Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Baroness Stedman-Scott) (Con)
Good afternoon. If there is a Division in the House, the Committee will adjourn for 10 minutes.
The Bilateral Agreement for the Promotion and Protection of Investments between the United Kingdom and Colombia
(10 years ago)
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Lord Stevenson of Balmacara
That the Grand Committee takes note of the Bilateral Agreement for the Promotion and Protection of Investments between the United Kingdom and Colombia (Cm 8887). 3rd Report from the Secondary Legislation Scrutiny Committee.
Lord Stevenson of Balmacara (Lab)
My Lords, the UK-Colombia bilateral investment treaty, or BIT, is designed to provide important protections to British investments in Colombia. My purpose in raising the issue today is to draw attention to the fact that these protections are controversial. Without putting down this Motion there would have been no chance to discuss these issues, which many people inside and outside Parliament would like to see raised. These concerns include a feeling that the balance of the treaty may be wrong, in that it gives excessive protection to investors while limiting the ability of the host country to regulate the FDI, and a question about whether the treaty deals with business and human rights, in the light of the growing impact of the UN’s generally accepted principles on business and human rights.
However, it is important to note at the start of the debate that UK business does not appear to need this agreement to encourage investment in Colombia. Colombia is one of UKTI’s 20 high-growth markets and the UK is already the second largest foreign investor, much of it in the extractives industry. Between 2009 and 2012, UK exports of goods and services to Colombia rose by 126%, the highest level of any of our major markets. Over the next four years, it has been predicted that Colombia will invest £50 billion in oil and gas and, over the next eight years, around £60 billion in infrastructure.
I am extremely grateful to the noble Lord, Lord Livingston, for providing some background information about the treaty, which has been very helpful to me in preparing for this debate. From this I note also that he has been active in working on various other things. I think that we all got these documents this morning and it is very good to see them, following a discussion where we felt that more could be done to try to proselytise for TTIP and other work in this area. I am glad to see that these documents have come round. However, the background information supplied suggests that the BIT was actually negotiated during 2008-09 but that ratification has been delayed as the treaty of Lisbon, which transferred exclusive competence for FDI to the European Union, entered into force before the agreed text was signed.
In view of this, some people have argued that the text of the treaty is out of date and should instead reflect the direction of travel as envisaged in more recent treaty negotiations, such as TTIP. It is also the case that during the time that has elapsed since the treaty was negotiated, the UK has embraced the UN Guiding Principles on Business and Human Rights and is one of the first countries to produce an action plan, which we certainly welcome. However, we accept that the debate on how future BITs should be structured to ensure a satisfactory balance between protection of investments and the right of local Governments to regulate in the public interest is not new. We also accept that the text of the current treaty departs substantially from previous UK practice, although I suspect that some of the changes made are not necessarily going to be made more acceptable as a result.
It is interesting to note that the BIT was ratified by the current Colombian Government in 2013 and that they have subsequently been pressing the UK Government strongly, at both ministerial and official level, to complete their ratification process at the earliest opportunity. This suggests that the Colombian Government view the entry into force of the BIT as positive, bringing benefits to Colombia through helping attract new foreign investment, and have considered that these benefits outweigh the risks of investor claims and impacts on public policy. But in the unlikely event that anyone thinks that these are hypothetical risks, Colombia’s neighbours Ecuador, Peru and Mexico have been the subject of 14, three and 10 claims respectively. I am told that $81.4 million is the average compensation paid to investors over the 83 known ISDS awards in favour of the investor to July 2013. Indeed, last year’s award of $1.17 billion to Occidental from Ecuador was the equivalent of the country’s entire education budget.
I am sure that the Minister will seek to persuade us, when he comes to respond, that despite the time that has elapsed the Government believe that the signed text reflects the current public debate and is fit for purpose in that context. However, some substantial concerns remain and I hope that the debate will help persuade the Government of the need to reflect carefully on whether the treaty correctly balances providing protection for investors and giving the Colombian Government the space they need to regulate in the wider public interests.
Other noble Lords, I am sure, will raise other points around this topic. I will therefore limit myself to two examples. The first is land reform. The treaty includes a form of investor-state dispute mechanism—narrower, as we are told—which will allow Columbia to be sued in an international arbitration tribunal. These tribunals take place behind closed doors and grant investors the right to sue democratically elected governments. However, neither the host government nor communities affected by such investments have rights to challenge that investment. As the Minister knows, land issues have been at the heart of the Colombian internal conflict, and nearly 6 million people have been forcibly displaced, so many people think land reform is the key to the peace discussions with FARC, which are currently taking place in Havana.
Will the Minister explain why the treaty will not prove challenging to the Colombian Government in pursuing land reform issues? Will he also reassure us that it will not put at risk implementing the land and victims law passed in 2011, under which land is due to be returned to victims of the recent conflict? Will he also comment on the suggestion that the solution to the problems posed by ISDS mechanisms would be to enact proper domestic legislation to protect FTI investors, as is happening in South Africa?
Secondly, on human rights, because of the long period of gestation of this treaty, it was drafted before the emergence of the UN’s Guiding Principles on Business and Human Rights. Rightly, the EU is committed to signing treaties only with countries that meet its values of democracy, the rule of law and respect for human rights. The Colombian Government have made good efforts to strengthen the rule of law, to condemn human rights violations and take action against illegal land appropriation, and there are now significant legislative and public policy initiatives in the field, which we welcome. However, there is more to come and we need to make sure that we support and get behind these initiatives.
Equally, the UK has made significant commitments recently in its action plan to implement the UN’s Guiding Principles on Business and Human Rights. In particular, the UK has undertaken to ensure that,
“agreements facilitating investment overseas … incorporate the business responsibility to respect human rights, and do not undermine the host country’s ability to meet … its international human rights obligations”.
I do not see that wording in the treaty. When the Minister responds, will he point to where the text reflects that sentiment, and explain how the UK will ensure that this treaty does not undermine Colombia’s ability to meet its international human rights obligations?
Will the Government not go further? Given that the situation on the ground is still developing, and bearing in mind our commitment to the UN guiding principles, does the Minister agree that it might be appropriate if he prepared an annual monitoring of the treaty in terms of its human rights impacts, with the results of this monitoring perhaps incorporated into the FCO annual human rights report?
Finally, when this treaty was considered by the Secondary Legislation Scrutiny Committee, the instrument was drawn to the special attention of the House on the grounds of policy interest. The committee had some reservations about the effectiveness of the protection for the investors because of the way the treaty is worded, and picked up on the difficulties these arrangements may create in relation to the human rights of certain groups within Colombia.
The committee’s report goes on:
“We have offered the Government the opportunity to respond and, if received, we will publish the response in our next report”.
I checked the other day and no response had yet been submitted. Will the Minister say whether the Government intend to respond to the Secondary Legislation Scrutiny Committee and if so, when this might be received? I beg to move.
Baroness Hooper (Con)
My Lords, as someone with a strong interest in Latin America and as a member of the European Union Select Committee, it is important to question the Government on this bilateral agreement. I congratulate the noble Lord, Lord Stevenson, on having spotted the need and opportunity for this debate, and on setting out the background so clearly.
There are three main areas of concern, which have already been referred to and no doubt will arise in other contributions. First, the treaty excludes important reforms currently being considered at European Union level in relation to the Transatlantic Trade and Investment Partnership between the European Union and the United States, on which the European Union Select Committee has reported. These are designed to mitigate some of the serious problems associated with investor-state dispute settlements.
Secondly, it does not contain human rights obligations on investors in spite of the Government committing to this in our recent national action plan on the United Nations Guiding Principles on Business and Human Rights. Thirdly, it creates legal uncertainty and could undermine the land reforms referred to by the noble Lord, Lord Stevenson, which are vital to the peace process in Colombia. In that, the treaty is inconsistent with other areas of government policy which seek to support human rights and peace in Colombia.
However, I would go further. Although this is a general point which could affect all trade treaties, it has particular significance for Colombia. If we think that United Kingdom companies operate to high levels and standards in other areas which have not been emphasised, we should seek to replicate those standards and levels in our international trade treaties. For example, corporate social responsibility could and should be encouraged, and referred to in these agreements. A company’s involvement in social issues in its neighbourhood and community are well appreciated and are now the norm in the United Kingdom. UK companies equally should feel obliged to follow similar standards in their operations overseas.
By the same token, environmental interests and concerns should be taken into account. I am interested to see that the department’s leaflet referring to the EU-US trade treaty refers to the fact that the high environmental standards and targets which we now have in place in this country are non-negotiable. I believe that in order to encourage that there should be a system of green points for those companies which commit to action in this area. For example, a project in Colombia with which I have become involved focuses on the Media Magdalena valley, an area which during the difficult terrorist periods was completely closed. People moved away and, therefore, flora and fauna had a wonderful time getting on without human interference.
Now that the peace process is proceeding, people are beginning to go back. Illegal gold mining is already taking place, which introduces mercury into the river and waterways, and into the food chain for animal life. This project is being co-ordinated by Neil Maddison, head of conservation at Bristol Zoo. Its aim is to help to preserve wildlife, flora and fauna in general, and to encourage people who go back to live in the area and companies which intend to invest in the area to observe the highest possible standards. That does not go quite as far as a national park regime—it falls a little short of that—but it would gain those companies green points. I believe that that very much is the way forward.
This is an important issue and it is a very good opportunity to ask the Government to comment on not only this trade treaty and any possible changes that could be made to it but to further push our high standards in our overseas commitments.
Lord Alton of Liverpool (CB)
My Lords, it is a great pleasure to follow the noble Baroness, Lady Hooper, whose knowledge of Latin America is probably unparalleled in your Lordships’ House. She and I are both members of the All-Party Parliamentary Friends of CAFOD, for which I serve as treasurer. A few months ago, with the Labour Member of Parliament, the right honourable Tom Clarke, who chairs that group, I met a group of Colombian human rights advocates, indigenous Colombians and Afro-Colombians, who were in the UK as guests of that charity. CAFOD is also part of the coalition ABColombia, which is an alliance of CAFOD, Christian Aid, Oxfam, SCIAF and Trocaire. I was profoundly moved by the commitment of those who have put their own lives at risk in working for peace and human rights in Colombia, but also shocked by the scale and nature of some of the egregious violations of human rights which they described. I promised them that, if the opportunity arose, I would try to draw Parliament’s attention to the dangers that they faced. Therefore, I am particularly grateful to the noble Lord, Lord Stevenson of Balmacara, for moving this Motion today, which gives us the opportunity to raise questions and to do just that.
Lord Monks (Lab)
My Lords, I start by declaring an interest. I am vice-president of Justice for Colombia and play an active role and take an active interest in that country. I also thank my noble friend Lord Stevenson for having the wit to initiate this debate on something that should not go through Parliament quietly in a way that has hitherto been the case. I share the concerns about this treaty expressed by all previous speakers. I am first rather puzzled about why it is so necessary, especially in view of the EU-Colombia trade talks which have been going on. In a previous life, when I was general-secretary of the European trade unions in Brussels, I was involved in making sure that social and environmental concerns were properly covered in that arrangement.
This rather more liberal agreement—liberal in the economic sense—sits oddly with the EU trade treaty. As has been said, Colombia remains a dangerous place for many of its citizens, including many from the trade union world. Until recently, it was the most dangerous place in the world to be an active trade unionist, at risk from one or other groups of paramilitaries. In 2013, 78 human rights activists were killed, an increase over the previous years. The Colombian Government are active in saying that things are getting better—we hope they are—but the past year has seen a lot of trouble, with mass unrest and big strikes across the country. These have been particularly in the agricultural sector, where there have been serious clashes with the police, with 27 dead just last summer.
I want to see the Colombian peace talks do well in Havana. The peace process there draws some useful lessons from our experiences in Northern Ireland. However, as the noble Lord, Lord Alton, said, Colombia has the largest number of displaced people in the world, according to the UNHCR, largely the result of land-grabbing by various paramilitary-backed forces. This brings me to the new treaty protecting foreign firms which invest from the danger of expropriation or other changes which might damage their investment. What could sound more benign than that? Except that Colombia is not a benign place—it is still in turmoil and this need, in terms of the peace process, to restore at least 2.5 million hectares of land to people from whom it has wrongly been taken seems to sit awkwardly with the provisions of this treaty. The treaty could make it a lot harder to restore land to those who originally owned it: for example, where stolen land has been sold to a Western company. What does the treaty have to say about that? Where is the balance of advantage and whose interests will predominate in those circumstances? I would be very interested to hear the Minister’s views on that problem.
The risk that this could limit the application of the peace agreements is considerable. Everyone needs to remember that paramilitaries continue to operate, even though the peace talks are under way. The implication in this of putting British investment interests above human rights and possibly even above that peace process sends a very serious message. I hope that the Government will find ways, as has been suggested by my noble friend Lord Stevenson and others, to reflect on the application of this agreement, even if it is too late to change it.
The Lord Bishop of Sheffield
My Lords, I shall speak briefly to support and echo the excellent remarks of the noble Lord, Lord Stevenson, and the points made by other noble Lords on the dangers posed by this treaty, in three specific areas.
First, on the protection of land ownership rights, as we have heard, this is no small issue in Colombia. A concern for the common good of the international community must surely include ensuring the ability of Colombia to continue to regulate in the interests of its own people, especially on this key issue. Such a concern would clearly preclude the binding of the Colombian people to corporate rather than national interests. We must therefore work to achieve greater reciprocity in the balance of protections afforded to investors, the Colombian Government and the wider citizenry, including the indigenous peoples in respect of land ownership rights. To this end I, too, urge the Government to incorporate safeguards to the investor-state dispute settlement provision to ensure that the UK complies with its human rights obligations and commitments made in Good Business: Implementing the UN Guiding Principles on Business and Human Rights.
Secondly, I wish to echo the excellent remarks of the noble Lord, Lord Stevenson, on the dangers posed by this treaty to the protection of the human rights of the Colombian people. Assurances are needed from the Government that the necessary changes will be undertaken to ensure that the treaty does not undermine Colombia’s ability to meet its international human rights obligations. This is particularly necessary with respect to upholding the indigenous peoples’ right to free, prior and informed consent, and their right to self-determination and their own development, as guaranteed in the United Nations ILO Convention 169 and the treaty on the rights of indigenous peoples.
Thirdly, I strongly urge the Government to establish an annual monitoring system for the treaty, to measure the impact of this agreement on both human rights and peace agreements. In the interests of accountability, as has been suggested, such monitoring ought to be incorporated into the annual FCO human rights report.
The Minister of State, Department for Business, Innovation and Skills & Foreign and Commonwealth Office (Lord Livingston of Parkhead) (Con)
My Lords, I thank the noble Lord, Lord Stevenson, for proposing this debate and I thank other noble Lords, particularly on the last day of the session, for their contributions. I know that many in this House take a close interest in Colombia, the progress that that country has made and the challenges it has faced over recent years. As I think noble Lords will be aware, this matter has also been debated in the other place.
I make it clear at the outset that the Government believe that the UK-Colombia investment treaty will benefit both countries. It will encourage increased levels of investment that will contribute towards economic growth, which I believe is in everyone’s interests. This view is shared by the democratically elected Colombian Government. They ratified this treaty in 2013 and have been pressing since then for the UK to ratify it as soon as possible. They have stated that they believe it will stimulate investment flows, guarantee the transparency and protection of investments within the standards recognised by international law, strengthen Colombia’s commercial ties with the rest of the world and guarantee equal treatment to Colombian investors in the UK.
In the next few years, there will be significant investment opportunities in Colombia in sectors where British companies are world leaders, including infrastructure, extractives, education, science and innovation. With the investment treaty in place, I believe that British companies are more likely to invest in projects which will help to deliver the right answer for Colombia. Colombia has investment treaties with many other major trading partners, including the US, China, India and Spain. They have also recently reached an agreement with France and it is right that UK investors should enjoy similar protections.
A number of concerns have been expressed in this debate and in other fora. I believe that some fears are exaggerated, but I understand them. First, it is suggested that the treaty will harm Colombia by impacting on the ability of the Colombian Government to regulate because of the risk of having to compensate investors who may bring compensation claims under the agreement, particularly through the ISDS clause, which has been mentioned.
Before I deal with individual questions, some facts are useful. For example, the UK has 94 such agreements. In aggregate, if you add them all together, they have been in existence for more than 2,000 years. There have been two cases and neither of them have been successful. The point about ISDS clauses is that they kick in only when there is not sufficient domestic process to deal with such matters. ISDS clauses are instead of adequate domestic processes. In that context, it is worth pointing out that I do not believe that Colombia has ever faced an ISDS claim.
However, despite the fact that history tells us that that is not a route for corporates to override domestic policy—a view that many have expressed—we have sought to modernise the ISDS clause to protect the state. Several noble Lords have mentioned TTIP and CETA. Although this agreement was made before they were, it contains many of the items raised in relation to TTIP. We cannot replicate the TTIP clause—not least because the TTIP clause does not exist. In fact, there is some debate in the EU whether there will ever be an ISDS clause in TTIP. I think that there may well be.
I would like to go through some of the protections in the treaty. First, it excludes shell companies from investment protection. That is important because some of the more egregious uses of ISDS clauses between third-party countries have been through the use of shell companies. There are also measures to prevent vexatious or frivolous claims. The scope of what is deemed to be fair and equitable treatment is limited; that is important. Indirect expropriation is explicitly defined; I will mention that later in relation to public policy matters. Investors must pursue resolution through the domestic legal system first for six months before submitting the claim. Having read through the treaty again, it aims to cover many of the issues raised.
Taken as an overall package, this is designed to discourage speculative claims. The Colombian Government and the UK Government negotiated it at some length. Investors should rightly have grounds for a claim if they have suffered discriminatory and genuine mistreatment. It has been used in other countries in that manner. By prioritising domestic resolution, ISDS itself would represent a last resort.
The noble Lord, Lord Alton—and, I think everyone else—raised issues about human rights. Of course, in Colombia, this issue is complex and difficult. The Government recognise the progress that the Colombian Government have made in tackling human rights issues, but clearly they are not there yet. There are still challenges and more that can be done to improve the situation in Colombia, especially for human rights defenders, victims and land restitution claimants and to prevent sexual violence. The UK Government will continue to discuss the matter and raise it with the Colombian Government.
The continuing armed conflict is one of the major issues—
Lord Alton of Liverpool
Before the Minister leaves that point about monitoring the situation, several noble Lords suggested having a formal mechanism in the department and within the Foreign and Commonwealth Office to log each year our assessment of human rights in Colombia and how they are being impinged on by business interests. Will he do something more formal than simply saying that it is an issue that concerns the Government?
Lord Livingston of Parkhead
I was going on to talk about the FTA, which covers a number of human rights issues and discussions. I will discuss with my colleagues in the Foreign Office the monitoring and reporting of human rights in Colombia as a more general issue. It is clearly one area of the world—regrettably, there are many—which has been a challenge.
The armed conflict is one of the main sources of the problems in Colombia. Like the noble Lord, Lord Monks, I support the efforts of the Colombian Government to find a solution through a negotiated peace process. Three or four months ago, I was in Colombia and had discussions with the Colombian Government. I do not doubt their genuine approach to finding a peace solution. In many cases, they will have to take some of the people of Colombia with them during this process. Some have made the corollary with some of our efforts in Northern Ireland and there is, of course, a lot of hurt over the years to make up. I hope that they make progress, which would lead to a number of better solutions.
The UK Government take a balanced approach. We realise that there are problems. It is very important to recognise the progress and effort of this Government in Colombia. They have made significant progress and we will continue to urge them to make further progress. We will also raise specific issues, and will urge that appropriate investigations take place and that protection measures are afforded.
The noble Lord, Lord Alton, and others raised land reform. We do not agree that the treaty presents a threat to Colombia’s land restitution programme. As noble Lords know, under the programme, businesses can lose their land, or have to pay compensation, if they cannot prove they undertook due diligence to ensure that the previous occupants were not forcibly displaced. However, in practice, the risk of a business owned by a UK investor losing land or having to pay compensation appears to be small. Very few businesses appear to be losing land and we are not aware of any claims against British businesses under the programme.
I support the concerns expressed by the noble Baroness, Lady Hooper, and the noble Lord, Lord Alton, and others that it is very important for British companies to observe international standards, such as those set out by the UN and the OECD. That is reflected in the EU-Colombia FTA, signed in 2012, which is much more the current state of the art. It contains significant commitments relating to human rights, labour rights, environmental protection and sustainable development. The Government also have an existing dialogue with the Colombian Government on these matters.
In view of this, reopening the treaty negotiations would be somewhat superseded by the EU-Colombia FTA. It would lead only to an unnecessary delay in bringing the treaty into force. I must stress that the treaty would be good for Colombia as well as for the UK. I do not believe that reopening the negotiations would add value on human rights. I am also unclear whether an investor could make a claim under the treaty that is in a way detrimental to human rights. The Government are not aware of any cases involving UK investors under any of our 94 treaties.
On the contrary, it is arguable that any state actions which may breach an investment treaty by harming an investor are more likely to damage local communities given the economic benefits, including employment and generating tax revenues, which stable, responsible—I believe that UK companies are responsible—foreign investment delivers.
Environmentally, Colombia is one of the top ecological hotspots in the world. I think that the noble Baroness, Lady Hooper, also mentioned Brazil. I thought that there would be nothing better perhaps than to read the clause relating to the environment in the bilateral agreement, which states:
“Nothing in this Agreement shall be construed to prevent a Party from adopting, maintaining, or enforcing any measure that it considers appropriate to ensure that an investment activity in its territory is undertaken in a manner sensitive to environmental concerns, provided that such measures are non-discriminatory and proportionate to the objectives sought”.
That seems like a reasonably balanced approach to environmental concerns.
In a similar way, on public interest concerns, the same issues have been raised in relation to TTIP. In relation to indirect expropriation, which usually is the basis on which people worry about these clauses, the agreement clearly states:
“For the purposes of this agreement, it is understood that … non-discriminatory measures that the Contracting Parties take for … public purpose or social interest … including for reasons of public health, safety, and environmental protection, which are taken in good faith, which are not arbitrary, and which are not disproportionate in light of their purpose, shall not constitute indirect expropriation”.
I am struggling to understand some of the claims that have been made regarding this treaty. It is a modern addition to historic bids and ISDS. As I said, it was debated between the individual parties. While events in some ways have overtaken it with the FTA, the UK-Columbia investment treaty is still an important milestone in the development of our wider trade and investment relationship. The growth and success of Columbia on a wider scale will be important. It was negotiated and supported by the democratically elected Government of Colombia. It will encourage UK investors to do further business in the region that will be to the benefit of the Colombian people. It will contribute to Columbia’s economic development through the benefits that increased levels of investment will bring. I strongly believe that we should welcome it and the benefits and safeguards that it will bring to the people of both countries.
The Deputy Chairman of Committees
The Question is that this Motion be agreed to—
Lord Stevenson of Balmacara
I think that we might have made a small technical error in procedure. I want to say a few words in response and draw a few things together. I am sorry if this is confusing. I am new to this as well as everyone else, and I am looking round for somebody with expertise in this area .
If I may, I shall make a short statement. Let us restart: it is like being in the film “Groundhog Day”, when we keep coming back to the same point, except that we have not. I thank all speakers for their contributions. The knowledge and expertise that has been displayed has been very good and appropriate for the debate. I also think that it is important to recognise that we had Conservatives, Labour Members, Cross Benchers and Bishops representing us, so all aspects of the House have been recorded. The unanimity in what was being said was remarkable. I acknowledge that we are in a situation that is slightly perverse in the sense that the treaty has already been enacted and we are not in the position of asking the Government to reconsider it.
However, some points might be taken forward for future debates and I want to come back to that at the end. We are all very concerned about the way in which human rights need to feed into these treaties nowadays. There are reasons why it did not happen at this stage, but I do not see why that should necessarily be the case going forward. It is also the case that the FTA contains a significant proportion of human rights issues, but that was an EU treaty and not an individual country-to-country one. Therefore, the message is there for the Minister to take back that in future this House might expect to see a stronger and tougher section on human rights.
I thought that the point about corporate social responsibility and the need to build on that was very well made by the noble Baroness, Lady Hooper; we should record that as something that should go forward. Specific important issues in relation to this treaty were touched on in terms of reporting and because of the current situation with FARC. The noble Lord, Lord Alton, made a good point when he said that the sentiment and rhetoric on display today should be matched by concrete words. That is an important point. The Government are not quite in the same place as the sentiment in the House in relation to how we reflect concerns about ISDS and human rights.
The noble Lord, Lord Monks, was right in saying that the wording is rather awkward in relation to the situation that we see on the ground, particularly in relation to the number of people who are dispossessed from their historic rights to land. The only response we got from the Minister was that he understood our fears but thought they were overstated. I do not think that that cuts it. If he is going to rely on the fact that ISDS is merely a fall-back, and that the right solution to disputes arising from these treaties is to strengthen the domestic legislative processes, we also need to know what the Government are doing to help that. He did not say that, and it is an important point.
Although, as I have said, human rights issues were not in play in such a position in 2008-09, when this treaty commenced, they certainly are now. It seems a curious logic to say that there will be sufficient other activity going on when the wording already exists in the FTA and could be used in future. I hope the Government will give us a firm commitment at some point in the appropriate way to take this issue forward, so that we have a set of words which mean what they say in relation to our commitments—shared around the House—to human rights in these areas. This is especially where there are particular circumstances that are being discussed with FARC.
Having said that, this Motion was an attempt to get a debate and discussion, which it has succeeded in doing.
Channel Tunnel Security Regime
Lord Berkeley
To ask Her Majesty’s Government whether they have plans to set up an independent review of the Channel Tunnel security regime to consider whether it is proportionate and appropriate to current threats and risks.
Lord Berkeley (Lab)
My Lords, I am grateful for the opportunity to have this debate on Channel Tunnel security. I make no apology for it. Although subjects such as the threats and other security issues should probably be confidential, the issues of implementation, proportionality and others that I shall speak about can benefit from some debate. As background, I declare an interest as chairman of the Rail Freight Group and I worked on the development and construction of the Channel Tunnel. It opened 20 years with airline-type security arrangements, which at the time was probably the only model around. Now is the appropriate time to review this, because new operators and services want to start but are often held up because of security, immigration or technical issues. All these need discussing, but I shall concentrate today on security.
I welcome the fact that the UK and French Governments recognise the need to formalise the security arrangements so that all operators know what to expect. I was pleased to attend a meeting in Paris two weeks ago to discuss this idea with the two Governments’ representatives, who were about to publish something called a declaration of intent. It is useful that they are consulting the industry but they are not really looking at change. They are seeking views on whether they should carry on with the same thing they have done for 20 years and although they talk about proportionality and necessity, they do not always get there.
For background, the traffic through the tunnel comprises: Eurotunnel’s own shuttle services for cars, lorries and coaches; rail freight, with two operators at present; and through passenger trains by Eurostar, with planned services by the London Sleeper Company and German Railways. The two Governments state in their presentation of this declaration of intent that security measures must be practical, proportionate, effective and sustainable. I would agree with them on that but when you get into the detail, it is not what is happening at the moment and I do not think that it is what they intend to happen in future. They are rightly seeking to protect the infrastructure of the tunnel and the people using it but seem to be ignoring proportionality as well as the commercial reality for operators which, faced with very high costs, often decide that they are not going to try to run services at all—because they are just not viable with these costs.
The declaration of intent discussed various threats, and I shall concentrate on two—bombings and what they are pleased to call “marauding active shooters”, meaning people with guns. Some of these affect infrastructure, some people, and some both. I suggest that the level of checks between the different modes of transport through the tunnel, and compared with other rail tunnels, is very inconsistent and certainly not proportionate.
Regarding damage to the infrastructure, when I was helping to build the Channel Tunnel we worked out that it would need a 40-tonne bomb to make a hole big enough to get the sea in. You cannot carry that in a suitcase. If that is what they are trying to protect, there is no point in checking every suitcase because you are not going to catch that bomb. That kind of a bomb would have to go in a lorry shuttle or a freight train. So it is odd that only one in three lorries are checked before they get in the tunnel, whereas freight trains at the moment have 100% checks twice—that is, six times more checking than lorries get. What is the justification for the difference? I think we should be told. We then move on to people—or small bombs and shooters, as they call them. Why are 100% checks done on all the passengers and luggage on Eurostar, when one car in five is given a cursory check on the shuttle? Do we really believe that Eurostar passengers are more likely to have a shoot-out than those on a car shuttle?
I would look at proportionality even more closely in comparing the Channel Tunnel with the trains on the Métro and Underground. We were told in Paris that there was a big difference between trying to shoot one coach full of Eurostar passengers and one coach full of shuttle passengers. That seems pathetic to me; it is the same nasty result. But when you compare it with the Underground or the Métro, when was the last shooting on either of those? There was a shooting incident on the Paris Métro on 20 July, when the police chased somebody. In the UK, there was that very nasty incident when the Metropolitan policemen shot a Brazilian in the Tube. We have not had any in the Channel Tunnel. We could be told that that is because of security, but should we really accept that? The logical consequence is that everyone on the Underground should be checked 100%. Of course, we are told that it is not practicable to do it on the Métro, because it would stop people using it, but that it does not affect passengers much on the Channel Tunnel so we will do it anyway. That is the problem: it does affect passengers and the economy of the businesses. I have not had an answer as to why passengers in the car shuttles should be treated differently from Eurostar passengers. If you carry a gun in a car shuttle, presumably you will not be checked.
The key for me is the viability of the longer distance services, with German Railways coming from Frankfurt—I have talked to them often—as well as the Eurostar from Amsterdam and Marseille. The London Sleeper Company is planning to go to Frankfurt, Zurich or Milan overnight, with a high-speed, double-deck sleeper. However, you cannot introduce those security regimes for people coming back into the UK at every one of the stations that the trains might stop at. The solution adopted so far is that when you are going out to Marseille or Amsterdam, or wherever, you get checked at London and that is no problem. But coming back in, at the moment, the only solution is for everyone to get out of the train at Lille or Brussels. They hump their suitcases upstairs through security and board another train one and a half hours later. All that time is lost in their journey, which results in many more people booking tickets going out than coming back, but that is not the answer. For rail freight, additional stopping at + for a second check probably costs well over £1,000. That is disproportionate.
The worst thing is that this regime requires even catering trolleys on the train to be within a secure environment. But there is no secure environment for catering trolleys on First Great Western trains going through the Severn tunnel. They still go through a tunnel. I am sure that all operators look after these things but why do we have to have this enormous bureaucracy of checks? Is it proportionate? It is having serious and adverse effects on the provision of new and existing services, on the costs to the operator and on the hassle factor for passengers.
In commercially damaging the operators, we are cutting ourselves off from the kind of high-speed rail travel that is seamless across the rest of Europe. Governments, and this Government in particular, like high-speed rail—except, apparently, when they try to make it as inconvenient and difficult as possible through the tunnel. The bureaucracy is stopping competition and is anti-competitive. I hope that the Government will recognise that this is all a bit embarrassing for them. A sustainable expansion to the international rail market is not being supported. This raises questions about whether the precautions are proportionate and what can be done in the future. What new ideas are there?
The Channel Tunnel apparently is seen by the Government as of high value for terrorists. They cite loss of life and the economic damage that the tunnel closure would cause, as well as the PR value. But one must remember that the Channel Tunnel has been closed, either in part or fully, several times since it opened—not for terrorism but because of fires, breakdowns and so on. The sea will not come in, although there may be damage to the infrastructure from the kinds of bombs and things that we are talking about. But it would not be closed for more than a few days—not even for that long, I hope—which is the kind of thing that would happen if the Victoria line was closed.
In preparing for this debate, I talked to many experts in the industry. Their worries concern why the Government are engaging with them for new ideas as to what needs to be done and how. The general feeling is that the threat posed by terrorists to the infrastructure and rolling stock in the tunnel is much overstated. Therefore, it is reasonable to ask fairly basic questions. Are the current security measures really necessary and proportionate? Is it necessary for a regime to be as secure as it is? It is not in the long Swiss tunnels, some of which are even longer. Can the security measures, if needed for international rail, be achieved in a different way? There are many ways of doing it. Does the present regime provide a real-world security benefit? While agreeing that the regime needs to ensure passenger safety and the integrity of the tunnel, many in the industry believe that it has parts which are superfluous. There is a lack of critical assessment on the security regime from the industry, which questions its motives—so do I, as I hope that it is not jobs for the boys—and the impact on growth and on alternative proposals.
While the present declaration of intent is a good start, its vision is much too narrow. It does not involve the operators to any real extent; it just tells them what is to happen. It does not provide any justification for applying different rules, compared with metros, the Underground, Channel Tunnel shuttles and through services, or look separately at the threat to infrastructure and people. It does not really seek to justify its requirement; it just pays this lip service to proportionality to provide some justification for what it wants to do anyway.
The key must be to involve the industry in a meaningful way. You can hide behind the need for confidentiality; I said at the beginning of my speech that of course this is necessary for intelligence information. There is also a need for that to be assessed independently to avoid the criticism of creating policies for job creation. However, when it comes to dealing with the threats in different ways, the involvement of the industry is surely critical. The current regime adds costs and therefore makes the UK less competitive. This applies to passengers and freight traffic. It stops better high-speed connections for London and beyond and makes rail less competitive with road and air, which contravenes both government and EU policies.
In conclusion, I urge the UK Government, along with the French Government, to set up a joint independent inquiry into Channel Tunnel security to answer the questions that I have posed and assess the need for proportionality and the options for change, so that the UK economy is no longer adversely affected by unnecessary controls and costs. It should be independent of the current structure and involve operators, customers and others in its deliberations. Finally, it is worth reminding the French Government that the tunnel is very important for the UK economy—it is very much less important for the French economy—and that any issues to do with competition, anti-competitive practices or rules for the sake of reducing traffic should be avoided.
Lord Bradshaw (LD)
I am pleased to speak in support of the noble Lord, Lord Berkeley. I am very concerned about the competitive issues involved in this debate. I am not given to being anti-European or anti-French but it seems that this is one case where the British Government have tried to get some sort of inquiry going—one that I hope, as the noble Lord, Lord Berkeley, said, will take in industry views—but have been met with, shall we say, a slightly straight bat by the French to the extent that nothing is happening.
The Channel Tunnel is now getting on in years, like me, and it is time that the operating regime, whatever it is, was reviewed. A number of people in the passenger and freight industry want to run trains to Europe. Unfortunately, France has created what one could almost call a cordon sanitaire or moat around their end of the tunnel, which makes it extraordinarily difficult to negotiate for the operation of the necessary through trains. Those of us in the industry who went to St Pancras about two years ago all saw a beautiful new German train that people in the industry wished to introduce into service from Frankfurt, Cologne and Amsterdam, et cetera. There is no doubt that there is a market there, but that market is being considerably obstructed.
Who is making that obstruction? I can say only that it is the Anglo-French bureaucracy. It is not, I believe, about valid security considerations; as the noble Lord, Lord Berkeley, has demonstrated quite cogently, those considerations are considerably overplayed. Eurotunnel, which I think is almost all French-owned now, seems to apply a different set of rules to the shuttle services that it operates, which convey lorries and people in their cars through the tunnel, from what is applied to railway services, which are mostly operated by other people but which the French could operate if they wished. They do not seem to have the commercial imperative to make the railway business in France competitive and are losing market share in many segments.
I am sorry to end on a slightly sour note about Anglo-French relations, but it really is time that someone did something about it. Let me make a suggestion that will be very unpopular. We are about to launch a franchise competition in this country in which Keolis, which is wholly owned by the French state, will bid to run one of our major passenger franchises. I do not see the logic of allowing free competition in that respect—although I actually support it—if there is no reciprocation on the part of Paris. It really is time that we got a move on.
Lord Rosser (Lab)
My Lords, first, I thank my noble friend Lord Berkeley for providing this opportunity to discuss the Channel Tunnel security arrangements. My noble friend raised some serious issues about the balance between security needs and the need not to dampen the growth of traffic through the tunnel. I will refer to the issues that he raised, but I also want to take the opportunity to raise other issues concerning Channel Tunnel security with the Minister.
The Channel Tunnel’s current security arrangements are governed by the Channel Tunnel (Security) Order 1994. That requires passenger and infrastructure operators to put in place a security regime, including the searching of passenger and freight trains before they enter the tunnel, and it empowers the Secretary of State to order additional searches and checks. The operators are responsible for the day-to-day delivery of security, but the Department for Transport’s compliance officers ensure that the statutory security arrangements in place meet the statutory requirements and standards. They do that through regular monitoring and testing.
The current approach to land transport security in the UK as a whole is regarded as being risk-based, with any security measures deployed being proportionate to the current threats to which each transport sector is exposed. In evidence to the House of Commons Transport Committee, the Association of Train Operating Companies said that three factors needed to be balanced: cost versus benefits of security measures; the practicality of security measures that are both workable for the industry and acceptable to the travelling public; and the balance between technology and human activity. ATOC also said on assessing risks that, ultimately, the rail industry took its guidance from the security services on where the risks are greatest and what form they take. As I understand it, the risk-based approach also applies to the cross-border Eurostar and Eurotunnel operations and thus, presumably, in respect of the Channel Tunnel security regime. No doubt the Minister will clarify that point in his response, in the light of the comments made by my noble friend Lord Berkeley and the noble Lord, Lord Bradshaw.
The Channel Tunnel’s general security regulation is overseen by the Joint Security Committee of the Channel Tunnel Intergovernmental Commission, which is advised by the Channel Tunnel Safety Authority. The UK and France jointly nominate the members of all three bodies. Passengers travelling through the Channel Tunnel on Eurostar are currently subject to Home Office passport controls both in this country and at the start of their journey in France or Belgium. In 2011, the BBC, I think it was, reported that some passengers were exploiting a security flaw, which I think went under the name of the Lille loophole, whereby passengers could book a ticket from Brussels to Lille and then travel on to the UK without being subject to passport checks.
Passport checks were adversely commented on by the chief inspector responsible for border and security arrangements. He indicated that some progress was being made in dealing with this loophole. I believe—though I may be wrong—that we have now reached the situation where the Lille loophole has been plugged. Passengers travelling between Brussels and Lille now do so in a sealed carriage, I believe. I understand that this arrangement came in from the middle of this year—that is, about the present time. However, it would be extremely helpful if the Minister could confirm the situation about this loophole and whether it has been sealed. Even if this is the case, will the Minister explain why it apparently took the best part of three years to close it? What measures have been put in place to ensure that any similar loopholes can be dealt with more quickly once they are discovered?
The lessons learnt from this affair should be applied to any future international services. In that regard, Deutsche Bahn has long-standing plans to run trains from St Pancras to Amsterdam and Frankfurt, which would give passengers a choice between two international passenger operators. Two years ago, the Government said that the UK and France were working well with Deutsche Bahn to ensure that comparable security measures would be in place in the Netherlands and Germany. Will the Minister indicate what has been achieved on this issue over the last two years?
The Land Transport Security Division of the Department for Transport is responsible for counterterrorist security in a number of areas, including the Channel Tunnel and international rail services. In its response last year to the House of Commons Transport Select Committee’s report on land transport security, the Department for Transport said that a new body, called the All States International Forum—ASIF—had been created to bring together ministries responsible for transport security from all states that already host Channel Tunnel services or are likely to in future. The purpose was to facilitate intergovernmental liaison on matters relating to the security of the Channel Tunnel and services that might operate through it.
As I understand it, ASIF met for the first time in March 2013 and included representation from the UK, France, Belgium, Germany and the Netherlands. Will the Minister give an update on what has been discussed and determined at ASIF meetings, indicate how many times it has met since last March and say what the value of our involvement has been to the UK? Does the Minister agree that one of the lessons from the Lille loophole is that close co-operation should be maintained with the police and immigration authorities of other nations, not just the transport operator? If he agrees, is the All States International Forum geared to delivering this?
Earlier, I referred to the Independent Chief Inspector of Borders and Immigration. He has been critical of the lack of fingerprinting of illegal immigrants in Calais, for example. The chief inspector said that he found it surprising that people caught attempting to enter the UK concealed in freight vehicles—the figure runs into thousands—were not fingerprinted by the Border Force, since gathering biometric information such as fingerprints could assist in the decision-making process if such individuals were ultimately successful in reaching the UK and went on to claim asylum. What is the Government’s position on the issue of fingerprinting in the light of the chief inspector’s comments?
In the coalition agreement, the Government committed themselves to introducing exit checks by the end of this Parliament through the e-Borders system. In April 2012, the then Policing Minister said that the system was very close to covering 100% of flights coming from outside the European Union. However, the head of the UK Border Force has now told the Home Affairs Select Committee that the project has been terminated. Can the Minister confirm whether that is the case and, if it is, say when the ministerial announcement was made to that effect, what the cost was of terminating the e-Borders project, how exit checks will now be implemented by the end of this Parliament and whether they will cover international rail passengers travelling through the Channel Tunnel?
As I understand it, freight is not planned to run on HS2, but the Government’s recent response to the HS2 growth report was to say that they had ensured that the design of HS2 does not exclude its use for freight traffic. If HS2 was adapted for carrying freight, have the Government given any consideration to what additional security measures would need to be put in place at depots if operators wished to run freight services via HS2 and then the Channel Tunnel?
In the Government’s response published on 31 March this year to the House of Commons Transport Committee’s report on land transport security, reference is made in paragraph 13 to a wider review of the national rail security regime. It appears that that wider review commenced in January of this year. It is not clear from the Government’s response to the Select Committee report whether this wider review is confined to the important issue of security training for staff or whether it covers all aspects of security and security regimes. Therefore, will the Minister say something about the review, its terms of reference, who is carrying it out and when it is expected to report? Is it looking at the issues and concerns raised by my noble friend Lord Berkeley? The Secretary of State has reportedly said that a decision on the inclusion of “international facilities” at HS2 stations has been postponed until the conclusion of the study into the options for improving the connections between HS2 and HS1. Will the Minister say whether that is the case, as it is obviously relevant to the points raised by my noble friend Lord Berkeley?
To conclude, the Channel Tunnel is an important national asset, but it remains underutilised. Two years ago, the Department for Transport said that it was essential that any security measures deployed across the transport sector were proportionate, practicable and sustainable. With that objective in mind, the Government need to ensure that existing security measures are effective and properly enforced and that there are no unnecessary or excessive barriers to the growth of passenger and freight traffic.
Lord Popat (Con)
My Lords, I am pleased to address this Question for Short Debate which the noble Lord, Lord Berkeley, has secured on whether the Government have plans to set up an independent review of the Channel Tunnel security regime to consider whether it is proportionate and appropriate to current threats and risks. I am grateful to him and to the noble Lords, Lord Bradshaw and Lord Rosser, for their thoughts on this very important issue.
Security is a delicate issue to debate, as there are matters touching on the precise nature of the security regime that covers the Channel Tunnel that cannot be discussed in too great detail for obvious reasons. It might be helpful, however, if I put into context, as far as I can, the very serious threat we continue to face in the UK and the West generally from international terrorism.
We know from sad experience through events such as the 9/11 attack on the World Trade Center in New York, the Madrid train bombings, the London Underground suicide attacks and the liquids plot associated with transatlantic flights, that terrorism exists not just in the UK but internationally. We know also that al-Qaeda and its affiliates have aspirations to cause mass casualties and economic damage that have political and psychological impact. We also know that transport systems are attractive targets for the terrorist because they fulfil those aspirations. As a result, Governments have had to make a variety of adjustments in transport security regimes to reduce the risks of attack and to protect the travelling public, but with each adjustment comes a desire from the terrorist to be ever more innovative. New methods of attack designed to circumvent the systems in place are clearly demonstrated, with the recent changes to aviation security. For example, in America there is now a requirement to see mobile phones as well as laptops.
Twenty years ago, when the Channel Tunnel, one of the most costly and ambitious civil engineering projects of the 20th century, was opened, the main terrorist threat came from the IRA, whereby we had to contend mainly with protecting against vehicle bombs and hidden devices. Islamist terrorism has since emerged, with perpetrators willing to die for their cause; hence we have seen suicide bombings on the London Underground and 9/11, where aircraft were used as missiles, as well as the marauding active shooters in Mumbai and Nairobi. We have also seen terrorists attempting to use more subtle and novel methodologies to achieve their aims, including by liquid explosives and the shoe bomber, to give a few examples.
The Government have to be able to counter in a proportionate way all relevant risks and attack methodologies. Hence we take intelligence-based advice and analysis from an independent body, the Joint Terrorism Analysis Centre, and tailor security regimes to address new and emerging risks, as well as making sure that existing risks are mitigated. The threat from international terrorism continues and currently the threat to the UK is assessed as substantial, meaning that an attack is a strong possibility. We, as a responsible Government, must take note of the intelligence picture, standing ready to protect our citizens and infrastructure.
The security measures in place are tailored to the mode of transport operating through the Channel Tunnel, which explains why there are differences between Eurostar, passenger and freight shuttles and rail freight. That requires balancing convenience to travellers and business against security. It is not an exact science but, as there have been no successful attacks associated with the Channel Tunnel, we can take that as an indication that the security regime is sufficiently robust to deter and prevent acts of violence. In view of that, the measures would seem to be proportionate and appropriate, but we cannot be complacent.
It has been argued by some that there is no difference between the Channel Tunnel and London Underground, where security is less pronounced. Contrary to that view, the Government believe that there are a number of significant differences. Following the 2005 attacks on the Underground, Government considered the introduction of security screening measures to protect the travelling public, but found it nearly impossible and impractical do so for mass transit networks. As we saw in 2005, there were many alternative routes and modes available for travellers. Furthermore, any incident in the Channel Tunnel could potentially be 25 kilometres from the exit, making quick assistance difficult in the event of a bomb attack. That is further complicated in the event of a hostage or firearms attack, when intervention would be necessary. Unfortunately we know from experience the impact and disruption a fire in the Channel Tunnel can cause—that was without any casualties—and the psychological trauma an incident underground and below the Channel would have.
I also remind the Committee that the matter of the Channel Tunnel’s security is not just a UK responsibility. The fixed link straddles British and French territory. For that reason, both countries share responsibility for its defence and security. We must work together to protect the fixed link and the measures should reflect the terrorist threats that are relevant to both our countries. In that pursuit, the two Governments liaise regularly on issues relating to its continued protection. The security regime cannot be effective without joint consideration and comparable security measures on either side of the tunnel.
I am conscious that the noble Lord has an ambition for the tunnel to be utilised to its full potential and to make sure that our security is proportionate. We do not see security as a barrier to having other operatives operate within the Channel Tunnel. If we look at the figures, they do not support an argument for a review of the security. With traffic numbers on the increase, the Government recognise that economically, growth in this area is very important to the UK. We keep security measures under constant review to ensure that they remain proportionate and encourage growth. We have actively engaged with new operators on security to ensure that they understand what is expected of them. In those discussions, we have recognised the need for a flexible approach in the security requirements but they must be able to offer a similar level of protection as exists now.
The noble Lord, Lord Bradshaw, spoke about Anglo-French relations. I am pleased to say that we have regular discussions with our French colleagues and operators. Earlier this month, through the Channel Tunnel joint security committee, the UK and French Governments invited stakeholders—including the noble Lord, Lord Berkeley, in his capacity as chairman of the Rail Freight Group—to preview a joint document that updates previous guidance on security and is referred to as the declaration of intent. This sets out the security requirements considered necessary by both Governments to protect the Channel Tunnel and those using it. It is an important document which recognises the need to be flexible in future, with the potential expansion of the rail passenger network beyond France. It would not be appropriate, for instance, with single services per day, to insist that permanent infrastructure be provided or that specific security equipment be used. We support proposals to use new technology that can improve the passenger experience and provide similar levels of security. At the meeting, stakeholders were given an opportunity to make some initial comments about the declaration of intent and the plan is to issue the joint document for formal consultation. The two Governments will of course make adjustments to it, where they see that there is merit to do so.
The Government must take security very seriously: this includes any terrorist threat to transport, including the Channel Tunnel. By keeping the threat and security measures under review, and planning jointly to consult stakeholders on revised guidance later in the year, the Government’s view is that the security regime in place is both appropriate and proportionate, providing the correct balance between protection and ease of use. The Government therefore see no need to carry out an independent review of the Channel Tunnel security regime.
A number of questions were raised during the debate. Let me first cover the issue raised by the noble Lord, Lord Berkeley, on whether the security measures are proportionate, practical and necessary and about the options for change, since nothing has really happened in the last 20 years. I say to the noble Lord that the requirement for passengers’ vehicles and goods to be subject to security and screening measures is an appropriate and proportionate response to the nature of the threat. The noble Lord, Lord Rosser, also raised the issue of balancing the inconvenience to travellers and business against security and costs. The current measures are necessary to ensure the safety and security of the travelling public and to provide an effective deterrent, together with other safety and security measures, to those who may seek to undertake an attack against passengers or infrastructure. The terrorist threat levelled at all modes of transport infrastructure remains under regular review. We review that on a regular basis and have discussions with our French colleagues.
The noble Lord, Lord Rosser, raised the risk-based approach as applied to Channel Tunnel services. It is best if I write to him. He raised a number of issues, including trains to Amsterdam and the security measures that there will be, and co-operation between the police and immigration officers.
Lord Rosser
It is perfectly acceptable for the Minister to write to me on the questions that I have raised.
Lord Popat
I will certainly be happy to write to the noble Lord on a number of his concerns, including, in the light of the police commissioner’s comment, what the Government are doing about fingerprinting. We should take that seriously, although it is an issue for the Home Office rather than for the Department for Transport. I will ask officials to take this matter to the Home Office, which will give an appropriate response.
HS2 is an exciting project for the whole Government and the whole country. The noble Lord, Lord Rosser, referred to freight traffic tracks and I will address that. Freight traffic is an expanding business and we want to make sure that we have the right capacity to help to have increased freight traffic.
Lord Berkeley
I thank the Minister for his comments. Perhaps he would also write to me in response to some of my questions. He compared an incident in the tunnel with an incident on the London Underground, as well as the fear of passengers in the tunnel compared with the fear of those on the Underground. The Channel Tunnel Safety Authority is looking at evacuation from the Channel Tunnel into a separate service area. When considering people in the deep Tube having to get out one by one and climbing down into a dark tunnel and onto the track with four rails, I suggest the Channel Tunnel is a great deal safer than the Underground. I do not think that that is an argument for saying that there should be a different regime. Perhaps the Minister will write to me on that.
Lord Popat
Certainly, I will write to the noble Lord, Lord Berkeley. We cannot compare the Channel Tunnel with the Underground, other than that they both take passengers. Where the security threat level is raised, the security response can be increased. With the number of people using the Underground, it is very difficult to set the security standard that is necessary. Current security measures for the Channel Tunnel are considered to be proper and proportionate, so the Government see no need to have an independent review. Having said that, I certainly will take the noble Lord’s questions into account and will give an appropriate response.
Music Education for Children with Physical Disabilities
(10 years ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Lipsey
To ask Her Majesty’s Government what steps they will take to encourage music education for children with physical disabilities.
Lord Lipsey (Lab)
My Lords, I remind noble Lords that I chair the All-Party Group on Classical Music and that I am chair of the Trinity Laban Conservatoire of Music and Dance. I thank noble Lords from all four quarters of the House for having stayed on, eating deep into their well deserved Recess, to show that they recognise the utmost importance of the subject that I am raising, albeit for a relatively limited number of people.
The pianist Paul Wittgenstein—brother of the philosopher—had an arm amputated in World War I. He subsequently approached all the best contemporary composers seeking works that he could play. That is why we are blessed with Ravel's Concerto for the Left Hand. By a remarkable coincidence, that wonderful concerto figures in the BBC Proms tonight, played by Alexandre Tharaud, although it is perhaps unfortunate that he is a two-handed pianist and the concert is introduced by the British professional one-handed pianist Nicholas McCarthy.
This is by no means the only piece of left-handed piano music. There are, for example, Godowsky's 53 transcriptions of the Chopin études for the left hand. Hearing is believing. I recently heard the extraordinary Goan-born pianist Karl Lutchmayer in Alkan's fantasy for the left-hand. It is to Karl that I owe the insight that in one way the piano is better played left-handed as the top fingers in the left hand are strong fingers—the second finger and the thumb. In the right hand, they are weak fingers—the little finger and the fourth finger—which do not sing out as clearly as the stronger fingers would.
Sadly, the piano is one of the few instruments that can be played left-handed. My wife, who has only one functional arm, is confined to singing, as she does with gusto, in a choir—perhaps she should join the noble Lord, Lord German, in the Parliament Choir—but she could not play an instrument even if she wished to because she has the use of only one arm.
The lack of instruments excludes from music any youngster with disabilities affecting the arms in particular, although there are other disabilities that need to be catered for. The Government grandiosely declared in The Importance of Music: a National Plan for Music Education in 2011 that every child should have the opportunity to learn an instrument and progress to musical education. Perhaps he had not read about this debate, but only last week, Nick Gibb, the responsible Minister said:
“No children should miss out on the inspiration and excitement that music can bring to their lives”.
Amen to that, but the people who penned those sentences had not really given any thought to children with disabilities, who are wholly or mostly excluded from this.
This is a curious omission. No one doubts the importance of music in education for people facing mental challenges. Examples abound of children with profound learning difficulties where music provides a vibrant way of connecting them. They respond to it like nothing else on earth. We would not tolerate for an instant an education system that said that children with disabilities should be excluded from sport—certainly not in the light of the Paralympics and what they see from Glasgow this week. However, nobody seems to give a thought to physical handicap and music.
Clearly, one obstacle is the lack of musical instruments which can be played with limited arm capacity. The violin, for example, provides obvious difficulties. I want to draw attention, as mine was drawn, to the work of a wonderful small charity, the One-Handed Musical Instrument Trust. Among other things, it runs a competition for inventors of one-handed instruments. For example, in 2013 it was won by the toggle-key saxophone built for a stroke survivor. This has the full facility of a saxophone but is played with the fingers of one hand. There are one-handed recorders. I think there is a one-handed flute and I read somewhere that there was a one-handed French horn player somewhere. The OHMI is also collaborating with researchers on electronic musical instrument developments to ensure that disabled musicians can take part in a full range of music-making. Maybe one day there will be a one-handed violin, although it will be a digital one-handed violin.
Such instruments can be expensive, although not as expensive as a Stradivarius, I may say. A toggle-key saxophone costs about £15,000. First, not many people would need those instruments, so we are not talking about a huge expense. Secondly, as the number ordered goes up, the price goes down. Indeed, I think that that is happening with one-handed recorders, for which there is a certain demand. We need to invest a bit in teachers. I know that HMI is developing a plan for a national teaching project in the use of those instruments.
So an attempt is being made at progress, but the real problem behind all the concrete problems that I have identified is one of awareness. If no one knows or thinks about the problem, nothing much will be done about it. We know that music education faces serious challenges. Following the admirable Henley report and the emergence of music hubs, there was a surge of optimism, but provision has turned out to be patchy, at best. Needless to say, and without being a cracked CD disc, cuts in money are real obstacles. However, the £18 million extra for music education announced by the Government last week is very welcome, and a small fraction of that could do wonders for young, disabled would-be musicians.
That is not the only way that Ministers can help with this unique challenge. I am not asking the noble Lord, Lord Nash, for a blank cheque, nor for promises of legislation, nor even for a White Paper or a consultative document; nor that the new Education Secretary casts aside her responsibilities to tour the country crusading on behalf of this single objective. However, I ask the Minister to affirm that this is something of which the Government are aware; I ask for a strong statement that the Government recognise its importance; and I ask for a commitment by Ministers and their officials to raise it as part of their work in propagating music education.
If there is one thing worse than wrestling with an intractable problem, it is wrestling with an intractable problem when the world does not seem to know or care. The Minister has an opportunity to put that right today.
Lord Jenkin of Roding (Con)
My Lords, I am delighted to follow the noble Lord, Lord Lipsey. I am sometimes inclined to refer to him as my noble friend, because we work together on a number of issues, not least the all-party group to which he referred. I will refer to what he said, but I must begin by congratulating him on the timing of this debate. As he pointed out, it was only last week that the Government announced a substantial increase in the funds for musical education. He made the point that part of that fund might be used to provide for handicapped children.
As was reported by that admirable body, the Incorporated Society of Musicians, the Department for Education has dedicated £75 million to support music education hubs in 2015-16, an increase of £17 million from 2014-15. Against the background of the general atmosphere of austerity, that is a remarkable achievement, and I congratulate the Government on it.
The noble Lord referred to one-handed instruments. I am lucky enough to share a room with my noble friend Lord Colwyn, who, as I think we all know, is a formidable trumpet player. He has a friend who plays a trumpet with one hand. That friend’s problem is that he always has to have someone else to turn over the page, but it can be done. I will cite another example in a moment.
I draw the Minister’s attention to two of my own experiences of dealing with handicapped musicians. At school, I was lucky enough to be able to learn both the piano and violin, and when I reached secondary school, I found that the head of music there, a Dr Douglas Fox, had only a left arm. He had set out to be and would have been an absolutely outstanding concert pianist, but his right arm was shot off in World War I. He proved to be an inspiring music teacher. Not only did he teach me to play the piano—not very expertly, but I got enormous enjoyment out of it—but he conducted the school orchestra and choral society. Years later, as president of the school, I had a very interesting talk with the then music director and asked him what he was doing with choral and orchestral works, telling him what we had done back in the 1940s, and he said, “There is no way we could do that now”. I doubt that—but the fact of the matter is that Douglas Fox, despite his one arm, had a huge influence on literally thousands of pupils that passed through the school while he was music director. It is an object lesson of what a handicapped person can achieve. The noble Lord, Lord Lipsey, mentioned Ravel’s “Piano Concerto for the Left Hand”, which he performed at concerts several times, up and down the country. As he was a brilliant pianist, it was absolutely suited to his abilities and talents, and we were all very proud of him. I cite that as an example of what can be achieved.
Douglas Fox made one very bad error. In my house I was not the only violinist—there were three others—but none of us was very expert. We had a house music competition, and when we looked for something that we might perform he said, “What about the Bach passacaglia for four violins?”. I will draw a veil over what happened. It was a disaster—four teenaged boys trying to play what is really a very difficult Bach passacaglia. Nevertheless, the ambition was there; we were inspired to try, and that in itself is worth while.
The other aspect to which I would like to draw attention, again mentioned by the noble Lord, Lord Lipsey, is that of children with severe learning difficulties. My daughter is a professional singer and has sung with the parliamentary choir and as a soloist. She had a friend who had a little girl very severely affected with learning difficulties. Jessie was a child to whom it was extremely difficult to get through with ordinary speech and normal parental emotion, but they discovered that she could respond very positively to music, which provided a bridge to the rest of the community for that child. She did not survive long but, in her memory, her parents set up what is now called Jessie’s Fund to provide resources to help to educate parents and teachers on what can be done through music to help even the most severely impaired children. It is an inspiration. If anybody wants to know anything more about it, there is a website called jessiesfund.org.uk.
I hope that those two examples will show how, in one case, a disabled teacher was able to have an enormous influence on many hundreds—indeed, thousands—of his pupils and, in the other, how music can help even the most seriously affected child with learning difficulties when other approaches have failed. I hope that they underline the importance of giving as many children as possible, even if they suffer from handicaps, the chance of playing in an orchestra, singing or whatever it may be—a musical education. I look forward very much to my noble friend’s reply.
Lord German (LD)
My Lords, I thank the noble Lord, Lord Lipsey, for this debate and particularly for his skill in ensuring that the promenade concert programme was organised around the timetable of the House of Lords.
I am sure that it is quite clear to all of us here today that music education for children with physical disabilities presents great opportunities, because it removes barriers to helping people with their own esteem. The good news is that the capacity for change exists. The challenge, however, is getting the necessary support and funding in place. I, too, welcome the increased funding for music hubs in England; I wait to see what happens in Wales. The extra funding needs to help bring forward the right equipment and, more importantly, to ensure that there are properly trained staff engaged to make real progress.
The figures that we have from Ofsted show that between 2008 and 2011, only 6% of students with disabilities were involved in learning a musical instrument, compared to 14% of students without a disability. That is a clear disparity. There was also a consultation by Drake Music in 2012, which revealed that there are still a number of barriers to overcome with regard to effective music education for disabled children. There need to be improvements in the areas of organisation, training and equipment provision. Nevertheless, the capacity to have change and a music education for those with disabilities exists. I am sure that many noble Lords will, like me, have seen the schools which support children with special needs and where music is part of the curriculum. There have been some outstanding examples of providing effective and professional music teaching. The benefits coming out of the schools where we can see that work are an exemplar that we can translate to the education system across all schools.
I have no doubt that all colleagues would agree that music education leads to a more fulfilling life for disabled children. It uses musical experiences to provide better physical and mental health. A number of studies have assessed these applications but there is now overwhelming evidence to show that there are benefits. As we know, disability is highly complex, but physical and mental disabilities are interconnected. The problems of physical disability are intertwined with the communicative difficulties experienced by those who are mentally disabled. In order to encourage the better use of music education, we should therefore consider the benefits for those who are both physically and mentally disabled. I hope that the noble Lord, Lord Lipsey, will not mind if I address mental disabilities as well.
A number of studies from those dealing with physical disability have shown that playing an instrument improves joint function, co-ordination and strength for those who are physically impaired. It also provides rehabilitation for those children who are struggling to involve themselves in standard group activity because of pain, fear, or anxiety. It therefore has the therapeutic potential to enhance the lives of the physically disabled. I want to look at the benefits in addressing mental disability. The studies that we have before us today, including the briefing from the Library, show that music education has the ability to improve social interaction, both verbal and non-verbal. It also involves an improvement in emotional understanding and greatly increases the quality of relationships, not just between child and child but between a child and their friends and family. The evidence is clear: music therapy offers an alternative form of education, which shows increases in communication and social skills that are superior to standard care.
I pay tribute to the Nordoff Robbins charity, which is probably the largest music therapy support agency in this country, for the work that it has done and for some advice that it has given me. It tells me that complex disability—physical, cognitive, behavioural and communication skills—can isolate an individual from everyday interpersonal activity. As a result, social and personal relationships can falter. Music therapy enables people with complex needs to get an alternative understanding of themselves through the shared experience of music-making with others.
All around us, we are using new technology in music. I doubt that a day passes when we do not experience a new technology being used in a musical way around us. It becomes less and less important, perhaps, for people to have the physical ability to be able to manoeuvre and manipulate instrumentation, with the new technologies available to us. Just as our mobile phones allow us to do things that we would never have thought of five years ago, the new technologies allow us that as regards music. Even those with the most severe disabilities now can operate musical machinery, perhaps with the movement of only a finger or an eyelid, or by using brain-computer music interfaces. It becomes possible for people to make music with others. As complex as it all becomes, the need for keyboards—just as we have a keyboard with our computers—becomes less apparent. New technologies can make a huge difference in this area. As we know, music breaks down barriers. You can communicate with music even if you do not understand the language, and new technologies in music allow that to happen.
The Paralympics provided a very special platform for athletes with disabilities. Will the Government consider establishing and developing a national, or an international, paramusic competition for us to create yet another very special platform to provide opportunity and self-esteem for young people with disabilities? I welcome the extra funding, but I hope that the Government will use some of the extra funding for music to provide some of those opportunities for those with disabilities.
Lord Aberdare (CB)
I am delighted to speak in this short debate and I congratulate the noble Lord, Lord Lipsey, on obtaining it and on introducing it so well. A number of the points that I was planning to make have already been made, so I will try to adapt my remarks accordingly. The Government’s national plan for music education, which was launched in November 2011, provides an excellent blueprint for maintaining and building on this country’s strong position in the world of music and the many advantages that that brings for our economy, culture and national well-being.
As we have heard, delivery of the plan is the responsibility of the music education hubs, which have four key roles. They must ensure that every child has the opportunity to learn a musical instrument; to make music with others; to learn to sing; and to be able to progress to further levels of achievement. In England, the bulk of funding for these hubs has been provided by the Department for Education, totalling £171 million for the three years 2012-13 to 2014-15. In addition, hubs are expected to draw in further support from local authorities, cultural organisations, businesses, trusts, foundations and philanthropists. I believe that they have been quite successful in doing that.
As we have heard, until last Tuesday, there was considerable concern over the future of government funding for the hubs beyond 2015. In addition, a consultation document issued in March suggested that local authorities should not be using any of their education services grant funds to support music activities. Since support from local authorities amounted to more than £14 million in 2013-14, these two issues cast a worrying shadow over the future prospects of the national plan.
I join other noble Lords who have spoken in welcoming very strongly the announcement last Tuesday that the department’s funding for music education hubs would be increased for 2015-16 to a total of £75 million. At the same time, the advice to local authorities not to use education services grant for music services was withdrawn, not least because of the efforts of the Protect Music Education campaign led by the Incorporated Society of Musicians, which was responsible for the great majority of the responses received. It would be wonderful, of course, to have some commitment on the level of funding for a longer period, say up to 2020, but I appreciate that, with a general election coming up, that might be unrealistic to expect.
The focus of today’s debate is to ensure that the national plan indeed extends to all children, as it aspires to, specifically including children with physical disabilities—although I would add children with special educational needs or in other circumstances of disadvantage.
The helpful briefings that I have received, including from the House of Lords Library and from the One-Handed Musical Instrument Trust, which my noble friend Lord Lipsey mentioned, have highlighted many impressive and often inspiring and heart-warming musical education initiatives for children with special needs. I have watched moving videos about the delivery of Drake Music’s introduction to music course at Treloar school for physically disabled children in Hampshire, and about singing activities at the Stephen Hawking School for children with severe learning difficulties in Tower Hamlets. According to the DfE, nearly 80,000 disadvantaged and more than 30,000 special needs students took part in instrumental ensembles and choirs in 2012-13.
However, it seems—for example, from a 2012 Ofsted report—that students with disabilities or special needs or who are eligible for free school meals are considerably less likely to be involved in musical activities than others. Some of the reasons cited include shortage of teacher time, absence of suitable spaces and facilities in schools, low expectations of what such students can achieve musically and lack of suitably adapted instruments and technology. Perhaps some of the extra funding from the Government could help the hubs to address those needs, as the noble Lord, Lord Lipsey, mentioned.
I believe that a smaller proportion of special needs children take music GCSEs. The national plan raised the issue of whether music technology could help to address that issue. Perhaps the Minister will comment on whether there have been any developments in that direction.
On its website, the One-Handed Musical Instrument Trust lists a remarkable range of resources to help children and others with physical disabilities to take part in musical activities, including specially adapted instruments, such as those which the noble Lord, Lord Lipsey, mentioned, electronic aids, organisations providing help in this area and performers with disabilities. The latter provide some quite remarkable role models to demonstrate what levels of music-making can be achieved by people with disabilities, such as Nicholas McCarthy, the only one-handed pianistic graduate from the Royal College of Music and the extraordinary horn player Felix Kleiser, who has no arms but plays the French horn to world-class standard entirely with his feet. The website does not state who turns the pages for him.
My question today is: how can the Government built on their very welcome provision of extra funding for the national plan to support and extend those activities and others like them so that it achieves its laudable goal of being available to all schoolchildren, whatever their circumstances and abilities? What can they do to monitor and increase the participation of children with special needs in musical activities and to assess its effectiveness? How can they help schools to obtain the special instruments needed; have access to technological solutions for music learning or composition; raise awareness of what can be and is being achieved for and by children with disabilities; share good practice through facilitating production of the sort of videos that I have been watching; train teachers to work with such children; or provide opportunities for young people with disabilities to experience live music?
I have another question. In March 2012, the Government set up a monitoring board for the national plan, which was to meet three times a year to review the overall performance of the plan and of the hubs. Have those meetings been taking place and, if so, what have been the views of the board on the progress of the plan so far, particularly in relation to disabled and special needs students?
There are some excellent organisations doing fine work in this field. The Government have already given a lead by setting up the national plan and giving commitment to its funding. What more will they do now to help to join up the work that is going on, to leverage its effectiveness and to ensure that young people with disabilities or other disadvantages are at the forefront of those taking part in and benefiting from the plan?
Baroness Nicholson of Winterbourne (LD)
My Lords, I thank the Minister very much for the opportunity for us to discuss such an important topic as music and children with physical disabilities. I see music and differently abled children as going together like the proverbial horse and carriage. As a Music Therapy trustee, I recall a boy with an immovable body and just one flailing arm. A music therapist sat beside him—an elderly lady—and went tap, tap, tap with a tiny drum and she watched his arm. She came back several times a week to sit beside him. She tried to follow his flailing arm with the tapping of the drum and after weeks of external pursuit by the musician of drum-arm co-ordination, with the drum determinedly chasing the formless jerking of the wandering arm, the boy’s mind had taken in the principle and the arm began to lead the drummer. Many months on, his arm was steady, controlled and he began to be able to take food to his face and his face regained control. After a while he found himself and he could eat, masticate and swallow. His life was transformed by music therapy.
I recall another boy who was completely unable to control any of his limbs and was confined to a wheelchair at the age of 11. He became a pupil. Little by little the clear rhythm of music, played live beside him, focused his mind and body. Time passed and all his limbs and his trunk as well became responsive to the music. That boy learnt to walk and his wheelchair was permanently discarded. Music has powers that other taught subjects cannot replicate. All babies are born with perfect pitch and unknowing of any of their specific personal disabilities. Each one is thus innately musical. All disabilities can be helped by carefully tailored musical training.
One in 1,000 children in England and Wales under three years of age are profoundly or severely deaf. The figure rises to two children in 1,000 between the years of eight and nine. Music can help them too: to speak, lip read, listen more effectively, increase their vocabulary, write better, enhance their sport and physical performance, and socialise. The Mary Hare School for deaf children puts music at the heart of its curriculum. The Mary Hare Foundation’s purpose-built Arlington arts centre houses, among other specialties, the Nordoff Robbins Mary Hare music therapy unit, which teaches pupils individually, from primary to sixth form.
A lively school orchestra with all instruments learns and performs across the music spectrum—an early favourite was something called “Dirty Custard”—and new instruments are sought and found. The recent and beautiful samba instruments were given by the EMI foundation. Volunteers from Vodafone locally often fundraise. Choral singing and individual instrumental performance are regular occurrences for outside audiences. These are profoundly and severely deaf children in the category that I have defined.
I should add that Mary Hare is a non-maintained school, so pupils are funded by the local authorities where they live. Fundraising is therefore essential to help families to send children to that school from around Britain and abroad. Early this year, the then principal, Tony Shaw, learnt that a no-notice inspection by Ofsted was about to begin. It did, in an hour and a quarter. The resultant report declared:
“Exceptional personal and academic opportunities ensure that the school makes an enormous difference to the lives of its Pupils”.
It also said:
“Behaviour is impeccable … Attendance is excellent … Pupils value their school and quickly make friends”.
As the departing principal commented:
“Mary Hare is more like a family, and I know that is a key factor in the success we achieve”.
I spoke to him and I am confident that this success will continue to be delivered under the new principal, Peter Gale, with whom I anticipate working to develop a strong partnership and a transfer of knowledge for the benefit of deaf children in Romania, especially through musical education and performance.
There is one special difficulty that deaf children face, not just in Romania, but in Moldova, Armenia, Ukraine and other countries in the region. Deafness is thought to equal physical dumbness: not just through acquired dumbness, but through some unknown physical deformity or acute illness that has happened to the larynx at birth. In other words, if you are deaf, you are born dumb also. That is physically understood and is taught by teachers to be so. There is therefore no speech at all and no lip reading. Communication is only through sign language.
Sign language is undoubtedly useful. I recall that at the Mary Hare grammar school for the deaf, our patron visited. She was sitting in assembly on the school stage looking rather unhappy. The Duke turned to her and said something silent. The hall rocked; the children could lip-read, and he had said, “Cheer up, cabbage”. So yes, sign language is useful, but lip-reading is a great deal more so. Sign language has massive defects for learning and for the acquisition of speech.
So, after life in special schools in Romania, who understands? Who will communicate? I serve as High Representative for Romanian Children. I chair the Asociatia Children’s High Level Group. I work with the Minister for Education, Remus Pricopie. We tackle all disabilities, physical and other, with musical instruments, sharing, training, singing and dancing, and the results are amazing. At the moment we have 105,000 volunteers from mainstream schools and high schools, with 59,000 beneficiaries from special schools, day centres and small family-type homes—all pupils and all handicaps. They meet three times a week in school time, with two hours of integrated teaching each time, mainly child-to-child and teacher-to-teacher. We do dance and music competitions nationally, singing, dancing and doing drama countrywide. You can see the children—their stiffness goes, their circulation improves and they begin to be able to move, speak, listen, talk and socialise. There is new family life. The teachers, the parents, the church and state are all involved. I recall so well the wheelchair girl triumphantly lifted and circled in the air above the heads of her steady-handed, sure-footed boy volunteers, dancing with her as one world and all getting golds.
The link most generously offered by the Mary Hare School will enable us all to create a bridge of learning, with music central to it, to enable speech, singing, lip-reading and total communication, to start in two pilot schools in Craiova and Bucharest. Thousand upon thousand of hitherto silent children will benefit from the careful expertise developed here in Britain by the Mary Hare School, aided by my old college, the Royal Academy of Music.
I would welcome the Minister’s support for this initiative. I would appreciate a word or two with him at some suitable moment to introduce him to the Romanian Minister for Education when he is here. This may be a way in which Britain’s expertise can be developed and spread more widely still.
Baroness Jones of Whitchurch (Lab)
My Lords, I am very grateful to my noble friend Lord Lipsey for securing this debate and for his continuing diligence in championing the cause of music education. He has enabled us to have a fascinating debate and to hear some moving examples of how music can be transformative for people with physical disabilities.
As a number of noble Lords have pointed out, the national plan for music education has a clear aspiration of ensuring that children from all backgrounds should have the opportunity to learn a musical instrument, to make music with others, to learn to sing and to have the opportunity to progress to a level of excellence. It also determined that all schools should provide high quality music education as part of a broad and balanced curriculum. These provisions, combined with the parallel entitlements for children with special educational needs and disabilities to have access to the same quality and standards of education as their peers, ought to have ensured that children with physical disabilities receive quality music education. However, we know that this is not the case, and it is worth exploring some of the barriers to that.
At the outset, we have to acknowledge that music education as a whole in the UK is not in great shape. For example, the numbers taking the subject at GCSE have been dropping, with only 41,500 taking the subject in England in 2012, which is down from 43,100 in 2011. Part of this decline can be explained in retrospect by the rather disastrous decision of the Secretary of State to introduce the EBacc system, which excluded music from the list of subjects to be measured. Despite the change of heart in 2013, which widened the league table subjects to eight, we are being told that music has continued to be squeezed within the overall curriculum. Even more worrying is the evidence that the top-performing schools for music GCSE are overwhelmingly in the independent sector. Therefore, music is in danger of becoming an elite subject, or one that is the preserve of parents who are prepared to pay for lessons, rather than one that is open to all, as was originally intended. That point about access was raised by the noble Lord, Lord Aberdare, and other noble Lords.
We therefore need to consider what more can be done to make the aspirations of the national plan for music education a reality, particularly for children with disabilities. That is important, not only because children with disabilities have the right to equal access to this learning but because it offers another sensory route to expression and communication for children who are denied that through their disability. As the noble Lord, Lord German, pointed out, at its basic level, playing a musical instrument can help develop movement and motor skills. At a higher level, it can offer a unique form of self-expression and engagement—and we have heard some examples of that this afternoon.
First, I concur with the view of a number of noble Lords in the Room that music hubs appear to be working well. The recent government announcement of an increased grant of £75 million to support those hubs is obviously to be welcomed. However, we need to ensure that proper monitoring is in place to ensure that the money is spent wisely. I was collared the other day by some music teachers, who complained to me that the staff employed in the music hub had given themselves rather inflated salaries, at the expense of the music that was meant to be happening in the school. Can the Minister explain how that expenditure is audited and overseen to make sure that the money is being spent properly?
Secondly, we need to ensure that the music hubs collaborate and share resources with the specialist organisations and individuals working in this sector. This afternoon we heard about the One-Handed Musical Instrument Trust, which is obviously doing some very innovative work. I was particularly impressed by the work it is doing to create competitions to design accessible musical instruments, which is very much to be lauded. When I was researching this debate, I was struck by the large number of impressive charities that work in this field. However, they all seem to be struggling to fund their work. What funding is being made available? Are we sure that we take adequate notice of the contribution the voluntary sector can make? Perhaps the Minister could comment on that.
Thirdly, we should consider making it a specific requirement of Ofsted to assess the music provision in schools when it carries out an inspection. For example, its own report Music in Schools identified that music hubs sometimes found it difficult to engage with schools that were not providing high quality music education. Surely, if that is the case, and it is a problem, we should know about it. Fourthly, we need to address the failings in initial teacher training for primary school teachers. Weaknesses in primary school music were identified in the Henley review of music education but the training module that was developed was never fully rolled out or funded. Perhaps the Minister could update us on the plans for that.
Finally, as the noble Lord, Lord German, pointed out, we should encourage and support the expansion of music technology and the innovative uses we could make of it to open up new opportunities for children with disabilities to create music. Contemporary music technology can recreate the sounds of musical instruments as well as creating exciting new sounds, and can unite children’s enthusiasm whether or not they have SEN or a disability. I would be interested to know whether the Minister thinks that there is a bigger role for using technology in music to supplement the importance of learning to play an instrument. We have had a very interesting debate today and I have certainly learnt a lot. I very much look forward to hearing the Minister’s response.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
I thank all noble Lords for participating in this debate and in particular I thank the noble Lord, Lord Lipsey, for securing it. When this debate first came on the agenda, I was concerned, not so much because of its timing, but because I do not know a great deal about the subject matter. However, I have greatly enjoyed reading myself into this debate and listening to the eloquent speeches, which I found extremely interesting. I have been frankly humbled to learn about how much is going on in this area and how powerful music education can be, particularly for children with physical disabilities.
The Government have the same ambition for children with disabilities as they have for all children. We want pupils to achieve well at school, lead happy and fulfilled lives and have choice and control. I have no doubt that music is a key way of achieving this, particularly for pupils with disabilities and SEN. Several noble Lords attested to that today. I remember vividly that when I was doing research into the academies programme I visited a KIPP charter school in a particularly deprived area of New York City where every child is in an orchestra which travels across the United States to perform. It is renowned for its success.
Music has been confirmed as a statutory subject for children between the ages of five and 14 in the new national curriculum, which comes into force in all maintained schools from September. The revised programmes of study for music have an increased focus on the need for activities to be undertaken musically, with reference to all children learning to play a musical instrument. The new, slimmed-down curriculum provides greater freedoms for teachers to use their creativity and professional judgment in how they teach to meet the needs of the pupils in their class. At key stage 4, the arts are one of four entitlement areas within the national curriculum. Maintained schools must provide all pupils with access to at least one course in the arts entitlement area, which includes music, art and design, dance, drama and media arts.
The Equality Act places a duty on all schools to support disabled children and young people. It includes making reasonable adjustments to prevent them suffering discrimination and supplying additional aids and services. Schools must have also accessibility plans which set out how they will improve access to the curriculum, improve the school’s buildings and environment to enable disabled pupils to take better advantage of the school and improve the availability of accessible information. This includes academies and free schools. Additionally, to make sure that all teachers know how to adapt teaching to respond to their pupils’ needs, part 5 of the teachers’ standards requires teachers to,
“have a secure understanding of how a range of factors can inhibit pupils’ ability to learn, and how best to overcome these”.
To support and encourage all children to experience excellent music education, the Government have set up 123 new music education hubs. Since August 2012, these hubs have been working to drive up the quality and consistency of music education across the country, with an emphasis on forging new partnerships. Hubs are required to develop four core roles, which include ensuring that every child aged five to 18 has the opportunity to learn a musical instrument through whole-class ensemble teaching and providing opportunities for them to play in ensembles and perform from an early stage. They are also expected to ensure that clear progression routes are available and affordable to all young people, and to develop a singing strategy so that every pupil can sing regularly in a choir or other vocal ensembles in their area. In addition, hubs may provide other services, such as professional development for teachers.
In answer to the question asked by the noble Lord, Lord Aberdare, about participation, I am pleased to say that 5% of pupils who participated in instrumental ensembles or choirs in 2012-13 had a statement of special educational needs, compared to 2.8% nationally.
There are some excellent examples of hubs working with children who have disabilities. Telford music education hub offers a bespoke version of its whole-class ensemble tuition programme for special schools. Camden hub integrates pupils from local special schools into the Camden music festival and Surrey music hub, with partner Rhythmix, has run a sound and motion lab looking at how digital technologies can aid music-making for children with movement impairment at the Orpheus residential centre for children with disabilities. In Telford, the hub’s Kreative Kidz programme offers specialist out-of-school arts and music sessions for young people with severe physical needs, under the short breaks duty introduced to local authorities in April 2011. The Staffordshire and Stoke-on-Trent hub’s strategic partner, Make Some Noise, runs training and mentoring programmes for musicians and teachers wishing to improve their skill set and confidence in delivering music activities for children with SEN and disabilities, through the use of assisted music technology specialists and equipment. Bradford music education hub offered training events for teachers of children with SEN and disabilities between November and March last year, covering topics such as song-writing, composition and developing choirs.
As my noble friend Lord German mentioned, schools are also demonstrating innovative practice in this area. At Great Oaks, a special needs school in Southampton, all students learn to use mobile devices to make music. In October 2013, the school held a mobile device concert for students to perform arrangements of popular music songs independently in iPad bands. Bradford music has also established a singing choir at Hanson secondary school, drawing on specialist expertise and advice from Music and the Deaf, a unique charity based in Huddersfield that helps people suffering hearing loss to enjoy music. In Ealing, a partnership on music and autism with the Orchestra of St John’s led to securing funding to develop a series of workshops and performances, led by members of the orchestra, in all the borough’s specials schools.
In response to the comments of the noble Lord, Lord Lipsey, I am delighted to say that the Government appreciate the benefits of the music and this type of work. I am very happy to make that statement. The Department for Education will look to publicise work of this type, whether it is led by music hubs, charities or schools, to help to give due recognition to these extremely worthwhile projects, and it will encourage other organisations to emulate this good practice in their work.
I am grateful for the comments from the noble Lord, Lord Lipsey, the noble Baroness, Lady Jones, and my noble friends Lord Jenkin and Lord German about the announcement on 22 July that our music budget will increase by £18 million in 2015-16, with most of this money going to the hubs. This will bring the total that this Government are spending on music education for the period between 2012 and 2016 to more than £390 million.
Other programmes include In Harmony, which we sponsor alongside Arts Council England and others. In Harmony is transforming the lives of children through community-based orchestras for music-making in six areas of exceptional deprivation. Again, we are aware of excellent inclusion practices. For example, in a participating Nottingham school, a child with muscular dystrophy has had a half-size guitar adapted so that it can be tuned to the correct pitch, enabling her to carry out pizzicato alongside her classmates. In Newcastle, In Harmony has helped a child with a very severe speech disability to excel on bassoon. He has performed solo at Newcastle’s Literary & Philosophical Society and is now attending the Sage Gateshead centre for advanced training.
Our funding for Music for Youth is also enabling children with disabilities to attend and perform at regional and national festivals at world-class venues. Sixteen children and young people with additional needs from Beacon Hill Academy in Essex, a specialist college for sensory and physical needs, performed in a mass ensemble showcase performance at the Royal Albert Hall for the Schools Prom in 2013. This was part of an exclusive music project in Essex, delivered by Music for Youth in partnership with three music education hubs.
I thank the noble Lord, Lord Lipsey, for drawing our attention to the achievements of one-handed musicians and the extraordinary and pioneering work of the One-Handed Musical Instrument Trust. The Government have been clear that all pupils, whatever their individual needs, should benefit from an education in music, and through our work with the Arts Council and others we will continue to make sure that providing opportunities with SEN disabilities is essential to the work.
I enjoyed the comments of my noble friend Lord Jenkin about Douglas Fox and his wonderful work. I also thank him for highlighting the commendable work of Jessie’s Fund in helping seriously ill and disabled children through the therapeutic use of music. Through its Soundtracks programme it is running creative workshops in more than 80 schools for children with special needs. It is doing excellent work in supporting children to take part in the musical process.
I am grateful to my noble friend Lord German for his comments about the benefits of music as therapy and its ability to break down barriers. This is evident in the work of programmes funded by the department. In Cambridgeshire, there is an established music therapy programme providing clinical interventions, while Telford and Wrekin’s In Harmony programme has a specialist nurture group.
I noted comments about establishing an international paramusic competition, and I will discuss it with DCMS, as it seems like a very good idea. Technology is also crucial. I have already pointed to the innovative work with mobile devices at Great Oaks School in Southampton.
The noble Lord, Lord Aberdare, and the noble Baroness, Lady Jones, emphasised the importance of making sure that the money we have provided is well spent and reaches students with disabilities and SEN. We have been working with the Arts Council to support and challenge hubs. We have introduced a new requirement for hubs to develop school music education plans. They must clearly demonstrate how they are connecting with all the schools in their area and how they are planning to provide targeted support to schools where necessary. We have also set up a new hubs advisory group, which is providing strategic advice to the DfE on the effectiveness of hub networks. Members are drawn from organisations with an interest in the performance of hubs, including representatives from schools, music hubs, Ofsted and other music stakeholders. There is an SEN teacher on the hubs advisory group.
The Arts Council also analyses the data from hubs to ensure that children and young people with SEN and disabilities are engaged. Several hubs are currently undertaking specific research and activity with children and young people with SEN, and we will share this across the network as appropriate. The Arts Council runs a flagship Artsmark programme to enable schools and other organisations to evaluate, strengthen and celebrate their arts and cultural provision. Artsmark is nationally recognised as demonstrating excellence in arts and cultural provision, and any school, college or young justice organisation can apply. It is open to SEN schools. A specialist leaders in cultural education course has been developed by one of ACE’s bridge organisations and this is open to special schools.
The noble Lord, Lord Aberdare, asked about the national plan for music education’s monitoring board and whether this will continue. It continues to meet termly as the cultural education board, chaired by Ministers from DfE and DCMS, and Darren Henley. I will ask my officials to investigate the use of technology in music GCSEs and will write to the noble Lord on that issue.
I am very grateful to my noble friend Lady Nicholson who spoke so powerfully about the power of music for deaf children. She highlighted the excellent Mary Hare School for the deaf. I was very impressed to hear about the school and its arrangements in Romania. Schools with real expertise can make significant contributions by sharing their knowledge internationally. I would be very pleased to discuss this with my noble friend. I should be grateful if she could keep me informed and would be delighted to meet representatives from Romania when they are here.
The noble Baroness, Lady Jones, made the point that top-performing schools in music are often independent schools. Sadly, that is true. As we all know, the top-performing schools in this country absolutely, and in many areas, are disproportionately represented in the independent sector, which is why this Government are so determined to increase the performance of the state education sector.
I believe that the policies and programmes that I have described demonstrate our desire to ensure that no child is excluded from receiving a high-quality music education due to a physical or other physical disability. I am sure that noble Lords will agree that the impact of our programmes on disabled young people is evident from the examples that I have given throughout the country.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, that concludes business in Grand Committee this afternoon. The Committee stands adjourned and I take this opportunity to wish all noble Lords and others a very pleasant recess.
House of Lords
Marriage (Same Sex Couples) Act 2013
(10 years ago)
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Lord Fowler
To ask Her Majesty’s Government whether they are satisfied with the enactment and operation of the Marriage (Same Sex Couples) Act 2013.
Baroness Northover (LD)
My Lords, the first marriages of same-sex couples took place on 29 March—sooner than we had originally thought possible. We intend to bring the remaining elements of the Act into force on 10 December, enabling couples in a civil partnership to convert it into a marriage, and couples to stay married, if they wish to do so, when one or both of them changes legal gender.
Lord Fowler (Con)
I congratulate the Government on their progress but perhaps I could raise one point. Canon Jeremy Pemberton married his partner in April, as a result of which he has had his permission to work as a priest in Nottinghamshire revoked and been banned from seeking a new post as a chaplain and bereavement manager. Given that there are other clergymen at similar risk, will the Minister, as a matter of good will, look at the position and see whether anything can be done to help reconcile the difficulties?
Baroness Northover
My Lords, I thank the noble Lord for his thanks to the Government on this. I was a guest at a same-sex marriage very recently and found it extremely moving. The couple had had to overcome so many hurdles to get to a point that so many of us simply take for granted. My noble friend will know that the Bill sought to protect the position of religious organisations and that this is a matter for the Church of England. We hear what he says, and it is worth also bearing in mind that things can evolve. For example, it is good that we should soon see women bishops.
Lord Collins of Highbury (Lab)
My Lords, I know that the Minister is aware of the disappointment felt by many over the regulations tabled for debate yesterday. Although they made the administrative process easy, they failed to recognise that many in a civil partnership would wish to celebrate their marriage in the same way as all other same-sex couples have since March. I know that the noble Baroness understands the importance of setting the date. Will she therefore update the House on when the revised regulations will be published and tabled for debate? Perhaps on this occasion she could even offer to share a draft before they are tabled. Will she reassure us that they will still come into force on 10 December?
Baroness Northover
We are indeed determined that the regulations will be in place by 10 December so that civil partnerships can be converted to marriages. As the noble Lord will remember, in the consultation prior to the Act, the emphasis that came through from people feeding in their views on this was that they wanted to make sure that their civil partnership was properly marked and could be translated into an equal marriage. They wanted that to be as straightforward as possible with as few hurdles as possible. That was what was built into the Bill.
As the noble Lord will know, since then some people have felt that they want to mark that transition. He will also know that the Bill and regulations allow ceremonies to be associated, but they want to make that link closer. We are determined to try to make sure that everything that people want in this situation can be done within the complexity that he is familiar with within the Bill. Indeed, we are determined to deliver this by 10 December, and we are happy to discuss those draft regulations.
The Lord Bishop of Sheffield
My Lords, I thank the Minister for her affirmation that according to both the letter and the spirit of the legislation on same-sex marriage, it is for the Church of England and all faith communities to determine their doctrine and what is appropriate conduct for their clergy. Is the Minister aware that the recent guidelines of the House of Bishops state clearly that those who enter a same-sex marriage, together with children in their care, should be welcomed into the life of worshipping communities, and also that the Church of England is about to begin a two-year process of structured conversations to explore the changing attitudes to human sexuality and their implications for the life of the church and its disciplines?
Baroness Northover
I welcome what the right reverend Prelate has said and his tolerant approach.
Baroness Barker (LD)
Could the Minister tell the House whether there have been any instances of clergymen being asked to conduct same-sex marriages against their convictions?
Baroness Northover
Again, my noble friend will know that built into the Bill was protection for religions that did not want to conduct same-sex marriages, as well as for those within religions that decided that it should be allowed—so we have no evidence of that at all.
Baroness McIntosh of Hudnall (Lab)
My Lords, the Minister set out very clearly the Government’s intentions as far as the implementation of the Act is concerned. It was very reassuring to hear from the right reverend Prelate the current views of the church. However, I do not think that either she or—if I may say with respect—he addressed the question that the noble Lord, Lord Fowler, raised about the loss of employment that followed this incident. Can the Minister say anything further about the application, for example, of the Equality Act or any employment Act in situations where people lose their job over their sexuality?
Baroness Northover
As the noble Baroness may remember, the protections given to various religions in the equal marriage Act protect them in this regard from the operation of the Equality Act. It is up to the Church of England, but I note what the right reverend Prelate said.
Lord Elton (Con)
My Lords, to clarify the position for Church of England clergy during the next two years, will my noble friend confirm that clergy in civil partnerships are able to carry out their ministry in the normal way?
Baroness Northover
I think I need to write to the noble Lord to clarify exactly what the situation is at the moment within the Church of England—but again, it is a matter for the Church of England.
Baroness Liddell of Coatdyke (Lab)
On a lighter note, would the Minister join me in congratulating the organisers of the opening ceremony of the Commonwealth Games which, with great humour and more than a touch of Glasgow gallusness, celebrated how liberal every part of the United Kingdom is nowadays?
Viscount Ullswater (Con)
My Lords, when will the Government amend the Marriage (Same Sex Couples) Act 2013 to include heterosexual civil partnerships? This would even up the playing field for those who do not wish to get married, especially those in later life who need financial security but do not want to upset their children.
Baroness Northover
My Lords, as my noble friend no doubt knows, a review came out of that Act, and the conclusion was that there is no settled view on what should happen here. Probably one of the key things—one has seen this in other countries—is that when equal marriage is in place, changes occur. So there is something to be said for looking at what people want—whether they want civil partnerships to be open to heterosexuals, so that there is equality, or whether people will stop opting for civil partnerships if equal marriage is available.
Learning Disabilities: Premature Deaths
(10 years ago)
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Baroness Hollins
To ask Her Majesty’s Government what progress has been made with regard to the recommendations of the Confidential Inquiry into the premature deaths of people with learning disabilities in the year since their response to the Confidential Inquiry.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, actions are under way with a range of national delivery partners and at local level in response to the inquiry’s recommendations, including improvements in the identification of people with a learning disability, the auditing of reasonable adjustments, and the provision of health checks. Progress is monitored through the Learning Disability Programme Board.
Baroness Hollins (CB)
My Lords, I welcome the commitment in the NHS business plan and the Department of Health mandate to try to reduce premature mortality in people with learning disabilities, and in particular to establish a national mortality review function, but until the necessary data linkages have been made, the review cannot begin. What action is being taken to ensure that the Health and Social Care Information Centre will prioritise the collection of the data required, such as identifying people with learning disabilities and their causes of death, so that the review can indeed begin?
Earl Howe
My Lords, the specification for the mortality review function is under development, and we all wish to see that work proceeded with rapidly. Data to support the function will be needed from both national and local sources. Work is under way with NHS England, the Health & Social Care Information Centre and Public Health England to derive data to underpin both the mortality review function and the NHS Outcomes Framework. However, it is important that this should take full account of wider developments in the collection and sharing of patient data, and this will inevitably impact on the pace of progress. As I am sure the noble Baroness recognises, it is vital that we get that right.
Lord Addington (LD)
My Lords, my noble friend will undoubtedly remember that we had a discussion in this House on the problems of the deaf in trying to access healthcare, and how that leads to other problems. Will there be a pan-disability look into this problem? It is clear that those who have problems communicating in forms of consultation with the NHS get bad results from it.
Lord Wigley (PC)
Does the Minister accept that a number of the points arising out of the confidential inquiry were touched upon by the earlier DRC report published more than six years ago, Equal Treatment: Closing the Gap, and that progress since then has been patchy? In the light of that, will he give a commitment that there will be an annual review of progress made on the confidential inquiry recommendations and a report to Parliament?
Earl Howe
My Lords, I can assure the noble Lord that there is currently a whole-system response to the recommendations in the review. As I said earlier, this is a response from NHS England, Public Health England, local organisations and, indeed, Ministers overseeing the Learning Disability Programme Board. I shall take away the noble Lord’s question about a formal annual review, consider it carefully, and write to him.
Lord Hunt of Kings Heath (Lab)
My Lords, does the noble Earl recognise that the confidential inquiry showed that there are great failings in the health treatment given to many people with learning disabilities, which probably contributes to their very poor life expectancy? He will be aware that my own former trust, Heart of England, appointed specialist liaison nurses who could help people with learning disabilities find a pathway through their healthcare. Would he advise other NHS trusts to follow that example?
Earl Howe
My Lords, the noble Lord makes a good point. Following the recommendations of the UK review of learning disabilities nursing, we have set up an independent collaborative to address that workforce’s needs. We are also working with Health Education England’s 13 local education training boards to develop greater links with the independent and voluntary sector which will help with workforce planning. This year Health Education England increased its national commissions for student learning disability nurses by 4.5%. We are working on a number of initiatives to raise the profile of learning disabilities nursing and promote the profession as an attractive career choice.
Baroness Browning (Con)
The report identifies 37% of deaths that could have been prevented. People with learning disabilities and those on the autistic spectrum, some of whom are included in the report, experience communication problems at hospital level. Will my noble friend please put government force behind the issuing of hospital passports for people with learning disabilities and those with autism? The autism hospital passport was launched two weeks ago and is on the NAS website. However, these very important documents can help to prevent death only if clinicians and hospital staff read them, take note of them and act on them.
Earl Howe
I take my noble friend’s point. The specific needs of people with learning disabilities are being considered as part of the overall work programme to provide people with online access to their GP practice and GP-held e-record. That is being done in the wider context of the development of a fully comprehensive patient-held record. NHS England plans to hold a meeting later this year to look at developing a national standard for a hospital passport. This will be a patient-held document that will detail key information to be shared with any contact in the NHS.
Baroness Warwick of Undercliffe (Lab)
My Lords, what is the Minister doing to ensure that comprehensive community learning disability teams are available in all areas and that GPs are proactively referring patients with a learning disability to these vital services?
Earl Howe
My Lords, the learning disability teams are of crucial importance in ensuring that those with a learning disability are able to access the services that they need. I have a long list of things that are relevant to that subject and I am happy to write to the noble Baroness with that information.
Universal Credit
(10 years ago)
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Lord McAvoy
To ask Her Majesty’s Government what measures they are taking to increase transparency and openness in the implementation of universal credit.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud) (Con)
We consistently and regularly update Parliament and stakeholders on universal credit implementation, and the universal credit programme continues to be subject to substantial scrutiny. We will maintain every effort to communicate openly and on a timely basis.
Lord McAvoy (Lab)
My Lords, I thank the Minister for his Answer, and I would like to wish him a peaceful and happy Recess. But in the mean time, many noble Lords will, like me, have been shocked to hear the head of the Home Civil Service say on 7 July that the business case for universal credit has not been approved by the Treasury. He said:
“We shouldn’t beat about the bush: it hasn’t been signed off”.
Does the Minister know of any other project on which £612 million has been spent without the business case for that project being signed off by the Treasury?
Lord Freud
I do not have a review of all the business cases, but I know that we have 44 separate business cases for change programmes in my department, the DWP, and that this is the most reviewed. What we have said—and I have said it in this House—is that the plans in the strategic outline business case for the remainder of this Parliament have been cleared, and that we are looking to get formal full clearance for the case shortly.
Lord German (LD)
My Lords, the universal credit is providing great opportunity for people and is being rolled out slowly. It is also giving Jobcentre Plus advisers an opportunity, for the first time, to advise customers so that they get comprehensive support. Most of the problems seem to be about the future. Can my noble friend therefore reassure the House that it will be rolled out to and engage a large number of people by May 2015? What milestones does he anticipate we will have passed by the time that we get to May 2015?
Lord Freud
My Lords, we are rolling out universal credit on a careful basis right the way through the north-west. We are currently at 38 jobcentres across the country, the bulk of which—32—are in the north-west. On Monday we moved from singles to couples as well, and that will be introduced right the way through the north-west as we finish this rollout this year. In the autumn we will move to families; so there will be a substantial number as we do that rollout. I must emphasise that we are not doing this rollout in the same way as past programmes have been brought in, on a big-bang basis; we are making sure that we understand what is happening and we go at the pace at which we can do it safely.
Baroness Lister of Burtersett (Lab)
My Lords, as universal credit rolls out to couples and families, the question of the impact of the payment into a single account on women who are subject to domestic violence becomes more urgent. In oral evidence to the Joint Committee on Human Rights recently, Women’s Aid expressed its fears that the new payment arrangements will endanger such women. It warned that the discretionary power to make split payments—which, of course, will require women to identify themselves as victims of domestic violence—simply will not work. Will the Minister therefore commit to work with Women’s Aid and similar organisations to find a more effective solution to try to avert this very real danger?
Lord Freud
One of the things that we are doing as we roll this out is to watch key factors very closely. That is the point of going at this pace, so that we can see small numbers to start with and see what is happening. I will watch this very closely. I talked to the Women’s Aid groups intensively on a number of things of great concern to them and to me, and I will keep watching this one very closely.
Baroness Sherlock (Lab)
My Lords, although I welcome the Minister’s commitment to transparency, I was reading this week about the DWP’s battle to stop the publication of the risk register and other documentation relating to universal credit. The Information Commissioner said that the other papers should come out, and a tribunal added the risk register, but the department has appealed. One journalist has pointed out that the judge said that he could see,
“no support for the argument”,
and that the department had not, “provided any persuasive evidence”. The department now wants to appeal again. I have two questions for the Minister. First, what exactly are the Government trying to keep from us? Secondly, how much public money have they spent in the attempt?
Lord Freud
This is a government policy; it was equally a matter for the previous Government as it is for this one not to publish particular information about the business case, risk registers and so on. It is something that we are maintaining not just for this programme but generally. I will say, however, that there has been an enormous amount of information put out on this programme, more than for any of our other programmes. There have been reports from the SSAC, from the NAO, from the PAC; it was in the MPA; and it was in our annual report. We are talking to the Select Committee and going through the contents and information within those business plans without breaking the norms of what Governments do in terms of providing a specific document.
Lord Grocott (Lab)
My Lords, I listened carefully to the Minister’s response to my noble friend Lord McAvoy, and although it was quite a lengthy response, it was pretty clear to me that, in relation to the Treasury at any rate, he did not answer the question. So given that it was a splendid question and a not-so-good answer, could the Minister please put a copy of the full details of a proper response in the Library and send a copy to my good friend Lord McAvoy to read over the Recess?
Lord Freud
I am always very pleased to provide the noble Lord, Lord McAvoy, with reading material, and I shall do so in this case. However, I must make the point that we have gone through this question in some detail both in the other place and here. I have explained here that we have got the strategic outline business case plans approved, and we are expecting that the actual full strategic outline business case will be approved shortly.
Lord Brooke of Sutton Mandeville (Con)
My Lords, does my noble friend accept that some of us feel that, as Ministers go, he is as transparent and open as anyone could be, and that he has the virtue of being comprehensible as well?
Youth Employment
(10 years ago)
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Baroness Sherlock
To ask Her Majesty’s Government what action they are taking to reduce levels of youth unemployment following the recent closure of the youth employment contract incentive scheme.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud) (Con)
Tackling youth unemployment remains a priority for this Government, and our successful Youth Contract will continue. The wage incentive will end as planned next March, just three and a half weeks earlier than anticipated. The youth claimant count has fallen by 134,000—the largest annual fall since 1997—taking it to its lowest level since 2008.
Baroness Sherlock (Lab)
My Lords, I have asked repeatedly about the Youth Contract wage incentive scheme in this House, and the Minister has repeatedly assured us that all is well. On 20 March, in relation to youth unemployment, he talked about,
“just about the most comprehensive response that has ever been seen”.—[Official Report, 20/3/14; col. 280.]
On 5 February, of the Youth Contract, he said: “Our approach is working”. On 7 April, he said:
“Our approach continues to work”.—[Official Report, 7/4/14; col. 1129.]
On 17 June, we were back to “the most comprehensive response”, et cetera. Now we learn that the wage incentive scheme is being scrapped. Can the Minister tell the House, first, how many of the target 160,000 wage incentive payments have been made? The last note that I saw had a figure of 10,000. Secondly, when did he realise the scheme was not going to reach its target and why did he not tell the House sooner?
Lord Freud
My Lords, I am keen to reaffirm that the Youth Contract is both comprehensive and working. One element, the wage incentive, has now helped more than 65,000 youngsters into jobs. The other elements of the programme are performing powerfully: 148,000 youngsters have started work experience on the programme, and 46,000 have gone into sector-based work academies.
Lord Roberts of Llandudno (LD)
My Lords, while I congratulate the Government on what has been achieved, the Minister surely understands the great devastation of youth unemployment, not only in the UK but throughout Europe. It is destroying hope and potential. Can we not now initiate a new European-wide project to somehow lower that figure across the board and restore hope to so many young people?
Lord Freud
Youth unemployment is different in its nature from general unemployment in that there is a scarring effect for the young if they do not get into the workforce early. We therefore need to make extra effort to get youngsters into the workforce, which many of our measures are designed to do. There has been a real recasting of support for youngsters, whether through training, education or apprenticeships, and we are providing this support for them through the Work Programme, the jobcentres and work experience. We have myriad programmes, and they are actually having an effect. We are now seeing very steep falls. It is not yet good enough but it is moving aggressively in the right direction.
The Lord Bishop of St Albans
My Lords, a significant part of the problem is that there are some posts suitable for young people, but they are often in parts of the country where accommodation is prohibitively expensive or the cost of commuting simply precludes them from taking those jobs. In the light of that, have Her Majesty’s Government considered embracing the concept of the living wage for all people of working age?
Lord Freud
Obviously we have looked at the living wage. If the figure suggested for the living wage were to be adopted, we would have to consider the impact on unemployment and the particular impact on youngsters, who would be hit worst. The NIESR estimated that adopting the living wage as opposed to the minimum wage would knock 300,000 youngsters out of work.
Lord Davies of Stamford
My Lords, it is obviously very important to do everything that we possibly can to help young people into work for the first time or back into work from unemployment.
Lord Davies of Stamford
The coalition has already had time; I am sorry.
But what the Minister describes as a scarring effect can affect people at any age if they spend too long outside the workforce and cannot get back into a job. I have asked the Minister questions about this before and he has avoided them. Can he now tell us whether the Government keep evidence of age discrimination being practised against jobseekers? Can he also tell us what the Government do if they come across a prima facie case of age discrimination? Have they ever prosecuted or might they prosecute if a clear case arose?
Lord Freud
I have written to the noble Lord on this matter. We have not prosecuted in such a case but if we found something egregious we would consider doing so.
Baroness O’Cathain (Con)
My Lords, does my noble friend agree with me that it is about time those on the opposite side celebrated with us that there has been such an increase in youth employment in the last few months? Secondly, the way in which we are doing it is right. As my noble friend Lord Roberts said, the last thing we want is one EU policy. I want to know from my noble friend the Minister whether we are getting down into the local areas to get the local employment partnerships involved in training and giving apprenticeships to unemployed youths, which is what we need to do.
Lord Freud
My Lords, it is exactly right that we need to get to the real problems of youth unemployment and the structural level of unemployment—youngsters who are workless. That figure grew through the longest boom in our history and only now are we beginning to see it come down. We are going for the youngsters who have not been looked after properly in recent decades. The figure I always cite in this House is the full number of workless—both unemployed and inactive. In 1997 that figure was 17.7%. It remained flat through the boom and at the peak it was 17.4%—not much difference. At the end of the recession it stood at 19.1% and now it is right down below any of those figures at 16.8%. That shows that our policies are beginning to work on the people who are structurally disadvantaged in this country.
Standing Orders (Public Business)
(10 years ago)
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Baroness Stowell of Beeston
That the standing orders relating to public business be amended as follows:
Standing Order 10 (Hereditary peers by-elections)
In paragraph (1), after “death” insert “, or resignation or expulsion from the House under the House of Lords Reform Act 2014,”.
In paragraphs (2) and (3): after "death" insert "or resignation or expulsion".
Standing Orders (Public Business)
(10 years ago)
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Baroness Stowell of Beeston
That Standing Order 10(6) (Hereditary peers: by-elections), which requires that by-elections take place within three months of a vacancy occurring, be dispensed with to allow the by-election following the death of Lord Methuen to take place on 21 October 2014.
Lord Hunt of Kings Heath (Lab)
My Lords, may I ask the Leader of the House for some clarification? As we apparently have the ability to delay the by-election of an hereditary Peer for some weeks, does that mean we could delay it for some years, or indeed indefinitely? If so, ought we not to do so?
The Lord Privy Seal (Baroness Stowell of Beeston) (Con)
I think the noble Lord is clear about what we are doing. We are making a change to provide for a logistical matter so that the by-election can be held when the House returns in the autumn.
House Committee
The Chairman of Committees
That the 1st Report from the Select Committee (Banqueting rules) (HL Paper 8) be agreed to.
The Chairman of Committees (Lord Sewel)
My Lords, the Refreshment Committee reviewed the current banqueting rules in May this year. It made recommendations to the House Committee, which are set out in the report before the House today. The purpose of the revisions is to ensure that the rules concerning banqueting are clear and to better protect Members financially when they sponsor events for third parties. If agreed today, the new rules will take effect from 1 January 2015.
Affordable Childcare Committee
The Chairman of Committees
That Lord Brabazon of Tara be appointed a member of the Select Committee in place of Baroness Neville-Rolfe, resigned.
Wales Bill
(10 years ago)
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Baroness Randerson
That it be an instruction to the Committee of the Whole House to which the Wales Bill has been committed that they consider the Bill in the following order:
Clauses 1 to 12, Schedule 1, Clauses 13 to 16, Schedule 2, Clauses 17 to 30.
Deregulation Bill
(10 years ago)
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Lord Wallace of Saltaire
That-
(a) Clauses 1 to 12 of, and Schedules 1 to 3 to, the Deregulation Bill be committed to a Committee of the Whole House;
(b) the remainder of the Bill be committed to a Grand Committee.
Lord Skelmersdale (Con)
My Lords, we are faced with a slightly unusual situation in that Clauses 1 to 12 and Schedules 1 to 3 are to be debated in Committee of the Whole House and the rest of the Bill, Clauses 13 to 91 and associated schedules, are to be taken in the Moses Room. In theory, the beginning of the second group could be taken at the same time as the House is in Committee on the first part of the Bill. May I have an assurance that this will not happen?
Lord Wallace of Saltaire (LD)
My Lords, I would love to be able to be in two places at the same time, but unfortunately that is not possible. I can inform the House that the first day, the Committee of the Whole House, has been agreed to take place on 21 October and the first day in Grand Committee has been agreed to take place on 28 October the following week.
Deregulation Bill
(10 years ago)
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Lord Wallace of Saltaire
That it be an instruction to the Committee of the Whole House to which provisions of the Deregulation Bill have been committed that they consider those provisions in the following order:
Clauses 1 to 3, Schedule 1, Clauses 4 to 8, Schedule 2, Clause 9, Schedule 3, Clauses 10 to 12.
Deregulation Bill
(10 years ago)
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Lord Wallace of Saltaire
That it be an instruction to the Grand Committee to which provisions of the Deregulation Bill have been committed that they consider those provisions in the following order:
Clauses 13 and 14, Schedule 4, Clauses 15 to 19, Schedule 5, Clause 20, Schedule 6, Clauses 21 to 27, Schedule 7, Clauses 28 to 35, Schedule 8, Clause 36, Schedule 9, Clause 37, Schedule 10, Clauses 38 to 43 , Schedule 11, Clause 44, Schedule 12, Clauses 45 to 49 , Schedule 13, Clause 50 , Schedule 14, Clause 51, Schedule 15, Clause 52, Schedule 16, Clauses 53 and 54, Schedule 17, Clauses 55 to 68, Schedule 18, Clauses 69 to 78, Schedule 19, Clauses 79 to 82, Schedule 20, Clauses 83 to 91.
Serious Crime Bill [HL]
(10 years ago)
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Lord Taylor of Holbeach
That the amendments for the Report stage be marshalled and considered in the following order:
Clauses 1 to 45, Schedule 1, Clauses 46 to 53, Schedule 2, Clauses 54 to 66, Schedule 3, Clauses 67 to 70, Schedule 4, Clauses 71 to 74.
Local Audit (Auditor Panel Independence) Regulations 2014
Lord Ahmad of Wimbledon
That the draft regulations laid before the House on 3 July be approved.
Relevant document: 6th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 28 July.
Baroness Anelay of St Johns (Con)
My Lords, on behalf of my noble friend, I beg to move the Motion standing in his name on the Order Paper.
Video Recordings Act 1984 (Exempted Video Works) Regulations 2014
(10 years ago)
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Lord Bates
That the draft regulations laid before the House on 30 June be approved.
Relevant document: 5th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 28 July.
Anti-social Behaviour, Crime and Policing Act 2014 (Consequential Amendments) Order 2014
(10 years ago)
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Lord Taylor of Holbeach
That the draft order laid before the House on 7 July be approved.
Relevant document: 6th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 28 July.
Insurance Bill [HL]
(10 years ago)
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Criminal Justice and Courts Bill
(10 years ago)
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Lord Beecham
Lord Beecham (Lab)
My Lords, one of the most objectionable provisions in Part 4 of the Bill, which deals with judicial review, is embodied in Clauses 65 and 66, dealing with the provision of information about financial resources. Amendments 73G, 73H, 73M, 73Q, 73T, 73U and 73X in my name deal with this issue, alongside those in the previous group, which dealt with the procedural aspects covered in the Delegated Powers and Regulatory Reform Committee report and which we debated in somewhat curious fashion on Monday. Then, it will be recalled, we broke shortly before the dinner break business and the Minister had the unusual job of making a very short reply after the dinner break.
At Second Reading, the Minister described Part 4 as,
“a much needed rebalancing of the financial risk of bringing or driving a weak judicial review. We think it right that those who bring or choose to become involved in a judicial review should face their fair share of the financial risk that entails”.
The noble Lord went on in a minatory—or should I say “maxi-Tory”?—vein to say:
“Those who intervene in a case … can … add value … but we think it right that they should face the financial consequences of their decision to intervene”.—[Official Report, 30/6/14; col. 1542.]
This, as we will no doubt hear again today and heard at Second Reading, completely misrepresents the character of intervention, which, after all, requires permission from the court. It is very often provided in significant cases of public interest by reputable charitable organisations and equally often is found to be helpful to the parties and to the court. I cannot blame the Minister—the voice is the voice of the noble Lord, but the hands around the throat of judicial review are the hands of the Lord Chancellor.
Clause 65 requires an applicant for leave to apply for judicial review to disclose any information about the source, nature and extent of financial resources available, or likely to be available, to meet the costs of the proceedings. The nature of the information would, as we heard on Monday, be specified by rules of court effectively determined by the Lord Chancellor because, as was made clear on that occasion, the rules of court committee effectively has to implement what the Lord Chancellor desires to be done.
Amendment 73G is intended, on the assumption that Clause 65 stands part of the Bill, to provide for judicial discretion about the funding issue. I must concede that it is poorly drafted and the word “or” in the amendment should be replaced by “unless”.
Amendments 73H and 73M would remove the court’s duty to consider what information is, in the Government’s extraordinary formulation, “likely to be available”. “Who from?”, one wonders. Crowdfunding, charities, or repentant spouses of Russian businessmen deprived of tennis games with the Prime Minister? And what is meant by the test of likelihood? Come to that, what is meant by the test of availability?
Amendments 73Q and 73U would restore the court’s discretion in the matter of an order for a non-party to pay costs, while Amendment 73X would confine any surviving provision for the court to order costs to those who actually provide financial support rather than those likely or able to provide it, who may never have provided such financial support. It is of course interesting that no equivalent provision in relation to costs appears to apply to those who might benefit from—or even, I suppose, help to fund, directly or indirectly, the respondent to—an application, unless Clause 66(3) is intended to apply in such a case. Perhaps the noble Lord could confirm whether that is the position.
In general, however, the effect of Clause 65 is to threaten not only the applicant but those who might support an application with a liability for costs on the basis of guilt by association in the eyes of the Government—who might, of course, be the defendant. That is an improper approach. The whole object of the clause is clearly designed to provide what we have heard referred to in debates on the Bill thus far as a “chilling effect” on the judicial review process, and in particular on those who might wish to raise significant matters affecting the rule of law where, I repeat, the court has to grant permission in any event. It is a wholly improper concept and I hope that even at this stage the noble Lord will indicate that the Government are prepared to think again about it. If they are not, and we get to Report with the Bill unamended, serious consideration will have to be given as to what will happen thereafter, because the portents do not look good for the preservation of judicial review in this important respect. I beg to move.
Lord Pannick (CB)
My Lords, I have indicated my opposition to Clauses 65 and 66 standing part of the Bill and I agree with everything that has been said by the noble Lord, Lord Beecham. I do not understand why the Government are seeking to single out judicial review for such provisions, unlike any other form of civil litigation, unless the objective is to discourage judicial review claims. Where is the evidence of any mischief that these clauses are designed to remedy? Courts already have ample powers, which they exercise in appropriate cases, to require third parties to pay costs.
I am particularly concerned about the effect that these clauses will inevitably have because the reduction in legal aid already makes it extremely difficult for claimants to secure funding for judicial review on matters of public importance. If claimants are able to demonstrate that they have a properly arguable case on its merits, and if they satisfy other requirements such as standing and time limits, they should not be obstructed further by complex requirements—as these are—to disclose financial information.
In any event, Clause 65 is far too broadly drafted, referring as it does to financial resources “likely to be available” to the applicant. What does that mean? Does it cover the family and friends of the applicant, the law firm or law centre that is providing services pro bono and the charity that is supporting the claim? For all these reasons, I am concerned that Clauses 65 and 66 will impose a wholly unnecessary hurdle that will impede the delivery of justice in this important area of the law.
Lord Woolf (CB)
My Lords, first, I apologise to the House that I was a little late in arriving; I was giving evidence before the House’s Constitution Committee. I endorse what I heard of the speech made by the noble Lord, Lord Beecham, and I support my noble friend Lord Pannick in what he has said. The situation with regard to judicial review is that it is much more difficult for one to be funded in the way that ordinary civil actions are funded. In the case of ordinary civil actions, it is well established that the conditional fee arrangement, although it has been modified by recent amendments, is working reasonably well. Certainly as far as claimants are concerned, they are in a position to take on responsibilities which they could not otherwise take on.
However, in judicial review, it is very rare indeed that any damages or any form of financial benefit to the claimant are involved, so a claimant in that situation will have much greater difficulty in financing an application for judicial review than he would if he was bringing a claim for an injury in a motor accident, for example. This is just one more difficulty which is placed on the claimant, which makes it particularly important that the possible, very serious, unintended consequences of these provisions are looked at very carefully. It is very important that there should be access to justice, as that goes to the very heart of the rule of law. Access to justice should be easier in the case of judicial review than it is otherwise.
In India, for example, which is not somewhere you would normally look to for expeditious legal proceedings, the Supreme Court can respond to a postcard that is written to it. We have a much more complex process than that, but they thought it very important that the traditional jurisdiction of the Supreme Court of India, which is based on the very same provisions in our system as judicial review, should be available for the widest audience. Therefore they allow that to happen.
As far as I am concerned, one of the most important decisions I gave as a judge of first instance was on an application by the Child Poverty Action Group. I stressed in my judgment—which anybody can refer to—how important it was to extend the rights of audience and to take a generous view of standing. Otherwise, matters that affected the whole of society would not be examined by the courts. Each person entitled to supplementary benefit at that time was going to get only a very small sum of money, but it was a sum of money that was extremely important to them and made the difference to the whole of their existence. However, they could not finance the case themselves. If you take away legal aid in that sort of situation, and then add to the problem as this legislation does, that is something to worry about.
Lord Marks of Henley-on-Thames (LD)
My Lords, I said a great deal of what I intended to say on Clause 65 when I spoke to the amendment moved by the noble Lord, Lord Beecham, to the clause on Monday. My position, as I explained, is that I regard the requirement for any supporter of an application for judicial review to disclose the extent of his actual or likely financial resources as being contrary to justice and likely to deter or even stifle legitimate applications for judicial review.
I accept that there is a case for ensuring that applicants with means do not hide behind applicants with no means or shell corporations to bring a judicial review application without facing, or being prepared to face, the costs consequences of its failure. However, the provisions proposed by Clauses 65 and 66 are far wider than is necessary simply to limit that practice where it exists. As the noble Lord, Lord Pannick, pointed out, the courts already have ample powers to order costs against non-parties under Section 51 of the Senior Courts Act and under Rule 46.2 of the Civil Procedure Rules. Third parties who support litigation can be ordered to pay the costs of that litigation if they are effectively the real applicants and the applicants on the proceedings are mere nominees. That is just and as it should be. However, I suggest that Clause 66 as it stands—which goes far wider—is unnecessary and, in its mandatory effect, unduly dirigiste.
Baroness Lister of Burtersett (Lab)
My Lords, I want to ask a question which was touched on by my noble friend Lord Beecham, by the noble Baroness, Lady Campbell of Surbiton, in our previous grouping, and also today by the noble Lord, Lord Pannick. At Second Reading, the Minister categorically assured your Lordships’ House that ensuring the courts have the information they need when awarding costs,
“does not mean that everyone who donates to a campaign will be at risk”. — [Official Report, 30 June 2014; col. 1542.]
Yet in both written and oral briefings that I have received, this very risk has been one of the concerns that have been raised. For example, Liberty and the Bar Council both warn of the chilling or deterrent effect of these clauses, which appear to mean that people who are not directly party to the proceedings but who have supported an applicant could be held liable for costs. Michael Spencer, solicitor for the Child Poverty Action Group—I remind the Committee of my interest as honorary president of that organisation, already referred to by the noble and learned Lord, Lord Woolf—spoke to the Human Rights Lawyers Association and warned:
“If individuals or groups fundraise or seek donations to help bring their case, the financial clauses of the Bill will put their donors and funders at risk too”.
Will the Minister spell out in words that a non-lawyer can understand who will and will not be at risk of liability? If it is not everyone, is it someone or is it no one? There are two very different ways in which the assurance could be interpreted. If it is no one, could the Minister point—perhaps this is not so helpful for the non-lawyers—to where in the Bill that is made clear? Some people are reading the Bill as saying that it will affect someone, even if not absolutely everyone.
Perhaps the Minister could also answer some very specific questions put by the coalition of civil society organisations that have been briefing noble Lords about the clarity needed on third-party costs liability. They ask whether, if a family chips in to fund a relative’s challenge to a treatment in a care home, they will be liable for costs, perhaps putting their homes at risk. Lawyers may act pro bono to support people who cannot pay. Will their gift in kind mean that they are treated as someone funding or likely to fund the case? If a community group uses crowdsourcing to fund litigation, as was the case with the Lewisham hospital challenge, will every donation carry a cost risk?
I hope that today, once and for all, it can be clarified who exactly is at risk as a result of these clauses. If the fears being voiced by so many organisations are realised, I suspect that noble Lords may want to come back to this matter on Report.
Lord Cormack (Con)
My Lords, the noble Baroness asks some pertinent and important questions. I had not intended to contribute to this debate, but was moved to do so by the extremely perceptive observations of the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Marks, both of whom made some valid points.
We will be constantly reminded in 2015 of those central words of Magna Carta:
“To no one will we sell, to no one deny … justice”.
When the noble and learned Lord, Lord Woolf, talked about access to justice and how important it is that everyone should have it, it reinforced my belief that, although it is entirely proper to ask the sort of questions which my noble friend Lord Marks addressed, I would rather—I have said something similar in this Chamber before—we erred on the side of leniency. One is constantly reminded of that old adage that it is better that 10 guilty people get off than that an innocent person does not. In the context of the judicial review, it is far more important that the sort of people for whom the noble Baroness, Lady Campbell of Surbiton, pleaded the other day should not be discriminated against than that somebody who may be a little better heeled should be so. I hope that we can bring a balance to this matter and remind ourselves of that basic tenet of the rule of law:
“To no one will we sell, to no one deny … justice”.
Lord Davies of Stamford (Lab)
My Lords, I agreed with the very eloquent plea on behalf of the system of judicial review in a country based on the rule of law which we have just heard from the noble and learned Lord, Lord Woolf. I agree also with the remarks of and amendments put forward by the noble Lords, Lord Beecham, Lord Pannick and Lord Marks.
My noble friend Lady Lister has asked a lot of the pertinent questions. The noble Lord, Lord Cormack, just mentioned Magna Carta. I draw his attention to another part of that document. Ever since Magna Carta, it has been a principle that the state, the King or the Government cannot seize the property of the citizen except by some very clearly defined legal process and in very sharply legally defined circumstances.
Although I think that the rules about making third parties financially liable for court cases are not as clear in the law as a whole, particularly since the Hamilton v Al Fayed case, as they should be—and it would very good if we could have those codified more precisely—what would happen to the law in the matter of judicial reviews if we passed this Bill as it is would be quite horrifying. Clause 66 (3) states that a,
“court or tribunal must consider whether to order costs to be paid by a person other than a party to the proceedings, who is identified in that information as someone who is providing financial support for the purposes of the proceedings or likely or able to do so”.
I repeat,
“or likely or able to do so”.
That is in no sense precisely defined—it could be anybody. It could be any of the people listed by my noble friend Lady Lister. It could be—could it not?—someone who is a member of a corporate body, even though he or she had played no particular part in preparing for, or promoting, that application for judicial review. It could be—that would be a fear—someone who was a known supporter of a particular NGO which itself was an applicant; but, again, without he or she having played any part in supporting that application, or perhaps without even knowing that the application was being put forward. That is a perfectly possible scenario. We need to make absolutely sure that none of these obvious perversions of justice could occur.
I totally agree with the implication of the rhetorical question posed in the House this morning by the noble Lord, Lord Pannick, which is: why are the Government doing this? Clearly the Government are doing this in order to close down the judicial review system to the greatest degree possible, with the intention of protecting the Executive branch—it is a very dangerous tendency. What they are doing here, however, is drafting a law which simply does not meet the elementary requirement to be precise, clear and unambiguous. I think this phrase,
“or likely or able to do so”,
is really quite terrifying, and I hope we get some clear definitions from the Minister. Just a statement from the Front Bench will not do: we need to remove these very offensive—very dangerous—words, and replace them with something much more precise.
Since this group of amendments encompasses two clauses and two clause stand part debates, on Clauses 65 and 66, it is probably the right moment for me to raise Clause 67. It is probably also right for me to raise another matter that is coming up: Clause 68. Perhaps Clause 68 is coming up in another group of amendments. Is that the case?
Lord Davies of Stamford
In that case I look forward to addressing the Committee on that matter later.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I add my name to those who have raised the objections to these clauses. The noble Lord, Lord Davies, says that one should have greater precision if one is going to legislate in this way. The fact is that you cannot have greater precision. This feature of the Bill, like so many other features of Part 4, should be left to the courts to work out. As has already been said, there is an existing and entirely satisfactory body of law which governs the ability to pursue cost orders from unseen funders and backers of litigation—those who mischievously or for their own advantage support litigation—but not from those who, appropriately and philanthropically, rightly back public interest causes.
Indeed, in the justice briefing on these aspects of the Bill there is a footnote—a reference to a case that the noble Lord, Lord Davies, mentioned a few moments ago: Hamilton v Al Fayed (No. 2), which was decided in 2003. Noble Lords will find this an illuminating judgment—it is one that I myself wrote—that provides an ample basis for developing this area of the law. This should be left to the courts. We should not seek to deal with it in this way, which is necessarily going to lack precision because legislation cannot address all the varying circumstances that could arise.
Lord Davies of Stamford
In the circumstances, I am following what the noble and learned Lord is saying particularly closely. He seems to think that it is adequate that the courts should set rules on these matters. Does he not agree that it is very important that a citizen should always know in advance whether he or she is incurring liability, just like a solicitor needs to know in advance whether he or she is breaking the law? There should be no ambiguity in these matters. It should be quite clear what constitutes support, potential support or the creation of potential liability. It is very unreasonable that the citizen should be left in any doubt on that subject.
Lord Brown of Eaton-under-Heywood
I am grateful for that intervention, which in fact underlines the point. The fact is that it is impossible. No one could draft a set of principles or rules that would accurately dictate in advance how the judicial discretion in this matter would be exercised in all possible circumstances. All that one can do is to give indications. That is what we sought to do in Hamilton and it is what the courts will do on a case-by-case basis when this question arises. You cannot categorically set out all the various circumstances. Costs are always a difficult matter. They are left to judicial discretion, and that is how it has worked down the generations. No one has ever previously tried to prescribe that the courts must in certain circumstances—or must not, in other highly specific circumstances—order costs. The real problem with this provision is that it will be used to limit access to judicial review to those who have substantial independent means. It will be used effectively to deter others from pursuing litigation because they will feel that they are at risk of endangering their supporting family or other properly supporting bodies.
Lord Mackay of Clashfern (Con)
My Lords, I am delighted to hear from the noble and learned Lord, Lord Woolf, with all his experience, that the system of financing litigation by the no-win no-fee system, as it has been called, is working reasonably well. Many noble Lords will remember that the introduction of that system was not without a certain amount of difficulty for those who were promoting it.
I think that it is not correct to say that legal aid has been removed from judicial review. My understanding is that legal aid is available up to the point at which the judicial review is permitted to go ahead or not. Subject to this, the payments to the lawyer in question will depend on whether or not the judicial review is allowed to go ahead from the point at which the respondent to the judicial review has replied to the description of the review that is put forward under the protocol. Nothing else, as far as I understand, is affecting legal aid. That seems to me completely reasonable in the circumstances of judicial review.
The last time I spoke on this part of the Bill, I hope that I made it clear that I cherish judicial review as a very important aspect of our judicial process. However, I have pointed out, and I believe that it is beyond doubt, that the scope for judicial review is a deal greater than it was many years ago when the finality clauses were in force in many provisions of statute. One has to be careful in approaching any restrictions on judicial review, though, as the noble and learned Lord who is the President of the Supreme Court has said. I am certain that the clauses that we are dealing with today, particularly the first of them, are very much in that category, and that considerable care is required.
One of the difficulties about judicial review that has been brought to my attention quite frequently over the past years is the sort of circumstance that the noble Lord, Lord Marks, referred to. I will not preface it in the way that was done earlier—I am sure that he will understand why not. In a village, nearly all the villagers are interested in having a certain decision of the local authority overturned. The villagers go to their lawyer, who says, “Well now, let’s see. Is there anybody in the village who is rather poorly off?”. Perhaps, fortunately for the system, there is no such person, in which case they have to continue on the ordinary basis, without legal aid. However, if somebody in the village qualifies for legal aid, under the scheme that can operate we will find that the whole village is able to go ahead on the basis of legal aid in such a way that if the application is unsuccessful, the litigant who is legally aided is of course protected against a court order.
The last time I spoke I illustrated how that had happened in quite a considerable campaign against the previous Government’s educational policy on academies. In the literature that was produced at the time, one thing that was said was, “So far, all the people who are applicants are entitled to legal aid, so the whole litigation will be at the expense of the taxpayer”. That is a difficult situation. The point is not that the person of little means is being in any way impeded, but that they have become an instrument for attacking the taxpayer generally. I am not sure as yet what the right way to deal with that problem is, but it certainly needs to be dealt with. I suppose that the courts could deal with it, but the difficulty is that there are a lot of individual applications, each of which is usually dealt with separately. In the case of the Government’s policy on academies, most of the attacks were based on local considerations—although, as was said, the whole scheme was being attacked.
I certainly regard it as of the utmost importance that any rules of this kind that are put forward are very carefully scrutinised. It may well be that as phrased in this clause they are somewhat on the wide side. However, it does seem that there is a problem that your Lordships will need to address in some way to preserve justice for the taxpayer, as well as for the litigant. I am not at all in favour of putting any more difficulties in the way of a proper litigant applying for judicial review than exist at the present time. I am concerned at the development of matters around judicial review over the years—and over recent years in particular. To have a shell company that is set up particularly for the purpose of promoting a judicial review strikes me as somewhat strange, and whether the rules are sufficient to cope with that is a matter that I would like to hear about.
The other aspect, referred to by the noble and learned Lord, Lord Woolf, is standing. I mentioned the other day that I was nominated as senior counsel for the Crown in the original decision on standing in this House, but the courts have expanded the concept of standing quite fully since then. I am not certain whether it embraces the standing of a shell company set up by people to protect themselves against the possibility of court costs. No doubt those who are more familiar with recent practice will be able to help me on that point. For the time being, it seems to me that there is a problem to be dealt with, and I am anxious to learn whether the proposals in the Bill or the amendments are a better way of dealing with it.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, this has been a very helpful and well informed debate on the clauses dealing with the provision of information about financial resources and—it is important to distinguish between the two—the use of information about those financial resources.
As noble Lords will be aware, anyone wishing to bring a judicial review must first obtain the permission of the court to proceed. This is set out in Section 31 of the Senior Courts Act 1981 and mirrored in Section 16 of the Tribunals, Courts and Enforcement Act 2007. Clauses 65 and 66 relate to the information that an applicant must provide as part of that application and direct the court to consider that information when making costs orders. In order to ensure that the court is properly informed under Clause 65, the court or Upper Tribunal cannot grant permission to proceed with judicial review unless information on funding is provided. Clause 66 requires that the courts have regard to this information when exercising their existing powers and discretion to award costs.
Amendments 73G, 73H and 73M, taken together, seek to weaken the requirement that an applicant applying to the court or tribunal for permission to bring a judicial review provides information on financial resources. The effect of Amendment 73G would be to enable the courts to disapply that requirement in whole or in part. Nothing is provided about the circumstances under which the court may disapply the requirement. Amendments 73H and 73M seek to remove the requirement for an applicant to supply information about financial resources that are “likely to be available” to fund the claim. There is presently no general requirement for applicants to reveal the source of funding they are receiving for a claim. This may hinder the courts in assessing fairly the available financial resources when making costs orders. Requiring the applicant to provide this information, regardless of whether the funding is provided by a formal party to the claim, will assist the courts in better exercising their existing powers and discretion to apportion costs fairly. Also—and this is worth stressing—in responding to our recent consultation on judicial review, the senior judiciary welcomed the greater transparency that this would involve, although not the former judges who have participated in this debate.
We are concerned that potential applicants are able to set up shell companies, with the sole purpose of fronting a judicial review, enabling the individuals or bodies driving the claim to avoid full costs implications, ultimately at taxpayers’ expense. Take the challenge to my right honourable friend the Secretary of State for Justice’s decision to grant a licence to exhume human remains which turned out to be those of Richard III; a case referred to in Monday’s debate by the noble Lord, Lord Beecham. A company was formed to bring that judicial review, protecting the sole director from costs liability and an absolute protective costs order was granted, in part on the basis that the company itself did not have any assets. Noble Lords may be aware that the court in this case recently found that the decision of the Secretary of State for Justice was entirely lawful. However, the taxpayer has been left to foot the Secretary of State’s costs, of £82,000 up to March this year, in properly defending his lawful actions. The wider cost to the public purse has been put at £175,000 and may be higher.
Lord Woolf
Is the Minister saying that the powers the court has now would not have enabled it to obtain information about who was behind the shell company to which he referred and if need be to make an exceptional order for costs against the persons supporting it?
Lord Faulks
These clauses will require the court to go through the processes described in them. It is true that a particularly inquisitive court might have been able to find out more than—
Lord Woolf
Could an application not have been made by the Crown saying it was seeking orders for costs and asking the court to make the appropriate orders?
Lord Faulks
The problem was that there was nobody to enforce an order for costs against, effectively. That was the disadvantage that accrued to the taxpayer. Clause 65, which was welcomed by the senior judiciary, provides for information about financial resources to be provided and for that information to be used. The problem was that that case proceeded and there was no way of recovering the costs when it concluded.
Lord Marks of Henley-on-Thames
I am sorry to take up the Committee’s time, but I am not sure that the Minister has answered the point made by the noble and learned Lord, Lord Woolf. First, there is clearly a power to order the backers of a shell company to pay the costs if a shell company is put forward as the applicant. The question to which the noble and learned Lord, Lord Woolf, wanted an answer was whether the Minister agreed that in the exercise of that power, or in considering the exercise of that power, the court would not have ample power to require information about the nature and extent of the backing and then to consider orders accordingly. I suggest that it is quite clear that the court has that power.
Lord Faulks
The court certainly has power to make orders against non-parties in appropriate circumstances under the existing law. It is not normally the case that that is happening. The purpose of these clauses is to provide a statutory framework in which the court can find the information and use it if it thinks appropriate while retaining the discretion.
Lord Woolf
I really must press the Minister. I know he will forgive me rising again. If we do not want to increase the costs of the ordinary application for judicial review, is it not very important that where you have a special case, such as the one to which the noble and learned Lord, Lord Mackay, referred in his recent speech and the case we are looking at now with the particular circumstances relating to Richard’s burial, applications arise to deal with the particular case rather than putting matters on the general body of applicants for judicial review who receive assistance?
Lord Faulks
In many cases, this will be a fairly straightforward procedure, whereas in the Richard III case it would have been a rather unusual, more searching procedure. I am afraid that I cannot depart from the Government’s position that these clauses will put in statute an important process which has not always been adequately undertaken by judges, and which was welcomed by the senior judiciary, in order, in some circumstances—
Lord Davies of Stamford
Can we just establish the facts in relation to the Richard III case? We know that it would have been possible for the court in such a case, if it wished to do so, to investigate the funding of the straw company or the straw man who was the applicant and, if necessary, to have made an order for costs against the backers of that action. We also know that, in that case, that action was not taken. Did the Government make an application for a costs award in their favour on that occasion? In other words, did they attempt to initiate that process in the Richard III case?
Lord Faulks
I am not aware that they did. Rather than take up more time discussing the particular facts of that case, I will write to all noble Lords who have taken part in this debate and explain what course the Government took in relation to it. I think I have probably taken up enough time on the subject.
What we are concerned with is not, in fact, a radical departure from what exists, but sets down clearly the scope of the discretion and makes it a matter of course that in such cases there will be information about the financial resources, and that they will be used. As I have conceded, these clauses do not introduce any new principles concerning the costs liability of non-parties. Their purpose is to increase transparency, so as to allow the courts to exercise their existing powers and discretion more effectively. In other words, more information will be available on which to make any decision that they have to make.
The Government do not agree that the requirement to provide information should be limited or applied only in certain circumstances, as Amendment 73G would provide. We do not accept that the transparency requirements should apply to some people and not to others. Furthermore, we do not agree that prospective funding should be excluded from the information that an applicant is expected to disclose, as Amendments 73H and 73M seek to achieve. It is vital that the courts have before them the full financial picture of a claim. This must include details of any financial resources that are likely to be available towards the costs of the litigation. Noble Lords will surely accept that, were these amendments made, third-party funders who sought to protect themselves from liability would merely structure that funding in such a way that it would not be available on application but only thereafter.
We will be working with the Civil Procedure Rule Committee and the Tribunal Procedure Committee so that the rules can make clear the exact parameters of the information that applicants will be required to provide, together with a duty for applicants to update the information where circumstances change materially. The noble Lord, Lord Beecham, suggested that the rules of court would simply reflect what the Lord Chancellor wants. The position is that the Lord Chancellor can direct that they achieve a certain purpose, but the terms are for the rule committee. As I endeavoured to explain last time we debated these matters, the rule committee is made up of some extremely distinguished lawyers, and they will be responsible for the particular terms of the rules. I do not accept that the transparency requirement that Clause 65 permits is an onerous one.
I turn now to Clause 66. Amendments 73N, 73P and 73R are concerned with what the judge does with the information, and seek to change the circumstances in which the court should have regard to information about the funding of the application when making costs orders. Rather than requiring the court to consider the funding information provided under Clause 65, the amendments would allow the court to have discretion to consider financial information, which it would be able to order the applicant to provide if it considered it just to do so. The information would be limited to sources of funding actually available to the applicant, and would not cover sources that were likely to be available. Rather than looking at the applicant’s ability to fund the judicial review generally, the information would be limited to how the applicant would meet the other side’s costs.
Amendments 73Q and 73U seek to replace the duty, conveyed by the word “must”, with a discretion, conveyed by the word “may”, for the court or Upper Tribunal to have regard to information provided under Clause 65 when considering costs awards. These clauses do not mean that applicants have to provide an in-depth breakdown of every aspect of their financial position, but it is right that they should provide information on how they will fund the judicial review generally, and not just the other side’s costs. If necessary, applicants will be able to update the court at a later stage if the position changes. I would expect those who choose to bring a judicial review to consider first how they will meet the costs of doing so. This is what the clause seeks to bring about.
It is right that the courts should consider this information. Let me be clear that this does not mean that a court will be obliged to make a costs award against a non-party. As the noble and learned Lord, Lord Brown, made clear, there is a substantial body of jurisprudence as to how the discretion is exercised vis-à-vis a non-party. Rather, the courts are obliged to consider the information properly when deciding whether or not to make such an order.
Amendment 73T would allow the courts or Upper Tribunal to sit in private or impose reporting restrictions to protect the privacy of a person’s financial information which is required to be provided under Clause 65. I fully understand that it may seem that such a provision is necessary, but I hope to be able to provide reassurance that the amendments are not necessary as courts have existing powers in this area. There has long been a general rule that a hearing is to be in public. However, the power has existed for a long time to conduct proceedings in private where necessary in the interests of justice. Rule 39.2 of the Civil Procedure Rules already reflects that power so that if a hearing involves confidential information, including financial information, and if publicity would damage that confidentiality, this information can be kept private. As is the case now, this clause does not change the position that financial information made available to the courts need not be made publicly available.
Amendments 73W and 73X amend the duty on the court so that it need consider costs orders against only those who have actually provided support or, as provided by Amendment 73V, those who have promised to provide support. This would mean that the court would not have to consider making a costs order against those who are likely to contribute to the funding of the judicial review, including not making costs orders against those sheltering behind shell companies created simply to avoid proportionate liability for costs.
Amendment 73V would also mean that those who are likely to fund and drive litigation could escape the appropriate costs liability by not formally promising to provide support. In my view, this would defeat the purpose of the clause and is not a sensible position. It is the Government’s view that those who finance and drive judicial reviews should face appropriate costs consequences in doing so. I shall shortly answer the questions raised on that by the noble Baroness, Lady Lister, and others. This means that the court should have before it and consider all of the information when making costs awards, and this should include not just those who have provided funding but those who are likely to do so.
In my view, it should not be possible to bring litigation in such a way as to circumvent proper costs exposure. The changes introduced by Clauses 65 and 66 tackle precisely this issue, ensuring that those driving judicial reviews assume a fair and proportionate share of the financial risk, always, of course, subject to the discretion which must exist in these circumstances, given that it is impossible for a legislative provision to define exactly every single type of situation where the matter would have to be dealt with.
There is no question of singling out those who support applicants. In answer to a question raised by the noble Lord, Lord Beecham, and, I think, others, I should say that the power that courts have to order non-parties to pay costs in litigation of whatever character exists and, in appropriate circumstances, would apply to non-parties whether they are in some way supporting one side or another. That power exists.
As to the reduction in legal aid, my noble and learned friend Lord Mackay accurately stated the position in relation to legal aid. Unlike in many areas of the law, legal aid does remain in scope for judicial review subject to means tests and merits tests. That is an important inclusion of scope. On the point made by the noble Lord, Lord Pannick, the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 are concerned simply with that part of the procedure where an unsuccessful application is made for permission and only in relation to that permission. That, I know, is controversial, but it should not be thought that legal aid is not available for judicial review.
The noble and learned Lord, Lord Woolf, whose excuse for lateness was, of course, of the highest order, mentioned the availability of conditional fees. These are of course much less available following Part 2 of the LASPO Act, which indeed was supported by the noble and learned Lord, Lord Woolf, among others, on the basis that an unfortunate consequence of the expansion of the original idea of conditional fees—which I think was in modest scope the responsibility of my noble and learned friend Lord Mackay—had resulted effectively in a bonanza which was in fact having a number of undesirable consequences. There is a much more modest scope now for conditional fees.
Lord Marks of Henley-on-Thames
Presumably my noble friend would concede that the claimant who fills out the form is only going get the information from the supporters who are proposing to support him.
Lord Faulks
Quite so, but I thought that the inference was that some full disclosure of all financial circumstances was going to be required of third parties, and that is not what the rules suggest.
We suggest that these clauses are not making a radical change in the existing law. They are not, in fact, removing the capacity of those who should be able to bring claims for judicial review; they are simply placing on the statute book what some of the senior judiciary wanted, which was a degree of transparency to stop those rare cases where the taxpayer is having to pay for judicial reviews in circumstances where the true funders are managing to obscure the position in a way that no one in this Committee would like.
Lord Woolf
I am sorry once again to interrupt the Minister in his closing address, but does he agree that it is absolutely essential, if the purpose of these provisions is the limited one that he identified, that those who are preparing proceedings for an application for judicial review, who want to know what they have to do because of the provisions of Clause 65 on funding, need to be told that there will be no requirement in that sort of situation to provide particulars of the resources—to take the example we were given—of all the people in a small village who are making a contribution? Some of them may be wealthy and some may be poor, but someone who is wealthy may have a significant obligation.
Lord Faulks
The answer, I think, to the noble and learned Lord’s question is that Clause 65(1)(b) states that the information will be specified in the rules of court. The anxieties expressed in the Committee and by those who have provided briefings and written articles are clearly matters that will be taken into consideration, and we do not want to stifle proper judicial reviews or make people feel anxious about small contributions. These matters will be taken into account. However, for the reasons that have also been outlined in argument, we cannot specify in this statute every single, precise situation.
I hope that I have gone some way to reassure those who have sought—
Lord Goldsmith (Lab)
I am grateful to the Minister for giving way. I was taken by a remark he made a few moments ago. I was listening attentively to everything that he and noble Lords have said. He seemed to suggest that these changes were here simply because the senior judiciary had asked for them. Is that what he was saying, because I am surprised if that is the position?
Lord Faulks
No, I do not think that the noble and learned Lord was here at the beginning of the debate, but I have not, in fact, suggested that the provisions were there only for that reason. I see the noble Lord, Lord Beecham, is nodding. I said that they are there because the Government think that they should be included. However, I did say that the senior judiciary welcomed a degree of transparency. I am not suggesting that that they also endorsed the precise form of the statute, if that helps the Committee or the noble and learned Lord.
Lord Davies of Stamford
The Minister said two things, if I heard him right. One was that the intent of these clauses is not in any way to change the common law basis of the criteria for determining liability for the costs of a judicial review, and that those who are currently not exposed to such liability will not be exposed as a result of the provisions in the Bill being passed. At the same time, he said that there are categories of people who have been getting away with avoiding financial liability for judicial review at the expense of the taxpayer, when they should have been liable. Can I put it to him that those two statements are not logically compatible? Either there is a change in the scope of liability for judicial review as a result of these clauses or there is not.
Lord Faulks
I cannot add much to what I have already said. For the first time, in statute—if this clause becomes law—we shall have a requirement for information about financial resources to be provided. We shall also have clear guidance to the court as to how it should exercise its discretion on using that information about financial resources. I think that the noble Lord himself said that it was useful to have some of these things stated in the statute. That is precisely what we are doing.
Lord Beecham
The Minister has battled with arguments from around the House with as much valour as Richard III displayed at the battle of Bosworth, and with approximately the same result. The Minister’s arguments fell very far short of providing evidence of the case that the Government are seeking to rely on. We heard from him and the noble and learned Lord, Lord Mackay, about two cases. I am not sure whether one of those was hypothetical or not—I think it was a planning matter of the kind that the noble and learned Lord referred to—and the other was the Richard III case. As to the illustration of Islington cited by the noble and learned Lord, I think that the circumstances would be different now. Speaking as someone whose daughter lives in Islington and whose son has just sold a tiny flat for an enormous amount of money in Islington, I think it would be difficult to find anybody who could be described as poor in large parts of that borough. However, leaving that aside, and more substantively, let us look at the Richard III case. There is a point, and it is a fair point, about shell companies being established for that purpose.
Lord Faulks
I am hesitant to interrupt the noble Lord, but since he is coming on to deal with Richard III, and I was asked a question about it, I now have a better answer than the one I gave earlier. He may be able to comment on my answer, so I shall give him an opportunity that he might not otherwise have had. The position is that in the Richard III case the claimant—a shell company—got an absolute protective costs order as the company had no assets, so no costs at all were payable when the claimant lost the case.
Lord Beecham
I repeat that I think there is a potential issue with shell companies. How many other cases of that kind have occurred? The only one we have heard about, and the only one to which the former Lord Chancellor has legitimately referred, is the Richard III case. How many of the other 336 cases that have been brought for judicial review in the past few years have involved what I agree is an abuse? If there is a problem, which the noble and learned Lord and the Minister are perfectly right to address, could it not be dealt with differently? If necessary, there could be legislation dealing precisely with that situation, rather than a general application of principle which could affect many others who are perfectly legitimately seeking to advance their claim? It is fair to say that the Minister has not given the impression of knowing—I do not blame him, because I am in no better a position—whether the court’s current discretion will extend, as implied by the noble and learned Lord, Lord Woolf, to dealing with that situation now. If it did not, we would be prepared to support and discuss what kind of amendment might be made to the Bill to deal with that particular and discrete situation, as I have no doubt other noble Lords, particularly noble and learned Lords, would be.
Lord Mackay of Clashfern
The noble Lord asked whether the examples I gave were both real. One, which I have dealt with in detail before, is an actual example, and the other was simply to illustrate what could happen under the case put forward by the noble Lord, Lord Marks of Henley-on-Thames.
Lord Beecham
Of course the noble and learned Lord is right. I should simply have referred the Islington matter to him as a substantive one. As I said, that is unlikely to be replicated in that particular borough in any event, but that is by the way.
The Minister has signally failed to answer other questions, particularly what is meant by availability and the likelihood of availability. That question has been left in the air, which is not at all satisfactory. We have debated legal aid in this House before, as we have the problems that applicants and their legal advisers will face in dealing with matters up to the stage when permission is granted. There is a real risk that costs up to that point will not be covered by legal aid. There are other areas that will potentially be governed by other proposals, for example concerning a residence test, which currently is under appeal. We will come on to those later.
Lord Pannick
“(2) The High Court and the Court of Appeal may not order costs to be paid as between an intervener and a relevant party to the proceedings unless it considers that there are exceptional circumstances which make it appropriate to do so.
(3) In determining whether there are exceptional circumstances for the purposes of subsection (2), the court must have regard to criteria specified in rules of court.”
Lord Pannick
My Lords, Amendment 74—indeed, all the amendments in this group—concern the costs of interveners in judicial review proceedings. Clause 67 is another ill considered and unnecessary provision that will damage the efficacy of judicial review. Noble Lords will know that often in judicial review proceedings the court allows a person or body to intervene because it has knowledge, experience or an interest that will assist the court in deciding the case. Clause 67 states that interveners may not receive their costs other than in exceptional circumstances. More worryingly, it adds that, unless there are exceptional circumstances, the intervener must pay any costs that have been incurred by a party as a result of the intervention, no matter how helpful the intervention may have been.
I simply cannot understand why such provisions are necessary or why they are appropriate. The current legal position is clear and fair: the court has discretion on whether to allow an intervention and, if so, whether to order a party to the judicial review to pay the intervener’s costs—which very rarely happens in my experience—or whether to order the intervener to pay costs to a party. Clause 67, by contrast, is manifestly unfair. It will create a strong presumption that the intervener must pay costs, even if the intervention is helpful to the court in raising points and drawing attention to material that assists the court in reaching its judgment.
Why does this matter? It matters for the obvious reason that public interest bodies such as Liberty, the GMC, the UN High Commissioner for Refugees, or indeed the Secretary of State himself or herself—a number of interventions in judicial review cases are made by government departments—will be far less likely to intervene if there is a strong presumption, as the clause will ensure, that they will pay the costs of the intervention and of the other parties. If the clause is enacted, the inevitable consequence is that the court will be denied the assistance that it currently receives from public interest bodies, to the detriment of public law in this country. This makes no sense whatever. Incidentally, I note that the clause does not apply in the Supreme Court, but interventions are as frequent and helpful in the High Court and in the Court of Appeal.
Amendment 74 would introduce some sense into the clause by providing that costs should be paid to or by an intervener only in exceptional circumstances. The better solution would be to remove Clause 67 from the Bill. There is no current difficulty. Judges have ample powers to decide whether to allow interventions and what the cost consequences should be. Clause 67 would deter valuable interventions. I beg to move.
The Chairman of Committees (Lord Sewel)
I have to inform the Committee that if Amendment 74 is agreed, I cannot call Amendments 74A to 74L inclusive by reason of pre-emption.
Baroness Kennedy of The Shaws (Lab)
My Lords, I support the amendment. I notice that the Minister has invoked the senior judiciary in other aspects of the Bill. I remind the Committee that there is considerable judicial support for interventions—and not just in the Supreme Court. Judges have a very wide discretion in allowing such interventions. Only last October the noble and learned Baroness, Lady Hale—who is a Supreme Court judge, but she was speaking generally—spoke about how the more difficult a matter is on an important subject in the courts, the more help we need to try to get the right answer.
Interventions are enormously helpful. That is the view of the judges dealing with these kinds of cases. They have discretion as to whether to allow the intervention. Interventions come from organisations that do not have great resources. More often than not, the lawyers are in fact acting pro bono for NGOs and bodies such as Justice, of which I am chair of the council. The idea that this will now involve the real risk of incurring costs will have a very detrimental effect on something that is of enormous benefit in reaching a just resolution to many issues. I strongly support the amendment. I hope there will be second thoughts as to whether the change should be introduced.
Baroness Campbell of Surbiton (CB)
My Lords, I wish to speak in support of all the amendments in this group and, in particular, Amendment 74, in the name of my noble friend Lord Pannick, and to oppose the Question that Clause 67 stand part of the Bill.
There is a very strong presumption that interveners will be liable for the other party’s costs arising from an intervention, as well as their own, unless there are exceptional circumstances. This, as I understand it, is regardless of the outcome of the case and of whether the intervention helped, so potentially they could be liable for the legal costs of the party who loses the case. As a lay person, I do not see the justice in that. At present, the court decides who pays the costs and, for me, this works perfectly well.
This provision appears to the lay person to be designed for one purpose only—to deter interventions from organisations with limited resources. Unlike government departments, they could not contemplate such a risk. That applies to many charities; I spoke about this at Second Reading. Many of them have very small budgets and are run by volunteers, who are only too aware—perhaps they are overcautious—of their responsibility to avoid any financial risks.
Judges have consistently acknowledged the value of interventions in helping them to come to the right decision. It is in the public interest that they hear relevant evidence on important issues. If fewer interventions are made, they will lose vital sources of expertise, especially in relation to those most in need of protecting. The intervention of the Equality and Human Rights Commission in the case of R (B) v DPP in 2009 is a really good example of this. In this case the Crown Prosecution Service stopped a prosecution because the victim had a mental illness. This led to valuable new guidance on dealing with vulnerable witnesses and defendants in the criminal justice system.
During my time at the Disability Rights Commission —I was on the legal committee at that time—the DRC’s intervention in Burke, a case concerning the GMC’s guidance on the withdrawal of food, hydration and treatment, was, unusually, singled out for praise by Mr Justice Munby. He referred to,
“a particular and highly relevant informed expertise which none of the other parties could bring to the task in hand”'.
I have to declare an interest here as I was closely involved as part of the intervention body. This landmark case has had a profoundly positive effect on the patient/doctor relationship in this country when it comes to planning end-of-life treatment.
Interventions have a long and distinguished history and we cannot allow that to be weakened for the sake of the one or two examples of the bad apple. Where would we be today without the Leslie Burke case?
Lord Carlile of Berriew (LD)
My Lords, I rise with an appeal to my noble friend the Minister, whom I know to be a very good lawyer and a very sensible person, to accept the view being expressed around this Committee that this clause should not appear in the Bill.
I added my name to those intending to oppose the clause because I believe that, if there is one clause in the Bill that does grievous bodily harm to judicial review in this country, it is this one. Judicial review, as the noble Lord, Lord Pannick, said eloquently in his introduction—and as the noble Baroness, Lady Kennedy, illustrated, too—has over the years benefited from numerous interventions, sometimes from surprising sources. We are familiar with interventions by Liberty. When I was the independent reviewer of terrorism legislation, I disagreed strongly with some of those interventions, but I valued every single one because they enabled the issues of national security that were before the courts to be tested at all levels of judicial review and not merely in the House of Lords or the Supreme Court.
Lord Carswell (CB)
My Lords, it is a known principle of the law that first-hand evidence is better than second-hand. As one who received and considered interventions in many appeals over the years, perhaps I may intervene briefly to assure the Committee how exactly correct the representations made by the noble Lord, Lord Carlile, and the noble Baroness, Lady Kennedy, were concerning the usefulness of interventions to the courts which hear them.
Of course, there are two stages, as has been made clear to the Committee. First, there is the stage at which the judges consider whether an intervention should be allowed at all. I assure your Lordships that that is a very carefully monitored procedure and that it is far from automatic that an intervener will be allowed to put in an intervention. Secondly, if the intervention is permitted, it is usually fairly briefly presented—and, if I may say so, if it is an intervention by the Members of this House who have mentioned this, very well presented. Some of the regular interveners—the names of three of them are before your Lordships—are of extremely helpful compass and have contributed a great deal to the decision in the proper form of appeals and to the advancement of the law in these cases.
I simply rise to say from the point of view of one who has received many of these interventions and has benefited from them that what has been said on the authority of other people is exactly right.
Baroness Lister of Burtersett
My Lords, I support the amendment and I also believe that the clause should not stand part of the Bill. I welcome the fact that the Government are in listening mode on this clause and that at its early stages the Minister has suggested that he is open to amending it, although I think that it would be better if it simply vanished. I put on the record that I welcome the Government’s climbdown on the question of standing. The Minister said that perhaps we had not given enough recognition to that, so I am doing so now. That was partly in response to points made by the Joint Committee on Human Rights—of which I am a member—which is very concerned about this clause. The committee said:
“Third party interventions are of great value in litigation because they enable the courts to hear arguments which are of wider import than the concerns of the particular parties to the case”;
and, as has been pointed out:
“Such interventions already require judicial permission, which may be given on terms which restrict the scope of the intervention. We are concerned that, as the Bill stands, it will introduce a significant deterrent to interventions in judicial review cases, because of the risk of liability for other parties’ costs, regardless of the outcome of the case and the contribution to that outcome made by the intervention”.
It went on to say that,
“it is not clear to us at what mischief this clause is aimed”,
a point made with regard to the previous group of amendments. The committee goes on to say:
“The Government has not produced evidence of abusive interventions or cases in which an intervention has significantly and unjustifiably increased the costs of the case for other parties”.
In contrast, the briefings that we have received include numerous examples where interventions have assisted the courts, as recognised by the senior judiciary; this point has already been made by a number of noble Lords. A number of us here attended an oral briefing recently, and I was struck by the presentation made by a representative from Just For Kids Law. It is very clear that the new rules can prevent it playing this role, thereby depriving the courts of very important specialist information about children in criminal law.
The organisation Justice regrets that the Government have made no attempt to assess the public interest of interventions. They have given no indication of the practical implications. Perhaps noble Lords will permit me to read a series of questions that Justice has asked, because I believe that they deserve an answer. It says:
“While cases of obvious time wasting by third party interveners are easily addressed under the rules currently in place, how will the court be able to determine whether additional costs are in fact attributable to an intervention? If an intervener acts within the bounds of his permission to intervene, with written and oral submissions made only as directed by the court, will they avoid costs? On the language of ‘exceptional circumstances’ proposed in the Bill, it would appear not. If an intervener provides clear, concise reasoning which clarifies the issues and saves everybody time, will saved costs be deducted from those otherwise payable by the intervener? The allocation of costs referable to an intervention is unlikely to be straightforward”.
I have already quoted from the joint briefing, in which civil society groups warn that there is a real risk that the court will lose the ability to hear from that part of civil society that represents the poor, the weak and the excluded, and to bring specialist expertise to bear. This clause will further tilt access to justice in favour of those with power and resources, who will be able to bear the costs, and against those without power and resources, who will not be able to bear the costs. This is in the context of legal aid cuts, which are already tilting this balance beyond what can possibly be deemed to be just.
Lord Marks of Henley-on-Thames
My Lords, as the noble Lord, Lord Pannick, pointed out, Clause 67 proposes, first, that an intervener cannot get its costs except in exceptional circumstances; and, secondly, that an intervener must pay the costs of all the parties occasioned by its intervention except in exceptional circumstances. Both of these propositions—but particularly the second—are extraordinary. They are plainly designed to deter interventions by making them possible only if the intervener can fund all parties’ costs occasioned by the intervention.
If an intervener finds evidence, all the other parties’ evidence in reply will be at the cost of the intervener. If an intervener’s counsel speaks for half a day and the other parties’ counsel reply for a day and a half, they do so at the intervener’s cost. All that is on a win-or-lose basis, so even if the intervener is proved right and the government department or departments are proved wrong, and even if the judge has been greatly assisted by the interveners, the interveners will still pay all the parties’ costs occasioned by the intervention. This is against the background that, far more often than not, interveners do indeed help the court. After judgments, one frequently sees judges expressing their gratitude for the assistance of interveners, who, as has been said, often bring a broader experience to a particular judicial review application than an individual applicant can bring. The Committee was greatly assisted by the first- hand evidence of the noble and learned Lord, Lord Carswell, as to how helpful interventions often are.
The arguments in favour of this clause appear to be based on the proposition that interveners are often campaigning organisations with an agenda that is—in the widest sense of the word, at least—political or quasi-political. So they are, but such campaigning organisations have considerable expertise in their fields, as noble Lords have pointed out, and noble Lords benefit regularly from briefings from such organisations. If those interventions lack merit, the courts already have discretion to make orders for costs accordingly. However, these provisions would threaten not only the right to intervene but also the ability of the organisations which currently intervene habitually in judicial review cases to raise funds for their activities. That is a threat, I suggest, to the functioning of civil society. I will not name particular organisations because a number have already been named in this debate. I believe that to inhibit the activities of those organisations would be profoundly wrong. I do not believe that any body of credible evidence has been advanced in support of this clause to support the proposition that interventions have caused a problem that needs correcting. Still less do I believe that the courts’ existing powers to make costs orders are inadequate.
Our Amendments 74A, 74C and 74D preserve the courts’ general discretion to order a party to pay an intervener’s costs if the courts consider it just to do so. Amendments 74H and 74K preserve the general discretion of the courts to order an intervener to pay another party’s costs. I can see no possible basis, in either justice or common sense, to interfere with the existing court process and to deter interventions in the way that Clause 67, as drafted, is bound to do.
Lord Woolf
My Lords, I was hesitant to add to this debate by yet another intervention, but perhaps I may draw attention particularly to subsection (6), which says:
“In determining whether there are exceptional circumstances that are relevant for the purposes of subsection (3) or (5), the court must have regard to criteria specified in rules of court”.
I would like the Minister’s help as to what matters can properly be said to be criteria, as opposed to matters that are not. “Exceptional circumstances” would not normally, for example, provide any protection—this is the important point—to the position of the charitable organisations which, at the present time, intervene.
Lord Goldsmith
I utterly support everything that has been said in opposition to this clause but I want to deal with it from a slightly different perspective—from a government perspective. When I was in office I was responsible for many of the judicial reviews that were taken against the Government, either dealing with them myself or supervising and watching other advocates deal with them. I also from time to time made interventions, a subject to which the noble and learned Lord, Lord Woolf, referred. I hope that the Minister will take on board the important point that the noble and learned Lord has just made and take it back to his colleagues. This is public law and an area where the decision will affect many others. I often found, in cases where there was an intervention, that it was because of the intervener that the real issue emerged. That was often because it was the noble Lord, Lord Pannick, who was making the intervention—my heart often sank when he came up because I knew we were in for a tough fight. However, I knew that the real issue would be there and that, as the noble and learned Lord, Lord Woolf, said, the implications for third parties would be properly brought forward and understood. That is critically important when a court is making a decision.
The noble Baroness, Lady Lister, said that the Government are in listening mode, and I hope that they will listen on this. As a young barrister, I recall being told by a senior official from the Treasury Solicitor’s office when I said, “I hope we win this case”, that the Crown “neither wins nor loses cases; we simply clarify the law”. As an ambitious young barrister, that was not my approach to things, but it is not actually a bad approach. The Government should care that the law is clarified and that it is clarified in the best possible way. That will often require interveners, who will make sure that the right issues and the proper arguments are brought forward and that the full implications are understood. I cannot see any reason for this clause being there other than to chill such interventions. That would be a very bad thing for the course of justice and I hope that the Government will think again.
Lord Judge (CB)
My Lords, I endorse, from the point of view of England and Wales, what my noble and learned friend Lord Carswell said about his experience at first instance and in the Court of Appeal in Northern Ireland. On one view of the clause, the Supreme Court is being discriminated in favour of. The Supreme Court consists of five, seven or nine of the brightest legal minds in the country—in the whole country. One judge sitting alone at first instance, or three judges sitting in the Court of Appeal, do not have that same intellectual power. It is immensely helpful to the judge or to the Court of Appeal to have an intervention, leave for it having been granted by somebody who knows something about issues which might have been overlooked.
Lord Mackay of Clashfern
My Lords, so far all noble Lords have spoken in the one sense in relation to this clause. Obviously, in the interests of balance, it is important to consider whether there is anything to be said in favour of the clause. So far as I am concerned, there has been a considerable growth in the number of interventions over recent years. I would like the Government to indicate to us—at some later point if they do not have the information now—exactly how many interventions there have been in the supreme courts. I use that term in its old form, because I think it is extraordinary that we now have senior courts and the Supreme Court. It is high time that the Supreme Court was regarded as the supreme court of the United Kingdom, while the High Court of Justice, the Crown Court and the Court of Appeal were the supreme courts of England and Wales. I hope that, after September, all being well, that may be corrected.
I am not aware that judgments have considerably improved in quality in recent years as a result of interventions, although there may be some way of estimating that. It is always a little difficult, but somebody may be able to do that for us and show the tremendous amount that the interventions have done. I know that the noble and learned Baroness, Lady Hale, for whom I have the highest possible regard for a number of reasons, has said that they are often helpful. I am sure that that is true. Everybody wants help; at least most people with any degree of humility are glad to get help, from whatever quarter it comes.
The noble Lord, Lord Marks, referred to an aspect of this which I think has to be taken into account. Some of the interveners are campaigning organisations, which are campaigning for a particular result. You may take it that they had a good shot at trying to persuade Parliament to go along with them and that, having failed at that, the campaign is continued once the law is passed. These are not conclusive arguments one way or the other, but I personally find this clause too prescriptive in any event. If there is a real point to be considered, the clause needs some revamping, possibly in the light of the amendments that have been proposed. At the moment, I am anxious to see just why there has been a huge increase—as I think there has been—in the number of interventions in recent years. The first intervention that really came to my notice to any substantial extent was an intervention in this House in a case that became rather important for a number of reasons.
Lord Beecham
I am sure that when it comes to interventions, the Minister is extremely grateful to the noble and learned Lord, Lord Mackay, because I suspect that no other intervention has offered him any assistance. The noble and learned Lord might recall that there have been, I think, 50 cases in the last 13 years in which bodies of the kind that he referred to, such as charitable organisations, have intervened. That is not, on the face of it, an inordinate number, just as the total number of judicial review cases—other than immigration cases which are no longer dealt with in the courts—is fairly modest.
Moreover, interventions take place only with the leave of the court. If there were a right to intervene that would perhaps give some force to the noble and learned Lord’s misgivings, but it is for the court to determine whether interveners should be allowed. That point has been made clearly today and on other occasions. It seems to me that the Bill’s provisions in relation to interveners are based on either a misunderstanding of their role or a misrepresentation—deliberate or otherwise—of how it works in the real world, rather than the world the Minister of Justice appears to imagine exists. As we have heard, the role of interveners is to assist the deliberations of the court, not to meddle. Of course, no intervention can be made without the court’s consent.
We have heard powerful speeches from the noble Baroness, Lady Campbell, and the noble Lord, Lord Carlile, who have direct experience of the role of intervention on—almost—different sides. Clause 67 seems to me to be a full-frontal assault on the principle of intervention. As has been stressed today, in earlier debates and in many of the briefings that we have received, this clause is clearly designed to deter contributions to the determination of judicial review applications. Again, leave for contributions must be obtained from the court and, as we have heard exemplified today, such contributions are very often most helpful to the court.
I shall speak to Amendments 74A, 74B, 74E to 74G, 74J and 74L. These amendments broadly follow the theme of preserving the court’s discretion in these matters where the Bill would fetter it, usually for the benefit of the respondent and often, therefore, of the Government. Clause 67(2) illustrates perfectly the Government’s attitude to the principle of equality of arms. It prohibits any order for costs in favour of an intervener. This provision is clearly aimed at charities and voluntary organisations, as opposed to commercial or statutory organisations which are well able to afford the costs of intervention, and it is heedless of the likelihood of thereby discouraging helpful interventions. Amendment 74A would therefore allow the court to make an order for a relevant party to pay the intervener’s costs. Amendment 74B would emphasise the discretionary nature of such an order by adding,
“if the court considers it appropriate to do so”.
Amendments 74E and 74F would remove Clause 67(4), (5) and (6), which require the court to make a costs order against an intervener in respect of costs deemed to have been incurred by a party as a result of the intervention, save in exceptional circumstances, the latter to be judged in the light of criteria, once again to be specified in rules of court, and again, therefore, effectively determined by the Lord Chancellor.
Amendment 74F would allow the court to make an order against an intervener where it considers it just to do so, and provided that exceptional circumstances apply. This would be defined by a new Clause 67(6) as where the intervener has in substance acted as if he were the principal applicant, appellant or respondent. If an intervener takes on that kind of role then he could be ordered to pay costs if the court so determines, as he could if he were a party. As an alternative, Amendment 74G, which is very much by way of a fall-back provision, would at least change the requirement in Clause 67(4) to make an order against an intervener from being mandatory to discretionary, which Amendment 74J would complement by adding,
“if the court considers it appropriate to do so”.
Noble Lords, in particular the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Pannick, who are highly experienced in these matters, have expressed profound concerns about the nature of the Bill’s proposals. We have had indications from the Minister in the past that the Government are perhaps open to argument and persuasion about this. I very much hope that we can hear from him confirmation of that. I hope that some move will be made in the direction of allowing this process—which is of great service to the administration of justice—to continue without the threat which would impede and deter potential helpful interventions from those in the best position to advise the court, which after all retains the ultimate decision.
Lord Faulks
My Lords, I am afraid that I am unable to resist thanking all noble Lords for their interventions on this debate. They have been extremely helpful, and I mean that. This is particularly in the light of the fact that I indicated at Second Reading—as has been referred to in the course of the debate—that we were listening to arguments about this clause. My honourable friend Shailesh Vara MP also gave such an indication in the other place. We will have benefitted greatly from the debate today in deciding on our final position.
Although the noble Lord, Lord Beecham, said that I was grateful for the intervention from the noble and learned Lord, Lord Mackay, it is of course the House which is grateful for all contributions on all sides. With great respect, the point about an intervention is not that it assists any one side, but that it assists the court. An intervention is there to assist the court. I noted and agreed with the noble Baroness, Lady Kennedy, who said that interventions are extremely helpful. They certainly can be extremely helpful, but not all interventions are equally helpful.
Clause 67 as currently constituted aims to strengthen the cost rules relating to third parties who voluntarily apply to join in a judicial review case as interveners. I stress “voluntarily” apply. These interveners can include anyone who is interested in the issues which the court is considering, and they seek permission from the court to intervene in a judicial review case through filing evidence or making representations. Of course, I accept the fact that interveners can add value and assist, as many noble and learned Lords have said. However, they can also delay and hinder. Sometimes they make arguments beyond those required by the court, or merely amplify or repeat those already made by a party.
Here I must declare an interest. I have been in a considerable number of cases where there have been interveners, at the level of both the Appeal Court and the Supreme Court, and on one occasion I acted for an intervener. In fact, I think that that was in the very same case in which the noble Lord, Lord Pannick, was also acting for an intervener. I am glad to say that we kept our remarks within the short compass, and our skeleton arguments were similarly brief. I do have experience of the mounting level of interventions in litigation.
The noble Lord, Lord Marks, referred to the possible chilling effect on those who habitually intervene; those were his words. With great respect, in his use of the word “habitually” there is perhaps an indication of something about which the Government are concerned. There are of course cases where the court is greatly assisted by interventions brought by a disinterested party, which can bring a particular knowledge or contribution to the debate. However, the court might be less assisted by those who habitually intervene and who have a particular agenda which may require or indicate that they support one side or another.
Lord Beecham
My Lords, who is to decide whether a habitual intervener should be allowed to intervene? What is wrong with the court making that decision of its own volition?
Lord Faulks
I was coming to that very point. Interventions can prove difficult for the courts to control. The reason I say that is because on occasions an application is made for an intervener to intervene and, on the face of it, the judge deciding whether or not they can intervene will do so on the basis that they have a knowledge of the case. The judge, having regard to the submissions that he or she receives, considers that the intervener might well be of assistance. The level and degree of intervention is then very often beyond the control of the judge who originally gave permission, so that one can then encounter—perhaps at the hearing of a judicial review, or at the Court of Appeal stage—a very substantial skeleton argument, bundles of authorities, and arguments which range very loosely around the subject matter of the dispute. Here I speak from experience.
Inevitably, this causes expense to all parties involved, whether the applicant or the respondent, because they have to consider the arguments. They cannot rest assured that the judge is simply going to ignore everything on the basis that it might be outside the scope of the intervention. Of course, good judges customarily curtail submissions made orally once the matter gets to the stage of a hearing, and do so effectively. That does not remove the danger of quite excessive levels of intervention and contribution.
Lord Pannick
The Minister will accept, I hope, that courts regularly impose terms on interveners. The court says, “You may intervene, but only on the following issues”, “You may intervene in writing, but only 20 pages” or “You may intervene orally, but no more than 30 minutes of oral submissions”. These are very familiar orders. What further powers do the courts need?
Lord Faulks
Those are familiar orders. They are not always adhered to or always made, but I entirely accept that they are familiar orders. The point that I am making is that they are difficult to police in a preparation for a trial although easier to police by conscientious judges when dealing with it.
The changes that Clause 67 introduces reflect the Government’s intention of ensuring that interveners have a more proportionate interest in the financial implications of a judicial review. There should be fewer cases in which the taxpayer—or any other party to a judicial review—is expected to shoulder the burden of others’ decisions to argue their case.
Therefore, as currently drafted, Clause 67 establishes two presumptions: first, that the court will order a voluntary intervener in judicial review proceedings to pay their own costs; and secondly, that it will order a voluntary intervener to pay the reasonable costs they cause a party to the judicial review to incur by their intervention. Neither would apply where, in the view of the court, there are exceptional circumstances making it appropriate for the presumption to be rebutted.
The noble and learned Lord, Lord Woolf, asked me about Clause 67(6) in relation to that, on the exceptional circumstances that are relevant for the purposes of subsection (3) and the criteria that will be specified in the rules of court. My answer to that is the same answer as I gave in the debate on Monday when responding to an amendment put forward by the noble Lord, Lord Beecham, about the rules of court. The Delegated Powers Committee suggested that these and other matters should be put in the Bill. We are considering carefully that report and will respond to it. Clearly, what has been said about it is an important factor which we will take into account.
I should, however, be absolutely clear that the clause will apply only to those who voluntarily seek permission, not in those cases where the court invites, as it sometimes does, an intervention because it requires contextual information from an expert group.
Amendment 74 would remove both presumptions and replace them with one new presumption whereby the courts may not order any costs to be paid between an intervener and a party to the proceedings unless there are exceptional circumstances. There, I come back to the rules of court.
In relation to the first presumption, this would have little effect, as the clause as drafted already sets out that a party cannot be asked to pay the intervener’s costs unless exceptional circumstances exist. The first presumption, as was confirmed by many of the responses received to our recent consultation on judicial review, broadly represents the status quo. In practice, interveners are usually responsible, as was pointed out in argument, for their own costs incurred in the judicial review. It will remain a matter for the discretion of the court to decide liability for costs in an individual case, but the Government’s view is that the principle should be set out in primary legislation in order to be transparent and to provide clarity both to interveners and to the parties.
It is, I apprehend, the second presumption which has caused the most disquiet, as is evident from this debate, both in the other place and more widely. I mention the other place because an amendment was tabled there in that respect on behalf of the Liberal Democrats, I think by my noble friend Lord Marks’s honourable friend Julian Huppert, although it has to be said that the Liberal Democrat position on Part 4 has ranged rather more widely than it did in the House of Commons, notwithstanding the apparent agreement in the coalition as to the inclusion of Part 4 in this Bill.
I want to set out some of the safeguards that Clause 67 already contains, in addition to the clause applying only to those who are not invited by the court to intervene. It will operate only on an application by a party. In suitable matters of high policy there may be an agreement between the parties and a potential intervener that costs will not be applied for. Even if the parties make an application, the court can decide not to make an award against the interveners.
The only costs in question will be those that the court considers are incurred as a result of the intervention and those costs must be reasonable. Neither defendants nor claimants will be able to ask interveners to pay for their decision to obtain unreasonably expensive legal advice to respond to the arguments the intervener raises. An intervener will never be asked to pay even one penny of the costs that one party has caused the other. This clause is about the financial impact on the parties which the intervention has.
For example, if the intervener raises additional points that are not germane to the case, then a party—which could be either the claimant or the defendant—may ask the court to require the intervener to pay their reasonable costs in addressing those points. This might cover counsel’s time, for example. The court will make the award if it considers that those costs were incurred as a result of the intervention and there are not exceptional circumstances that would make an order inappropriate.
It remains the case that the court will ultimately decide whether to award those costs against the intervener. If the court considers that there are exceptional circumstances that make it inappropriate to award costs against the intervener, it can decide not to make the order. As with Amendment 74, matters for the court to consider when determining whether there are exceptional circumstances will be set out in rules of court. We should not seek to second-guess the content of those rules, which as usual will fall to the Civil Procedure Rule Committee. We can, however, be confident that the rules will reflect the overriding objective of the Civil Procedure Rules, which is, as the noble and learned Lord, Lord Woolf, will know only too well, to enable the court to deal with cases justly and at proportionate cost.
These safeguards reflect the principle that an intervention should not usually cause additional costs to the claimant or to the usually taxpayer-funded defendant. They will operate to ensure that interveners are not asked inappropriately to pay the costs of a party.
I hope that no one can accuse the Government of not having considered the views that have been expressed in relation to this clause; we are continuing to do that, as I indicated. I also indicated that what has been said today will influence our thinking.
The noble and learned Lord, Lord Judge, referred to the position of the Supreme Court. The Supreme Court has its own rules and we do not purport to prescribe how the Supreme Court should reflect the questions of intervention—I am sure that many of them are extremely valuable.
We accept that interveners can bring value. The noble Baroness, Lady Campbell, referred to the case of Burke, although she will remember that that decision was reversed in the Court of Appeal when it decided that it was not to be used as an advice centre. I none the less accept the general thrust of her point.
The Government want to ensure that third-party interventions are made in the right cases, for the right reasons and after careful consideration beforehand. This means that interveners should have a fair financial stake in the case.
Bearing in mind our intention to continue to look at the clause—and I hope that the House will accept the sincerity of what I am saying; doubts were expressed by the noble and learned Lord, Lord Mackay, although he accepted that some of the Government’s anxiety was reasonable—I hope that I have been able to address noble Lords’ concerns. In those circumstances—
Baroness Kennedy of The Shaws
Can the Minister address the following concern? A distinction has been made between those who voluntarily intervene, in that they approach the court and indicate that they might be able to contribute something of special value, and those invited to participate. I chair the council of Justice, which, as this House knows, is an absolutely cross-party and no-party organisation—it is an independent organisation of lawyers, one of the organisations regularly described as acting as an intervener. It does so because of its commitment to the rule of law and the recognition that it is a lawyers’ organisation that has things to say about law which may be missed in the kind of judicial review where a particular issue is being raised that may have much more generalised concerns.
I am concerned that every so often Justice will identify an issue in an action that is not immediately obvious and will therefore draw the court’s attention to that fact; consent is then given to its intervening. I am, therefore, very worried about this distinction between the voluntary and the invited-in. Often it is the volunteer organisation saying, “We think there is an issue here that the court should hear”, which is of great value. I shall give an example of that. Noble Lords heard from organisations such as Justice and Liberty during the torture case. I know that it went all the way through but there are cases where there are legal issues, and when my noble and learned friend Lord Mackay—I refer to him as a friend because he is a dear friend—raises the issue of why we have seen some growth. It is because our world is more complicated and because we are dealing with issues such as international terrorism and more complicated issues in medicine that interventions from specialist organisations can be useful. Often, however, the courts do not know how they could be assisted until the voluntary suggestion is made that something of value is on offer.
Baroness Lister of Burtersett
My Lords, I asked a number of practical questions that had been put by Justice. I want to save the Minister from jumping up and down and I do not want to come between your Lordships and lunch, so perhaps he could write to all those who have taken part in the debate with the answers.
Lord Woolf
Clause 67 has created a particular type of party, namely a “relevant party”. The relevant party is defined in subsection (8). I have no problem with that definition. However, in his closing remarks the Minister said that if, of course, a person is invited to intervene, as Justice could be invited to intervene, in effect this would not apply. The words are, of course, very specific, because of the presence of the word “must”. I draw attention to the fact that the court could invite people to intervene who are not a relevant party. Would he bear that in mind?
Lord Faulks
I shall deal with those interventions in reverse order, I am very grateful for what the noble and learned Lord, Lord Woolf, said. I will bear that in mind and, rather than answer from the Dispatch Box, I will consider it carefully. Similarly, I will answer the noble Baroness, Lady Lister, in writing with details.
As to the remarks of the noble Baroness, Lady Kennedy, I obviously would not comment on the appropriateness of particular interventions in particular cases. However, I am not sure that I would entirely agree with, or that I apprehend, her thrust, which was that litigation belongs to the parties, and there are disputes—whether civil disputes or judicial review, which involves public law—where interventions may be helpful in deciding between the parties. Where I may differ from her is the approach whereby an organisation of which all of us, I suspect, would approve should nevertheless use judicial review as part of a process. There are other processes available, whether it is lobbying Government or informal processes of campaigning, lobbying or taking part in inquiries: that may be a way to do it. Nevertheless, even though these bodies can have valuable contributions in certain cases, there should be some hesitation before simply saying that this is an issue where we might be able to help.
I conclude by saying that I will take into account all the observations that have been made and inviting the noble Lord to withdraw his amendment.
Lord Pannick
I thank noble Lords who have contributed to this exceptionally informed debate, including the Minister. I am pleased that further thought is to be given to this clause. I hope that over the summer not just the Minister but also the Secretary of State will think again about Clause 67, because the Government’s defence of this clause is wholly unconvincing—apart possibly from the Minister’s critical comments about the attitude of the Liberal Democrats to Clause 4. I leave that aside: it is something I do not want to intrude into.
Subject to that, the Government have presented no proper defence of this clause, and I ask the Minister to ask himself and the Secretary of State two questions in particular: what is really the mischief that is being addressed here that is not already addressed by the ample powers that courts have, and what will be the inevitable consequences of this clause? The inevitable adverse consequence is that the public interest group that is considering intervening will say to itself, “We simply cannot bear the risk, and therefore we will not intervene”, and the court will be denied the information—the assistance—that courts appreciate and value. For the moment, however, I will withdraw this amendment.
Lord Pannick
Lord Pannick
My Lords, this group of amendments is concerned with Clause 68, on costs capping orders—or protective costs orders, as they have previously been called. In a case that raises issues of public importance, the court has a power, before the case is heard, to set a maximum figure for costs that a claimant will be required to pay, should the claim not succeed. The object of such an order is to ensure that a claimant who raises an issue of public importance is not deterred from bringing the claim because of the risk of having to pay unquantified costs, should that claim fail.
At the moment, costs capping orders are a matter for the discretion of the court. They are rarely made; I am told that there have been fewer than 20 such orders in the past three years. Almost all of those are concerned with environmental claims, which Clause 70 recognises raise special considerations because of the international Aarhus convention. I am aware of no evidence that there have been substantial, or indeed any, difficulties in this area.
Amendment 75 would leave out Clause 68(3), which is particularly objectionable because it provides that a costs capping order may be made only if leave to apply for judicial review has already been granted. That would defeat much of the object of a costs capping order. If applicants cannot seek and obtain a costs capping order until leave to move for judicial review is granted, they are, inevitably, going to be deterred from bringing the judicial review proceedings at all because of the risk of having to pay an unquantified amount of costs at the permission hearing.
Amendment 76 would omit Clause 68(6)(c), which is also objectionable because it would require the court to be satisfied, before making a costs capping order, that, in the absence of the order, the applicant for judicial review would not merely withdraw the application or cease to participate in the proceedings, but also that it would be reasonable for them to do so. I am puzzled by that provision. I simply do not understand how a judge can be expected to assess the reasonableness of a decision by a claimant not to take a financial risk by bringing proceedings without a costs capping order. Whether you bring a claim without financial protection will depend on the legal advice you receive as to its prospects of success—a matter covered by legal professional privilege and so unknown to the judge—and the degree to which you are willing to take the financial risk of having to pay the costs, which is a very subjective matter. How will a judge be expected to apply Clause 68(3)?
Amendments 77 and 81 address a particular vice of the costs capping provisions. Clauses 68(8) to (11) and Clauses 69(3) to (5) would confer powers on the Secretary of State to define, by subordinate legislation, what factors the court should take into account when it decides whether proceedings are of public importance. These are not matters in which a Minister should be involved by making subordinate legislation, far less a Minister who is likely to be one of the potential defendants in the very cases which he would be seeking to regulate by making that subordinate legislation. If the Government wish to regulate this area, they should come forward with primary legislation which can be properly debated and scrutinised.
I have seen no evidence to suggest that the current exercise of the costs capping powers has caused any problems, other, of course, than the general problem that government departments would much prefer not to be the subject of judicial review applications. For these reasons, I oppose Clause 68 standing part of the Bill. I beg to move.
Lord Mackay of Clashfern
My Lords, I wonder whether I might invite the noble Lord to say what the present rules are and what are the powers under which this costs capping happens.
Lord Pannick
The present powers are that the court has a general discretion to decide at the beginning of the case on the application of a claimant for judicial review whether, and if so in what terms, it is appropriate to limit the exposure of the claimant to pay the defendant’s costs, should the claim fail. The court also has a power, which it sometimes exercises, to provide the other way, so that if the claimant were to succeed in the claim, the exposure of the defendant to pay the claimant’s costs should also be limited. This is a discretionary power, it is a broad power and it is exercised, as the noble and learned Lord would expect, according to the particular circumstances of each case.
Lord Mackay of Clashfern
Is the noble Lord able to say when that power was introduced? I am trying to work from my memory, and I do not remember. Of course, I am not saying that my memory is perfect. I am just wondering when it came in.
Lord Pannick
My understanding—I will be corrected by others if I am wrong—is that the court created such a power as an inherent aspect of its supervisory power over judicial review and other proceedings. I do not think that a specific rule was made, but I will be corrected if I am wrong on that.
Lord Faulks
Since we are in Committee, perhaps I can try to assist the Committee.
The power derives from restatements of principles which, as the noble Lord said, are inherent in the court’s processes. In the Court of Appeal case Regina (on the application of Corner House Research) v the Secretary of State for Trade and Industry in 2005—EWCA Civ 192—the Court of Appeal considered that Corner House, which was an anti-corruption NGO, should, if unsuccessful in the judicial review, exceptionally be protected from being liable for the defendant’s costs because,
“the issues of public importance that arose in the case would have been stifled at the outset, and the courts would have been powerless to grant this small company the relief that it sought”.
It also set out the general principles for when a protected costs order should be granted: first, the issues are of general public importance; secondly, the public interest requires that those issues should be resolved; thirdly, the claimant has no private interest in the outcome of the case; fourthly, the financial means of the claimant mean that the protected costs order is fair and just; and, finally, if the order is not made, the claimant will probably discontinue the proceedings.
Lord Marks of Henley-on-Thames
On Clause 68, there is only one amendment in my name, Amendment 75F, which removes subsections (6) to (11). The reason for that is we firmly believe that the making of costs capping orders should be left to the discretion of the court in appropriate circumstances. Of course, those depend on the financial circumstances of the parties, which are mentioned in subsection (5), so they should stay in Clause 68. However, the factors that are set out in subsections (6), (7) and (8) relate to public interest proceedings and might legitimately influence the decision of the court in an appropriate case.
By Amendment 80A in relation to Clause 69—I am proceeding on the basis of a suggestion that Clauses 68 and 69 should be debated together—which is in my name and that of my noble friends Lord Lester of Herne Hill and Lord Carlile of Berriew, further factors are listed as factors that the court should take into account.
In relation to the explanation that the Minister has just given of the origin of the costs capping jurisdiction, I fully accept that the Corner House principles limit the jurisdiction to public interest proceedings. I am not sure that that limitation is legitimate or necessary, although it is plainly relevant. The reason I suggest that it is not necessary to limit it in that way is that there may be unusual cases where an individual is so justifiably aggrieved by an unlawful decision of a public body in a case which does not have universal or public importance that a costs capping order or a protected costs order might be appropriate, even though there is no wider public interest.
I fully support Amendments 75 and 75A in respect of Clause 68, which would remove the bar on making a costs capping order until after the permission stage. For my part, I can see no reason for such a bar, unless it were to choke off applications for leave to apply for judicial review for fear of an uncapped costs order. That, I suggest, is an unacceptable reason for stifling proceedings at that stage.
Our Amendments 77A, 80A and 80C to Clause 69 would restore the position that costs capping orders in judicial review proceedings are discretionary. Amendment 77A would require the court, when considering making such an order and then in considering the terms of any such order, to have regard to all the circumstances of the case. There would then follow a list of circumstances to which the court should have regard. This is a common enough formulation: in the provision of a non-exhaustive list, Parliament gives an indication to the courts as to the factors that should be considered. However, in its acknowledgement of the fallibility of lawmakers, and of the range of possibly unforeseeable circumstances, as mentioned by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, the requirement that the court should have regard to all the circumstances of the case is, I suggest, a just and sensible one, which would allow judges to make the right decision in the particular cases that come before them.
As I have said, Amendment 80A would add to the list of factors that the courts should take into account all the factors drawn from the present proposals in Clause 68. These factors would not—and, I suggest, should not—be ranked in any particular order of importance. The court would be entitled to have regard to them as it thought appropriate. As I have also said, this does not require public interest considerations to be a precondition for a costs capping order.
Amendment 80C would remove the requirement that a costs capping order in favour of an applicant would necessarily import a requirement that the court make a costs capping order in favour of the defendant at the same time. It would make the imposition of such an order discretionary in any given case. This was the present position, as outlined by the noble Lord, Lord Pannick, in answer to the question posed by my noble and learned friend Lord Mackay of Clashfern. It does not seem to me that there is anything sensible or justifiable in an automatic rule that what is sauce for the goose is sauce for the gander. It may sometimes be appropriate to make a costs capping order in relation to a defendant’s costs—more rarely, I suggest, because of the nature of the parties, than it is to make such an order in respect of an applicant’s costs. But again, I see no reason for interfering with the discretion of a court to make whatever orders appear to it to be just.
Baroness Campbell of Surbiton
My Lords, I also wish to speak—[Interruption.]. Sorry, I did not intend to knock over the microphone. Let me begin again.
My Lords, I support all the amendments in this group, in particular Amendments 75 to 77 and Amendment 81, in the name of my noble friend Lord Pannick, and I oppose the Question that Clause 68 stand part of the Bill.
The proposals are yet another barrier to access to justice. While we are talking about barriers to access to justice and people’s access to advocacy, I hope that the Minister will humour me—unfortunately, I have not yet figured out a way to intervene when he is speaking, apart from waving my arms about—and allow me to come back to him on the subject of the importance of cases and of intervening in such cases. Cases are often not all about winning or losing; they are about what we all gain from the proceedings. Yes, Leslie Burke lost on appeal, but his was the first case that prompted the GMC to change the guidelines on issues of life and death, and to begin to change the nature of the involvement of patients in their treatment. So we gained from that case, even though it was lost on appeal. That shows us how important access to justice is—not necessarily just for the particular case, but for what it offers us all in society.
The Government’s proposals on costs capping are deeply worrying in two respects. As I understand it, under Clause 68 the court can make an order only if the claimant already has permission to ask for judicial review. This will have a dramatic effect on access to justice. At present, an order can be made before the claimant asks for permission, so the claimant knows from the outset how much they will be liable for. This is vital, because most of the work is done in the early stages before the permission hearing. The Government themselves have said their costs can amount to £30,000. Without the protection of an order, most charities will simply not be able to seek permission. The risk is too great.
The clause defines “public interest proceedings” and sets out the matters the court must consider in deciding that question. But the Lord Chancellor can change those matters by regulations. That cannot be right. In effect, the Lord Chancellor is surely then able to dictate to the court what is in the public interest—when it is the Government who are most likely to be the target of such proceedings.
These proposals have to be seen in the context of the whole package of increasingly worrying legal reforms. As legal aid is withdrawn in cases of significant public interest, costs capping becomes even more important. In a recent case that I know of, a disabled and destitute man from Nigeria, who had been living on the streets, was denied legal aid and was able to get his case brought before the courts only because he got a protective costs order. If costs capping is severely restricted, what chance will individuals have of holding public bodies to account? I am mystified. This is yet another barrier in the way of ordinary people getting access to justice at every level—and it is the marginalised who will be most affected.
Both the Joint Committee on Human Rights and the Constitution Committee of this House have expressed concerns about these proposals. Their effect will be to drive away all but the wealthiest of claimants. The one route available for righting wrongs will be eroded for those who most need it. I do not feel that we can allow this to happen.
Baroness Lister of Burtersett
I oppose Clause 68 standing part of the Bill. The Joint Committee on Human Rights welcomed many aspects of the Government’s original proposals on cost capping, as have others. However, as the noble Baroness, Lady Campbell of Surbiton, pointed out, we are very concerned about Clause 68. We said that it has the potential to limit very severely the practical effects of PCOs in protecting access to justice. We quoted in our report the supplementary written evidence given to us by the Bingham Centre for the Rule of Law, which stated:
“A PCO that cannot be obtained until it is too late to prevent the chilling effect of uncertain and unlimited costs exposure is a pointless PCO: it does not achieve the aim of enabling access to justice for those who cannot expose themselves to substantial costs risk”.
In essence, that is very much the argument put forward by the noble Lord, Lord Pannick. Therefore, in the JCHR’s view, Clause 68 is too great a restriction and will undermine effective access to justice.
The committee also shares the concerns of others that both Clauses 68 and 69 give the Lord Chancellor unreasonable Henry VIII powers. We noted that the Government have not explained the necessity for giving the Lord Chancellor “such an extensive power”, and one which has serious implications for the separation of powers between the Executive and the judiciary. Therefore, we recommended that those powers be removed from the Bill.
It is worth noting the JCHR’s wider observation that the judicial review proposals as a whole,
“expose the conflict inherent in the combined roles of the Lord Chancellor and Secretary of State for Justice”.
We warned that the kind of politically partisan arguments put forward by the Lord Chancellor in support of these proposals—for example, in the Daily Mail of 6 September 2013, which I think was referred to in earlier debates—
“do not qualify as a legitimate aim recognised by human rights law as capable of justifying restrictions on access to justice, nor are they easy to reconcile with the Lord Chancellor’s statutory duties in relation to the rule of law”.
I am well aware that it was my own Government—a Labour Government—who combined these two roles, but such a politically partisan approach has led the JCHR to suggest that the time is approaching for there to be a thoroughgoing review of the effect of combining in one person the roles of Lord Chancellor and Secretary of State for Justice. Personally, I think that Part 4 of the Bill means that that time has now come.
Baroness Deech (CB)
My Lords, I intervene very briefly, again as one who has been judicially reviewed—indeed, as one who is constantly being judicially reviewed. There is something of a flavour here that judicial review is always a case of David versus Goliath. However, it has to be remembered that sometimes it is a case of David versus David. Although the first David may passionately believe that what is being done in their name is in the public interest, the person on the other side may equally strongly and decently believe that what they are standing up for is also in the public interest. They are not necessarily a well funded public organisation. That is why I have some sympathy with the retention of Clause 69(2), and with giving some support to the other party who also believes that their costs should be capped because they are defending something that they believe is in the public interest. Other than that, I think that the general tenor of the argument that judicial discretion should prevail is the right one. I support the general thrust of the amendments, subject only to our remembering that the person who is not the claimant—the respondent—may have an equally innocent and good case and believe that they are standing up for the public interest.
Lord Davies of Stamford
My Lords, in my view there is a lot of mischief in this clause and the best solution would certainly be to leave it out of the Bill altogether. I want to touch on three particular pieces of mischief which lie within it.
Subsection (3) has already been dealt with by the noble Lord, Lord Pannick, in proposing his amendment to remove that subsection from the Bill. No one doubts the great importance and value of having a costs-limiting facility available in judicial review. The Government are not arguing that there should be no such scope for costs-limiting orders, and no one else has argued that there should not be such scope. I think no one would deny that if there were no possibility of getting costs-limiting orders, some very meritorious applications that were very much in the public interest would not be made. That would be a great loss to our legal system. As the Government have not argued against the principle of costs capping, I do not think that I need say more than that.
Equally, I do not think that anyone can deny that if the Bill is introduced in this form and subsection (3) proceeds on to the statute book, an awful lot of the value of costs capping will be negated because applicants will be exposed to very significant financial liabilities—almost certainly incalculable financial liabilities—before they get to the point when a costs-capping order can be considered by the court. Therefore the effect of the costs-capping order would itself have been negated and a large number of potentially meritorious applications will not be able to proceed at all and will not be started. That would be a great loss to the system. If the Government said that that was their intention, they would at least be straightforward about it. In actual fact, however, I think they are again in a state of contradiction, saying on the one hand, “Yes, we do want to have a costs-capping provision”, but, on the other, “We want to introduce a measure that will in practice negate very largely the benefit of that provision”.
My second problem with this clause concerns subsection (6), which states:
“The court may make a costs capping order only if it is satisfied that … (b) in the absence of the order, the applicant for judicial review would withdraw the application for judicial review or cease to participate in the proceedings”.
What exactly does that mean? Once again I ask for clarity because the law ought to be clear. This means that the court has to be satisfied that the applicant would actually withdraw the application if a costs-capping order is not provided. Is that based on the applicant saying that he or she would withdraw the application if no costs-capping order is given? If so, does that create an obligation for the applicant to withdraw if the costs-capping order is denied? It is perfectly possible that a costs-capping order might be asked for in very good faith by an organisation with very slender means or by an individual with very slender means who later finds that his or her cause is backed by a rather wealthier supporter. Therefore it is possible that the application could be saved after the denial of a costs-capping order, by some other party coming in to support the application, with all the liabilities attaching to that which we discussed this morning. Would that eventuality be denied by this provision in the Bill? We should be absolutely clear about that, because the word “satisfied” is a very strong word, it seems to me. How do you know that the applicant would withdraw in those circumstances? How can you possibly know such a thing unless the applicant has given such an undertaking? If the applicant has given such an undertaking, presumably that undertaking is enforceable. We are not told that in the Bill, but we ought to be told by the Minister whether that would be the effect that the Government seek.
Finally, I object very strongly to subsection (9), which has already been referred to as a Henry VIII clause. However, it is a Henry VIII clause of pretty extraordinary dimensions. One is used to Henry VIII clauses in legislation. There are far too many of them. There is one later on in the Bill under Clause 73. Clause 73(1) states:
“The Lord Chancellor or the Secretary of State may by regulations make consequential, supplementary, incidental, transitional, transitory or saving provision in relation to any provision of this Act”.
That is the sort of role that we associate with Henry VIII clauses—that is, adding something that is technical, that fills in some gaps at some point, but that does not change the main thrust of the primary legislation at all and merely makes it perhaps more easily implementable. That is an acceptable Henry VIII clause in principle. However, we are faced with the following in Clause 68(9):
“The Lord Chancellor may by regulations amend this section by adding, omitting or amending matters to which the court must have regard”.
In other words, the Lord Chancellor can rewrite the whole of the clause. That is an extreme form of a Henry VIII clause. It would probably be better described, by using some rather sinister terms from European history, as an Ermächtigungsgesetz or a plein pouvoir. To use a commercial analogy, I suppose that it is rather like a bidder or tenderer in a commercial contract who sends in a bid and says, “The price will be the following, the delivery date will be the following, the specifications will be the following”, and then adds a final clause saying, “The bidder may, at his discretion and without penalty or limitation, change any of the above at will”—in other words, devalue the whole document. The whole thing is complete nonsense because you cannot be certain that any of it will actually remain or that any of the apparent purposes in the text will actually influence reality in the future. The whole of this could be a complete waste of time by Parliament because, as I read subsection (9), the Lord Chancellor could go away and change anything in this clause at all, including the major substantive provisions: the terms, conditions and criteria by which a costs capping order can be considered. For the reasons that I and others have set out in this debate, that is actually a very important exercise.
Again, this is a completely unacceptable clause for government to put forward in any legislative context, and certainly in this one. I hope that the Government will withdraw the provision. I hope, better still, that the Government will withdraw the whole clause.
Lord Woolf
This costs capping provision was brought in because the nature of current litigation means that the costs of exercising your rights, whether as a claimant or defendant, are often prohibitive. Perhaps I may refer to one of the first matters where costs capping came before the courts. I was personally involved, so I hope that that does not make it inappropriate for me to refer to it. It was an action against tobacco companies that was brought by those who had suffered as a result of smoking. It illustrates that a situation can arise where, even with the help of conditional costs orders—of which the noble and learned Lord, Lord Mackay, was the original author—it is not possible for proceedings to be brought because the costs can be so great that no law firm could take the risks involved in bringing an action against the tobacco companies, which were going to fight them intensely and had huge commercial reasons for doing so. I suspect that the matter came before me because the precedent for those was, in fact, the litigation across the Atlantic. It is an indication that we have to take care to try to control costs capping orders. I refer to that because it seems to me questionable to regard these provisions as appropriate, if appropriate at all, only in regard to judicial review. I do not think that the reference to public interest proceedings would, for example, cover the tobacco proceedings of which I had experience.
In general, however, I agree entirely with the comments and points that have been made by the noble Lord, Lord Pannick, and others who followed him, which are the basis of the amendments. It is also quite right to say that there is no possible justification for this to be done. I know that I am reiterating what I have argued before in relation to other provisions. However, this is not an example of the Government doing something that Parliament cannot do; it is an example of the Government doing something that they should not seek to do. Bearing in mind the relationship between the judiciary and the legislature, the legislature should not seek to impinge on a judicial discretion where there is no suggestion that there is any need to do so and where the court—in the case to which the Minister referred, the Corner House Research case, in 2005, 1 Weekly Law Reports 2600—set out its views and the principles at that time. Those principles have had to be modified in the light of cases that have come before the court subsequently. Here is a natural process being developed whereby a problem arises—not of great dimensions, but very relevant to the very small minority of cases to which it refers—and the courts react to it.
Baroness Kennedy of The Shaws
I too feel very concerned about this capping of costs. I see it as being part of a pattern of seeking to reduce the discretion of judges. Of course government Ministers do not say, “We don’t have confidence in the judiciary”, but that essentially is what this is about. It is about saying, “We have to use law to do this because the discretion of the court cannot be trusted to do what we seek to effect”. This amendment is about insulating the Government against challenge. All the clauses that we have been discussing today are essentially about seeking to limit judicial discretion, judges being the people who can weigh up carefully the merits in order to reach just decisions. That is being interfered with to protect the Government from challenge. That is what it ends up being about.
I too, therefore, support the amendment. The Government should think again about how this is perceived. The sitting judges cannot stand up and speak on their own behalf, as we know, so it falls on those who have been judges or who are active in the courts to alert the general public to what is happening. What we are doing is fettering the power of judges to do that which is right in a given case.
Lord Beecham
My Lords, it might be convenient to consider this group and the following group as one. The noble Lord, Lord Marks, has addressed his amendments in that group. I strongly support the amendments tabled by the noble Lords, Lord Pannick and Lord Marks, to which I have added my name, together with the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Carlile. I speak therefore briefly to the amendments in my name. Amendment 75 is particularly important in that it addresses the problems facing applicants for permission in the absence of legal aid for that stage. Amendment 75A provides that the court may make an order at any stage of the proceedings, in connection with Clause 68(3), and Amendment 75B would extend this potential protection to interveners whose position we have debated in a somewhat different context earlier today. Amendment 75E removes the reference to the court considering information of a financial nature if such is only “likely to be available”—a phrase that we have already debated —in respect of Clause 68(5).
Without the protection of the amendments in the group, not least from the Government’s proposals about a public interest test, which the Lord Chancellor conveniently empowered to define the terms of such a test, the protection offered to parties by this clause would be diluted to homeopathic proportions.
In the next group, Amendment 80B would apply to Clause 69(2) and provide that a costs capping order limiting or removing the liability of the applicant to pay another party’s costs where an order is not granted should “normally” rather than mandatorily limit or remove the other party’s liability to pay the applicant’s costs if that is the case. That introduces an element of reciprocity. Amendment 80C alternatively would allow discretion by substituting “may” for “must” in the subsection; again the issue of judicial discretion raises its head.
We have heard powerful speeches from non-lawyers—the noble Baroness, Lady Campbell, and my noble friends Lady Lister and Lord Davies—and, if I may say so, a magisterial rebuke to the Government from the noble and learned Lord, Lord Woolf; that was not for the purposes of delivering an admonition but to persuade them of the error of their ways, which I hope the noble Lord, Lord Faulks, will convey to the Lord Chancellor with some effect. These provisions thoroughly dilute what ought to be a sensible measure to protect claimants in this particularly important area of jurisdiction.
Lord Faulks
My Lords, this has been a useful debate and we have, by agreement, covered two groups. I will therefore respond on behalf of the Government in respect of both groups, which are effectively concerned with the same subject matter—namely, costs capping.
Clauses 68 and 69 would build on case law, particularly the Corner House case referred to by a number of noble Lords, to establish a codified costs capping regime for judicial review proceedings, to govern what is ordinarily or alternatively referred to as a protective costs order. These provisions would put protective costs orders on a statutory footing. At present, a court can make a protective costs order before it has considered whether a claimant’s case is suitable to be given permission to proceed to judicial review. Claimants with what may turn out to be weak cases can thus benefit from costs protection even if the court subsequently decides that their case should not be given permission for judicial review, thereby leaving the public body to pay its own costs of dealing with a case which had no merit. Effectively, a claimant would have had a risk-free process until then.
Subsection (3) of Clause 68 seeks to address this by ensuring that a costs capping order can be made only if permission is granted for the judicial review to proceed. Amendments 75 and 75A would remove this principle, thereby allowing the court to make an order at any stage of the proceedings.
The Government intend to ensure that, when considering bringing a judicial review, would-be claimants give due consideration to the merit of their case, so that public bodies do not bear the financial burden of unmeritorious claims. The provision should not deter those who have cases with substantial and proper grounds for challenging the Government. On the other hand, people are generally cautious about proceeding with litigation in all contexts. They would do so only if they had reasonable prospects of success, having balanced what might be obtained from the litigation and the costs of doing it. We do not therefore think that a measure of proper deterrence is inappropriate in these circumstances.
I am happy to assure your Lordships that under Clause 68 a costs capping order may cover costs incurred prior to the grant of permission, as at present. The applicant can, as now, ask the court to make the order as part of the permission application. It is right, however, that until permission is granted the claimant should bear the financial risk of bringing a weak claim because, ex hypothesi, it will be weak.
Amendment 75E seeks to remove the requirement for the court to be provided with information on funding likely to be available to an applicant when deciding whether to make a costs capping order. I do not agree that prospective funding should be excluded from the information an applicant is expected to disclose or that the court should not be asked to consider it when making the order. It is vital—and this echoes arguments made in the previous group—that the courts are aware of the full financial underpinnings of a claim. This allows the court to assess whether a claim, although notionally brought by a claimant of limited means, is in fact sufficiently well resourced not to require subsidy by way of costs protection. The Corner House principles require courts to consider the financial resources of claimants who request costs capping orders to ensure that any award made is fair and just. This should be reflected in this new regime, firmly to re-establish the principle.
Clause 68 also provides that in judicial review proceedings a court may make a costs capping order in favour of a claimant only if it considers that the proceedings are “public interest proceedings”, and sets out factors the court must consider in making this decision. This reflects the principle in the Corner House case that costs capping orders should be made only if the issues raised are of general public importance and the public interest requires those issues to be resolved. Part of the effect of Amendment 75F would be to remove any public interest requirement, and Amendment 77 would remove the list of factors to which the court should have regard when considering whether the case is in the public interest.
The Government consider that it is right that costs capping orders should be made only in public interest cases, otherwise costs capping orders could be made in cases where no order would have been made under the Corner House principles. In fact, the amendments are therefore effectively a loosening of the established law. The taxpayer should be asked to subsidise cases only where there truly is a public interest in the case proceeding.
Lord Pannick
The Minister mentioned the interests of the taxpayer. Can he assist the Committee on how many costs capping orders have, in fact, been made over the past few years, other than in environmental cases, which are dealt with separately in Clause 70?
Lord Faulks
The noble Lord mentioned a figure of 30 such cases. I do not have any precise figures.
Lord Pannick
I mentioned 20 cases, which covered all the environmental claims. I think that there have been only a handful—two or three—costs capping orders that are not environmental. Does the Minister have any more authoritative figures, because I do not understand the problem to be substantial?
Lord Faulks
I do not have any more authoritative figures. I will certainly write to the Committee before Report giving those figures, if they are available. I cannot guarantee that they are available, but if they are, I will certainly assist the Committee. We have, however, to consider not only the past position but the position prospectively. It is necessary in this context to consider what might be done in the future were there, as some of these amendments suggest, to be a loosening of the rules.
It is important that the matters listed in the clause are taken into account. I do not consider the factors to be contentious. Common sense dictates that, in deciding whether proceedings are public interest proceedings, consideration needs to be given to the number of people directly affected and the significance of the effect. It is also right that the court considers whether the proceedings involve consideration of a point of law of general public importance.
Clause 68 sets out three requirements in subsection (6) that proceedings must meet before a costs capping order can be made: first, that the proceedings are “public interest proceedings”; secondly, that in the absence of the costs capping order the claimant would not continue with the judicial review; and, thirdly, that it would be reasonable for the claimant to act in this way. Amendment 75F seeks to remove these entirely and Amendment 76 would remove the third of these criteria.
The noble Lord, Lord Pannick, was concerned about how this subsection would be interpreted.
Lord Davies of Stamford
The noble Lord has just read out the criteria for making a costs capping order in subsection (6). Does he agree that because of the Henry VIII-plus provision in subsection (9), all those criteria could equally well be set aside, waived or completely changed simply by fiat of the Lord Chancellor at any time?
Lord Faulks
As the noble Lord would expect, I am coming on to consider the Henry VIII clause, so perhaps he will be kind enough to bear with me until I come to address that particular issue.
In the mean time, I shall deal with the assessment of whether it was reasonable to discontinue the claim, which was a question from the noble Lord, Lord Pannick. This was not in the summary of the Corner House case, and it was only a summary that I endeavoured to assist the Committee with. It is a matter that we can find in the case. The provision in respect of the claimant being reasonable in discontinuing their claim comes from the Corner House principles. The court now assesses whether, without a protective costs order, the claimant would be reasonable in discontinuing their claim based on the lack of financial protection. All that we are seeking to do in statute is to confirm what is already in that case. I will come on to the point about the Henry VIII clause.
It was a requirement of the Corner House case that capping orders may only be in cases where the issues raised were of general public importance. The public interest requires that those issues be resolved and if a costs capping order is not made, the claimant would discontinue the proceedings and would act reasonably in doing so. The Government are not of the view that those requirements should be removed. Amendments 75F, 77 and 81 would remove from Clauses 68 and 69 powers for the Lord Chancellor to amend lists of matters within these clauses through statutory instrument. We do not believe that that is a sensible approach. I will set out why.
Removing the powers to amend these lists of matters would prevent us from responding quickly should it become necessary. Over time we have seen the development of the principles governing where a costs capping order should be made. That is clear from the changes that have been made to the principle set out in the Corner House case, referred to by the noble and learned Lord, Lord Woolf, in his contribution to the debate. It may be the case that there are future developments which mean that it would be appropriate for the courts to consider different matters when deciding whether, for example, proceedings are public interest proceedings. These powers give us the ability to respond quickly should change be needed. While this is done through statutory instrument rather than primary legislation, it does not mean that Parliament will be unable to consider any changes. Both powers are subject to the affirmative resolution procedure, so any changes will be debated in both Houses before coming into force. I also note that the Delegated Powers and Regulatory Reform Committee, whose report was discussed earlier in Committee, recommended the creation of a similar model elsewhere in this part.
This is not a question of the Lord Chancellor, as it were, having a free opportunity simply to alter the whole burden or interpretation of the clause. When dealing with the present position of the Lord Chancellor, the noble Baroness, Lady Lister, referred to the Joint Committee on Human Rights and the position of the Lord Chancellor generally. Of course, the Government responded to that report, as she will be aware. In particular, it referred to Section 1 of the Constitutional Reform Act 2005, which expressly provides that its provisions do not affect the existing constitutional principle of the rule of law or the Lord Chancellor’s existing constitutional role in relation to that principle. Furthermore, the Lord Chancellor’s oath specifies that his role is to,
“respect the rule of law”.
It suggests that the responsibility of the Secretary of State, for example, regarding sentencing or prisons, undermines the Lord Chancellor’s responsibilities for justice and the rule of law. It is a big question which I understand has been considered by the Constitution Committee of your Lordships’ House. I do not think it would be appropriate for me to comment further except to say that, as I think the Lord Chancellor has said on a number of occasions, he is very mindful of his oath and his obligations in that regard. As the noble Baroness herself acknowledged, the change—to put it neutrally—to the Lord Chancellor’s role was brought about in something of a hurry by the party opposite when in power.
I turn to Amendment 75B, which seeks to extend the protection of costs capping orders to those who intervene in judicial reviews even though they are not parties to the proceedings. We see that as a step too far. Under the current scheme, I believe that interveners do not receive such orders. It would not be consistent with their status as a non-party. For example, an intervener could not, as required under the clause and the Corner House principles, meet the criteria of discontinuing the proceedings. I said in the debate on Clause 67 that an intervention should be made in a way that does not incur additional costs for the claimant or to the usually taxpayer-funded defendant. There are sufficient safeguards set out in Clause 67 to render this amendment unnecessary. For example, if the court considers that there are exceptional circumstances that make it inappropriate for the intervener to pay those costs, it will not award costs.
The Government accept that the court should continue to be able to grant cost protection where the issues are genuinely of public importance and the case cannot proceed otherwise because of the costs risk, but we wish to ensure that they are not made widely or in any way routinely. As the noble Lord, Lord Pannick, pointed out, they may not be very frequent, but we certainly do not want to increase their use or increase their use in different circumstances. It is only in exceptional meritorious cases, where there are serious issues of the highest public interest that otherwise would not be taken forward, that a public body defendant should have to pay its own costs regardless of whether it wins or loses. The clause retains the principle that the costs are a matter for the judiciary. When considering an application for a costs capping order, it will be for the judge, as currently, to decide whether the particular proceedings are in the public interest and whether an order should be made in an individual case. I am extremely mindful of the comments made by the noble and learned Lord, Lord Woolf, in the context of this and other amendments—indeed throughout Part 4. In his view and that of other noble Lords, it is an encroachment into judicial territory. It is said that Parliament should not be involved in areas where judges can develop the law and where they exercise their discretion. I understand that point. The Government do not seek to fetter the discretion inappropriately but none the less consider it appropriate to set out with some clarity what the provisions are while still permitting there to be judicial discretion, as indeed is appropriate.
Lord Davies of Stamford
Before moving to the next clause, I wonder whether the Minister would be kind enough to address the two questions I asked on how the court will satisfy the obligation that will be imposed on it by the Bill that an applicant would not proceed if a costs-cutting order were denied. My two questions were: would the applicant be asked the question and be required to make a statement saying that he or she would desist from an application if a costs-cutting order was not available? Secondly, in the event that such a declaration was made, would it be enforceable and would the applicant be held to it? In other words, would it in all circumstances be the end of that application, even if other sources of funding could, at that late stage, be found, even if they were not anticipated?
Lord Faulks
Those are precisely the circumstances in which we think the matter is best left to the judges. Indeed, judges have been performing such an exercise under the Corner House principles, which would not alter if the Bill is enacted in the way in which the Government suggest.
Clause 69 sets out the way in which a court should approach the decision of whether to make a costs capping order and the terms of such an order if made. It contains a list of five factors that the court must consider as part of this process. Noble Lords will recognise that, with one exception at subsection (1)(e), the factors build on considerations for making a costs capping order which were set out in the Corner House case.
Amendment 78 seeks to make it optional for the court to have regard to these factors. It is right that the court must consider the factors at Clause 69 when considering whether to make a costs-capping order as they are of great importance in ensuring that a costs-capping order is not awarded where it is unnecessary. However, the courts still have discretion, as the clause does not inhibit the courts’ discretion in deciding how much weight, if any, should be given to each factor. In addition, the list is not exhaustive, meaning that courts can have regard to any other factors which they consider to be relevant to the case before them. Amendment 78 is therefore unnecessary in the Government’s view.
In order to understand the effect of Amendment 77A, it is necessary to consider Amendment 75F, which is discussed in a later group and which removes the requirements for making a costs-capping order from Clause 68. When taking this amendment into account, the effect of Amendment 77A is to grant the court a general discretion to make costs capping orders, provided it is of the view that an order would be just, having considered the circumstances of the case, including the factors set out at Clause 69.
Amendment 80A transposes the requirements from Clause 68 that are removed by Amendment 75F into Clause 69, where they become additional factors that the court must take into account when considering whether to make an order, instead of requirements which must be met before an order can be made. Amendment 80 also adds an additional factor to the list of factors for the court to consider, which is the likely effect on the applicant if a costs-capping order is not granted.
Amendments 77A and 80A go too far, particularly when taking Amendment 75F into consideration. The effect of these amendments together would be that a number of the Corner House principles, which must currently be satisfied before a court can make a costs-capping order, would merely become factors for the court to consider, allowing an order to be made in cases where none of those principles was fulfilled. We suggest that that cannot be right. The principles set down in this case must be the starting point, and must certainly be satisfied before the taxpayer is asked to subsidise the cost of the litigation.
Amendments 79 and 80 seek to amend the list of factors in Clause 69 that the courts have to consider. Specifically, they seek to remove the requirement that the courts have regard to: the financial resources of third parties who have provided or may provide financial support to the parties; and the extent to which third parties who have provided or may provide financial support to the claimant are likely to benefit if the claimant is granted a remedy in judicial review.
Amendment 79 would mean that the court would not have to take into consideration the financial resources of third parties who may provide funding in the future. This would mean that the court would not have a full picture available when deciding whether it was appropriate to grant costs protection. We do not agree that this is a sensible position. Courts should consider information relating to potential sources, otherwise it could lead to orders being made in cases where it is not necessary or appropriate and, should the claimant lose, would result in the taxpayer being asked to pick up the bill. Again in the Corner House case, one of the requirements was that the court should have regard to the financial resources of the parties to ensure that any order the court made was fair and just.
I would like to reassure noble Lords that we intend to provide a safeguard so that, where a claimant has told the court—this perhaps answers to some extent the residual query of the noble Lord, Lord Davies—that it expects to receive future financial support and that support is ultimately not forthcoming, the claimant will be able to inform the court so the court can take the change of circumstances into consideration. Clause 68 provides that rules of court will set out the information that a claimant must provide when applying for a costs-capping order. We will invite the Civil Procedure Rule Committee to include the safeguard in those rules. While it may be argued that an alternative to this safeguard would be for the court to take account of financial support only once it has been received, I do not think that this would be appropriate as the making of the costs-capping order may well remove the need for that support, meaning it might never be forthcoming.
Amendment 80 would remove the requirement that the court considers the benefit to a potential third-party funder. The Corner House principles recognise that a claimant’s private interest in a case is a relevant factor when considering whether to grant a costs-capping order. This principle from Corner House is reflected in Clause 69, which requires the court to consider the extent to which a grant of relief in the judicial review would be of benefit to the claimant and third parties who have funded or may fund the claimant’s case. It is right that the court consider the full picture when considering whether to make an order.
Clause 69 also requires that, when a court makes a costs-capping order in favour of the claimant, it must also make one for the defendant—a matter referred to by the noble Baroness, Lady Deech—thereby limiting the defendant’s liability for the claimant’s costs should the defendant lose. Such orders are commonly known as cross caps and are not new. A court will often already make such an order in practice, but we think that in future they should be made in all cases where the claimant is granted costs protection. Amendments 80B and 80C would weaken this principle so that the courts may, or should normally, impose a cross cap. I accept that in most cases a public body has more resources available to it than a private individual. However, they are not unlimited, as the noble Baroness quite rightly said. These resources ultimately come from the taxpayer and it is right that they should also have costs protection. This subsection reflects the general principle in civil cases that overall costs should remain within reasonable limits and that the taxpayer is not asked to subsidise a disproportionately large costs bill.
I entirely accept what the noble and learned Lord, Lord Woolf, said, that sometimes the courts have to intervene to protect claimants where otherwise a claim simply could not be brought. It is a difficult balance to achieve, begun modestly by my noble and learned friend Lord Mackay and expanded upon subsequently in a way that effectively resulted in unfairness to the defendant. It is always difficult to establish a regime that entitles proper access to justice, but nevertheless retains a level playing field for all parties.
We say that neither this subsection nor the clause as a whole will take away the discretion of the courts—I emphasise this—to make decisions on costs. The clause does not prescribe the level of the caps; judges will be able to set the caps at levels tailored to the cases before them. The levels of the claimants’ and defendants’ caps may naturally be different, depending on their means. This, I believe, will address any imbalance between the financial positions of the parties. It remains a matter for the court to decide whether a costs-capping order should be granted in individual cases, and the terms of that order. This is the only appropriate way to ensure that these orders are made only in cases that genuinely need them and are set at a level that properly reflects the financial position of the claimant.
Lord Pannick
I thank the Minister. He has responded fully. The way in which he has presented the Government’s case throughout our deliberations on the Bill has been helpful and he is showing great patience in dealing with all the points that have been raised. I thank him for that.
Notwithstanding that, three essential points arise under Clauses 68 and 69, as with all the other parts of Part 4 that we debated on Monday and today. They are three issues that the Minister really does need to consider further. The first—and I should be grateful if the noble Lord could respond before Report—is: what is the mischief that Clauses 68 and 69 seek to address? How many of these costs-capping orders apply other than in the specialised field of environmental cases, which are dealt with separately under Clause 70 because of the convention that applies to them? His answer to that was, “Well, the Government are also concerned about the future”. Of course, that is right, but is there any basis for thinking that the way in which the judges have dealt with this issue and will continue to deal with it is inadequate in any sense? I do not understand what the mischief is.
The second point that the Minister needs to reflect on is whether any mischief is sufficiently substantial to justify confining judicial discretion in this area and conferring powers on the Lord Chancellor to regulate this area by subordinate legislation.
The third point that I ask the Minister to reflect on is what the consequences will be for access to justice. As he has heard, a number of noble Lords are concerned that the result will inevitably be detrimental.
I very much hope that over the summer the Minister will have the opportunity to sit down with the Lord Chancellor, Mr Grayling, perhaps on a beach somewhere —I know how dedicated the noble Lord is to his departmental responsibilities—and explain to him the difficulties that have been addressed on Clauses 68 and 69. If, as I hope, the Minister has the opportunity to do that, then perhaps together with his sun cream he will take with him a red pen to strike out the parts of these clauses that have been criticised. If he does not do so, I suspect that on Report this House will want carefully to consider doing precisely that for the Government. In the mean time, I beg leave to withdraw the amendment.
“( ) Subsection (1) shall apply subject to the requirement imposed by section 70(3) in proceedings to which that section applies.”
Lord Marks of Henley-on-Thames
My Lords, this group of amendments concerns environmental judicial review cases and relates principally to Clause 70.
Under the Aarhus convention—or, to give it its full title, the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters—made in 1998 and ratified by the United Kingdom in 2005, the United Kingdom committed itself to ensuring that environmental litigation will be,
“fair, equitable, timely and not prohibitively expensive”.
Compliance with the convention is monitored by a compliance committee to which Governments and the public, whether individuals or corporate bodies, can complain of non-compliance with the convention provisions. By rules of court contained in the Civil Procedure Rules—at Rules 45.41-44—the courts in England and Wales have introduced rules limiting costs awards in Aarhus convention judicial review claims to relatively low fixed sums: currently, £5,000 against an individual claimant, £10,000 against a claimant which is a business or other legal person, or £35,000 against a defendant. There are, I understand, similar provisions in Scotland.
There is a detailed but relatively simple and quick procedure under the rules for a defendant to challenge a claimant’s contention that a claim is indeed an Aarhus convention claim. Clause 70 is an attempt to enable the Lord Chancellor, by regulations, to comply with the Aarhus convention by providing for the costs-capping restrictions in Clauses 68 and 69, which we have just discussed, to be excluded,
“in relation to judicial review proceedings which, in the Lord Chancellor’s opinion, have as their subject an issue relating entirely or partly to the environment”.
I regret that, as an attempt to comply with the Aarhus convention, Clause 70 is, as drawn, inadequate in a number of respects. First, the clause is merely permissive and not mandatory. It states:
“The Lord Chancellor may by regulations provide”.
For so long as the Lord Chancellor fails to exercise his power to make regulations under the clause, it is self-evident that the United Kingdom will be in breach of the Aarhus convention by its restrictions on costs capping in applicable cases.
Secondly, the clause would apply only to exclude or restrict the application of Clauses 68 and 69, limiting costs capping or protective costs orders. For all the reasons given to this Committee in earlier debates, the effects of Clauses 65 and 66 would be to expose anyone lending financial support to judicial review proceedings to an application for the whole cost of the proceedings if they are unsuccessful, with what amounts to a presumption that such a costs order is likely to be made against any such supporter. It is completely clear that the effect of such clauses is to make such litigation prohibitively expensive within the meaning of the Aarhus convention.
Furthermore, as has been explained at length today, Clause 67, if enacted, would have the effect of exposing interveners to a costs order against them in any case in which they intervene, win or lose. It would prevent them from getting their costs, however good their case and however helpful their intervention, even from a thoroughly unmeritorious defendant, unless the court could find “exceptional circumstances”. I submit that it is clear beyond argument that those clauses would make environmental judicial review cases prohibitively expensive, just as devastatingly as the restrictions on costs capping to which Clause 70 is presently limited in its application.
The next problem with Clause 70 is that it refers only to environmental judicial review cases. The Aarhus convention itself is not so limited. The compliance committee found, as long ago as 2008, in a case concerned with odours emanating from the defendant’s waste site, that private nuisance claims relating to environmental matters were also cases to which the Aarhus convention applied. Indeed, only last week, in the case of Austin v Miller Argent (South Wales) Ltd [2014] EWCA Civ 1012, the Court of Appeal ruled, in a judgment given by Lord Justice Elias with which Lord Justice Pitchford agreed, that the court did not,
“see why in an appropriate case a private nuisance claim should not be treated as one of the judicial procedures referred to in Article 9.3”,
of the Aarhus convention. In that case, a protective costs order was not made on its facts, but the principle was clearly established that private nuisance cases could fall within the Aarhus convention.
The Public Bill Office has taken the view that the Long Title of this Bill is insufficiently wide to encompass amendments that deal with the applicability of the Aarhus convention to proceedings that are not claims for judicial review. I therefore invite my noble friend the Minister—if he does not already have enough business with his sun cream and his red pen—to consider widening the Long Title to enable the Government to introduce or consider amendments on Report to address non-compliance by the United Kingdom with the provisions of the convention outside the scope of judicial review, in particular in private nuisance claims.
A further weakness of Clause 70 is in the definition of its applicability. It applies to claims which are,
“in the Lord Chancellor’s opinion”,
environmental claims. That test both fails to tie the applicability of the clause to the terms of the convention itself and leaves the definition of what is or is not a claim within the clause entirely to the opinion of the Lord Chancellor. I fail to see why that should be thought an appropriate way of drafting the clause, given that rules of court have already established, in CPR 45.41 and 45.44, both a satisfactory definition tied precisely to the convention, albeit limited to judicial review claims—which I dispute—and a quick and effective method of determining whether a claim lies within that definition. I add in parenthesis that it is quite unclear from Clause 70 whether the existing rules of court would survive—or, if not, what would happen to them.
The convention compliance committee made findings in 2010 that the United Kingdom was in breach of the convention by reason of the general principle in our courts that costs follow the event. It made those findings despite the UK Government’s submissions that the availability of legal aid, conditional fee agreements and protective costs orders, and the wide discretion given to judges on costs, limit the severity of the general principle that costs follow the event in its application.
Those findings by the compliance committee of course predated the restrictions on legal aid, which were limited in the way that was correctly described by my noble and learned friend Lord Mackay earlier today. They also predated the restrictions on the recoverability of success fees and ATE insurance premiums and, of course, the restrictions on protective costs orders that are proposed by this legislation in the two clauses that we have just considered. At the very least, to even approach compliance with the convention, it is necessary to introduce exceptions, in cases to which the convention applies, to the restriction on the availability of legal aid at the permission stage and to the restriction on the recoverability of success fees and ATE insurance premiums.
Lord Beecham
My Lords, I will compensate for the length of time that the noble Lord took—quite rightly—in moving his amendment by being commensurately brief in my remarks. On behalf of the Opposition, I support a stand part negative, as it were, in relation to Clause 70, for the reasons that the noble Lord advanced.
Amendment 82B, in my name and that of my noble friend Lord Kennedy, would effectively disapply Clauses 64 to 69 in favour of the terms set out, which would align the situation to that of the Aarhus convention. I think we are of one mind in inviting the Government to look again into this issue. It is another example of them failing to appreciate the implications—to put it in a benevolent sort of way—of what they are doing in this connection, not just to domestic concerns but to the international obligations to which we subscribe. I hope the Government will listen seriously to the noble Lord’s critique, look again at the amendments tabled, including the amendment in my name, and revise their position before we get much further down the road with this Bill.
Lord Faulks
My Lords, I am grateful to both noble Lords—my noble friend Lord Marks and the noble Lord, Lord Beecham—for their contributions to this debate. Clause 70 enables provision to be made to exclude judicial reviews about issues which relate entirely or partly to the environment from the revised costs capping regime established in Clauses 68 and 69, which we debated in the previous group. Clause 70 is to reflect our obligations under the Aarhus convention and the various European directives which implement it, which set out requirements for access to justice concerning environmental matters. This includes a stipulation that such procedures must be,
“fair, equitable, timely and not prohibitively expensive”.
This is relevant to judicial reviews in certain environmental cases. Allowing for such environmental cases to be excluded from the costs capping regime in Clauses 68 and 69 allows the Secretary of State enough flexibility to meet future changes in the international landscape. A separate regime has already been established in the Civil Procedure Rules to govern costs capping orders in such cases in England and Wales. It applies a fixed costs framework under which, in a claim raising issues that fall under the Aarhus convention, the liability of the claimant to pay the defendant’s costs is automatically capped at certain levels. This regime is simple to operate and understand.
Amendments 81C and 82B would seek to exclude certain types of judicial review from the provisions in Clauses 64 to 69. Those claims might be considered very broadly as “environmental”. Amendment 81C defines those cases that are excluded by reference to the Aarhus convention and introduces a requirement that, provided certain conditions are met, costs capping orders should be made in these cases.
Amendment 81C also aims to restore the full recoverable success fee and after-the-event insurance premium structure that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 removed, implementing the Jackson reforms to reduce excessive costs in civil litigation. Amendment 82C would seek to define what would fall within the definition of an Aarhus convention claim. Amendment 81A is contingent on Amendment 81C. Its effect is to make Clause 69 subject to the changes to Clause 70, which I have already discussed.
Attempting to define these claims in statute risks either being too generous and gold-plating the Aarhus requirements, or alternatively being too restrictive and missing out claims which should be caught by the Aarhus regime. The definition as set out in the proposed new clause is very broad, and appears to err on the side of gold-plating. In particular, we would not necessarily accept that all private law claims falling within the new clause should come under the term “Aarhus Convention claim”.
The Government see no reason for excluding additional cases, particularly such a broad range of cases as would be covered by these amendments. Too broad a definition would create an incentive for claimants to characterise their claims as “environmental”, generating satellite litigation and assisting, for example, those bringing weak claims to shelter from their proper costs liability. In the Government’s view Clause 70, which allows for the exclusion of certain environmental judicial reviews from the new protective costs order regime which Clauses 68 and 69 will establish, is sufficient to ensure compliance with our obligations under the Aarhus convention and the directives which implement it. The proposed new clauses would upset the careful balance between ensuring the proper measure of access to justice in environmental and other matters and ensuring that judicial review is not misused.
I turn now to Amendment 82D. The new clause seeks to amend Section 10 of the LASPO Act, which makes provision about exceptional case determinations for individuals, and Schedule 3 to that Act, which makes provision about exceptional case determinations for legal persons, so that Section 10 and Schedule 3 would both refer explicitly to claims for judicial review related to the Aarhus convention. The Government do not believe that such an inclusion is necessary. First, funding would already be available to bring a judicial review with a potential benefit to the environment, subject to the merits and means test. This is in the scope of the general civil legal aid scheme by virtue of paragraph 19 of Part 1 of Schedule 1 to LASPO. Section 10 of LASPO provides for exceptional funding in cases that are outside the general scope of civil legal aid. Secondly, along with the provisions of the Aarhus convention, this amendment is concerned with reflecting EU directives. The current provisions under Section 10 and Schedule 3 already provide for legal aid to be granted where it is necessary to make the services available to the individual or legal person because failure to do so would be a breach of the individual or the person’s enforceable EU rights.
The noble Lord, Lord Marks, referred to reviewing the CPR. The Government have committed to reviewing the costs regime for environmental cases when the European Court of Justice handed down its judgment in the Commission v the United Kingdom case. Following that judgment in February this year, and recent case law, we are reviewing the current costs regime. As part of that review, we will consider whether the current costs regime for Aarhus claims should make provision for statutory review proceedings dealing with environmental matters, look at what scope there is to amend the current cap—which is currently £5,000 for individuals and £10,000 for businesses—and consider the principles determining what level of costs in a particular case would be prohibitively expensive, as set out in Edwards v Environment Agency and reiterated by the European Court of Justice in its various infraction judgments, and whether they could be included in the costs regime.
The Government do not accept that all private nuisance claims are caught by the convention requirements. They tend to focus on enabling those with interests in land to protect their private property rights rather than enabling members of the public to challenge environmentally deleterious acts. However, on the occasions where a private nuisance claim relates to actions which do not merely harm the claimant’s private property rights but contravene provisions of national law relating to the environment, there are judicial and administrative procedures which may be relied upon by members of the public.
The Aarhus convention protects the right of environmental NGOs to bring judicial proceedings. It is not necessary to intervene in existing cases, so Clause 67 does not put the UK in breach. As to reviewing the application of LASPO to this area, I recall that during the debate when the LASPO Bill was going through Parliament there was an attempt to carve out an exception for cases of this sort. As the noble Lord, Lord Marks, and the Committee will have heard me say, the Government are committed to reviewing the effect of the LASPO provisions, but it is far too early to do so in this particular context. The review will take place within five years—perhaps sooner than five years, but certainly not much sooner—so as to allow a full review of the effect, bearing in mind in particular that there was a large spike in cases before April 2013, the cut-off date, which may make it very difficult to analyse satisfactorily the effect of LASPO.
Of course, I will reflect carefully on the observations of my noble friend Lord Marks and the noble Lord, Lord Beecham, but I gratefully decline my noble friend’s invitation to amend the Long Title of the Bill as currently advised. It is our view that these provisions are sufficient to ensure compliance with our obligations under the convention and the EU directives. I therefore respectfully invite the noble Lord to withdraw his amendment.
Lord Marks of Henley-on-Thames
My Lords, I am bound to say that I am not greatly surprised by my noble friend’s declining to amend the Long Title of the Bill. I merely say that the amendments that I and others have put forward are directed only at making the United Kingdom’s procedures compliant with the Aarhus convention. I entirely take on board what he said about the impending review of the rules in the light of the European case, and I understand what he said about private nuisance claims. It is certainly not the case, and I never suggested that it was, that all private nuisance claims are covered. I am merely repeating the decision of the Court of Appeal that there is no reason why private nuisance claims relating to environmental matters should not be Aarhus convention claims. At the moment we have no costs regime to enable compliance with the convention in respect of those.
As far as legal aid is concerned, I entirely take my noble friend’s point about the review of LASPO that is due. My point is directed only at the fact that at the permission stage there is now a restriction on legal aid for judicial review claims that ought not to apply to Aarhus convention claims. In those circumstances I of course beg leave to withdraw my amendments at this stage, but I do rely on my noble friends having an opportunity to consider what I have said during the Recess and to come back and report.
Lord Pannick
“Legal aid for judicial review
(1) The Lord Chancellor may not use the powers in section 2 or 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to alter the eligibility of any individual for legal aid for judicial review proceedings (including applications for permission to apply for judicial review).
(2) Any statutory instrument made under the provisions referred to in subsection (1) and which otherwise alters eligibility in the manner specified in subsection (1) ceases to have effect in relation to legal aid for such proceedings.”
Lord Pannick
My Lords, Amendment 82 would introduce a new clause to prevent the Lord Chancellor from using the powers which he was granted under the Legal Aid, Sentencing and Punishment of Offenders Act 2012—LASPO—to alter eligibility for legal aid in judicial review proceedings. Amendment 85 would ensure that the new clause comes into force on the enactment of the Bill and so would not be dependent on the discretion of the Lord Chancellor.
Your Lordships will recall that during the debates on LASPO—and they were detailed, anxious debates—Ministers repeatedly gave assurances that restrictions on legal aid in the Bill did not affect and restrict judicial review. Had the Bill contained such restrictions, I have no doubt that Ministers would have found it difficult to secure the approval of this House. Instead of bringing forward proposals for restrictions on the availability of legal aid for judicial review by way of primary legislation, so that they could be fully scrutinised, the Lord Chancellor has limited legal aid in judicial review by subordinate legislation. As your Lordships will know, such subordinate legislation receives only limited scrutiny in this House: amendments cannot be tabled and the convention is that we rarely table—far less approve—a fatal Motion, however foolish the regulations may be.
To give one example, your Lordships may recall that on 7 May this House debated a Motion of Regret, which I had tabled, in relation to the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014. Those regulations made a fundamental change. They provided that the Lord Chancellor must not pay legal aid fees unless the court gives permission to bring judicial review proceedings, or, if the court neither refuses nor grants permission, the Lord Chancellor thinks it reasonable to pay legal aid remuneration. Eleven noble Lords spoke in support of the Motion of Regret. The Minister batted at both ends, bowled and fielded on his own with no support from any noble Lord.
Legal aid for judicial review is too important a matter for secondary legislation. If the Lord Chancellor wishes to reduce legal aid in the context of judicial review, let him bring forward proposals for primary legislation so that they can be properly scrutinised and fully debated. Amendments 82 and 85 would secure that objective and would nullify the regulations that we debated on 7 May.
I have also added my name to Amendment 82A, tabled by the noble Lord, Lord Beecham. I will say something very briefly about it. It addresses the residence regulations that would have confined legal aid to those resident in this country. In our debates today on Part 4 of the Bill, it should not go unrecorded that on 15 July the High Court declared those regulations to be an unlawful exercise of the powers conferred by the 2012 Act. That was because Parliament had identified those services qualifying for legal aid by reference to need, and the regulations adopted a different criterion. Indeed, under the regulations, many people with the greatest need and whose cases are properly arguable would be denied legal aid. The case is the Queen on the Application of Public Law Project v the Secretary of State for Justice, 15 July 2014.
At paragraph 60 of the judgment of Lord Justice Moses, with which Mr Justice Collins and Mr Justice Jay agreed, the court referred to the comments of the Secretary of State for Justice, Mr Grayling, in the Telegraph newspaper on 20 April. That was two weeks after the argument in the case had concluded in court, and before the judgment of the court was given. Mr Grayling, the Secretary of State, said that,
“yes, you’ve guessed it. Another group of Left-wing lawyers has taken us to court to try to stop the proposals”.
The High Court commented on this newspaper article at paragraph 60 of the judgment. Lord Justice Moses said that these comments by the Lord Chancellor were,
“unrestrained by any courtesy to his opponents, or even by that customary caution to be expected while the Court considers its judgement, and unmindful of the independent advocate’s appreciation that it is usually more persuasive to attempt to kick the ball than your opponent’s shins”.
At paragraph 83 of the judgment, the court added that the Lord Chancellor’s reliance in that case on “public confidence” in his defence,
“amounts to little more than reliance on public prejudice”.
This is a quite remarkable judicial rebuke for the Lord Chancellor, and I hope that he will reflect on what the court says.
This is the last group of amendments that we are considering on Part 4. As this Committee leaves this part, I suggest to noble Lords that that judgment of three judges in the High Court confirms the criticisms that this Committee has heard about the Lord Chancellor’s lack of understanding of the central role of judicial review in maintaining the rule of law, and it provides yet further reasons why this House will want to give the most careful scrutiny to Part 4 of the Bill on Report in October. I beg to move.
Lord Woolf
My Lords, I have added my name in support of the amendment that the noble Lord, Lord Pannick, has advanced so elegantly. It is perhaps appropriate that it should be considered this afternoon because it will be recalled that this morning I was gently—but I do not think appropriately—chided by the noble and learned Lord, Lord Mackay, for going too far in my comments about legal aid provision with regard to judicial review and the effect of the action being taken in that respect. I respectfully suggest that what we have just heard indicates that there is real reason to be concerned at the reduction of legal aid in respect of judicial review. The points made by the noble Lord, Lord Pannick, with regard to the shortcomings of regulations being used in respect of this area of legislation are very well founded.
Baroness Campbell of Surbiton
My Lords, I speak in support of all the amendments in this group, and in particular Amendments 82 and 85 in the name of my noble friend Lord Pannick. I must say that he has put down some very sensible amendments, which spoke to me—so much so that I decided to change my holiday plans and be here on the last day.
The issue of legal aid is inherently linked to the provisions in Part 4. It is part of a package of reforms that seem to have a very strong common thread—they make it so much harder to challenge public bodies when they act unlawfully. That right to challenge belongs to every citizen, whatever their background or means, but without legal advice and representation it is a truly empty right. That is particularly true of those at the margins of society who may be most affected when public authorities get it wrong—and sometimes they get it very wrong. I am particularly familiar with that territory due to my long career in social care and disability public services.
The legal aid reforms, which restrict its availability for judicial review, are one of the most damaging elements of this package. Coupled with the proposals on the costs of interventions and costs capping, they make it nigh impossible for the vulnerable to bring a claim. I supported my noble friend Lord Pannick in his Motion of Regret on the regulations that came into effect in April—not only for what they said but for the way in which they were introduced. The Joint Committee on Human Rights was highly critical of that. In their response this month, the Government say that legal aid for judicial review does not require a higher level of scrutiny. Honestly, that shows a remarkable lack of understanding of why judicial review is so important to the rule of law and why legal aid is so crucial to its effectiveness. Two weeks, ago the High Court ruled that the Government’s proposals for a residence test for legal aid were unlawful. We all remember that one. The Secretary of State had exceeded his powers and the test was discriminatory. The judgment confirms that the Government have been pushing the boundaries of what Parliament intended.
The Government’s approach to legal aid and their view of its importance to judicial review is deeply disturbing. However much the Lord Chancellor may disapprove, those who campaign for justice are entitled to legal aid to challenge the Government—or any other public body—when they get it wrong. Campaigning is in my DNA, which is why I support these amendments. I am a campaigner; not a left-wing, right-wing, or middle-wing campaigner. I am just a campaigner, who has been involved in judicial review to make society and our communities bigger, wiser and more effective. Again, that is why I support these amendments.
Baroness Lister of Burtersett
My Lords, it is always a privilege to follow the noble Baroness, the campaigner on such matters. I support everything that the noble Lord, Lord Pannick, has said, but I want to focus on Amendment 82A to draw attention to an issue that arose at the Joint Committee on Human Rights which, unusually, has done two reports on the legal aid changes. The second of these looks particularly at the impact of the residence test on children. The Government responded to our first report by making some concessions, which we welcomed, with regard to Sections 17 and 20 of the Children Act 1989. However, concerns were then raised with us that, although this was welcome, so far as it went, it did not go far enough because it does not exclude from the residence test all legal remedies, including judicial review. I remind noble Lords that we are talking about cases relating to children in need: the additional care needs of a disabled child; support needs for homeless families; and unaccompanied children who are homeless and need appropriate accommodation, support, care and supervision.
Anita Hurrell of Coram Children’s Legal Centre, gave us an example of what this would mean. She said:
“I would just highlight the situation faced by a child advised that they have a meritorious claim and with a solicitor telling them that they could pursue that claim and could need an immediate remedy such as some kind of injunction if the situation that they are living in is very desperate. That same solicitor is going to be advising the child that they cannot help them pursue that claim. They are in effect going to be saying to the child, ‘You can go to the High Court but you can go there on your own’ … It is going to be impossible for children to understand that they have this right but that it cannot be enforced”.
It would be difficult for most people to understand why that would be the case.
In its conclusions, the committee said:
“We are confused as to why the Government excluded certain child protection cases from having to satisfy the residence test, but did not exclude from the test all legal remedies including judicial review. Whilst welcoming the funding of legal advice, we do not understand the justification that it is a good use of public money to give funding for advice that cannot be taken through to a judicial review”.
Will the Minister comment on the point about what could be a misuse of public money?
The committee continued:
“We are concerned that children could be provided legal advice on Section 17 and 20 Children Act 1989 cases, only to find that their same solicitor will at some point no longer be able to help pursue a meritorious claim”.
It went on:
“We acknowledge the Government’s argument that they would prefer that people do not have to make an application for judicial review”.
That is quite understood. The committee continued:
“However, we believe that it is inevitable that judicial review will be a necessary remedy in certain cases. We are concerned that, if the residence test applies, there will no longer be the risk of a judicial review when a local authority fails a child in its care. This deterrent effect of a judicial review encourages local authorities to discharge their duties properly. Such cases requiring judicial review are of a serious nature and children should retain legal support”.
I find it very difficult to believe that anyone could disagree with that.
Lord Cormack
My Lords, I spoke earlier this year—I think it was in May—in the debate on the Motion proposed by the noble Lord, Lord Pannick. The arguments were overwhelming and there was nobody, other than the poor, beleaguered Minister, who defended. I am moved to get to my feet again because, once more, we have heard a very calm, analytical speech from the noble Lord, Lord Pannick, with some fairly devastating quotations. We have heard a moving speech from the noble Baroness, Lady Campbell of Surbiton. She says she is not a left-wing campaigner and she clearly is not. She says she is not a right-wing campaigner and she clearly is not. However, an inspiring campaigner she clearly is. She has given up her day today and we know that that taxes her resources very considerably. She has been here throughout the day and she has spoken, as she always does, forcefully—and on one occasion with some peculiar accompanying sound effects over which she had no immediate control, but she made light of that as she always does, as she also has a very good sense of humour.
The noble Baroness, Lady Lister, talked about public money. Of course she is right to focus on that because we are talking about public money, but what is public money? It is the taxpayers’ money, and many of those who need to benefit from our legal system are taxpayers. It is incumbent upon every Government to ensure the defence of the realm and the policing of our streets—one could go on and on—but this country is nothing if it is not a country which is wholly honouring the rule of law. In order for all our citizens—all Her Majesty’s subjects—to benefit from the rule of law, the right and proper sums must be spent on ensuring that we have the proper rule of law.
The noble Baroness talked about children. We have a particular and, indeed, one could argue, overriding responsibility for those who are least able to look after their own interests. That really is at the root of this afternoon’s brief debate on this amendment. Earlier, when he was replying with a great deal of sympathy as well as his normal aplomb, the Minister indicated that he and his ministerial colleagues want to consider what is said in Committee in this House and that he will come back on Report having reflected. He clearly needs to reflect on what has been said in this very brief debate. I hope he will, because I do not want to see Report punctuated by acrimonious Divisions, or even non-acrimonious Divisions, but I think we have to get it right, and at the moment we clearly have not.
I could go on, as I did briefly in the other debate, about my regret that the Lord Chancellor is no longer a lawyer, but we are, as they say, where we are. The Lord Chancellor is a highly intelligent man. I hope he is a man who will read what has been said today and in preceding debates in Committee, and that when he reads and listens to the arguments put with forensic skill, as I am sure they will be, by the Minister, he will agree that this measure needs very significant amendment.
Lord Beecham
My Lords, we have had many debates in the four years during which I have been privileged to be a Member of this House on the subject of legal aid. Three years on from the Legal Aid, Sentencing and Punishment of Offenders Bill, we continue to see measure after measure in statute and secondary legislation continuing the steady erosion of access to justice, exemplified in a similar context by the confirmation of a fall of 79% in the number of applications to employment tribunals following the introduction of substantial fees, and justified by the Justice Minister Mr Vara by the curious assertion that:
“It is not fair for the taxpayer to foot the entire £74m bill for people to escalate workplace disputes to a tribunal, and it is not unreasonable to expect people who can afford to do so to make a contribution”.
It is notable that he apparently does not think it reasonable for employers in such cases, even those which are found to be liable, to make a contribution. It is an indication of the approach which the Government take to the issue of legal aid and access to justice.
As the noble Lord, Lord Pannick, reminded us, during the debates on the LASPO Bill, the Government said legal aid would continue to be available for judicial review, but that position, as he explained, has been substantially undermined. Legal aid is no longer to be available for the preliminary stage of applying for permission to seek judicial review, notwithstanding the tight timescales for making such applications after the making of the decision which evokes the application or the fact that often cases are settled with the respondent acting to correct the position before a hearing.
We now face an additional problem in that the Bill, if not amended, would require an applicant to prove a high likelihood of success at the permission stage—something that we discussed earlier today. That necessarily implies a great deal of preparatory work with absolutely no guarantee of funding—fine if you are a landowner, developer or commercial organisation challenging a decision, with the means to pay for such advice, but fatal if you do not have the wherewithal to pay for the necessary advice and support.
Perhaps the nastiest change the Government are pursuing is the introduction of a residence test for legal aid, which would apply to judicial review and to most other areas of law. This would apply to everybody over the age of 12 months who could not prove a period of continuous residence of at least 12 months in the UK at some point in their lifetime.
As my noble friend Lady Lister has reminded us, the Joint Committee on Human Rights was particularly, though by no means exclusively, concerned about the impact of this position on children, and concluded that it was in breach of the UN Convention on the Rights of the Child, because it would prevent children having effective legal representation in cases that affect them. It noted that the Government had no information as to the number of children who might be affected, or the savings that would accrue as a result of imposing the test.
The Secondary Legislation Scrutiny Committee was also critical, not least in relation to the evidential requirements for a residence test, which is apparently to be carried out by the provider. The Ministry of Justice had not worked through all aspects of the policy, and the committee recommended that it should make a clear statement before the order—which was due to be subject to the affirmative procedure in your Lordships’ House recently, and itself became the subject of an application for judicial review—was considered. The committee concluded by noting that,
“this exclusion is being pursued primarily as a matter of principle since the savings made cannot be quantified. It is a very sensitive matter and the House will wish to be absolutely clear on how the residence test will operate in practice”,
and recommended that the order, which was due to be debated two weeks ago, should not be debated until these items had been published.
In the event, as the noble Lord, Lord Pannick, has reminded us, the residence test for legal aid was ruled unlawful by the High Court, as it was adjudged that the provisions introduced a criterion—residence—that had nothing to do with what the Legal Aid, Sentencing and Punishment of Offenders Act provided as the criterion, which was need. The judgment applies to all areas in which legal aid might be required—including judicial review, which could, as my noble friend Lady Lister has reminded us, apply to children as it might to adults.
Sir Alan Moses referred—in unprecedented terms, I would have thought, for a senior judge to apply to any Minister, let alone a Lord Chancellor—to the comments made by the Lord Chancellor. He quoted Mr Grayling as saying in his article:
“Most right-minded people think it’s wrong that overseas nationals should ever have been able to use our legal aid fund anyway”.
Then he referred to a group of left-wing lawyers—which on this occasion did not include me—
Lord Beecham
But I wish it had.
To this characteristic blast on the political dog whistle, Sir Alan responded with an extract from a 40-year-old judgement of Lord Scarman, who said,
“every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection”.
That is a very clear statement of principle, which the proposal for the residence test, and the Bill’s proposals on judicial review in general, significantly threaten to undermine.
The Government, in their perennial search for votes—not from left-wing lawyers but from the right—are, of course, appealing. A less appealing prospect than this Government and this Lord Chancellor remaining in office and continuing to dismantle our system of justice is hard to imagine. I hope that the Government will listen to the noble Lord, Lord Pannick, and also listen, not necessarily to members of the Opposition but to the noble Lord, Lord Cormack, and the noble Baroness, Lady Campbell, and all the others who are disturbed by the trend of policy in this area—and I hope that they will rethink, in particular, the provision relating to judicial review. Whatever happens—in the Supreme Court, I presume—about the question of the legality of the residence test, it plainly conflicts with Lord Scarman’s clear judgment, which we should all respect.
Lord Faulks
My Lords, Amendments 82 and 85 concern legal aid for judicial review and seek to prevent the Government making changes to the eligibility or scope of legal aid for judicial review, including making changes to remuneration for providers. They also seek to annul any statutory instruments that have been made through the powers available under Sections 2 and 9 of the LASPO Act 2012 which have the effect of altering eligibility for, or the availability of, legal aid for judicial review. Amendment 85 would bring the new clause into force on the date of Royal Assent.
Your Lordships will already be aware that remuneration arrangements for civil legal aid cases have recently been amended in regulations made under Section 2 of LASPO, so that legal aid remuneration to providers for work on judicial review permission application is at risk. The noble Lord, Lord Beecham, suggested, perhaps inadvertently, that people would not be paid for the work building up to making the application. That is not quite right: you do get legal aid for that and, if your application is successful, you will get all the costs. The only part of the process that is at risk is the application process itself in that you will not be able to get legal aid for that, but you will recover the costs in due course if you are successful. I dealt with that in some detail in my response to the relevant debate. I could, if necessary, refer to the very lengthy speech I made on that occasion, but I hope that I can save the Committee the trouble of listening to that. It is a matter of record and so I will not do so at this juncture.
More generally, if the legal aid system is to command public confidence and credibility, limited legal aid resources should be properly targeted at those judicial review cases where they are needed most. This is why we introduced amendments to the Civil Legal Aid (Remuneration) Regulations 2013 to limit the circumstances when legal aid providers should receive payment for work carried out on an application for permission. I should stress that the regulations made under Section 2 of LASPO do not affect the scope of civil legal aid for judicial review or the eligibility for legal aid in judicial review proceedings. Remuneration continues to be paid in the usual way for the earlier stages of a case, to investigate the prospects and strength of a claim and to engage in pre-action correspondence aimed at avoiding proceedings under the pre-action protocol. Indeed, the pre-action protocol will very often result in the matter being resolved without the need to go on to seek permission at all.
The amendments appear intended to stop the Government having the ability to make changes to civil legal aid scope and remuneration for judicial review except via primary legislation. The form of legislation and level of parliamentary scrutiny to which provisions in relation to the remuneration of providers and scope of civil legal aid are subject were considered only recently by Parliament during the passage of LASPO, and we continue to believe that they are appropriate. We have no current plans to alter the scope of legal aid for judicial review. However, the power to make any such changes in the future, including in respect of potential expansion, should not be unnecessarily constrained as proposed. I recall an amendment, to which I think I was a party, which sought to enable the LASPO Bill to contain a power not only to delete but also to add provisions in relation to the availability of legal aid if the situation were to improve.
Making such changes by primary legislation would be a cumbersome process and a disproportionate use of the House’s time, particularly for a minor or technical change. It would stop the Government of the day making necessary but minor changes without primary legislation, even where these were necessary to ensure that the provision remained up to date. Further, there is no basis on which to distinguish judicial review from other, equally important, matters for which civil legal aid is available by necessitating primary legislation for such amendments. Although I do not deny for a moment that judicial review is of great constitutional importance, so for many individuals are their own cases involving significant, as they would no doubt say, violations of their rights, civil rights of one sort or another, or their right to recover damages. In the light of what I have said, I would respectfully ask the noble Lord not to press those amendments.
I now turn to Amendment 82A, which seeks to prevent a residence test being applied to any proceedings for judicial review. Noble Lords are aware that the proposed residence test was recently challenged by way of judicial review. The High Court handed down judgment on 15 July and found in favour of the claimant. We are appealing the judgment and are currently considering the next steps that will be taken. I think it will go to the Court of Appeal first and then perhaps on to the Supreme Court. I hope, therefore, that noble Lords will understand that it is not appropriate for me to comment in great detail on that, in view of the ongoing proceedings.
Of course, the noble Lord, Lord Pannick, drew attention to the observations that the Secretary of State was alleged to have made, and probably did make, according to the Daily Telegraph—
Lord Pannick
It was not that he was alleged to have made them. He wrote an article in his own name in the Telegraph.
Lord Beecham
Perhaps the noble Lord will pass the legal caution on to the Lord Chancellor.
Lord Faulks
I am grateful for that contribution.
The Lord Chancellor made in the Daily Telegraph various comments which resulted in what was described—not alleged to have been described—as a “kick in the shins” by Lord Justice Moses. All I can say is that, during the time I have been standing at the Dispatch Box, the Lord Chancellor’s shins have been extremely bruised by the number of comments that have been adverse to him personally, to his responsibility to the office or to his disregard for the rule of law. I am sure that he is painfully aware of the harm that has been done to him by the observations that have been made. It is a matter for your Lordships whether you think that is appropriate.
I should also say this. Of course, the withdrawal of legal aid in any context is not something that any Government relish, but throughout the period—and we are now coming to the end of this Parliament—the party opposite has opposed all cuts to legal aid, whether they are civil legal aid cuts or criminal legal aid cuts. They have advanced very skilfully all sorts of arguments about the outrage that has followed. It is time for some clarity to emerge from the party opposite as to whether it will in fact restore legal aid to all these areas where it is said that it has been wrongly withdrawn or whether this is to some extent posturing on their part.
The noble Baroness, Lady Lister, referred to the difficulties that she described of children in particular in relation to the residence test. Although, as I say, I am not going to go into great detail because it is all to be considered by the court—at least in terms of the vires of the residence test—the Government’s position is that they do not believe that the JCHR should have concluded what it concluded in that respect. The committee appears to have proceeded on the basis that a child needs a lawyer in all cases to represent them and to ensure that their views are taken into account. There have always been cases where the child speaks for himself directly or where a parent or guardian ensures that the views of the child are properly taken into account. The Government are not aware of any evidence before the committee that indicated in such cases the child is not able to express views and participate appropriately in legal proceedings.
Following the ruling of the court in the residence test case, noble Lords will be aware that the draft order introducing the residence test was withdrawn. The amendment before the Committee now would therefore introduce an exception to the residence test in the abstract. I would respectfully suggest that the appropriate place to consider any exceptions would be while considering the residence test as a whole, rather than in isolation and in the context of a free-standing provision for judicial review. Nevertheless—there should be no mystery about this—I should make it clear that we do not agree that an exception should be made to the residence test for all judicial review proceedings. The test reflects our view that individuals should have a strong connection to the United Kingdom in order to benefit from the civil legal aid scheme. In line with those principles, we therefore decided that, in general, applications for legal aid for judicial review proceedings should be subject to the same test.
The noble Baroness, Lady Lister, referred to certain “concessions”, as she described them. What happened was that, following careful consideration, we proposed certain limited and focused exceptions for judicial review cases that relate to an individual’s liberty, and for certain immigration and asylum judicial reviews. I am glad that she called them concessions; she previously described the Government’s position as a “climb-down”, which is perhaps not a kind way in which to describe the approach that the Government try to take on difficult decisions.
We believe that the residence test is by and large a fair test that should make sure that legal aid is targeted at those cases where it is justified. Moreover, it achieves the essential policy aim of targeting legal aid at those with a strong connection to the United Kingdom. I therefore ask the noble Lord to withdraw the amendment.
Lord Pannick
I am grateful to the Minister. I would be happy to provide him with a copy of Mr Grayling’s interesting article in the Telegraph of 20 April 2014. It is, as I said, written by him. He is not responsible for the headline but it gives a flavour of what he wrote. It states:
“We must stop the legal aid abusers tarnishing Britain’s justice system”.
There is no doubt whatever that, as with anything in life, abuse is possible. However, I take the view that the remedies that the Lord Chancellor is seeking to implement through Part 4 of the Bill are far worse than any disease that the Lord Chancellor has diagnosed. It is that article, with its reference to,
“Another group of Left-wing lawyers”,
taking the Government to court that provoked the response—a very appropriate response—from the High Court that it is the role of the court to decide not who is bringing the claim but whether the claim has merit and substance, and whether the proposals are a breach of the rule of law.
I hope that the Minister, who well understands these points, will be able to convey to the Lord Chancellor the belief of many of us in this House and outside that it would be far better if he would concentrate on the question of substance, of legality, rather than the political characteristics, if any, of the persons who are bringing the complaint. They go to court not to make political points but to make legal points. If they did not do so, the court would immediately tell them that it would not listen to them,
As to the amendments, my objection remains to the use of secondary legislation to make fundamental changes to the availability of legal aid for judicial review. There is no doubt that to restrict legal aid for a permission hearing in circumstances in which leave is not granted—it is often not granted because the defendant has given way and recognised the defect—is a fundamental change in the availability of legal aid. It will make it, and is making it, much more difficult for people to bring well founded claims. The same is true of the residence requirements that the High Court has held to be unlawful.
I am not therefore persuaded by the Minister’s observations, eloquently though they were presented, and unless the Government are prepared to look again at these matters, the House will need to return to these issues on Report in October. For today, I beg leave to withdraw the amendment.
Lord Woolf
Lord Woolf
I hope to be very brief in my submission in support of the amendments which relate to the consequential and supplementary provisions in Part 5 of the Bill, which is headed, “Final Provisions”. Clause 73(1) states:
“The Lord Chancellor or the Secretary of State may by regulations make consequential, supplementary, incidental, transitional, transitory or saving provision in relation to any provision of this Act”.
Subsection (2) states:
“The regulations may, in particular, amend, repeal or revoke legislation”.
I am not quite sure of the distinction between “revoke” and “repeal” and would be glad to hear about it and be educated as to the difference. I suggest that subsections (1) and (2) are very wide indeed. The regulations will be made by statutory instrument, and subsection (5) states:
“A statutory instrument containing regulations under this section that amend or repeal”—
it does not mention revoke—
“a provision of an Act (whether alone or with other provision) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament”.
So it is true that the consequential provisions have regulations that require approval. Despite that, I suggest that the powers in Clause 73 are too wide. The amendment to delete “supplementary”—and deleting appeal or revoke—is desirable. I would prefer to see the whole power removed, especially in an area that is as important as the provisions covered by the Bill. Noble Lords will be only too well aware of the provisions contained in each part of the Bill, so there is no need for me to recite them again. They all contain very important issues that I suggest deserve to be dealt with by primary legislation rather than delegated legislation of the sort referred to in Clause 73.
The position with regard to Part 4 is particularly acute. Already this afternoon we have heard submissions with regard to the other Henry VIII clauses that are contained in Part 4. In my view those submissions are equally applicable to Part 5. I beg to move.
Lord Deben (Con)
My Lords, as the House may be aware, I am always unhappy if we have debates that become either a military-fest or a legal-fest—in other words, that the only people who discuss these things are lawyers. I suggest to my noble friend that we have already had sufficient evidence in Committee that there are in the Bill very serious matters over which the House has had very considerable disagreement. I suspect that he knows that Report stage will not be easy on a number of these issues, which reach way beyond party and which are about the nature of civil liberties and this country’s legal system. Therefore, I look at this particular proposal with a considerably jaundiced eye.
I want to say something that he may find inconvenient. There was a time when the Lord Chancellor was very manifestly not a political figure. Yes, he was appointed by the Government and he sat in the Cabinet, but he was seen very clearly as a legal figure. For reasons that I wholly disagree with and are all about a mistaken understanding of these things under the previous Government—this is not a criticism of him or present company—we now have a different situation.
Parts of the article read by the noble Lord, Lord Pannick, point to the position where the Lord Chancellor feels he is able to make statements that can be seen only in a context that is very strongly political. That means that the natural willingness of this House to accord to the Lord Chancellor a different kind of approach from that which one would to the Secretary of State for this or the Secretary of State for that is very much diminished.
Having debated this Bill in such detail and having shown so many moments when noble Lords of very different political views felt unhappy, we then come to this catch-all clause. My noble friend may explain that it does not really mean what it seems to mean. In that case, can we please write it so that it does seem to mean what it ought to mean? But if it does mean what it seems to mean, the Lord Chancellor and the Secretary of State can—depending on what the situation is—make changes subject to the most exiguous parliamentary control.
Having been a Secretary of State, I know very well that once you get a properly worded document and present it in accordance with the rules, it is quite difficult for it not to pass—let me put it as delicately as that. That same element is in this. I thought the noble and learned Lord, Lord Woolf, was more than polite when he reminded us that there was this “saving” bit, because it does not seem to me to be a “saving” bit at all—that it not what happens. Given the mechanisms of the two Houses, if such supplementary legislation is put properly and is not wrong, it will, in normal circumstances, pass.
If my noble friend cannot give the House the assurance that the wording means something wholly different from what it appears to mean, most of us would prefer not to have it at all. We would therefore want to support the noble and learned Lord, Lord Woolf, in his contention, if not now then on another occasion.
Lord Pannick
My Lords, I added my name to the amendment in the name of the noble and learned Lord, Lord Woolf. I entirely agree with the observations made by the noble Lord, Lord Deben. My concern is that the power the Lord Chancellor has under Clause 73(1) extends not only to “consequential” provisions, which is understandable, or to “incidental”, “transitional” and “transitory” provisions—again, entirely understandable —but to anything that is supplementary. That is an extraordinarily broad power: a power to make supplementary provisions.
In other words, as I understand it, if the Lord Chancellor believes that anything falls within the scope of the general area or subject matter of the Bill, he may, by subordinate legislation, make provision to supplement that which Parliament has anxiously debated and may have amended and approved. Under Clause 73(2), this power extends to repealing and revoking legislation. That is a remarkable power. I can see no reason whatever why such a power should be enjoyed, far less in the context of the very sensitive and delicate issues addressed by the Bill—including, but not only, those in Part 4.
Lord Faulks
My Lords, when one gets to the final provisions in a Bill whose Committee stage has lasted for five days, one might think that the debate has come to an end. However, that is not so. It is hard to avoid the fact that the approach of a number of noble Lords is coloured by the nature of the debate on the clauses that come before those final provisions. In particular, there is the sense, expressed by a number of noble Lords, that this particular Secretary of State and Lord Chancellor does not have sufficient regard for the rule of law and, essentially, there is a lack of confidence that he will exercise his powers in a way that Parliament would find satisfactory.
I do not think it is appropriate for me to provide a personal defence. Here, we are looking at a pretty commonplace provision contained in Clause 73. I say that it is commonplace because noble Lords might like to know that Section 149 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 contains a provision that says:
“The Lord Chancellor or the Secretary of State may by regulations make consequential, supplementary, incidental, transitional, transitory or saving provision in relation to any provision of this Act”.
That is identical to the power in Clause 73. Section 53 of the Pensions Act 2014, under the heading “Power to make consequential amendments etc”, says:
“The Secretary of State or the Treasury may by order make consequential, incidental or supplementary provision in connection with any provision made by this Act”.
Section 20 of the Offender Rehabilitation Act 2014, under the heading “Consequential and supplementary provision etc.”, says:
“The Secretary of State may by order make consequential, supplementary or incidental provision in relation to any provision of this Act”.
Therefore, this—in particular, the use of the word “supplementary”, which I understand those who have proposed these amendments have a particular difficulty with—is not unfamiliar territory.
It is something of an irony that at various stages in Committee I have been subjected to a large number of interventions by the noble Lord, Lord Davies, who is not currently in his place. During the debate on a previous group, he ventured an observation in relation to this provision, saying that it was wholly unexceptionable as compared with the terms of clauses elsewhere. Sadly, he is not here to expand upon his views; nevertheless, I draw some comfort from the fact that they had come from an otherwise harsh critic of this legislation.
Despite every effort, it is not always possible to identify every necessary amendment to primary legislation, and it would not usually be appropriate to include amendments to existing secondary legislation in primary legislation. As noble Lords—many highly experienced, and more experienced than I am, in parliamentary procedure—will know, it is usual practice for a suitable power to be included in a Bill to ensure that its provisions can be brought into force. Amendment 83 would amend the power in Clause 73 to make such provisions by removing the Secretary of State’s power to make supplementary provision.
Noble Lords are concerned about the breadth of this power. The power to make supplementary provision was included in this clause in recognition of the complexity of the legislative framework within which sit some provisions of the Bill, particularly those relating to sentencing and the new single justice procedure. The consequence of not being able to make supplementary provision could be to inhibit the proper operation of aspects of the Bill. In relation to sentence calculation, this could even be to the detriment of an individual. The drafting, as I have indicated, is similar to that approved in similar legislation.
Lord Pannick
Is the Minister really saying that such examples would not fall within the concepts of “consequential”, “incidental”, “transitional” and “transitory”?
Lord Faulks
I am not saying that they would not. This form of words is sufficiently wide, including the various adjectives that it does, to cover a variety of situations, and if one particular adjective does not serve, another will serve. There will be an overlap between the two. I do not accept that the word “supplementary” is as offensive as has been suggested.
Lord Deben
My noble friend, rightly, points to the fact that similar, or the same, wording has been used in other Acts. Surely that does not mean that it was right to use it in those Acts. Here is an opportunity for the Government to take seriously the real concerns of people about the way in which this House and the other place control the legislation that goes through them. We have a system that is not very elegant. Therefore, unless there is something about the word “supplementary” that is different and is necessary, it might be better not to have it. If all those other things cover all the points that the noble Lord raised, then “supplementary” is otiose. If it means something more than that, then I would like to know what “supplementary” would cover that none of the other words would. If we knew that, we might well be willing to help the Government by supporting them. If we do not know that, we have a reason to say that perhaps it is better not to have it.
Lord Faulks
As a lawyer, I have a particular regard for precedent. The fact that the word “supplementary” has found its way into other Acts of Parliament is at least some indication that previous Parliaments have approved its inclusion. The fact remains that any provision is worthy of analysis, whether it has been in a previous Act of Parliament or not. None the less, I am sure that the noble Lord would agree that it is important that we give, quite properly, the degree of power necessary to the Secretary of State to implement those parts of the Bill that become law. I can reassure him and the House that such powers are narrowly construed by the courts and are available only for the purposes of implementing what is in the Bill, not what is further to the Bill, not in the Bill or what the Secretary of State might like to have been in the Bill.
Amendment 84 proposes to remove Clause 73(2). This would prevent any provision necessary to give full effect to the Bill being made if it required amendments to any existing legislation, whether primary or secondary. Similarly, with the powers subject to Amendment 83, provisions permitting amendment to primary and secondary legislation for these purposes are commonly found and have been approved, and we are concerned that their absence would hamper the Government’s ability to bring the Bill into force.
Of course I accept that it is right that these provisions should be subject to proper scrutiny. That is why we have provided, in accordance with the expectations of the Delegated Powers and Regulatory Reform Committee, that all provisions made under this clause will be subject to parliamentary scrutiny. Where provisions amend primary legislation, any regulations will be subject to the affirmative procedure. With that reassurance, I hope that I can allay to some extent any residual anxiety that the House may have.
These provisions are not novel and we say that they are necessary to implement the provisions of the Bill properly. During the Recess, among the many other things that I have been invited to reflect on, I will reflect on the precise use of the adjective “supplementary” in this context. At the moment, I do not give any indication of a desire to amend it, but I will of course reflect on it. In the mean time, with the reassurance that I have endeavoured to give the House, I hope that the noble and learned Lord will feel able to withdraw his amendment.
Lord Woolf
I am grateful to the Minister for responding with such care and elegance to the speeches that have been made. I am sorry that the noble Lord, Lord Davies, was not present as I am sure that he would have taken great pleasure from hearing how the Minister was comforted by what he said in his speech. I heard that speech and reacted with surprise at the time.
In his response, the noble Lord said that it was of course right for him, as a lawyer, to rely on precedent. I wonder whether the precedent in this context indicates the dangers of a Henry VIII clause of this nature. What happens in practice is that, once you have a precedent, you think that until somebody protests you can go on making better and better precedents to achieve your purpose, meaning that the powers of this House to scrutinise legislation are thwarted—not totally but to a significant degree. It is because of what has happened in the past that Henry VIII clause after Henry VIII clause appears in legislation, so that now it is considered almost a matter of course to put in a provision of this nature, and it is suggested that legislation cannot work without a Henry VIII clause. I respectfully suggest that that is a most unfortunate situation, and I have a great deal of sympathy for the helpful remarks that were made by the noble Lord, Lord Deben, in his very wise comments on this clause.
I suggest that the time the Minister spends contemplating the language of Clause 73 during the coming three months will be very well spent. Bearing that in mind, I beg leave to withdraw the amendment, but I do so while making it clear that I may well come back to the subject on Report.
Lord Faulks
“(1A) Section (Low-value shoplifting: mode of trial) comes into force at the end of the period of two months beginning with the day on which this Act is passed.”
Lord Faulks
Lord Faulks