Grand Committee

Monday 28th July 2014 Grand Committee

Monday, 28 July 2014.

Arrangement of Business

Monday 28th July 2014 Grand Committee

Announcement

15:30

[The Deputy Chairman of Committees (Lord Bichard) (CB)]

My Lords, welcome to the Grand Committee. If there is a Division in the House, the Committee will adjourn for 10 minutes.

National Minimum Wage (Amendment) (No. 2) Regulations 2014

Monday 28th July 2014 Grand Committee

Motion to Consider

15:30

Moved by

[Lord Popat]

That the Grand Committee do consider the National Minimum Wage (Amendment) (No. 2) Regulations 2014.

Relevant document: 5th Report from the Joint Committee on Statutory Instruments

[Lord Popat (Con)]

My Lords, in moving the first Motion standing in the name of my noble friend Lady Neville-Rolfe on the Order Paper, I will speak to both Motions. The purpose of these regulations is twofold. The first set of regulations uprates the national minimum wage rates for all workers and increases the maximum amount for living accommodation that counts towards minimum wage pay in line with recommendations from the Low Pay Commission. The second set extends the apprentice rate to cover apprentices on trailblazer apprenticeship programmes—pilots trialling the Government’s apprenticeship reforms—so that apprentices on these pilot programmes are treated in the same way as apprentices on other government apprenticeship programmes.

First, I turn to the national minimum wage rates. The national minimum wage is designed to protect low-income workers and provide an incentive to work by ensuring that all workers receive at least the hourly minimum rates set. The minimum wage also helps businesses by ensuring that competition is based on the quality of goods and services provided and not on low prices based on low rates of pay.

Following advice from the Low Pay Commission, the Government are uprating the minimum wage from 1 October 2014 so that the adult rate will be £6.50 per hour. For young people aged between 18 and 20 years-old, it will be £5.13, and those between 16 and 17 years-old will have a minimum wage rate of £3.79 per hour. Finally, the rate for apprentices will be £2.73 per hour. This is an increase of 3% for the adult rate and 2% for the other rates. This 3% rise in the adult rate will mean that low-paid workers will enjoy the biggest cash increases in their pay packets since 2008. These rate increases will benefit more than 1 million low-paid workers on the national minimum wage and will mean full-time workers on the adult rate receive an additional £355 a year in their pay packet.

The Low Pay Commission has said that the rise—the first real-terms cash increase since 2008—is manageable for employers and will support full employment. Since its introduction, the national minimum wage has increased faster than average wages and inflation without an adverse effect on employment. It has continued to rise each year despite the worst recession in living memory. The Low Pay Commission has proved that a rising minimum wage can go hand in hand with rising employment.

Every year, the Government set the remit for the Low Pay Commission. Last year, we asked the commission to monitor, evaluate and review the national minimum wage and its impact and to review the levels of each of the different minimum wage rates. As part of its remit, the Government also asked the independent body to review the contribution that the national minimum wage could make to the employment prospects of young people.

The Low Pay Commission has consulted with academics, businesses and workers’ representatives, and undertakes extensive research and analysis to respond to this remit. The Low Pay Commission consists of three commissioners from employer backgrounds, three from employee representative backgrounds and three independents. Its recommendations reflect the objectives of both employers and unions, and are unanimous. The aim is that the rate should be affordable for business and that as many workers as possible should benefit from as generous an NMW as possible. The Government believe that the rates set out in the SI meet this objective.

I now turn to the inclusion of trailblazer apprentice programmes under the apprentice national minimum wage. Apprenticeships in England already offer great opportunities for business and young people. Some 96% of employers who take on an apprentice think that their business has benefited. We want to make all apprenticeships world class, so that the programme is rigorous and responsive and meets the changing needs of employers and the future economy. We want the new norm to be two equally prestigious routes to a great career—university or an apprenticeship.

Our reforms of apprenticeships will put employers in the driving seat, enabling them to lead on the design of apprenticeships to make them easy to access and understand. Long complex frameworks will be replaced by short, simple standards describing the skills and knowledge that an individual needs to be fully competent in an occupation. The reforms will increase quality through higher expectations of English and maths with more end-point assessment to ensure that the apprentice is fully competent. We will also raise aspiration for apprentices by introducing grading.

These are significant reforms so we are testing them with trailblazers. Trailblazers, led by small and large employers and professional bodies, are designing apprenticeships for occupations within their sector to make them world class. Trailblazer activity will help to create a sustainable employer model for future apprenticeship development. The first trailblazers were announced in October 2013 with a second phase in March this year.

The first trailblazers were in eight sectors: aerospace, automotive, digital industries, electrotechnical, energy and utilities, financial services, food and drink manufacturing, and life and industrial sciences. They have successfully produced the first apprenticeship standards and most are planning for apprentices to start on them in the next academic year. We want apprentices on these trailblazer apprenticeships to be treated in the same way for minimum wage purposes as other apprentices on government apprenticeship programmes. These regulations therefore add trailblazer apprenticeships to the list of government apprenticeship programmes covered by the apprentice rate.

I remind the Committee of the key benefits of the regulations. First, they uprate the national minimum wage rates in line with recommendations from the Low Pay Commission and, secondly, they add trailblazer apprenticeships to the list of government apprenticeship programmes covered by the apprentice minimum wage rate. I commend the regulations to the Committee.

[Baroness Donaghy (Lab)]

My Lords, I declare an interest as one of the members of the Low Pay Commission when it was first established in 1999. We established the first minimum wage and apprentice rate so I have kept a working knowledge of this subject throughout. The Minister said that the national minimum wage has not only kept up with average earnings but has surpassed them, and I acknowledge that. However, we have to accept that it is still a very low rate and all parties acknowledge that when the economy can afford it these figures should be substantially increased. I also acknowledge that the Government have done their best by accepting the recommendations of the Low Pay Commission. I hope that that will be the case with all future Governments and that the independent Low Pay Commission will continue and all parties will honour its recommendations.

My first point is on the impact of the minimum wage and there is an excellent sentence in the Explanatory Note, which says:

“The Commission’s recommendations are shared judgements rather than the mechanistic products of an economic model. They are strongly based in evidence and involve careful assessments of, among other things the NMW relative to median earnings and the number of jobs covered by the minimum wage”.

I emphasise this because I want to ask the Minister what further steps are being taken so that this impact is fully implemented by making sure that the minimum wage is honoured by employers. What resources are available to check up on the minimum wage implementation? Are we satisfied that we have sufficient staff to carry out the inspections and the check-in? That would be my first question, because, obviously, there will not be any real impact if employers think that they can get away without paying the minimum wage or can fiddle the hours so that there are some on the books and some off the books. We witnessed that in many employment situations, where all the books looked perfect but the workers themselves informed us that they did an extra six hours off the books for a lower rate, which took it below the minimum wage. What steps are the Government taking to make sure that that is fully followed up?

My other point concerns the Low Pay Commission itself, which said that the new Government website was insufficient to give information to people who were seeking information on low pay and the statutory national minimum wage. As we have all acknowledged, this is an independent body that we all respect. If it is saying that the revised website is insufficient and inadequate, are the Government taking steps to consult the Low Pay Commission to see whether that information can be improved, to maximise the impact of the minimum wage?

[Lord Young of Norwood Green (Lab)]

My Lords, I thank the Minister for introducing the regulations. We welcome the fact that the Government are accepting the recommendations of the Low Pay Commission. Over the years since 1999, despite the predictions of some of the party opposite that the national minimum wage would result in massive job losses, that has proved to be far from the truth. It has become an accepted way of partially protecting lower-paid workers from even lower wage rates. We cannot rest on our laurels, because we know that, as my noble friend Lady Donaghy said, it is still a low rate; hence the emergence in various parts of the country of a living wage, which is something that we would support. I would welcome knowing what progress the Government think should be made towards the introduction of a living wage. Although they have increased above average earnings, over a period of time there has been some decrease for workers receiving the minimum wage. If we form the next Government, we have said that we will try to ensure that the minimum wage rises faster in the next five years than it has in the recent past, as part of a national mission to tackle low pay and build a new economy with more highly skilled and highly paid jobs. Of course, as a balancing act, which we recognise, we do not want there to be a detrimental effect on jobs. Nevertheless, we think that progress can and should be made.

I have a couple of questions for the Minister, one of which reflects on the point made by my noble friend Lady Donaghy. Can the Minister update the Committee on the levels of national minimum wage enforcements by HMRC? Is the employee rights helpline receiving a greater number of complaints on the minimum wage or not? I would welcome knowing the latest figures.

I was interested in the statistic that 96% of employers think that apprenticeships are beneficial. That is the good news; the bad news is that only about 8% of employers employ apprentices. We still have a long way to go to ensure that we get more and more young people out of unemployment or, indeed, as NEETS, doing no activity at all. So there is still a long way to go. Of course, we recognise the progress made by trailblazers and their necessary inclusion as a part of national minimum wage protection. With those reservations, we support these statutory instruments, and I look forward to the Minister’s response.

15:44

[Lord Popat]

I thank noble Lords for their contributions and commend the work of the noble Baroness, Lady Donaghy, on the Low Pay Commission. She raised a couple of issues about whether companies could afford to pay more. We are committed to improving the living standards of low-paid employees. We support businesses that voluntarily choose to pay a living wage or more than the minimum wage, as long as this is affordable and does not cost people their jobs.

The only way to achieve a sustainable increase in wages is to have better economic growth so that companies can afford to pay higher wages, as the noble Lord, Lord Young, mentioned. One of the problems for this country is that while all the figures look interesting and good—manufacturing is up, growth is up and exports are up—our productivity is still static and has not returned to the peak achieved in 2007. Companies need to achieve higher productivity to be able to afford to pay higher wages.

The noble Lord, Lord Young, talked about the enforcement of the national minimum wage. HMRC investigates employers who are not paying the national minimum wage. Those employers will have to pay back arrears owed to workers or face a financial penalty and be publicly named and shamed under the national minimum wage naming scheme. Since HMRC began to enforce the national minimum wage in April 1999, it has identified more than £54 million in pay arrears, affecting more than 229,000 workers, and has carried out more than 65,000 employer interventions.

The noble Baroness, Lady Donaghy, asked what steps had been taken to ensure that the national minimum wage is enforced. I have just responded to the question asked by the noble Lord, Lord Young, on that. We are committed to increasing compliance by making sure that HMRC investigates every complaint that it receives. As I said, since 1999, the pay of some 229,000 workers has been looked into where companies have not complied with the regulations. We are committed to providing effective guidance. We will consider the Low Pay Commission’s views carefully and consult it further to ensure that our website provides better information to people who want to make a complaint about low pay.

These regulations increase the national minimum wage from 1 October. They also allow trailblazer apprentices to be treated in the same way for minimum wage purposes as other apprentices on government apprenticeship programmes. A number of specific points have been raised. I shall look at Hansard and will be happy to write to noble Lords if I have not covered all the points that were raised.

As I said, the Government are committed to the minimum wage because of the protection it provides to lower-paid workers and the incentives to work it provides. It is crucial that people at the lower end of the market are paid more. It is important that they are paid a living wage to enable them and their families to survive. This Government have also introduced fiscal measures, such as increasing the personal allowance. Although the relevant rate has gone up by between 2% and 3% over the last four years, pay net of tax has gone up due to the higher personal allowance. That allowance will go up to £10,500 from April 2015.

The regulations we have been discussing today support the Government’s commitment to delivering fairness, supporting business and delivering world-class apprenticeships. I believe that they are fair and appropriate. The increase in the adult rate will maintain the relative position of the lowest paid while also being one that business will be able to afford.

[Lord Young of Norwood Green]

I just want to make sure that the noble Lord is going to answer in writing—if he does not have the figures here—whether the number of complaints made to the employee rights helpline has increased and how many relate to the national minimum wage. I am trying to read the body language of the civil servants. If those figures are not available, then by all means he can write to me.

[Lord Popat]

My Lords, I do not have the figures in my brief but I am very happy to write to the noble Lord. I commend the two sets of regulations to the Committee.

Motion agreed.

National Minimum Wage (Amendment) (No. 3) Regulations 2014

Monday 28th July 2014 Grand Committee

Motion to Consider

15:50

Moved by

[Lord Popat]

That the Grand Committee do consider the National Minimum Wage (Amendment) (No. 3) Regulations 2014.

Relevant document: 6th Report from the Joint Committee on Statutory Instruments

Motion agreed.

Video Recordings Act 1984 (Exempted Video Works) Regulations 2014

Monday 28th July 2014 Grand Committee

Motion to Consider

15:51

Moved by

[Lord Bates]

That the Grand Committee do consider the Video Recordings Act 1984 (Exempted Video Works) Regulations 2014.

Relevant document: 5th Report from the Joint Committee on Statutory Instruments

[Lord Bates (Con)]

My Lords, protecting children from inappropriate content is vital. We must ensure that consumers have the information they need about the age suitability of video products. For 30 years the Video Recordings Act 1984, which I shall call “the Act”, has helped address these important issues.

Under the Act, certain video material supplied to the public as physical products—for example, DVDs or Blu-ray discs—must be classified by the British Board of Film Classification and appropriately labelled. The public are accustomed to seeing the familiar BBFC age ratings on these products; and retailers are used to ensuring that they do not sell or rent products with BBFC “12”, “15”, “18” or “R18” classifications to anyone younger than the age on the label. It would be an offence for them to do so.

There is now a significant gap in these protections, which the Government aim to address with the regulations. Currently the Act allows for exemptions for video works that are primarily about music, sport or religion, or are designed to inform, educate or instruct. Unless they contain specific types of strong material, such videos do not have to be submitted to the BBFC, do not require any age labels on their packaging and can legally be supplied to any age groups. These exemptions have been in place since the Act was first introduced, when legislators could not have envisaged the wide variety of video works that we see today. A large proportion of video works released in these genres are still family friendly. However, in 2014 we see, for example, sports DVDs containing strong violence, and music DVDs featuring highly sexualised performances and lyrics. This means that children are at risk of exposure to harmful content.

This was picked up by, for example, Reg Bailey in the government review, Letting Children be Children. Responses to a public consultation on the issue overwhelmingly supported changing the exemptions so that in future products in the exempt genres must by law be classified by the BBFC if they are unsuitable for children. By that, we mean children under the age of 12.

These regulations set the exemption threshold at a lower point than at present, so that music, sports, religion and education-themed works in future must be classified if they contain any material that would be classified as BBFC “12” or higher. Video works in these genres that are suitable for young children will remain exempt.

The regulations work by listing depictions which, if featured in a product, will mean that it must be submitted to the BBFC. These relate to, for example, the use of violence, sexual themes, self-harm and other dangerous behaviours that might be copied by children. The definitions were drafted in collaboration with the BBFC to accurately match the standards that are used in practice. Industry stakeholders indicate that they are comfortable with them. However, to guide businesses that may in future be deciding whether their music, sport, religion and education video work must be submitted for classification, the BBFC is creating an online resource that will include extracts from previously classified films to illustrate the various definitions more clearly. The Government ran a full public consultation on the policy over 2012 and 2013, and consulted industry stakeholders and other groups during the period. Many responses were received and they have informed the regulations that are before the Committee today. Officials will monitor the impact of the regulations and the Government are also committed to carrying out a formal review of the policy three years after its implementation.

The Video Recordings Act 1984 covers only offline, hard-copy recordings. However, the Government are committed to ensuring that more online videos are also age-labelled. I welcome the increasing use of the BBFC’s voluntary classifications for online videos, and I am particularly pleased that the music industry and the BBFC are now working together on developing plans to pilot age ratings for online music videos using the same standards that are set out in the regulations.

In conclusion, these regulations will make a real difference to child protection and consumer confidence. They will ensure that hard-copy music, sport, religion and education videos coming on to the market in the future cannot be supplied directly to children. Consumers will be very clear about the nature of the material contained in these products and parents will be able to make more informed decisions about the products that they wish to allow their children to view. I commend the regulations to the Committee.

[Lord Alton of Liverpool (CB)]

My Lords, while I was a Member of another place, I promoted an amendment to protect children from gratuitously violent video material. Happily, an alliance of Members from across the political divide came together and we persuaded the Government of the day of its merits. Ultimately it was down to your Lordships’ House to then incorporate that amendment into law, which it did. It will come as no surprise, therefore, that I warmly welcome the Bailey review recommendations for a new approach towards protecting children from adult content in music videos, and I welcome what the noble Lord, Lord Bates, has said today, especially about extending the criteria and the logic of these regulations to online as well as offline material.

I would like particularly to mention an issue that I have raised with the noble Lord, Lord Gardiner of Kimble, on previous occasions, and that is the use of suicide sites. That has led to deaths, including the death of a child at a school where just a few months ago I gave out the school prizes. The child had visited one of these sites and had taken their own life. Indeed, the headmaster of that school told me subsequently that five other students had also been visiting the same site. This is not an abstract or theoretical question.

Perhaps I may turn specifically to the regulations before the Committee. I have to say that it perplexes me that any exempt DVD, be it for music, sport, religion or education, should have been able to show any of the depictions which are listed in the criteria set out in paragraphs (a) to (n) of proposed new subsection (1ZA) of the 1984 Act. Whether we are talking about suicide or self-mutilation, the use of illegal drugs and other very inappropriate imagery, these are all either objectively present or not. If they are, the DVD in question should not have been exempt. However, the depiction listed in paragraph (o) prompts some concern, and is the paragraph to which I should like to draw the attention of the Minister and the Committee. It states that a work is not exempted if,

“(o) it includes words or images that are intended or likely (to any extent) to cause offence, whether on the grounds of race, gender, disability, religion or belief or sexual orientation, or otherwise”.

Unlike the other depictions I have referred to, this depends on a very subjective category which is heightened by the fact that paragraph (o) makes it plain that “intent” and “extent” are completely irrelevant. At a time when there has been an increase in illiberalism and intolerance towards people of faith, it is not difficult to imagine that any religious DVD could cause offence to someone. Something that is violent or hateful and encourages such behaviour would in any event be covered by other statute. When we consider that according to the wording of paragraph (o) it does not matter whether the creators of a religious DVD intended it to cause offence and that it does not matter how minor the offence is, these regulations seem to threaten implications that the Explanatory Memorandum makes plain are simply not intended. As currently drafted, the regulations may well move us from one pole where no religious DVDs are rated to a place where as a matter of practice all religious DVDs will need to be rated.

16:00

I dare say that the Minister will respond by saying that the BBFC has balanced ways of assessing offence and that I have no cause for concern, but in response I would say that I have no difficulty with the BBFC’s approach. My problem is this: what if someone with an agenda asks a judge to adjudicate what the law actually says rather than what is the BBFC guidance? The judge would have to make his or her assessment ultimately on the basis of the letter of the conditions set out in paragraph (o), not on the basis of the BBFC guidance or, indeed, of the Explanatory Memorandum. Page 5 of the 2014 BBFC guidelines states:

“Potentially offensive content relating to matters such as race, gender, religion, disability or sexuality may arise in a wide range of works”,

but adds that,

“the classification decision will take account of the strength or impact of their inclusion”.

That is quite different from the provision in paragraph (o) where the extent of the offence caused is irrelevant. If someone with an agenda finds a religious DVD offensive, then regardless of the fact that it was not intended to cause offence and regardless of the limited extent of the offence that has been caused, it is likely that the judge will be compelled to rule in a way that would require the BBFC to change its guidelines. The default position is that paragraph (o) would be the law.

I suspect that the Minister will revert and quote from paragraph 8.7 of the Explanatory Memorandum which states:

“Under the current legislative framework, it is not possible for the BBFC Guidelines to be referred to in the legislation”.

But surely this is the nub of the problem. Moreover, it is compounded by the fact that the provisions made in Section 2A of the Video Recordings Act 1984 mean that video games can be amended by regulation, and under subsection (6) that these regulations,

“may make provision by reference to documents produced by the designated authority”.

This clearly implies that the classification guidelines produced in the case of video games by the Games Rating Authority, an arm of the Video Standards Council, could be referenced for exemption criteria for video games in the legislation. Why can this legislation similarly not make provision by reference to documents produced by the BBFC? That would be consistent and logical, and it would surely allay fears.

In that context, I am looking for some urgent reassurances from the Minister. First, can he explain how and why the BBFC guidance would be pre-eminent over paragraph (o) in a court of law? Secondly, can he explain why paragraph (o) sets a different threshold from the BBFC guidance? Thirdly, can he explain why Section 2A(6) of the Act makes it plain that legislation can,

“make provision by reference to documents produced by the designated authority”,

in this case the Games Rating Authority, although the Act does not make and will not make as a result of these regulations any parallel provision in relation to the BBFC, and why he thinks this is satisfactory? Finally, can he assure me that if a church or a para- church charity hosts a conference and films all the talks, songs and music at the event and offers them for sale to conference attendees, an interested person who could not attend and sells at a small profit, which could then be used to reinvest in the church’s work, to perhaps 70 people, would not be burdened with the requirement of a rating? If they did, paragraph (o) would have a very clear, chilling effect because the costs involved would put this beyond the reach of most churches.

Your Lordships’ House has only recently amended the Public Order Act to remove the word “insulting” from Section 5 because the view was that the threshold of “threatening, abusive or insulting” was too high. It therefore seems very odd that today we should be contemplating the extraordinarily low threshold in paragraph (o).

[Baroness Howe of Idlicote (CB)]

My Lords, like the noble Lord, Lord Alton, I have a number of issues to raise but, first, I welcome these new regulations. Like the noble Lord, I seek assurances from the Minister about some of the content.

As we know, the Video Recordings Act currently exempts, music, sports, educational and religious DVDs from having to be classified, unless they show to a significant extent certain types of material. Sadly, that approach has opened the door to abuse. Music and sports DVDs, for example, have been found containing adult content and, in that context, it is right that such videos should not be exempt and children should be protected from such content.

We debated an amendment to the Digital Economy Bill in 2010 that would have caused similar outcomes to those sought in these draft regulations. The then Government gave an assurance that they would revisit the issue. Since that time, the Bailey review also recommended legislation to close the loophole. The resulting regulations that are before us make it clear that exempted works that depict content such as suicide, self-mutilation and sexual activity that is not deemed to be mild must be rated. Depictions that result in the DVD work losing its licence are listed in the regulations in proposed new paragraphs (a) to (o) and have been explained, but I shall refer to them.

I warmly welcome these provisions, although I have some concerns about the use of the word “mild”. Like the noble Lord, Lord Alton, I believe that there is cause for some concern. The provision states that any exempted work should lose its exemption if,

“it includes words or images that are intended or likely (to any extent) to cause offence, whether on the grounds of race, gender, disability, religion or belief or sexual orientation, or otherwise”.

Why is this cause for concern? Unlike the conditions listed in proposed new paragraphs (a) to (n), “offence” is a very subjective category with a low threshold. Moreover, that is compounded in paragraph (o) by two facts. First, the issue of whether of a work was designed to cause offence is irrelevant. Secondly, it does not matter how minor the offence is—if it causes some offence to any extent, the work loses its exemption.

It seems to me that all religious DVDs would have to be rated. Consider a DVD that includes a hymn declaring that Jesus was the son of God. That would be offensive to Muslims, who believe that Jesus was only a prophet. What about a Muslim DVD that says that Jesus was not the son of God but only a prophet? That would cause offence to some Christians.

The Government seek to reassure us in paragraph 8.6 of the Explanatory Memorandum that there is no need for concern. It states that,

“the BBFC already makes determinations about whether the content is or is not discriminatory for other video works … and it does this from an objective viewpoint and based on principles set out in its classification guidelines”.

However, there is no reference in the Video Recordings Act to the detail of classification guidelines and how they might impact on a particular film or other work. The Government are right that the BBFC guidelines already cover discrimination. Page 5 of the 2014 guidelines says:

“Potentially offensive content relating to matters such as race, gender, religion, disability or sexuality may arise in a wide range of works … the classification decision will take account of the strength or impact of their inclusion. The context in which such content may appear also has a bearing”.

None of this nuance is in the legislation.

The Minister will no doubt respond by saying that such a condition of words and images that may cause offence is already in effect for video games— Section 2A of the Video Recordings Act—and, of course, that is correct. This insertion to the law was made through Section 40 of the Digital Economy Act 2010, the debate on which I have already referred to. However, the Secretary of State can amend these criteria by regulation and under Section 2A(6) these regulations,

“may make provision by reference to documents produced by the designated authority”.

This implies that the classification guidelines produced for video games by the Games Rating Authority—an arm, of course, of the Video Standards Council—could be referenced for exemption criteria for video games in the legislation.

My difficulty is that, as the letter of the law we are asked to sign off today has a different threshold from the guidelines, there would be nothing to stop an easily offended person from going to court claiming that something that had caused them offence should not be exempt. In this context, the judge would have to apply the law as it is set out before us today with its extraordinarily low threshold and find in favour of the person who is easily offended. This would then force the BBFC to change its practice.

In raising this concern I want to be clear that I am not arguing that all religious DVDs should be exempt. My concern is simply that the threshold in proposed new paragraph (o) is so low that we risk moving from one extreme—where all religious DVDs are exempt—to the other where, as a matter of practice, most, if not all, would not be because of their potential to cause offence to those from a different faith tradition or radical secularist point of view.

I also want to be very clear that I am not suggesting that people have such a low tolerance of views contrary to their own that most would claim to have been offended. As the regulations before us today are defined, however, it would only take some to explain why they were offended for a judge to have to rule with the effect that most religious works would lose their exemption. I have a similar concern relating to the robustness of the use of “mild” in the regulations. Of course, I understand that the BBFC has a good definition, but a judge will have to interpret the law and these regulations make no reference to the BBFC’s guidelines.

I hope that the Minister can explain, first, the mismatch between the letter of the proposed paragraph (o) on the one hand and the BBFC’s guidelines and stated intent in the Explanatory Memorandum on the other. Secondly, can he explain the extraordinarily low threshold in (o) where the potential offence is subjective and the intent of the producer and the extent of the said material is irrelevant? Thirdly, can he explain the rationale for allowing reference to guidelines for video games in statute but not video works? Finally, perhaps as a very minimum, can he provide a reassurance that if judges apply the letter of new paragraph (o) such that most religious DVDs, including DVDs of religious services, find themselves having to be rated, the Government will then amend the legislation?

16:14

[Lord Clement-Jones (LD)]

My Lords, I thank my noble friend for his introduction to the regulations. Over the past 30 years, the Video Recordings Act 1984 has certainly attracted parliamentary debate on a number of occasions. As noble Lords will recall, the Act had to be revived by a special Act in 2010 because of the then Government failing to notify the European Commission of the classification and labelling requirements of the Act.

I welcome these regulations but want to reflect briefly on the process by which they came about. Many of us present today were assured during the passage of the Digital Economy Bill that the situation of exempted works which contained unsuitable material would be dealt with by amendments to the Act. Indeed, we withdrew amendments on the basis that that would happen. Then the coalition Government came in and I asked an Oral Question about progress in March 2011, but it was made clear that the consultation had still not begun. Lack of an evidence base was cited as the reason.

In June 2013, my noble friend Lord Storey pursued the matter further in an Oral Question. The consultation had, it seemed, been completed and the intention to legislate had been recently announced but my noble friend Lord Gardiner said that definitions were still being formulated for violent sexual behaviour and swearing,

“so as to ensure that they identify all products that are unsuitable for younger children”.—[Official Report, 12/06/13; col. 1596.]

Finally, four and a half years after the passing of the Digital Economy Act, these regulations, which amend the 1984 Act, see the light of day. As I say, I warmly welcome the regulations, and the fact that they will fall within the BBFC classification regime, but how can we account for this snail’s pace of legislation when faced with such an important issue? How can we learn the lessons? Moreover, where are we with the original Digital Economy Act changes to the VRA regarding video games? Is it the case that certain sections still remain to be activated and amendments made? That certainly seems to be the case. If that is so, why?

My noble friend mentioned the online situation but, of course, that is on a voluntary basis. Will my noble friend explain the corresponding regimes that apply to videos and video games on the internet? I asked my noble friend Lord Gardiner a Question on this in March this year. Surely, is it not as important that online content is addressed, as physical product is under the VRA? Under voluntary arrangements, mobile operators are offering better protection and filtering against unsuitable content than wi-fi service providers. Is the DCMS capable of addressing this issue at any speed? How long must we wait before the Government review the situation? Can we not speed up the process and learn the lessons of the past?

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been a very interesting and important debate, although a relatively brief one. Many important points have been made to which I am sure the Minister will respond.

I broadly welcome the direction of travel represented by these regulations but have some questions and reservations which I am afraid are slightly at variance to those we have heard already. I worry a lot about restrictions being introduced on another creative activity even though I understand the dangers that may be exposed by that, but it is important that we bear that in mind.

First, we are exercising censorship of what may appear in front of people who wish to buy it, albeit it is obviously a restricted class, through a private company—the BBFC. I am not sure that we quite understand what the relationship between the BBFC and the Government is at the moment. It has changed a lot in the last 20 or 30 years since I was last involved in it. If the Minister has the information to hand, will he reflect on such matters as whether there is a formal memorandum between the Government and the BBFC in terms of their operations? Will the Government exercise control over the appointment of its board and other related matters? It is important to have that in context so that we understand the impact that these regulations may have. I have a general concern that the Government should not expropriate functions and responsibilities which should be exercised through Parliament to private corporations without providing serious reasons and explanations.

Of course, noble Lords will recollect that the 1984 Act was passed at a time of particular concern about videos. I think that the term “video nasty” was widely used. The regulations that were brought out were perhaps a reaction and, in some senses, account for why the BBFC is in its present form. However, times have moved on. As I will come to in a few minutes—and as referred to by other speakers—we have to be sure that what is being proposed now has a fitness and longevity that will be appropriate for the fast-changing nature of the technology which it is attempting to arrange.

I was glad to hear that the Government will be reviewing these regulations within three years. As the Minister said, that is a good thing, although a number of the points and questions raised by noble Lords already suggest that some of the issues are more important and might need more attention before then.

My first point, therefore, is about the status of the body that is being entrusted with the regulations that we are considering. My second point concerns the question of format. We are talking about video material in physical form. The impact, perversely, is largely on the purchasing decisions of people who are under 12, given that that, to a large extent, is the focus of the regulations. My personal view is that a very small number of citizens of this country who are 12 or under are going to be purchasing the videos we are talking about. I am interested to know whether the Minister has any figures relating to the likely impact on the market. If it is anything like what happens in my household, these children are much more adept at the virtual world and will be seeking out the information they wish and the material they want to watch in a non-physical form. We have talked about that issue; we still lack any real, credible strategy in relation to it. This particular set of regulations, although long promised and arriving at an interesting time, is in fact missing the boat in relation to where the majority of the viewing public are going to be—certainly those under 12.

My third point concerns the question that has been raised to some extent by the problem of the wording of the regulations, which seek in a curious way to specify the carve-out, not by putting down a simple principle about what would and would not be considered, but by listing in exhaustive detail the sort of things that would create a break across the various guidelines.

In its briefing for this meeting, the BBFC made it very clear that it was concerned that there was no blanket requirement that all video in physical form should be subject to BBFC review. It has a point and I would be interested to know on what basis the Minister has decided—I think I am right, but, again, I would be grateful if the Minister could confirm it—that the onus for submitting material to be classified will still lie with the producers of the material. Therefore it is possible that those who are producing material that perhaps is veering towards the boundary of the 12 certificate may take a view that the material does not fall within the new, enlarged carve-out. Would that constitute a defence in any court proceedings that might be brought forward as a result? The guidelines are only guidelines. The discrepancy between what the BBFC is saying and doing in practice and what is now going to be in the regulations in paragraphs (a) to (o) is going be a problem, not least because the BBFC—rightly so, although the timescale is slower than I would have liked—tries to keep in touch with the views of the public it is serving by carrying out triennial surveys and consultation with people about whether the guidelines it is currently using need to change and, if so, to what extent.

The regulations contain a set of statements, some of which, as has been said, seem to be rather loosely drafted. The noble Baroness raised the question of religion, but some of the drafting concerning sex and violence is equally culpable. Yet we will also have, by the time these regulations are in mid-flow, a new set of guidelines from the BBFC about where it thinks the boundaries of the 12 certificate are going to be. Can the Minister explain how we are going to reconcile that change?

It is perhaps not as important an issue in reducing the threshold from 18 and R18 to 12, but it is well known in the world of classification that, in Britain, we have an obsession with language, which is in stark contrast with, for example, the Nordic countries, which have a very different view of these matters. We are relatively relaxed about physical violence and a bit squeamish about explicit sexual activity, including sexual violence. It is almost the reverse situation in the Nordic countries. A lot of this will lie in education. The real remedy to this issue is making sure that parents take responsibility for what their children see and understand, and talk to them about what they do. To take examples from the list (a) to (o), how on earth are people to judge whether something includes,

“words or images intended or likely to convey a sexual message (ignoring words or images depicting any mild sexual behaviour)”—

a point picked up by the noble Baroness, Lady Howe? How are they to judge whether it affects,

“an animal that exists or has existed in real life”?

How far back do we want to go? The same goes for whether a human is being represented in proper description or in matchstick format. These can be very trivial or very difficult matters and should not take us away from the importance of making sure that children are not unreasonably exposed to images that they should not receive. On the other hand, I think that there are ways of doing it. It might have been better if the approach taken had been to try to work with what the BBFC has published as its principal guidelines without attempting to define them in a way that is bound to cause trouble.

Those were my three points, but as I said at the start of my speech, I am not against the direction of travel. I shall look forward to hearing the Minister’s response.

[Lord Bates]

My Lords, I am grateful for noble Lords’ comments and questions. Once again, we find an instrument that drifted through the other place with the mildest breeze of comment and scrutiny coming up against the deeply entrenched expertise that your Lordships’ Committee has shown today. I counted some 16 specific questions that noble Lords asked me to address. I shall do my best to do that, but I suspect that I will need to write, because a considered reflection might be useful and a fair response to the legitimate concerns that have been raised here today.

Let me go through as many of the points as I can, so that we might get at least some comments on the record. As I say, I shall write to noble Lords and expand on them. The noble Lord, Lord Stevenson, asked whether distributors would understand the definitions well enough in deciding whether to submit a product to the BBFC. The definitions are fairly detailed. Terms such as “mild” are long-standing features of the BBFC’s classification guidelines and are familiar to many video distributors and consumers. To help further understanding, the BBFC is preparing new guidelines specifically for industry, which will include clips from previously classified films to illustrate how definitions might be interpreted.

On the nature of the relationship between the Government and the BBFC, the BBFC is designated by the Secretary of State to classify video works. It is an independent body, but it is required to make an annual report to Parliament. Many noble Lords have welcomed the review after the regulations have operated for three years as being a sensible way forward, so that we might see from day-to-day experience whether fears are borne out in practice. Corrective action can be taken at that point.

Under the regulations, music, sport and education-related themed products will lose their exemption. This was the area that many noble Lords focused on. The latest guidelines issued by the British Board of Film Classification were produced after a major consultation exercise involving over 10,000 people. The listing, categorising and wording reflect what came forward from the consultation process.

16:30

The noble Baroness, Lady Howe, asked about definitions and particularly the word “mild”. I appreciate that we are going into legal definitions, which will be tested in due course, but, again, there is a well established definition of what, for example, “mild sexual activity”, “mild sexual behaviour” or “mild violence” might mean in film classification. It was to be expected that that definition, which is already in place, would continue to be used as a matter of course for implementing these regulations.

I pay tribute to the noble Lord, Lord Alton of Liverpool, for his long-standing work in this area and for his expertise on suicide issues in particular. This is exactly the type of material that we need to bring within the ambit of such regulations. He asked what actions the Government are taking to tackle online material about suicide methods. The Government’s suicide prevention strategy reflects concerns about the misuse of the internet to promote suicide and suicide methods. We are committed to working with the internet industry to provide positive access to people who are contemplating suicide or visiting these sites. The industry has worked on positive sites in this area, such as through Google and Facebook collaborations, focusing on particularly vulnerable people.

My noble friend Lord Clement-Jones asked what we were doing about online material. The Video Recordings Act applies only to physical recordings such as DVDs, Blu-ray discs and VHS tapes. The market for hard-copy video is still significant, but we are also committed to ensuring that parents have the information that they need about video content that their children may access online. The Government are working with the industry to ensure that more online videos are age-labelled, using, for example, the BBFC’s voluntary online classification process. Indeed, we hope that that process will also reduce the costs of obtaining these classifications, which was a concern raised by the noble Lord, Lord Alton. Currently 30 online platforms, including iTunes, Netflix and Microsoft, use this.

My noble friend Lord Clement-Jones also asked about the delays. Particularly in the context of videos games, the law requires that all video games unsuitable for younger children must be classified by the relevant designated classification body, the Video Standards Council, which is also known as the Games Rating Authority. The Government brought this law into force in 2012, since when all games unsuitable for younger children must have a 12, 16 or 18 rating. It is an offence for retailers to sell a PEGI-rated game to someone who is not old enough to play it.

My noble friend also asked about internet service provider family-friendly filters. These are well advanced with BT, Sky, TalkTalk and Virgin Media, which together constitute almost 90% of the UK’s broadband market. They are now all providing family-friendly network-level filtering to new customers. The ISPs are committed to rolling out this filtering to all existing customers throughout 2014.

[Lord Alton of Liverpool]

Can the Minister tell us how many children comprise that 10% who are not covered by the filtering at present? What is the actual number? Also, when do the Government intend to bring forward measures to make compatible these various criteria for offline and online? How long must we wait for that to happen?

[Lord Bates]

The noble Lord asks a very pertinent question, but I do not necessarily have the numbers at my fingertips to be able to provide him with the pertinent answer. I will endeavour, after the Committee, to get some further information on that.

My noble friend Lord Clement-Jones asked why this took so long. This was a long process because of the consultation. I understand that we are getting some criticism from colleagues who say, “Have you actually got this right? Have you actually talked to people? How is this actually going to work in practice?”. However, we also get criticised for taking too long because we are consulting too much. This is always a difficult balance to get right, but we totally understand the point about promises that have been made in the past and need to be honoured. These measures are doing that and, we hope, doing it in a way that is actually going to work.

The noble Baroness, Lady Howe, asked whether the condition in new paragraph (o) in the regulations is set too low. The industry, child protection organisations and other organisations supported the regulations, including the definition in new paragraph (o) as drafted. The Government will monitor how the regulations work in practice.

The noble Lord, Lord Alton, asked why we cannot refer to BBFC guidance. Section 2A(6) of the Act allows regulations to refer to guidance when it comes to conditions relating to video games. We do not have a similar power in respect of guidance for video works, which these regulations address.

Also on new paragraph (o), as with sport, music and educational products, video works primarily about religion will lose their exemption from classification only if they contain any of the material set out in the regulations. It will be for the BBFC to determine how they should then be classified. The BBFC is already experienced in making classification decisions about religious themes—for example, when they appear in films. The noble Baroness, Lady Howe, asked whether people might take offence at hymns et cetera. I accept that the question needs to be addressed, but I cannot quite see that BBC box sets of “Songs of Praise” are necessarily going to come within the ambit of the Act. However, again, we have to be careful with the wording to ensure that that does not happen, that we catch the material that we want to catch and that we do not inhibit the excellent material that we want to see more widely viewed.

The noble Lord asked whether the BBFC guidance is inconsistent with new paragraph (o). The BBFC guidance applies in respect of those works that it is to classify, while new paragraph (o) applies in deciding whether a work should be classified. If a work is caught by the condition, BBFC guidelines will then be applied to decide, on objective grounds, what classification it can be given, including, for example, U.

I have tried to respond to most of the questions that have been raised and I again thank noble Lords for sharing their expertise and their concern to ensure that these regulations work in practice as they are intended to do. I undertake to write to noble Lords with further reflections on the points that have been made. With that, I commend the regulations.

Motion agreed.

Equality Act 2010 (Equal Pay Audits) Regulations 2014

Monday 28th July 2014 Grand Committee

Motion to Consider

16:40

Moved by

[Baroness Northover]

That the Grand Committee do consider the Equality Act 2010 (Equal Pay Audits) Regulations 2014.

Relevant document: 7th Report from the Joint Committee on Statutory Instruments

[Baroness Northover (LD)]

My Lords, I am pleased to present these draft regulations to the Committee. They are intended to ensure that employment tribunals require employers who have breached equal pay law to carry out an equal pay audit.

These regulations are needed because, despite the introduction of equal pay legislation in the 1970s, there remains clear evidence of a persisting pay gap between men and women. Our concern is that a certain proportion of this disparity is due to the unlawful pay practices of some employers. Although there has been welcome progress, the Government believe that there is still more to do to help women move towards overall pay parity with their male colleagues. The key to this is continuing to build on the voluntary initiatives that we have introduced, coupled with greater transparency and backed where appropriate with tough measures to hold to account those employers who have been found to have flouted the law, whether knowingly or not.

That is why from 1 October, subject to parliamentary processes, we propose that where an employer has been found by a tribunal to have breached the equal pay or pay-related sex discrimination provisions in the Equality Act 2010, he or she will, by virtue of Regulation 2, be subject to a requirement to conduct an equal pay audit. The regulations contain certain exemptions and exceptions to this requirement, which I will explain shortly. Once undertaken, the results of an audit will enable the employer to identify any action that needs to be taken to prevent equal pay law breaches from continuing or recurring. Moreover, to ensure that this is a transparent process, under Regulation 9 the employer will also be required to publish the results of his audit. This will afford affected employees the opportunity to view the results and consider further action, where it is warranted.

The legislation providing for equal pay between men and women who do the same or equal-value work for the same employer has been in force since 1975. According to statistics published in December 2013 by the Office for National Statistics, the overall median gender pay gap still stands at 19.7%, although this is considerably lower than the figure of 25% 10 years ago. The overall figure does not tell the full story, however. For women under 40 who work full-time, the pay gap has all but been eliminated, but for older women, many of whom take career breaks in order to bring up children, the disparities in pay with their male colleagues become more marked. That is also true for part-time workers.

We are taking a wide-ranging approach to addressing this challenge. For example, we are promoting greater transparency on gender employment issues through banning pay secrecy clauses and promoting “Think, Act, Report”, a framework that encourages employers to think about gender equality on key issues such as recruitment, retention, promotion and pay—it currently covers over 2 million employees in more than 200 leading companies. We have also extended the right to request flexible working to all employees from this year and will be introducing a system of shared parental leave from 2015. Both these measures allow more women to remain at work and so avoid falling behind in pay terms. We have strongly promoted the work of the Women’s Business Council, we have implemented the work of the noble Lord, Lord Davies of Abersoch, on women on boards and from 2015 we will introduce tax-free childcare for working families.

The Committee will, I hope, therefore recognise that the Government are working in many ways to promote greater equality and tackle discrimination in the workplace. However, in cases where unlawful pay discrimination still persists, the regulations before the Committee represent a further important addition to our work.

These regulations will ensure that employers found by an employment tribunal to have broken equal pay law undertake a systematic evaluation of their pay and reward systems to ensure that existing breaches do not continue and that future breaches do not occur. The regulations provide that an equal pay audit should identify any differences in pay, including non-contractual pay, between men and women doing the same or equal work in the organisation.

16:45

Under Regulation 6, should differences in pay be discovered that cannot be explained or justified other than by reference to the gender of the employees, the equal pay audit must also include an action plan for eliminating those differences. However, we have also included safeguards in Regulation 3 to ensure that employers are required to undertake equal pay audits only when it is appropriate to their particular circumstances.

Therefore, under Regulation 3, employment tribunals must not order employers to carry out equal pay audits when any of the four exceptions set out in the regulations apply. These exceptions are, first, where an employment tribunal considers that an audit completed in the previous three years meets the requirements set out in the regulations. An example of this might be where an employer has, within three years of the tribunal’s finding of a breach, undertaken a voluntary audit that contains all the information that would be required under Regulation 6.

The second exemption is where it is clear without an equal pay audit whether any action is required to avoid equal pay breaches occurring or continuing. An example would be where all the jobs in the employer’s organisation are clearly graded and where the information about the employer’s grading and pay system is available to all employees who wish to see it.

The third exemption is where the breach gives the employment tribunal no reason to think that there may be other breaches. This could be where the employer has transparent pay systems and policies and it is clear to the tribunal that the breach is a one-off, rather than a result of systemic practice on the part of the employer.

The fourth exemption is where the disadvantages of undertaking an equal pay audit outweigh the benefits. An example of this could be where the tribunal accepts that the employer is in financial difficulty and the cost of undertaking the audit could send the employer into liquidation.

We do not want the audit to be ordered when any of these four situations apply. In particular, we want to ensure that employers who have already taken action to put in place robust and compliant pay structures are not forced to duplicate this work. Under Regulation 4, the requirement to carry out an equal pay audit will also not apply to employers whose business is a micro-business or a new business. We believe that it is right that new and micro-businesses should initially be shielded from a requirement to undertake equal pay audits. This 10-year exemption period recognises that a fledgling or very small business might be disproportionately affected by the costs of having to do so.

For the purposes of these regulations, a micro-business is a business with fewer than 10 employees immediately before the date on which the employment tribunal determines that the employer is in breach of equal pay laws. Businesses will be exempt from these regulations as long as they employ fewer than 10 people on the day before the equal pay judgment is made.

A new business is a business that has been trading for 12 months or fewer on the day the equal pay claim is made to an employment tribunal. This exemption will apply only when the business is 12 months old or less on the day the equal pay claim is made. I should make it clear that this does not mean a 10-year get-out for every employer not covered by the regulations at the outset. A micro-business would continue to benefit from this exemption only as long as it remains a very small enterprise, while a new business will of course lose its protection after 12 months.

While the schedule to these regulations sets out the definition of micro and new businesses in more detail, I should note for the benefit of the Committee that the Joint Committee on Statutory Instruments has reported that the regulations require further explanation of the definition of a business relating to these exemptions, in particular a situation where what might appear to be a micro-business is in fact part of a larger business consisting of linked enterprises. I thank that committee and the Secondary Legislation Scrutiny Committee for the thorough and expert consideration that they have given these regulations.

In response to the JCSI’s comments, I reassure the Committee that we believe it should be sufficiently clear to a tribunal, based on the facts of each case, as to what would constitute a separate business. I hope that it will also reassure noble Lords if I point out that, if a business thinks that it has been ordered to undertake an equal pay audit when it fact it should have been exempt because it was properly a micro-business, it can, of course, appeal the tribunal’s order. Moreover, no very small business will be at risk from these regulations if it observes the law and operates in line with equal pay requirements.

After an equal pay audit has been ordered by an employment tribunal and completed by the employer, Regulation 9 requires the employer to publish the results of the audit so that it is accessible to the staff to whom the audit relates. This must be done by publishing the audit result on the business’s website. Under Regulation 9(5)(a), the employer will also be required to provide the employment tribunal with evidence that they have complied with this requirement. Should an employer fail to comply with an order to carry out an equal pay audit, employment tribunals have the power under Regulation 11 to order employers to pay a penalty to the Secretary of State, which must not exceed £5,000. Regulation 11(2) also provides employment tribunals with a further power to impose subsequent financial penalties on employers that do not undertake their audits or whose audits are not signed off by the employment tribunal. These penalties can be repeated until such a time as the employer fully complies with the tribunal’s equal pay audit order.

In terms of financial implications for business, our analysis of employment tribunal figures over recent years indicates a downward trend in equal pay claims that are successful after a substantive employment tribunal hearing. Based on these figures and taking account of the exceptions and exemptions contained in the regulations, we have estimated that an average of only two or three equal pay claims a year are likely to result in the imposition of an equal pay audit order. This means that the overall upfront cost to business of these regulations is likely to be low. The average cost of conducting an audit by a medium-sized employer has been estimated at around £13,000, so if three audits were ordered in a year the appropriate cost to business would be less than £40,000. It is important to point out that this cost will fall only on those employers who have been found to be in breach of the law. Law-abiding employers will not have to bear this burden. Our assessment of costs has been validated by the Regulatory Policy Committee.

We do not intend to publish new guidance on equal pay law or on how to conduct an equal pay audit. This is because a substantial amount of information and advice is already available for employers on both these topics; we do not want to replicate what already exists. The Equality and Human Rights Commission has published a statutory code of practice on the equal pay provisions in the Equality Act 2010. It has also published guidance on how to carry out equal pay audits, including a toolkit to aid employers wishing to conduct such audits on a voluntary basis. Moreover, the EHRC has recently published two new guidance documents on gender-neutral job evaluation schemes, which will assist employers’ understanding of the essential requirements for job evaluation schemes. In conjunction with the British Chambers of Commerce, the EHRC has also produced a quick-start guide to providing equal pay.

In conclusion, achieving transparency in pay systems is crucial to ensuring that male and female employees who do the same or equal-value work for the same employer are paid the same rate for the job that they do. These regulations and the message that they send to employers are a significant means of bolstering pay equality in the workplace and providing a further impetus to the steady, long-term reduction in the gender pay gap. I commend these regulations to the Committee.

[Baroness King of Bow (Lab)]

My Lords, today will see a coach and horses arrive in Parliament. That is not so unusual, but on this occasion I am sad to say I fear it will ride through the spirit of the law on equal pay. The Equality Act 2010 was a landmark piece of legislation that simplified, strengthened and extended protection from discrimination.

As we know, one of the most persistent areas of inequality, first addressed over 40 years ago, is the gender pay gap. The Equal Pay Act 1970 sought to remedy the fact that women were systematically paid less than men. However, instead of it narrowing, last year the gap actually widened slightly, by 0.1%. The figure might seem small, but not only are we riding in entirely the wrong direction, but we are witnessing significant hidden regional and sectoral variations. In London, for example, women are now paid 13% less than men, while across the UK women in full-time employment in the private sector are paid a staggering 19.9% less than their male counterparts.

Against this backdrop we need firm leadership from the Government. Given the Government’s pronouncements on equality, I was hoping they would take all the measures necessary to address what I am sure everyone here recognises is blatant discrimination in the workplace against women. After all, this gender discrimination also impacts hugely both on the children who women care for and pensioner poverty once those women retire.

Reading through the regulations we are debating today shows this clearly is not the case. In effect these regulations turn a blind eye to many breaches of equal pay. Let me set out exactly why I feel this is. Equal pay audits are an extremely important mechanism for bringing the gender pay gap to light. Essentially, where companies have broken the law and a tribunal orders an EPA, the lights get switched on and for the first time everyone can clearly see what is going on. Cloaking pay structures in darkness—which is one of the reasons this problem has dragged on for so long—does nothing to solve the problem. It just increases a company’s liability at some future employment tribunal. The best companies carry out voluntary EPAs. Most, however, do not.

The Government have set out circumstances in which an audit must not be ordered and the Minister set some of them out. According to Regulation 3(1)(d), this is where,

“the disadvantages of an audit would outweigh its benefits”.

However, this wording is so broad it gives employers a blank cheque to argue that an EPA would, on balance, in their view, be disadvantageous. There is no guidance, as far as I am aware, on how the disadvantages and benefits are to be assessed. The disadvantages put forward by an employer are likely to be cost-related and, if you look at what has happened to date in employment tribunals, employers are, unfortunately, likely to exaggerate the costs of doing an audit. Quite often we find that employers who have broken the law portray employment legislation as dastardly red tape. Where the costs of doing an audit are significant, it is likely to be because there is a high risk of equal pay breaches. This in turn is due to no transparency in pay, no clear and up-to-date job role profiles, no method for assessing where jobs are of equal value and no clear reasoning or objective systems for determining pay.

In other words, there is no proper management, no transparency and no accountability. Of course, this will make identifying differences in pay for those doing equal work—as well as the reasons behind those differences—particularly difficult to work out. This is the real world, so I would be grateful if the Minister could give us some real-world examples of the circumstances covered by Regulation 3(1)(d) when a company is saying that the disadvantages will outweigh the cost. The Minister gave us one example, I believe—for instance, where a company feels that the cost could push it over the edge and make it bankrupt.

However, I really must interrogate this cost issue a bit further. The Government are exempting micro-businesses and new businesses, because this is a burden, again presumably mainly on the grounds of cost. The TUC argued against any such exemption—of course, we would expect that—but its argument is extremely compelling. It argues that the right to equal pay applies regardless of the size or age of the business. Surely this must be right. Think about it if we were talking about black people. Can you seriously imagine the logic of saying, “It’s not fair to pay black people less than white people for work of the same value, therefore we won’t allow big business to get away with it, but small business can’t be burdened with equal pay legislation, so if they break the law we’ll just leave it at that”? It is absurd and simply does not hold water.

The Equality and Human Rights Commission has even produced guidance on how to do equal pay checks for small businesses. The EHRC estimates that for a business twice the size of a micro-business—that is, one with 20 people and, say, five job roles—an EPA will take half a day to carry out. For a micro-business half that size, we are looking at about two to three hours’ work. If you are talking about a business with three or four employees, it would be even less—you could be talking about one hour’s work. How hard is it to get out five pay cheques and look at them over a year along with the job descriptions? It is frankly not good enough to say that this is a burden on anyone.

17:00

But, obviously, it is a burden on women. Over a lifetime, the pay gap burden for women in full-time work stands at £361,000. The Government’s foot-dragging might be less worrying if we were making swift progress. Last Friday’s headline in the Evening Standard was “Pay gap widens”. This has been going on since 2010. UK women are now missing out on an extra £177 a year in their pay packets because we are no longer under this Government making the same rate of progress to close the gender pay gap as we made under the last Government. On gender issues in general, the UK ranks 18th in the world behind the Philippines and Nicaragua. Within this context, I really would appreciate a bit more urgency. We need to close loopholes in the law, not widen them. That is why I say a coach and horses seem to be in sight.

The regulations mean that a micro-business—that is, a business employing fewer than 10 people—that has broken the law on equal pay will not have to do anything to remedy it and prevent it from happening in future. A large number of women in the private sector will be in such micro-businesses, and the private sector is where the largest gender pay gap remains. The regulations therefore do nothing to improve the situation where the biggest problem persists.

Regarding different sectors within the same business, the regulations also do nothing to remedy the gender pay gap. A bank is likely to have women in call centres on low pay, but the same bank will treat its corporate services separately, where pay is higher even for low-skill jobs. For example, it will most likely pay its security guards in Canary Wharf more than women working in its call centres. It might audit both sectors but without comparing the EPAs, so the gender pay gap remains neatly hidden. Again, this does nothing to improve things or take us in the right direction. It feels to me as if it is going against the spirit of the law which the Government say they support.

Let us look at the public sector equality duty from the same Act. The Equality and Human Rights Commission has responsibility for enforcing this and was putting together a statutory code of practice, but, as the House of Commons Business, Innovation and Skills Committee highlighted in its report Women in the Workplace, it has been prevented from doing so because the Government feel that further statutory guidance may again be too much of a burden—this time on public bodies. We are concerned with all these poor, burdened organisations—public bodies, small businesses—yet we are not really tackling the underlying issue that women in Britain today in the private sector are still paid 19.9% less than men.

I have a few more questions. The House of Commons Business Select Committee, a cross-party of group of MPs, states:

“The Government should give a clear statement of support for the EHRC in exercising these duties”.

That is the general problem that we have: there is no clear statement of support; there is no clear help to move us in the right direction. Either this SI is not written clearly or it is setting out to obfuscate matters. I am not the only one saying this. The Minister mentioned that the Joint Committee on Statutory Instruments drew the SI to the special attention of the House, saying that the regulations “require elucidation”. Yes, they really do.

I mentioned the issue around definitions of different operations and what counts as a single business and what is deemed part of a bigger business. It would be helpful if the Minister could write to me and set out what the situation is, for instance, for the financial sector business where you have low-paid women in call centres and security guards who may be earning more. How that does that play out under the regulations?

I thank the Minister for the explanation that she provided. The last few areas I want to ask the Minister about concern, first, financial penalties. The financial penalties for not carrying out an audit are frankly risible. The sum of £5,000 is very small when compared with a potential equal pay liability of a large employer that has repeatedly failed to address the discrimination in its pay systems or pay practices. We have seen that from some of the large equal pay settlements against some public sector employers in the last decade or so, which often ran into the millions. So how is £5,000 going to make a difference? Why was the maximum not set at a higher level and employment tribunals given discretion, depending on the individual circumstances, to impose a penalty that fitted the scale of both the business and the potential equal pay breach?

Can the Minister also tell us how many orders she expects to be made each year? I was told—I am sure that this cannot be true; perhaps she can enlighten me—that it might be fewer than 10. We are really talking about a tiny number. We are talking about the equal pay claims that get through the tribunal system that win and, even at that point, when the employer has been found to be in breach of the law, we are looking for ways to get them off the hook. I implore the Minister to see whether she can give us any more assurances on this area, because as the regulations stand they will have a limited effect on reducing the gender pay gap. In fact, they may not have any effect, if all these loopholes remain in place.

Can the Minister also remind us where we are on implementing Section 78 of the Equality Act—that may well have been done; I am not saying that sarcastically —or on removing the need to retain the power in Section 124(3)(b) of the Equality Act, which would enable employment tribunals to make wider recommendations? It is all about trying to take more action to get a better result in the context that Britain is slipping backwards on this issue.

In conclusion, if the Minister is really committed to ending pay discrimination against women—and I am certain that she is—can she tell us what earthly justification there is for a 10-year exemption period for micro and new businesses? Can she review that decision? Let us remember that the EPAs are good for business: they mitigate future liability and increase retention rates. In micro-businesses they can take as little as one hour to complete. Let us remember, too, the most fundamental point of all. Every employer in Britain is required to pay equal pay. No employer, large or small, should be breaking the law simply because a woman does the job. I hope that the Minister will be able to reassure us that this is not a retrograde measure to exempt smaller businesses from equality law, because if it were—and that seems to be where the regulations are heading—that really would be a backward step.

[Baroness Donaghy (Lab)]

My Lords, I think it was 10 years ago that I sat on a Government working party chaired by Bob Mason to see how we could make the Equal Pay Act more effective. Central to the recommendations that we made were equal pay audits and the importance of having a transparent pay system. We estimated at the time that it would take about 50 years to obtain equal pay. I looked carefully at the Explanatory Notes for this particular regulation and I thank the Minister for pointing out that the gaps still are very serious. In the build-up the Explanatory Notes accept that the issue of equal pay has an impact on economic growth. It goes on to say that the Government intend to do something about it in these regulations, so I got terribly excited. But then I looked at the impact assessment, which estimates that an average of two equal pay claims will be brought each year. The Minister was so embarrassed by that that she said “two or three” would be brought. As I say, it is estimated that an average of two or three equal pay claims a year may result in the imposition of an equal pay audit order—that is out of 23,638 equal pay cases that were brought in 2012-13. That really is a nut to crack a hammer, is it not?

It is important that the Government realise what message they are giving out about topping and tailing the issue of equal pay for women. We have the noble Baroness the Leader of the House who does not yet enjoy equal pay and we are now to have small businesses and new businesses possibly not being followed up through the law. That sends the wrong signal about equal pay. Will new businesses include those that start up again after bankruptcy, and will there be any qualifications around that? Some companies seem to make quite a habit of that. They start up anew when it suits them. It is important to know what the impact will be on so-called new businesses which are really only starting up again under a different name. Further, does the Minister really think that these regulations will do anything to narrow the pay gap? I have my doubts when the estimate is an average of two cases per year.

[Baroness Northover]

Well, my script says that I am very grateful to all noble Lords who have contributed to this debate, which has been so constructive and considered. However, I can then go on to say that we have been clear, as have all those who participated, that paying women less than men for doing the same, similar or equal value work is totally unacceptable and therefore must be tackled head on. If women are ever to realise their full potential in their chosen career, they must be paid the same as their male counterparts. We believe that these regulations are an important step in the right direction. They will ensure that employers who have been found to have breached equal pay requirements have transparent pay systems where hitherto they have not.

I shall turn to the various questions which have been put to me by noble Lords to see if I can answer some of them. I will follow up my remarks in writing if I do not cover them all. I start by addressing the contribution of the noble Baroness, Lady King. She quoted the figures that were used by the noble Baroness, Lady Thornton, in an Oral Question on 25 June. We had a little discussion back and forth. The previous Government, like this Government, rely on a particular set of figures from the Office for National Statistics published in the Annual Survey of Hours and Earnings. The previous Government and this Government share the view that these are the most robust figures. On the basis of those figures, there is not the falling-off that the noble Baroness, Lady King, mentioned.

There are problems with the set of figures that the noble Baroness, Lady Thornton, and now the noble Baroness, Lady King, have used in the sense that they are not as comprehensive and they are self-reported, whereas the other figures are derived from PAYE and HMRC information. There are very good reasons why the previous Government and this Government both use the ONS figures. However, if one uses the figures referred to by the noble Baroness—I have asked my noble friend Lady Jolly to print out for me what I was given before—one of the things I find quite striking is that the noble Baroness mentioned that pay for women working full time fell by 0.1% for the quarter. These quarterly figures fluctuate considerably, so that the previous quarter saw a 0.4% rise. I do not claim that that is a true representation of the situation because I do not claim that the 0.1% fall is a true representation of the situation any more than would the previous Government, under which the noble Baroness was the Minister. They, too, would not have decided to use this particular set of figures. I know that her colleagues in the other place quoted them, but I suggest to her that she looks again at the Office for National Statistics figures and works out the ones that she should rely on.

17:15

[Baroness King of Bow]

I thank the noble Baroness for raising the subject of statistics. For the sake of clarity, I should say that the figure that I gave of 0.1% was for last year, 2013, and not the last quarter. However, I will go away and verify that, although I got it from two different sources. In general, could the noble Baroness tell us whether she feels that we are moving in the right direction in terms of the gender pay gap?

[Baroness Northover]

The figure that the noble Baroness gave was actually for the last quarter, as she will probably find out when she investigates.

One thing that I find striking and encouraging is that the gender pay gap between men and women under the age of 40 who are working full time has narrowed considerably. The difference in the gender pay gap is for those above that age and those working part time. One reason why there is a major difference in part-time work is the type of work that men and women are in. We know that equal numbers of kids are going through school and that often girls come out better qualified. More are going to university, but they are grouping in different subjects. Some of those subjects lead to better-paid careers, which is something that we, like them, seek to address—I am referring to the STEM subjects.

The most important thing is the caring responsibilities that women often have, which is why you start to see this difference as you go through life. That is why in some ways it is quite encouraging to see that the gender pay gap has narrowed so much for those up to the age of 40, although we need to do much more to make sure that that carries on through.

[Baroness Donaghy]

I apologise to the noble Baroness, but I just wanted to query the impact on workers under 40. It might sound like good news, but it might be because men are being paid less in this low-wage economy. Does the noble Baroness have any more information to reassure us on this point?

[Baroness Northover]

I think that the noble Baroness would be reassured by the progress being made in this regard. I will probably need to write to her with the details but, again, I looked at this and I did not see the negative trends that she may be hinting are there. I will write to her and clarify that.

I am glad that the noble Baroness, Lady King, welcomes the audit. Obviously, that follows on after cases have been lost by employers. She is quite right, as is the noble Baroness, Lady Donaghy, to emphasise that it is in the interests of the companies and for the health of the companies to make sure that their employees are paid fairly between the genders. If they are not, there will not be a happy and effective workforce. I think that forward-looking companies recognise that now; indeed, they should recognise that it is in their own interests to make sure that this moves forward. If they lose such cases, they need to take action to put it right.

The kind of pay audits that we are talking about help to shine the spotlight that the noble Baroness mentioned on this. She mentioned the exceptions and seemed to imply that a company could say to the tribunal, “We can’t afford to do this”. I hope that she will be reassured by the fact that the tribunal, not the company, decides whether there are reasons for exemptions. I hope that I illustrated, in listing the four cases where there might be an exemption, how tightly drawn that is. I gave an example in each case of the kind of thing that we are thinking about there. Clearly, if they persist—suppose that they said they were about to go bankrupt and the tribunal thinks that that is the case, but then another case is brought and it turns out they had misled them—they are obviously in a much weaker position.

I reassure the noble Baroness, Lady King, that new businesses only have that exemption for the first year, not for 10 years. She grouped them together, but the committee asked for further elucidation about micro-businesses, which I hope that we have provided.

[Baroness King of Bow]

Before the noble Baroness moves on, as I understand it, micro-businesses and new businesses will be exempt for 10 years.

[Baroness Northover]

No, I will clarify that. As I understand it—I am sure I will be corrected if this is not the case—new businesses are protected for one year only. Micro-businesses are protected, potentially, for 10 years, but providing that they remain micro-businesses. I hope that clarifies the position. I take it the noble Baroness would rather that is not the case, but that is the settlement we have reached on this to try to ensure that micro-businesses do not have disproportionate burdens placed on them. However, they are obviously still subject to the law, and their employees are protected by the law. We are talking here about whether the audit would follow the loss of such a case.

The noble Baroness thought that the penalty of £5,000 should be much higher. The penalty is specified in primary legislation, so we cannot impose a greater penalty in the regulations which follow on from that. It derives from the Equality Act 2010, which she no doubt played a part in, as did the noble Baroness, Lady Thornton. When the Enterprise and Regulatory Reform Act inserted this penalty into that Act, the party opposite did not oppose it.

[Baroness King of Bow]

Would the noble Baroness then agree that we have all got it wrong? Surely it does not make sense for the penalty to be less than the cost of continuing the breach.

[Baroness Northover]

We will all, no doubt, be monitoring this to see what the effect is. One of the things which happens to a greater extent these days is that people put information about the place they work on social media. This is not the kind of thing which any company wishing to attract talent wants to have flagged among potential employees. Nobody will want to head down the route of losing equal pay cases, and they will certainly not want to have an audit thereafter which shows further challenges within the company. I am sure that we will all monitor this to make sure that it is heading in the right direction.

Similarly, not having a pay audit may make micro-businesses that have lost cases more vulnerable to further claims. Again, I am sure that those businesses will not want that to happen.

[Baroness King of Bow]

I thank the noble Baroness for her indulgence on this, but are these regulations not setting up a scenario where the same employer can breach the same law again and again, and never be forced to take any action? There is no sanction, even if they are ordered to take an equal pay audit and choose not to.

[Baroness Northover]

I am suddenly inspired to say that the regulations allow the tribunal to apply a £5,000 penalty repeatedly if the employer remains in breach. Therefore, it could have quite an effect cumulatively. I hope the noble Baroness will be somewhat reassured that there is a possibility of that follow-up if they are not taking action. I think that I have addressed most of her questions.

I now come to the main points raised by the noble Baroness, Lady Donaghy. I agree absolutely with her support of the notion that unequal pay does not help the business or the economy. That has to be a major incentive for companies to ensure that this moves forward. I do not think I have an answer to what happens if a company goes into bankruptcy and then resurfaces; maybe I have and I have buried it somewhere.

[Baroness Donaghy]

Perhaps the noble Baroness would write to me about that.

[Baroness Northover]

That is extremely kind of the noble Baroness. She asked me quite a bit about narrowing the pay gap. I hope that I have helped to address some of those. This is obviously a lever to help in these cases. It is very important that the law is there, that we ensure it is implemented and that companies are heading in the right direction. However, we all know that there are much wider reasons why this is difficult to shift. We are in line with what is happening in northern European companies—many more women are working than in the eastern European and southern European countries where, curiously enough, there is a narrower pay gap. That is because many women are not working. We share that particular challenge with our northern European neighbours, but we all need to ensure that we take forward the kind of support and legal changes that help to underpin women’s ability to participate in the labour force as equal to men’s. We also need to ensure that we tackle instances where there is genuine discrimination.

[Baroness King of Bow]

May I ask the noble Baroness what I hope is one last question? How many cases do the Government envisage being brought in circumstances where businesses will be asked to carry out an equal pay audit?

17:30

[Baroness Northover]

Indeed, the noble Baroness, Lady Donaghy, picked up on what I said in my speech; it is anticipated that it might be two to three a year. If, in due course, we see that this regime is not tight enough, I am sure that we or any other Government would keep that under review. However, these kinds of examples often have a beneficial effect on other companies. The last thing they want to do is have that spotlight on them, either through having lost a case or having their pay audited. This has to be about greater transparency, which can be demanded by a number of women, right up through companies, rather than being grouped at the bottom. I would not be at all surprised if employees in different companies will expect that kind of transparency of modern employers. I do not know whether there is anything else that I need to answer in that regard, but I hear what has been said.

I have tried to answer most of the points that the noble Baronesses have raised. I hope they will accept that it is extremely important to send the message to employers that it is in their interests and everybody else’s to have gender equality in pay in their workplace and that they have to think very seriously about that so that they are not in breach of equal pay law and avoid equal pay claims and, ultimately, the requirements of these regulations. In some ways, it would be good if these regulations did not need to be implemented at all and we just saw a transformation—that would be the best result. However, failing that, I commend the regulations to the Committee and hope that it will approve them.

Motion agreed.

Children and Young Persons Act 2008 (Relevant Care Functions) (England) Regulations 2014

Monday 28th July 2014 Grand Committee

Motion to Consider

17:32

Moved by

[Lord Nash]

That the Grand Committee do consider the Children and Young Persons Act 2008 (Relevant Care Functions) (England) Regulations 2014.

Relevant documents: 5th Report from the Joint Committee on Statutory Instruments, 5th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)]

My Lords, these regulations are permissive in intent. They would enable local authorities in England to delegate to third-party providers a range of social care functions, so far as those functions relate to children. This would modify the current position set out in Section 1(2) of the CYPA 2008, which already allows local authorities to delegate functions relating to looked-after children and care leavers. These regulations would enable local authorities to decide to delegate other functions, including those relating to early intervention and child protection to providers operating on a not-for-profit basis.

At present, there are few options open to local authorities that wish to consider alternative ways of managing their social care functions. Apart from the limited powers of delegation already in existence relating to looked-after children, the only circumstances in which alternative delivery plans are currently possible are those where an authority is failing and subject to intervention by the Secretary of State under Section 50 of the Children Act 2004. It cannot be logical that only where a local authority fails are such flexibilities available.

I should also make it clear that several local authorities are now waiting eagerly for the passing of these regulations; they are gearing up to innovate and are anxious to make progress with their plans. These forward-looking local authorities are ambitious to improve their services and their ways of working, and these regulations would enable them to fulfil these aspirations. I anticipate that, over time, others will begin to consider how the new freedoms might support their own improvement strategy. As noble Lords will recognise, in too many local authorities improvement is all too urgently needed. The Government are having to intervene in one in seven authorities.

During the consultation on the draft regulations, it was asserted that only the public sector should carry out functions such as child protection. I simply do not believe that this is the case—not with the potential of the voluntary and charitable sector, and the proven success of public service mutuals or the number of public sector failures so clearly before us. I am by no means saying, “Public sector bad, private sector good”. What I am saying is that there should be a willingness and an openness to look at different approaches and options. That is the possibility opened up by these regulations.

Noble Lords will be aware that the consultation elicited widespread and ardent comment. That is entirely appropriate for such an important measure. The number of responses was very high, at 1,315, and there were several petitions and an e-campaign, which resulted in some 58,000 e-mails. By far the most responses to the consultation related to the question of privatisation and profit-making, which was the sole focus of the petitions and the e-campaign. The Government have responded both swiftly and decisively to these concerns by making a significant modification to their original proposals and amending the draft regulations to rule out the possibility of profit-making. This change has been widely welcomed.

It was not the Government’s original plan to include such a restriction, nor was it our intention to see widespread delegation of children’s social care to profit-making companies. The local authorities that are currently exploring their plans in detail are not looking to set up facilities that entail profit-making, so this amendment will not hamper their plans. Of course, this policy never concerned privatisation. This is a permissive agenda, not a centralising regime.

Noble Lords will know that the Secondary Legislation Scrutiny Committee has drawn these regulations to the special attention of the House and raised particular concerns about the consultation arrangements. First, the SLSC said that the consultation proposals were not clear. The volume and sharp focus of the responses show that they were. One might argue that the responses to the consultation were overwhelmingly about an issue that was not the focus of the Government’s plan. Nevertheless, under the original proposals profit-making would have been possible, so those commenting were making an entirely valid point. We have listened to those responses and made changes accordingly.

Secondly, the timescale for responses was deemed to be too short. It may be that a longer consultation would have been preferable, yet in the light of the number of responses and the degree of public scrutiny that the proposals received, my view is that the timescale for responses did not hamper proper scrutiny. Our desire to open up opportunities as soon as possible to local authorities that are seeking them drove the timescale and, on balance, I think that we have been able to bring forward valuable proposals in good time, while allowing significant and influential representations to be made.

On a much less prominent question than that of profit, some during and since the consultation have questioned the evidence base for this change. It is of course true that the direct evidence base for something that has to date not been possible is limited. Noble Lords may be aware that under the Children and Young Persons Act 2008 the previous Government enabled a small number of pilot social work practices to be set up. These were small, practitioner-led practices taking responsibility for specific cohorts of children on behalf of the local authority. The evaluation of the first few social work practices identified evidence of positive change for looked-after children and care leavers. It is true that the evaluation found variation across the pilot sites, but it none the less showed that the practices operated at least as well as, if not better than, the control authorities.

In addition, the Government’s wider mutuals programme has seen the benefits to services, both to the staff working in those services—through reduced absenteeism and staff turnover—and in savings and efficiencies linked to significant improvements of user outcomes. There are now 100 public service mutuals already delivering more than £1.5 billion-worth of public services in sectors such as health and youth services. Local authorities will be able to apply to the Children’s Social Care Innovation Programme for support to make use of the new freedoms that the regulations would allow, and the impact of activities funded through the programme will be robustly evaluated.

These regulations will enable a positive change in the delivery of children’s social care services. They will establish a framework in which local authorities can make their own innovative decisions on how best to manage their children’s social care functions. The experienced and well respected charity, Action for Children, said:

“The freedom to outsource children’s services will allow local authorities to innovate and improve support provided to families”.

That is exactly what we are aiming to achieve and I commend the regulations to the House.

[Lord True (Con)]

My Lords, I declare an interest as leader of Richmond Council which, along with the Royal Borough of Kingston, has been one of the authorities using the freedoms extended by the previous Government under the 2008 Act. We have established jointly a community interest company, a social enterprise, called Achieving for Children, to deliver these services across the two authorities. When I say “we”, I am referring to a Conservative and a Liberal Democrat authority working together and seeing the opportunity—as we saw it—to improve services. Therefore, I greatly welcome the Minister’s announcement that this is to be extended. It will certainly be welcomed by the professionals in our authorities working on behalf of young people.

It is right that the Minister put beyond doubt the fears raised about privatisation. For my own part, I do not think that the private sector or private carers are incapable of providing professional, high-quality care, but given the response to the consultation, I think my noble friend has acted wisely, as always, in that regard. I hope that that having been done, everybody from all sides will be prepared to put wind behind this and to give support to the professionals involved. This is not about privatisation; certainly it was never about privatisation in the case of my authority or Liberal Democrat Kingston. It is certainly not about moving away from a public service ethos. That is fundamental and held dear by all those who work in the community interest company. Nor is it about a move away from democratic accountability. The local authorities remain statutorily responsible. Our outstanding director of children’s services, Mr Nick Whitfield, who is the chief executive of Achieving for Children, remains statutorily responsible. As I see it, it is freeing up professionals to think differently and to innovate without the constraints that local authority procedures can sometimes cause. It provides freedoms to allow them to maximise the value of the contributions they make, to create new partnerships and fundamentally it puts the professionals who know better than anybody in the driving seat of how to achieve the best outcome for those involved. Local authorities remain ultimately accountable—indeed, the next business contains a whole range of requirements that remain on local authorities.

The regulations will allow the completion of movement of staff into the community interest company. That is an important signal and it is very practical that all staff can be managed in one way and are not having to be transferred under TUPE back from one activity to another when the range of activities ought to be part of supporting young people and part of a seamless whole. I hope that if it agrees to these regulations the Committee will put it beyond doubt that this approach is sanctioned as an appropriate way to provide children’s care.

The launch of Achieving for Children was attended by people from all political parties. I think everyone there was inspired by the professional vision and dedication of those involved and indeed by the speeches made by the young people who saw hope in what was being brought to them and hope in this future. Let us not be afraid to be creative. Let us not be afraid to experiment in improving care while retaining the basic public service needs and statutory responsibilities that continue. I hope that we will support the regulations and I thank my noble friend for bringing them forward.

17:45

[The Earl of Listowel (CB)]

My Lords, I want to raise concerns about these regulations but also to welcome certain aspects of what the Government are doing. It is good to hear from the noble Lord, Lord True, about what seems to be a very positive initiative in Richmond and the other local authority he mentioned. Certainly, the principle of allowing professionals to use their own judgment is a very important and powerful one. We have seen it across the board in terms of children’s services, and I welcome the intent. The Government are frustrated that outcomes for children are not improving as they should and they are not going to leave any stone unturned in order to change that. I commend that intention.

The former Secretary of State, Michael Gove MP, really pushed the use of voluntary adoption agencies in terms of the adoption system. That made a good and positive improvement in terms of the numbers of children being placed for adoption more swiftly. I welcome, too, the Social Care Innovation Fund, which seems to be a very good initiative to improve and make sure that we make best use of the resources available to us.

However, I have a number of concerns. I regret that if I am not fully reassured at this point, I may come back and seek to debate the regulations in the Chamber. I recognise the Minister’s frustration at not being able to improve outcomes as swiftly as we need to for young people. I would underline a couple of issues in that context. The fundamental one is the question of professional capacity in the workforce. I commend what this Government and the previous one did about raising the status of child and family social workers. I remember speaking to a former Secretary of State for Education a few years ago. When I told her that it was not necessary to have a degree to be in child and family social work, she did not believe me. Of course, it has only been a requirement in the last three or four years for child and family social workers to have a degree. A lot of good work has gone forward in this area, but we still have a long way to go. Many social workers in practice still will not have a degree qualification. If we look at residential care and staff in children’s homes, we only require those staff to have an A- level qualification equivalent. I was told by an expert recently that most managers still will not have a degree qualification. We must bear it in mind that we need to address the professional capacity within the workforce if we are to see improved outcomes, and that will take some time. As impatient as we are to see change, we may have to be patient for those changes to feed through. My concern is that, in being really frustrated with the system as it stands, we need to be thoughtful in the way that we change it, in case we bring in changes that are unhelpful. That is why this particular regulation needs very careful scrutiny.

I had an e-mail a couple of weeks ago from an academic who has followed the educational outcomes for looked-after children for many years and first raised the concerns about the disparity between educational outcomes for looked-after children and the other population of children. She highlighted concerns that there was not enough support for foster carers. There was no expectation that foster carers would have a good education. She looked across to the continent and saw that where foster carers and staff in children’s homes were recruited from a background in which they had a higher level of education, there were better educational outcomes. She is about to publish a book, in which she highlights that better outcomes on the continent are very strongly associated, in her experience, with the fact that they expect better qualified people to work directly with their vulnerable young people.

As I see it, the risks are, first, fragmentation of services. I was speaking with an academic last week. He is developing an innovative programme in his local authority for looked-after children. He is developing a multidisciplinary team and a one-stop shop so that a child can see the mental health professional, teacher and social worker all in one place. He was regretting the fact that this was how it used to be in local authorities, but that, over time, somehow it had been lost. I was speaking with a children’s home manager several years ago in Camden. He said that the particular advantage of that home in Camden, being in the local authority, was that he could easily and quickly draw on all the necessary resources to get the best outcomes for the children. I think that he had had experience of working in the private sector, but my sense has been that the risk with private sector children’s homes is that they can be more separated from all the services on offer. They may have to develop their own personal services, so that they cannot necessarily draw all the services together, particularly those in mental health, to get the best outcomes for children.

I worry that, if we are going to move towards a system which requires greater reliance on good contracts to make it work, contracts will look at rather short-term outcomes, which are not necessarily the sort of measurements that one would want to use. The key thing with children in care and care leavers is to ensure that they learn how to make relationships, to trust people, and to bear and tolerate intimate relationships. That can be quite a hard thing to measure in the short term. I am a little worried. The Government’s efforts to improve educational attainment and qualifications for looked-after children and care leavers are commendable, but you cannot ignore the ultimate need for those young people to make and keep relationships. You can get them to do well in exams but, if they cannot make relationships with other people, they will have very unsatisfactory lives. Specifications within the contracts will therefore concern me.

Concerns have been raised about whether the bodies concerned will need to be registered and therefore need to follow minimum standards, but I am sure that others will raise those points.

There are concerns about consultation with children in the process. I admired the great pains to which Timothy Loughton MP, when he was Children’s Minister, and Edward Timpson MP have gone to listen to the voices of young people and of care leavers. These measures are likely to affect young people significantly. It was good to hear how positively young people in Richmond spoke about the experience, but to present to young people what is being done and to have their thoughts presented back would be very helpful. Those were my concerns. I look forward to the Minister’s reply.

[Baroness Hughes of Stretford (Lab)]

My Lords, I welcome the regulations in so far as they will allow, as the Minister has intimated, the potential for local authorities to innovate and to improve services for young people. I also welcome the change to the draft regulations that the Government made in response to the consultation. I am not opposed in principle to the enabling power in the regulations. As the noble Lord, Lord True, has illustrated, used in the context of the right values, these possibilities can open up new ways of delivering better services and, more importantly, better outcomes for children and young people.

However, I have some concerns, not about the principle but about the lack of clarity in the regulations on some important issues. Some of these issues were touched on in the consultation; the responses were not concerned exclusively with the principle of privatisation. I want to raise three issues: accountability, inspection and the not-for-profit status of new providers that the Minister has alluded to. If the Minister could flesh out the Government’s thinking on these issues, it would be really helpful, not least to the Commons when they come to consider the regulations, as they will be looking for answers on some of these issues.

The Government have said that, if children’s services are outsourced either in large part or in whole, the local authority will retain overall accountability for those services. However, we need to understand what that means in practice. Does overall accountability mean that the local authority alone will be responsible for individual children’s outcomes, or will the service provider have any accountability? When I was Minister for Children, I knew a number of directors of children’s services who made a point every month of selecting at random six, seven, eight or 10 case files from their department and reading them to get a measure—a dipstick measure, but none the less a measure—of the quality of his or her social workers’ work. Will directors of children’s services similarly be able to collect a random sample of case files from the service provider and look at what is going on? What direct access will a director of children’s services have to the evidence of the work being done with individual children in an ongoing way, not just with outcomes at the end of the year? That question concerns how the local authority will be expected to put in place continuing quality assurance mechanisms so that it can see what is being done with individual children in a continuing, real-time way.

Given that parents and carers will have an indirect relationship with the local authority through this outsourcing, what would happen if a parent or carer wanted to make a complaint relating to the outcomes for their children or to the way the service was being provided? To whom would that complaint be made and how would it be handled? Under the overarching statement I think that the local authority will remain accountable. There are a number of very detailed questions about how that accountability will be exercised, particularly on how quality assurance, which the local authority must surely seek, will be done on the way in which services are provided.

A related issue is inspection and what appears to be a lack of direct regulatory oversight, in the detail of the Government’s proposals, of the service provider to whom the responsibility for a service is outsourced. As I understand it—I hope the Minister will correct me if I am wrong—the Government propose that external providers of children’s services will not be inspected in their own right by Ofsted, nor registered as inspectable providers, like children’s homes and adoption societies currently are. As I understand it, the local authority will be inspected and a judgment will be made of it, but that is a very indirect look by Ofsted at what is going on. Surely to goodness the service providers have to be inspected. Would it not be important for that provider also to be given a public judgment by Ofsted?

This would be particularly important—unlike in the example of a community interest company conjured up for us by the noble Lord, Lord True—if we were talking about a rather big, profit-making company that set up a not-for-profit subsidiary, which was undertaking service provision for a number of different local authorities in some respect. Would it not be important to have an overview of what that company was doing across the board in different geographical areas, not just an atomised view of each individual local authority, indirect as that would be? Will Ofsted directly examine the case files that the service provider keeps and the quality of the social work and care provided by the agency? Will Ofsted speak directly to children and families? Why will the Government not allow Ofsted to rate the agency as well as the local authority? It is the agency that actually provides the services.

18:00

Finally, I welcome what the Government have done on the issue of not-for-profit status, but I want to check whether it is as strong as the Minister maintains. He said that this rules out the possibility of profit-making, and the noble Lord, Lord True, said that the Minister had put the question beyond doubt. But has he? Again, we are not talking about the community interest example but the possibility of big companies such as Serco or Capita bidding for these services. In those situations, first, that company could set up a not-for-profit company to sit alongside its profit-making company but could still indirectly make a profit from its activities in providing children’s services in the same way that some of the big educational companies, when they set up a trust to deliver an academy, sell their educational services to those schools and make a profit from them. That is allowed, and I would imagine that the same thing could happen here.

Secondly, is there a potential for conflict of interest if, say, a profit-making company that is providing children’s homes set up a not-for-profit arm to deliver social care? When it comes to the decisions on whether residential care is the best solution for individual children, do we not want to put it beyond doubt whether profit was in anyone’s mind, given the relationship that exists between the company providing residential care for profit and its non-profit subsidiary that is delivering social care? Can the Minister put beyond doubt the possibility of profit-making and the possibility that there might be in certain, maybe limited or special, circumstances the potential for conflicts of interest that could influence the decision-making around individual children?

Those are my concerns. This is not about the principle but about making sure that we have just as robust an inspection and accountability regime for the outsourcing model as we have at the moment in relation to direct provision by local authorities.

[Lord Nash]

I am grateful for noble Lords’ contributions and to my noble friend Lord True for his points, which, given his experience, carry particular weight. I very much welcome the innovation behind Achieving for Children, whose launch I was privileged to go to. As my noble friend said, the presentations made at that launch, particularly by young people, were powerful.

The noble Earl, Lord Listowel, made a number of comments. I am grateful for his welcome for the intent behind the proposals and that he is taking some comfort from the changes made to the adoption regime by the previous Secretary of State for Education. The noble Earl made a good point about the capacity and quality of the workforce in social care. We are determined to raise the status of social work and to attract highly qualified people into it. We have a wide programme of reform of social work under way. Sir Martin Narey reported recently on improving social work training, the chief social worker is bringing strong leadership to the system and we have new training programmes in Frontline and Step Up to Social Work to attract the best to the profession.

The noble Earl mentioned the possibility of fragmentation of services. There is no intention for this to happen. Indeed, we have seen examples, such as Achieving for Children, where we may, in fact, see consolidation of services into single structures. He made a very good point on the importance of the contract. It will be for local authorities to give extremely careful thought to the structure of the contracts to make sure that they lead to quality care and that the KPIs are well thought out and not too short term. His points about engaging with young people are well made. The consultation process received comments not directly from young people but from organisations representing them, including Barnardo’s, Kids Company, Children England and many others.

I am grateful to the noble Baroness, Lady Hughes, for her support. She is of course vastly more experienced than I am on this subject, as it was part of her brief as a Minister while it is not directly part of mine. Local authorities will retain overall accountability for provision and they will be able to gain access to random sampling under the contracts they put in place with their providers. They will also have their own complaints procedures in place, which will be there for parents to go through.

Ofsted’s common inspection framework makes provision for taking a sample of looked-after children’s cases where functions have been delegated. It considers the experience of these children as it would any others in the care system when making judgments on an authority’s effectiveness. Ofsted will speak directly to children and families. It is important to be clear that where functions are delegated, the authority remains the corporate parent and is responsible for the children in its care through its management of the contract with the provider of social services. There is a single inspection framework that looks at the effectiveness of services for children in need of help and protection, looked-after children and care leavers. In addition, there are separate inspection frameworks to ensure high standards for those providing residential placements of various kinds. The same inspection arrangements apply regardless of whether functions are delegated.

Neither we nor Ofsted believe that registration adds particular value to the system. The registration process can be only relatively light-touch and may imply a more robust validation or assurance process than is intended. There is also potential duplication of effort as many of the key checks are those that would automatically be carried out by local authorities as part of their contractual arrangements with the provider. There is no relationship between registration and Ofsted inspection. Ofsted will inspect third party provision as part of its normal inspection arrangements.

I admire the noble Baroness’s suspicion about putting the not-for-profit element beyond doubt. Someone from my background of course believes passionately that the profit motive is always, in every case, a very good discipline. However, as noble Lords can see from the consultation, we have bowed to the responses on this. There is no intention to allow for any back-door profit-making in this. In the academies programme we have in place very clear regulations to ensure that anyone in any kind of governance arrangement with an academy cannot make a profit. Of course it will be possible for a large organisation to set up a not-for-profit subsidiary, but I find it hard to believe, given the risks involved in the provision of services of this kind, that it would be worth doing that on a not-for-profit basis. We will make sure that this is not any kind of back-door arrangement to make a profit on the sly.

I hope that I have dealt with all the points made by noble Lords, but if I have missed anything I will be delighted to write to them. We do not expect an immediate flood of delegated arrangements as a result of these regulations. I have indicated that a few local authorities are waiting in the wings, and we think that others will develop their thinking over time. The regulations will allow the freedom and flexibility for new arrangements to come into place over time and have the real potential to improve services for vulnerable children. That is the framework we are putting in place, underpinned by both an unchanged system of local authority accountability and a robust Ofsted inspection framework. I hope that noble Lords will support the regulations.

Motion agreed.

Special Educational Needs and Disability Code of Practice: 0 to 25 years

Monday 28th July 2014 Grand Committee

Motion to Consider

18:10

Moved by

[Lord Nash]

That the Grand Committee do consider the Special Educational Needs and Disability Code of Practice: 0 to 25 years.

Relevant documents: 6th Report from the Joint Committee on Statutory Instruments (special attention drawn to the instrument), 3rd Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)]

My Lords, the draft code of practice gives guidance on Part 3 of the Children and Families Act 2014. The code has been approved by the other place and I welcome the opportunity to introduce the debate in Committee today. First, I want to acknowledge the extensive time that many noble Lords have given to discussion of the Act and the emerging code. Together we created an excellent Act, one that will transform the way in which support is provided for children and young people and their families. The code of practice will bring added impetus to achieving that aim.

Our vision for children with special educational needs and disabilities is the same as for all children and young people—that they achieve well in their early years, at school and in college, and lead happy and fulfilled lives. The new code will play a vital role in underpinning our special educational needs and disability reforms. The reforms will bring a new approach, one that places the views of children, young people and parents at the heart of the system and joins up education, health and care services for children and young people. These important principles run right through the code. For children and young people this means that their experience will be of a less confrontational and more efficient system. Their needs will be identified early with support put in place quickly, and parents will know what services they can reasonably expect. Children and young people and their parents or carers will be fully involved in decisions about their support and what they want to achieve, with an increased focus on life outcomes, including employment and greater independence.

The Department for Education and the Department of Health have worked to ensure that local authorities and local health partners work together to plan and commission services for these children and young people. The code is the result of more than a year of extensive consultation, and we took great care to listen to those who must have regard to the code to make it truly accessible. Additionally, we offered stakeholders the opportunity to comment on revisions of the code before running a final consultation in Spring 2014. I am grateful to the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee for their consideration of the draft code. Each raised one particular, and different, issue.

The Joint Committee on Statutory Instruments reported a concern in relation to local authority decisions on personal budgets. I wrote to the noble Baroness, Lady Hughes of Stretford, on the same issue following our debate on the personal budgets regulations. I can now confirm, in response to the Joint Committee on Statutory Instruments’ report, that we will be amending the regulations to give greater clarity to the decision-making process, meeting the point raised by the Committee. The Secondary Legislation Scrutiny Committee expressed concern that the code may be too long and complex to be of use to families. I should point out that parents are not the code’s key audience. The chief audience is the range of bodies with statutory duties to fulfil and which must have regard to it. The changes that we have made to the code, including ones that have added to its length, respond to specific feedback on promoting clarity from those who need to have regard to it. The code covers most of the statutory provisions of the current system as well as significant new duties. It replaces three separate sets of guidance and contains a stronger emphasis on and links to the Equality Act 2010. It was absolutely clear that interested parties did not see shortening as a priority. Having a code that gave a clear explanation of the law and guidance that would speak to the wide range of statutory audiences was what mattered.

However, supporting parents in understanding the new system is of course key. The legislation ensures access to information, advice and support. We have provided £30 million over two years to recruit and train independent supporters, and we are co-producing with parents’ organisations a separate guide to the code specifically for parents, and separate materials for young people, both for publication as the reforms come into force.

18:14

The reforms have been tested in a number of local pathfinders since 2012 and local authorities have been preparing to put them into practice from September this year. Support is being provided to local authorities, including advice from regional champions and a range of delivery partners with specialist expertise. Some £45.2 million is being provided to local authorities in 2014-15 to help meet the additional costs of implementing the reforms, with a further £32 million indicative funding in 2015-16. This is in addition to the £70 million SEN reform grant in 2014-15 to help local authorities plan for the reforms. Surveys of local authority readiness and visits show that local areas are prepared to put the reforms into practice from September. We have been clear that we expect the change from the current to the new system to take place gradually and have been consulting on transitional arrangements to achieve this.

From September this year, all requests for assessments of special educational needs for those who do not have a statement or an LDA will be considered under the new education, health and care assessment arrangements. We intend that by 1 September 2016 young people in further education who currently receive support as the result of an LDA will transfer to an EHC plan where one is needed. Children and young people with statements will be transferred by 1 April 2018. All local authorities will be required to ensure that certain groups of children are transferred to the new system by particular points during the transition period. This will ensure an ordered transition and maintain protections for children and young people. Draft guidance was recently made available to local authorities.

I am confident that the new code will play a key role in helping to put our reforms into practice, equipping those who work with children and young people to help secure the better outcomes they deserve. The provisions in the Children and Families Act on support for those in youth custody do not come into force until April 2015. Regulations will be made setting out the detail. Noble Lords will be heartened to know that Katy Weeks, a key member of the Bill team for this legislation, has been seconded to the Council for Disabled Children, which is working with the Department for Education and the Ministry of Justice on this. We intend to issue draft regulations for consultation later this year. We will then revise the guidance in the code to reflect the final regulations and place it before Parliament for approval under the negative procedure early in the New Year.

More generally, we will be keeping the guidance in the code of practice under review, allowing proper time for the reforms to bed down, particularly as they are being implemented gradually from September. Noble Lords will recall that we made provision in the Children and Families Act for subsequent versions of the code to be approved under the negative procedure to enable the code to be kept up to date more easily. Now is the time to move forward. As there is such broad support for the reforms and a high state of local authority readiness, I urge noble Lords to support the code of practice.

[Baroness Uddin (Non-Afl)]

My Lords, I welcome the noble Lord’s detailing of his and the Government’s commitment to a more integrated service. Before I address the inconsistencies and ellipses in the draft code of practice, I wish to make the general point that one cannot elaborate and clarify enough when it comes to ensuring the rights of disabled people. Families facing a constant battle navigating the bureaucratic minefield to access the support of institutions need all the assistance that we as legislators can provide to arm them for their discussions with education providers and local authorities.

In this country we have made huge strides on disabled rights. Despite that I have been told of innumerable sufferings of parents who continue to experience significant struggles in safeguarding equitable educational provision for their children—specifically in accessing mainstream education. The current draft lacks principles to guide education providers and commissioners in delivering inclusive education that gives disabled learners access to mainstream courses. I will focus on two particular aspects of the draft special educational needs code of practice that warrant clarification: first, the consistency with which the inclusive education principle is explicitly applied and promoted; and, secondly, the specific provisions in relation to those aged over 16.

Turning to the first, more general, point, it is essential that the code of practice achieves the purpose of the Act to expand inclusive education, but the present draft lacks guiding principles and a clear set of activities that local authorities and education providers should carry out to achieve this. The code of practice needs to, and must, offer guidance about the inclusion of disabled learners in all activities, including access to the mainstream curriculum, and make explicit the strategic role of local authorities and education providers in supporting the practice, as well as how they should carry out this function. Only then can we ensure that disabled learners’ aspirations are not lowered, de facto, through early segregation where it does not suit learners—for instance, by having courses in a mainstream institution but in a secluded unit. Many who are familiar with providing special educational needs will be very familiar with these sorts of units.

Secondly, the current draft contains conflicting advice about disabled learners’ access to FE courses. The guidance states that colleges should make their courses inclusive in all subject areas at all levels, but the SEN code of practice also states that disabled students should enrol in discrete preparation for employment and educational courses. An interpretation by education providers that placed more weight on the latter would risk unfairly denying aspiration and access to the disabled. Can the Department for Education clarify the inclusion principle in the code of practice to ensure that post-16 providers fulfil their obligation to support the inclusion of disabled learners in all activities, including accessing mainstream courses?

Furthermore, the code of practice should make clear that the Equality Act and Children and Families Act duties, which extend inclusive educational practice, are applied across all age groups—including early years, school and post-16. Particularly egregious is the present wording at paragraph 1.28:

“Students will need to meet the entry requirements for courses as set out by the college”.

This runs counter to the Equality Act, which does not require students to meet admission criteria before they enrol in mainstream courses. For example, a disabled learner may lack the expected English or maths GCSEs but be well suited to a particular BTEC or apprenticeship course. Post-16 institutions are under a duty to make reasonable adjustments for disabled students and this should be reflected in the SEN code of practice through the removal of the provision at paragraph 1.28. Having spoken to a number of parents and other individuals over recent months, I know that the disparities and differences in the experiences of parents across various local authorities, particularly for parents from minority communities, mean that the situation remains extremely unequal and extremely unfair. I therefore welcome the noble Lord’s comments that the code is linked to the Equality Act. I look forward to seeing its impact and what parents say about that.

Above all, the guidance must ensure that the rights of young disabled people to access mainstream education with the support they need is firmly embedded. In order to assure this, the inconsistencies that I have listed should be removed and the obligations on local authorities and education providers clarified. Only then can we help disabled learners with the aptitude to work in adulthood meet their goals and can we create conditions for people with special educational needs to reach their full potential.

[Lord Ramsbotham (CB)]

My Lords, there is a great deal to welcome in this document except its length; 270 pages is a vast amount. Perhaps I may point out one typographical error in paragraph 8.2 of the Explanatory Memorandum. According to that, the first consultation is not yet over because it lasts until 9 December 2014.

I have five short questions that I should like to put to the Minister. I am sure that they can all be answered fairly quickly. First, is the Minister satisfied that schools and education settings will be capable of identifying speech, language and communication needs from 1 September this year? That is only a month away and normally schools are given at least a term in order to prepare for new guidance they receive. I suppose that the answer will be that this draft, which is still a draft, has been around with some people for a long time, but it will not necessarily have been in every school. There is quite a lot of detail in this document, and I would be surprised if every school has mastered it by 1 September and able to put it into practice.

My second two questions relate to the children who are not mentioned as much here—those who are without EHC plans, about whom there was a great deal of questioning during the passage of the Children and Families Bill. First, is the Minister satisfied that appropriate support is in place for those children with speech, language and communication needs but without plans? Secondly, are the staff in schools adequately trained to provide support for those children without plans? We did not get a clear answer when the Bill was being passed and I still do not get it out of this vast document.

The document is still called a draft. I know that the Minister told us that it had been passed by the other place, but this short session here, when we do not have time to scrutinise the document, could not really be called the House of Lords “passing” the draft and approving it because we simply have not had time to go through all the detail in this 270-page document. Do the department intend to conduct a review of the code once it has been in action for a short time? When might that review be held and will it also be brought before the House so that we have an opportunity to see what the practitioners understand about it when it is being practised?

My fourth point refers to the welcome addition in relation to children in custody. During the passage of the Criminal Justice and Courts Bill last week, I asked the Minister what exactly was happening as far as the Ministry of Justice was concerned to amplify the statement made at Third Reading in the other place by the then Prisons Minister, Jeremy Wright, who said that,

“a great deal of … thought will be given to how those needs can be met”.—[Official Report, Commons, 12/5/14; col. 538.]

He was referring to special educational needs. Thought is okay but the Minister in the Lords did not answer my question as to what that meant, particularly given the two months that have passed since the Third Reading in the other place. I would be grateful if the Minister here can ensure that when I ask the question again on Report in October, when the Bill comes back, there will have been a discussion between the Department for Education and the Ministry of Justice so that the Minister is able to answer me and all the other Members of the House who have an interest in the special educational needs of those in custody. We were referring particularly to the proposed development of the secure college in the middle of Leicestershire, which allegedly will have 320 children aged between 12 and 17, boys and girls. Among them there will certainly be a very large number with speech, language and communication needs.

The last question refers to the word “must”, which appears time and time again in bold in the report. Who is the “must”? Who is going to do the “must” and who is going to oversee that the “must” has been done because there must be oversight; otherwise, the “must” will not happen? I would be very grateful if the Minister could enlighten me on that.

18:29

[Baroness Howe of Idlicote (CB)]

My Lords, it is always a great pleasure to follow the noble Lord, Lord Ramsbotham. As usual, he has picked on an aspect—the “must”, as it were—and it will be very important to see how that is put into effect. I am grateful to the Minister for putting his case, and what has been achieved so far, albeit that there is still some way to go.

I ask the Minister to provide assurance on three important matters relating to the changes to the special educational needs framework and the code of practice. First, what progress has been made by Ofsted in its review of the need for an inspection framework to drive improvements in local SEN provision and the local offer? That was announced earlier this year by the Minister when we were considering the Children and Families Bill, which is now an Act. We were told that a report would be published this summer. Can the Minister confirm that that is still the intention and, if not, when the report is expected? A number of charities, including the National Deaf Children’s Society, question the wisdom of passing a new code of practice without taking meaningful steps to ensure that local authorities follow it. The absence of a proper accountability framework surrounding the SEN framework remains a fundamental concern to many.

Secondly, while the code refers to “0 to 25” on the cover, as we all recall, it does not apply to disabled students in higher education. When this issue was raised in our debates on the Children and Families Bill, we were told that the SEN framework did not need to apply to higher education because a separate scheme of Disabled Students’ Allowance already ensures that the necessary support is provided. However, in April, the Department for Business, Innovation and Skills announced a “rebalancing” of support from DSA to universities. Although the details are still sketchy, I understand that some support will no longer be provided by DSA and that universities will be expected to provide it instead. It remains unclear what rights a disabled student at university will have if the university fails to provide the support that would previously have been given under DSA.

I recognise that universities are required to follow the Equality Act—we have heard from the Minister that they will do so—and to make reasonable adjustments. However, should universities fail to make reasonable adjustments, the main means of redress here would seem to be a judicial review. Had the same disabled student aged 19 attended college instead and had an education, health and care plan, they would have the option to appeal to a SEN and disability tribunal over their support. It seems perverse that a student at a university has to take a more difficult route to securing the support they need. I would be grateful if the Minister could provide a view on whether disabled students in higher education should have the same or similar statutory rights as a student at a college with special educational needs aged 19 to 25. Will the Minister confirm whether his department will look again at the question of whether disabled students in higher education should be brought under the scope of the code and the SEN framework?

Thirdly, and finally, there is a strong focus on outcomes in the new code. This is certainly to be welcomed. Will the Minister confirm whether families or young people will have a right to appeal if the local authority fails to set stretching or appropriate outcomes for their child? The National Deaf Children’s Society and others are concerned that there is an omission here in both the code and the accompanying regulations. If so, what is the rationale for this?

I hope that the Minister will be able to provide reassurances on the above matters or indicate that these issues are being looked at elsewhere. It is important that we have the best SEN code and framework possible—I am sure that he is committed to that—and, where improvements are needed, I very much hope that the Minister will look at how those can be achieved.

[Lord Addington (LD)]

My Lords, perhaps I may put a few more points. First, the size of the document was commented upon in another place. On going through the sections, they should of course be broken down to smaller units, for ease of use. I ask my noble friend, has he encouraged the various charitable bodies outside to print their own guides to the relevant bits for their user groups? I can see that they would be very good at making it understandable, because it is in their interests and those of their client base to ensure that it is done; and they have a better starting point from knowing exactly what language could be used. That is a general point.

Not for the first time, the noble Lord, Lord Ramsbotham, got to the nub of what I was going to say, first. That is, that we have come from a very confrontational system, as the noble Lord said, in which we knew what we had to do and where the points in the sand were that we had to get to. We knew that we had to achieve these and needed certain points to do so. It was incredibly confrontational and probably wasted huge amounts of effort. It probably was needed when it was first brought in, to get people to take the problem seriously. We should be capable of moving on from the graduated approach commenced in school action and school action plus, as the noble Lord described. However, if we had taken into account that the schools and the providers of support are also going to have to move away from a confrontational situation, what is that monitoring? What is that “must”, and how are they going to do it? Those are very valid questions. If there is not the will to move forward, who ultimately will make sure that they do it? That is something we should know about. It is something that we should not have to do but almost certainly will do, if only in a certain number of cases. It is just the historical weight that we carry in this situation.

I have a couple of slightly more specific points. The biggest and bravest change in this was the fact of the duty to identify within the Act—not merely as a response to those who had been presented. However, I cannot help but ask: if we are putting a great deal of effort into the SEN codes here and the SEN codes are organised, has my noble friend given any more thought to improving at least a recognition course for the more commonly occurring disabilities or educational problems? He mentions in this document those with specific learning difficulties. Apparently dyslexics are out in front, closely followed by dyscalculics and dyspractics. I am not sure about the figures, but we reckon that it is roughly 10% in the British version for dyslexics. Just over 3% have dyscalculia; I have not seen the figure for dyspraxia. Probably up to 15% of our school population is covered in that group. We must make sure that we can identify the signs, or at least the danger of people falling into those groups, the specific learning patterns those people have, the support structures they will need and, indeed, getting them through not only for educational purposes and teaching them how to cope. It would be very helpful to know how to establish all that for individuals; how to bring in their parents and tell them how to cope.

I remember the discussions we had about the SEN codes. Let us face it, none of us is coming in on this cold. I think that the term used was “whole-school strategy”: making sure that work structures are in place throughout the school. In early recognition, having lots of eyes with a degree of knowledge will be better than having an expert who gives commands, because at least that way we will know to refer on to the expert. This is something that is not too much to expect, and it certainly has to be a better way forward in the earlier stages of the educational process. What steps are being taken towards this? If we do not put mandatory steps in now, how do we ensure that the SENCOs have enough scouts, troops and boots on the ground to ensure they do their job properly?

This is a change of approach and a bold step, but the transition is going to be difficult. Almost by guarantee there are going to be problems with transition to the new culture. Unless more people are brought in and provided it is not pushed off to one side, which tended to happen in the past in the worst cases, we are going to have extra problems. I look forward to my noble friend’s answers.

[Lord Low of Dalston (CB)]

My Lords, the SEN disability code of practice, which we are considering today, is a substantial piece of work, as has been remarked. The department is to be congratulated on it, particularly on the extent of the consultation which has taken place. It has been improved considerably in many respects since it was first issued in outline. I particularly express appreciation for the time and trouble officials have taken to meet with me and respond to the concerns I have expressed.

Within the restrictions imposed by the debates on the Children and Families Bill, the approach to inclusion has been improved. There are references to the UN Convention on the Rights of Persons with Disabilities; there is a statement on the presumption of mainstream education; and, as has been said, there is a greater reference to the Equality Act, although the inter- relationship between that Act and education legislation could have been better spelt out and highlighted more prominently. So far as encouraging a strategic approach to the development of mainstream provision is concerned, the statement that local authorities should be proactive in seeking to improve the accessibility of mainstream provision is most important, particularly if they do that with respect to the provision in their area taken as a whole.

That said, the Government will know that members of the Special Educational Consortium are far from giving the code their unequivocal support. They are calling for an early review of the guidance once we have seen how it is working in practice. The sector exhibits a range of views about the code. Some organisations believe it should be withdrawn and relaid at a later date. A case in point is the National Deaf Children’s Society, which has already been referred to. This is not a head-banging or unreasonable organisation; it very much has its feet on the ground. That an organisation such as this should ask for the code to be withdrawn should give grounds for concern. The society makes a number of points. I will allude to them briefly, because the noble Baroness, Lady Howe, has already referred to them.

On Report, the Minister announced the Government had asked Ofsted to review the need for an inspection framework to drive improvements in local SEN provision and the local offer. The NDCS believes it should be a higher priority to ensure the support that deaf children receive from services is inspected. As the noble Baroness said, concerns have also been expressed about the wider accountability framework around SEN provision. The Minister indicated that Ofsted would publish its findings in summer 2014 but to date we have heard very little about Ofsted’s progress. Like the noble Baroness, Lady Howe, I would be very glad if the Minister could give us an update on how that work is going. We need a clear understanding of how the local authorities will be held to account for their local SEN provision.

Secondly, the code is equivocal about provision of specialist services for deaf children. Paragraph 9.144 states,

“local authorities should consider commissioning … peripatetic services”

for very young children with “hearing or vision impairment”. But elsewhere it states that where an EHC plan is being considered, deaf children must be assessed by a qualified teacher of the deaf. This cannot happen unless the service employing such teachers has been commissioned, so I would welcome the Minister’s reassurance that the necessary services for giving deaf children the support that they need will be commissioned.

18:44

Thirdly, we need reassurance about the support that disabled students in higher education receive following changes to DSA recently announced without any public consultation whereby universities will be required to take more of the strain. What means of redress will disabled students have if universities fail to make reasonable adjustments or if the adjustments they make are inadequate? It can be argued that there is now a strong case for universities to be brought within the scope of the SEN code of practice so that disabled students have statutory rights of appeal if the support they need to achieve their potential is not provided.

As the noble Baroness, Lady Howe, said, it would be anomalous if disabled students aged 19 to 25 in other forms of education or training could exercise such rights but disabled students in higher education could not do so. Parliament may also want to consider whether the local offer should now include information about the support available from individual educational institutions.

Finally, concerns have been raised about the absence of any rights within the code that would allow parents and young people to appeal against the content of what the EHC plan says about outcomes. This means that tribunals cannot direct the local authority to amend the content of the plan as regards outcomes. This contrasts sharply with what has been the case under the previous regime, where much of the argument at tribunal has been about the content of statements—I can vouch for that personally having served on the SEN tribunal for some dozen years.

Many other SEC members believe that the code should be approved but with regret. They have a number of concerns with both the content and the timing of the code. While there is a broad recognition that the code has been significantly improved since it was consulted on earlier in the year, there equally remain concerns that the code is not as robust a document as might have been hoped. For example, a lot of concern remains around the removal of the school action and school action plus stages and their replacement with SEN support. There are worries that this new single stage will not be as discriminating as its predecessor and that it will be more difficult to respond to children’s needs in as individualised a way as before.

In general, however, the Special Educational Consortium’s members believe that the code should be approved and that the focus should be on making the most of it for the sake of a successful implementation of the reforms in September 2014. They believe that a failure to approve the code now would create more confusion than going ahead with the code currently before Parliament—I would agree with that. On timing, there is much concern that, given that implementation of the reforms is taking place in September, those who are legally required to have regard to the code are being put in a very difficult position and being given an unreasonably short time to become familiar with its provisions. There is normally an expectation that schools will receive new guidance at least a term in advance. There is a common concern across the SEC membership that the timing of the code risks jeopardising some of the many positive features of the legislation. The academic year has now finished, and educational institutions have broken up for the summer. There is a concern that this leaves no time whatever to begin to build the new culture which we will need if the reforms are to be implemented successfully. That being so, I am glad that the Minister devoted so much of his speech to the questions of preparation and transition, but I am not sure that they will have entirely alleviated all concerns.

Finally, although I have said that with implementation scheduled for September a failure to approve now would risk chaos, I believe that the Government should commit to an early review of the code following the academic year 2014-15, given the concerns that have been expressed. The Minister indicated that there may be an opportunity to pick up concerns raised at this stage—by which I mean now—when regulations are published later on, but a more definitive commitment to a full review after a year would be helpful and very much welcomed.

[Lord Storey (LD)]

My Lords, I want to be very positive about this code of practice because I think that this is an historic moment for special educational needs and disability. I start by paying tribute to everyone involved because we are light years away from where we were before. Two years ago I was a teacher who had to look at colleagues who were not prepared to offer a duty of care to children with medical conditions. Now that will change, and it is to do so straightaway. Two years ago, schools did not have to have a qualified teacher as a SENCO, but now they do. I would reflect on the fact that after three years in post, those SENCOs must have the national qualification. To my mind, in terms of mainstream schools, we are light years away from where we were before. As I say, I pay tribute to all those who have been involved in putting together this code of practice. The 270-odd pages that make up the code are actually very clear and readable. I would guess that if this document was handed over to the plain English society, it would probably get a high score. Ministers, the Government and all those involved have listened and consulted, which means that changes have been made.

I have a number of particular questions, some of which have been raised already. Perhaps I may go over them. I should like to know what the process will be when changes occur. What is the procedure for adding something to this document? I have already mentioned to my noble friend the Minister that I am particularly concerned about the issue of young people sustaining concussion as a medical condition in school. At some stage we will need clear guidance on that. However, it is only one of a number of things. How, in the months and years to come, do we go about looking at those areas where we have real concerns?

I should have thought that 12 months was too short a period for a review, but an appraisal needs to be made at some stage of how this document is actually working in practice in schools. I would also be interested to know, perhaps through Ofsted visits and through general feedback, how the clear responsibilities for SENCOs in schools work in practice. A noble Lord asked who the responsible people are to be. For the first time, for mainstream schools, what SENCOs have to do and are responsible for doing is clearly set out and there is no hiding from that. They are responsible to the head teacher and the head teacher is responsible to the governing body of the school.

Mention has been made of local authorities. Again, we know that practices vary widely across different parts of the country. This code of practice means that local authorities will have much greater clarity about what they are responsible for and what they should do. Again, that is light years away from where we are.

A hugely important issue is that of continuing professional development. The schools have now broken up and this document will land on desks in September—it will be a soft landing, I hope—but we need to make sure that over the coming terms, all staff in schools have access to professional development so as to be able to understand their responsibilities, the importance of the code, and what should now happen.

Again, issue has been made about those young people who are not on an education, health and care plan. I am used to a system of school action and school action plus which is replaced by a graduated approach. As the debate has taken place, I have had reservations about the graduated approach because it is not absolutely clear how children will progress. I do not expect the Minister to answer—we have had that debate before—but at some stage we need to come back to that issue and be satisfied that that graduated approach is working.

I am going to end as I started by congratulating everyone involved. I am sure that in years to come this time will be regarded as, if you like, not the end of the matter—of course that will not be the case because the points made by the noble Lord, Lord Low, will happen, but over time—but as the starting point to allow those changes to take place.

[Baroness Hollins (CB)]

My Lords, I echo what other Peers have said about the welcome strengthening of the code, if not its length. I know many in the sector are appreciative of the changes. Having been a member of the recent post-legislative scrutiny committee on the Mental Capacity Act, I would like to comment on the sections of the code that interpret how the law will apply to young people who may lack capacity.

The Bill, quite rightly, gives new rights to young people over the age of 16 to make decisions about their support, subject to their capacity to do so. However, it is unclear in the code who decides whether a young person lacks mental capacity. Is it the young person, their parents, the school or the local authority? The voices of the young person and the parents should, of course, be heard throughout this and I would welcome clarification from the Minister on this point.

Building on this, it is critical to ensure that decisions that young people make are not overly shaped by the desires and agendas of others, including local authorities and other professionals. Mencap has discussed its point of view with me. It would like to see emphasis placed on ensuring that young people get the support they need to understand properly the decisions they are making and to be helped to make an informed choice, both about their support and what they might wish to do after school.

I refer to Annex 1, which sets out the five key principles in decision-making when someone may lack capacity, but clarification is needed about the process to follow regarding a young person who is judged to lack capacity. The code states that in such a situation decisions will be made by a representative who is,

“a deputy appointed by the Court of Protection”.

Currently, under the Mental Capacity Act, a formal process is not always needed and a formal deputy does not always need to be appointed. Can the Minister clarify this and say whether the code is implying that a new type of education deputy will be introduced rather than following the best-interests process currently used for adults? It is not clear from the code how a decision on whether a young person has capacity can be challenged and I would welcome the Minister’s response.

We must remember that the Children and Families Act 2014 brings in new decision-making rights for young people aged 16 to 18 in terms of education. This is a very new area for the Mental Capacity Act to be applied in. I agree with my noble friends that it would be sensible to review how the code is working at an appropriate point and to focus specifically on this area of implementation of decision-making capacity judgments within such a review.

18:58

[Baroness Hughes of Stretford (Lab)]

My Lords, a number of the points I was going to raise have already been raised so I am going to be brief. There are just a few points I would like to rehearse. First, I welcome the code of practice. It is long and complex but I have great sympathy with the people who have tried to put it together. Its language is certainly a big improvement. It is written in plain language, even if some issues about implementation still need to be a bit clearer. The Minister said rightly that this document is mainly for practitioners and managers. It has been the practice, certainly in the Department for Education and its predecessor, to produce slimmer, accessible versions for parents and young people and I wondered whether the department would consider doing this or at least commissioning someone else to do it.

Secondly, I agree with the noble Lord, Lord Ramsbotham, that the document is still a bit unclear as to what children without an EHC plan can expect. Worryingly, I found the following sentence on page 48 in relation to the local offer:

“In setting out what they ‘expect to be available’ local authorities should include provision which they believe will actually be available”.

By implication, that might include some provision that in fact will not be available. There is a lack of clarity there about what parents who have to rely on a local offer rather than an EHC plan can expect in reality. I wish the document had been stronger in its emphasis on the local authority making sure that what is in the local offer will be available to people.

Thirdly, on accountability, as the noble Baroness, Lady Howe, said, we are still waiting for the inspection framework that Ofsted was going to review and publish. I understand that the noble Lord, Lord Nash, indicated to my noble friend Lady Wilkins that an initial report would be out in late May. We have still not seen that from Ofsted, which makes it difficult to make an assessment about the accountability framework that Ofsted is going to apply.

Fourthly, I welcome the section on nought to two year-olds, and the fact that it is there, but I wonder whether the Minister could clarify something. It is written only for service providers, saying that they must do this and must do that, and does not say anything about the role of local authorities in relation to nought to two year-olds. Would he be prepared to put on record that local authorities are accountable for nought to two year-olds in terms of identifying and ensuring provision there, in the same way that they are for other age groups?

I also wanted to ask something about further education. It has come to my attention—this may be wrong, so I want to check it out—that the person designated as a SENCO in a further education college does not have to have special educational needs qualifications. Is this the case and, if it is, would the Government consider requiring those people to have those qualifications? My second point about FE is about inclusive provision. Having gone round a number of further education colleges and talked to young people, it is quite depressing, to some extent, to see what some FE colleges are providing for children with special educational needs: lots of preparation for living courses, but no identifying and enabling of those young people who could go on a mainstream vocational course. It is an option not often available to young people with special educational needs and disabilities. FE colleges should not be able simply to provide the kind of courses that they think are suitable and shoehorn people into them but should try to include disabled young people on mainstream courses for other students, where they can be included with support.

My last point is about the need for a review of the code and how it is being implemented. The Minister said that the Government would keep the code under review. The problem with that is that, if the department keeps it under review, the rest of us will really not know much about implementation. There needs to be a specific review at a point in time, the results of which are then published for us all to see.

[Lord Nash]

My Lords, I am grateful to all noble Lords for their comments and questions. I will try to address the points raised but I doubt whether I will manage to cover them all. Where I do not, I will write to noble Lords.

The noble Baroness, Lady Uddin, talked about inclusive education, particularly higher and further education. The code reflects the current position, which includes the general presumption that children with SEN should be taught in mainstream settings. That principle is extended to young people in further education through the Children and Families Act 2014. The code also highlights that schools and colleges have important duties under the Equality Act 2010 to prevent discrimination against disabled people, to promote equality of opportunity, to plan to increase access over time and to make reasonable adjustments to their policy and practice, which, since September 2012, has included providing auxiliary aid and services such as specialist computer programs et cetera. However, I note the point made by both the noble Baroness and the noble Baroness, Lady Hughes, and I would be interested to discuss further at the end the point she made to ensure that these colleges are taking their duties seriously.

The noble Lord, Lord Ramsbotham, is to be commended for reading all 270 pages. He must have done so in order to pick up the typographical error. The publication of the final code will not be determined in advance—he is right about that. However, in communicating with schools, colleges and local authorities on the implementation of the reforms, we have always made it clear that the version of the code issued for consultation on 16 April this year was sufficiently near to the final code for implementation-planning purposes. Key duties remain as they are currently for schools and early year providers. They will start to put in place from September the new approach to identifying and supporting children with SEN set out in the code and record those with SEN under SEN support in the January 2015 census. FE colleges will have a duty to use their best endeavours to ensure that young people with SEN get the help they need as they have always done, and will have regard to the approved code of practice.

We believe that the guidance provides a robust framework for supporting those without EHC plans which focuses on the impact of the support rather than how children access support according to the category they fit into. It will also challenge schools to improve the quality of teaching and learning for all pupils rather than inappropriately labelling some pupils as having SEN. The guidance makes clear that schools should involve parents in shaping the support that is provided, be more transparent about what support is available at the school, monitor the progress of all pupils and respond quickly where children are making inadequate progress. School leaders will be expected to include the quality of SEN support within their approach to school improvement, professional development and performance management arrangements.

More generally, we will keep the guidance and the code of practice under review, allowing proper time for the reforms to bed down, particularly as they are being implemented gradually from September. We made provision in the Children and Families Act for subsequent versions of the code to be approved under the negative procedure precisely to enable the code to be kept up to date more easily.

As regards the point about the Criminal Justice and Courts Bill, the Ministry of Justice has indicated that it will consult later this year on its approach to secure college rules. This will provide a further opportunity to contribute to the development of secure colleges and ensure that the needs of young people, in particular as regards their welfare and safety, are met. However, I will pass on the noble Lord’s remarks to try to ensure that when the Bill comes back later in the year he gets a better answer than the one he got last time.

The noble Lord, Lord Ramsbotham, also talked about enforceability and accountability. For the first year we will ask local authorities and parent carer forums to complete implementation surveys on a termly basis. These will focus on whether the key elements of the new statutory framework are working. We will take action, including appropriate support and intervention, where it is clear that a local authority is struggling to implement the reforms. For the longer term, we are developing an accountability framework for monitoring delivery of the reforms. We expect this to be in place from September next year. It will include an agreed approach for challenging poorly performing local authorities and taking more formal intervention action where necessary. The noble Baroness, Lady Howe, the noble Lord, Lord Low, and other noble Lords asked about Ofsted. Ofsted is now completing its survey of how local areas are working on the reforms and will make recommendations soon about the possible role of inspection in monitoring and accountability.

The noble Baroness, Lady Howe, also asked about the disabled students’ allowance. The noble Baroness will recognise that higher education institutions must meet their duties under the Equality Act. Students can challenge their institution under internal procedures if they do not get the support they should and can ultimately go to court. Currently, they would have to use the Student Loans Company procedures and, as I say, ultimately the courts. As far as appeals are concerned, the outcomes in the EHC plan are much broader than the objectives in the statement as they cover health and social care as well as education and training. Local authorities need to be able to take an integrated approach in describing outcomes in the EHC plan which reflect how a number of services may need to work together to deliver a particular outcome. Making the education and training outcomes themselves appealable could prevent local authorities taking an integrated approach in describing outcomes, but, of course, it remains the case that the special educational provision in an EHC plan is appealable through the tribunal.

My noble friend Lord Addington talked about encouraging charities to make their own version of the code in relation to their particular issues. We know that some organisations are already doing this, an example of which is the Communications Trust. I agree that such organisations are particularly well placed to do this. We are also working with the voluntary sector and other organisations to develop guides to the code of practice, particularly for parents, schools and NHS bodies. My noble friend also talked about training. In order to gain qualified teacher status, trainee teachers must meet national standards which require them to vary their approach to meet the different needs of children, including those with SEN. In 2012, some 76% of newly qualified primary school teachers and 89% of secondary NQTs rated their SEN training as “very good”. It is up to schools to decide what professional development their staff require, and it is true that the code sets out a range of sources of training materials.

For their part, the Government have supported improvements through the teaching schools programme, through their funding for the National Association for Special Educational Needs and its SEN and disability gateway, an online portal that provides access to a range of training resources, including on dyslexia, autism, speech, language and communication needs. We have also funded the training of more than 10,000 new SENCOs and are supporting Achievement for All 3As to provide leadership to help 1,200 schools in developing their provision for children with SEN. The code of practice makes it clear that school leaders should ensure that staff receive appropriate professional development, and the national training of new SENCOs includes an understanding of the main types of SEN, including dyslexia, speech, language and communication needs and autism.

The noble Lord, Lord Low, referred to special services for deaf children. The code recognises that it is up to the local authority to decide, with local children, young people and parents, what services to commission and to include in their local offer. That will include services for deaf children and those with other types of SEN. He asked whether the system will be ready in time for September. We have always been clear that the reforms will be implemented from this coming September. The key elements of the reforms were set out in a Green Paper in 2011. We have regularly been asking all local authorities in England how well they have been preparing, and local authorities are ready to go. Over 90% have reported that they are ready and the department is working closely with the others. Implementation will be gradual, and we have put in place a range of support, including the £70 million SEN reform grant in 2014-15 to help with plans for the reforms, along with £45 million in 2014-15 and £32 million in 2015-16 for the recruitment and training of independent supporters. We also have the regional SEN champions, drawn from the local pathfinders who have been testing the reforms in practice and from a range of delivery partners with specialist expertise in key areas such as person-centred planning.

I am extremely grateful to my noble friend Lord Storey for his supportive remarks. The noble Baroness, Lady Hollins, mentioned the guidance on mental capacity. We think that the guidance in the code on mental capacity is about right. It sets out how cases where young people and parents lack the mental capacity to take certain decisions under the Children and Families Act should be dealt with. We have provided a link to further advice on the Mental Capacity Act and have listed all the sections under Part 3 of the Children and Families Act in the regulations where mental capacity considerations come into play. However, I have listened to the points made by the noble Baroness and I will reflect on them. We will be able to consider this issue in a further review of the code.

19:15

I am grateful to the noble Baroness, Lady Hughes, for welcoming the code. We are coproducing with parents’ organisations a separate guide to the code for parents and separate materials for young people, both for publication as the reforms come into force.

We believe that the code of practice is clear about the importance of early identification for children in the early years. Chapter 5 of the code provides specific guidance on early identification for children from birth to two and outlines the forms of support that can be considered. It also sets out the measures in place to identify needs early on, including the duty on health bodies to inform the child’s parents and tell the local authority where they are of the opinion that a child under compulsory school age has, or probably has, a special educational need or disability. That enables the local authority to put support in place at an early stage. I can confirm that local authorities are as responsible for the provision for nought to two year-olds as they are for older children and young people.

It is true, as the noble Baroness says, that the SENCO in an FE college does not have to have a formal SENCO qualification. That is probably part of the point I would like to pick up with her about FE colleges, which I mentioned in opening. It is the Government’s policy to free colleges from unnecessary bureaucratic burdens. We therefore sought to keep the new burdens the Act places on colleges that are independent education providers to a minimum. However, it is, of course, important for there to be oversight of SEN co-ordination and for curriculum and support staff to have access to support in identifying a student’s needs. If they are concerned about progress or if they need further advice, many colleges already have posts that fulfil this role in a similar way to that of SENCOs in schools. While we do not believe, therefore, that it is necessary to extend the specific legal duty to have a SENCO to colleges, we have set out in the draft code of practice that colleges should ensure that there is a named person in the college with oversight of SEN provision to ensure co-ordination of support.

Of course, the code is not perfect and, of course, we will review it over time. I believe that we have come a long way, as my noble friend Lord Storey said, through the passage of this Act and through the code. Our reforms are much needed and have broad support across this House and beyond. Local authorities are ready to take these reforms forward in September, and our other partners who work with children and young people with special educational needs and disabilities are working to support that process. We will keep the code under review as the reforms bed down. The code is fundamental in helping us to improve support for children and young people who have special educational needs or are disabled, and their families, and I urge noble Lords to support it.

[Lord Ramsbotham]

Could the Ofsted accountability framework be made available to the House as soon as it is published, so that we can see it?

[Lord Nash]

I will take that back and will ensure quickly that I check precisely where Ofsted is. If Ofsted is not where we think it might be, we might give it a bit of a chaser.

[Lord Low of Dalston]

May I, too, ask a question of the Minister? May I take him back to the question of disabled students in higher education and their ability to challenge the provision that is being made? I think that the Minister said that they would need to go to court. I assume that that would be by way of judicial review; and, of course, that is going to be much more difficult now that the scope of judicial review is being so much curtailed and the availability of legal aid for judicial review is so much reduced. That is going to significantly undermine the ability of disabled students to use the courts to resolve these problems. I wonder therefore if the Minister would be willing to give further consideration to a more substantial right of redress for disabled students in higher education.

[Lord Nash]

Of course, they have redress through the internal procedures of their college, but I will undertake to look at the noble Lord’s point carefully.

[The Deputy Chairman of Committees (The Countess of Mar) (CB)]

My Lords, it might be helpful if I tell noble Lords that there is no need for them to say “Before the noble Lord sits down” in Grand Committee. The only time that one uses it is at Report stage.

Motion agreed.

Local Audit (Auditor Panel Independence) Regulations 2014

Monday 28th July 2014 Grand Committee

Motion to Consider

19:21

Moved by

[Lord Ahmad of Wimbledon]

That the Grand Committee do consider the Local Audit (Auditor Panel Independence) Regulations 2014.

Relevant document: 6th Report from the Joint Committee on Statutory Instruments

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Lord Ahmad of Wimbledon) (Con)]

My Lords, the regulations are among a number of statutory instruments which will put in place new arrangements for the audit of relevant authorities as set out in the Local Audit and Accountability Act 2014. Noble Lords may recall that my noble friend Lady Williams of Trafford kindly led the debate on the Wednesday before last on one of these instruments, an order delegating certain of the Secretary of State’s powers to the Financial Reporting Council. The others in the group are all negative instruments.

I do not wish to take up noble Lords’ valuable time by repeating in this debate the arguments supporting the abolition of the Audit Commission that were put forward during the passage of the Bill. However, it remains the view of the Government that the arrangements that we are putting in place, including these regulations, will create a more efficient audit system, giving greater responsibility to local bodies while providing greater opportunities for local people to hold those bodies to account. As has been said previously, this will save £730 million over the five years from 2012 to 2017—the duration of the outsourced audit contracts—and an estimated £1.2 billion over 10 years. As a direct result of this work being done by the private sector, the cost of external audit for local bodies will reduce by £30 million per annum.

Before explaining the content of the regulations, I should first explain their context. A local public body must appoint its own auditor unless it avails itself of such sector-led collective procurement opportunities as may exist in future. It is important, however, that any authority appointing its own auditor does so taking into account independent, impartial advice from a source other than itself or the auditor. For this reason, we require such authorities to appoint an auditor panel to advise on matters of auditor appointment, resignation or removal, and to advise on the maintenance of an independent relationship between the audited body and its auditor. The panel must have a majority of independent members and be chaired by an independent member.

We already have in the Local Audit and Accountability Act 2014 descriptions of some basic associations which will render an individual not independent for the purposes of auditor panel membership. As I am sure noble Lords will appreciate, the local public sector presents us with a complex set of interrelations and personal interests, and a few definitions around independence had not been comprehensively developed in time to be included in the local audit Bill. The regulations being considered today reflect the further consideration and full public consultation on the detail in the form of draft regulations. We considered it important to consult fully the relevant sectors to ensure that the regulations are proportionate and workable. That consultation took place in autumn 2013.

Respondents to the consultation were broadly content with the measures. Of those expressing a contrary point of view, one respondent argued that back-bench councillors—those not in cabinet in those local authorities running under executive arrangements—should be considered independent for auditor panel membership. However, as all members of an authority have responsibility for appointing the auditor, the Government consider that they cannot be independent from that decision.

Another respondent recommended a shorter, two-year expiry for the period of non-independence due to association with bodies specified in the draft regulations. However, it is the Government’s view that five years is an appropriate period for the effect of those associations to have expired. Among the consultation responses, there was an appetite for guidance on the practical application of definitions of independence. We will consider this with the sector.

More generally, before the introduction of what became the 2014 Act into Parliament, we consulted widely both on the broad policy approach and, in more depth, on the proposed framework, through the publication of the draft Bill. Noble Lords may recall the parliamentary pre-legislative scrutiny committee that provided detailed scrutiny of the draft Bill. During its passage through Parliament, we also provided draft regulations on several key provisions in the Bill, including a draft of the regulations we are considering today.

These subsequent provisions on independence will provide some further definitions of links or associations that would render a person not independent for the purposes of the auditor panel. Persons who have commercial links with the relevant authority to be audited, and persons who have links with a prospective or appointed audit firm, will be added to the existing definitions in the 2014 Act. This is a straightforward measure, to avoid any predominating conflict of interest in the deliberations of auditor panellists.

Persons who are, or have been in the last five years, members of an entity connected with the authority to be audited, where the connected entity is also a relevant authority under Section 2 of the Act, will also be added. For example, an integrated transport authority is an entity connected with a passenger transport executive. This measure is necessary because the connected entity will also have relevance to the accounts of the authorities with which they are connected, as the connected entity’s accounts are consolidated into them. As a connected entity that is a relevant authority may have members, it is necessary to exclude them as well as officers and employees.

For the Greater London Authority, that means persons who are, or have been in the last five years, members or officers of a functional body of the GLA—for example, the LDA or the London Fire and Emergency Planning Authority. Similarly, for a functional body of the GLA, that means persons who are members or officers of the GLA or who have been in the last five years. Just as members or officers of the GLA cannot be considered independent for membership of the auditor panel, the close relationship these functional bodies have with the GLA must also necessarily render their members and officers non-independent as regards the auditor panel.

It is important to note that the links or associations I have just described, and those described in Local Audit and Accountability Act 2014, need not necessarily disbar a person from being on an auditor panel. In fact, persons with those associations might well have just the kind of expertise that would be useful to the panel in its deliberations. The effect of these regulations on such individuals is only that they must not chair the panel or be counted towards the independent majority required on the panel. The independent view must dominate on these panels, even though that view may have drawn on the input of those who are not independent but provide expertise in their opinions. I commend these regulations to the Committee.

19:29

[Lord McKenzie of Luton (Lab)]

My Lords, I thank the Minister for his very full introduction of these regulations, which we will not oppose. It seems a long time ago that we debated the issues of auditor panels when we were considering the Local Audit and Accountability Bill, as it then was. Like the Minister, I do not propose to revisit some of the debates we had at that time, and certainly not at this hour. The Minister was right to focus on a sentence in the Explanatory Memorandum about local government containing,

“an extremely complex set of interrelations and personal interests”,

and on the importance, therefore, of these regulations containing independent definitions. Some of our discussions have been around the need for audit powers for authorities that had audit committees and around how the two would work together. We certainly accept that the audit committee could be the audit panel if it satisfied the independence rules, but many audit committees would not satisfy them because it is not uncommon for the chair to be an opposition member. Perhaps the Minister can say whether there has as yet—it is, of course, early days in this area—been any evidence of audit committees being reconfigured so that they could satisfy the audit panel requirement.

We discussed at the time the prospect of the audit panel being a sub-committee of an audit committee, again on the basis that its members would satisfy the independence requirements. Nothing in these regulations would appear to prevent this, and perhaps the Minister can confirm that. It was acknowledged that the definition of “independence” was incomplete when we debated the Bill, and was still incomplete when the legislation passed to the other place. The additions made by these regulations, as has been explained, amend the definition of independence to exclude someone with commercial links to the authority or prospective auditing firm, someone who is or has been a member of a connected authority, and persons who have been members or officers of the GLA or a functional body of the GLA. We support these changes to the independence requirements.

I have some questions for the Minister, and I promise that I will not press the matter of the definition of a “close friend”, which featured previously. I am sure that the Minister will have much more comforting views on that than the Secretary of State, who we teased at the time. None of these regulations precludes individual members having to identify an interest that may crop up. What is their obligation in this regard, in the event that there may be an issue before the audit panel of which an individual member would have to recognise a potential conflict of interest, as would happen in relation to any other committee of a local authority? Can we be clear on members’ obligations to declare an interest and where that leaves them in terms of their ability to vote on the business before the audit panel at the time? What is the position for non-elected members who might find themselves in the same position? What is the position when a majority of members of the panel satisfy the independence requirements, but one or more independent panel members are absent from a meeting? Can the meeting still proceed with its business?

Taken together, these changes produce robust criteria for independence, which are to be welcomed. Whether this is sufficient to ensure that a diverse range of audit providers will ensue from the whole process, I am not sure. Whether it adds to a sense that there is an appropriate level of expertise available to audit panels and local authorities remains to be seen. However, I should like to focus on something that is as much a drafting point as anything. As the Minister said, someone cannot be treated as independent when they have been an employee or partner of a current auditing firm. The same rules apply for a prospective auditor of the authority, who is defined as,

“a person who has made a bid, which has not been declined or withdrawn, for a contract of appointment as the authority’s local auditor”.

I can see that on day one, if you have been a member or a partner of firm A, you cannot be on a particular audit panel if firm A is auditing the local authority until five years have elapsed. It is the prospective bit which is more difficult because you would not necessarily know at the point of appointment whether or not somebody is going to bid to be an auditor. I am not quite sure how that works. Indeed, I am not quite sure about the concept of somebody making a bid to be an auditor which is then not declined or withdrawn. I am a bit out of date on these things but I think that is not how the process of appointing auditors generally works. Invitations are generally issued to a range of firms. I do not necessarily oppose the point, but I would welcome an explanation of how it will work in practice. Those are the only questions I have for the Minister.

[Lord Ahmad of Wimbledon]

I thank the noble Lord, Lord McKenzie, for his broad support for these measures. I am getting into a bit of a habit of saying that to the noble Lord across the Chamber or, indeed, the Committee. He raised some pertinent points, and he will appreciate that the effects will become much clearer as these changes bed down.

The noble Lord rightly commented on audit committees. Many councils have audit committees, but, conversely, not all local authorities have them. It is up to them whether they do so and we do not require them to have audit committees. However, the Act allows bodies to use the existing audit committee as their auditor panel provided—this is the key point—that it is independently chaired and has a majority of independent members. Where the audit committee does not have a majority of independent members, the body will be able to set up a small independent panel. We know that 31% of existing council audit committees include an independent member—indeed, 15% have two or more.

The noble Lord asked about conflicts of interest as regards an auditor panel. This will be detailed in the guidance which will be issued. He also asked how these committees are configured. It is too early for me to comment on that but we know that many committees already have independent members under the existing set-up. The noble Lord asked various questions about conflicts of interest and about what happens when an independent member is not present, even though he or she is a nominated member of the committee. As he knows as well as I do, the same rules apply to any council committee—namely, if it is inquorate, a decision could not be taken. The key issue here is that of independence. If the independent member is not present, the committee would not fulfil the criteria which have been laid down, and it would be inquorate.

[Lord McKenzie of Luton]

Can I just clarify that to make sure I understand? I think that I do. The Minister is defining “quorate” for these purposes in terms of a committee having the requisite number of independent members present.

[Lord Ahmad of Wimbledon]

That is exactly what I was stating. On the more general issues about conflicts of interest, the individual member has a responsibility in this regard. In both local government and the national Parliament, where there may be a conflict of interest there is a responsibility on the individual to reflect whether that conflict of interest has occurred.

The noble Lord asked a specific question about the auditors to be appointed. That is something that I need to think through. I will write to him with the details of that point. I hope that I have dealt with the questions that he raised.

Motion agreed.

Anti-social Behaviour, Crime and Policing Act 2014 (Consequential Amendments) Order 2014

Monday 28th July 2014 Grand Committee

Motion to Consider

19:40

Moved by

[Lord Taylor of Holbeach]

That the Grand Committee do consider the Anti-social Behaviour, Crime and Policing Act 2014 (Consequential Amendments) Order 2014.

Relevant document: 6th Report from the Joint Committee on Statutory Instruments

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)]

My Lords, the safe use of legal firearms is a priority for this Government. We remain committed to strengthening the effectiveness of the firearms licensing regime as necessary in order to protect people from harm. We introduced provisions in the Anti-social Behaviour, Crime and Policing Act 2014 to ensure that people with suspended sentences of between three months and three years are prohibited from possessing a firearm. The prohibition includes antique firearms and is for five years from the second day after sentence. We took this action in response to a recommendation which was made by the Home Affairs Committee in 2010. The committee recommended that persons with suspended sentences should be prohibited from possessing firearms in the same way as those who have served custodial sentences are so prohibited. The provision, which amends Section 21 of the Firearms Act 1968, came into effect earlier this month.

It was always the Government’s intention that those individuals prohibited from possessing a firearm by virtue of being subject to a suspended sentence should have the right to apply to a court to remove the prohibition. Unfortunately, this right was not included in the original provision, which is why we are seeking an amendment now. As soon as the legislation is amended, any person affected by the prohibition will be able to apply to the Crown Court, or in Scotland to the sheriff, for its removal. It is therefore important that the provision is implemented in the shortest time possible. I commend the order to the House.

[Baroness Smith of Basildon (Lab)]

My Lords, it feels like only yesterday that we had long and ongoing discussions about the anti-social behaviour Bill, and yet here we are, back already with an amendment to it. Obviously the amendment is necessary and I am grateful to the Minister for his candour in admitting that it was a mistake at the time which needs to be rectified. That is most helpful.

The order is limited, but the Minister will recall the wider discussions we had on this issue when we debated it. I was pleased to hear him say that the Government are committed to improving the system. He knows that we were critical of these clauses, and while we welcomed the changes, we did not think that they went far enough. This order is about the appeal process, which was something that was of concern to us when we looked at the granting of certificates and licences. We were critical of the piecemeal approach to making changes, and he will recall the discussions we had at the time. One of our strongest criticisms around the issue of appeals was in the area of domestic violence. We were disappointed when the Government rejected our amendment to provide that where there was substantiated evidence of a history of domestic violence, there should be a presumption against having a firearms certificate or a shotgun licence unless there are grounds for exemption.

We raised this issue because of evidence presented to the IPCC, and then set out in its report, on the appalling and tragic death of Mrs McGoldrick by Michael Atherton. It was quite clear that one of the reasons that Atherton was able to hold a legal firearm was because of flaws in the decision-making process in that, as the IPCC put it, the fears of an appeal were placed above the evidence of domestic abuse. Given all the problems such as his drinking and his violence, the report also said that his certificates were reviewed and a final warning letter was sent that,

“advised him that any further reports indicating any form of irresponsible or irrational or uncontrollable behaviour would result in the immediate revocation of his certificates”.

They were not taken away then because of the fear about his ability to appeal and now we are discussing appeals again today.

19:45

The Minister will realise why we put that amendment forward at the time. It concerned situations where there was evidence of domestic violence. At present, there, have to be convictions, and even then the relevant action is not possible. However, today we found out from police forces across the country through a freedom of information request that community resolutions—which should be used only for low-level crime such as graffiti—have gone up from around 1,300 in 2009 to more than 3,000 now in cases of domestic abuse. As there has not been a caution or prosecution, this is not recorded anywhere. Our great fear is that if people have committed an act of domestic abuse or domestic violence and it has not gone to the courts, with the police deciding, “We can sort this out between us”, it is not recorded in any way so when the police come to look at an application for a firearm, the evidence they need is not available. Our proposed amendment to the Bill would have allowed the evidence of a community resolution to be taken into account. That is not now available. It is quite clear that domestic violence needs to be a criminal offence and not just something that can be dealt with by community resolutions.

I have some questions for the noble Lord. We support the order. We think it is right but that it opens up deeper and wider issues. In the light of the IPCC comments, what assessment has been made of the right of appeal? What assessments have been made of the impact of the appeal process on a police force’s decision to issue a certificate or a licence for a firearm? Does this order mean there will be any further guidance to police in relation to the issuing of certificates and appeals? My next point is key. Given all my points about community resolutions, such as not prosecuting and cases being disposed of but not recorded, does the Minister think that the use of community resolutions in domestic violence cases makes it more likely that those with a history of domestic violence, but not a conviction or caution for it, could more easily obtain a legal firearm? I think that is a very serious point.

We are saying to the Minister that, in looking at appeals, there needs to be a much wider consideration of the process, the place and the implications of the process of appeal in the decision to grant licences. Clearly sometimes it is inappropriate, as it was in the case of Michael Atherton, who then murdered his former partner. We support the order but hope the noble Lord can say that the Government are going to reconsider the impact of the appeals process on decision-making and that the police should be able to take into account the evidence we asked for, not just convictions, as is currently the case.

[Lord Taylor of Holbeach]

I thank the noble Baroness for her contribution in debate to the passage of this order. I know exactly the feeling which lies behind her comments and I think that, to a very large extent, there is some common ground between us. Certainly, both of us would view domestic violence and domestic abuse as being totally wrong, whoever the perpetrator.

This issue has moved up the political agenda. We should acknowledge that my right honourable friend the Home Secretary, Theresa May, has talked frequently on it. The Prime Minister made a speech last week in which he mentioned it. The shadow Home Secretary, Yvette Cooper, has similarly pointed out the importance of tackling domestic abuse and domestic violence. I understand that. This order is not directed solely at domestic violence cases; it is a general order that enables people who have been disbarred from having a licence because of a caution or, as the law provides, a conviction, to apply for removal of the prohibition. I am sure that the noble Baroness in her support for the order does not want to remove the right of appeal from people in such circumstances.

The noble Baroness asked—and it is a fair question—whether the increase in community resolutions to deal with domestic violence will mean that more perpetrators of domestic violence are able to get firearms licences. The Government have taken decisive steps to ensure that community resolutions are used only in those cases where they are suitable. There must be cases where such resolution is suitable. We have also strengthened the way in which domestic violence is considered in relation to firearms licensing applications. New guidance was published in July last year. It is clear that evidence falling short of a conviction, which would include a community resolution, can be taken into account when deciding on suitability for a licence.

[Baroness Smith of Basildon]

That is very helpful. Can the Minister assure me that the guidance refers to community resolution, or does it refer just to it not having to be a conviction or caution?

[Lord Taylor of Holbeach]

I cannot categorically say that, but the advice I have is that community resolution would be included. Of course, I am prepared to write to the noble Baroness; it is difficult when we are at the end of a session like this to give proper advice to her.

Each case must be assessed on its merits. I have always said that it is important that police discretion should lie at the bottom of these issues. Evidence of domestic violence will generally indicate that a person should not be permitted to possess a firearm. I say here on the record that that is the Government’s position. We have provided guidance on the updated provisions in a Home Office circular. Authorised professional practice on firearms licensing has been brought in by the College of Policing to complement the Home Office guidance and to ensure consistency and high standards across police firearms licensing departments. Her Majesty’s Inspectorate of Constabulary will also conduct an inspection of firearms licensing departments in early 2015.

I have before me details of some cases which I do not think will necessarily add to the debate this evening, but if I can write to the noble Baroness, I will do so. I could include, for example, the details of the Atherton case and show how that fits into the context of these orders. As we know, domestic violence is already covered by a whole range of criminal offences. The question that I think lies at the heart of the noble Baroness’s challenge is whether there should be specific mention in law of domestic violence. We need to think very carefully about that because the graduation between violence and domestic violence is often a difficult one. The established law provides for the police to prosecute in domestic violence cases.

[Baroness Smith of Basildon]

I do not wish to detain the Committee and I am particularly grateful for the Minister’s offer to write to me. I know it is difficult; I said to him earlier that I wanted to raise the issue and I am grateful he has allowed me to do so. From what he said there does not seem to be a mile between us on this, but the difference is that we are suggesting that a conviction for domestic violence should lead to a presumption against being able to obtain a weapon. He says that will be covered in guidance, but the IPCC was quite clear that the discretion the police had made them very nervous about rejecting a licence, even in the case of Michael Atherton, because the appeals process can be challenging and is very expensive. I will not pursue it today, but if, when he writes to me, he can look at whether the guidance that now exists would address the failures in the Atherton case, that would be very helpful. I would be grateful if he could do that.

[Lord Taylor of Holbeach]

I thank the noble Baroness for that. It is important to understand that the order we are considering is about an appeal to a court—the Crown Court in the case of England or the Sheriff Court in the case of Scotland. It is important not to conflate that with the police’s view of whether they should grant a licence for another situation where there is suspicion of domestic violence. I understand that the noble Baroness wished to raise it, but it is a slightly different issue. It is important not to conflate the purpose of this order with the broader question of how we tackle domestic violence. I beg to move that the order be considered.

Motion agreed.

Committee adjourned at 7.56 pm.

House of Lords

Monday 28th July 2014 Lords Chamber

Monday, 28 July 2014.

14:30

Prayers—read by the Lord Bishop of Sheffield.

Debt Management Organisations

Monday 28th July 2014 Lords Chamber

Question

14:37

Asked by

[Lord Sharkey]

To ask Her Majesty’s Government what steps they are taking to ensure that debt management organisations serve the interests of their clients.

[Lord Newby (LD)]

My Lords, the Government have given the Financial Conduct Authority responsibility for protecting customers of debt management firms. Debt management firms are subject to binding FCA conduct rules and must treat customers fairly. FCA prudential and client money requirements are also being introduced to protect customers’ money. The FCA will thoroughly assess every debt management firm’s fitness to trade as part of the authorisation process from October this year.

[Lord Sharkey (LD)]

My Lords, half of the clients of fee-charging debt management companies do not know that there are equivalent free services. These clients are mostly recruited by cold calling and 31 million cold calls were made last year. The FCA says that it does not regulate these calls. Can the Minister say who does regulate them and are cold callers required to advise of the existence of free debt management services?

[Lord Newby]

On the second part of the noble Lord’s question, debt management companies will be required under the new rules to signpost consumers to free debt advice, which will be a major improvement. There are two elements of regulation of cold calling and unsolicited text messages. The ASA has some responsibility in that area and it has already taken action to ban payday lenders’ use of unsolicited text messages. As with its regulation of other financial services markets, the FCA is committed to ensuring that cold calling by phone, text or e-mail makes the identity of the firm and the purpose of the communication clear to those being called.

[Lord Kennedy of Southwark (Lab)]

In a recent Parliamentary Answer I found out that since 2005 companies in the financial services sector have been fined £1.2 billion. Will the Minister agree to look at the points made by the noble Lord, Lord Sharkey, and maybe use a small portion of those fines to fund good charities, good organisations and credit unions which actually help people who are in debt?

[Lord Newby]

My Lords, as the noble Lord knows, the Government are already committed to funding credit unions to a considerable extent. On the issue of free money advice, the Money Advice Service has allocated some £38.1 million this year to fund free debt advice, which will be given through organisations such as Citizens Advice and StepChange.

[The Countess of Mar (CB)]

My Lords, I had just such a cold call this morning and the person who made it did not leave their address or their name. It was a tape-recorded message. Is there anything that I can do about that? Can the Minister say what will be done to protect people who have pension funds from being scammed? There was a lot about that on the radio this morning.

[Lord Newby]

The FCA has very considerable powers to regulate all financial services firms in this area. In the sector we are looking at, it took on responsibility earlier in the year. It has introduced stricter rules and is putting in place new authorisation processes. But if the FCA finds that despite the way in which it is tightening up its procedures, there are still significant problems in respect of cold calling, it has the powers to intervene further.

[Baroness Chalker of Wallasey (Con)]

Is it possible for my noble friend to insist that somebody who is either erroneously or speculatively called and does not want the services of a debt management organisation can dial 1471 and get the number so that we can put a stop to some of this calling? I have tried to do it; it does not work; and I am fed up with it.

[Noble Lords]

Hear, hear.

[Lord Newby]

My Lords, it is clear that many noble Lords share my noble friend’s view that unsolicited cold calling is a nuisance. I think that people find this in a whole raft of areas, whether it is double glazing salesmen or this one. The absolutely crucial thing about cold calling is that, certainly for financial services products, those making the calls should be absolutely clear who they are calling from and why they are calling so that people have the opportunity to put the phone down quickly.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I declare an interest as chair of StepChange, the debt charity. Is not the problem with debt management companies that the regulatory functions, as the Minister said, have only just started and that we are not taking advantage of some of the measures that already exist in the United Kingdom? Has the Minister looked at the situation in Scotland, where statutory relief is available to those who get involved in free debt advice schemes so that they are not charged additional interest and the pressure from people such as cold callers and others is reduced?

[Lord Newby]

My Lords, I am not aware of the situation in Scotland but I will willingly look into it.

South Sudan

Monday 28th July 2014 Lords Chamber

Question

14:43

Asked by

[Baroness Hodgson of Abinger]

To ask Her Majesty’s Government what steps they are taking to ensure that any future peace settlement in South Sudan is inclusive.

[Lord Wallace of Saltaire (LD)]

My Lords, we have made clear to all parties in South Sudan the need to support an inclusive peace settlement, through high-level messaging from UK Ministers and through the close engagement of the UK’s special envoy to the South Sudan peace talks. We have also directly supported efforts to ensure that South Sudanese civil society is engaged, notably through our backing for the IGAD-led symposium in June. We welcome the announcement that peace talks are planned to restart on 30 July. The UK will continue to press for an inclusive outcome.

[Baroness Hodgson of Abinger (Con)]

I thank the Minister for his Answer. I gather that the situation in South Sudan is absolutely dire at the moment. There is acute food insecurity, about 1.4 million people have fled their homes and there are around 4 million who need acute humanitarian assistance. Many of them are women who have fled with their children. I gather that there are very high levels of sexual violence and that women and girl children are particularly vulnerable. Can the Minister please assure me that particular attention will be paid to the women’s concerns and that their voices will be heard at the peace talks?

[Lord Wallace of Saltaire]

My Lords, the situation is dreadful. Many of those who have fled their homes have therefore missed the planting season, which means that there is a real possibility of very substantial famine in six to nine months’ time. We should in no sense underestimate how serious the situation is. Of course, it is not simply one conflict; there are all sorts of overlapping local and trans-border conflicts that affect South Sudan. The Government are fully engaged. We are glad to see that UNMISS, in its assistance to refugee camps, is paying special attention to the need to protect women and children, but we are conscious that many are at risk.

[Lord Boateng (Lab)]

My Lords, very often in that part of Africa the church is the sole common point of reference between the different tribal and ethnic groups. Will the noble Lord please ensure that both the FCO and DfID make use of the good offices of the ecumenical representative of the World Council of Churches and of the councils of bishops and evangelical churches in order to ensure that there is proper resourcing for peace and reconciliation work? It does not come cheap but it is effective.

[Lord Wallace of Saltaire]

I entirely agree that the churches are among the strongest and most widespread civil organisations in that deeply embattled country. Of course, many of the civil society organisations are now in refugee camps outside Sudan. I pay a particular compliment to those aid workers who are helping in South Sudan, in conditions of very considerable insecurity. Many of them come from British NGOs. We all recognise how difficult the situation is and we are certainly working with the churches as far as we can.

[Lord Alton of Liverpool (CB)]

Does the Minister agree that too much time in South Sudan has been focused on state building rather than nation building, and that that is reflected in the 38% of revenue that has been spent on armaments in South Sudan compared with the 7% spent on education? As we approach the peace process, will he ensure, as the noble Baroness, Lady Hodgson, argued, and as the noble Lord, Lord Boateng, has just said, that the representative nature of the peace process becomes more apparent, including not only warlords but many of those who have suffered, not least the women in South Sudan?

[Lord Wallace of Saltaire]

My Lords, this is, of course, a very new country and there has not been very much time for either state or nation building so far. We are certainly working through IGAD to pull in as many civil society organisations as we can in order to ensure that we do not have warlord-dominated negotiations of the sort the noble Lord suggested.

[The Lord Bishop of St Albans]

My Lords, it is evident that the long-term process of finding an inclusive Sudanese-led reconciliation can begin only once hostilities cease and a political settlement and resolution is reached. This is why international diplomacy is so vital. Will the noble Lord tell the House what plans the Government have to address the current understaffing of the UK Sudan unit, which has a role in this?

[Lord Wallace of Saltaire]

My Lords, the number of staff in the UK Sudan unit has fluctuated over the past few months; my understanding is that it is now rather larger than it was two or three months ago. I do not think that we can wait until the fighting stops to begin negotiations; local fighting is likely to continue for some considerable time and we have to start to move to construct at least the basis of some form of government now.

[Lord Collins of Highbury (Lab)]

My Lords, I very much welcome the comments of the noble Lord, but he just mentioned the number of refugees outside South Sudan. In fact, 180,000 refugees have arrived in Ethiopia and the number is expected to grow to 350,000 by the end of the year. What further steps will the Government take to ensure that Ethiopia and other neighbouring countries do not themselves collapse under the weight of this terrible tragedy?

[Lord Wallace of Saltaire]

My Lords, that is a problem not only for this conflict but for the Syrian conflict and the neighbours of Syria as well. The United Kingdom is the second-largest donor to South Sudan and those donations include assistance to refugees in surrounding countries. IGAD, the international action group, operates as a means through which all the neighbouring countries get together. I emphasise how serious the conflict is. It is estimated that perhaps 7 million out of the 10 million people in South Sudan may be short of food or under famine conditions by this time next year.

[Lord Avebury (LD)]

My Lords, I welcome the agreement between the parties that representatives of the people displaced by the conflict will take part in the peace talks. Will the representatives be selected by IGAD or by some other means, and if so, what will be the process? Will the talks to be started on Wednesday cover the details of how the transitional Government of national unity is to be established?

[Lord Wallace of Saltaire]

IGAD is currently consulting outside the country with potential civil society representatives who will be included in these discussions. This will in no way be a beautiful or perfect set of arrangements. If we manage to achieve some sort of transitional Government of national unity, we will have done extremely well.

[Baroness Hayman (CB)]

My Lords, I declare an interest as a trustee of the Disasters Emergency Committee and echo the Minister’s comments about the courage and commitment of the workers for those aid agencies who are out in South Sudan. They all report a desperate humanitarian situation in which it is not just the lack of resources—I pay tribute to what the UK Government have done in this—but ongoing fighting that is a barrier to those most in need receiving aid. Does the Minister agree that with more than 50% of farmers not able to plant in this year’s rainy season, unless a long-term enduring agreement is reached, this crisis will not only continue but deepen?

[Lord Wallace of Saltaire]

My Lords, there has never been an effective and functioning state in South Sudan. It is a new country born out of civil war. It is going to take a long time to construct an effective state administration with the ability to provide education and order within the 10 provinces with a large number of tribal groups and some 200 different languages. This is a major preoccupation with which all the states around South Sudan are engaged. Britain, the United States and Norway represent the troika of outside Governments who are most concerned. Of course we want other Governments to be concerned. It is good news that China has now recognised that it also has interests at stake and is considering providing additional troops to the UN peacekeeping forces.

[Lord Anderson of Swansea (Lab)]

My Lords, of the Governments who are most concerned, Uganda and Kenya are members of the Commonwealth. The Commonwealth has substantial experience in the field of internal reconciliation. Do the Government see any role for the Commonwealth and for members of the Commonwealth in this sad situation?

[Lord Wallace of Saltaire]

It is also important to ensure that we have Ethiopia and—as far as there is a Government in Somalia—Somalia on board. There are problems with allegations that Ugandan troops are too close to the side of President Kiir and biased against Mr Machar, so there are a number of delicacies that would raise questions about a Commonwealth role.

[Viscount Ridley (Con)]

My Lords, will the Minister confirm that efforts to eradicate the guinea worm continue in this region? It is a terrible parasite that is on its last legs. Through the excellent work of this Government supporting the Carter Center, it is down to its last handful of cases in South Sudan. It would be a terrible pity if the parasite were to escape again.

[Lord Wallace of Saltaire]

My Lords, in conditions where it is extremely dangerous for aid workers to be outside towns and where there are now severe problems in making sure that polio vaccination continues, I doubt that we have the capacity at present to ensure that the guinea worm eradication programme continues, but I will write to the noble Viscount.

Railways: High Speed 3

Monday 28th July 2014 Lords Chamber

Question

14:54

Asked by

[Lord Holmes of Richmond]

To ask Her Majesty’s Government what the timeline is for the development, construction and completion of HS3.

[Lord Popat (Con)]

My Lords, the Government have asked Sir David Higgins to produce an ambitious proposal for connecting the great northern cities. This work will look at how to bring the benefits of high-speed rail to the north more quickly, as well as initial proposals for faster east-west connections, including options on route, timescales and cost, by the time of the Autumn Statement later this year.

[Lord Holmes of Richmond (Con)]

My Lords, does my noble friend agree that if combined with high-speed broadband across the region and increased capacity at Manchester Airport, High Speed 3 has the capacity to once again enable the northern cities to be economic powerhouses—a 21st-century Cottonopolis?

[Lord Popat]

My Lords, we need to unlock the economic potential of our northern cities. The cities of the north are individually strong, but collectively not strong enough. Therefore, the floating idea of the Chancellor to have an HS3 was welcomed, but we have a lot of work to do on that.

[Lord Rosser (Lab)]

My Lords, last week in this House my noble friend Lord Faulkner of Worcester stated that it was,

“generally understood that the Chancellor’s announcement about HS3 came as a complete surprise to the Department for Transport”.—[Official Report, 21/7/14; col. 926.]

The noble Baroness, Lady Kramer, did not deny that, and today is a second opportunity for a government Minister to do so. Is the commitment from the Government a commitment to build HS3? Is it, 10 months from an election, simply an announcement to look at the case for HS3, from a Chancellor from a northern constituency who was speaking at the Museum of Science and Industry in Manchester and worried about whether the Conservatives would hold on to such seats as Calder Valley and Colne Valley? If it is a commitment to build HS3, what benefits were revealed by the cost-benefit analysis, and who did it?

[Lord Popat]

My Lords, that was a long question—in fact, many questions. The Chancellor has set out a vision for how to unlock economic potential in northern cities. Something remarkable has happened to our northern cities in the last 30 years. They have done very well. It is time that we take them to another level. One way to do so is to have the infrastructure investment. We are having HS2, which has been widely discussed in this House. HS3 is a floating idea. We wait for a further report from David Higgins to justify a business case for HS3. But we need to rebalance the economy, we need to support our northern cities and HS3 will probably become a welcome idea.

[Lord Bradshaw (LD)]

My Lords, I wonder whether the Minister will reflect on the fact that whenever HS3 is built it will be a long time, and there is a very urgent need to improve east-west connections right across the country—from Norwich to Liverpool, Lincoln to Birmingham and so on. Is it not much more important to concentrate on getting these schemes working and, at the same time, to make provision for a through facility at Leeds which will link Liverpool, Manchester, Leeds and Hull and completely revolutionise the situation?

[Lord Popat]

My Lords, the Government have invested more than £600 million for the Northern Hub. I agree with the noble Lord that we need to speed up the works that are going on in the Northern Hub to make sure that we have the right connectivity between our major cities and towns. I agree with him that the work is in progress but there is more to be done.

[Baroness Farrington of Ribbleton (Lab)]

My Lords, the Minister confused me a little by referring to a floating idea. In the north, we like straight yes or no. Are the Government—the Department for Transport, the Chancellor and the whole Government—committed to meeting the needs of the north, or could this idea float away again after the general election?

[Lord Popat]

My Lords, the government policy is to rebalance the economy. The announcement by the Chancellor was to see how we could unlock the economic potential of the northern cities and make them into a hub for economic growth. HS3 is an idea that has come from the Chancellor, and we are quite categorically saying that this will depend on the report that we will have from David Higgins before the Autumn Statement.

Schools: Local Oversight

Monday 28th July 2014 Lords Chamber

Question

14:58

Asked by

[Baroness Jones of Whitchurch]

To ask Her Majesty’s Government what plans they have to increase local oversight of schools.

[The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)]

My Lords, arrangements for the management of academies and free schools will be enhanced by the collective expertise and wisdom of eight regional schools commissioners supported by their head teacher boards. Two RSCs are already in situ, and the other six start in September. We have also strengthened the guidance for local authorities on intervening in maintained schools, and inspections are undertaken using a risk-based approach, with more frequent inspections for those schools not performing well.

[Baroness Jones of Whitchurch (Lab)]

I thank the Minister for that reply. Last week, when dealing with the Trojan horse Statement, he conceded that the department has to take its fair share of the blame for the failings that occurred in Birmingham. However, does he realise that, at the heart of the situation, people have lost confidence in the Secretary of State’s ability to manage thousands of schools from the centre? Does he not see that the proposed regional commissioners for academies who he has just mentioned just add a further level of confusion, as they will not apply to all state schools? Surely what is needed here is a strong system of local oversight for all schools, such as our proposed directors of school standards, that would give parents, teachers and governors real confidence that their voices will be heard and that poor standards will be addressed.

[Lord Nash]

I do not recognise the picture that the noble Baroness paints. We believe that this system is efficient; in devising it we were advised by people who have set up national and international organisations. We find that the position of the party opposite is confusing. On the one hand its leader tells us that nobody wishes to revert to the local authority system, while on the other its policy adviser, Mr Blunkett, says that he wants to have between 80 and 150 directors of school standards, all supported by their own bureaucracies, and many of whom will be recycled local authority people. We do not think that that is the way forward. There is no role for RSCs on maintained schools; that is a role for local authorities, and, as I say, we have clarified their role.

[Baroness Williams of Crosby (LD)]

My Lords, my noble friend will recognise, I think, that a substantial number of academies very much regret the lack of clear local accountability. Can he therefore tell us whether the new Secretary of State will consider a method under which local accountability can be more clearly established so that problems such as those arising from the Trojan horse story in Birmingham will be obviated at local level and not have to turn into a national horror of one kind or another?

[Lord Nash]

Our solution to ensuring better local accountability is to have a system of regional schools commissioners which is run by head teachers. Personally, I trust head teachers to be better wired into their local systems than bureaucracies and bureaucrats are, any time. We are also increasingly seeing the emergence of regional multi-academy trusts, which are proving particularly effective.

[Baroness Bakewell (Lab)]

My Lords, after the Trojan horse allegations, it has been reported that teachers who spoke out at the time are now suffering harassment and the threat of losing their jobs. What do the Government propose as a way of protecting whistleblowers locally so that they are given enough courage to come forward and speak out?

[Lord Nash]

The noble Baroness raises a very good point. We are doing all that we can to ensure that that does not happen. Indeed, there are some teachers we are particularly concerned about who had themselves been causing harassment and who have now been suspended from their jobs. We are talking to Ofsted about expanding its whistleblowing arrangements to cover exactly this kind of situation.

[Baroness Howe of Idlicote (CB)]

My Lords, will the Government ensure that mandatory training is introduced to reduce the risks associated with school governance? I declare an interest as president of the National Governors’ Association.

[Lord Nash]

We have not yet gone as far as mandatory training. We have a high expectation that all governors will be trained where necessary and that they should be chosen for their skills. We brought in this big focus on skills rather than representation: governors may come from all walks of life, but they must have the expectation that they will be trained. We have also brought in tightening regulations so that where governing bodies feel that one of their governors needs training and they refuse to take that training, they can be suspended.

[Baroness Perry of Southwark (Con)]

Can my noble friend confirm for me and for the House that the overwhelming success of the vast majority of free schools and academies is the best evidence that allowing autonomy and freedom to schools and heads is the best way of raising standards?

[Lord Nash]

I am grateful to my noble friend for her comments. The overwhelming success of the programme is unarguable. Some 24% of free schools are rated outstanding, which makes them by far our highest performing group of schools; converter academies are far more likely to retain or increase their Ofsted rating at the next inspection; and sponsored academies are increasing their performance at a rate approximately twice that of other schools.

[Baroness Sharp of Guildford (LD)]

Can the Minister please tell the House what are the responsibilities of the members of the local governing board when the academy chain has trustees who appoint the head?

[Lord Nash]

These are arrangements which are sorted out under a scheme of delegation between the trustees and the local governing board. They can delegate quite a few of the responsibilities, or limit them, but all academy trusts have to make this very clear in their schemes.

[Lord Grocott (Lab)]

Whatever the arguments—and they are substantial—between the two sides of the House on the merits of the Government’s policy of allowing so great a range of different administrations for secondary schools, what is unarguable, as I am sure the Minister will agree, is that the Government’s programme has resulted in a huge increase in the Secretary of State’s personal responsibility—whoever he or she might be—for the ultimate management of so many secondary schools. Given that no individual could possibly do this on their own, can he tell us what structures are in place within the Department for Education, how many people are employed within those structures, and how much it costs? We might then get some sort of measure of how this awesome responsibility is being undertaken and who on earth is undertaking it.

[Lord Nash]

The Secretary of State, to put it simply, has always been responsible for schools in this country. I cannot put it better than this:

“If a school is not delivering sound education for its pupils, and a different way of running the school would yield a different and better result, it is our duty to institute the change”.

I could not have put it as well—and not surprisingly, as that was a former Prime Minister, Tony Blair, speaking last week. We believe that the regional schools commissioners are the right structure. As for cost, this Government inherited a department from the previous Government that had no concept of value for money. We have halved the cost of running it in real terms. I will write to the noble Lord if he would like the figures. However, the actual cost of running the regional schools commissioners will be something like £5 million, compared with the huge expense of the bureaucratic system that the party opposite proposed to put in place.

[Baroness Sharples (Con)]

Can my noble friend say how many of these schools have children arriving at them for whom English is their second language?

[Lord Nash]

The proportion of pupils in schools with English as a second language has risen substantially. I will write to the noble Baroness with details on the different types of schools.

[The Earl of Listowel (CB)]

My Lords, the Minister has pointed to the importance of head teachers in his answers. Can he say whether we have a sufficient number of head teachers in secondary and primary schools now?

[Lord Nash]

It has always been the case in the recent past that we have appeared to have a shortage of head teachers. We are increasingly seeing younger heads coming forward and academy chains growing their own senior leadership teams. Teaching schools are now, of course, also playing an increasing part.

[Baroness Oppenheim-Barnes (Con)]

Does my noble friend agree that the previous Secretary of State for Education has been a hero in this field in introducing and carrying out policies that have greatly enhanced educational opportunities for children throughout the country?

[Lord Nash]

I entirely agree with the noble Baroness’s comments. He is the first Secretary of State for many years, I think, to stop the decline in school standards. His changes, which are dramatic, will take years to have effect, but we are already seeing quite significant early signs of the positive nature of their effect.

Right to Die at Home Bill [HL]

Monday 28th July 2014 Lords Chamber

First Reading

15:08

A Bill to create a right to die at home.

The Bill was introduced by Lord Warner, read a first time and ordered to be printed.

Consumer Rights Bill

Monday 28th July 2014 Lords Chamber

Order of Consideration Motion

15:08

Moved by

[Baroness Neville-Rolfe]

That it be an instruction to the Grand Committee to which the Consumer Rights Bill has been committed that they consider the Bill in the following order:

Clauses 1 to 60, Schedule 1, Clauses 61 to 63, Schedule 2, Clauses 64 to 70, Schedule 3, Clauses 71 to 75, Schedule 4, Clauses 76 and 77, Schedules 5 and 6, Clauses 78 and 79, Schedule 7, Clause 80, Schedule 8, Clauses 81 to 91.

Motion agreed.

Paternity and Adoption Leave (Amendment) Regulations 2014

Monday 28th July 2014 Lords Chamber

Copyright and Rights in Performances (Extended Collective Licensing) Regulations 2014

Community Interest Company (Amendment) Regulations 2014

Motions to Approve

15:09

Moved by

[Baroness Neville-Rolfe]

That the draft regulations laid before the House on 23 and 26 June be approved.

Relevant documents: 4th and 5th Reports from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 21 July.

Motions agreed.

Electricity Capacity Regulations 2014

Monday 28th July 2014 Lords Chamber

Electricity Market Reform (General) Regulations 2014

Contracts for Difference (Allocation) Regulations 2014

Contracts for Difference (Electricity Supplier Obligations) Regulations 2014

Contracts for Difference (Definition of Eligible Generator) Regulations 2014

Contracts for Difference (Standard Terms) Regulations 2014

Renewables Obligation Closure Order 2014

Motions to Approve

15:09

Moved by

[Baroness Verma]

That the draft regulations and draft order laid before the House on 23 and 30 June be approved.

Relevant documents: 4th and 5th Reports from the Joint Committee on Statutory Instruments, 6th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 24 July.

Motions agreed.

Road Safety (Financial Penalty Deposit) (Appropriate Amount) (Amendment) (No. 2) Order 2014

Monday 28th July 2014 Lords Chamber

Drug Driving (Specified Limits) (England and Wales) Regulations 2014

Motions to Approve

15:09

Moved by

[Lord Popat]

That the draft order and draft regulations laid before the House on 19 June and 3 July be approved.

Relevant documents: 3rd and 6th Reports from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 24 July.

Motions agreed.

Local Government (Transparency) (Descriptions of Information) (England) Order 2014

Monday 28th July 2014 Lords Chamber

Motion to Approve

15:10

Moved by

[Lord Ahmad of Wimbledon]

That the order laid before the House on 24 June be approved.

Relevant document: 5th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 24 July.

Motion agreed.

Criminal Justice and Courts Bill

Monday 28th July 2014 Lords Chamber

Committee (4th Day)

15:10

Relevant documents: 2nd Report from the Constitution Committee, 3rd Report from the Delegated Powers Committee, 14th Report, Session 2013-14, from the Joint Committee on Human Rights

Clause 50: Wasted costs in certain civil proceedings

Amendment 69A

Moved by

[Lord Beecham]

69A: Clause 50, page 54, line 31, leave out “must” and insert “may”

[Lord Beecham (Lab)]

My Lords, the amendment is to Clause 50, which deals with the Government’s new provisions in respect of wasted costs orders. Such orders fall to be made at the discretion of the court when it is thought by the court that the conduct of lawyers for the parties, or one of the parties, may have acted in such a way, either by deliberate act or by act of omission, so as to prolong the case unnecessarily and lead to costs which should not have fallen to either side or to the court system to pay.

The Government consulted about improving the system, as they described it, for wasted costs orders, and have in the end come forward with this clause, which requires the court to consider reporting lawyers to the regulatory agency to which they are responsible. Those agencies would be the Law Society, the Bar Council and, I assume—perhaps the Minister will correct me if I am wrong—the Chartered Institute of Legal Executives, if it is involved. These considerations would apply both to court proceedings and to proceedings in the tribunal system.

There was a consultation on this matter, and the responses of the Bar Council and the Law Society were quite interesting. The Bar Council certainly took the view that the Government’s proposals were flawed and opposed them in pretty forthright fashion. They responded to a number of questions—for example, on whether the fee should be charged to cover the costs of any oral hearing of a wasted costs order and whether that fee should be contingent on the case being successful. The Bar Council’s response was that:

“A person seeking to defend a wasted costs application should not be required to pay a fee at an oral hearing … It is appropriate to require a party asking for a wasted costs order to pay a fee upon making the application, as a disincentive to unfounded applications and satellite litigation”.

I assume that, since the Government are not legislating on that point, they have accepted the Bar Council’s view in that respect.

A general question was also asked about the possible scope for any changes relating to wasted cost orders for cases other than judicial reviews. The Bar Council’s response to that was very clear. It stated that the Jackson reforms, instituted by Lord Justice Jackson over a year or so ago now,

“ought to be permitted to take their full effect before further changes are made. The costs budgeting provisions of the Civil Procedure Rules are intended to reduce the costs of civil litigation as a whole and ought to reduce the prospects of a party paying for the avoidable errors of a legal representative”.

It did not see how any additional cost provisions would materially assist.

15:15

The Law Society was somewhat briefer, as is the society’s wont in these matters, and described what was Clause 36 in the Bill as debated in the House of Commons—now Clause 50—as “unnecessary”. The society made the valid point that:

“The court already has the discretion to make a lawyer personally liable to pay any litigation costs”.

The additional sanction therefore seemed to be “superfluous”—it might be thought a piece of legislative window dressing. The society also made the statement, on which it would be interesting to hear the Minister’s comments, that:

“The Solicitors Regulation Authority would not take further action if notified that a wasted costs order has been made against a solicitor”,

on the grounds that:

“The existing liability to a financial penalty is sufficient sanction”.

If the solicitor transgressed—heaven forefend that that should ever happen, but if it did—then the financial penalty incurred by the imposition of a wasted costs order by the court would be sufficient and the Law Society would not take any further steps. There was also a suggestion that reference should be made to the legal aid authority, but it seems it would have no power to do anything. Quite what the rationale of that would be remains to be seen.

The clause has no place in the Bill at all. It is not necessary, for reasons which have already been explained. It is purely window dressing. The sensible thing would be for the Government to withdraw it—hence our intention to oppose it. On the amendment, if the clause, despite all logic, remains in the Bill and is enacted, to make it clear that it does not impose a strict duty on the court or tribunal, the wording should be such that the court “may” make such a reference, rather than be required to make such a reference, which looks like the implication of the clause as drafted. I beg to move.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, a wasted costs order transfers costs caused by the legal representative’s improper conduct from the party to the legal representative personally. The clause places a new duty on the courts, where a wasted costs order is made, to notify a legal representative’s regulator—I confirm that all the regulators mentioned by the noble Lord, Lord Beecham, would be included, within the definition of the 2007 Act—and/or the Legal Aid Agency, where the court considers it appropriate to do so.

The clause’s rationale, and the reason it should stand part of the Bill, is that there are no further formal consequences when a wasted costs order is made. The Government’s view is that the implications of receiving a wasted costs order should be strengthened to encourage legal representatives to consider more carefully decisions they make, both in handling claims and in deciding whether or not to pursue a case. The changes introduced by the clause seek to achieve this, and I will therefore in due course urge that Clause 50 stands part of the Bill.

Amendment 69A, in the names of the noble Lords, Lord Beecham and Lord Kennedy, seeks to replace the duty to consider notifying the regulators or the Legal Aid Agency with the discretion for the court to decide whether or not to notify them where it considers that it is appropriate to do so. It does so by changing “must” to “may”. In the Government’s view, the amendment is unnecessary. The mandatory requirement—the “must”—goes no further than requiring the court to notify where it considers it appropriate. The court is not absolutely required to inform the listed bodies or persons, or to inform any one of them, but to inform such of them, if any, as it considers appropriate. If the court does not consider it appropriate to inform any of those listed, it does not have to do so. Accordingly, it has to consider whether it is appropriate to inform one or more of them but it is not obliged to do so in a particular case: it is entirely a matter for the court. The discretion that the amendment seeks to introduce is already provided for in the clause as drafted.

Our view is that the courts should consider making a notification in every case where a wasted costs order is made but that it would be inappropriate to require it in every case. We agree that it is a matter for the courts based on the facts of the individual case. When notified of a wasted costs order, it will be for the relevant body to decide what, if any, action should be taken. Clause 50 does not make mandatory any action, as in the Government’s view that is properly a matter for the body based on the individual circumstances.

The noble Lord asked about the position of the Bar Standards Board, the Solicitors Regulation Authority and, I think, the Legal Aid Agency. The independence of the regulators is a fundamental principle and we do not wish to undermine this by setting out what action they should take upon receipt of a wasted costs notification. The Government have been in touch with the relevant bodies, informing them of the changes under Clause 50 and offering advice as to how they may wish to proceed. The Bar Standards Board has advised that it would treat the matter under existing procedures as an expression of concern about a barrister’s conduct. It might choose to investigate and could ultimately take formal disciplinary action if it considered it appropriate to do so. The Solicitors Regulation Authority would also welcome wasted costs order notifications and would treat such information in the same way as it treats all intelligence that it receives. The Legal Aid Agency is looking into taking account of wasted costs orders using existing contract performance management mechanisms for current legal aid contracts and contracts commencing this August. If adopted, contract managers would consider the number and financial value of wasted costs orders made and discuss them with the provider directly. The Legal Aid Agency might consider it appropriate to issue a contract notice or to take other contractual enforcement steps.

In view of the explanation that I hope that I have provided, and in view of the fact that I understood this probably to be a probing amendment, I respectfully ask the noble Lord to withdraw Amendment 69A, and I urge the Committee to agree to Clause 50 standing part of the Bill.

[Lord Beecham]

I suppose that I should have declared an interest as a member of the Law Society, although I confess—thank heavens—that I am not actively practising my profession and have not done for some time.

I thank the Minister for his explanation. I am still slightly at a loss to understand how it can be claimed that, as far as the solicitors’ profession is concerned, the clause would make any difference, given the Law Society’s stated response, as I have already indicated, that:

“The Solicitors Regulation Authority would not take further action if notified that a wasted costs order has been made against a solicitor”.

I do not know whether that has been discussed directly with the authority or whether there has been subsequent discussions and a change of position. It just stands slightly at odds with the Minister’s reply. Perhaps he would care to look into that and write to me, placing a copy of the response in the Library, because it looks as though different approaches may be being adopted by two of the three parts of the profession.

Having said that, I certainly concur with the noble Lord that this is essentially a probing amendment and I beg leave to withdraw it.

Amendment 69A withdrawn.

Clause 50 agreed.

Clause 51: Strict liability: limitations and defences in England and Wales

[Lord Faulks]

My Lords, I now turn to Clauses 51 and 52 and government Amendment 86. Clause 51 amends the Contempt of Court Act 1981 by introducing a defence available to publishers or distributors. This provides that, where they have published material relevant to proceedings but prior to those proceedings becoming active, they cannot be in contempt unless the Attorney-General has given notice that proceedings are active. If the publisher fails to remove the material, the Attorney-General can commence contempt proceedings. Clause 52 provides a related right to appeal against court injunctions.

These clauses were included in the Bill at introduction to implement recommendations by the Law Commission intended to reform the law of strict liability contempt. The purpose was to remove the burden on publishers to monitor online archives for potentially contemptuous material, while protecting a defendant’s right to a fair trial. However, the Government have received representations from media organisations making it clear that they oppose the measures. The Joint Committee on Human Rights also commented on the issue in its 14th report of this Session. The Government have carefully considered those concerns. We remain of the view that the proposals are balanced and measured but we are satisfied that the existing law will continue to provide satisfactory protection to the integrity of legal proceedings.

Since the measures were intended to assist the media but the media do not want them, we see no purpose in proceeding with the clauses. The then Attorney-General therefore announced in a statement on 30 June, and I also gave notice at Second Reading, that the Government had decided not to pursue the measure and would seek to omit the clauses from the Bill. Amendment 86 is consequential to the omission of Clause 51, since there is no purpose in defining its extent. I urge the Committee to agree that Clauses 51 and 52 should not stand part of the Bill.

[Lord Beecham]

My Lords, as the noble Lord the Minister said, the Government have had second thoughts—somewhat belatedly, but nevertheless just in time—about their proposal to create a new defence to the strict liability rule in relation to the offence of contempt of court, where material published on the internet before criminal proceedings commence remains accessible online. The objects of the Government’s policy are clearly laudable but the method involved the Attorney-General issuing notices to publishers identifying prejudicial material. While the notion seems sensible in principle, the JCHR has pointed out concerns that this risks creating what it described as an “arbitrary or disproportionate” exercise of power by the Attorney-General, since the Bill in no way qualified the power by restricting its exercise to where there might be a,

“substantial risk of serious prejudice”,

despite the Government’s indication that this was their intention.

The JCHR also questioned whether the “public interest” defence contained in the Contempt of Court Act 1981 was affected by the Bill as it was drafted. Perhaps the Minister would care to respond to that. I appreciate that it is almost irrelevant but it would be interesting to know whether the Government had taken that point in the original draft. The committee went on to express surprise at the Government’s state of denial that the arrangements had any implications for the freedom of expression and, further, that they did not intend to lay down regulations about the exercise of the Attorney-General’s power. This looked an appealing notion in many ways but it was ill thought through and led to some wholly inadequate drafting of the clauses that the Government have now withdrawn, having clearly had second thoughts about them.

It would be churlish not to welcome this apparent change of heart; after all, for every Minister that repenteth there is much rejoicing—especially when it comes to the Ministry of Justice—if not in heaven then in legal and judicial circles. However, none of this must be taken by the less responsible elements of the media as a licence to produce or permit the continued publication of material that might prejudice a fair trial. We have seen the media—sometimes the print media but also other forms that have such wide circulation nowadays—engage in such publication too often.

It may be necessary to revisit the issue at some point, but in that case I trust that this or any succeeding Government would look carefully at the points raised by the Joint Committee on Human Rights, which certainly merit reflection. If anything were to be done along the lines of, or motivated in the same way as, the Government’s original proposals, obviously it would be sensible to incorporate those concerns and to deal with them in a way that might meet them if it became necessary—although one would hope that it would not—to strengthen the law in this area. Perhaps the second to last thing that anyone would want to do would be to curb the freedom of the press; the last thing that anyone would want to do would be to prejudice the possibility of a fair trial. The media has a role in ensuring that that highly desirable end is met in all circumstances. I do not dissent from the noble Lord’s withdrawal of the two clauses.

Clause 51 disagreed.

Clause 52 disagreed.

15:29

Clause 53: Upper age limit for jury service to be 75

Amendment 69B

Moved by

[Lord Kennedy of Southwark]

69B: Clause 53, page 56, line 35, leave out “but under seventy-six”

[Lord Kennedy of Southwark (Lab)]

My Lords, in moving Amendment 69B, I shall speak also to the other amendments in the group. I am not against allowing older people to serve on juries but I want to understand how the Government have come to the decision that it should be restricted to people under the age of 76. Over the last few decades, the qualifications and prohibitions determining who can serve on a jury have undergone significant changes. Before 1972, jurors were drawn only from those who owned property of a prescribed rateable value, which tended to ensure that all juries were white, male, middle-class affairs.

In 1972, eligibility was extended to anyone on the electoral register. In 1998, the lower age limit was reduced to 18 and the upper age limit was raised to 70. Older people serving on juries could be a very positive thing. It is a fact that we are all living much longer. Allowing older people to participate in the jury room will allow us to benefit from their experience. Will the noble Lord, Lord Faulks, tell the Committee whether he believes that a court will have to make any additional provisions to enable older people to serve on juries or does he believe that the extension to 76 will not need any additional provisions, which is why the Government have set that age limit?

Amendment 69D seeks to amend the Bill by giving the judge a power to limit the use of electronic communication devices for a period of time. Having people surrender their devices, as the Bill proposes, probably goes a little too far. If the average length of a jury trial is a week or two and a juror lost the use of their device for that time, it could cause considerable difficulties. We all know that smartphones are getting more advanced. Banks and companies are already talking about the elimination of plastic cards for credit and debit transactions that can be undertaken by mobile phones. Will the noble Lord tell the House what he believes is covered by the words “electronic communication devices”? Is that a mobile phone, an iPhone or similar device, a tablet or laptop? What devices is he talking about?

I very much agree that jurors have to understand their responsibilities and the important role that they play in the criminal justice system. Many years ago, I was a member of a jury in a serious criminal trial. I ended up being the foreman of the jury. It was not a “Twelve Angry Men” moment but I remain impressed at how the jury conducted itself during the trial and during the deliberations a couple of weeks after the commencement of the trial. That was 25 years ago and none of the devices we take for granted today was around.

The Government, the Courts Service and the judiciary have to do everything possible for the juror clearly to understand their responsibility in what they are undertaking. They must also make clear what they are not allowed to do. If they break the law in these matters, there are serious penalties. If the noble Lord cannot tell the Committee today, perhaps he will write to explain what happens when a juror arrives on the first day at the Crown Court. I hope that an officer of the court will explain in simple and clear terms the duties and responsibilities, and the restrictions—what can or cannot be done. That should follow information that they should have received in writing in advance. If necessary, the judge should reinforce that at the start of the trial.

Amendment 69J in my name and that of my noble friend Lord Beecham seeks to improve the information provided for jurors. It states that, “on the first day”, jurors will be required to,

“sign a declaration to say they will … not undertake their own research … base their verdict only on the evidence presented at court … not seek or disclose information about any case they try”.

That, along with the Courts Service, will make the jurors’ obligations very clear to juries.

We also include a requirement for the Department for Education to require all schools to deliver teaching about the role and importance of jury service. I think we are very well served by the jury system in this country and citizenship education is very important. I am a big supporter of our education system teaching people not only how to read and write and giving them a broad knowledge, but how to understand the practical things in the role that citizens play in our society. The role of a jury is an important part of that.

Amendment 69H makes very clear what I think is the case but does not appear to be very well known: namely, that disclosing information or deliberations in the jury room for the purposes of allowing approved academic research is not an offence. It is important to make that clear and our amendment seeks to do that. Being able to understand what goes on in the jury through academic research provides us with valuable information for the criminal justice system. I beg to move.

[Lord Faulks]

My Lords, Clause 53 amends the Juries Act 1974, raising the upper age limit for jury service from 70 to 75 years of age. Raising the age limit to 75 will mean that juries better reflect the current demographic make-up of the adult population and will allow juries to benefit from the experience and knowledge of those aged 70 to 75. The existing age limit for jury service was set by the Criminal Justice Act 1988, which raised the upper age limit from 65 to 70. However, that was more than 25 years ago, and it does not reflect the current healthy life expectancy of older people in England and Wales. On that basis, we believe that it is reasonable to expect people aged up to and including 75 to sit as jurors if summoned.

Amendments 69B and 69C would remove the upper age limit altogether. That would be a very different matter. Over the age of 75, there is an increasing risk that people would be unable to perform jury service and as a consequence would seek to be excused for that reason. We do not believe it would be right to put people in those circumstances to the trouble of having to apply for excusal, or indeed to burden the taxpayer with the additional cost of administering those excusals. Our view is that the appropriate age limit is 75. I will, in due course, ask the noble Lord to withdraw the amendment and will argue that Clause 53 should stand part of the Bill.

As to Amendment 69D, Clause 54 provides a judge with the power to order members of the jury to surrender their electronic communications devices for a period. The noble Lord, Lord Kennedy, asked me to define that. I respectfully refer him to Clause 55(2)(5), where it says that,

“‘electronic communications device’ means a device that is designed or adapted for a use which consists of or includes the sending or receiving of signals that are transmitted by means of an electronic communications network (as defined in section 32 of the Communications Act 2003)”.

I hope that clears things up for the noble Lord.

The Government do not believe that the term “limit the use of” is sufficiently clear. It would allow jurors to retain their devices in the jury room even when a judge thought it necessary in the interests of justice that the devices should not be available to the jury during their deliberations. The Law Commission recommended that devices should be surrendered and we believe that this is right. The provision provides judges with the discretion when making an order to take account of circumstances. They can only do so when the order is necessary or expedient in the interests of justice, and proportionate to that aim. With those assurances, I ask the noble Lord not to press that amendment. Usually, jurors will be able to use their devices and they may be required by the judge or the coroner in some circumstances when they are deliberating to surrender their electronic communication device, but it is not a blanket ban on the use of devices at other times or a blanket ban for the duration of the jury service.

Clause 55 also provides powers for a judge to order court security officers to conduct a search of a member of the jury so as to determine whether the juror has failed to surrender a device in accordance with an order made under Clause 54. We have aimed to ensure that the power to search is not an overly intrusive one, and goes no further than is necessary to ensure that a judge’s order, made in the interests of justice, is complied with.

Clause 55 also provides powers for security officers to retain articles surrendered or seized. If it is not possible to enforce the judge’s order, there will be a much greater risk that devices would be retained and potentially used during deliberations, thus bringing a risk of an offence being committed. It would also be harder to bring a successful prosecution and thus would reduce the effectiveness of the measures we are taking to deal with juror misconduct. I therefore argue that the clause should stand part of the Bill.

Amendments 69E and 69F would remove the requirement that proceedings for the new offences of researching a case and sharing that research with other jurors should be brought only by or with the consent of the Attorney-General. These offences concern damage to the administration of justice and public confidence in it. The Attorney-General is well established as the guardian of the public interest in the administration of justice. This is evident in, for example, his responsibility for bringing or consenting to proceedings in the case of contempt.

We believe that the Attorney-General should continue to maintain oversight of the public interest where such juror misconduct arises. Proceedings are very rare and we believe that the close involvement of the Attorney-General in cases of juror contempt should continue when such misconduct is prosecuted as an offence. I fear that I cannot support this amendment and urge the noble Lord not to press it.

Amendment 69G would change the scope of the offence in Clause 58, which inserts a new Section 20C into the Juries Act 1974. The proposed offence stems from a case before the Divisional Court in 2013 where a juror had posted on Facebook the fact that he was trying a defendant charged with a sexual offence on a child, and suggested an intention on the juror’s part not to try the case fairly. We want to ensure that proper criminal sanctions and procedures apply where a juror engages in behaviour that can give rise to a suggestion that they will not try the case fairly. Such behaviour brings the jury system into disrepute, leads to the perception of unfair trials and potentially causes trials to collapse.

We committed to and have given very careful consideration to the amendment proposed. The effect of the amendment would be to change the offence from an objective test to one that was more subjective. It would therefore be difficult to prosecute and prove and there is a risk that it would need to be proved that the juror did have that intention. Our view is that it should be a criminal offence where a juror intentionally posts material on the internet and that material allows someone reasonably to conclude that the juror is, for example, biased for or against the defendant. This conduct could throw doubt on the fairness of the trial and lead to it being stopped or result in an appeal. There is also an additional precaution in the use of the offence that any prosecution requires the consent of the Attorney-General. I therefore cannot agree to this amendment and ask the noble Lord not to press it.

Amendment 69H would add an exception to the offence in new Section 20D to provide that it is not an offence to disclose information for the purpose of allowing approved academic research into jury deliberations—the matter specifically referred to by the noble Lord, Lord Kennedy. We believe that it is of the utmost importance that the confidentiality of jury deliberations is protected and that disclosure is permitted only where absolutely necessary. If the amendment were made, it would mean that approved academic research into substantive jury deliberations would be allowed.

The Law Commission recommended that research should be allowed into the substantive content of jury deliberations. It suggested that this type of research could be used to inform and undertake reform to improve the jury system, while enhancing public understanding of trial by jury. However, as noted by noble Lords at Second Reading, research into juries currently does take place. Academics are currently able to undertake meaningful and important research without infringing Section 8. Indeed, during the Bill’s public evidence session, Professor Cheryl Thomas, the leading academic regarding jurors and jury trials, commented that she had,

“never been hampered by section 8 of the Contempt of Court Act 1981”.

Personally, I have sympathy with the amendment, in the sense that a fundamental system of trying the most serious criminal offences should not be beyond examination by academic research. Any restrictions need justification. However, the Government will be responding shortly to the Law Commission’s recommendations on this matter. I therefore cannot agree to this amendment and ask the noble Lord not to press it.

As to Amendment 69J, the objective of the new clause is to ensure that jurors understand their responsibilities. That is something on which all noble Lords can agree and much is already done to that end. A video about the role of the juror, which is shown to all jurors, makes clear that only evidence adduced in court should be considered. It explains that jurors should not carry out research into the case or disclose information about it and that doing so could amount to contempt of court. The Criminal Practice Directions require trial judges to give similar instructions to jury members.

15:45

[Lord Carlile of Berriew (LD)]

I am grateful to my noble friend for giving way. I should declare the interest of having appeared for the juror in the case to which my noble friend referred a few moments ago. I make no comment on the case or the result, but the jury video and the instructions given to jurors were not perhaps quite as good as they might have been, particularly for a young juror under the age of 21 who used his social media almost as a part of his body. Can we be reassured that when these new provisions are brought into force a new jury video will be made available immediately, as well as revised instructions, so that jurors young and old, including those between the ages of 70 and 75 who also enthusiastically use their social media, really understand what they are not permitted to do? It can be very confusing.

[Lord Faulks]

I am grateful to my noble friend for that intervention. Clearly this matter should be taken very seriously. I do not think that these directions are frozen in time or form, and the debate as to precisely how best to communicate what there is agreement on over the use of electronic communications will go on. I entirely take my noble friend’s point about the degree of attachment to them that exists, depending on the individual and not necessarily depending on their age.

The new clause proposed would impose statutory obligations on the Department for Education, the Judicial College and HM Courts and Tribunals Service, and on jurors themselves, in connection with jury service. These obligations cover the same ground as some recommendations from the Law Commission, which we are still considering and to which we will respond shortly. The crucial point, however, is that if it were decided to implement them, or to make any further suggestions about improving directions to jurors or about jury management issues as opposed to trials of particular cases, legislation would not be required. It could be done administratively, and in our view that would be a better course than accepting the suggested amendment. I invite the noble Lord to withdraw it.

[Lord Stoddart of Swindon (Ind Lab)]

May I say a word about the proposed age limit of 75 for serving on a jury? I had better declare my interest straight away because I was born in 1926. It seems that anybody older than 75 is being written off as no longer fit to take part in an important public duty. Bearing in mind that lately we have had people of 84 and 85 being tried in court, we should call upon those over 75—perhaps, say, up to 100—provided that they are able to carry out the duty. It may be insulting to people of mature age who are still very intelligent and keep up with affairs, particularly public affairs, to debar them from what other people are asked to do to help the public weal and their fellow citizens.

[Lord Faulks]

I am grateful for the contribution of the noble Lord, Lord Stoddart, to the issue, which I entirely accept is delicate. There can be no doubt that he would discharge the role of juror in an exemplary fashion and to the great benefit of all those who were tried—either in a way that they would want or not.

The respondents to the consultation about the upper age limit were almost equally divided as to whether there should be one, and I do not pretend that it is an easy issue, but the Government’s view was that, notwithstanding the health and vigour of many over the age of 75, an increasing number of people would find it difficult or almost impossible to sit as jurors and would therefore seek to be excused jury service. They might not want to have to go through the process of seeking to be excused jury service. Rather than putting them through the process of applying for excusal, and spending taxpayers’ money dealing with that additional administrative burden, the age limit is set at 75. I do not pretend that there is any precise science behind that, but it reflects a balance of different arguments.

[Lord Ponsonby of Shulbrede (Lab)]

From the point of view of the magistracy, where there is currently retirement at 70, it is the view of the Magistrates’ Association that that is about right and that it should not be increased to 75. The reason for that view is that many defendants who come before the Bench are much younger. Obviously that is true in the youth court, but it is true in the adult court as well. The issue is regularly debated at the Magistrates’ Association, and the view of the association is that 70 should stay as the age of retirement for magistrates.

[Lord Faulks]

I am grateful for that intervention. The noble Lord, Lord Ponsonby, makes a good point in the sense that a defendant might feel more confident if there was not such a wide age disparity between him and someone aged, say, over 75. The noble Lord reminds me that the upper age for judges is 70, so it is not unreasonable to restrict jurors to the age of 75.

[Lord Mackay of Clashfern (Con)]

I think that it is fair to say that the ultimate upper limit for judges is 75; that of course accounts for a good number of our noble and learned friends who are here today. The difficulty of fixing that limit was just the same as for jurors. The general view among the judiciary at the time, and I hope that it remains its view, was that 75 was a reasonable compromise because people—not everybody—over 75 become increasingly less able to perform the judicial function, which the jury function is, as the years progress. Therefore, you have to get some sort of balance, and 75 seems as good as any.

[Lord Faulks]

I am grateful for that contribution. My noble and learned friend states the difficult issue very well.

[Lord Kennedy of Southwark]

My Lords, the noble Lord, Lord Stoddart, makes an important point about the age of jurors. Of course, many noble Lords are over the age of 75 and make an important contribution to our deliberations. The noble Lord is absolutely right: many people over that age are able to make a contribution to the courts on jury service.

I thank the noble Lord for making the point about communication devices in the Bill. I wanted to be clear about the importance and use of these devices. They are used more and more and I wanted to be clear if they were to be taken away or if it was just a matter of a stern instruction from the trial judge. My noble friend Lord Ponsonby talked about magistrates retiring at 70. I hear the point he makes but if we are to get rid of jurors and others at 75, perhaps the time has come to consider whether the age for magistrates should be 75 as well. With that, I beg leave to withdraw the amendment.

Amendment 69B withdrawn.

Amendment 69C not moved.

Clause 53 agreed.

Clause 54: Jurors and electronic communications devices

Amendment 69D not moved.

Clause 54 agreed.

Clause 55 agreed.

Clause 56: Research by jurors

Amendment 69E not moved.

Clause 56 agreed.

Clause 57: Sharing research with other jurors

Amendment 69F not moved.

Clause 57 agreed.

Clause 58: Jurors engaging in other prohibited conduct

Amendment 69G not moved.

Clause 58 agreed.

Clause 59: Disclosing jury’s deliberations

Amendment 69H not moved.

Clause 59 agreed.

Clause 60 agreed.

Schedule 9 agreed.

Clause 61 agreed.

Schedule 10 agreed.

Clause 62 agreed.

Amendment 69J not moved.

Clause 63 agreed.

Amendments 69K and 69L not moved.

Clause 64: Likelihood of substantially different outcome for applicant

Amendment 70

Moved by

[Lord Woolf]

70: Clause 64, page 64, line 35, leave out “must” and insert “may”

[Lord Woolf (CB)]

My Lords, there would have been a time when the noble Lord, Lord Pannick, could have been here, but I think he is in the Supreme Court at the moment. In those circumstances, I hope that your Lordships will not mind my leading when I was looking forward to being junior counsel with regard to the submissions that the noble Lord, Lord Pannick, was due to make. I hope that my presence does not mean that I get it all wrong in this different capacity in which I now find myself.

I am reminded of a time many moons ago when I had to be at the same time in the Court of Appeal before Lord Denning and before Lord Widgery in the Divisional Court, in what are now called the Senior Courts. Having investigated the matter very fully, I came to the conclusion that the appropriate thing to do was to go before Lord Widgery and leave my pupil watching the situation in the Court of Appeal. As fate would have it, as normally happens in these situations, the matter came on in quite the opposite way from that expected and the pupil had to rise to his feet in the same way as I do now. Unfortunately, he did not appreciate which side he should be on and he made submissions to great effect before Lord Denning, which were diametrically opposite to what I was meant to be advancing on behalf of the Crown. Lord Denning was not at all put out by this. What he did was to say, “Those were very clear submissions, Mr So-and-so, but perhaps what you really meant to say was X, Y and Z”, and in that way justice was done.

16:00

In my submissions now, I am very much concerned with the way that justice should be done to those who want to rely upon judicial review. What I have to say to the Committee with regard to Part 4 applies to the various provisions in it, all of which in some way operate on judicial review. Judicial review has been an area where what has happened with regard to procedure and practice has been a matter for which the judiciary has been responsible. It has tried to balance—successfully, I suggest—three different interests: those of the citizen, those of the Executive and those of the judiciary. The ability to perform the difficult task of operating as a judge in public law is quite different from the position of a judge who is hearing a private law case. In public law, the judge always has to remember that, while the interests of the individual citizen making the application for judicial review are of the greatest importance, so are the interests of the public body which, in the case of the Government, has responsibility for governing the country.

Judicial review has therefore been tailored to have special protections for the Executive. In particular, there is the unusual requirement of permission to bring proceedings. Once proceedings are given permission to be brought, the whole process is heavily laden with discretions in the court. In this area, I make the general remark that it is not a very good idea for the legislature to intervene because it may not appreciate the full significance of the position with which it wants to interfere.

Clause 64 puts an obligation on the courts to take action if they come to the conclusion that it is highly likely that the outcome of the application,

“would not have been substantially different if the conduct complained of had not occurred”.

In many situations, the courts already regard that as an important matter to take into account and, in their discretion, will refuse relief—indeed, they will refuse permission to make the application—if they are of the view that the application is misconceived and it is not appropriate that it should go forward, even though there may be some technical reasons why it could be successful. Clause 64 has the effect of changing what is the court’s discretion to take that action into action which it must take. That is very different, because it would need to decide whether someone who has a remedy—that is the premise of Clause 64—should be turned away from the court even without having his case heard, as the refusal applies to the process of granting permission to apply for judicial review as well as judicial review itself. This would be very unfortunate. In particular, I do not think, with the greatest respect to the draftsman of Clause 64, that he had in mind the increasingly important jurisdiction of the High Court, on application for judicial review, to grant declarations.

In the case of a declaration, what the court does is to clarify the legal position. It may well be possible to have a case—I shall refer in a moment to one in which I was an advocate—where what is at stake is a matter of only a few pounds, but where the citizens in general will all be affected by a few pounds. We do not want, in that situation, to have more than one application; otherwise it is simply duplicating the work of the court. A single application will be made and the court will come to a decision. If the decision is in favour of the applicant, he may recover the few pounds to which I referred. The provision in Clause 64 would, it seems to me, make that impossible. It is clear from the Explanatory Note that the Government have in mind declaratory relief in this context. This illustrates why the proposal is most unfortunate. The position is one where the courts need to have flexibility, so as to do justice to the different parties, as I have indicated. The clause, unless the Minister makes it clear that I am wrong on this, will prevent that.

The case I had in mind to illustrate this was the case of Congreve v the Home Office, which involved television licences. Mr Congreve knew that the BBC was going to put up the licence fee, so instead of waiting until his licence expired, he decided to apply for a licence early so as to pay the lower fee. He was successful, contrary to my efforts. Lord Denning explained that this was a position in which there was a clear breach of the law by the BBC and Mr Congreve should have his remedy. The BBC was influenced by the fact that it did not want Mr Congreve to give a lead to all the other citizens who would jump on the bandwagon and make applications in the same way, which would deprive the BBC of a substantial sum of money, but he did it himself and he is to be admired for doing so. The case is an example of how the rule of law is upheld by the courts even though the amount may, at first sight, seem trivial.

This is quite a common occurrence in planning cases, where applicants are bringing a case not only on their own behalf but on the behalf of many persons indeed. There is nothing exceptional about it. The Government should look again at their proposals for Clause 64 and, in particular, should not persist with seeking to insert that provision into the Act.

This is just an illustration of the faults that are exactly the same in the other provisions. The Government have taken on a task that they should not be performing. It was well understood in the courts that matters of practice and procedure are normally best left to the rule committee to handle. It would not make the sort of mistake that I have indicated. Especially when one is dealing with the remedy of judicial review, it is very important that one avoids tying the hands and discretion of the court so that it cannot come to the right answer in the case.

Other provisions are linked to Clause 64 and can be dealt with in the same way with regard to this group. One is the provision of information about financial resources. This is a very unusual provision in Clause 65. It requires information to be given by an applicant on an application for judicial review about his resources for bringing the proceedings. I do not understand why this was thought to be an appropriate matter to be dealt with in statute. If a judge hearing an application feels it is important to find out the financial resources of an applicant, he has plenty of powers to do that. There is no need for a statute. Why burden the application for judicial review in every case, as I understand it, with an applicant having to give information about his resources, even though it is not a matter which will arise in the particular case? There is no need for a statutory provision of some complexity to be placed on the statute book to deal with it.

The same situation arises with regard to Clause 67. Intervention by third parties—

[Lord Faulks]

I am most grateful to the noble and learned Lord for giving way. I just want to clarify one thing for the benefit of the Committee. The noble and learned Lord is speaking of a number of different clauses. It may be that he is seeking to illustrate a theme and an overall point that is relevant to this group, but he will, of course, understand that his two most recent references are not in the group we are currently debating.

[Lord Woolf]

I am grateful to the Minister for drawing the attention of the Committee to that point. I am well aware that that is the situation. The Minister was entirely right. I am saying that each of these provisions is not only wrong in its application but the collective effect should be considered. The provisions need to be considered together because, if I am right in what I am saying, there has been wholesale interference in one provision after another in the discretion of the court in an area of the greatest importance to the ordinary citizen and to the rule of law in this country. Perhaps the Minister will allow me to come back, if need be, but I do feel that it is possible to deal with this only holistically, and that is what I hope I have been doing.

16:14

The position is the same with regard to the capping of costs. That is an area where, in judicial review, there have been fairly recent developments, and those have been properly catered for by the courts, and they do not need these provisions. I submit that the whole of this part is a misuse of the powers of the Government in this sense. It is not that Parliament cannot intervene; of course Parliament can intervene and can pass legislation, but this is one of those areas where one would expect the Executive to be very sensitive to interfering with the discretion of the judiciary, and where, as far as I know, nobody is complaining about how it is exercised, in situations where the Government will always have the ability to appeal if they are not satisfied with the decision.

I hope that the Committee will look very critically at these provisions. They may not seem to be matters of very great substance, but there is a point of important principle here which has to be established and maintained.

[Lord Carlile of Berriew]

My Lords, I wish to make three short points in support of the noble and learned Lord, Lord Woolf. I do not know how long this debate is going to continue. We heard that the noble Lord, Lord Pannick, is unable to be here at the moment. I hope I will be excused for being absent for about half an hour from 5 pm.

The three points I wish to make are these. First, it seems that there is a belief that it is very easy to obtain permission to move for judicial review. For those of your Lordships who are not lawyers—and happily there are many here—I want to lay that belief to rest. Like myself and, in a much more distinguished way, other noble and learned Lords, anybody who has faced the challenge of a list of cases requesting permission for judicial review will know that a vast percentage of those applications are refused at the paper application stage.

I shall give your Lordships what might be a useful insight. The typical High Court judge or deputy High Court judge—and it is in that latter capacity that I have sat and continue to sit—is faced on any given day with about a dozen paper and oral applications for judicial review. My estimate, based on my own experience and on talking to others—there may be more formal statistics—is that at most one or two of those applications move on to the next stage, and the other 10 or 11 are refused. Nobody should, therefore, get the idea that it is very easy to challenge the Government or public bodies by way of judicial review.

The second point is about the phrase “highly likely”, which appears in Clause 64. I think the use of this phrase confuses especially the lawyers on the standard of proof which is required in judicial review applications. Does “highly likely” mean “more probable than not” or less than “beyond reasonable doubt” or what? Why do we need to add this almost tautologous standard of proof to a well honed system in which judges—who are, believe it or not, trained in these matters, and many of whom have great experience—know exactly what to do without an artifice being added for reasons which are not clear?

The third point which is of real concern to me is that the test in new subsection (2A) that Clause 64(1) seeks to insert in Section 31 of the Senior Courts Act 1981, which refers to the outcome not being,

“substantially different if the conduct complained of had not occurred”,

is a licence for vestigial consultation. Many cases that come before the High Court on applications for judicial review are cases in which the Government and other public authorities that are devolved parts of government have failed to carry out proper consultation with the public. Sometimes the failure to carry out consultation is a very serious matter indeed, because it is a denial of the right of the public not only to be told that they are being consulted, but to express their views in that consultation and to have them considered in a full and proper way.

There have been many cases in which judicial review has been granted because of the failure of consultation, and in many of those cases the outcome is eventually exactly the same as that which the Government would have wished before the failure of consultation. Therefore it may be thought by the judge highly likely that the outcome would not have been substantially different if the conduct complained of had not occurred. Sometimes that failure of consultation is—or borders on—the contumelious by the public authority concerned. I suggest that we should not license that kind of failure by governmental authorities which would thereby deprive the public of the right to have proper consultation. I hope that those three points are useful to your Lordships. I do not want to add anything else, because the noble and learned Lord, Lord Woolf, has given a very full exegesis of the concerns.

[Baroness Lister of Burtersett (Lab)]

My Lords, first, I apologise that I have not spoken on the Bill before, but I wanted to intervene on Part 4. At Second Reading, the noble Baroness, Lady Hamwee, observed that Part 4 raises “citizens’ issues”. I hope that noble Lords will agree that it is therefore important that non-lawyers—who were referred to by the noble Lord, Lord Carlile—add their voice in support of the highly expert advice from the great legal minds in your Lordships’ House. Not only are those citizens’ issues, but they affect in particular poor and marginalised citizens, including, in the words of the Bar Council,

“some of the weakest and most vulnerable in society”.

Here I declare an interest as an honorary president of the Child Poverty Action Group, and a former director and legal research officer—believe it or not, although I am not a lawyer—of that group back in the 1970s, when the group spear-headed what came to be known as the social security law test case strategy, under the late Sir Henry Hodge, or the plain Henry Hodge as he was then, as CPAG’s solicitor. According to an evaluation of that strategy, Henry Hodge saw it as having an,

“independent value in obtaining substantive improvements in the law and in producing a higher standard of behaviour from administrators”.

Those are still two important functions of judicial review that are now under threat.

I fear that CPAG may be one of the organisations that the Government had in their sights, given that Mr Iain Duncan Smith accused it of “ridiculous and irresponsible behaviour” and “an ill-judged PR stunt” when the High Court dismissed a challenge to the housing benefit cap, for which it had been granted a cost protection order and permission on the basis that the case was arguable and raised issues of public importance. In contrast, Sir Stephen Sedley, in oral evidence to the Joint Committee on Human Rights, of which I am a member—I have a feeling that the Minister was himself a highly valued member at that point—said that,

“not all public interest litigation is hostile; it can be creatively used, and has been in the past. The Child Poverty Action Group was a pioneer in this respect, to elucidate the law to the benefit of everybody who is involved. Social security is a very good example, because it is an arcane and hideously complex area of law, where it is easy to get things wrong and a mistake can affect millions of people. It is very much to the advantage of everybody if the Government collaborates with challengers like the CPAG in getting the issue to the core”.

I speak today not so much as an honorary president of CPAG but as a member of the Joint Committee on Human Rights, which recommended that this clause be deleted from the Bill. I therefore support the contention that it should not stand part of the Bill, as well as supporting those amendments that would revert to the status quo. I will not rehearse at any length the arguments of the JCHR, some of which were quoted on Second Reading; there are arguments of both principle and practice, including that we should not be condoning unlawful decision-making, and the danger that it would mean that the permission stage became a full dress rehearsal and therefore could be more rather than less costly. However I would like to emphasise what is perhaps a key human rights point, when we said that it may give rise to breaches of the right of access to court in ECHR Article 6(1),

“a right which, in order to be practical and effective rather than theoretical and illusory, includes the right of access to a legally enforceable remedy”.

On this argument alone I believe that the clause should not stand part of the Bill. But as we have heard today, and earlier at Second Reading, there are also other persuasive arguments.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I support all the detailed amendments in this group but, more fundamentally, I support the root and branch opposition raised by all those who have put their names to Clauses 64 to 67 not standing part of the Bill. It is with regard to that basic question that I want to say a few words today. Whether the thinking which underlies these provisions is, as some would suggest, positively and consciously mischievous, or merely misconceived and mistaken, I do not know. However, it would be a grave misjudgment if we were to allow them to pass into law. If they are persisted in, I hope that on Report this House will reject them.

What the Government are proposing here is a heresy. With regard to Clause 64, it is a double heresy. Without repeating all that I said at Second Reading, I will try to explain what I mean. The basic heresy here is to treat judicial review—which of course is the title of the whole of this part of the Bill—as a matter generally suitable for legislation at all. Essentially, I suggest that it is not. I seriously wonder if those who are behind these proposals understand the intrinsic nature of this supervisory jurisdiction. Judicial review is no more and no less than the exercise of the courts’ inherent jurisdiction to ensure that the decision-making of the Government, their executive action, remains within the bounds of legal propriety. As the noble and learned Lord, Lord Woolf, explained today, it is judge-made law par excellence; it has been and should remain, essentially, a matter for development and control by the judges themselves. If ever there was an area of the law that for the most part should remain free from legislative interference, it is this. It is difficult, perhaps impossible, to think of any field of law less suitable for legislation, for government diktat as to its future development. Most obviously this is so with regard to provisions which, as here, are designed to essentially cramp and narrow down judges’ powers and discretions. In this field of inherent control of administrative action, it is intended to discourage those who seek to question the legality of governmental decision-making.

In truth, these provisions would make serious inroads into the separation of powers; they would represent a significant shift in the constitutional balance between the judiciary and the Executive. That is the basic heresy that underlies the entirety of Part 4—the supposition that Parliament rather than the judges should decide how the court’s supervisory jurisdiction should be exercised, and its development and control, which are essentially matters of procedure.

16:30

The other separate heresy lies in Clause 64 itself, and the proposition in this provision that, even supposing that a public body has behaved unlawfully—perhaps flagrantly unlawfully—in reaching a particular decision, the court must nevertheless ask itself whether it is “highly likely” that the outcome would in any event have been substantially similar. If so, it dictates that the court must, without more ado, dismiss the challenge—with no relief or declaration. It is a slippery clause, as the noble Lord, Lord Carlile, has explained. As others have explained, the court on judicial review is simply not concerned with the substantive merits or demerits of the decision, only with the question whether the impugned decision was lawfully arrived at. The merits of a decision which is under challenge in judicial review are not for the court but for the public authority alone.

As compelling an illustration of that principle as one could look for can be found in an amendment the Bill to the single, brief legislative provision that hitherto has provided the sole statutory context for the modern law of judicial review: Section 31 of the Senior Courts Act 1981, which used to be called the Supreme Court Act until the Supreme Court came into being in 2009. The 1981 Act is, of course, mentioned in these draft clauses as the Act that they are intended to alter by so severely confining the court’s future power and discretion.

The amendment of which I speak was the introduction of a new subsection (5A) into Section 31 of the 1981 Act. Unamended, Section 31(5) allowed the High Court, in quashing a decision, also to,

“substitute its own decision for the decision in question”.

The amending provision was introduced to limit that power so that it can now be exercised only if,

“without the error, there would have been only one decision which the court or tribunal could have reached”.

There is nothing there about the judicial review court being able to impose its own decision just because it thinks that it is highly likely that its own view of the matter is to be preferred.

I suggest that those are the basic misunderstandings and misconceptions that underlie this whole attempt by legislation to cramp and stifle the court’s future powers. I made more detailed objections to Clause 64 at Second Reading. I shall not repeat them now, and I shall not deal with the other clauses not part of this group, which are similarly subject to the same basic objection that they would introduce heretical inhibitions into this area of the law, which has been a healthy development in our jurisprudence in the last 40 or 50 years.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I hope your Lordships will forgive me if, like other noble Lords, I preface what I say about the amendments in this group with a few general remarks about the proposals in the Bill for the reform of judicial review. In his Second Reading speech, the Minister described judicial review as,

“one of the most important means by which government and other public bodies can be held legally accountable for their decisions and actions”.—[Official Report, 30/6/14; cols. 1541.]

As Frances Gibb, the legal editor of the Times, reported in today’s edition, he stressed that the Government regarded judicial review as,

“terribly important and we are not trying to get rid of it”.

If that is right, we should have little difficulty, as a result of these debates, in persuading the Government to accept amendments to the proposals and to the Bill to ensure that judicial review is not threatened, as I and many other noble Lords believe that currently it is.

I suggest that the Government ought to respect the following six principles. First, judicial review exists for the purpose of enabling the citizen to hold the Executive to account. Secondly, of its nature, judicial review is a public law remedy. It follows that there is often, although not always, a significant public interest in ensuring that a judicial review case is heard and determined over and above the private interests of the citizen or citizens who bring the application.

Thirdly, judicial review cases, of their nature, attract support from numbers of concerned citizens and organisations—sometimes campaigning organisations—with an entirely legitimate interest in the issues involved. Fourthly—perhaps this is not a principle but part of the factual background—judicial review inevitably is often unpopular with government. It is therefore important that Parliament and the courts should be astute to ensure that it is not stifled by unduly restrictive procedures or rules. The noble and learned Lord, Lord Woolf, used the word “sensitive”; I suggest that is an entirely apt description of the requirement.

Fifthly, because financial gain is often not the primary purpose of judicial review cases, it is important that they can be brought without undue expense and without unacceptable financial risk for those who bring them, often out of public concern.

I believe that the sixth principle can be expressed very simply. It is this: trust the judges. Because, constitutionally, judicial review exists for the courts to hold the Executive to account, the best way of ensuring the robustness of that review procedure, and of gaining and maintaining public confidence in the procedure, is for the judges and not the Executive to be trusted to administer it.

I turn to Clause 64, which, as your Lordships have heard, seeks to ensure that any judicial review proceedings that can be classed as academic must fail. The test the clause seeks to apply is whether an unlawful decision by an arm of the Executive has, in fact, led to a “substantially different” outcome for the applicant from that which a lawfully reached decision would have produced. If it is “highly likely”—I repeat the criticism of that phrase—that the unlawful conduct has not made such a difference, the Bill proposes that leave to apply for judicial review must not be given. If leave is given and it turns out that the case is academic in the sense I mentioned, relief must be refused.

I accept that there may be purely academic cases that should not proceed to a hearing, even where it can be established that no part of the Executive has acted unlawfully—but, as the noble and learned Lord, Lord Woolf, pointed out, the courts already have a discretion to refuse permission or relief in such a case. However, I know of no convincing evidence that in practice a significant number of cases is, or has been, brought in which it can fairly be said that the unlawful decision-making at issue must have made no difference to the outcome for the applicant.

However, the real issue here is whether the fact that a case turns out to be academic in that sense should inevitably lead to its being dismissed. I suggest that there will often be a public interest in having the conduct of the decision-maker examined and, if necessary, overruled if the decision made turns out to have been unlawfully made—even where it may be said to have made no difference.

My noble friend Lord Carlile mentioned the question of a lack of consultation where the repeat exercise, when consultation is properly carried out, may lead to the same result. However, to condemn the lack of consultation and to refuse relief in spite of it is, I suggest, entirely wrong. There is also the question of cases where points of law need clarification or where points of procedure or fact need establishing, and need establishing in the public interest, even where a decision might have made no difference.

Therefore, the amendments in my name and that of my noble friend Lord Carlile seek to make the refusal of relief in a case that turns out to be academic discretionary rather than mandatory and to add an extra condition for the refusal of relief. Relief, we submit, should be refused only if an application is both academic in the sense proposed in the Bill and such that the public interest or the overriding objective of dealing with a case justly does not require that it be determined. Our amendments would apply those tests both at the permission stage and at the relief stage in the High Court and in the Upper Tribunal.

I am not among those who hold the view that Parliament should never legislate on the subject of judicial review. It is the right of Parliament in our democracy to do so, and in that I differ slightly perhaps from the arguments put forward by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. However, I suggest, along with him, that we should be extremely careful before restricting by legislation the right of the courts to intervene in unlawful decision-making by organs of government where the court considers it appropriate to do so.

I can add only that the way in which judicial review has developed over the past few decades has demonstrated the very considerable respect for the breadth of discretion by executive decision-makers. It would be appropriate for the Government now to show similar respect for the need for discretion to be exercised by the judges.

[Lord Horam (Con)]

My Lords—

[Lord Davies of Stamford (Lab)]

With great respect, I think that it may be our turn.

[Lord Horam]

I do not think that anyone on this side has spoken yet.

Everyone who has spoken so far has been a lawyer, with the exception of the noble Baroness, Lady Lister. I am not a lawyer; I am an economist, but perhaps I introduce a rather separate vein of thinking into this debate, which is extremely interesting and very important for the conduct of government.

The issue that concerns me as an economist and as a previous government Minister is delay. Almost all judicial review cases involve considerable delay. Indeed, the noble Baroness, Lady Lister, rightly and very fairly mentioned the report of the Joint Committee on Human Rights which went into the whole business of judicial review. In that case, the Government’s response indicated several instances where there had been great delay as a consequence of judicial review cases. I will not go through a long list, as that would weary the Committee, but I shall give some examples. A development of 360 homes in Carmarthenshire was delayed by 18 months. A development in east London which would have created 500 jobs was delayed by 15 months. The expansion of Bristol Airport was delayed. Very often, in the judicial review in question, the case was found to have no merit whatever, but there was still delay.

16:45

We all know that this country is decades behind on infrastructure, railways, roads, airports and, above all, housing. We need to catch up fast on those issues if we are not to have terrible consequences for the welfare and success of our country. As I understand it, the Government are linking this provision on judicial review to the Infrastructure Bill, which the House is also considering. It is a concerted approach to get infrastructure and housing projects moving through a Bill that is directly concerned with them and also through a part of this Bill, which is concerned with striking a different balance between human rights and reasonable concern and getting expeditious results for the Government. Governments are usually criticised for thinking in silos and not having a concerted approach, with a Government doing something that is not thought out and has implications for the rest of government. It is therefore rather odd that the Government should be criticised for having a concerted approach. It is also odd, to an outsider who is not a lawyer, for the Government to be criticised for doing something in this provision that would mean there was no difference in the result of the case, as the case would not be considered if there was no likely difference in the result.

We are dealing here, from a non-legal point of view, with something that does not make sense to an ordinary person; it cannot be made out. From my experience—I draw from my political, non-legal experience—judicial review has reached a stage in its sheer pervasiveness that local authorities now consider whether to go ahead with a particular case or decision and must include in their budget and decision-making the possibility of a judicial review. So pervasive has judicial review become that it is part of the local authority stock-in-trade. Yet, this is a moment when all three major political parties are saying that local authorities must do more if we are to improve the welfare of our people. We want them to be more radical, more entrepreneurial and less cautious. On the other hand, they now have a culture of caution. In my view, one thing that has caused that is the whole business of judicial review and the way in which it has expanded over the past 10 to 15 years.

That is true not only of local government; from my experience as a former Minister of Health, it is also true of the National Health Service. Professor Willett, the director for acute episodes of care in the NHS, recently said that lives are still being lost because of resistance to change in the NHS. In my personal experience, judicial review is often used to thwart admittedly controversial NHS developments, and I have examples in the area that I represented when I was a Member of Parliament. No responsible Government can ignore the quantum of issues arising from judicial review. I therefore agree with the noble Lord, Lord Marks, and disagree with the noble and learned Lord, Lord Brown, that a Government simply must take this into account to run the country properly and meet the aspirations of the people.

We must also consider the wider context. Liberal Democrats will be aware of a very good book, Race Plan, brought out by one of their colleagues in the House of Commons. He is a former Minister in the Foreign Office and he talks about the threat from China. China has a societal arrangement that is wholly different from ours, and its idea of human rights and democracy is totally at odds with ours. Yet, because of that lack of interest in human rights and in democracy, it is able to make decisions far more quickly than we can. If we do not make decisions quicker than we have been doing, we face the prospect of being left behind by countries such as China and so forth.

Even the publication by the Joint Committee on Human Rights on this subject—which I have read, as I have the Government’s response—fairly made the point that the costs and delay resulting from judicial reviews are a perennial problem. As any gardener will know, perennial bushes and plants grow every year: they have to be pruned back or they will overwhelm their neighbours and damage themselves. On this matter, the Government are trying to strike a balance between the natural growth in judicial reviews which has occurred, and which many rightly welcome, and society’s need to ensure that we make progress in areas such as housing, railways and roads, where we have important decisions to make.

I agree with many of the lawyers who have spoken in this debate about the practicalities of how Clause 64 should be considered. Obviously, one should listen to the lengthy experience of lawyers who consider these matters daily. The noble and learned Lord, Lord Woolf, made the point that many of these issues have become common practice in the law courts, a place where I would not venture. None the less, the Government have clearly indicated that they are willing to be flexible on some of these strictly practical matters.

Overall, on the level of principle—and everyone who has spoken in the debate so far has tried to reach the level of principle—surely the Government are trying to strike a slightly different balance between considerations of human rights and the rights of the citizen and the need to have competent and effective government, which is in the interests and the welfare of the people of this country.

The Minister pursued this argument at Second Reading with considerable skill, courage and, perhaps I may say, stamina. All fair-minded and objective people who are concerned about the bigger picture and not just about the legal situation will see that there is a lot of sense in what he is saying.

[Baroness Campbell of Surbiton (CB)]

My Lords, I support all the amendments in this group, particularly Amendments 70, 71, 72 and 73 in the names of my noble friend Lord Pannick and my noble and learned friend Lord Woolf, and I oppose the question that Clause 64 stand part of the Bill. Like the noble Baroness, Lady Lister, I also need to lend my voice to this area of reform from the perspective of the ordinary person. I look at this through the prism of those with little power, little control and very little knowledge.

Clause 64 strikes a blow at the heart of democracy, viewed with the other provisions of Part 4 and the Government’s legal aid reforms. We all agree that British citizens, whether rich or poor, able or disabled, have a democratic right to access the justice system. As I said at Second Reading, holding public bodies to account when they get it just plain wrong is a vital part of the rule of law, and I believe that it leads to better services. I cannot understand why the Government would want to restrict it; surely it is something that we would all welcome.

The clause moves the goal posts when people seek judicial review. It lowers the test and forces judges to refuse it where currently they have discretion. In future, the courts must refuse if the outcome is “highly likely” to have been no different—a significant change from “inevitable”. This is highly likely to mean that unlawful and, I have to say, even dishonest decisions will go unchecked and public bodies will get off scot free. For some very vulnerable people in our communities, this is really serious. It flies in the face of what the Minister said at Second Reading: that Part 4 will ensure that judicial review,

“continues as a check on the Executive”.—[Official Report, 30/6/14; col. 1542.]

Well, this is a very strange check. More importantly, it could give rise to a breach of Article 6(1) of the European Convention on Human Rights in fettering access to the courts. It is also particularly relevant to the public sector equality duty, which requires that due process is followed. The Government may think that that does not matter. It does, crucially, as the Court of Appeal recognised in the Bracking case. The decision to close the Independent Living Fund was held unlawful because it was taken without due regard to the public sector equality duty.

I asked the Minister at Second Reading how judges would be able to weigh up “highly likely” without speculating. Surely, judges are supposed to decide on the facts— that is what I was always told—not second-guess what might have been. I have not heard from the Minister—he was not able to answer me at the time—and I really hope that he will tell me today.

The Minister has said that the aim of Part 4 is to limit the potential for abuse, such as delay. That puzzles me. If the court has to inquire into things that it would not otherwise consider until the judicial review itself, how will that reduce delay? It can only lengthen the case and increase the costs. I agree with the Joint Committee that Clause 64 should not stand part of the Bill but, if it remains, I will certainly support these amendments to reflect the current approach of the courts.

[Lord Davies of Stamford]

My Lords, luckily, and happily, I think there is little danger of this debate becoming a closed shop of the legal profession. It is very important that that is the case, because in my view Part 4 of the Bill, which represents an attempt by the Government to—I think one can only say—clip very severely the wings of the whole judicial review system, is something that goes to the heart of the way that we are governed, something that is of interest to every citizen as much as it is to professional lawyers. It raises questions such as: do we live in a state in which the Government are subject to the law? Is that a purely theoretical state of affairs or a practical reality? Is there some way of enforcing that principle? Is it possible for the citizen to get an authoritative view of what the law is? He or she is supposed and indeed compelled to obey it, but is it possible to get a judicial decision as to what the law is in a particular circumstance? Do the three powers of government operate as they should? Do they act as a balance on each other, or is one of those three powers oppressive to another? These are foundational questions and I think that we have been quite right to spend a bit of time this afternoon addressing some of these basic principles as well as the Bill.

However, I will now say a few words about the Bill. We heard two very distinguished speeches from the noble and learned Lord, Lord Brown, and the noble Lord, Lord Marks, setting out some of the central principles that lie behind this debate. I agree with much of what was said by both of them. On the central controversy between the two as to whether Parliament should legislate in the area of judicial review, I side entirely with the noble Lord, Lord Marks. It is, in my view, Parliament’s essential job to review and keep under review the constitution, and to make changes to it when it decides that that needs to happen. We created the Supreme Court recently, for example, to keep under review the operation of our legal system and the evolution of jurisprudence, to correct a tendency that we do not approve of by using statutory law, and so forth. These seem to be essential roles of Parliament and we should not shy away from that.

17:00

However, the Government’s attempt today to change the law is thoroughly misconceived. I particularly object to the phrases

“must refuse to grant relief”,

and

“may not make an award”,

in the clause before us today. It is quite clear in principle and in practice that the judiciary, when it undertakes judicial reviews, takes into account among many other factors when it considers the merits of an application whether or not the outcome would make any substantial difference to the applicant; that is perfectly legitimate and it happens at present. To remove altogether any judicial flexibility seems to be a sinister development.

Not only that, it could be quite dangerous and counterproductive. It creates dangerous perverse incentives. I will explain what I mean. The executive branch, which is generally speaking the target of judicial reviews, has in its power very often so to change things as to ensure that the outcome, whatever the result of the judicial review, is exactly the same. I will give an example, which is not far removed from a concrete case that I can remember as a constituency Member of Parliament. Suppose that a hospital trust, with a number of hospitals within that trust in different parts of a geographical area, decides to start a consultation about the future of maternity and obstetrics in one of its hospitals. The public take that commitment to hold a public consultation quite seriously. Local GPs, patient groups, the local authority, the Royal College of Obstetricians and Gynaecologists and all other people concerned spend time and trouble producing submissions to this inquiry.

While the inquiry is going on, the hospital foundation trust starts to undermine the existence of obstetrics and maternity in that hospital by not replacing consultants who retire, moving people to other hospitals within its jurisdiction and allowing paediatric services to lapse in that hospital. That means that obstetricians cannot operate there because they have no paediatricians to whom to hand over problematic young babies and so forth. In fact, the trust is engaged in the process of undermining, prejudging and pre-empting its own review.

It may well be that by the time people have realised what is happening an application is made for judicial review, but it may be too late to save maternity services in that hospital. It will not be possible to attract new consultants in circumstances of such difficulty, and when some specialties have already been removed, to replace staff who have already retired or been moved. It will simply not be possible, whatever happens, to replace maternity services in that hospital. Has that hospital foundation trust got away with an incredibly cynical manoeuvre? It has pretended to have a consultation but has made a mockery of the whole process.

If this clause put forward by the Government survives debate this afternoon and on Report, it would be perfectly impossible for a judicial review to give any kind of relief at all in such circumstances. Two things will have happened as a result of that. One is that there will have been an injustice because an arm of the state has clearly behaved in an utterly dishonest fashion; it should have been held to account and has not been, and that is clearly an injustice. The Government—the state, broadly interpreted—have not actually considered themselves subject to the law. The second thing is that an incentive has been created for other public authorities to behave in such a way as to prejudge the outcome of a judicial review or a threatened judicial review, so more harm will be done in future by public authorities acting in that fashion.

That is the path that in my view we would be going down if we accept this clause. The clause should not be accepted: it is very dangerous. I am sorry to have to agree with what the noble and learned Lord, Lord Brown, said—that this looks as though it is part of a package designed to weaken the element of central protection of judicial review in our system. I hope that that is not a sinister, deliberate intention on the part of the Government, but it looks awfully like it when you look at this clause and the clauses that will come in the rest of this part of the Bill.

[Baroness Butler-Sloss (CB)]

My Lords, I recognise the points that were made on the other side of the House about delays and the deterrent effect on certain local authorities. There is a clearly a balance to be struck. But this legislation is a step too far. It is an unattractive step, as has been said by many other noble Lords. The Government are reducing significantly the right of a citizen to challenge flawed decisions of national and local government; they will not to be able to hold national and local government to account. That has come out loud and clear from earlier speakers, but I just reinforce it.

Whatever the disadvantages of judicial review may be, one must bear in mind that to go forward with this particular legislation will be a denial of justice to ordinary citizens—some of whom, as the noble Baroness said, are very vulnerable. I must ask the Government to step back for a moment and rethink whether there is a way forward to deal with delays and other problems without cutting the fundamental importance of the exercise of the discretion of the judge. As the noble Lord, Lord Carlile, said, only in a minority of cases is permission to go forward given. Those cases need to be heard. So I ask the Government to think again and step back. If I could use perhaps an unattractive phrase—back off on this one.

[Lord Hart of Chilton (Lab)]

My Lords, I want to speak briefly. I was going to save myself until Report, but this afternoon I was provoked into speaking by the reference by the noble and learned Lord, Lord Woolf, to Andrew Congreve. Andrew Congreve is a partner of mine at Herbert Smith. We both went to the post office to get our TV licences when we heard that the fee was going to be increased. Andrew Congreve was provoked by the threat that his second TV licence was to be revoked by the BBC. That threat stirred him into action. He has not been very well recently. It is only to be applauded that he should be referred to this afternoon: he is now in the Law Reports and will appear in Hansard.

I wish to make a second point. The noble Lord, Lord Horam, referred to delay, as did the noble and learned Baroness, Lady Butler-Sloss. Steps are being taken at the moment to speed up the process of judicial review. Only six weeks are allowed now to bring the case—to make the application. That is a substantial cut to the period of time that was allowed before. The new planning courts, filled with judges who are experienced in this area, now sit to hear these cases. They come on very quickly. In my recent involvement, the six weeks application was made, the leave was granted quickly and the hearing took place a week ago. That was dealt with with enormous speed. If that is the process that is to be fulfilled in the future, a lot of the problems about delay will vanish.

[Lord Pannick (CB)]

My Lords, I apologise to the noble and learned Lord, Lord Woolf, for missing the opening minutes of his speech this afternoon—indeed, I apologise to all noble Lords—as I attempted unsuccessfully to break the world record for running here from the Supreme Court.

When proposals for amendment of judicial review are brought forward by the Government—who are, of course, the main defendant in such litigation—they require the most careful scrutiny to identify whether they are indeed in the public interest and whether there is any good reason for Parliament to intervene in an area that has previously—and rightly—been left to judicial discretion. Clause 64 seems to me to fail to meet those criteria.

I have three objections to Clause 64. First, it focuses on whether it is highly likely that the outcome for the applicant would not have been substantially different. I emphasise the words “for the applicant”. The clause fails to recognise that judicial review is not concerned just with the narrow interests of the applicant. Judicial review serves the public interest, as the Committee has heard, by exposing systematic breaches of legal requirements by defendants. The court’s judgment—often a declaration—tells the Administration that what has been done is unlawful. Changes are then made; unlawful practices stop. Clause 64 will constitute a major impediment to that vital function of judicial review.

My second objection to Clause 64 is that a remedy may be appropriate in the interests of the individual claimant even in cases where the legal wrong may have made no difference. Last year, Lord Reed emphasised in the Supreme Court in a case concerning the Parole Board—the Osborn case of 2013, in volume three of the Weekly Law Reports, at page 1020, paragraphs 67 to 68—that the law requires public bodies to adopt a fair procedure to ensure not just that the right conclusion is reached on the merits of the individual case but that the subject of such a decision is not left with a sense of injustice that a wrong approach has been adopted in their case. Again, Clause 64 would prevent judicial reviews going forward for that purpose.

My third objection to Clause 64 is that it would require the court at the preliminary stage to conduct a detailed review of what would have happened had circumstances been different. That will of itself be time-consuming and expensive, and will inevitably promote satellite litigation. The noble Lord, Lord Horam, expressed concern about delay, and we are all concerned about speeding up legal procedures. Several steps have been taken; the noble Lord, Lord Hart, referred to them a moment ago.

It is important to say to the noble Lord, Lord Horam, that Clause 64 simply does not address the objective of speeding up procedures; nor will it achieve any such objective. One could have shorter time limits and arrange for speedier, expedited or shorter hearings—those are all processes that are being adopted. The Fordham inquiry for the Bingham Centre has made a number of valuable proposals.

Clause 64 simply does not address the topic; it is a blunt weapon, if removing delay is its objective. It is, for reasons that I have sought to explain, counterproductive, because it will lead to longer hearings at the leave stage and more appeals on the grounds of what would have been the result had a different approach been adopted.

Your Lordships have heard that Clause 64 has been criticised by the Joint Committee on Human Rights. Your Lordships’ Constitution Committee referred to the concern expressed by the senior judiciary during consultation that Clause 64 may well lead to unlawful administrative action going unremedied. The Constitution Committee therefore advised this Committee and the House to consider whether Clause 64 risks undermining the rule of law. I think that Clause 64 will impede the effective exercise of judicial review, and will do so for no good reason. I very much hope that the Government will think again before Report.

17:15

[Lord Carswell (CB)]

My Lords, in brief compass I will say, if I may, that I support the amendments and all that has been said about Clause 64 by those who have opposed it. I am a little hesitant to express matters in terms of my experience because the vast experience of noble Lords with judicial and advocacy experience is such that mine appears very minor. However, it is rather personal and I may be able to give the Committee some idea from that why I regard this as not only undesirable but unnecessary.

The courts have quite sufficient powers to deal with the matters contained in Clause 64. I can tell the Committee exactly why I say I know that. When judicial review was coming on stream in Northern Ireland in 1984 it was exactly the time I became a judge in the High Court. I was put in charge of those matters coming before the High Court and grew up with it. If I may say so, I helped to shape it and to form the judicial approach to the development of judicial review in our jurisdiction. I was very attentive all the while to the way in which it was being developed very well indeed in the jurisdiction in England and in other jurisdictions. I know from personal experience that the judges have the necessary powers. All they need to do is exercise them sensibly and robustly, with a careful eye to the justice of the individual case.

Once you write down these things and put them into legislation, as I have had occasion to say to the House before, two things happen. The first is that you cannot legislate for everything; there will be difficult and borderline cases when the shoe pinches and the exercise of discretion is an essential part of achieving justice. Secondly, once you write things down, it will give rise to an industry of finding ways round it. As the noble Lord, Lord Pannick, said, it will give rise to satellite litigation. For those reasons I strongly oppose the adoption of Clause 64. It may well be right—and I would not rule it out—that the pendulum should swing to some extent. The Government may have some perfectly valid points about matters that should be attended to, but this is not the way to do it.

[Lord Paddick (LD)]

My Lords, I rise briefly to speak to this amendment. It will become apparent very quickly that I am not a lawyer, and never have been, but I have been involved in one case of judicial review as a result of becoming a victim of phone hacking.

The fact that I was a victim of phone hacking became known to the police, but the police did not inform either me or other victims when that information came to their notice. As a consequence, together with others, we took the Metropolitan Police to judicial review on two counts: first, over its failure thoroughly to investigate phone hacking in the first instance; and, secondly, on its failure to inform those that it knew were either victims or potential victims of phone hacking to enable them to take steps to guard their privacy. The court found that whether the police should have investigated thoroughly the first time round was entirely a matter for the police. However, on the issue of whether the Metropolitan Police should have informed the victims of phone hacking, the court found that it was under a legal obligation to inform them. That important principle was therefore established through this judicial review.

Bearing in mind that by the time we brought the judicial review we had been informed by the police that we were victims of phone hacking, can my noble friend the Minister confirm that the outcome of that application would not have been substantially different for us? In other words, we already knew that we were victims, but we wanted to establish the principle that the police should have told us earlier. If Clause 64 were enacted, we may not have been able to bring that judicial review and establish the important principle that the police must inform victims of this sort of crime as soon as they become aware of it.

[Lord Mackay of Clashfern]

My Lords, I, of course, have nothing like the width of experience that has been spoken of already by a number of noble and learned Lords and other noble Lords. However, I have a certain amount of responsibility in connection with judicial review from quite an early stage.

Your Lordships will remember that the law of England originally provided for four rights, which were prerogative writs that had the effect of controlling the subordinate powers at the insistence of the High Court. That is because the High Court is a court of universal jurisdiction. The difficulties of these particular prerogative writs were gradually appreciated and, eventually, the judges decided that it would be a good idea to have a new form of procedure called judicial review. They ultimately incorporated it in a rule of court which, as I remember, was called Order 53, and that was the situation for some time. However, it was not long before the judges themselves decided that it was not good enough to have procedure of this kind depending only on an Order 53 rule of court. It was therefore important that this became statutory and that Parliament should have responsibility for the legislation which affects and controls the process of judicial review. It is therefore 100% clear that Parliament has authority to deal with this. That does not necessarily mean, of course, that any particular action proposed to Parliament by a Government is necessarily the best thing to do.

However, I would like to mention one or two aspects of this. The first is from the point of view of planning. I used to practise some planning work in the 1950s, 1960s and 1970s and in the planning legislation there was, I think almost from the start, always a provision empowering an applicant or a person aggrieved by a decision in the planning field to apply to the court. There were two branches of that: first, where there was no power to make the decision; and, secondly, where the decision was the result of a failure of process. I think that the current form is in the Planning and Compulsory Purchase Act 2004, where the second provision is,

“that the interests of the applicant have been substantially prejudiced by a failure to comply with a procedural requirement”.

It is important to see that it applies where the interests of the applicant have been “substantially prejudiced” by a failure of procedure.

I think that that system worked well. In due course, of course, as a result of various decisions, including a decision of this House in its judicial capacity, in which I took part, it was held that judicial review was sometimes available even when there was a statutory form of appeal, and therefore judicial review started to be used in the planning field, notwithstanding the provision that I have just referred to. A number of cases came along, one of which the noble and learned Lord, Lord Woolf, will remember, when somebody was faced with a document at the beginning of a hearing before the inspector, and the inspector granted him an adjournment only until lunchtime. Lord Denning and his colleagues, notwithstanding the eloquent defence by Mr Woolf, as he then was, found against the Secretary of State. However, that is a success of the old form and the present form of statutory appeal.

In a more recent case at the Court of Appeal, the leading judgment was given by the judge who was the senior presiding judge in England in my time, Lord Justice Auld, who said, on dismissing the appeal:

“In doing so I add a note of dissatisfaction at the way the availability of the remedy of judicial review can be exploited— some might say abused—as a commercial weapon by rival potential developers to frustrate and delay their competitors’ approved developments, rather than for any demonstrated concern about potential environmental or other planning harm. By the time of the hearing of this appeal, as is often the case, the approved scheme in issue is clearly of a piece with—”

what was already there. So, the danger of judicial review as a means of trying to damage competitors was recognised. My noble friend Lord Horam has given a number of cases in which that has actually taken place. That warning was given a considerable time ago and I am delighted to hear that now—this is a fairly recent development—there is a Divisional Court in the High Court with expertise in planning able to deal with planning applications very speedily indeed. That is highly desirable.

The other thing I want to mention is that, when I was first in practice, we did not particularly think that we were not under the rule of law, although there was no judicial review. Another aspect of the law which was quite important was that there were finality clauses in most Acts of Parliament making the decision of the Minister or the authority final and unable to be upset by any judicial procedure. That was a fundamental protection for the Executive, for local authorities and so on—all sorts of bodies had that kind of protection. The Foreign Compensation Commission happened to be the one selected for trial and in Anisminic v Foreign Compensation Commission the judges found the way around this finality clause in such a way that these finality clauses have ultimately disappeared. Therefore, the scope for judicial review is very much greater than for the prerogative writs that were in position originally.

I was involved in one of the early cases on development of judicial review in respect of the standing of, or the right to bring, such a case. Certainly, there is an interesting issue in relation to some of the clauses in this part of the Bill about forming private companies simply for the purpose of promoting a particular judicial review in the hope of protecting perhaps fairly wealthy, not in any way impecunious, people from the possibility of costs. That is a development in relation to judicial review which I think requires consideration.

17:30

The idea and doctrine of judicial review is extremely important and very precious. When I was responsible for altering—or proposing to Parliament, which is the correct way to say it, I think—the jurisdiction of various courts, I was strongly of the opinion that judicial review should remain in the High Court. It has remained there, except that the top tribunal now has the power in certain cases to use judicial review. However, we have to be conscious of the fact that judicial review, excellent as it is, is capable of being abused. Lord Justice Auld recognised that in connection with planning, but it is not only in connection with planning that that sort of consideration may arise.

The noble Lord, Lord Adonis, who was a Minister in the previous Government and is well known to your Lordships, has written about judicial review in connection with the academies policy of the previous Government. His book is called Education, Education, Education, which is a war cry that will be fairly instantly recognised. The subtitle is Reforming England’s Schools. On page 78, he writes:

“However, if Parliament was navigated quickly and unobtrusively, the same was not true of the courts. As soon as academy projects became public, opponents seized on judicial review as a means to stop them. Ultimately they failed, but only after years of lengthy, expensive and immensely distracting court actions, mostly funded by legal aid with the real opponents—the National Union of Teachers and anti-academy pressure groups—masquerading as parents too poor to afford to pay legal fees.

The legal campaign against academies was masterminded not only by these opponents, but also by solicitors and barristers who made a specialism of academies case and encouraged legal challenges…

A critical early case concerned St Mary Magdalene Academy, around the corner from my home in Islington. Islington council held an unusual local referendum in 2001, asking the borough’s residents whether they wanted a new secondary school and, if so, of what type. Virtually all those voting in the referendum favoured a new school, and the most popular option was for a Church of England school, Islington having no C of E secondary schools. The council thereafter drew up plans with the diocese of London for an existing Anglican primary school to be rebuilt as an all-through academy for primary- and secondary-age children. However, popular enthusiasm and local authority agreement did not stop anti-academy campaigners from fighting the proposal through the courts, with the support of residents in nearby multi-million-pound houses, few of whom used Islington state secondary schools or intended to do so, and who simply didn’t want a new school of any kind in their back yard. It was a classic unholy alliance”.

In due course, the case went through the courts—it took quite a long time—and in July 2006 the High Court decided in favour of the Government.

That is an account, by somebody who was affected, of the way that judicial review was used. The important thing I find from it is that, so far as possible, the people selected to try to raise the reviews were people who qualified for legal aid. In this way, the whole expense of the campaign, so far as it was financed in that way, was borne by the taxpayer. That passage, from a very responsible source, shows me that we need to think—certainly, we have to be careful—about the way in which judicial review may be used. I am not saying that everything that is said in these clauses will necessarily deal with that, but I believe the clause about finding out the financial position in relation to the judicial review is relevant to this sort of situation.

So far as the first clause is concerned, I do not intend to deal with the detail of the amendments at this stage because the Minister will no doubt wish to do so. So far as I am concerned, the first clause does not preclude the idea that, if the court thought the outcome should be a declaration, it would not be able to do so because it is the outcome for the applicant. If the outcome for the applicant is a declaration that there has been a practical wrong or unlawful practice and the applicant could secure that as a declaration, it would be part of the outcome. It might not make much difference for the rest of his situation, but at least that would be part of the outcome that the court might think was possible. At the early application for leave, that point could certainly be considered.

[Lord Davies of Stamford]

I am listening with great attention to what the noble and learned Lord is suggesting. Is he proposing to put down an amendment to allow the court, notwithstanding the restrictions that are being imposed in this Bill, in the event of what is described as being an academic case in which the outcome is not likely to be very different one way or another for the applicant, nevertheless to proceed under those circumstances if its intention is simply to make a declaration? That is not provided for in the Bill at present. Is the noble and learned Lord proposing to put down on Report an amendment that would give that suggestion effect?

[Lord Mackay of Clashfern]

If that were necessary. I regard it as something that could happen under the existing clause because the outcome for the applicant could include a declaration, in my judgment. It is a question of whether the court thought a declaration appropriate. If it did, it could do so, notwithstanding the provisions of Clause 64.

[Lord Elystan-Morgan (CB)]

The noble and learned Lord, Lord Mackay, makes the very proper point that there is ample precedent for Parliament to deal with the issue of judicial review. Indeed, he traced historically how prerogative writs developed, how they were placed on an administrative basis and how, ultimately, they became the subject of specific legislation. One point must be made, however, and I am not sure that the noble and learned Lord did not touch upon it in his powerful address: that when legislation intervened in this area, it did not diminish to the slightest degree the rights of the individual, or, indeed, any of the relative positions in relation to the various powers that judicial review seeks to deal with equitably. In other words, the boundary was not moved a single inch.

My second point has already been touched on: it is about the rule of law. Many here will have read the excellent treatise by the late Lord Bingham, in which he reminded us that there are two boundaries in relation to the rule of law. The most obvious is whether a law has been technically and lawfully passed through both Houses of Parliament and received Royal Assent. However, Lord Bingham went on to make it perfectly clear that if a law was unconscionably wrong, even though it had proceeded through all those stages in a thoroughly proper and technical way, it would still be in breach of the rule of law.

The point that Lord Bingham makes is that there are two boundaries: one is the technical parliamentary boundary; the other, of course, is a boundary beyond that. Indeed, it is in that context that this whole debate is taking place. The boundary that we are talking about is the boundary of the inherent jurisdiction of the High Court, something which has been built up over many centuries and not spelt out by Parliament but which is nevertheless a very real and massive boundary.

If I am right—and I suggest that it most certainly is the case—that Clause 64 breaches that boundary and undermines it, there is a very strong case for changing it. That is the real relevance of the excellent debate that we have had today.

Many speakers have made the point about Clause 64 in the context where the result would have been no different. I would ask in how many cases the following situation applies. A party is elected to government after a hard-fought election. It has set out very clearly in its manifesto exactly what legal changes will be brought about in various fields of law. It will invoke procedures which are already set out in statute to make those changes. Those proceedings will, of course, involve consultation. However, every thinking person knows that that is something entirely chimerical. There will be consultation, yes, but the consultation will make no difference to the determination and resolve of that new Government to bring about that change. If you say that that consultation does not really matter, what can you do? You do not challenge the ultimate right of that party to bring about that legislation, but you can challenge the right of that party to make a mockery of the procedures of law. That is exactly what is entailed here.

Consultation does not, of course, mean that you have to weigh in the balance the views that are tendered to you, but it does mean that you have to look carefully at what is said and give a reasonable period and a reasonable prospect for people to be able to make such representations. The idea that those count for nothing is, I suggest, utterly inimical and utterly contrary to our concept of the law as we have it.

[Baroness Deech (CB)]

My Lords, I am not a practising lawyer, but I have experience of being judicially reviewed, and after much hard thought, I speak in support of the noble Lords, some of whom are learned, who have put their names to this amendment and similar ones. After much thought, I think that this is the wrong clause, and I think that the way in which it is drafted will open doors to as much costly litigation as it is intended to prevent.

I can well imagine the sort of thing that the Government had in mind in bringing this forward. For example, in my experience, a student would challenge a poor grade or a failing grade on the ground that some tiny bit of procedure had gone wrong, something had not been put up on the notice board at the right time or whatever, and one knew perfectly well that, no matter how many judges looked at it, this student would still, in the end, be a failing student or a student with a poor grade. I quite understand that. However, I do not believe that this is the way to tackle it. There are procedural problems that ought to be tackled first. There are too many opportunities to ask, and ask again, for leave to judicially review something, and then to appeal against it. There are very many bites at the cherry. Although one may know very well that in the end the judicial review will not succeed, for a year or two an expensive dark shadow hangs over the body that might be judicially reviewed while lawyers are having to cope with the case.

Nevertheless, despite those drawbacks, I support this amendment. I call on the Government, instead, to look at procedural reform that would make the whole procedure quicker, cleaner and cheaper.

17:45

[Lord Beecham]

My Lords, this has been, as ever, a very well informed and interesting debate, and it has been particularly beneficial to have the views of those who are not lawyers to consider. I suppose I must congratulate the Minister on this occasion on having at least two supporters from the government Benches, which is double the usual quotient, if not better than that. I simply say, however, to the noble and learned Lord, Lord Mackay, who makes a valid point about financial information, to which we will come later when we discuss a further group of amendments, that there are other arguments about finances. These include in particular, as we shall no doubt hear, the chilling effect on those who are not in a position of wealth or able to find large sums of money to meet the potential costs. That is an item very much to be weighed in the balance. As the noble and learned Lord himself pointed out to his noble friend Lord Horam, who has been in his time the noble friend to all three political parties and members of them and remains on friendly terms with members of those parties, in the planning field the landscape has changed in any event, perhaps in a timely fashion. I do not think the noble Lord’s concerns are particularly relevant to the day’s deliberations, but in any event all that is required effectively is for those making decisions to comply with the requirements of the law. That is ultimately what judicial review is all about.

I support the amendments in the names of the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Pannick and Lord Carlile, to which I have subscribed my name, and will speak to some amendments specifically in my name. I refer to Amendments 71B, 72D, 72E and 73A and 73C in this group. I will outline those briefly before turning to the substance of the argument. Amendments 71B, 72B and 73C would replace the words that we have heard something about this afternoon, “highly likely”, with the word “inevitable”, which is currently the position. That is to say, the outcome of the Bill for the applicant would not have been substantially different if the conduct complained of had not occurred. Instead of that being “highly likely”, that would become the “inevitable” position. That is a material restoration of the position as it now stands.

Amendments 72D and 73E would remove the obligation on the court—that is, both the High Court and the Upper Tribunal—to refuse to grant leave even if it believes that the outcome for the applicant would not have been substantially different if the behaviour complained of had not occurred. Amendments 72E and 73A would alter the definition of the conduct complained of for the purposes of determining whether such conduct would have made a difference to the outcome to mean any procedural defect rather than the conduct of the defendant; they would put it on more of a procedural basis.

As we have heard today, Clause 64 raises a new and significant barrier on the road to those seeking to hold the Government or other public bodies to account for a failure to observe the law. This self-serving change is one of a series deliberately designed to constrain judicial scrutiny and narrow judicial discretion. Its argument is partly based on a false claim that the number of judicial review cases has trebled whereas, as was made clear at Second Reading and, tellingly, repeated by the Constitution Committee in its second report on 4 July, after taking into account the transfer of immigration cases to the Upper Tribunal, the number has increased in 13 years by only 21%, or 366 cases.

Of those, only 0.4% have been conducted by campaigning organisations—that is to say, 50 cases in 13 years. Yet those campaigning organisations have attracted the obloquy of the Lord Chancellor, who, as we heard powerfully from the noble Lord, Lord Ramsbotham, in the debate on Part 2 of the Bill, has described organisations as being “left-wing”. Incidentally, those organisations that have brought judicial review comprise such extremist left-wing agitators as the Countryside Alliance, the Daily Mail, the Daily Telegraph and UKIP’s former treasurer. However, the Lord Chancellor has not confined himself to that observation. He spoke—or wrote, to be more precise—in the Daily Telegraph that judicial review is,

“exploited inappropriately by pressure groups with a political point”.

The Joint Committee on Human Rights, which I hardly need remind your Lordships is a cross-party—indeed, a cross-House—committee, with members from all Benches, including the Cross Benches, observed that:

“Such politically partisan reasons for restricting access to judicial review, in order to reduce the scope for it to be used by the Government’s political opponents, do not qualify as a legitimate aim”.

I think that most noble Lords who have spoken would concur with that fairly damning conclusion as, I suspect, many others would as well.

If the Government are concerned, as the Minister claimed to be at Second Reading, that “other more meritorious”—I pause to inquire whose definition of “merit” would be applicable—judicial reviews “can proceed more quickly” perhaps the Minister can tell us, in addition to those matters that have already been referred to by noble Lords, how many of the 25 recommendations made by the Bingham Centre for the Rule of Law in February the Government propose to adopt, or, if they have not yet reached a conclusion, at the very least what consideration has been given, and in what form, to those proposals.

Of course, as we have already heard, the amount that the noble Lord, Lord Horam, referred to, of a six-week period for raising an objection, has already been dealt with. A six-week period being imposed would in some cases present very serious difficulties, particularly with regard to the position of the non-availability of legal aid for pre-application work. However, of course, not all those cases are funded by legal aid in any event. I cannot speak of the Islington experience with the inside knowledge of my noble friend Lord Adonis or as acquired by the noble and learned Lord, but the fact that there is a disagreement about that on a particular case does not make a case for the substantial change that the Government are embarking on.

The effect of this clause in lowering the threshold for refusing permission to proceed to one in which it is only “highly likely” that the claimant will not succeed is, in the words of the Joint Committee,

“highly likely to conflict with the requirements of the European Convention on Human Rights”,

and has drawn the vigorous condemnation of the senior judiciary. The amendments before us echo the recommendations of the committee, not least in the requirement that it would be inevitable that the claimant’s case would fail. The Government choose to ignore the difficulty of claimants effectively having to try the issue without the benefit of legal aid or advice, which, as I have said, is not available at the permission stage.

Moreover, the JCHR recommendations address the additional and fundamental issue of whether the application would make a substantial difference to the applicant if the conduct complained of had not occurred. The recommendation in the Bill personalises the claim when in the first place many such claims by definition—as we have heard, again, from other of your Lordships tonight—give rise to a public interest element that transcends the position of the applicant, whether that is the applicant for a television licence or other rather more intrinsically weighty matters. Secondly, of course, it ignores the fundamental imperative of the decision-making being lawful. As the Constitution Committee points out,

“lowering the threshold risks unlawful administrative action going unremedied”.

When the President of the Supreme Court says that,

“any interference in or restriction of judicial review has to be looked at very carefully”—

to which I add the obvious further obvious comment that this must be especially true when those proposing the interference are by the very nature of the process the potential respondents in many claims—your Lordships’ House is obliged to take heed.

I very much hope, even at this late stage, that the Government will review their position. If not, I envisage that on Report, those of us who have tabled amendments and spoken to them tonight will seek to test the opinion of the House about a fundamental, radical and wrong-headed change to our system, which we must use our best endeavours to halt if we cannot improve it.

[Lord Faulks]

My Lords, this has, correctly, been a lengthy debate, in which views have been expressed by a number of noble Lords with judicial and legal experience and—to the benefit of the debate—by noble Lords who have different but none the less valuable experience to contribute to the debate as a whole. Since this is our first opportunity to consider Part 4, it is wholly understandable that the comments made by certain noble Lords have ranged beyond the strict confines of the clause that we are considering, because the general thrust of the argument embraces more than one clause. I make clear that any points that arise in the subsequent groups should be taken again, and that no noble Lord should feel any restriction by having mentioned them in this first group.

The development of judicial review has been contributed to, quite apart from this debate, by a number of those who have contributed to the debate. Although they have not said so, it is clear that there is a great deal of judicial pride in the fact that it has evolved and provided a valuable, and indeed fundamental, check on executive power, not just in this country but, as we have heard, in Northern Ireland. I do not resile from anything that I said at Second Reading about the importance which the Government attach to judicial review, nor indeed in the columns of the Times. I have not ventured into the Daily Mail or any of the other organs that the noble Lord, Lord Beecham, referred to, nor have I expressed any views about the particular political affiliations of any potential applicant, which are nothing to the point. The question is whether it is appropriate for any—and in particular these—reforms to take place.

Of course, it is tempting to suggest that judicial review is so perfect an object that it is beyond improvement. It is described by the noble and learned Lord, Lord Brown, as “a heresy” to consider any modification of the doctrine of judicial review. I agree with those who said clearly that any change to judicial review should be looked at very carefully indeed—quite so. That is precisely what this debate and subsequent debates enable us to do. However, I respectfully differ from the point that it is beyond Parliament’s competence to make some modest changes, and these are modest changes. That is appropriate if Parliament approves that these changes are made, bearing in mind, of course, that they should not encroach on the proper role that judges have established and which they perform so well. We must accept, as illustrations have shown in this debate, that there is the potential for abuse in judicial review. That is not to say that it does not have an extremely vital function, but we should be astute enough to ensure that the doctrine is sufficiently rigorous to remove or at least limit the possibilities for abuse.

18:00

We suggest that our reforms will effect a modest rebalancing to ensure that meritorious claims—I will deal with the adjective “meritorious”, as invited—that are grounded on failures of public administration that affect people can proceed swiftly and effectively to their being determined. Time limits are now shorter than they once were but there is still the question of obtaining a permission hearing and then, if permission is given, the question of obtaining a full hearing. That may take some time. While I applaud all the attempts by the judiciary and court staff to speed things up, it is plainly the case that there are delays. Sometimes, as my noble friend Lord Horam so clearly pointed out, these delays can be the enemy of progress in infrastructure projects and the like, which I am sure that noble Lords on all sides of the House would not wish to impede, when in fact the grounds for purported judicial review are baseless.

Clause 64 is one part of our approach. It modifies how the High Court or the Upper Tribunal deal with judicial reviews where the matter complained of was highly unlikely to result in a substantially different outcome for the applicant. The clause is designed for the most part to bite on errors in procedure that are highly unlikely to have changed the end result. For example, a public authority might have run a consultation to inform its decision on where to place a pedestrian crossing but failed to notify—when it should have—an individual who ought to have been notified that the consultation had begun, despite the public authority having let many others know. However, that person’s likely arguments have been raised by many other individuals, and the public authority made its decision having fully considered the arguments that were raised. In those circumstances, the court might conclude that the failure to notify that particular individual, unlawful though it was, was highly unlikely to have affected the outcome for the applicant, and it would be futile to quash the decision and require reconsultation since nothing new would be added.

Clause 64 would mean that the court, in the absence of other grounds of challenge, would not give permission or grant a remedy so that the original decision would stand. This clause will help to ensure that judicial review focuses on matters of importance, not on mere technicalities.

[Lord Beecham]

My Lords, would the case that the noble Lord has just outlined not be one in which the decision be “inevitable” rather than “highly likely”? Would the amendment that I have tabled not therefore meet that sort of case?

[Lord Faulks]

It might or might not be “inevitable”, but we suggest “highly likely” would ensure that it would not survive. “Inevitable” might leave room for the argument that it was highly likely but not inevitable. This makes sure that the position would be as we say that it should be.

[Lord Davies of Stamford]

I am grateful to the Minister for giving way. Does he accept that his remarks in his last few sentences do not really address what has come out of the debate on the subject? It is quite clear at present that the court would almost certainly not give judgment in such circumstances as he described; it would set aside the argument, not accept a judicial review and say that there was no reason to reopen the whole case. The court at present has that jurisdiction and has that opportunity if it wishes to use it. What the Government are trying to do with this clause is to remove any judicial discretion at all by the phrases “must not” or “may not”. The examples cited by the Minister stand in favour of the preservation of the existing law, not the changes in the way recommended or as enshrined in this Bill.

[Lord Faulks]

I think that is very much the same comment the noble Lord, Lord Beecham, made, although expressed in slightly different terms. As I will come on to explain, we suggest that the clause—if it is incorporated into the Act—would still give the judge discretion. We are simply making it clearer where the bar is placed.

At present the courts will find that there will be no difference where the end result was inevitably the same. Amendments 71B, 71C, 72B, 72C, 73C and 73D and the amendments consequential upon those would go further in adding additional requirements concerning the public interest and the overriding objective. Those additional requirements do not apply at present as the law is understood by the Government.

The current threshold is already extremely high. In the Government’s view, this means that judicial reviews can be grounded on technicalities which would in practice have made no difference to the end result, or, ultimately, the applicant. That is why it comes up so rarely, and that is why we wish to modify the current approach. In the Government’s view, scarce court resources would be better applied to cases in which a difference to the outcome is more likely. But I reassure noble Lords that, as drafted, what Clause 64 does not do is make the exercise of this power in any way routine. This is because the clause applies the standard of “highly likely”. This will remain a high threshold, and when there is any significant doubt that there could have been a difference for the applicant, the threshold will simply not be met.

Concerns have been raised that in applying this approach of diligence, the courts will be dragged into the forbidden ground of a merits-based review, where they insert themselves into the decision-maker’s shoes. I respectfully disagree with this. I am sure that the courts will continue with the established way in which judicial reviews progress; namely that they consider the process which led to, and not the merits of, the decision, the legality of the process being the essence of the challenge. They will perform this exercise even in the examples postulated by the noble Lords, Lord Beecham and Lord Davies. It is inevitable that they will have to look at the facts there and then on the basis of the information. What we are suggesting is that a very low bar is raised slightly higher, but the exercise will be performed at the same stage.

Furthermore, there is an additional reason why this exercise should not create real difficulties for judges. Judges often have to make decisions on the basis of information available to them which is not complete. For example, in a civil claim where, let us say, a claimant is suing for negligence, the defendant may argue that the claim should be struck out on the basis that it discloses no cause of action. There the claimant’s case may be taken at its highest, and the argument proceeds that even if the claimant is right, the claim is not sound in law and must therefore be struck out, to which the answer often given by claimants is, “Well, my Lord, you haven’t heard the evidence. If you hear the evidence and get a clearer view of the matter, then our slightly adventurous case may be seen in a better light”. Sometimes that argument is persuasive, but very often judges are able to take the view that the position is sufficiently clear for it to be uneconomic and unnecessary to hear the case. This is the task they perform.

Nor do I think that the “highly likely” test should be beyond the agility of our very distinguished judges performing in the High Court, as the noble Lord, Lord Elystan-Morgan, emphasised. It is not the balance of probabilities, but the “highly likely” test is something I feel confident that they will be able to apply.

Amendments 72E and 73A probe the scope of Clause 64 in practice following the recent report of the Joint Committee on Human Rights, to which the Government responded in July, over what types of flaw the clause will affect. In the Government’s view, the term “procedural defect” is too imprecise to be used in legislation. The grounds for judicial review are not defined in legislation; doing so in certain areas would be a significant step. “Procedural defect” has no accepted definition at present under case law, and it would be virtually impossible to arrive at one that would stand the test of time, given how judicial review evolves with each new decision. Furthermore, it would lead to the risk of satellite litigation, referred to by a number of noble Lords.

We have also heard concerns that the clause will cause administrators to act unlawfully, for sinister motives, safe in the knowledge that, if challenged, they will have a “get out of jail” card. No decision-maker is going to follow knowingly an unlawful process simply because they think that at some point in future they may be able to argue successfully that there would have been no difference to the outcome. This is particularly so, as I have already indicated to your Lordships’ House, because our reforms have maintained a very challenging threshold.

Lest it be thought that the Government have not listened and are ploughing on regardless of the views expressed by others, I say that the question of standing was one that was often considered controversial in the reform of judicial review, and the Government initially thought that there ought to be a real connection between the claim and the applicant. The applicant state is referred to by the noble Lord, Lord Pannick. I looked at the White Book as to the summary of the development of the sufficient interest test for standing, and it contained this comment:

“The courts have adopted an increasingly liberal approach to questions of standing over recent years”.

Quite so—but the advantage of having a fairly elastic rule on standing was acknowledged by the Government on the basis that sometimes it is important that these cases are brought forward. It is an indication that the Government are making appropriate responses to the concern that has been expressed.

Some have argued that this clause will add delay to the consideration of judicial reviews by potentially requiring fuller argument at the permission stage. That is in part, as I apprehend it, the basis for Amendments 72 and 73, which would remove the requirement for the High Court or Upper Tribunal to consider a no-difference argument when it is raised by the defendant in the response to the application for permission. The Government consider that it is entirely proper that, when a no-difference argument is made by a defendant, it should be considered by a court or tribunal. I accept that when this argument is raised it requires courts to look at the case and the issues with care, but they do that at the moment. I do not think that that would mean that judicial reviews would become overlong. On the argument being raised more often, I say that it should be put only by defendants sure or confident of their arguments and position; if made without a sound basis, I would expect the courts to look to costs, which would act as a sufficient deterrent. In due course, we will invite the Civil Procedure Rules Committee to create a process that allows for oral arguments on this question at permission. While it would be wrong of me to pre-empt that committee, I am sure that it will be done in a way that makes the procedure straightforward and cost effective.

Amendments 72 and 73 would also remove the duty on the court to refuse permission when satisfied that it is highly likely that in the absence of the flaw complained of the outcome would not have been substantially different for the applicant. Those are, effectively, wrecking amendments. The Government’s view is that in those situations permission should not be granted.

[Lord Pannick]

Could the Minister clarify the Government’s position on the point that I understood was raised by the noble and learned Lord, Lord Mackay of Clashfern? As I understood him, the Minister suggested that even under Clause 64 the court could allow a judicial review claim to go forward and could grant a declaration of illegality, even if the outcome of the administrative process would have been the same for the claimant because the outcome of the litigation would be different. It would be a declaration. I see him nodding. For my part, I understand Clause 64 to refer to outcome as meaning the outcome of the administrative process. However, if I am wrong, could the Minister say so?

18:15

[Lord Faulks]

I was going to come on to this, but it is a highly pertinent point. The position as I understand it is that a decision which has resulted in a declaration, whether it is called a declaration formally or not, whereby the validity of the argument is acknowledged, might give the applicant the satisfaction—and, if there is any significance, significance can be drawn from it—of knowing that there has been an unlawful act, or whatever the nature of the challenge is. But that would not necessitate a full-blown hearing to determine something that is evident on the papers but does not require there to be a full hearing some months later, for example. I am concerned about that point, and I shall consider it further in terms of the mechanism whereby the answer can be given without the need for expensive and cumbersome litigation. I appreciate the point.

[Lord Marks of Henley-on-Thames]

May I press my noble friend the Minister a little further on that? As I read the clause as drafted, the fact that the:

“High Court … must refuse to grant relief”,

encompasses a refusal to grant the declaration. For that reason, I was concerned by the intervention of the noble and learned Lord, Lord Mackay, as he expressed it on the point, because my noble friend the Minister’s final speech has dwelt on the question of whether the no-difference test is met. What he does not appear to allow for—and I shall be corrected if I am wrong—is, if the no-difference test is met, under this clause as drafted there is nothing that the court can do if this were implemented, because it must refuse to grant relief. That is how it seems to me, and to the noble Lord, Lord Pannick.

[Lord Faulks]

I do not think that I can expand much on my previous answer. If it makes no difference, it is true that, as the clause says, no relief should be granted. What I said that I would consider is the question of when it would make no difference but there is some benefit of a declaration or some judgment which reflects the lawfulness, whereby there might be some scope for providing that that should be given in the course of determining the very issue that Clause 64 covers. I think that that is as far as I can go. I shall consider the argument.

[Lord Davies of Stamford]

The Minister seeks to make a distinction between the court’s ability to grant relief and its ability to proceed to make a declaration. That seems an interesting line of approach in the light of the debate that has taken place. Can I therefore put to him the suggestion that I put earlier to the noble and learned Lord, Lord Mackay? Would it not be helpful if the Government—in this case, the Minister—brought in a new amendment at Report that made it clear that, notwithstanding the restrictions that appear to be overwhelming in Clause 64, the court could nevertheless proceed to grant a declaration?

[Lord Faulks]

I am grateful to the noble Lord, but with very great respect I think that we are going over the same ground again. I hear the argument; I have said that I will consider it, but I want to consider it in a way that does not emasculate Clause 64, which is there effectively to prevent cases in which it would make no difference from proceeding to lengthen expensive litigation. But I acknowledge that there is a potential force in the argument made by the noble and learned Lord, Lord Woolf, and picked up by other noble Lords, including the noble Lord, Lord Davies, about the possible benefit of a declaration, whether it is in the form of a judgment reflecting the point that seeks to be established but does not involve the expense and time of having a full-blown hearing. I do not think that I can take the matter any further at this stage.

In the approach that we suggest to what is essentially a desire to get rid of technical objections, we wish to refer to Lord Denning’s reasoning—and I am glad that he was mentioned earlier as he gets insufficient citation in the courts nowadays. He held that the court,

“should not find a breach of natural justice unless there has been substantial prejudice to the applicant as a result of the mistake or error which has been made”.

That is a reference to a case in 1977—

[Lord Woolf]

Would the Minister be grateful for a copy of De Smith?

[Lord Faulks]

The case is George v Secretary of State for the Environment. I omitted one or two pages of my speech in order not to weary the Committee but I am most grateful for the offer of an autographed copy of De Smith.

I reiterate that, where there is any significant doubt over whether the flaw complained of was highly likely to have made a substantial difference, permission can be granted, and judges will continue to perform their established role. I remind the Committee of a significant judicial discretion which will remain under the clause. Crucially and properly, this discretion will extend to whether it is highly likely that the procedural defect would have resulted in a different outcome for the applicant in any given case and whether any difference would have been substantial.

Amendments 72D and 73E are intended to replace the requirement to refuse to grant permission where it is highly likely that there would have been no substantial difference with an option to refuse permission. It is worth examining that. It postulates the position where the judge says, “I think it is highly likely that it would have made no difference at all, but still I should allow this to progress”. Similarly, Amendments 70, 70A and 71 are intended to replace the requirement to refuse to grant a remedy, including a financial remedy, where this is the case. The Government’s view is that these amendments would significantly weaken the utility of the clause in dealing with minor technicalities in a proportionate manner.

Under Clause 64 as currently drafted, the High Court and the Upper Tribunal will retain significant discretion over the application of this clause. Crucially and properly, this discretion will extend to whether it is highly likely that the procedural defect would have resulted in a different outcome for the applicant in any given case and whether any difference would have been substantial. Indeed, the term “highly likely” will, as I have said, be interpreted by the courts. Where the court comes to the conclusion that it is highly likely that the outcome would not have been substantially different, the Government’s view is that the court should not grant a remedy. I can see no merit in continuing a case where there is no real prospect of a difference in outcome and a remedy such as a quashing order would be futile.

In conclusion, I trust that I have reassured the Committee that the Government absolutely understand the importance of judicial review and do not wish inappropriately to interfere with the exercise of the discretion by the courts, nor substantially to disturb the approach that the courts have taken in this very important area of the law. In fact, I submit to your Lordships that Clause 64 is modest in ambition and beneficial in effect. I hope that, with that reassurance, the noble and learned Lord will withdraw the amendment and I urge the Committee to agree to Clause 64 standing part of the Bill.

[Baroness Lister of Burtersett]

The noble Lord has not responded to a very specific question from my noble friend Lord Beecham, which was: how many of the Bingham centre’s recommendations have the Government accepted? This is very relevant to the point made by the noble Lord, Lord Horam, about delay. He quoted the Joint Committee on Human Rights, making great play of the word “perennial”, but I think that he rather quoted out of context. Perhaps I may read what the Joint Committee said:

“We welcome the Bingham Centre Report as an important contribution to the debate about possible reform of judicial review, demonstrating that the perennial problem of reducing the cost and delay of judicial review proceedings can be addressed in ways which are compatible with effective access to justice”—

that is, it is saying that these reforms are not so compatible.

[Lord Faulks]

I am glad to have that intervention from the noble Baroness. In fact, it reminds me that I did not specifically answer a question that she raised in relation to Article 6 of the European Convention on Human Rights. I reassure her and indeed the Committee that the Government’s view is that the reform is compatible with Article 6. As the Committee will appreciate, the enshrined right of access to the court is not absolute. The Government’s view is that this is a proportionate approach to securing the legitimate aim of having judicial reviews based on minor technical defects determined more quickly with fewer resources.

I am unable to respond now on the Bingham centre but I will write to the noble Baroness and the Committee to inform them of the current position.

[Lord Woolf]

My Lords, I am grateful to the Minister for the careful way in which he has sought to reply to the issues raised. I also hope that I am not misinterpreting him when I detect that he is prepared to look again at the provisions in Clause 64 to see whether some of the points that have been made may be of substance.

[Lord Faulks]

I am sorry to interrupt but I do not want to raise expectations inappropriately. I think that the only area where I said that I would look again was in relation to the very valuable point made by a number of noble Lords, including the noble and learned Lord, about the possibility of a declaration at an earlier stage. Beyond that, I am afraid that I did not give any undertaking at all.

[Lord Woolf]

One has at least to be thankful for small mercies, even if, in your view, they do not go nearly far enough. I am certainly not indicating that in due course there will not be a Division in this House on the appropriateness of this clause.

What the noble Lord has not done in his reply is to deal with the question that has been asked very clearly and has been emphasised by the noble Lord, Lord Davies—that is, what are the powers of the courts now? The position as I understand it is that everything that the Government want to achieve through Clause 64 can be achieved by judges now. If in fact it is said that they cannot, why is it not left to the rule committee, which of course the noble Lord knows about? He knows that it consists of an expert body looking at how the law should be changed in order to obtain improvements. The noble Lord, Lord Hart, in his very helpful intervention, pointed out that significant improvements can be made in planning matters.

The noble and learned Lord, Lord Mackay, and the noble Lord, Lord Horam, mentioned the problems that exist in judicial review. I am certainly not suggesting that it would not be preferable if consideration were given to adopting improvements where they can be made. However, I still suggest that the best and only way to bring about real improvement is through the sort of process that, at the behest of the noble and learned Lord, Lord Mackay, I undertook in regard to civil procedure generally, including looking at judicial review. The fact is that you cannot do these things in the piecemeal way that the Government are seeking to do in these clauses. If you do, the result will be that you inhibit judges’ ability to carry forward what they have done so far, not perfectly but to the best of their ability.

Perhaps I may give one more example in relation to declarations which the Minister might want to consider. There are cases of judicial review where a matter comes before the court and it is at that stage or during the course of the proceedings that it is accepted that a particular result should be produced. None the less—and I should add, so as to make Clause 64 relevant, despite the fact that the applicant will receive no benefit—it is still thought by the court that it is in the public interest not only to give a judgment but to grant a declaration. That can now happen.

There are also cases where the court now can be asked to make a future declaration in order to clarify the law. The declaration is a remedy which is emerging to its full extent in this jurisdiction, and there are cases where other steps can be taken that are in the interests of good administration, the interests of the rule of law and the interests of justice. I repeat: it is not that this cannot be done, but this is not the way to improve the system of judicial review.

18:30

As the Committee will know, Lord Diplock was not only a Member of this House but a jurist of the highest calibre. He made the boast, of which the judiciary is very proud, that the improvements made in judicial review were the finest things to happen in his judicial lifetime with regard to protecting the rights of the citizen. Once we start legislating in the way of Clause 64, the intent of which is to prevent an exercise of discretion in this area, we fundamentally change judicial review. It is not just something superficial; we would be saying that the judges’ discretion should be curtailed. The Government must think about whether that will really benefit the application of this remedy in this situation. I suggest that it would lead to just the satellite litigation that the Minister wishes to avoid.

Those who have spoken in this debate have, in many cases, great practical experience of judicial review as it is. They see its shortcomings and are all in favour of tackling them; but, unfortunately, that will not be achieved by Clause 64 as it is drafted. I do not believe that the Minister thinks that adopting some of these amendments would undermine what the Government say they are trying to achieve with the provision. Perhaps I may leave the matter in this way: we reserve the right on Report to challenge this provision and to say that it should not be part of the Bill, or that it should be amended in the way proposed. At this stage, however, I will not divide the Committee.

[Lord Beecham]

I am not entirely clear about the Minister’s position in relation to the process. Assuming that the highly likely test—indeed, any test under the present arrangements—is retained, it would presumably need to be the subject of the application for permission. The Minister is nodding. Will the applicant not therefore have to make a case at that stage? That is presumably the whole point of applying for permission. In circumstances where legal aid is no longer available for those who do not have the means, does that not place a heavy burden on an applicant in a way that the inevitable—that is the word he used—test would not do at that crucial stage?

[Lord Faulks]

An applicant now may fail at the permission stage if the outcome would be inevitable, given the putative departure from lawfulness on the part of the public authority. It is precisely the same calculation that an applicant has to make whether the test is inevitable or highly likely, that the result would be the same. Both are directed at whether there is essentially a technical departure with no real substance. As I said, the only difference is whether the matter is a very low or a slightly higher bar. The position is that all claimants in any form of litigation will have to consider the real merits of their case and decide whether it is worth pursuing.

[The Deputy Chairman of Committees (Baroness Fookes)]

Would the mover of the amendment confirm that he is seeking leave to withdraw it?

[Lord Woolf]

Yes.

Amendment 70 withdrawn.

Amendments 70A to 73E not moved.

Clause 64 agreed.

Clause 65: Provision of information about financial resources

Amendment 73F

Moved by

[Lord Beecham]

73F: Clause 65, page 66, line 9, leave out from “specified” to end of line 10 and insert “by the Secretary of State in regulations”

[Lord Beecham]

My Lords, the amendments in this group essentially stem from the third report of the Delegated Powers and Regulatory Reform Committee, published on 11 July. They deal with the Bill’s provisions in relation to the requirements on applicants for judicial review to disclose information about their financial resources or, critically, those of third parties—that is to say, someone who, under Clause 66(3), is identified by such information as,

“providing financial support for the purposes of the proceedings or”—

and in my submission, this is deeply worrying—

“likely or able to do so”.

In its report, which dealt with a number of other parts of the Bill, the committee looked in particular at the question of information about resources contained in Clauses 65, 66 and 68. It stated:

“Clause 66(2) provides that the High Court, the Upper Tribunal or the Court of Appeal must, when determining costs … have regard to information specified in subsection (2)”.

The committee also states:

“Subsection (3) also requires the court to consider whether to order costs to be paid by a person who is not a party to the proceedings but who is identified in such information as someone who is (or who is likely, or is able) to provide financial support”.

The information about financing the proceedings will be provided in accordance with the existing legislation applying to the courts and the tribunals.

The committee goes on to say that the Senior Courts Act 1981 would be amended by Clause 65(1),

“to require an applicant to a court for leave to apply for judicial review to provide any information … as is specified in rules of court”.

That may include information of the kind mentioned in the subsection to which I referred—and, indeed, other subsections. Clause 65 goes on to specify that that also includes information about resources likely to be available to an applicant, which is understandable, and then deals with the position of body corporates and their members.

Of course, tribunal procedural rules are made under the Civil Procedure Act. They are made not by Ministers but by the rules committee. The problem with that is that they must be allowed by the Lord Chancellor and then are subject to parliamentary scrutiny by way of the negative procedure. Conventionally, it sounds as if the negative procedure would apply and we in this House are accustomed—perhaps too accustomed—to dealing with matters by way of the negative procedure.

Even assuming that that was satisfactory, it is not as simple as that, and I would argue that in a matter affecting judicial review, we should in any event be looking to the affirmative procedure and not the negative procedure. But even the negative procedure as laid down is not quite as open to the influence of the rules committee as one might think. The 1997 Act enables the Lord Chancellor to give notice to the rules committee that,

“he thinks it expedient for the rules to include provision that would achieve a purpose specified in the notice”.

Section 3A(2), the following subsection of the 1997 Act, states:

“The Committee must make such Rules as it considers necessary to achieve the specified purpose”.

In other words, the Lord Chancellor’s purpose has to be implemented by the rules committee. We are in a position where, ultimately, to use a commonplace metaphor, the shots are all the Lord Chancellor’s. He calls the shots via the rules committee. Therefore, there is no independent role for the rules committee. A negative procedure puts enormous powers in the hands of the Lord Chancellor.

I hope that later we will discuss the details of Clauses 65 to 68 and the potential difficulties that they occasion. Essentially, the point of these amendments is to look at the procedure which would be involved. The issue is one of effective parliamentary oversight over the group of tendentious changes that the Bill proposes in terms of JR. The Delegated Powers Committee declared that it found it,

“inappropriate that the nature of the information to be required under … the Senior Courts Act 1981 and … the Tribunals, Courts and Enforcement Act 2007, and under clauses 66”,

which we touched on with this amendment, “and 68(4)”, to which we will come later,

“is to be specified in rules of court subject only to the negative procedure. We consider that, in so far as such information cannot be specified in the Bill itself, it should be specified in a statutory instrument subject to the affirmative procedure”.

I hope that the Minister will give us satisfaction on that account because the proposals we will discuss are very far reaching.

18:45

The notion that an applicant would have to disclose who is supporting an application has far-reaching implications, particularly with the use of the phrase “likely to support”—presumably in a financial way. How that could be judged at the outset strikes me as extremely difficult. What does it mean for any member of the kind of organisations to which I referred earlier—that large group of left-wing voluntary organisations—that might be thought to be backing judicial review in the eyes of the Lord Chancellor, if not the Minister? How might they be affected?

I suspect that most Members of your Lordships’ House are involved with a wide range of voluntary organisations. I declare my interests in the register: I am president of Age UK in Newcastle. I belong to many other organisations and I am sure that many of your Lordships are in exactly the same position. Are our means to be taken into account in the event that there is a challenge by one of those highly reputable organisations to a governmental decision? That would appear to be the thrust of the Bill’s proposals in that respect. Or are family members implicitly thought to be supporting an application by another family member? Are their means, potentially, to be taken into account? Ultimately, an order might be made against them. These serious questions remain to be answered. We may not have too much of an answer at this stage but we will need answers when we move on to consideration of those clauses.

There is a point in some of the concerns expressed about corporate involvement. The Lord Chancellor—for once, I almost do not blame him for something—has taken exception to the way in which the Richard III case was mounted. I have to declare an historical interest because at one time I was a member of the Richard III Society and I am very interested in Richard III. Although I was born in Leicester, I very much regret the decision that he should be interred there rather than in York, but that is another matter.

However, what appeared in that case was a bit of sleight of hand. In any event, I thought that the application was ludicrous, although I sympathised with its objectives. It appeared that a shell company effectively was set up with no assets. I can see some merit in looking at that kind of situation, but that is well beyond the normal run of cases which would be caught by the clauses that we will subsequently consider, and by the procedure outlined in Clause 65.

I hope that the Minister can give us some assurances about this. It is a matter of great concern substantively and procedurally to organisations outside. Even though, as I have pointed out, a very small minority of cases of judicial review are brought by such organisations, they tend to be matters of great public significance. To use a phrase which is becoming a bit of a cliché, there is a real danger of the chilling effect. It would be more chilling if the whole process was to be effected through secondary legislation at the behest of any Lord Chancellor on the basis that the rules committee has no option but to implement the Lord Chancellor’s wishes, which would be subject to the negative procedure, which, as we all know, is pretty nominal in both Houses—especially in the other place but frankly also here.

There is ample scope for the Government to react in a constructive way to the concerns of the committee. I hope that the Minister will give us some assurances in that respect, otherwise we certainly will have to return to that matter on Report, as we may have to after we have discussed further Clauses 66 to 68. I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, I have not proposed any amendments to Clause 65, but I fully support what the noble Lord, Lord Beecham, has said in seeking to implement the recommendations of the Delegated Powers and Regulatory Reform Committee, on which I sit, which recommended that rules of court that sought to implement the proposals of Clause 65 should be made by affirmative resolution.

On the general thrust of this clause, I regard it as entirely unjust for information to be required from any possible supporter of a judicial review application before the permission stage. It is that that Clause 65 would require. It would impose, in public law cases brought by the citizen to hold the Executive to account, a deterrent requirement that applies to no other English litigation. It has never been thought right to restrict access to the courts in this way, and I would suggest that it is particularly wrong to do so in public law cases.

I regret that I see this clause as no more than a threat. It seems to me to be calculated, whether intentionally or not, to have the effect of stifling applications for judicial review. Any supporter of such an application is to be subjected, before the application is brought, to a requirement to disclose all his financial resources, their nature and extent. That requirement is bound to be a significant deterrent to anyone with any means who is minded to support an application for judicial review. That so-called chilling effect I regard as reason enough for the Government to withdraw this clause.

I take as an example the relatively commonplace scenario of a group of residents in a village or a group of parents at a school who wish to challenge a decision of the local authority concerning services in their village or the closure of their school. Inevitably, some residents and some parents will be wealthier than others. The combined effect of Clauses 65 and 66 is likely to be to prevent the wealthier residents or parents from supporting the application for fear that they will be doomed to meet the lion’s share of any costs order made against the applicants if the judicial review application is not successful. That is likely to mean, in turn, that many meritorious applications for judicial review will not even reach the permission stage, let alone secure a determination, for want of financial support.

For that reason, Clause 65 is wrong in principle and, together with Clause 66, it represents a real fetter on the judicial review process. Clause 66 needs wholesale amendment, to which I will return in the next group. It is the case that the courts already have power to require information as to who is funding applications at the stage at which a costs application is made. That is the appropriate stage for that inquiry. Clause 66 needs amendment to see that that principle is preserved. But confining myself to Clause 65, I suggest that the idea that judicial applications should be choked off before the permission stage is entirely wrong.

[Baroness Scotland of Asthal (Lab)]

My Lords—

[Baroness Anelay of St Johns (Con)]

My Lords, I think that the noble Baroness, Lady Campbell of Surbiton, might wish to speak.

[Baroness Campbell of Surbiton]

My Lords, I wish to add my voice to that of the noble Lord, Lord Beecham. Under these provisions, judicial review claimants will have to provide information about the financing of their claim before it can proceed. The court must take that into account and, if someone has given financial support, it must consider whether to make a costs order against them.

I believe that this will hit the poorest claimants the hardest. If they cannot get legal aid, they will need third-party support to bring a claim, whether that be a family, a friend, charities or lawyers who work pro bono. But if their supporters know that they could be liable for costs, these sources will dry up. In fact, the proposals will potentially have a devastating effect on the most vulnerable members of our society, who after all, are the poorest—those who stand to lose the most if access to judicial review is severely curtailed.

I would like to bring to your Lordships’ attention two ground-breaking cases that I believe would never have taken place should this measure come into force. One is the Supreme Court’s ruling that three vulnerable individuals had been unlawfully deprived of their liberty under the Mental Capacity Act. They were poor and had little support, but there was just enough from charities, friends and families to take their case to court, and the Supreme Court ruled accordingly.

The other case was the decision that a blanket ban on manual lifting and handling deprived two severely disabled sisters of family life. This was deemed to be unlawful because of this case. I remember that case very well. I was working as chair of the Social Care Institute for Excellence. I was particularly concerned about the local authority blanket ban on lifting and handling, which potentially meant that many disabled people would have to go into residential care because carers were no longer physically able to lift and manually handle them when they were unable to use a hoist. This case not only gave the sisters the liberty to stay at home with their families but also affected thousands of other disabled people, who could potentially have been deprived of their liberty.

I know that these two cases would not have taken place without the support of charities, families and friends. If people feel that they are liable to costs in any way, even if there is a slight threat, they will not proceed, and these cases would not be heard and many of us would be deprived of the liberties that are so vital to our access to justice.

[Baroness Anelay of St Johns]

My Lords, it is unusual for the Chief Whip to intervene at this moment, just before the Minister responds to this debate. I do so with prior agreement in the usual channels that this might be a convenient point for me to move formally, in a moment, that the House resume and that we take the Question for Short Debate in the name of the noble Baroness, Lady Whitaker. The procedure will then be that, as we return at the end of the QSD, I will make a short business statement in which I will explain why the Minister will then respond to this debate and we will then be able to proceed to the advertised business of the debate in the name of the noble Baroness, Lady Boothroyd.

I beg to move that the debate on Amendment 73F be adjourned.

Motion agreed.

House resumed. Committee to begin again not before 7.58 pm.

Architecture and the Built Environment

Monday 28th July 2014 Lords Chamber

Question for Short Debate

18:59

Asked by

[Baroness Whitaker]

To ask Her Majesty’s Government what is their response to the Farrell Review of architecture and the built environment.

[Baroness Whitaker (Lab)]

My Lords, I declare an interest as honorary fellow of the Royal Institute of British Architects and vice-chair of the All-Party Parliamentary Group on Design and Innovation. The United Kingdom is very lucky to have Sir Terry Farrell’s magisterial Review of Architecture and the Built Environment at the very moment when we have a crisis that requires a very large number of houses to be built fast; when we have pressure to question the tall towers of London; when our undoubted national talent in architecture is rarely matched by equal calibre in planning; and when our citizens, at local level, have the new responsibility of developing their own neighbourhood plans.

The intellectual cogency of Sir Terry’s review has impeccable authority not only because of his own distinction, but because of the breadth of its consultation among experts, representative organisations and lay people—and it has some very nice diagrams, intelligible even to the non-expert.

What problem was it set to address? Those of us who have been depressed by the meagre and dismal quality of some recent public housing and have feared a return to the disasters of the 1960s and 1970s might have thought that reason enough, but in his preface Sir Terry also talks about the increase of urbanisation, the onward march of digital technology and the challenge of sustainability. The Minister, Mr Ed Vaizey, who is much to be commended for having commissioned it, reflects in his foreword to the review on the,

“critical importance of architecture and design in all aspects of our lives”.

The profound impact of our built environment on the way we live our lives needs to be better understood.

In effect, we would be missing an extraordinary opportunity if we did not get the systems and culture that create good and sustainable place-making right for our time now, and we would do irreparable damage to the fabric of our communities if we missed that opportunity. Our systems and culture have not got it right, although there are examples of great achievement here and there. That is what this review sets out to tackle.

There is a large number of detailed conclusions and recommendations, which I hope all those responsible for planning decisions will study, but they fall into simple broad categories. Interestingly, education comes first. The recommendations travel from ensuring that children at school understand the importance of the built environment to equipping architects and all those involved in planning decisions with the skills to engage the public in making sound decisions—and to being better able to make them themselves. This leads naturally on to ensuring quality, including restoring the profession of planning to its rightful high place, making space for design in infrastructure decisions, and the role of industry and public procurement. There follows an imaginative section on the part played by our cultural heritage, and another on economic benefit.

Through all these sections, several cross-cutting themes run: there must be better understanding of what place-based planning and design is really about; better connectedness between all the institutional stakeholders; better public engagement through education and outreach; a sustainable and low-carbon future for our built environment; and a commitment to improving the everyday built environment—to “making the ordinary better”.

In Sir Terry’s conclusion, an overall built environment policy that can rest outside government is proposed, with an independent PLACE leadership council. PLACE is the acronym for its constituent parts—planning, landscape, architecture, conservation and engineering. There should be a government-appointed chief architect to sit alongside the current chief planner and the chief construction adviser on the council. So it has a broad sweep, based on a very detailed analysis, with clear recommendations. I strongly support all these.

In the time permitted, I just want to pick out a few of the more detailed proposals. From the education section, I was particularly taken by the idea that planning committee members and highway engineers, among others, should be trained in design literacy, with the dedicated commitment of the professionals concerned. For too long we have suffered cities and housing estates made fit for the motor car and thereby also made polluted, dangerous and ugly for people to walk in and children to play in. I am also a fan of proactive planning, as recommended in the review, and have long admired its results in the Netherlands and in Sweden, where there is some of the most varied and attractive public housing in Europe. This would really only work, again as the review says, if design reviews were more widely available, much more participative and not just for new applications, but, say, to revive a high street. The plea for government leadership in explicitly valuing the long-term benefit of well designed places, as well as setting up new institutions to carry forward these values, is well made. What is the Minister’s response to this?

I had rather hoped for a bit of detail on space standards, so important in lifting the quality of public housing in the days of Parker Morris and honoured now only by the Mayor of London; and for post-occupancy reviews of new-build housing by the people who live there, but the frameworks proposed by the Farrell review could easily welcome such features.

In conclusion, to implement this review would transform those parts of the UK that most need it. It would harness our undoubted talents in building and design for the benefit of all of us, rather than the fortunate few. Many of us are proud to live in Britain because of its tolerance, humanity, the beauty of the landscape and our civic energy and conscience. Would it not be good if we were as proud of our built environment and the national well-being that that would create, so clear in some of our places, so lacking in others? What does the Minister say to the recommendations of the Farrell report?

19:07

[Lord Cormack (Con)]

My Lords, we are all very much in debt to Sir Terry, but we are also in debt to the noble Baroness, Lady Whitaker, for drawing this important report to our attention and securing this all too brief debate.

When I wake up in the morning at home in Lincoln, I look to the front, to one of the most glorious buildings in Europe. But if I go to the top bedroom and look down the hill, I see some of the worst excrescences of the 1960s and 1970s. Round the Brayford Pool, where the university has developed wonderfully, some of the buildings are, frankly, deeply disappointing. They are on the site of wonderful Victorian warehouses that would have made the most marvellous student accommodation.

I will talk very briefly about the heritage aspect of this important report. I remember over 40 years ago when I first became involved in the heritage movement those marvellous words of Sir John Betjeman, who galvanised people:

“Goodbye to old Bath! We who loved you are sorry.

They’re carting you off by developer’s lorry”.

Of course, it was his stinging verse that helped to reverse that trend. We need to be conscious of the enormous value of our historic built environment. We do not want a repetition of the tearing down of the terraces of Liverpool, the rape of Worcester and Gloucester and the despoliation of the lower town in Lincoln 40 or 50 years ago.

What I hope we can take from this report, among other things, is the message that it is often still better to adopt and adapt than to tear down. There is a great deal to be said for trying to get life back into our cities. Where there is life, there is less crime. So much could be done to adapt and build over the shop, as it were. So much could be done to bring well designed new buildings side by side with adapted older buildings to give pulsating life to our towns and cities.

It is to this that Sir Terry’s report points us. He has sections on the economic benefit of heritage. He has sections on the importance of our historic built environment. If in the few minutes that each of us has at our disposal tonight we could help to underline some of the messages of this seminal report, the noble Baroness will indeed have performed a signal service.

19:11

[Lord Sawyer (Lab)]

My Lords, I also thank my noble friend Lady Whitaker for securing this important debate, and Mr Ed Davey, and Sir Terry Farrell and his team for an excellent and ground-breaking report. If it was implemented, it could provide a real cultural change in the way in which we live, and approach our communities, towns and houses.

There are many big ideas in the report. One of the biggest is the embedding of design and place-making in our children’s education. If that was taken up and implemented, it would have an enormous impact on future generations. The concept of place institutions and urban rooms is another big idea. A national conversation between architects, planners, local councils and housing professionals, along with the communities, on a regular, systematic basis is an excellent idea, which will have enormous benefits if implemented.

There are many good ideas in the report, but I want to spend my time on the issue of implementation. That is very important. Without it, the report may as well not have been written, like many similar reports in the past. I understand that the Government will be expected to play their part. It will be interesting tonight to hear what the Minister has to say in that respect. I see in the conclusion the comments about Sir Terry keeping track on what is happening and having regular meetings with Ministers. Sadly, I think that that part of the conclusion is a big hole in the report. It is nowhere near enough.

In its conclusion the report needs a huge commitment from the profession, the big-name architects and others. They need to say that they will make this work. That is what we should be looking for. They need to say that they will fund a not-for-profit organisation—let us call it the “Centre of Place”. This will have the stamp and resources to fund and fulfil the mission of this report. It should be a 10-year-plan.

I expect the Government to take a role but I do not expect them to carry the full responsibility. I look to the profession. This report will not happen unless it lives its own prescription—in other words, from the bottom up. We have heard in these debates over the years names from the past, such as Howard Parker and Unwin Hollanby, who gave without asking for return, who changed the face of architecture and the built environment in our nation and I vote that Sir Terry Farrell’s name eventually goes on this list.

19:10

[Lord Tyler (LD)]

My Lords, I warmly endorse the case made by the noble Baroness, Lady Whitaker, and share her enthusiasm for this review. I am so supportive of the general thrust of the analysis and recommendations that I fear that I may be thought unduly critical in expressing a very sincere warning about one conclusion and the associated recommendations.

Conclusion 1B3 says that decision-makers should receive training in design literacy. What follows is full of good intentions but we all know what happens to good intentions. From my experience in the 1960s and 1970s, as the vice-chair of a planning committee, and when I was working for and with architects, and especially as a senior member of the RIBA staff, I am filled with alarm by this recommendation.

A little knowledge is a dangerous thing. Who is to undertake this training? It is an oddity that councillors, faced with the subjective advice of a fire safety officer or a highway engineer, will invariably bow to the superior judgment. Given careful guidance by an architect, drawing on long training, expertise and experience of three-dimensional design, that same committee will treat it as if it is the subjective result of personal taste.

We are all amateur architects. At an individual level we would never trust our teeth to a farrier or our appendix to a barber; but individual buildings and their impact on the built environment are daily left to the tender mercies of the unqualified. I simply do not understand how this recommendation can be made to work to the benefit of the environment and the wider community. Given that about 50% of the top-tier local authorities in the country do not even employ a chief officer architect today, what quality of training can we expect and what notice will the trainees take of it anyway?

In those circumstances we must look carefully at the pattern of employment of qualified architects. Since the 1980s the proportion of architects in the public sector has dropped from 63% to 11%. I am glad to say that unitary authorities have managed to reintegrate some of the skills that are necessary, but all too often, where there are two tiers, the planning profession is split and there are no architect-planners left. I return to my original warning and question. What training in design literacy will take place? That is surely no substitute for appropriately qualified architectural advice.

I am very strongly in support of this review, not least because it makes congratulatory reference to the “long life, loose fit, low energy” project that I headed at the RIBA all those years ago. I am bound to be in support. Yet I wonder whether it has touched on a really important issue and shied away from an appropriate response. While I am wholly supportive of the localism agenda, I must question whether local authorities which have no such architectural expertise at a senior officer level in house and not even a department on permanent call should continue to be allowed to exercise the full range of plan-making and development-control responsibilities.

19:16

[The Earl of Lytton (CB)]

My Lords, I am most grateful to the noble Baroness, Lady Whitaker, for giving us this opportunity, and of course to Sir Terry and his team for an excellent piece of work.

My interests as a chartered surveyor and my links with the parish and town council movement, and therefore with localism, are well known. I like the suggestion of working better with what we have rather than always trying to invent something new. That applies to the way in which central government, departments and local authorities run their affairs and in which the professions respond, as well as to the philosophy of building reuse as opposed to endless redevelopment, referred to by the noble Lord, Lord Cormack.

A sense of place is as old as human settled habitation. Yet the report rightly points out how poorly we educate ourselves on the practical implications of this. It is not just about professions and procurers being ignorant of the principles of design, but also—to blow my own trumpet a bit—about being insufficiently apprised of concepts of valuation, in whole life economic and energy-accounting terms. Who can blame municipal planning officers or their councillors for not reflecting these when the process of training that I went through and regarded as holistic has now become modular and fragmented, with endless post-qualification accreditation now required? We risk incoherence and linguistic silos worthy of the Tower of Babel.

Modern buildings and layouts often have too little of that slack in design that made old mill buildings capable of being re-engineered into quality homes and wharfsides into modern business centres. I would like to comment particularly on the question posed in the review as to why good design is not better reflected in property valuation. I am a property valuer. The same question has often been asked about energy-efficient environments and was asked of the All-Party Parliamentary Group on Excellence in the Built Environment also. As a valuer I understand where location, design and market sentiment coincide. Values reflect these elements but not immediately or in prospect.

Property valuation, especially for secured lending purposes, is heavily regulated. It necessarily follows market evidence and extrapolates from that to arrive at opinions. As such, its basis is inherently dated. It is both extremely unwise and professionally improper to speculate forwards in valuation. There are heavy liabilities for getting it wrong, due partly to the stance of lenders and partly to the legal arts of allocating risks and responsibilities. So projects without evidence of future market effect frequently get a raw deal.

Tenants may not be as choosy as one might hope, and landlord investors may be more interested in returns and bank covenants than in build design, quality and cost of occupation, sad though that may be. It is in only the private owner-occupied sector that you find the maximum synergy, and even then not always. However, tenants and investors make markets, and if they do not value excellence in design and efficiency, it is difficult for valuers, who strive to interpret their actions, to do so—even if their estate agency colleagues can afford to be rather more bullish.

19:20

[Baroness Andrews (Lab)]

My Lords, it is a very important report, and I am very grateful to my noble friend for securing the debate and for introducing it so comprehensively.

The unifying and really big idea in the report, which has not been provided with such clarity or meaning before, is about what constitutes the elements of good places and good place-making. What makes the argument in the report compelling is not least that it presents a view of planning which is potentially creative, humane, connective and dynamic—somewhat the opposite to the constrained and rather mean-spirited version that we have had in recent years, which is focused on development control, is seen to be burdensome and has been unfairly blamed for failure, notably to deal with housing supply. I suggest that those failures have their roots in the economic and social challenges which show up the clear failure of policy on place-making and regeneration as a whole.

I am inclined not just to welcome the report but to say, “Amen: at last a different vision. A prospect for the sort of change that so many people who care about this country and what it feels and looks like have wanted for a long time”. In particular, the report makes clear a positive and integrated version of place-making, in which you indeed need planning, landscape, architecture, conservation and engineering working together across disciplines. We have never needed such a powerful vision more urgently than we do now. As a country, we need to plan on a scale which has simply eluded us so far. We need to build new power stations, green energy sites, gas storage facilities, reservoirs, airports, railways and towns. That all requires of us an approach to spatial planning, integrated labour markets, environmental sensitivity and climate change. We need to plan for food, energy and climate security. At the same time, as the noble Lord, Lord Cormack, made so clear, we need to conserve and work with the character of what makes this country so beautiful and different: the spectacular heritage of the everyday and everywhere.

To do all that means accepting the second definition in the Farrell report: that place is character. It involves politics, life, advocacy, community and the environment—elements which bring together not just the professionals but the whole community. Fundamental to that is expanding and sharing knowledge and the need to learn the constituent elements of place-making from the primary school to, yes, the planning committee. I do not agree with the argument that the noble Lord, Lord Tyler, made. I think that there is a lot we can do to assist planning committees of elected officials to understand some of the basic criteria that go into making good decisions.

We also need to inspire a new and energetic generation of place-makers drawn widely from different disciplines who can be taught in different ways by different people—not least, to develop a national habit of design. I have reservations about detail and implementation. For example, although I applaud the observation that conservation and development are not either/or, I do not think that the answer lies in bringing English Heritage and the CABE-Design Council into a single organisation. They deal with different criteria, which are often contestable, of development.

I am concerned about a few missing realities, particularly the serious impact of the loss of specialist planners and architects and the continuing uncertainties in the planning system. I hope that we will have the opportunity to debate the report at greater length. I hope that the Minister will say tonight that it is irresistible and implementable.

19:23

[Lord Howarth of Newport (Lab)]

My Lords, in my three minutes, I shall touch on just two themes from this excellent and complex report. The first is well-being. It is some years since David Cameron said in a speech that,

“it’s time we focused not just on GDP but on GWB—general wellbeing”.

He understood that economic growth is not an end; it is a means to lives of well-being. That, of course, was understood by the pioneers of planning in this country—for example, those who were responsible for the garden cities movement which, after some hesitation, I think that the Government are again embracing.

Sir Terry Farrell and his distinguished panel want planning inspired by vision, not snagged in process; that is proactive rather than reactive; that is collaborative rather than adversarial. The National Planning Policy Framework touches on a crucial point when it speaks of,

“health, social and cultural wellbeing”,

but it fails to assert that the promotion of well-being should be the overarching objective of the planning system. I am proud to say, however, that the Norwich and Norfolk plan—that is where I live—declares that:

“All development will be expected to maintain or enhance the quality of life and the well being of communities”.

In that spirit, Farrell seeks to broaden design review into a more holistic place-shaping strategy. We need planners to work with health and well-being boards and other service providers. We need planners fully engaging with communities, and confidently and naturally integrating the heritage with the new. If we have planning with that kind of vision, instead of the crises of housing, floods and energy supply and the negativism and resentment about the planning system that we have at the moment, we would have a planning system of vision and ambition that worked towards creating cohesive and confident communities.

The second theme is education. Farrell wants decision-makers—for example, members of planning committees—to be trained in design literacy. I, too, say to the noble Lord, Lord Tyler, that that is a reasonable challenge. At the minimum, we want planners who know how to read a plan. Just as it is accepted that elected members need to be trained in certain legal and financial skills, so, surely, they ought to be in planning skills. I believe that could be done.

Farrell calls for a multidisciplinary common foundation year for the formation of all built environment professionals: planners, architects, landscapers, conservationists, developers, surveyors, engineers and builders. He wants more routes to qualification. That is surely an idea whose time has come. Ministers should endorse it and professional and academic leaders should get on with it. He wants the public to be better educated—of course, they will need to be if they are to rise to the challenge and opportunity of forming neighbourhood plans. He wants more architectural centres, urban rooms, events such as heritage open days, open house and architecture festivals. In schools, he wants teachers to be supported with some training and useful materials, so that we can gradually build an informed public with higher expectations.

We need to develop a culture that demands quality, so that, in the end, there will not be a market for rubbish, for the second-rate buildings that the big retailers and the volume housebuilders inflict on us. We also need to emancipate local government to make room again for civic pride and ambition and to allow councillors to have the power to take decisions in the interests of the well-being of their communities and not be overruled by an inspectorate.

We need leadership at every level and, indispensably, across government. So I await with excitement the response of the noble Lord, Lord Bates.

19:27

[The Earl of Clancarty (CB)]

My Lords, I thank the noble Baroness, Lady Whitaker, for the opportunity to participate in this debate. The report in question, as one led by an architecture practice, emphasises the immediate built environment, which to me feels refreshing. The report rightly stresses the significance of school education, a central aspect of which should be an awareness of the importance of, to cite the review,

“‘your home, your street, your neighbourhood, your town’ where the smallest part, your home and your street, collectively make an enormous contribution to the future of our planet”.

There are many contexts for the study of architecture. The distinction between public and private space is one crucial context not addressed in the report. The first place where the child experiences architecture in a meaningful way must be their home; a good topic, surely, for a child’s first learning about architecture

The reality is that architectural and planning decisions are being made every day around us. My young daughter was aghast when she went to our local playground only to find that many things, including her favourite climbing frame, had disappeared and been replaced by other equipment. She got used to the changes, but she did feel left out of the decision-making process—as, in the wider sense, do many adults about the planning process, and increasingly so, despite the coalition’s long-standing localism agenda. The right as a citizen to have a say in one’s architectural environment should be taught in schools. That should include at least one visit to the local council.

Architecture is clearly not only about history or about famous buildings, important though they are, although the national curriculum would have us learn first at key stage 2 who the so-called great architects are. If this report is to be taken seriously, then we should be looking carefully at the tone and content of the national curriculum.

The report stresses the importance of teaching. It states:

“Architecture, the built environment and an understanding of ‘place’ ... through many different subjects including art and design, geography, history and STEM subjects … rather than as a subject in its own right”.

That multifaceted approach fits with what architecture schools want.

A problem, however, with this approach is that art and design are under increasing threat, particularly in state schools, and less so in independent schools—as is teacher training in these subjects. This is well demonstrated in a new survey by the National Society for Education in Art and Design, which also makes clear that these are things which the Government have in their power to rectify. If these trends continue, success will be made more difficult for some of the good ideas that this report contains, such as the local “urban rooms” that could be used for school outreach work.

I was taken with the idea that councillors should have training in design literacy. At a time when the public have less and less faith that the right planning decisions are being made, this can only be a good thing, although it would mean public money being spent on this, as well as in other areas—despite the plea for volunteering—if this report’s recommendations are to be followed through.

19:31

[Lord Hunt of Chesterton (Lab)]

My Lords, we welcome this report and the opportunity to review the built environment. It is more than the buildings, of course; it includes the air in the buildings, the air outside, the water and the landscape. I have always been interested in this. I was a city councillor, dealing not only with pollution and traffic but enabling people to choose the colour of their front door, which was very revolutionary in the early 1970s. It is 15 or 16 years since we had the report from the noble Lord, Lord Rogers. It was a very important report and helped to move London forward in its designs—for example, with the Olympic area in the east part of London.

There is unanimity of feeling about this report, and I would like to introduce a constitutional procedure and ask noble Lords to put up their hands if they want a Select Committee. I would want to put up mine, but I am sure I will not be allowed to do that by the chair. We have never had a Select Committee on this subject. Select Committees are extraordinarily powerful bodies—I have sat on a few myself. It would be the only way to have a genuine cross-cutting move.

There are a number of specific points in the report that are important, one of which is to have a chief architect. Currently, the government chief scientist is doing a tremendous study on cities and buildings. It would be tremendous if there were a chief architect for him to relate to. I have just been lecturing to 1,000 architects, engineers and scientists who are studying the indoor environment and its relation to the surroundings of buildings. There is progress in low-carbon buildings, with low-energy water cooling rather than noisy air conditioning. The important point was that there are many dangers in modern buildings in terms of viruses and microbes. There is the extraordinary statistic that 80% of office workers are dissatisfied with their buildings, according to statistics produced in the United States. One reason they are so dissatisfied is that engineers produce perfectly controlled environments and people want to control their own environments and have a good deal of randomness. I believe in randomness; I studied turbulence.

The other important point in this report is the notion of landscaping. Others have not focused on this so much. The greening of industrial areas, particularly in London but also in other parts of the UK, has made them more beautiful and generated new life. In particular they have improved the health of communities with low incomes and multiple deprivation. Research shows that if you have patches of greenery through a large area there is a lower mortality rate, particularly associated with heatwaves.

The document also referred to public involvement. In a splendid book, which can be found in the Library, on London’s environment—it is the only city in the world that has a book on its environment—there was a review of what Labour did in London through computers and public engagements. There is a notion in the report of an urban room—a strange term, but it involves people in participation. We discussed in a recent Energy Bill that there should be information centres about climate change, energy, ventilation, and so on. I believe that we can bring the energy and architecture people together. We need to have that kind of urban consultation. That is an important part of the point that other noble Lords have been making.

19:35

[The Lord Bishop of Chester]

My Lords, reference to the Tower of Babel earlier stimulated me to speak in the gap, and I believe that there is time to do so. Skyscrapers are quite ambiguous—they work in some places but not in others. Why does the Shard work but the Cheesegrater look completely out of place? Maybe that is just my own subjective judgment. Why do some cities that have no need of skyscrapers feel they want them? Some cities in Australia that have all the space they could possibly want still have an instinct to build skyscrapers. It indicates how important the environment is for us. We see no skyscrapers in Paris or Rome. The urban planners there do not allow them.

Buildings have a huge impact on us. We are very conscious in the church that we are responsible for nearly half the great listed buildings in the country. As the noble Lord, Lord Cormack, said, they have an impact on the spirit. Over the years I have had a lot to do with architects in connection with these buildings. I have always thought that the architectural profession in our country is to some extent the poor relation to other professions. A huge amount of work goes into training an architect, but they are not valued, as was mentioned earlier. There is a role for more proactive planning and involvement of architects but I would think it a danger if we thought that all the creativity will be decided in advance. We need a combination of planning and allowing initiative.

I sometimes think that in this country our whole planning regime is too constricted. We need only look at the modern housing that has been built in the last 20 years. I fear that we have the slums of the future. Houses are squashed together because of rules on density that were introduced. They are often on three floors so it is very difficult to put in stair lifts, and so forth. They have very small gardens. Is this really the environment in which people will want to live in the future? Buildings affect the spirit and a planning that involves architects who have a real sensitivity for space and place is important. Alongside that, we should ask people what environment they want to live in rather than decreeing it through some over-rigid planning regimes.

I read the summary of the report this afternoon. It is very important and I hope that the dignity of the architectural profession will be enhanced in the years to come.

19:38

[Lord Stevenson of Balmacara (Lab)]

My Lords, I congratulate my noble friend Lady Whitaker on securing this important debate. I want to put on record our thanks to her for her tireless commitment to design in the United Kingdom. I thank all speakers who helped to flesh out the report we are discussing today, and to reflect on some of the points made.

I am not sure what the Minister of State at the DCMS thought he was going to get when he commissioned Sir Terry Farrell for his review. As has been mentioned, it was done very quickly—in just under a year. It had a fantastic advisory group. The names of people who joined it are extensive and important. It had a very public and important engagement process with stakeholders, and with 60 recommendations it has brought together a huge number of issues that we need to seriously consider if we are to make progress in the areas that it touches. The results are very comprehensive and they will need some working through and thought before they are implemented, as I hope they will be. There is no doubt at all that this is an important report.

Another aspect that noble Lords have mentioned, and which is important to record, is that people have read the report and liked what they have read—so much so that there is quite a lot of enthusiasm across the trade press about it, and a lot of anticipation about where it might be taken. As the Minister said, he doubts whether a more thorough and wide-ranging exercise to seek out views and ideas has taken place in the sector for several generations. Having said that, it is a bit of pity that more has not been made of the preceding work done between the last Government, and in particular, as mentioned by my noble friend Lord Hunt of Chesterton, the excellent report Towards an Urban Renaissance, written by the urban taskforce, chaired by the noble Lord, Lord Rogers, which was published in 1999 but still bears reading today.

The report has five cross-cutting themes, which people have mentioned. They are important in the sense that they form a new appreciation of the training information required among the population as a whole, in the profession of architecture and planning and among those who have responsibilities for developing buildings, places and spaces. These recommendations, which take up a large proportion of what is there, are important. However, as others have mentioned, too, so is a commitment to making the ordinary better and improving the everyday built environment—an important theme, which we must not lose sight of—plus the requirement, as we must all have these days, to have a sustainable and low-carbon future.

Having said that those are the five main strands of it, it is important that the 60 recommendations, which are more detailed and specific in the traditional sense, are also looked at. Several noble Lords picked out some of them and I do not want to go through them in any detail but, importantly, the strong accent on heritage and the way in which it can truly be a part of the sustainability of modern development was picked up by the noble Lord, Lord Cormack. My noble friend Lord Sawyer talked about the need to think creatively about the place discussions—a sense of trying to bring people together in new configurations so that we can look at places and spaces. That was picked up by my noble friend Lady Andrews and it is also very important. The noble Lord, Lord Tyler, brought up an interesting point about the way in which experience of architecture and its skills have leached out of our public departments. If what he says about the numbers is true, that is really quite shocking. Design literacy will be important but it will not substitute for the professional skills and training that go into architecture, even though the report says that that training might need to be done in a different way.

I was also struck by what my noble friend Lord Sawyer said about implementation; others also touched on this point. At the time the review was launched, the Minister said:

“Good design builds communities, creates quality of life, and makes places better for people to live, work and play in. I want to make sure we’re doing all we can to recognise the importance of architecture and reap the benefits of good design”.

You cannot throw out phrases such as:

“I want to make sure we’re doing all we can”,

without having a suggestion that you might have to follow through on that. It is the fate of many politicians to will the end but not the means. I hope that is not going to be the problem with this report. When he comes to reply, can the Minister confirm whether those aspirations still remain the Government’s intentions here? I say this because in the note accompanying the report, Mr Vaizey says:

“I hope this report is the beginning of a dialogue within the industry about how we can build on our successes and recognise the critical importance of architecture and design in all aspects of our lives”.

That sounds like damning with faint praise. Simply consigning a report to further industry debate is not going to deliver the promised future. This report deserves better than that and I hope that the Minister can reassure us.

19:43

[Lord Bates (Con)]

My Lords, I, too, congratulate the noble Baroness, Lady Whitaker, on securing this debate and for the inspiring way in which she introduced it to your Lordships’ House this evening. Her words about the importance of understanding better the impact of the built environment on our lives are something which we can all understand, particularly as we are having a debate in such a fine example of an architectural built environment, with heritage as well. I listened with care and interest to the commentary of your Lordships on the debate in response to the Farrell review. To respond initially to the points made in conclusion by the noble Lord, Lord Stevenson, in a sense every debate has to start somewhere. I think everybody is agreed that what Farrell has produced in this review is an excellent platform on which we can then start a continuing dialogue, which must also lead to implementation, as the noble Lord, Lord Sawyer, said.

Britain has some of the best architects in the world but that does not automatically mean that the standards of design in England are as good as they could be. That is why my honourable friend Ed Vaizey invited the renowned architect Sir Terry Farrell to undertake an independent, industry-led and funded review of the way that our built environment is designed and planned. Buildings are important: we spend about 20 hours a day inside them—on certain days, some of us spend even longer. Research shows that the quality of the built environment affects our well-being—a point made by the noble Lord, Lord Howarth. Good design helps build communities, create quality of life and make a place better for the people who live and work there.

I pay tribute to the work of the noble Baroness, Lady Andrews, during her time as chair of English Heritage and when she was a Minister at the DCLG. She spoke about the importance of our heritage. The future remit of English Heritage is being considered in the lead-up to the establishment of Historic England, its replacement body. Heritage was also touched upon by my noble friend Lord Cormack and, in an ecclesiastical setting, by the right reverend Prelate the Bishop of Chester; it is an essential part and a theme which runs through the National Planning Policy Framework document.

My honourable friend Ed Vaizey’s department, the Department for Culture, Media and Sport, is responsible or jointly responsible for policy on the creative industries, which include architecture, and much has been made of the value of that historic environment, including our built heritage, to national and international tourism. All those areas are critically interconnected. The beauty of our landscape clearly affects our tourism.

His officials also work closely with many other government departments whose policy responsibilities influence, or are influenced by, these themes, including the Department for Communities and Local Government, which is responsible for the National Planning Policy Framework, the Department of Energy and Climate Change, the Department for Environment, Food and Rural Affairs and the Department for Transport. Each department is responsible for national policy statements for significant infrastructure. The Department for Business, Innovation and Skills is jointly responsible for a construction strategy towards the industry in the UK and beyond. The Department for Education is also responsible for the Engaging Places initiative run by Open-City.

[Lord Framlingham (Con)]

I want to say a very brief word on behalf of trees. Trees are, of course, not built but planted. However, they are still a very important part of the built environment, providing as they do beauty, shelter and shade. As well as all that, they manage to take in our carbon dioxide and give us back their oxygen, which is an incredible thing to do in terms of our battle against atmospheric pollution. Although this debate is about the built environment, which is very often softened and made bearable by our trees, I hope that in such a debate the role of trees in that environment will be given the highest possible priority. I hope that the Minister agrees with that.

[Lord Bates]

I certainly agree; and more importantly, I think that Sir Terry Farrell would agree too. I recognise the great interest that my noble friend Lord Framlingham, as a horticulturalist, and thanks to his time in forestry, takes in trees. They are a critical part of the environment, and we have talked about how the best design achieves a harmony between our built and natural environments.

Government has another interest in design as the public sector is a significant commissioner of new and refurbished buildings, and government is one of the largest single clients of the construction industry. Indeed, construction output contributes 7% of GDP, and even more if the whole life contribution through planning, design, construction, maintenance, decommissioning and reuse is taken into account. The sector is worth about £110 billion per annum and the public sector accounts for about 41% of that total. Thus the emphasis that government places on design is crucial and sends out a powerful signal to clients. My noble friend Lord Tyler talked about the ability of buildings to depress—as did my noble friend Lord Cormack in reference to one part of Lincoln—as well as to inspire. I know that the noble Lord, Lord Sawyer, will take great pride, as I do, in the great contribution of the Sage music theatre on Tyneside. It has lifted the spirits of an entire region.

The scope of Sir Terry Farrell’s task was huge so he decided early on to harness the knowledge and expertise of others. He gathered an advisory panel of leading figures from the architecture and design industry and took four broad themes. The first was education, the importance of which was referred to by the noble Earl, Lord Clancarty, who dealt with the importance of education and its wider application in architecture not only in terms of design and technology but in mathematics, history and across the piece. The second was design quality. My noble friend Lord Tyler referred to the dangers of the “armchair architect”. Those of us who are addicted to the series “Grand Designs” will enjoy that description of ourselves. The third and fourth are cultural heritage and the economic benefits. In preparing his final report Sir Terry chose to consider a fifth theme, namely the built heritage policy, another matter which has been referred to.

The response to Sir Terry’s call for evidence was extremely positive, producing a range of ideas from differing viewpoints throughout the UK. More than 200 responses were received, including responses from organisations representing more than 370,000 people. Workshops were attended by 192 leading figures from professions including education, planning, sustainability, architecture, landscape, urban design and policy-making. It has always been my honourable friend Ed Vaizey’s intention that this review should be the start of an ongoing dialogue within the architecture and planning industry about how it can build on its success. Sir Terry, his panel and others in the sector remain committed to this principle. The noble Lord, Lord Sawyer, said that it cannot be imposed from the top down by government but needs to be something that is embraced from the bottom up and raises standards across the board.

Sir Terry Farrell has proposed the preparation of a draft manifesto for a PLACE Alliance, perhaps basing it on the model of the Creative Industries Council, and of discussion papers on taking forward recommendations on: proactive planning; digital engagement; urban rooms, which the noble Lord, Lord Hunt, referred to; education; future cities; heritage, and an international forum on architecture. I know that my honourable friend is committed to helping Sir Terry make the connections he needs within government to take specific things forward. For instance, he intends to discuss with the new Minister of State for Housing and Planning—which brings together the two positions in the new role now occupied by my colleague Brandon Lewis in the other place—the Farrell review recommendations on the appointment of a chief architect, a PLACE leadership council and design review panels for infrastructure projects. He will also liaise with UKTI on the Farrell review recommendation on the creation of a global built environment forum. It is a critical reminder of the economic value of architecture. As the noble Earl, Lord Lytton, said, we in this country have sometimes not been able fully to appreciate the value of good design. However, that is certainly not the case overseas. British architects are in demand around the world because of the high quality they bring.

As we have seen, the Farrell review has provided a catalyst for a serious discussion around architecture’s contribution and place within our society. Sir Terry has made some important recommendations and I echo Ed Vaizey’s call to the architecture and planning sector to embrace them. It is an excellent opportunity for the industry to continue its engagement and to shape the future of architecture in this country. It is well placed to do so. The Government also have a role and discussions are taking place on this, led by the Minister for Culture, with colleagues in other departments. There is an understanding, however, that it should continue to be led by the industry and the sector itself. I am sure that the suggestion of a Select Committee, perhaps an ad hoc Select Committee, has not been ignored by the Chairman of Committees. I encourage the noble Baroness to submit an application for wider consideration of that suggestion as part of this review. It should also look at how to champion and promote the best of our design at home and abroad. I look forward to seeing how this progresses and shapes our future.

Arrangement of Business

Monday 28th July 2014 Lords Chamber

Announcement

19:54

[Baroness Anelay of St Johns (Con)]

My Lords, I am grateful to all noble Lords for being so timely in the way they concluded the Question for Short Debate and for the co-operation of the Opposition Front Bench, which will make it possible for the House to avoid adjourning during pleasure. We may now move seamlessly from the Question for Short Debate into the rest of the business for today. Before we resume our consideration of a short part of the Criminal Justice and Courts Bill, I thought that, with the leave of the House, it might be helpful if I make a brief statement regarding how we expect matters to proceed for the remainder of today.

As the Question for Short Debate in the name of the noble Baroness, Lady Whitaker, was scheduled as dinner break business, our procedures require us to return to the Criminal Justice and Courts Bill; that is to say, to go back into Committee after that break. I have discussed this with the noble Baroness, Lady Boothroyd, and explained the consequences, and she is content. There is, however, agreement in the usual channels that proceedings on the Bill should now be extremely brief, as the House will no doubt wish to come to the Motion in the name of the noble Baroness, Lady Boothroyd, as quickly as possible. That is why, just before the Question for Short Debate, most unusually, we adjourned consideration in Committee at almost the end of consideration of Amendment 73F. All that remains now, if no other noble Lord is to intervene—and I think it is the will of the House that they do not intervene—is for the Minister, my noble friend Lord Faulks, to respond to the noble Lord, Lord Beecham, on his lead amendment, and for the noble Lord, Lord Beecham, to address himself to the Minister’s remarks.

We would then, if that were achieved, resume the House. I have agreed with the noble Baroness, Lady Boothroyd, and with the usual channels that once the noble Baroness’s Motion is called and she has spoken to it, we might next expect to hear from one Member from each of the groups in this House, very much in the way that we normally do when tackling a debate where there may not be a speakers list—and this is one of those where there cannot be a speakers list. In order to assist an orderly transition into debate, we might expect to hear, first, from the Conservative Benches, from my noble friend Lord MacGregor; from the opposition Benches, from the noble Baroness, Lady Symons of Vernham Dean; from the Liberal Democrat Benches, from my noble friend Lord Tyler; from the Cross Benches, from the noble Lord, Lord Armstrong; and from the Bishops’ Benches if a Bishop wishes to participate. The expectation is that, after those opening speeches, we will continue to rotate around the House as we have on the previous, rare occasions when such matters have been subject to a debate without a speakers list. We have discussed this at some length and I know that the approach has the support of the noble Baroness, Lady Boothroyd, and of the usual channels, and I hope that it will be for the convenience of the House.

As I said, we adjourned consideration of the Bill at the stage when we were almost concluding Amendment 73F, so I shall shortly propose that the House do now resolve itself into a Committee on the Bill, after which we shall run through the procedural nicety, which I am sure will be very effective, of the Minister responding, and of the response from the noble Lord, Lord Beecham; and at that point we will resume the House, and the clerk will call on the noble Baroness, Lady Boothroyd, to move her Motion.

Criminal Justice and Courts Bill

Monday 28th July 2014 Lords Chamber

Committee (4th Day) (Continued)

19:58

Relevant documents: 2nd Report from the Constitution Committee, 3rd Report from the Delegated Powers Committee, 14th Report, Session 2013-14, from the Joint Committee on Human Rights

Debate on Amendment 73F resumed.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, briefly, this group contains amendments to the process for making secondary legislation concerning the provision and use of information about financial resources, the provision of information when seeking a costs capping order, and identifying which cases are “environmental” for the purposes of costs capping orders. As the noble Lord, Lord Beecham, said, these amendments are inspired by the third report of this House’s Delegated Powers and Regulatory Reform Committee, which was published earlier this month, on 11 July.

I hope that I may deal very briefly with these issues. That is not to say that they are not important, and we will deal with them by way of a detailed response when we consider later groups that raise the issues covered by the report. The Government are considering how to proceed with the recommendations in that recent report and will set out how they intend to do so in due course. As such, although I am very grateful to all noble Lords for their amendments, the Government are unable to accept them in advance of full consideration of the committee’s recommendations.

I should, however, take the Committee’s time to discuss the role of the Civil Procedure Rule Committee, which is composed of members of the judiciary, both senior and more junior, and eminent barristers, solicitors and lay representatives. The Delegated Powers and Regulatory Reform Committee’s report proceeds in part on the basis that the existing structure for the making of Civil Procedure Rules, created by the Civil Procedure Act 1997 and amended by the Constitutional Reform Act 2005 pursuant to the principles agreed with the senior judiciary and set out in the concordat on the judiciary-related functions of the Lord Chancellor, does not make the Civil Procedure Rule Committee immune from influence by the Secretary of State, given that he has the power to direct rules to be made to achieve a specified purpose.

I should like to refute any suggestion that the Lord Chancellor improperly interferes with the making of rules, or that the rule-making committees or officeholders in any way play a quiescent role in the making of procedural rules before the making of which they must consult with such persons as they think appropriate. Their experience and expertise is respected entirely and there should be no suggestion of the Government steamrolling or negating the influence of those committees or officeholders on the rules. However, as I have said, the Government are carefully considering the Delegated Powers and Regulatory Reform Committee’s report and intend to make clear their position ahead of Report. In light of that, I hope that the noble Lord will feel able to withdraw his amendment.

[Lord Beecham (Lab)]

I am grateful for the Minister’s assurances. I beg leave to withdraw the amendment.

Amendment 73F withdrawn.

House resumed.

Leader of the House of Lords

Monday 28th July 2014 Lords Chamber

Motion to Regret

20:02

Moved by

[Baroness Boothroyd]

That this House welcomes the appointment of Baroness Stowell of Beeston as Leader of the House of Lords, but regrets the decision of the Prime Minister to diminish the standing of the House by failing to make her a full member of the Cabinet; and requests that the Prime Minister reconsiders this decision.

[Baroness Boothroyd (CB)]

My Lords, we live in dangerous times. The Prime Minister’s demotion of this House in his Cabinet reshuffle challenges its rights, its authority and its long established role and status in the constitution. It breaks the mould of British history. It strikes at the very roots of our bicameral Parliament. The place of this House in the Cabinet of every Prime Minister has never been challenged until now. I never thought I would witness such careless disregard for the way our constitution works. The Prime Minister’s exclusion of the noble Baroness, Lady Stowell, from full Cabinet status has rightly shocked all parts of the House. This Motion calls on him to correct his error without further prevarication.

When the blow fell, the events were somewhat blurred, but the facts are now clear. The fog has been penetrated by our Select Committee on the Constitution, whose report was published only last Thursday. The committee’s findings and conclusions make grim reading, but it is essential reading for every Member of this House. It strips bare the Prime Minister’s pretensions that all is well, that nothing serious has happened and that it will be put right at some time or other. Its report into the status of the Leader of this House and the status of the House itself after the reshuffle sets out exactly what has happened and the likely consequences. The committee states:

“The Leader may often have to give unpalatable advice to ministerial colleagues about the chances of their legislation passing the House, or the time it will take. The Leader may have to block proposals which would clearly not pass the House or would be contrary to its interests. The Leader has to express the House's misgivings to departments about their policies. The Leader has to ensure that questions and correspondence from peers are answered promptly and fully. In such matters the Leader needs authority. While some of that authority can come from tangible things like sitting at the Cabinet table and receiving Cabinet papers, some of it is intangible, such as having full Cabinet status on the same terms as senior ministers in the Commons. Having a member of the House of Lords in the full Cabinet sends an important signal to the rest of Government (ministers and the civil service), and to the House itself, about the status of the House of Lords. If the Leader is no longer a full member of the Cabinet there may be a risk that the views of the House are not fully listened to in the Cabinet”.

What a marvellous report it is.

I have witnessed attempts by successive Governments to ignore the views of Parliament, and I resisted them in both Houses. When the committee says there may be a risk, I can assure the House that there is no maybe about it; it is a dead certainty. That is how government and Whitehall work. The Select Committee’s warnings on the constitutional impact of what has happened are vital. It reminds us that it is a core part of our constitution that Ministers are drawn from the legislature and that the legislature is bicameral. The committee says in two more lines, which I will quote:

“It sits very uneasily with those principles for one House of Parliament to be unrepresented in the full Cabinet”.

I believe the Prime Minister’s actions are absolutely diametrically opposed to those principles. They also shatter the Prime Minister’s pretence that his hands were tied by the Ministerial and Other Salaries Act 1975. Which section of that Act dictated that he promote the Minister for Overseas Development to the Cabinet and demote the Leader of the Lords? Why is the Minister for overseas aid made a Secretary of State with full Cabinet rank and pay while the salary of the Leader of this House and her status are downgraded? The Prime Minister needs reminding that the noble Baroness is responsible for all government business in this House and needs 18 Ministers and 10 Whips to report to and assist her in her duties.

I am beginning to understand why the lack of judgment and ill thought-out decisions coming from Downing Street give cause for concern. Did the Prime Minister really expect the Leader of this House to accept the offer to top up her pay by a subsidy from Conservative Party funds? It was a bizarre proposition. Bravely, the noble Baroness has shrugged off her demotion. I know, and we all know, she will serve the Government loyally, and she will serve this House to the best of her considerable ability. I wish her well. She has already made her mark by saying no to receiving money from outside interests.

The views expressed in last week’s Private Notice Question leave no doubt about the strength of feeling in this House. The noble Lord, Lord MacGregor, whom I hope to hear from later in this debate, has relayed the dismay of his colleagues on the Conservative Benches to the Prime Minister. The Prime Minister’s response, which I think all of us have seen, neither mitigates the offence he has caused nor justifies his action. The flattery in his letter of response is transparent. His excuses are spurious, and his promise to mend the damage depends on his returning to power next year.

The Prime Minister, I am afraid, pays scant attention to his responsibility towards this House. He fails to understand that we are a bicameral Parliament and, as such, that this House should be fully represented at the highest level of government. He has trampled on the constitution. He has discarded the principle of equal pay at the same time, quite frankly. His Cabinet has become the unicameral apex of power in a bicameral Parliament. It will not do. His shuffling this House out of its full status in the Cabinet must be reversed, and it must be done soon. I so move.

[Lord MacGregor of Pulham Market (Con)]

My Lords, I wholly share the concern that the noble Baroness, Lady Boothroyd, has raised about the position and status of this House. It was because of that that I went to see the Prime Minister last Monday in my role as chairman of the Association of Conservative Peers, accompanied by my noble friend Lord Cope of Berkeley. I want to make it clear that it was on behalf of the ACP.

I do not share quite the attitude that the noble Baroness takes toward the Prime Minister. There is an issue to be resolved, but I do not think it is quite so fundamental, and I want to suggest how I think it can be resolved. I want to make three points. We had a very positive and constructive meeting with the Prime Minister. As the noble Baroness has said, in the light of our discussion he undertook to write to me, and his letter has been shared, I think, widely in this House and also with the leaders of the other parties.

Some of the points are referred to in the valuable report from the Select Committee on the Constitution of this House published just last week. I congratulate the chairman of the committee, my noble friend Lord Lang of Monkton, on the speed with which his committee worked to dissect and clarify the key issues. I think it is worth quoting in full and putting on the record in Hansard four points which the Prime Minister made to us. First, he said:

“I have the highest regard for the House of Lords and for the vital role it plays in the governance of our country”.

The noble Baroness has tended to dismiss that; I do not. I think he sincerely takes that view. He said, secondly:

“I completely share your view, and the view across the House of Lords, that the House should be properly represented in the Government at the highest level”.

Thirdly:

“In particular, I agree that the Leader of the House of Lords should, as a general rule, always be a full member of the Cabinet; unfortunately it was not possible on this occasion, owing to the provisions of the Ministerial and Other Salaries Act 1975”.

[Noble Lords]

Oh!

[Lord MacGregor of Pulham Market]

Do not worry, I will return to that point. Finally—this is very important, and the noble Baroness well expressed this—

“In the meantime, I want to stress that Baroness Stowell, as Lord Hill’s successor, will in practice play exactly the same very important role that he and his predecessors did in the Government. She will sit at the same place around the Cabinet table, and will have the same full right to speak and contribute to the Cabinet’s business. I will continue to take Lords Business as the second item on the Cabinet’s agenda”.

The Prime Minister says that, as before:

“Baroness Stowell will attend the same internal Downing Street meetings which I hold, including my daily morning meeting”.

I have no doubt whatsoever about the Prime Minister’s sincerity in all of this. I would also add that our concerns on this are about principle and in no way reflect on the current Leader, my noble friend the Leader of the House. She has made a great impression on all parts of the House in her various ministerial posts so far. I am absolutely clear that she will use the powers and positions which the Prime Minister has so clearly outlined to the full extent, whenever it is necessary, on behalf of this House to do so. The concern is not about that; it has been perfectly clear, the noble Baroness made it very clear, and I share it entirely. It is not about the powers or the possibilities open to my noble friend, but about something else. Her role is in no way altered except that she is not a full member of the Cabinet. The concern—and here I agree very much with the noble Baroness—is about the status of the House.

Over my 40 years in Parliament this House has played an increasingly important role in scrutiny of legislation, Select Committee work and so on, making full use of the expertise and experience which exists here. I am deeply committed to that, and this House has played an increasingly important role. The concern is that not having any full member of the Cabinet from the Lords somehow symbolically downgrades the perceptions of our House and the status of the second Chamber. The Select Committee put that very well in the passage from its report which I was going to quote myself, but which I do not need to repeat because the noble Baroness read it out. I totally agree with all that, and the report puts it very well.

20:15

My second point is to ask: how has this come about? We are now all much clearer about what the problem is—and it is a problem. The Prime Minister referred to the Ministerial and other Salaries Act 1975, an Act that was put on the statute book long ago. Much has changed since that time. Government has grown, more Secretaries of State have been appointed, we have a coalition—which may have had some impact on the numbers—and the change in the Lord Chancellor removed one automatic seat in the Cabinet from the House of Lords. Therefore much has changed. We now have the rather peculiar issue that relates to the Prime Minister’s decision to make William Hague Leader of the Commons.

Many are perhaps not aware that the last two Leaders of the Commons have not been full members of the Cabinet; I was Leader of the House at one point myself and was certainly a full member of the Cabinet, but they have not been. Understandably, the Prime Minister wanted William Hague to remain as First Secretary of State. That meant that the Prime Minister’s obvious wish to continue to have our Leader as a full member of the Cabinet has been blighted. It seems extraordinary to me that an Act passed so long ago in quite different circumstances is allowed to have that effect. Goodness me—we make much bigger changes to earlier legislation all the time. That leads me to my final point.

The Prime Minister said in his letter to me:

“I want to reassure you, and the whole House, that I see the current situation as a purely temporary one, which I will want to rectify at the earliest opportunity”.

That is a way through. As the Select Committee on the Constitution pointed out—although it guardedly did not call it a recommendation—a simple, short amendment to the 1975 Act could solve the problem, either by specifying that one of the 21 salaries for Cabinet Ministers must be paid to a Member of the House of Lords, or more sensibly, by a marginal increase in the 21 figure. Some will argue that that would look bad in public, because it would be extra expenditure for the Government and the House of Lords to meet. Frankly, that is a ridiculous argument, and I say so as a former Chief Secretary who is passionately in favour of the Government’s many endeavours to reduce the fiscal deficit. However, quite frankly, it is laughable to argue that an increase of £24,000, which this would involve, would be an addition to public expenditure.

I would have thought that this would appeal to all parties and to both Houses. Both would benefit. It does not favour one party—the Labour Government got into some difficulties over this issue and this constraint during their time. It is the best, speedy way out of this difficulty for the Prime Minister and for both Houses, and speaking entirely personally, I so recommend. This issue could be solved, and we could return to the position that there was with the noble Lord, Lord Hill, if that short amendment were made to the 1975 Act as swiftly as possible.

[Baroness Symons of Vernham Dean (Lab)]

My Lords, I support the Motion so ably moved by the noble Baroness, Lady Boothroyd. I make clear at the outset that I very much support that part of the Motion that welcomes the noble Baroness, Lady Stowell of Beeston, to her new post and new responsibilities. Like so many noble Lords in this House, I am only sorry that she should have been appointed in such a way as to cause so much controversy and, frankly, so much dismay, about the terms on which she has been appointed.

As the noble Baroness, Lady Boothroyd, said, last week the Select Committee on the Constitution published a very clear and concise report on the status of the Leader of your Lordships’ House. As a description of the events around this issue, it sets out a series of decisions and amendments to those decisions that demonstrate the contradictions, the inconsistencies, and the major problems that the terms of this appointment have given rise to.

On 15 July the Prime Minister announced, on Twitter, that the noble Lady, Baroness Stowell, would be the new Leader of the House of Lords,

“and Chancellor of the Duchy of Lancaster”.

Indeed, she is on record in Hansard for that day as the Chancellor of the Duchy of Lancaster. However, the next day, on 16 July, the noble Baroness kissed hands on a different appointment—that of the Lord Privy Seal.

In this reshuffle, No. 10 and others around the Prime Minister were very keen to demonstrate his commitment to having women properly represented in the Government. Many of us welcomed that development. On the very day of her appointment, though, it emerged that the noble Baroness, Lady Stowell, would not be a full member of the Cabinet. Instead, she would be a Minister “attending Cabinet” and not paid a Cabinet Minister's salary. As we are all aware, the noble Lord, Lord Hill, her predecessor, was given the full status of a Cabinet Minister and the full salary that went with it. Clearly, this was an embarrassing setback to the ambition of enhancing women’s position as government Ministers.

In an attempt to mitigate this embarrassment, on the same day, 15 July, the Conservative Party announced that the difference between the salary of a Minister of State and that of a Cabinet Minister would be made up by the Conservative Party. I do not think I was alone in believing that this was not only entirely inappropriate but also unconstitutional for a Minister representing all parties in this House, including the Cross-Benchers. It was also totally inappropriate for a Minister who had accountability to the Crown rather than to the Prime Minister, either as the Chancellor of the Duchy or as Lord Privy Seal, to receive part of their salary from any political party. A week later, that suggestion was withdrawn when on 22 July the Leader said that she would not accept the Conservative Party “top-up” because of her responsibilities to all parts of this House. It was a good, sound decision on her part.

[Noble Lords]

Hear, hear.

[Baroness Symons of Vernham Dean]

The Prime Minister's letter of 22 July, which the noble Lord, Lord MacGregor has referred to, says that the Leader of the House of Lords should,

“as a general rule, always be a full member of the Cabinet”.

The word “always” cannot be qualified by the words “as a general rule”. Either the Leader of this House should always be a member of the Cabinet, as has been the case, or it is a matter for the Prime Minister's discretion. This Prime Minister has decided that the general rule did not apply but that his discretion did. I fear that in doing so he has set a precedent for future Prime Ministers.

In his letter to the noble Lord, Lord MacGregor, which the noble Lord kindly quoted to us earlier on, the Prime Minister says it was,

“not possible on this occasion”,

to make the noble Baroness Lady Stowell, a full member of the Cabinet,

“owing to the provisions of the Ministerial and Other Salaries Act 1975”.

That Act says there are 21 Cabinet salaries payable, plus the salary of the Lord Chancellor. Apart from the salary to the Lord Chancellor, the Prime Minister himself and the Chancellor of the Exchequer, the Prime Minister may appoint who he wishes to be a Cabinet member. He also has discretion over 19 salaries that could have been awarded to the noble Baroness, the Leader of the House as has been the case since the passing of that Act in 1975. So it was not the case, as the Prime Minister claimed and as quoted by the noble Lord, Lord MacGregor, that the award was,

“not possible on this occasion”;

it was because the Prime Minister chose not to make it. It was his judgment.

There are 21 Cabinet Ministers plus the Lord Chancellor—Ministers who receive a full Cabinet salary and status. There are also 11 Ministers “attending Cabinet”, not in the first rank but doing important jobs and no doubt happy to be around the Cabinet table. It is not, as the noble Lord, Lord MacGregor, said, evidence of highest regard that the noble Baroness is also round the table. Why is she not one of the 21—or 22, with the Lord Chancellor? Why is she one of the 11 second-rankers around that table?

The Companion to the House states that the Leader of the House is a member of the Cabinet. Moreover, and possibly more significantly, Erskine May also describes the Leader of this House as a member of the Cabinet. The Constitution Committee in its excellent report said that there were no examples of any Leader of this House who has not been a member of the Cabinet. Arguably, this calls into question the status of the Companion, the status of Erskine May and the conventions between the two Houses. These are not trivial matters; these have been the rules that are the foundations on which we operate. If they can be altered by a Prime Minister without consultation and without any reference whatever to Parliament, what else can be changed? That opens up huge constitutional questions for us.

Frankly, none of us knows whether this decision was deliberate or whether it was one taken through sheer carelessness. Did the Prime Minister realise that in making the appointment in this way he was diminishing the status of your Lordships’ House and creating an unacceptable precedent, or was there a ghastly moment when he realised that he had one too many Ministers for the salaries available? We cannot know—or at least we cannot know until the diaries are published.

In my view, this Prime Minister has done well in not having many ministerial reshuffles, even if that is because of the limitations of government by coalition. Fewer reshuffles are almost certainly better for good governance. Just because this Prime Minister is inexperienced in reshuffles, though, others in government, including senior civil servants, are not. Between them all, they should not have got this so wrong—and they have got it wrong: wrong for the noble Baroness, Lady Stowell; wrong, even for their own purposes, for the reshuffle and the Government; wrong for this House, as one of the two Houses of Parliament; and wrong for the constitution, and the important and complicated relationship between the Executive and Parliament.

The Prime Minister would be a bigger and better Prime Minister if even now he reconsidered his decision. He should do so. A mistake is a mistake: the Prime Minister should correct it. It would be better for him to do so, better for the noble Baroness, better for the constitution and better for your Lordships’ House.

[Lord Tyler (LD)]

My Lords, this is for me a very sad debate. We all recognise the very many talents that my noble friend will bring to the key role of Leader of our House, and we all respect the shining integrity with which she will perform her duties here. That makes it all the more disgraceful that she should have been put in this invidious position. The disreputable game of musical chairs 10 days ago does nothing to inspire confidence in the competence of the Prime Minister’s advisers. The circumstances are all too reminiscent of that infamous Friday afternoon when No. 10 thought that the Lord Chancellor could be abolished with a press release. Is there nobody there with any appreciation of the basics of our constitution, to which the noble Baroness has just referred? When will they ever learn?

The demotion is far from simply symbolic, but to my mind the worst feature of this whole charade was the reaction when the reduction in salary paid to her male predecessor was pointed out. How could anyone think that it was appropriate for the leadership of your Lordships’ House in any way to be remunerated from political party funds? Both the Leader of your Lordships’ House and the Leader of the other place occupy especially non-partisan positions as servants of the whole of their respective Houses, with an expectation that they will speak and act dispassionately on behalf of the whole House that they represent, even when their Cabinet colleagues are taking a more partisan view. Having shadowed a number of Leaders of the Commons, I can confirm that, irrespective of party, they invariably see their role as quite distinct in this respect from that of other members of the Cabinet. In exactly which of his or her duties in the leadership of this House would the Leader be expected correctly to be identified as acting on behalf of one political party? It is a nonsense.

20:30

My noble friend, as has been pointed out, has shown her sensitivity by refusing to let this absurdity happen, but the very fact that No. 10 failed to appreciate how totally inappropriate this suggestion was simply beggars belief. Could they not see that the perception would be that the Leader was somehow beholden to that party and therefore suspect, in the sense that “He who pays the piper calls the tune”? This has been recognised across the House and beyond. It would have been far more appropriate to have reduced the public-purse contribution to the salary of the Government’s Chief Whip in the other place because he has a partisan element to his role. As has been mentioned, my noble friend has indeed herself deflected this demeaning recommendation and, in so doing, has increased our confidence in her integrity, but it has also underlined the crass incompetence of those who made the original suggestion.

As a postscript, I suggest that it adds further insult to injury that the Prime Minister, presumably acting in his capacity as leader of the Conservative Party, saw fit to explain and excuse his decisions in a letter sent, in the first place, solely to the Association of Conservative Peers. Who advises him on these matters? Does he not, even now, realise that the status of our Leader—the Leader of your Lordships’ House—is of huge significance to every single Member of this House, regardless of party and group?

I do not know whether it is too late to correct this situation, but I think that your Lordships’ House is united in feeling that something must be done.

[Lord Lang of Monkton (Con)]

My Lords—

[Lord Armstrong of Ilminster (CB)]

My Lords—

[Baroness Anelay of St Johns (Con)]

My Lords, perhaps I may clarify the situation. When I invited the noble Baroness, Lady Boothroyd, to open this debate, I made it clear that we expected to hear, first, from speakers from each of the four groups. Therefore, the noble Lord, Lord Armstrong, is absolutely correct that my anticipation was that he would speak at this point, which is why he rose to his feet, as I think the rest of the House expected. After him, if a right reverend Prelate wishes to speak, we might hear from him next, and then we will return to the Conservative Benches.

[Lord Armstrong of Ilminster]

My Lords, I am grateful to the Chief Whip for her intervention.

Despite the Ministerial and other Salaries Act, the present Cabinet consists of 22 members: the quad—the Prime Minister, the Chancellor of the Exchequer, the Chief Secretary and the Lord President of the Council— and 18 Secretaries of State, but fortunately one of them is also Lord Chancellor, who is covered by a separate section of the Act. The Lord Privy Seal, the Chancellor of the Duchy of Lancaster, the Paymaster-General and the Parliamentary Secretary to the Treasury, all of whom are allowed to qualify as Cabinet members under the Act, are not members of the present Cabinet and so are not entitled to be remunerated as Cabinet Ministers; they are remunerated only as second-tier Ministers, along with Ministers in charge of departments who are not in the Cabinet, the Financial Secretary to the Treasury and Ministers of State. These four Ministers are, however, invited regularly to attend meetings of the Cabinet, along with seven other Ministers who are not members of the Cabinet. I think that makes 33 people sitting round the Cabinet table, which is a large number for a discussion at that level.

I turn to the case of the noble Baroness the Leader of the House. She is, as many of her predecessors have been, the Lord Privy Seal. Unlike any of her predecessors for the past 100 years or more, she is not a member of the Cabinet. We have a situation where there is no Member of the House of Lords in the Cabinet at all. During the whole of my time as a civil servant in the Government, there were at least two Members of the House of Lords in the Cabinet—the Leader of the House of Lords and the Lord Chancellor—and often more. We are told that the noble Baroness will attend all Cabinet meetings and will be able to represent the interests of the House as effectively as, or no less effectively than, her predecessor. She is not, however, a member of the Cabinet.

There seems to be no difference of view as to what the level of her remuneration should be. The Prime Minister generously intended that she should receive the same total remuneration as a Cabinet member but that was, in effect, to be in two parts: the salary of a second-tier Minister, paid out of public funds, and a top-up from Conservative Party funds to bring the total up to the equivalent of a Cabinet member’s salary.

Much has been said this evening about the need to recognise the importance of the House of Lords in the Cabinet by having a representative there. The Leader of the House has responsibilities beyond and separate from those she has as leader of the Conservative Party in this House. She has responsibilities to and for Members of the Liberal Democrat party, the Labour Party and, indeed, other parties, as well as independent Cross-Bench Members, who are Members of no party. She has responsibilities for the whole House, irrespective of parties. She also has responsibilities for the conduct and good order of the House of Lords, which are discharged in another place by the Speaker of the House of Commons, who is accepted as being above party.

The Leader of this House is the holder of a parliamentary public office which should be remunerated wholly out of public funds and ought not to receive any part of his or her remuneration out of party funds. We all respect and admire the noble Baroness, Lady Stowell, and I regret that this dispute and difference of opinion should circulate around her; she has done nothing to deserve it. She has accepted the force of the argument and has decided, extremely honourably in my view, to forgo the top-up from Conservative Party funds and to be paid as a second-tier Minister—a Minister of State—out of public funds alone.

The Prime Minister has written a letter to the noble Lord, Lord MacGregor, in which he recognises that the Leader of the House ought to be in the Cabinet. He expresses regret about the present situation and promises to put it right at the earliest possible opportunity and certainly after the forthcoming general election, if he is still the Prime Minister. This is a profoundly unsatisfactory situation not just for the Leader of the House but for all of us in this House, for all who care about the place of the House of Lords in our constitutional arrangements and, seemingly, for the Prime Minister himself. The Leader of the House is now not only specifically declared by the Prime Minister not to be a member of the Cabinet but, by her own honourable self-sacrifice, she is also deprived of the level of remuneration that everyone, apparently including the Prime Minister, thinks she ought to receive. Not only is the House of Lords being treated with disdain, the noble Baroness is being treated shabbily and she ought not to have been put in this invidious position.

Your Lordships may agree that this simply is not good enough. The noble Baroness should be a member of the Cabinet and should receive a salary at the top tier as defined in a schedule to the Ministerial and other Salaries Act. If necessary, the Prime Minister should find another Minister now in the Cabinet who can be asked less inappropriately than the noble Baroness, to give up his or her membership of the Cabinet but be one of those who attends, to ensure that the Lord Privy Seal is able to take her rightful position as a member of the Cabinet. I do not say a full member of the Cabinet because I do not believe that that means anything very much.

It was wrong not to have the Lord Privy Seal in the Cabinet and it was wrong, and unmistakably an indication of an uneasy conscience, to try to make it up to the Lord Privy Seal by offering to top up her remuneration to the equivalent of a Cabinet salary by means of a supplement from Conservative Party funds. Two wrongs do not make a right. The Prime Minister should do the right thing without further ado by appointing the Lord Privy Seal to be a member of the Cabinet. That may mean asking someone else to stand down, but I believe that that would be less inappropriate.

The noble Lord, Lord MacGregor, referred to the possibility of amending the Act. I am not sufficiently expert to know whether that can be done for this purpose by delegated legislation or whether it would need new primary legislation. I remember, because I was around at the time, that the limits were introduced in the Act in order to reduce, or to keep a limit on, public expenditure. I suppose that that consideration is still relevant. If that course is not open to him, the Prime Minister should take the other course of making it possible for the Lord Privy Seal to be in the Cabinet. To paraphrase the old song: if you have a right thing, do it; do not dream it, do it now.

[The Lord Bishop of Chester]

My Lords, I want to associate these Benches fully with both sides of the Motion; first, the welcome to the noble Baroness in her role as Leader of the House and, secondly, the regrets that have been expressed already in our debate. Rather than focus on the details, I shall make a few comments about the wider symbolic significance of these events. A healthy society distributes power. The banking crisis arose partly because power got too concentrated in certain institutions and in a certain section of the financial community. Government, if it is about nothing else, is about the exercise of power. We have to accept and acknowledge that, and not try to deny it. The exercise of power calls for clear leadership, which is right, too.

Today, I sense that leaders of political parties—this is not a party-political point—feel so oppressed into the exercise of power and the clear profile of their leadership that they can be drawn into decisions that are sometimes unwise, and which would have been much better had there been more consultation and more time to think about it. Am I the only one who has a certain regret that our party leaders all seem so young these days? Is there not a certain wisdom of age, which perhaps is something we should think about?

In our society, we tend to have power exercised by the Government and the rights of the individual. That is the dialectic which is played out in our society. It tends to squeeze out intermediate institutions, but democracy depends on institutions that are not themselves creatures of government. The House of Lords is one such institution in a bicameral system. It is very important that the proper authority—the proper place—of the House is maintained, because of that vital place in our democracy.

I say in parenthesis—and perhaps it is not a welcome thing this evening—that our failure to engage in a proper evolutionary process of reform of the House has encouraged some people to look down on the role of the House. However, as has been said, the actual role of the House, for example in scrutinising legislation, is more significant now than it has ever been, because so much legislation simply is not scrutinised in the primary Chamber. That makes the demotion of the Leader of the House from the Cabinet a very significant event, in my view, because of our role in scrutinising that which the Commons has not the time, energy or will to scrutinise.

20:45

We live in a time when the Executive tend to dominate the legislature; when the Executive are seen rather cynically by many people in our country as exercising power in their own interest, or not in the interest of society as a whole. I would associate this with the progressively low turnouts at elections, which is something which we should be very concerned about in our democracy. People just cannot be bothered to vote, because they somehow think the power is not with them in the ballot box but with other people in government. Snap decisions, such as the way in which the role of the Lord Chancellor was changed—like the noble Lord, Lord Tyler, I think that this does have a very similar feel to that passage—simply encourage the sense of an overdominant Government. The salary arrangements are another example of that unwise snap decision having to be repented of.

My final point is that I have always been somebody who rather values the fact that we have an unwritten constitution. However, I have gradually come to think that it would be better if certain aspects of how we do things were written down, so that the Government cannot simply ride roughshod over them. The fact that the Companion and Erskine May say one thing and the Prime Minister instantly can do something else should cause us quite serious thought about how our constitutional arrangements can be protected in the future.

[Lord Lang of Monkton]

My Lords, I begin by apologising to the noble Lord, Lord Armstrong, for my excessive enthusiasm to participate in your Lordships’ debate. I thank the noble Baroness, Lady Boothroyd, on behalf of the Select Committee on the Constitution, which I have the honour to chair, for quoting so effectively and powerfully from our report. I stand by everything that is in that report. I believe that it does its best to inform the House for the debate and I hope that the House will find it useful.

Regarding the Motion, however, I find I have a little difficulty because I agree with the first part, in which the noble Baroness congratulates my noble friend the Leader of the House, who I believe will be as formidable as she is fearless and will turn this event to good account in her negotiations with the Prime Minister and others in Cabinet. However, in the second part of the Motion, which criticises the Prime Minister’s decision, I think the noble Baroness underrates the extent to which my noble friend Lady Stowell is a prisoner of circumstances, deriving from some years ago. I will come back to that point shortly. That is not to underrate the serious nature of the diminished status under which your Lordships’ House now labours—in defiance, as the noble Baroness, Lady Symons, rightly said, of both Erskine May and the Companion to the Standing Orders.

Of course one welcomes the acknowledgement by the Prime Minister of the unacceptable nature of the present situation and his clear commitment to put it right as soon as he can. But to help that to happen, we should also acknowledge the nature of what he has inherited: namely, the gradual erosion, over time, of the constitutional standing of this House, which the current event continues. Indeed, I believe that there are two disquieting long-term trends that have contributed to the situation we now face.

First, there is the huge expansion since the 1970s that my noble friend Lord MacGregor spoke about briefly of the range and machinery of government. There are more departments and Governments are doing more, and that has required more Ministers and more Cabinet Ministers. That trend was visible 40 years ago when in 1975 the issue was last addressed and the paid number of Cabinet places was increased from 19 to 21, providing what the Government of the time thought was some spare capacity for future growth. They were too optimistic. Moreover, the Acts of Parliament that governed and sought through financial controls to discipline such expansion were left unamended. Instead, they have been circumvented.

The committee’s report illustrates the recent trend in this century of the concept of Ministers attending Cabinet. Prime Minister Blair used it. Mr Brown, as Prime Minister, entrenched it at six, including two Parliamentary Private Secretaries—both of them, incidentally, his own. He then started recruiting Ministers from outside Parliament—those optimistically referred to as GOATs, or the Government of all the talents. He subdivided the supernumerary attendees to Cabinet into two different categories.

The blurring of government continued with the tsars and envoys and has continued under the present Government. Now, as has been pointed out, there are 11 ministerial attendees at Cabinet who are not Cabinet Ministers. We do not want our Leader of the House to be a member of that second XI. We know that she is first XI material, and I do not doubt for one moment that she will fight as though she is a first XI person.

The second trend is the gradual and perhaps inadvertent downgrading by government of the centrality to decision-making of this House. We are the secondary Chamber, but we have a part to play. Incidentally, I noted that while 4% of Ministers in the Commons are unpaid Ministers, 33% of Lords Ministers are unpaid Ministers. That is in itself unfair—but the solution is not to rebalance it but to ensure that every government Minister is properly paid from government funds at all times.

I do not believe that this is a party-political issue. Both parties carry a certain amount of blame. But it is a constitutional one of fundamental significance that has now left us without a Member of this House in the Cabinet. The change to the role and status of the Lord Chancellor in 2005 forms part of the undermining of the standing of this House—and a very substantial part, as has been commented. It was an object lesson in how not to make changes to the constitution, and I am glad to say that your Lordships’ committee is at present undertaking an inquiry into that role.

Our report does not make recommendations as to the way forward, but it is clear that the amending of the Ministerial and Other Salaries Act 1975 could offer one possible way forward, although I believe that it would need primary legislation. Our report indicates three possible options for amendment if that is the chosen route. I care deeply about the place of the House of Lords in our constitution. To me, the central issue concerns the bicameral nature of our legislature. That, as our report states, is a core part of our constitution. It is also a core part of our constitution that Ministers are drawn from the legislature. That must include this House at Cabinet level. Those basic principles of our parliamentary system have been blurred and neglected for some time. The restoration of the Leader of the House to full Cabinet membership will be but the first essential step to restoring our bicameral parliamentary system.

[Baroness Royall of Blaisdon (Lab)]

My Lords, this is a very short but powerful debate. The Prime Minister can be in absolutely no doubt about the strength of feeling in this House, as was encapsulated by the noble Baroness, Lady Boothroyd, in her superb opening speech. I say that the Prime Minister can be in no doubt rather than the noble Baroness the Leader, because this Motion and the weighty arguments that are being made are not against or about her; they are about the office that she occupies or the office that she should occupy. Like other noble Lords, I emphasise that I have full confidence in the noble Baroness and I know that she is doing and will continue to do a splendid job. I very much regret that she has had such a baptism of fire.

I am grateful to the Constitution Committee for its swift, excellent and informative report and, like the noble Lord, Lord Lang, I care deeply about the position of this House in our constitution. The committee is of course right not to make recommendations, but the information that it provides and its conclusions are invaluable. I was interested to learn, for example, that the current Cabinet manual states that the Cabinet is the ultimate decision-making body of government and, as my noble friend Lady Symons of Vernham Dean has said, Erskine May, that parliamentary bible, describes the Leader of the House of Lords as a member of the Cabinet.

As the noble Baroness, Lady Boothroyd, said, the committee notes that the Leader may often have to give unpalatable advice to ministerial colleagues about the chances of their legislation passing the House or the time that it will take. It goes on to say that in such matters the Leader needs authority. Having been a Minister attending Cabinet, as Chief Whip, and a full member of the Cabinet, I can say to noble Lords that there is a difference; the committee is absolutely right. It is not a question of where the Lords appears on a Cabinet agenda; it is that to be a full member of the Cabinet gives one authority and the confidence that goes with that authority—the confidence to disagree with those who have greater experience and who, because they are Members of the House of Commons, do not understand the impact that their legislation will have in the Lords.

It is sometimes not a comfortable position to be in, but I always did what I did and had to do on behalf of this House. The role of the Leader of the Lords in the Cabinet is distinctive and different from other members of the Cabinet, as has been said; he or she is there to represent the whole of the House of Lords. I had the good fortune for some time to have two noble friends who were also members of the Cabinet, but I was the one who rightly had to take the lead in defending the position of this House. I am glad that my party recognises the distinction and it is clear that we will reinstate the position of the Leader to their rightful place as a full member of the Cabinet. I assure noble Lords that we will not turn the current situation into a precedent. This is a unique and foolish error of judgment. It is a wrong that must be righted.

In his much quoted letter of 22 July to the noble Lord, Lord MacGregor, the Prime Minister does not mention Cabinet correspondence. I would be grateful if the noble Baroness could say whether she is included in the circulation of all Cabinet correspondence, which of course results in much decision-making. I hope that she is. If that is the case, I wonder if this is or has been the norm for all those attending Cabinet. If it is an innovation as a result of the current situation, and if all those now attending Cabinet receive all the papers, it must surely have an additional cost implication. One might even ask if the costs involved over 10 months could add up to the rest of the salary that should go with the office of the Leader.

In relation to salaries, what one might call the rate for the job, the noble Baroness was surely right to refuse to have her salary topped up by the Conservative Party. She is, as has been said, a woman of integrity. However, I wonder if the Government will be complying with the equal pay audit regulations that were discussed in Parliament this afternoon. It cannot be right that a female Leader of the Lords is paid less than her counterpart was; it is a terrible example for the women of this country. All this comes from a Prime Minister who we were told was reshuffling his Cabinet with the aim of promoting women and equality.

Was it by accident or by design that the post of the Leader of the Lords was downgraded? Was it careless disregard, as mentioned by the noble Baroness, Lady Boothroyd? The Prime Minister tells us that it was an anomaly, a temporary necessity, but the right honourable gentleman had a choice about who should be in his Cabinet. He chose not to include the Leader of the Lords. I have to say that it feels very much as though this House is being treated with contempt. That feeling might be strengthened later this week when I suspect that a new list of Peers will be published. We all want to give a warm welcome to new colleagues, but to have a House of more than 800— patronage before principles, that is—cannot be right.

Mr Cameron’s decision to downgrade the position of Leader of the Lords means that the office is diminished, and by diminishing the office we are all diminished. I therefore hope that if the noble Baroness, Lady Boothroyd, decides to seek the opinion of the House, noble Lords on all sides will choose to send a clear message to the Prime Minister by joining her in the Division Lobby.

21:00

[Lord Butler of Brockwell (CB)]

My Lords, I shall not repeat the reasons that have been so eloquently put about why this decision was wrong; I want to make some practical suggestions about how it can be put right.

There are, in fact, three ways in which the Prime Minister could now put the situation right. I fear that it was simply not correct in his letter to say that it was impossible to make the noble Baroness, Lady Stowell, a member of the Cabinet. There are still three ways in which it could be done, although perhaps some of them, with the passing of time, are less practicable than others. He could have chosen not to have made one of the other members of the Cabinet a member of the Cabinet. He chose not to do that. As suggested by the noble Lord, Lord MacGregor, and referred to by the noble Lord, Lord Lang, it would be possible to amend the Ministerial and Other Salaries Act. If, 10 days ago, the Government could introduce as emergency legislation a Bill to amend the retention of data, they could have introduced an emergency Bill to do this. It may be difficult now that we are in the Recess, but perhaps the House of Commons could be recalled for that purpose.

There is another solution, which I hope that it is not invidious to draw attention to. The limitation on making the noble Baroness a member of the Cabinet is simply the number of Cabinet Ministers who can receive salaries as Cabinet Ministers. It would be possible—indeed, it has often happened in the past—for Ministers who are members of the Cabinet to choose not to take their salary. I do not think that it would be unreasonable to ask that one of the present members of the Cabinet for the next 10 months should forgo their salary, so that the Leader of our House can be a member of the Cabinet. I hope that it is not invidious to say that I think that there are members of the Cabinet who could afford to do that. Indeed, they might simply be anticipating the position that they will be in anyway in 10 months’ time.

The Prime Minister could have made one of those choices. The fact that he did not indicate indicates that he chose to humiliate this House and put the noble Baroness in a very difficult position in taking up her responsibilities. There is still time for the Prime Minister to do the right thing, and I hope that he will do so.

[Lord Trefgarne (Con)]

My Lords, I shall be very brief. Like many noble Lords, I share the dismay expressed so eloquently by the noble Baroness that, for the first time in history, there is no Member of your Lordships’ House in the Cabinet. That of course demeans the position of your Lordships’ House and lowers the standing of the Leader in the eyes of everybody, as we have already heard.

I suspect that this wholly unprecedented situation was arrived at by accident. Thus, I imagine that it cannot be corrected without disrupting existing appointments or, perhaps, coalition dispositions. What a price we pay to keep this coalition in place.

Who is the Prime Minister’s principal adviser on this matter? Presumably, as the noble Lord, Lord Armstrong, explained, it is the Cabinet Secretary. Was the Cabinet Secretary’s advice taken on this occasion? What was that advice? That we shall never know, but it has caused this terrible situation and, I hope, can be corrected. If the noble Baroness, Lady Boothroyd, chooses to divide the House a little later, I shall join her in the Division Lobby.

[Baroness Grender (LD)]

My Lords, I want to make one very brief point. I would hate this debate to pass by without making the point that while many here are talking about a constitutional outrage, there remains a constitutional outrage that this place is unelected. I want to mark that point.

[Baroness Hayman (CB)]

My Lords, I think the House would not thank me for entering into that particular argument at this stage of the evening. I simply ask: where was the corporate memory in all of this? The noble Lord, Lord Lang of Monkton, described the change in the role of Lord Chancellor as an object lesson in how not to make changes. I think that it has a rival in this current situation. Perhaps I could just say a word about the change of the role of Lord Chancellor because I was a beneficiary of it in one sense, as I then had the honour of representing this House as the first Lord Speaker.

I have two things to say. First, the Government of the day were stopped in their tracks. I have some sympathy with the views of the noble Lord, Lord Lang. They took a long time to work out that policy properly; it was not implemented immediately because it was seen to be wrong. I believe that we are in the same situation now and we should stop. Secondly, constructive suggestions have been put forward on how this could be corrected. It needs to be corrected because it matters not only that the Prime Minister has his personal opinion—I am sure that he is honest in describing his respect for the noble Baroness the Leader of the House—but that the Leader of the House has clout with fellow members of Cabinet matters. The Leader of the House should be someone who not only attends but is a member of Cabinet.

I shall say one last thing about those arguments about the change in the position of Lord Chancellor. There were passionate debates, often because there would be a reduction in the representation of this House at Cabinet level to possibly only one. That was considered to be a serious issue but no one, not the most outspoken opponent of those changes, ever suggested that it would be possible that this House would be totally unrepresented at Cabinet level. Others have made the case why that would be. As someone who had a role, of which I was immensely proud, in representing a House that I believe is an essential part of our bicameral legislature, I think that to allow that to happen would be a constitutional outrage, as others have said, and something that we should take steps to change.

[Lord Cope of Berkeley (Con)]

My Lords, as has been mentioned, I went with my noble friend Lord MacGregor to see the Prime Minister about all this last week. I went because, while I greatly welcome the appointment of my noble friend Lady Stowell and congratulate her on it, like others I was shocked by the decision on the status of our new Leader of the Lords and wanted to challenge that decision.

Our objective was, first, to ensure that the Prime Minister understood the outrage felt throughout your Lordships’ House and then to see what could be done about it. It was clear that he fully understood, at that time at least, the outrage. He explained that the decision on her status arose from the fact that the Leader of the Commons had not recently been a full member of the Cabinet, but as that is now my right honourable friend William Hague, who is also First Secretary of State, it was impossible to demote him. Further, he said that ministerial heads of department these days are all Secretaries of State—a fact to which I will return—so that all the available spaces allowed by the 1975 Act were taken up, as explained in the excellent report from the Constitution Committee.

We came away with two undertakings, which we asked him to put in writing and he did so, in the letter which has already been referred to. The first was that this was temporary. Secondly, he promised that in practice meanwhile it would make no difference, as my noble friend Lady Stowell will be treated exactly like her predecessor, although she is not officially of Cabinet rank. In my view, the Prime Minister saying—and then putting it in writing—that our Leader, although not a member of the Cabinet, is to be treated as if she was one itself marks a profound, if apparently temporary, change in our constitution. My noble friend is, by the Prime Minister’s fiat expressed in the letter, exempted from the restrictions which would normally apply to those who merely attend the Cabinet. In our flexible constitution, as chairman of the Cabinet, he can do that.

Like the noble Baroness, Lady Royall, I attended Cabinet for a period. It was my noble friend Lady Thatcher’s Cabinet, while I was acting Chief Whip after the Brighton bomb. As Chief Whip my duty was to ensure that the Cabinet understood the views of MPs, particularly but not only the views of the Government’s supporters in the Commons, and to give advice on smoothing the Government’s path in Parliament. I was of course not there to contribute my personal views, which was for members of the Cabinet to do. Nor was I there to vote on the rare occasions when the voices were collected to make a decision. I assume that my right honourable friend Michael Gove will follow the same precedents in the current Cabinet.

The Prime Minister’s decision and the terms of his letter will, I have no doubt, be studied in academic and other circles to gauge his idea of Cabinet government. I note that those now considered as essential members of the Cabinet are the Secretaries of State—the ministerial heads of the various departments. They are regarded as more essential than the Leaders of the two Houses of Parliament. That is a profound comment on the way in which our constitution and the attitude to Parliament have developed, particularly in a bicameral Parliament.

As far as I am concerned, it gives rise to two reflections. These days there are no heads of departments in the Lords, which used to be quite normal. For example, my noble friends Lord Young of Graffham, Lord Cockfield and Lord Carrington headed departments not long ago in the constitutional reckoning of time. In spite of all the huge numbers of appointments to the Lords, no one has recently been appointed to be head of a government department.

[Baroness Royall of Blaisdon]

My Lords, perhaps I might point out to the noble Lord that we had two members of the Cabinet in the Lords: my noble friends Lord Mandelson and Lord Adonis, both of whom headed departments.

[Lord Cope of Berkeley]

Yes, I said that the examples which I drew were recent, but I accept that the particular examples given were a little further away. I entirely accept that those are perfectly acceptable ones as well. It used to be quite a normal thing, but the fact that there is no head of department in the Lords at the moment is perhaps an indication of the view of the Lords held in other places.

My other reflection is that all heads of departments now seem to be Secretaries of State and, as a result, are covered by Schedule 1 to the 1975 Act. Of course, that was not always so in days gone by. I have heard it justified by the fact that, because of the wording of many statutes, Secretaries of State alone can issue statutory instruments. So the proliferation of Secretaries of State flows from the proliferation of statutory instruments in Bills and Acts. I have complained before in your Lordships’ House about legislative drafting habits and the difficulties that this particular practice gives rise to, but that is a side reflection.

For these constitutional reasons, I regard this decision as most unfortunate. I believe that it has already changed the constitution temporarily by allowing my noble friend the Leader of the House the full status of a Cabinet Minister even though she does not hold the rank. I hope, as the Prime Minister does, that it will prove temporary and certainly that it will not be a precedent.

21:15

[Baroness Scotland of Asthal (Lab)]

My Lords, I intend to be brief. There are two salient things that have come out of this debate. The first is that the House is united in its approval of the noble Baroness and her appointment, united in its esteem for the noble Baroness as our Leader. The second is that on all Benches there is clear agreement that that which has now transpired in relation to the noble Baroness’s appointment was wrong, was a mistake and should be changed with immediate effect. Every single Member who has spoken agrees, in essence, with the Motion of the noble Baroness, Lady Boothroyd, that we approve of the noble Baroness but also want to send a very clear message to the Prime Minister that that which he has done has not been well done. Whether it was a mistake or no, it has caused concern, offence and anxiety about our constitution across the House. If there needs to be a message, it needs to come from the whole House that this is not a party-political issue but a constitutional issue which this House will not be silent about and must now speak about.

Those of us who have had the privilege of attending Cabinet understand absolutely the difference between being a full member and merely an attending participant. No matter how great the noble Baroness’s talents—and they are considerable indeed—they will not be capable of being overcome in such a way as to represent this House as every single Leader of our House has had to do. We know, and we have spoken a little about it tonight, how difficult it is sometimes to get the other place to understand the reality of getting business through this House. The Leader will have to challenge the Government because that is what every single Leader of this place has always had to do. So, in commending the noble Baroness for her courage, for her acuity and for her skill, we need to say to the Prime Minister that up with this we will not put.

It is not because he is a Conservative Prime Minister. If any Prime Minister had had the temerity to do that which this Prime Minister has done, we would have given him the same message—or her, because this is not an issue about gender. I hope that when this House comes to speak, we will speak with one voice.

If I may, I say to the noble Baroness our Leader that she should remember always that we are with her and that when she speaks, she will speak with the force of all of us behind her—but that her leadership role differs from any other role in that Cabinet. We are of the view that we need to have a Leader who is a full member of Cabinet, so that when she speaks, the Prime Minister and the other Cabinet Ministers will have to listen.

[Lord Mackay of Clashfern (Con)]

My Lords, I entirely agree with almost all that the noble and learned Baroness, Lady Scotland, has just said. It would be most unfortunate if we were not to deliver a unanimous view on this matter. The only difficulty I have with the precise terms of the Motion moved by the noble Baroness, Lady Boothroyd, is that, as the noble Lord, Lord Butler of Brockwell, has pointed out, the options for the Prime Minister might take a little time. Therefore, if she was prepared to say “as soon as possible” as the conclusion, I think all of us could wholeheartedly agree with her.

[The Lord Privy Seal (Baroness Stowell of Beeston) (Con)]

My Lords, I am grateful to the noble Baroness, Lady Boothroyd, for providing the opportunity for us to have this debate this evening. She is, it goes without saying, a distinguished Member of this House, and I have listened carefully to her and, indeed, to all noble Lords who have spoken tonight. I am very grateful to all noble Lords for the supportive comments that have been made about me personally. I am also grateful to the Constitution Committee under the chairmanship of my noble friend Lord Lang of Monkton which, contrary to how some of us have sought to portray it, has set out, in my view, a helpful and factual report that has been constructive in explaining how the relevant legislation has come into play on this occasion. The legislation that we are talking about is, of course, the Ministerial and other Salaries Act 1975.

I am the Leader of this House. While noble Lords may be concerned about my ministerial rank, nothing changes that simple fact. Nothing has changed in practice about how I represent this House within government, and I will do the job of Leader in exactly the same way as all my predecessors. Even though nothing has changed in practice, the Prime Minister has made clear that he shares the House’s view, expressed passionately again tonight, that the Leader of the House of Lords should,

“as a general rule, always be a full member of the Cabinet”.

He has confirmed that he sees the current situation as a purely temporary one that he will want to rectify at the earliest opportunity, and that he will certainly do so immediately after the general election if he is returned as Prime Minister and no opportunity has arisen to do so before then. I note that the noble Baroness, Lady Royall, said that if the Opposition are elected, they too would change the situation at that time.

The principle at the heart of the Motion moved by the noble Baroness, Lady Boothroyd, that this House should be properly represented within government at the highest level—that is to say, in Cabinet—is therefore not in dispute. We are all agreed on that point. The question we are debating tonight is how and when this temporary situation might be corrected and what problems, if any, this temporary situation creates.

A significant problem that the noble Baroness, Lady Boothroyd, and some others have identified is a risk, which was also identified by the Constitution Committee, that my status might detract from my authority in an intangible way and affect my ability to represent this House in the Cabinet. I will respond to that point as directly as I can. As I said during our short debate soon after my appointment, judge me on what I do and how I do it. My effectiveness in the job will rest on the quality of my arguments and my ability to put forward my case. If my arguments are no good and I cannot present a good case, it will not matter whether I am a full member of the Cabinet.

Noble Lords already have evidence that I can deliver without status and regardless of rank. I led one of the most contentious pieces of legislation in this Parliament through your Lordships’ House when I was no more senior than any Whip. In so doing, I hope I demonstrated that successful negotiation with other Ministers and senior civil servants is not all about rank.

David Cameron is the second Prime Minister and the third party leader with whom I have worked closely. I have never in my professional career shied away from giving unpalatable advice or expressing an opinion that those on the receiving end did not want to hear. I will continue to do that where I believe it is necessary for me to do so. If noble Lords do not believe me, they may speak to any of my former male bosses. Some of them are also members of your Lordships’ House.

I am an independent woman and a single lady. Noble Lords might want to think of me as the Beyoncé of your Lordships’ House. I none the less recognise that this is ultimately not about me. I understand the serious concern expressed about diminishing the standing of this House of Parliament. This House has already shown that it need not be affected by this temporary situation. In the days after my appointment, this House debated the Bill of the noble and learned Lord, Lord Falconer, on assisted dying. The following day the Telegraph commented:

“Yesterday’s discussion in the House of Lords was an example of Parliament at its finest”.

The Times headlined a similar editorial with two words: “Model Parliament”. All that said, the situation is temporary and the PM is committed to rectifying it by May next year at the latest if he is re-elected. The noble Baroness, Lady Boothroyd, talked, however, of the Prime Minister having careless disregard in the matter of my appointment. The noble Baroness, Lady Symons, also raised the constitutional concern.

It is important for me to remind noble Lords that it was the previous Government who removed the certainty of a full Cabinet member being in the House of Lords when they removed the Lord Chancellor from this House. The comparison by the noble Baroness, Lady Hayman, of this current, temporary situation to a permanent change is not one that I can accept. That change, the change of removing the Lord Chancellor from this House, has a profound impact. Indeed, the Constitution Committee’s report says:

“At the time of the 1975 Act it would have been assumed that at least the Lord Chancellor would always be a peer in the Cabinet”.

That change has had a profound impact on the membership of the Cabinet in terms of its representation from your Lordships’ House.

I turn now to some of the potential solutions that noble Lords have put forward tonight. I refer specifically to that which my noble friend Lord MacGregor made.

[Lord Richard (Lab)]

In terms of that, may I ask the noble Baroness a question? If she is in this strange sort of intermediate stage of not being a Cabinet Minister yet being in the Cabinet, if there is a collection of voices, does she have a vote?

[Baroness Stowell of Beeston]

I think that the way in which Cabinet conducts itself in recent years is for there to be a debate, and for the Prime Minister to conclude what has been agreed on the basis of that discussion. I understand it has been a long time since there has been a formal vote in the Cabinet, but I am not a full member of the Cabinet, and I would not have a formal vote. As I stress again to the noble Lord, it is many years—some might suggest decades—since a formal vote has been conducted in the way that he suggests.

I will return to the potential solutions that other noble Lords have put forward tonight. I refer explicitly to that which my noble friend Lord MacGregor raised, which is a proposal to amend the Ministerial and other Salaries Act to increase the number of paid Cabinet Ministers. The Constitution Committee also noted that the Act could be amended to provide that one of the 21 salaries must be paid to a Member of the House of Lords to prevent this happening again. I will, of course, convey the strength of the House’s view on this matter to the Prime Minister, and I will discuss this with him and with other colleagues. None the less, we should acknowledge that if we decided to amend legislation to create another full Cabinet post or to prevent a repeat of this situation, that would take time to implement. I therefore believe that the key point to consider is whether there is a way to address this situation better than the one the Prime Minister has already committed to carrying out. I know that the noble Lords, Lord Butler and Lord Armstrong, were both explicit about another member of government giving up their place or their pay. That proposal is not necessary when the Prime Minister has been very clear that this situation is temporary.

21:30

Before I conclude, I will deal with the concerns raised by some noble Lords which relate to gender equality and the issue of pay. The Prime Minister feels strongly about that and sought to address it in a way that was consistent with the relevant codes, and the House is already aware of my decision on this matter. However, it is a very important matter, and because of the important points that have been raised on gender equality I will say something quite personal about it.

I have been looking at this matter through a particular lens. I keep in my office a photograph of me with a group of women who live in Nottingham. They represent the people who inspired my decision to seek a front-line role in politics. They have worked hard all their lives, live on modest means, and many of them have faced some heartache on the way. However, they have always managed to cope, and usually with a smile on their face. When I look at that photograph of those women, one of whom is my mum, I like to think that my unexpected success—that photograph was taken just before I came to your Lordships’ House—makes them feel that all their struggles have been worth it. Yes; they would prefer that I was paid the same as my male predecessor. However, I am confident that they support my decision to accept the job on the terms that I did. I can look those wonderful women in the eye and say something that makes them feel very proud of their own achievements as mothers: “One of your daughters is Leader of the House of Lords”.

I am left in no doubt that there are strong feelings on this subject across the House this evening. I will be sure to convey to my colleagues in government the views that have been put on record tonight, and to take away for further consideration the suggestions that noble Lords have made about ways in which we might move forward. However, I will not be able to support the Motion in the name of the noble Baroness, Lady Boothroyd, for three reasons. First, the Prime Minister has already made clear that he has no intention of diminishing the standing of this House; secondly, he has already undertaken to rectify, at the earliest opportunity, a situation which he accepts is temporary; and finally, this temporary arrangement will not affect my ability to do the job I have been asked to do for the next nine months.

[Baroness Boothroyd]

My Lords, I observe the courtesies of this House and thank all noble Lords for their contributions. I appreciate the knowledge and experience that those noble Lords who have held high office as Ministers or as Cabinet Secretaries have brought to this debate. I thank, too, the noble Baroness the Leader of this House for her response. She cannot have had a very comfortable time in recent days. I have great personal sympathy for her, and no doubt she will take comfort from the fact that the House entirely welcomes her as its Leader.

The gale-force winds blowing from this House across to Downing Street began with a Private Notice Question. That gale force has gathered strength with this debate tonight. It will not cease; this issue will not go away. It is the Prime Minister who has the ways and means to take action on the basis of some of the suggestions that have been made this evening, but it has to be done at an early time and not at the next general election—if he is lucky. All that is asked is that the Prime Minister reconsider his decision, and I wish to test the strength of the House on that basis.

21:36

Division 1

Ayes: 177

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Labour: 97
Crossbench: 28
Liberal Democrat: 25
Conservative: 21
Bishops: 2
Ulster Unionist Party: 2

Noes: 29

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Conservative: 22
Liberal Democrat: 6

House adjourned at 9.46 pm.