sometimes difficult minorities, in my judgment.
Lord Lester of Herne Hill
My Lords, in my judgment this amendment suffers from the following problems among others. First, it imposes completely unnecessary burdens on employers; secondly, the burdens it imposes are unworkable; and, thirdly, it is discriminatory.
Lord Deben
My Lords, we have complained about many people suing, but this is an absolute opening for anybody to sue. I find it incredibly peculiar to say that an employer should organise his business so that somebody who objects to same-sex marriages could say that it was unreasonable to drive two people from one place to another. There is a limit to what can be reasonably considered a conscientious objection.
I voted for the case of registrars because I felt it was one end of the limit. I have to say that this really is ridiculous. It will open up the opportunity for people to sue the other way round on the basis of the most trivial issues. If a cook was able to say, “I am afraid that my petit fours cannot be used for the reception at a same-sex marriage”, we are making a laughing stock of the law. This is not just a bridge too far, it is a whole highway beyond where we should go.
Baroness Thornton
My Lords, the noble Lords, Lord Deben and Lord Lester, have put this very well indeed. I would add just one other matter. I find my noble friend’s view of the future rather depressing. I do not believe that people will argue and fight with each other about the existence of same-sex marriage. I simply do not believe that this is what will happen. Apart from the fact that in most cases this is a private matter between two people of the same sex or opposite sex, it is not the kind of issue that will raise the problems that my noble friend has suggested. I hope that, as the Bill moves forward in the next year, my noble friend will start to take a more optimistic view of it.
Baroness Stowell of Beeston
My Lords, I am grateful to all noble Lords who have contributed to this debate. I shall try to avoid repeating myself, because a lot of this amendment would lead me to do so. I will avoid doing that, if the noble Lord, Lord Anderson, will forgive me, and go directly to the central point of his amendment.
My first point is that an employer should have the right to ask his employees to do their job. Equally, he may not impose a requirement on them that would discriminate against them because of their religion or belief. Of course, it is open to private sector employers to make any adjustment they wish for their staff. It is quite possible, and perfectly lawful, for an employer to allow staff not to be involved in any activity that is objectionable to them—if the employer wishes. In this regard, private sector employers are not in the same position as public sector employers. As the noble Lord made clear, he does not include the likes of registrars in this debate in any case.
However, imposing a duty on employers to provide reasonable accommodation in respect of religion or belief would be a new concept in English law, as the noble Lord has already acknowledged, although he mentioned that it was common practice in the US. We would need to consider in detail how that duty would work in conjunction with the rules on indirect discrimination, and whether all other religious and philosophical beliefs should be equally protected—not just the belief that marriage should be of one man with one woman. That is not a task to be undertaken in this Bill, and I note the comments from my noble friends Lord Lester and Lord Deben about their view of this concept.
To pass this amendment would add a new burden on employers, who would have to work out what it means in their own particular context. It is probably worth pointing out that in his evidence to the Joint Committee on Human Rights, Robin Allen QC, on behalf of the Equality and Human Rights Commission, made clear that the existing legal protections contained within employment and equality law would be suitable to deal with any issues that may arise. He advised against including additional safeguards, such as a reasonable accommodation provision in this Bill.
So the current provision in legislation, which prohibits discrimination because of religion or belief, is fit for purpose. To impose a whole new duty of reasonable accommodation in this Bill is unnecessary. It could also be damaging to the balanced way in which the Equality Act operates, create uncertainty and add a new burden on employers who would have to make sense of it. I therefore ask the noble Lord to consider withdrawing his amendment.
Lord Anderson of Swansea
My Lords, if we truly believe in liberty of conscience, we can hardly be against an attempt to ensure that an employer seeks to accommodate, wherever reasonable, the views of an employee. I hear the noble Lord, Lord Deben, who tried to reduce to an absurdity the point that I was trying to make, but does he or does he not believe in the principle of seeking to accommodate, wherever practicable? Clearly, in many firms such an accommodation would not be practicable because of the number of individuals concerned but in the example of a car firm with perhaps 10 drivers, it is surely not unreasonable to ask an employer to ensure that the individual who has expressed such a view is not the one called upon to drive.
The noble Lord, Lord Lester, prayed in aid US precedence during a number of earlier debates on this matter. He quoted Brown v the Board of Education of Topeka. He or someone else mentioned Plessy v Ferguson, the separate but equal case in relation to the railroad. There were a number of other cases to the same effect but the noble Lord is less willing to quote US precedent when it does not happen to suit his purpose. Under the 1964 Civil Rights Act in the US, there is such a provision for reasonable accommodation. It has worked there successfully since that time and I have no reason to doubt that if we were to put such a measure into law today, it would work equally effectively in England and Wales and other common-law jurisdictions.
Lord Lester of Herne Hill
The Equality Act 2010 is the best civil rights legislation in the world and is vastly superior to United States civil rights legislation.
Lord Anderson of Swansea
The noble Lord cites US precedent when it happens to suit his case. He is less ready to cite it when it does not, such as when considering the effect of the Civil Rights Act. However, I hear what has been said. Clearly, the proof of the pudding will be in the eating. We shall see how the Bill will affect others but I still think it is not unreasonable to ask employers to seek such a reasonable accommodation, wherever practicable. However, this time, I beg leave to withdraw the amendment.
Lord Elton
“(3A) Regulations under subsections (1) and (2) shall in particular provide that the conversion of a civil partnership to a marriage shall take place in a registered building with open doors in the presence of two or more witnesses and in the presence of either—
(a) a registrar of the registration district in which the registered building is situated, or(b) an authorised person whose name and address have been certified in accordance with the regulations by the trustees or governing body of that registered building or of some other registered building in the same registration district.(3B) Where the conversion of a civil partnership to a marriage takes place in a registered building each of the parties to the civil partnership shall, in some part of the ceremony and in the presence of the witnesses and the registrar or authorised person, make the following declaration—
(none) “I do solemnly declare that I know not of any lawful impediment why I, AB, may not be joined in matrimony to CD.”and each of them shall say to the other—(none) “I call upon these persons here present to witness that I, AB, do take thee, CD, to be my lawful wedded wife (or husband)”.(3C) As an alternative to the declaration set out in subsection (3B) the persons contracting the marriage may make the requisite declaration either—
(a) by saying “I declare that I know of no legal reason why I (name) may not be joined in marriage to (name)”; or(b) by replying “I am” to the question put to them successively “Are you (name) free lawfully to marry (name)?”;and as an alternative to the words of contract set out in that subsection the persons to be married may say to each other “I () take you ( thee) () to be my wedded wife (husband)”.”
Lord Elton
My Lords, the lateness of the hour and my fatigue make it certain that I shall not take as much of your Lordships’ time as I should like to because I regard this as an important amendment. My intention is simply to strengthen the Bill, which may come as a surprise to noble Lords opposite who have the feeling that anything that comes from people like me is bound to be in some way sinister. How exaggerated are the head shakes that I see, but they are welcome none the less.
The Bill addresses an acknowledged evil. It is a rift in our society that needs to be mended. The tragedy is that the way in which it has been introduced has made it much harder to implement. However, that makes me keener for the Bill to do the job effectively. When the civil partnership legislation was introduced, it was generally understood that civil partnerships were to be taken as the equivalent of marriage and conferred equal status. However, that did not happen. The Bill needs to produce a status that is the equivalent of marriage. Given that it can be done no other way, some of us have reluctantly come to the view that the status must also be marriage.
The Lord Bishop of Chester
My Lords, I support the principle of the amendment. No doubt the detailed wording will be subject to criticism.
When civil partnerships were introduced, there was always an ambiguity. It was stated very strongly that it is not marriage and yet every provision on the statute book relating to marriage was trawled and reproduced in the Civil Partnership Act, which is a great big thick Act as a result. That ambiguity is what we are confronting at this point. Is a couple in a civil partnership almost essentially married? The language of marriage has been used in popular terms for civil partnerships in recent years—I acknowledge that—but we must remember that when the civil partnership legislation was put in place the view expressed was, “This is not marriage”.
Marriage is a commitment of two people to each other. That is the centre of the same-sex marriage Bill, but marriage is also a public and social institution. I am not suggesting that people around the Chamber who are in favour of the Bill deny that at all. As we go forward, measures that strengthen that sense of the social institution of marriage will be good for marriage in every sense. Vows that are essentially strong promises made between the couple are a vital part of creating that institution.
I have never been to a civil partnership; I have never been to a civil wedding. I have led a sheltered life, no doubt. However, the making of vows to one another in a personal way in the presence of representatives of the wider community is an essential part of the dynamic. When regulations for converting civil partnerships to marriage are drawn up, while we should not make any onerous requirements, I hope that we take matters seriously and reflect the social institution that must be at the heart of marriage.
Lord Alli
I understand the motivation behind the noble Lord, Lord Elton’s amendment, and I did not view it with huge suspicion. I understand that a conversion of civil partnership to a marriage should be marked by a ceremony to convey the solemnity of the occasion. I completely accept that. In other circumstances, I would be with him on this amendment, but I am afraid that the past is the past and the future is the future. We have to start the journey from where we are. Many same-sex couples will have already had big celebrations when they entered their civil partnerships. They will have had family and friends witness their civil partnerships, and they will have made vows and speeches. For them, I suspect, it was the nearest they probably thought they would get to a marriage and they would not wish to repeat that whole process. There will be others who simply went to the registry office and had a small civil partnership in the expectation that one day they would be able to marry. For them, this would provide the opportunity to recommit their vows in the way in which the noble Lord, Lord Elton, wants them to do. There may indeed be others who wish to wait until the right reverend Prelate, and his colleagues, sanction same-sex marriage, or even permit civil partnerships in their churches, mosques and temples.
I am afraid that I do not think it is up to us to place an unnecessary hurdle in the conversion of civil partnerships in the way in which the noble Lord suggests. There is a further point. We should remember that many of those ceremonies are for the young, and we should also respect the financial burdens that another ceremony might place on those who are just starting off in life. While it is a lovely idea, I do not believe that it is necessary or that in the end will help those in civil partnerships who want to convert their civil partnerships into weddings. I am sorry, as I wanted to agree with the noble Lord, Lord Elton, and I am sure that we will find a way of doing so in future. However, I cannot support the amendment, although I commend the sentiments behind it.
Baroness Cumberlege
My Lords, I support my noble friend on this one. I had a ray of hope when I heard the noble Lord, Lord Alli, start to speak. I thought that at last we would unite the House. My noble friend’s arguments are unassailable. It is absolutely right that we should be strengthening marriage, and this is a marvellous way to do it. I think of the weddings I have been to. I have been to a same-sex wedding, a pagan wedding, and what I consider to be normal weddings—Christian weddings. When I go to weddings the most moving part for me is when the vows are exchanged. There is always a hush in the town hall, church or the venue wherever it is taking place because people recognise that this is the very heart of the ceremony. It is the total commitment of two people to each other. I so agree with the right reverend Prelate that it is a public and social institution. It is something that you should make very public—what you are doing, why you are doing it and what you hope for the future. I am afraid I do not agree with any of the arguments of the noble Lord, Lord Alli. I think this is equity, fairness and what we should be doing.
Baroness Butler-Sloss
My Lords, I also agree with amendment of the noble Lord, Lord Elton. One point made by the noble Lord, Lord Alli, I thought was really quite unnecessary. One does not have to spend much money on a civil ceremony. I have a number of friends, indeed members of my own family, who have got married with just two witnesses. In one case, they asked two people from the street, would they go in and be the witnesses. That was the cheapest possible wedding one could have. I would also like to support marriage in the Bill, at the point which we have now reached. There is a danger of demoting marriage among those who are civil partners. That would be the worst of all worlds. That would be very sad indeed. We should be strengthening every sort of marriage. We have got to that stage. Therefore, the amendment of the noble Lord, Lord Elton, would be entirely appropriate.
Baroness Royall of Blaisdon
My Lords, I warmly welcome the fact that the noble Lord, Lord Elton, wants to strengthen the Bill. Like him, I am very much in favour of strengthening marriage, and celebrating marriage at every opportunity. Therefore, I certainly agree with the sentiment of the amendment. Public commitment, made in the presence of friends and family, is an expression of that commitment and of the seriousness of the union that the two people are entering into. However, couples choosing to convert their civil partnerships into marriage, which of course they will not have to do, will already have gone through a very similar process. It is not the same and not with the vows, which I think are extremely important, although not everybody would agree; but they have made a public commitment in the presence of a registrar and witnesses.
Many of the couples who have done that, as the noble Lord himself said, might have wished to marry, but at that time they were not able to so they went through the civil partnership. Like my noble friend Lord Alli, I think that couples should not be required to have a ceremony to convert their civil partnership into marriage. However, for those couples that wish to embark upon marriage then, of course, it is absolutely right and proper. I am sure that when the guidance comes out, when the Government publish whatever they are going to publish in relation to the conversion of civil partnerships into marriage, should a couple wish to exchange vows and marry they will be able to do so. It is just that not every couple will be required to do so. It is the difference between requiring and enabling a couple to do so. I am afraid I cannot agree with the amendment, but I am fully behind the sentiment.
Baroness Northover
My Lords, I thank all noble Lords who participated in this mini debate. I particularly thank my noble friend Lord Elton for concerning himself so positively in looking at the conversion from civil partnerships to marriage. I think that the right reverend Prelate may have invited himself to some civil partnership ceremonies now that he has mentioned that he has not yet had such an invitation.
We have previously debated Clause 9 in Committee and the nature of the process that will apply for couples in a civil partnership to convert that partnership to a marriage. I was very grateful to my noble friend Lord Elton for agreeing to withdraw a similar amendment to this in Committee on the basis that it was appropriate to await the Government’s response to the recommendations of the Delegated Powers and Regulatory Reform Committee. I hope that he is pleased with the Government’s decision, which I explained earlier this evening, to accept the Committee’s recommendation on Clause 9, so that the regulations under this clause would be made by the Secretary of State, rather than the Registrar General, and that the first such regulations would be subject to the affirmative procedure, and subsequent regulations subject to the negative procedure. Therefore, we will be debating this further.
Lord Elton
My Lords, my noble friend leaves me in a quandary. I think I am right in saying that the consultation will not bear fruit until after the Bill has passed through Parliament. If I can address the arguments that have been made, my feeling is that the noble and learned Baroness, Lady Butler-Sloss, dealt fairly effectively with the noble Lord, Lord Alli—or rather with his arguments, not necessarily with him. The costs can be minimal.
Too much has been made of the barrier. It is not a barrier: it is an escalator. It is something very easy to get on to that gets you where you want to be. That is what the Bill is for: to open up marriage to people who want it and who could not get it until now. If that is what we are committed to, we must have some means of doing it. We could leave it to the Secretary of State. I am glad that it will not be the Registrar General and I am glad that it will be subject to the affirmative procedure. But I think as a matter of principle that the vows should be the same in both instances.
I know what enormous irritation one goes home with if the Chief Whip has kept both sides in the House for so long and then there is no vote. All things considered, I would like to take the opinion of the House.
“(4A) For provision about limitations on the effects of subsections (1) and (2) and Schedule 3, see Part 7 of Schedule 4.”
Lord Wallace of Tankerness
My Lords, the amendment is a response to the concerns expressed by my noble and learned friend Lord Mackay of Clashfern that Clause 11 as drafted is potentially misleading and would benefit from further clarity. Clause 11(1) provides that marriage, in the law of England and Wales,
“has the same effect in relation to same sex couples as it has in relation to opposite sex couples”.
Under my noble and learned friend’s Amendment 33, which we debated in Committee, he argued that the clause will be clearer if it stated that the provision is subject to the later provisions—namely, the provisions in Schedules 3 and 4. Following the debate, my noble friend Lady Stowell and I considered carefully the points that my noble and learned friend made. They have been discussed with parliamentary counsel, and we have agreed that it would do no harm to provide a signpost to those provisions in Clause 11. That is what the amendment is intended to do, and I believe that it provides the clarity which my noble and learned friend sought. I hope that he is satisfied that we have sought to address his concerns, and I beg to move.
Lord Mackay of Clashfern
Yes, I certainly am. This is a correct elucidation of the situation and I am very grateful to the Government for accepting the point that something required to be done.
“(d) an order under section (Legislative definitions) (1)(d)”
Lord Armstrong of Ilminster
My Lords, I am in something of a dilemma, because Amendment 71 is consequential on Amendment 85, which is the substantive amendment, but it has been agreed between the usual channels that Amendment 85 will be for debate on Wednesday afternoon. If it is for the convenience of the House that we should not be too late—much too late—rising tonight, I will be content not to move Amendment 71 tonight but come back to it when we discuss Amendment 85. If Amendment 85 falls, Amendment 71 will not be required; if Amendment 85 is maintained, we will need an amendment of this kind either at Report or on Third Reading.
Baroness Butler-Sloss
“(2) In subsection (2)(a) after “that the respondent has committed adultery” insert “or a sexual act with a person of the same sex similar to adultery”.”
Baroness Butler-Sloss
My Lords, in Committee, I spoke to a similar but not identical amendment at midnight. Today, I start two or three minutes later. It makes me wonder whether it is a ploy of the government Front-Bench to make sure that I speak to an amendment on this subject after 9 pm. The noble Baroness, Lady Stowell, made that suggestion in Committee. In Committee, I spoke at some length, despite the hour, about the importance of trust between those who enter into matrimony, so today I shall be very brief. Trust can be destroyed if one spouse has a relationship outside marriage and breaks the concept of faithfulness. That extramarital relationship strikes at the root of the marriage bond and can be devastating. It seems to me that the behaviour of the erring spouse should be identified as adultery, as it is in the Matrimonial Causes Act. I do not see why the injured spouse should petition for unreasonable behaviour, which is a wholly different matrimonial offence.
I have made changes to the amendment to refer to a sexual act similar to adultery. I do not consider that it would be very difficult for judges to decide what the amendment means, but it is most unlikely that a judge will ever have to do so. There are almost no defended divorces today. A divorce is a very easy process when it is undefended.
This amendment will apply to existing marriages between opposite-sex couples where one spouse enters into a same-sex relationship outside their marriage, so it is broader than the marriages of same-sex couples and would right a broader wrong. Unlike the perception of many in this House that amendments today are in effect wrecking amendments, this amendment, like the previous amendment by the noble Lord, Lord Elton, is intended to be helpful. It is of a wholly different type and is intended to help faithful spouses to deal with this devastating blow to their marriage by treating it as a failure of fidelity, rather than a matter of what used to be called cruelty. I beg to move.
Lord Alli
The noble and learned Baroness will recall that I also spoke in Committee on her amendment. The issue we wrestled with then is the same that we are wrestling with now, which was that definition of adultery and the sexual act that defines it. I see that the noble and learned Baroness has said that a judge could interpret that but in every instance bar that of a lesbian relationship, we could find an accommodation. The issue of how you define adultery between two lesbians is something we have tackled over and over again from the Civil Partnership Act onwards. I do not believe that the noble and learned Baroness’s amendment deals with that. I have huge sympathy regarding the issue that she raises but I do not feel that the amendment is drawn in a way which will make it clear. Given that there are grounds of unreasonable behaviour, it is probably unnecessary.
Lord Pannick
My Lords, I, too, cannot support this amendment. Under existing law, if a married man has a sexual relationship with another man his wife cannot sue for divorce on the ground of adultery. She can sue for divorce on the ground of unreasonable behaviour, based on sexual infidelity. As I understand it, the Bill adopts the same approach in relation to same-sex marriage and sexual infidelity with another same-sex partner. This seems to be consistent with existing legal principle. It involves no detriment whatever to the other party to the marriage, who can obtain a divorce on the basis of unreasonable behaviour. I, too, am concerned about the uncertainty inherent in the noble and learned Baroness’s amendment. What is,
“a sexual act … similar to adultery”,
in the case of lesbians?
Lord Deben
My Lords, my mother was always rather diffident about what she referred to as “things down there” and I rather feel that the noble and learned Baroness has attempted to recreate my mother’s views in what she has tried to say here. I find it hard to believe that a definition of a sexual act similar to adultery is one which is precise enough, even for the most learned of Lords. I feel that it does not achieve anything. We have another way of dealing with these things and, if I may say so, a rather more all-embracing and less detailed way of doing so. I am not ashamed to understand that Ministers have discussed this and have come to the conclusion that none of them want to produce anything more precise than has been produced. I have sympathy with them; we all should have.
Lord Mackay of Clashfern
My Lords, some provisions which appear fairly late in the Sexual Offences Act would have sufficed as a definition, but there is a point to be made about the distinction between the grounds in same-sex marriage and those in opposite-sex marriage. Adultery is mentioned in particular in relation to unreasonable behaviour in opposite-sex marriage. This is an imbalance between the two, which are supposed to be absolutely the same. It seems an unnecessary difference and the noble and learned Baroness has put her finger on an important point so far as this is concerned.
Baroness Berridge
My Lords, I, too, wish to speak to this amendment. While the law retains adultery as a ground for divorce, I believe that it should be applied equally. I think that I am right in recalling that perhaps this could have been short-circuited, as I believe there remains on our statute books, although it is not in force, a whole provision in relation to no-fault divorce. However, until we are in the position where people do not use fault as a ground for divorce, it is my submission that it should be applied to all situations.
There is inequality here. It is as unjust to gay couples as it is to heterosexual couples, as neither of them can ask for divorce on the grounds of adultery with someone of the same sex. Although I appreciate any humour that we can inject into this debate, as my noble friend Lord Deben just did, this is a serious point. One has only to look at some of the support group websites that exist. The one that I have come across is for wives who subsequently discover that their husband is in a relationship with a man. The support group website that I looked at this evening talks about pain, loss, betrayal, confusion, loss of self-esteem and feelings of isolation. To be told that if your husband leaves you for another man it is just unreasonable behaviour, but if he were to leave you for another woman you could petition for divorce on the grounds of adultery, is, I believe, unjust.
Bizarrely, that means that the only couples in either of our marriages—heterosexual or same-sex—who are in a just situation are those to whom my noble and learned friend Lord Mackay referred: platonic friends who take advantage of this legislation. After all, as a sexual relationship was not the basis of their marriage, they cannot complain that adultery is not available to them. I think that we have left the law in not just a muddled state but an unjust one, and it is important to recognise that.
I accept that the noble Lord, Lord Pannick, says that this is the existing law, but if we are saying that culture is changing and we are changing the law on marriage, surely the same argument exists in relation to the grounds for divorce—that we must change. However difficult the definition of problems can be, there is a good case for saying that we have to change these grounds at the same time as we change marriage law.
Baroness Thornton
My Lords, I confess that I had trouble with the wording of this amendment, along the same sort of lines as the noble Lord, Lord Deben. It says,
“or a sexual act with a person of the same sex similar to adultery”.
I was wondering how similar and at what proximity, and whether you would want a judge to take that sort of decision. We can probably agree that the amendment does not serve even the purpose that the noble and learned Baroness wishes it to. We agree with the Government that it is unnecessary to replicate the requirement.
There have been several times in the course of today when noble Lords have referred to platonic relationships. Actually, there is no requirement to consummate a marriage; you can have a platonic marriage as a same-sex marriage or an opposite-sex marriage, so I am not quite sure what point noble Lords have been making there.
We also believe that it is unnecessary to legislate for dissolution on the grounds of adultery. It is sufficiently provided for, and I think that the Government got it right in consultation that the grounds of unreasonable behaviour exist. Indeed, since the commencement of the Civil Partnership Act in 2005, this has proved to be entirely unproblematic and I think we should just leave it as it is.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble and learned Baroness, Lady Butler-Sloss, for introducing her amendment and for ensuring that we are, again, post-watershed. I did not design it this way but, as someone who used to work at the BBC, I am always so much happier when I know that we are compliant with broadcasting regulations.
I will start by addressing one angle that underpins this amendment and the debate associated with it, and that is about fidelity. It was something to which my noble and learned friend Lord Mackay referred. I want to be absolutely clear that the Government recognise the importance that couples, whether opposite-sex or same-sex, attach to fidelity in their relationships. The seriousness and the intention of same-sex couples wishing to make a commitment to each other are no less serious than that of opposite-sex couples. There is no difference in the intensity of the commitment and fidelity is every bit as important for same-sex couples who wish to marry as it is for opposite-sex couples.
The provisions in the Bill do not, in any way, imply that fidelity will be less important in marriages of same-sex couples than it is in marriages of opposite-sex couples. It is important to make that point, not so much in relation to what the noble and learned Baroness said today, but certainly following up on the debate that we had in Committee, and the comments of my noble and learned friend Lord Mackay, lead me to make that clear.
It is important to remember that betrayal in close relationships can, unfortunately, take many forms. A partner can be unfaithful by sharing confidences and not necessarily by sharing a bed. I make that point because I think that the noble and learned Baroness, Lady Butler-Sloss, said in Committee, when she was moving her amendment, that for her the opposite of fidelity was adultery. However, I would argue that the opposite of fidelity is infidelity, and infidelity takes many forms; it is not necessarily about adultery via a sexual act. Her amendment, as we have heard, seeks to create a new fact for divorce to sit alongside the current fact of adultery in the Matrimonial Causes Act 1973. This new fact would apply to sexual activity, similar to adultery, of a married person with someone of the same sex outside the marriage, and it would apply to all marriages, whether of same-sex or opposite-sex couples.
The effect of this definition is not clear as we do not know what sexual acts would be covered by the amendment. That point was made by the noble Lord, Lord Pannick. It is worth reminding ourselves that the definition of adultery that exists in law now took decades to be defined through case law; it was not something that was established overnight. If we are to introduce something called “similar to adultery”, as the noble Lord, Lord Pannick, has said, this lack of clarity would mean that all married couples, whether same-sex or opposite-sex, would not be clear about the grounds on which they could obtain a divorce. Neither same-sex nor opposite-sex couples would benefit from the extended facts to constitute adultery inserted by this amendment.
The provisions of the Bill on adultery provide that the same long-standing definition of adultery, set out in case law, will apply to both opposite-sex and same-sex married couples. I would argue against what my noble friend Lady Berridge and others said, that actually the Bill creates some inequality by keeping the definition as it is. We are not introducing a new inequality; we are continuing as we are now.
Without getting too graphic, the definition of adultery is very specific and relates to a sexual act between a man and a woman which is not physically possible between two men or two women. That act has been established by case law over decades, and because of that, it is not something that can apply to relations between people of the same sex.
I was going to offer some explanation as to how the law on adultery works. Noble Lords have covered this very well in the contributions that have already been made, but if the House will indulge me, I think it is worth being specific about this because after we had the previous debate I talked to one of the policemen as I was leaving the building. He had been very amused by our debate that evening and seemed to think that off the back of it adultery would not necessarily apply any more and that people would not be able to divorce each other on those grounds. I explained to him how adultery works. As he found that so interesting, I thought I might do it for the benefit of noble Lords.
As the law stands, if I was married to George Clooney and he was to have a sexual affair with, say, the noble Baroness, Lady Thornton, that would be adultery. If I was married to George Clooney and Mr Clooney had sexual relations with the noble Lord, Lord Alli, that would not be adultery because he would not be able to do the sexual act which is very specifically defined in law. Should I wish to divorce Mr Clooney on those grounds, I would do so on the grounds of unreasonable behaviour. In future, if the noble Lord, Lord Alli, was to marry Mr Clooney, and Mr Clooney was to have an affair with me—and who would blame him in those circumstances?—that would be adultery and the noble Lord, Lord Alli, should he choose to, would be able to divorce Mr Clooney on those grounds. If the noble Lord, Lord Alli, were married to Mr Clooney and Mr Clooney had an affair with, say, my noble friend Lord Black of Brentwood—
Baroness Stowell of Beeston
That would not be adultery, but the noble Lord, Lord Alli, would be able to divorce Mr Clooney, should he choose to, on the grounds of unreasonable behaviour. The point I am making is that the arrangements relating to how adultery works will remain the same in the future as they are now.
When a marriage breaks down, it is a very serious matter and of huge regret. The number of divorces on the grounds of adultery is falling. The latest figures show that 18% of divorces are on the grounds of adultery. The figure has fallen quite rapidly over the past 10 years. Adultery is not the grounds on which most people seek to divorce one another. We hope that all marriages, whether they are between a couple of opposite sexes or the same sex will continue, and that they will be faithful and remain happy and contented. If that is not the case, we believe that the existing provisions are perfectly adequate for divorce to take place, and I therefore hope that the noble and learned Baroness will feel able to withdraw her amendment.
Baroness Butler-Sloss
I thank all noble Lords for their contributions, particularly the noble Baroness, Lady Berridge, who put very well indeed the points that I put previously and did not put today. The particular point she made was about injustice. As the noble and learned Lord, Lord Mackay of Clashfern, said, inequality comes from this Bill. That is perhaps the most important reason for raising it.
I say to the noble Lord, Lord Deben, that it is not a funny matter, whatever his mother might think. I am talking about a really serious issue, although it was very attractively put by the Minister in her excellent exposition of the existing law, which I could not fault. The fact is that everyone thinks it is rather funny. There is the policeman saying it is rather funny, but we are dealing with a truly serious matter. One of the causes of the breakdown of marriages is the way in which one of the spouses goes off and prefers another person, male or female, to the person to whom he or she is married. That is the basis of the reason that I raised it.
Despite what the Minister and the noble Lord, Lord Pannick, said, no one is ever going to challenge this. All these divorces are undefended. They all go through in three months because almost never is there a defended divorce. I would be astonished if there was a line of case law on this unless somebody took it up, although that is very unlikely.
However, the alternative, which the Minister might just take back, even to the Law Commission, is to ask: as marriage is now for everyone, is it appropriate that we have adultery at all? Would it perhaps be better to have an equality whereby adultery was removed, and all relationships, whatever they may be, were dealt with by irretrievable breakdown of marriage and unreasonable behaviour? However, if adultery is to remain, it remains an inequality and an injustice. Like other noble Lords, I have received the most heartrending letters by e-mail from women who describe how they have been treated by a man who has gone off with somebody—with another man. The purpose of this amendment was to broaden the issue beyond same-sex marriage to heterosexual marriages in which one partner goes away with another man or another woman.
However, it is perfectly obvious, at 12.25 am, on the last amendment of the evening, that I would not put noble Lords through the burden of having an ineffective vote which I could not win, so I beg leave to withdraw the amendment.