Grand Committee

Thursday 8th September 2016 Grand Committee

Thursday 8 September 2016

Anti-social Behaviour, Crime and Policing Act 2014

Thursday 8th September 2016 Grand Committee

Question for Short Debate

13:00

Asked by

[Lord Clement-Jones]

To ask Her Majesty’s Government what steps they are taking to ensure that the powers available under the Anti-social Behaviour, Crime and Policing Act 2014 are invoked and exercised in an accountable, appropriate and proportionate manner.

[Lord Clement-Jones (LD)]

My Lords, I have for many years been passionate about the future of live music and am only too well aware that many of our most famous acts can have small beginnings, with many well-known artists starting their careers performing in small clubs and pubs or busking on the streets. It was for that reason that I promoted the Live Music Act 2012 and why, on my Benches, we became concerned about the impact of public space protection order powers under the Anti-social Behaviour, Crime and Policing Act 2014.

In response to concerns expressed by my noble friend Lady Hamwee on Report, the noble Lord, Lord Taylor of Holbeach, confirmed the importance of the statutory guidance, which would be consulted on. Ominously, he said that the essence was to allow councils maximum flexibility on the exercise of the new powers. That, I believe, is the root cause of the problem today.

Shortly afterwards, in January, I raised a Question in the House seeking further assurance on busking policy to make sure that local authorities would not resort to a PSPO before they had first exercised their noise-abatement powers. The noble Lord, Lord Taylor, said:

“The Government are certainly not seeking to restrict reasonable behaviour and activity, and we do not believe that these powers do. Live music and street entertainment play an important role in community life and can generate a positive atmosphere that is enjoyed by all”.

He also said:

“We believe that the tests and safeguards set out in the new anti-social behaviour powers will ensure that they will be used only where reasonable”.—[Official Report, 21/1/14; col. 571.]

In June of the same year, I raised issues regarding police attitudes to busking and received an equally positive reply from the noble Baroness, Lady Williams of Trafford, who I am delighted is replying to this debate. She said that,

“the Government are clear that appropriate busking can enrich a community’s quality of life and generate a positive atmosphere that can be enjoyed by many people”.

She also said that,

“we have undertaken … to include reference to busking in the guidance for the new anti-social behaviour powers for use by the police and others. This will be published shortly, in advance of the new powers commencing later in the year”.—[Official Report, 30/6/14; cols. 1531-32.]

Later in the year, in a different context, during the passage of the Deregulation Bill, both in Grand Committee and on Report, my noble friend Lord Stoneham and I pointed out the considerable powers that were already available to prevent noise nuisance. At the same time, we raised our continuing concern that public space protection orders would be used in a heavy-handed way. The Government, this time in the form of the noble Lord, Lord Gardiner of Kimble, gave assurances on both occasions that they were clear that busking can enrich a community’s quality of life and generate a positive atmosphere enjoyed by many people. But later he said:

“The Government do not start from the position that busking requires regulation and control”.—[Official Report, 11/11/14; col. GC 46.]

So right from the start we received a series of ministerial assurances about how the new PSPO would be exercised. Nevertheless, very soon, signs began to emerge of inappropriate use of the PSPO powers.

In February 2015, I asked an Oral Question about the operation of the Act and what use had been made of it to prevent or control busking. In reply, the noble Baroness, Lady Williams, said:

“We have made it clear in the statutory guidance for front-line professionals that they should not use the new powers to stop reasonable activities such as busking or other forms of street entertainment that are not causing anti-social behaviour”.—[Official Report, 12/2/15; col. 1354.]

Despite those ministerial assurances, it was becoming clear a year and a half ago that these powers were being used extensively in an inappropriate and disproportionate way. In fact, they were not just being used inappropriately to ban busking, they were being invoked for much wider purposes—for instance, to ban the homeless from the streets. In February this year, the Manifesto Club published its report, PSPOs: A Busybodies’ Charter, reflecting this, pointing out the extensive and disproportionate use of these powers and calling for proper limits to be placed on them.

In response to an Oral Question this February, I received yet more assurances from yet another Minister, this time the noble Lord, Lord Ahmad of Wimbledon. He said that,

“we have made it clear in the statutory guidance that anti-social behaviour powers should not be used against reasonable activities such as busking, where this does not cross the line into anti-social behaviour”.—[Official Report, 1/2/16; col. 1585.]

Despite a succession of assurances given over the years by at least four government Ministers, the problem of the inappropriate use of PSPOs worsens. Buskers are now falling foul of laws designed to break up dangerous public gatherings and risk being branded as criminals. The problem goes much wider. The Manifesto Club report shows that PSPOs are being used not only to criminalise busking but also the everyday lives of ordinary people, including the activities of the homeless, charity collectors, teenagers, skateboarders, parents dropping off kids at school and even those wearing head coverings.

Sefton Council’s ban on head coverings would include hats. Other councils, such as North East Derbyshire, have prohibited or are seeking to prohibit the carrying of golf bags, or the carrying of skateboards, as in Colchester. At least five have banned rough sleeping. Others, such as Gravesham Council, have prohibited lying down in public, which would prohibit lying on the grass or falling asleep in a public place.

At least six councils have banned or restricted music or street art. Hammersmith and Fulham Council has banned busking and public speaking in the area outside Shepherd’s Bush Tube station after 6 pm. At least 16 have created new criminal offences of loitering or congregating in groups in a public place. Hillingdon Council has prohibited people from gathering in groups of two or more unless at a designated bus stop, and Bassetlaw Council has banned young people aged 16 or under from standing in groups of three or more.



Kettering Council has banned skateboarding and created a curfew for under-18s, meaning it is now a crime for a 17 year-old to be out after 11 pm or before 6 am. In Oxford, the council has proposed a ban on any activity it judges makes people feel uncomfortable, and a city-centre PSPO has banned aggressive begging, street entertainment that causes a nuisance, remaining in a public toilet without reasonable excuse, and allowing dogs to enter any covered space. Hillingdon Council has banned noisy remote-controlled cars and pigeon feeding from its parks. Swindon Council has banned pavement art, thereby criminalising its resident and well-known pavement poet Danny Lake, even though 68% of the public voted against this.

So far, 80 councils have introduced PSPOs and more are threatening to bring them in. Police and local authorities, often based on the decision of a single official, and without consultation or a council decision, are throwing new orders about like confetti. A huge number of people are being dragged into the net of the criminal law. Clearly, the problem of improper use of these new powers extends well beyond busking: it is high time we took stock of this and amended the statutory guidance and, if necessary, the primary legislation, before our freedoms are eroded any further.

However, there may be a ray of sunshine. After my Oral Question last February, at the invitation of the noble Lord, Lord Ahmad, I, together with the Manifesto Club, the Kennel Club, Liberty, Keep Streets Live, the MU, UK Music, and others, wrote to him and his then Home Office colleague, Karen Bradley, to set out the current issues and demonstrate why changes are needed to the legislation and statutory guidance. Karen Bradley—now, I hope, in her new role stoutly upholding the rights of street performers and their contribution to local culture—wrote back defending PSPOs and the procedures used. She did, however, offer to consider amending the statutory guidance, and I replied in July, setting out what campaigners believe are the key problems and the changes needed to solve them. Let me spell these out.

First, PSPOs are targeting activities that are not in themselves harmful. The most problematic examples have banned activities that do not in themselves cause significant public nuisance or harm, such as rough sleeping, begging, loitering, standing in groups, swearing or skateboarding. We want to see a much stronger test before powers are used. PSPOs must target only activities that are causing significant public nuisance or harm; councils should not be able to use them for activities that some people just find annoying or unpleasant.

Secondly, the majority of PSPOs are being passed by single council officers. The Manifesto Club’s research found that out of the 56 councils that have passed a PSPO and provided data, half—that is 28 councils—have done this. Seventeen councils—30%—passed the order through a committee, but only nine—16%—passed it through a decision of the full council. They must be passed only after a debate of the full council and not based on the decision of a single officer.

Thirdly, PSPOs are not being consulted on adequately. Although most councils have held a public consultation, in many cases these have been of extremely low quality. There must be a requirement for proper consultation, so that they cannot be imposed having asked just a few vague questions of residents.

Fourthly, the grounds and methods of appeal are too limited. We believe that the Government intended that these powers should be partly checked through the courts. There should be a much better right of appeal. Currently, appellants have very narrow grounds to appeal to the High Court, only six weeks to appeal and have to bear all the costs if they fail. The grounds of appeal should be expanded to something more like the test for judicial review, which would allow the worst cases of unreasonable PSPOs to be challenged and checked in the courts.

I am sure that we are here in the area of unintended consequences. Given Ministers’ assurances, I am sure that they did not intend the Act to be used in this way—banning rough sleeping, placing curfews on teenagers and so on. It is urgent and vital that they recognise that there is a fundamental problem with the Act. This may or may not be resolvable by changes to the guidance. I hope that we are making some progress and that amendments to the statutory guidance are being drafted as we speak but, in the light of the history of ministerial reassurances on this, I do not take anything for granted. I should like to hear specifically what is proposed.

Hence this debate about how the Government plan to ensure that these powers are invoked and exercised in an accountable, appropriate and proportionate manner: to find out whether demands for change, particularly to the statutory guidance, will be met. We cannot have local authorities and police services cracking down on our culture, ripping out the heart of our town centres and destroying the vibrancy of our local communities.

I have a note here from the Salvation Army. It states:

“Thank you for sponsoring a debate on the operation of the 2014 Act. We have had three of our front line locations raise concerns about the way in which Local Authorities are using Public Space Protection Orders in connection with homeless people spending time in public spaces … We would ask that government clarify their guidance to Local Authorities saying that PSPOs are not to be used to disperse homeless people rather than engage with them”.

I hope the Minister can today give cast-iron guarantees that the Government intend to make vital changes and will see them through.

13:12

[The Earl of Clancarty (CB)]

My Lords, I am very grateful to the noble Lord, Lord Clement-Jones, for introducing this debate with his usual comprehensive analysis of the problem, which, as we have heard, is significant. I am also grateful for the briefings from the Manifesto Club on public space protection orders. The noble Lord rightly focused his attention on PSPOs. The heart of this issue is bound up with our understanding of what public space is and what we want to get out of it.

Not entirely coincidentally, the debate happening simultaneously in the Chamber—an equally important debate led by the noble Baroness, Lady Hayter—is also about public space, a different kind of space: the public sphere. The reason we are now having these concerns about the future of public space in the broader sense is that both the imaginary space, as it has been described, of the public sphere and the geographical space under discussion here are under considerable threat to both their amount or degree—a concern I will come back to—and their quality or operation.

I agree with everything that the noble Lord, Lord Clement-Jones, said about PSPOs, the examples given and about changes to statutory guidance. PSPOs are horrendous. In the manner in which they are being applied, they seem to vary from the ludicrous to the sinister to the blatantly inhumane. As the noble Lord said, the ludicrous include bans on people lying down in parks or carrying golf clubs. The sinister include bans which limit freedom of expression and the right to protest and bans on the gathering of groups of two or more people, such as in Hillingdon and Guildford, and on live music, the handing out of free literature and blanket bans on amplification.

There is a randomness about these orders that has nothing to do with what I would regard as real or respectable law, but there is also a targeting involved which reveals blatant unfairness in them. In a BBC interview in Hillingdon in March this year with a group of teenagers about the ban on groups of two or more—I am not sure the interview itself was strictly legal—one of them said very reasonably, “You know that if there is a group of elderly people standing there”—meaning within the bounds of a particular shopping centre—“they will not get fined”. This, then, will be law used as it suits the local council.

As an example, I refer to a particular PSPO that, in the words of Liberty on 31 August,

“has taken full advantage of this vague power by seemingly banning everything”.

This is Teignbridge District Council’s PSPO for Dawlish of 14 June. It is a detailed six-page document making it illegal to,

“act in a manner as to cause annoyance … to any person”.

It also states that,

“the purpose of the PSPO is to deal with a particular nuisance … in a particular area”.

I emphasise “nuisance” and “annoyance”. The Minister may recall that on 8 January 2014 in this House, at the Report stage of the Anti-social Behaviour, Crime and Policing Bill, the noble Lord, Lord Dear, tabled an amendment that, after a two-hour debate, specifically removed “annoyance” and “nuisance” for injunctions. I believe that the amendment did not cover PSPOs but I am raising the matter of whether it should have. Causing harassment, alarm or distress is quite a long way from nuisance and annoyance but it is at this much less significant level of perceived harm that PSPOs are being applied.

It seems that you can be criminalised effectively for anything that the local council decides on. This surely makes a mockery not just of the concept of public space as a space of co-operation—a publicly owned and shared space whose uses should be negotiated and tolerated by all the public who use that space—but a mockery of the law itself.

At the inhumane end of the scale the criminalisation of rough sleepers in Wrexham and beggars in Southampton and other places is particularly scandalous and entirely unacceptable, since this is the targeting of the vulnerable who need to be helped, not criminalised. The idea of slapping a £100 fine on a rough sleeper or beggar is both absurd and inhumane.

For a number of reasons there is a particular desire at the moment in councils to effect a kind of cleaning up of our towns and cities. Teignmouth, for example, cites holidaymakers and Oxford’s implicit concern is for tourists. None of us likes to see rough sleepers on the street because it makes us uncomfortable. But I would prefer that they are there, in recognition perhaps of a problem so far unsolved, rather than being swept under the carpet, pushed off into another borough, or, worse still, criminalised.

In an article in the Guardian in May of last year, Matt Downie of Crisis said:

“Rough sleepers deserve better than to be treated as a nuisance”.

There is that term, “nuisance”, again. He continued:

“They may have suffered a relationship breakdown, a bereavement or domestic abuse. Instead, people need long-term, dedicated support to move away from the streets for good”.

Hackney Council’s announcement last year of its order applying to rough sleepers and street drinkers stated that,

“enforcement is always the last option”.

The “last option”: when should the criminalisation of rough sleepers ever be an option? On this occasion, after a sustained, celebrity-backed campaign, the council saw reason, although unfortunately this has not been the case with all other councils who have introduced PSPOs.

The Joseph Rowntree Foundation report, The Social Value of Public Spaces from 2007, made the valid point that not everybody is equal in public spaces. It cites the example of local parks being used by young people for hanging out or by groups of street drinkers. In the absence of other facilities or spaces, it says that,

“this might be regarded as legitimate, as long as no harm is caused to others”.

The fact is that to a certain extent public space is messy because people are messy.

I want to make a point here, too, about street drinking, which I think shows not just how culturally relative this can be but also what a public space might include. In Berlin, for example, drinking on the streets and on trains, particularly late at night at the weekend— that is, quaffing from beer and wine bottles—is socially absolutely acceptable and wholly unaccompanied by violence. It is something that you see all classes of people doing and it is an accepted aspect of their city space.

Ultimately, my preference for PSPOs—indeed for the Anti-social Behaviour Act itself—is that the legislation should be repealed, though I appreciate that this might be asking too much of the present Government. I say this because prosecutions involving harm of one person against another should be based on the law of the land, whatever the environment it takes place in, not on the use to which public space is put, since such legislation in practice has been geared in favour of particular users over others and drives a wedge between perceived victims and perceived aggressors. Such legislation, as we are seeing, does not in effect respect the potential for public space to develop organically but limits it.

Finally, there is real concern that PSPOs are being used to clean up an area prior to its being sold off. That privatisation of our public space, particularly in city centres, has already been a significant long-term trend is undeniable, as Anna Minton forcefully describes in her book Ground Control: Fear and Happiness in the Twenty-First-Century City. This issue has not yet properly surfaced as a major public concern, in part because many spaces which are privately owned have the surface appearance of being public—for example, the frankly sterile, privately owned public spaces, or POPs, where PSPOs do not apply, such as the More London estate which surrounds City Hall, where neither protesting nor filming is allowed, full stop. With continuing austerity and the starving of funds for councils this process may well be accelerating. This is the worst-case scenario: that the Anti-social Behaviour, Crime and Policing Act becomes irrelevant, for all the wrong reasons.

We badly need an audit of public spaces in this country. True public space in its different forms is an important if underestimated democratic right, and this is now such a critical concern that there is a case to be made for a Minister of public space, although that is a debate for another day.

13:22

[Lord Kennedy of Southwark (Lab)]

My Lords, I declare that I am a councillor in the London Borough of Lewisham. We have had two excellent contributions. I am pleased that at least they did not mention Lewisham Council in that list of ridiculous decisions that have been taken by many authorities. I will certainly go back and check that my council has not done some of the stupid things that it was suggested have been done. That was clearly never the intention and it is absolutely ridiculous. I congratulate the noble Lord, Lord Clement-Jones, on securing this Question for Short Debate today. It is good to be back debating with the noble Baroness, Lady Williams of Trafford. It is a bit strange that we will not mention housing, or the housing regulations in the Housing and Planning Act, but it is good to be here today.

As we have heard, the Anti-social Behaviour, Crime and Policing Act 2014 replaced a number of mechanisms for dealing with anti-social behaviour with six new powers, which are shared between police, local authorities and social housing providers. These offences were designed to deal with the sort of offences that can upset residents and cause problems and which can quickly destroy people’s quality of life. If left unchecked, these problems can lead to the risk of more serious offences being committed. The noble Lord, Lord Clement-Jones, asks what is being done to ensure that these powers are used in an accountable, proportionate and appropriate manner, with a particular emphasis on live music, busking and so on.

We all want to live in areas that are safe and free from fear, so ensuring that powers are invoked properly is all about striking the right balance—that is the important thing here. We need to work with local communities and look at some of the powers here. For example, the public spaces protection order was meant to deal with groups of youths out at night, drinking and causing trouble, playing loud music on radios and annoying people. It was not intended to deal with people enjoying themselves in the park and so on. I am quite worried now, because I quite like going to Blackheath, lying on the grass with my friends and having a beer. It was never the intention to stop such things and it is ridiculous that anyone would suggest that they should be stopped. We want to ensure that all these things are done proportionately, like live music, busking and the sort of things that people do with their friends and family in the park and elsewhere, should never be banned. We all live together, and we need to make sure that we live properly, so the list is ridiculous.

The noble Lord was also right to say that you should not be able to find a council officer who can sign a piece of paper to ban something; it should at least come before elected members of the authority, or the mayor and the cabinet should decide that, and it should possibly be able to be challenged in the local magistrates’ court as well. The fact that a council officer can ban these activities means that the whole council itself will get lambasted for doing ridiculous things. I will certainly go back and check that my council has not done anything stupid and banned something I do not know about, and if it has I will try to get it changed.

The noble Earl, Lord Clancarty, asked whether people could be banned for being annoying or a nuisance. I am sure we are all annoying and a nuisance to other people so we could all be banned on that basis. Again, this seems completely ridiculous.

I started a debate last night in the Chamber on homelessness in which we talked about rough sleepers. We all know that the homeless can have mental health issues and drink and other problems but these people need help, not to be banned and moved on elsewhere. That, again, is ridiculous.

I shall leave my remarks there. I hope the Minister can give a full response to the noble Lord. There are other bits of this order on different things. Maybe the Minister could write to us having looked at the more criminal things that people can do. What are the mechanisms for reviewing this and the six powers? There are unintended consequences with some of these things. We must have mechanisms to change them and stop them.

13:26

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all three distinguished noble Lords who have taken part in this debate. I am very glad to be back with the noble Lord, Lord Clement-Jones, because on a number of occasions we have discussed busking and how much we enjoy hearing buskers, particularly the ones in and around Westminster and further around London. Busking is very positive for community life and that is why this is an important debate. Anti-social behaviour as we know it can blight the lives of communities, but there is widespread interest, not least from this House, in the powers available to the police and local councils to respond to such things being used properly. This debate is timely.

The Government’s starting point is that there is a clear recognition of the serious impact that anti-social behaviour can have on ordinary people’s lives. That is why the Anti-social Behaviour, Crime and Policing Act 2014 gave the police, local councils and other agencies the powers that they need to take swift and effective action to protect the communities they serve.

The Government are also clear that anti-social behaviour powers are there to protect the activities of the law-abiding majority, to enable people to enjoy their public spaces and feel safe in their homes. They are not there to be used to restrict reasonable behaviour and activities not causing anti-social behaviour, as all noble Lords pointed out. That is why the Act contains legal safeguards before the powers can be used. However, we have said that we will look again at the statutory guidance on the use of the powers that the Home Office published to help emphasise these points.

The noble Lord, Lord Clement-Jones, said that despite ministerial assurances, PSPOs are being used in an inappropriate and disproportionate way. As I said, there are clear legal tests for the use of the power. The statutory guidance references the need for councils to consult whenever community representatives and regular users of the public space think it appropriate and specifically references buskers and street entertainers. Following the noble Lord’s Oral Question this February, the former Minister for Preventing Abuse, Exploitation and Crime gave a commitment to revisit the statutory guidance. We are reviewing it to see how we can strengthen it to ensure proportionality in the use of the powers and accountability, which is very important. The work is under way, so the pens are on the paper, and officials are consulting front-line practitioners.

We will write to the noble Lord and other interested noble Lords on the proposed revisions once the work has progressed further. We will complete the work as soon as we can. We are also working with front-line practitioners to develop a case-study document to highlight effective practice and appropriate use of the powers. I say again that it is a useful power but should be used proportionately to deal with a particular anti-social behaviour problem in a particular area by imposing reasonable restrictions. That is critical here.

The noble Lord also talked about the wider problem—not just buskers and street entertainers are affected. He referenced the Manifesto Club’s report on PSPOs, as I think did the noble Earl. Officials have met the Manifesto Club to discuss its findings and see what its primary concerns are about PSPOs. It is important that PSPOs and the other anti-social behaviour powers are used to deal with anti-social behaviour problems, rather than introduce blanket bans, to which the noble Lord referred.

Noble Lords also referred to the democratic aspect of this, with examples of single officials making decisions. We are examining that in the review of the statutory guidance. We have also discussed such concerns with the Local Government Association. The noble Lord talked about PSPOs targeting activities that are not actually harmful in themselves. The Government’s position is absolutely clear: anti-social behaviour powers are there to protect law-abiding people and enable people to enjoy public spaces and feel safe in their homes. They are not there to restrict reasonable behaviour, as I said, or activities that are not actually causing anti-social behaviour. There are legal safeguards in place and we will look again at the statutory guidance. PSPOs are useful powers for councils but need to be used proportionately. It is critical that councils are able to respond to problems such as street drinking and aggressive begging, because these kinds of behaviours have detrimental effects on a community’s way of life.

The noble Lord also talked about the consultation process. It is clear that a council may make a PSPO only after it has consulted the police, but it must also consult any other interested community representatives it considers appropriate. It is for councils to determine how best to consult, but there will be learning from across various councils; that will come out in the review process. We want to capture that learning as we undertake the review. The noble Lord asked specifically what has been proposed to change the guidance. We are developing a case-study document, as I said. We will write to the noble Lord on the proposed changes when we review the statutory guidance.

The noble Earl, Lord Clancarty, talked about homelessness. He brought up a very good point. The Government are committed to tackling and reducing homelessness. We do not want homeless people to be used as a target. Anti-social behaviour orders are not to be used to tackle the most vulnerable people in our society. They are there purely to deal with anti-social behaviour.

There have been some specific—and, I might say, slightly comical, although I do not mean that flippantly—examples of how councils have used their anti-social behaviour powers to deal with certain things. Some are almost unbelievable, but I do not disbelieve the noble Lord, Lord Clement-Jones. I quickly checked on Lewisham and it is not on the red alert list. However, I do not want to draw on the specific examples. How the orders are framed is one issue. Their purpose must not be to restrict reasonable behaviour. The PSPO is there to tackle behaviour that is having a detrimental effect on people’s lives and is persistent and unreasonable. That is quite clear. Those are the tests set out in legislation and they must be met before an order can be made. There are also issues about how they are enforced—again, it must be in a proportionate and reasonable way. I am grateful to the noble Lord for setting out some potential solutions, and we will look very carefully at the points that he made.

It is important that we do not go too far in restricting the freedom of local partners to take effective enforcement action, but I do not think that that is what he is suggesting. We know that there are examples of good practice in councils and I want to place on record my praise for them. In refreshing the guidance, I hope that if we have another debate on this this time next year, we will see that it has been greatly strengthened and probably helped by the questions put by noble Lords, in particular those of the noble Lord, Lord Clement-Jones. I thank all noble Lords for their contributions to the debate.

[The Earl of Clancarty]

Does the noble Baroness have anything to say about the terms “nuisance” and “annoyance”? As I said in my speech, the way that PSPOs are being applied shows that they are being used very much as a lever.

[Baroness Williams of Trafford]

The noble Earl made a good point; I hope that I covered it when addressing the speeches of other noble Lords. There has to be proportionality in this. “Nuisance and annoyance” could be someone walking their dog, but clearly that would not be proportionate. I think that that is what the refreshed guidance will cover, and I will be pleased to hear from the noble Earl if he thinks that we have not struck the balance right. Indeed, one person’s nuisance is something that another person does not even notice. I thank him for his comments.

[Lord Kennedy of Southwark]

I was quite shocked by the list set out by the noble Lord, Lord Clement-Jones, but I am pleased that he brought it to our attention. The examples are absolutely ridiculous. It is important to get the guidance right because clearly one problem with PSPOs has been that they can come down to, “I don’t like that, so it has to be banned”. When the new guidance comes out, it will have to be very clear and state, “These things are not a nuisance”, with examples of what PSPOs can and cannot be used for.

[Baroness Williams of Trafford]

I will not pre-empt the guidance, which has not yet been written, but the noble Lord, Lord Clement-Jones, brought up some ridiculous interpretations of the orders. We duly note what he said and the councils he mentioned and I am sure that those examples will be taken into account. It is always dangerous to get too prescriptive because that then allows wriggle room the other way. But we will firm up the guidance and refer back to noble Lords.

[Lord Clement-Jones]

I hope that the Minister will accept that the essence of this is to try to get the statutory guidance in the right shape. However, I hope she will accept that there is an underlying issue about the definition of anti-social behaviour because if the statutory guidance even after being amended does not do the trick, it calls into question whether the original definition referred to by the noble Earl is right or whether it should be tightened up as per the discussion with the noble Lord, Lord Dear, at Report on the original Bill. That is a fast ball of a question for the Minister, but she should take that into consideration when the statutory guidance is being looked at.

[Baroness Williams of Trafford]

The noble Lord makes a constructive point: it is all about getting the balance right. Anti-social behaviour can and does destroy some people’s lives, but by the same token some of the examples he has given are utterly ridiculous and in no way could be construed as anti-social behaviour. We needed to deal with anti-social behaviour, but only in a proportionate way. I am sure that the noble Lord will look at the guidance and give his opinion on it in due course. I thank all noble Lords.

13:39

Sitting suspended.

Universal Declaration of Human Rights

Thursday 8th September 2016 Grand Committee

Question for Short Debate

14:00

Asked by

[Lord Alton of Liverpool]

To ask Her Majesty’s Government what steps they are taking to promote Article 18 of the Universal Declaration of Human Rights.

[Lord Alton of Liverpool (CB)]

My Lords, in welcoming the Minister to her fairly new responsibilities, the lodestar in today’s short debate is Article 18 of the 1948 Universal Declaration of Human Rights, promulgated in the aftermath of the defining horrors of the Holocaust and in a century during which 100 million people were murdered because they chose in some way to be different. Today Article 18 is honoured only in its breach. In the light of new genocides, concentration camps, abductions, rape, forced conversions, forced marriages, imprisonment, persecution, public floggings, enslavement, mass murder, beheadings and the vast displacement of millions of people, we should ask ourselves: of what value are such declarations or conventions on genocide if they can be utterly disregarded with indifference and contempt?

Let us look at the evidence. The annual Pew study of religious freedom found that in 24% of countries, in which 74% of the world’s population lives, there were serious restrictions on religious freedom. One-quarter of the world’s countries have blasphemy laws and more than one in 10 have laws penalising apostasy. This has led, for instance, to a death sentence in the case of Pakistan’s Asia Bibi; to the public beating of Saudi Arabia’s atheist Raif Badawi; to the imprisonment for 10 years in Iran of Saeed Abedini, for “undermining national security” after hosting Christian gatherings in his home; to Chinese Catholics such as Bishop Cosma Shi Enxiang, who died at 94 after spending half his life in prison; and to Chinese Protestants, who since the beginning of 2016, have seen 49 of their churches defaced or destroyed, crosses removed and a pastor’s wife crushed to death in the rubble as she pleaded with the authorities to desist. Earlier this week, on Tuesday, Mr Speaker hosted the premiere of “The Bleeding Edge”, drawing attention to the harvesting of organs of Falun Gong practitioners in China.

In countries such as Nigeria, Sudan and Kenya, contempt for Article 18 has led to the targeting and murder of Christians, Yazidis and others by ISIS, the Taliban, al-Shabaab and Boko Haram. In North Korea, a country I have visited four times, 300,000 people are incarcerated in gulags. A United Nations report describes it as a country “without parallel” and highlights the execution and imprisonment of Christians.

I have seen contempt for Article 18 in many other situations: among Rohingya Muslims persecuted in Burma; in degrading detention centres in south-east Asia where fleeing Pakistani Christians and Ahmadis are incarcerated; and at its bloodiest worst among Chaldean and Assyrian Christians and Yazidis fleeing the genocide in Syria and Iraq. Yet, for fear of offending countries such as Saudi Arabia, which have exported so much of the poison, we rarely call things what they are.

In Pakistan, for example, the Government describe events as “discrimination” and refuses to recognise them as persecution. Over the summer I was guest of honour at Liverpool’s refurbished Pakistan centre. It was a wonderful evening of celebration. Pakistan’s green and white flag was designed to represent the green of Islam and the white of the minorities. In 1947, Pakistan’s great statesman and founder, Muhammad Ali Jinnah, crafted a constitution which promised to uphold plurality and diversity and to protect all citizens. Jinnah said:

“You may belong to any religion, caste or creed—that has nothing to do with the business of the State. Minorities, to whichever community they may belong, will be safeguarded. Their religion, faith or belief will be secure. There will be no interference of any kind with their freedom of worship. They will have their protection with regard to their religion, faith, their life and their culture. They will be, in all respects, the citizens of Pakistan without any distinction of caste and creed”.

However, whether judged against the backdrop of the assassination five years ago of the country’s Christian Minister for Minority Affairs, Shahbaz Bhatti, who questioned the blasphemy laws, or the orgy of bombings, killings, rapes, imprisonment and abductions, notably in Lahore, Pakistan has allowed the systematic targeting of religious minorities in a culture of impunity. This persecution is catalogued in a report that I launched in Parliament.

One escapee recounted how his friend Basil, a pastor’s son, was targeted by Pakistani Islamists attempting to convert him. After refusing, his home was set alight. Basil, his wife and 18 month-old daughter were burned alive. No one was brought to justice and there is little evidence that Pakistan is striving to uphold Jinnah’s admirable vision. Perhaps the Minister, when she comes to reply, will tell us how the more than £1 billion of British aid, given over the past two years, is doing anything to support Pakistan’s beleaguered minorities, often the poorest of the poor, or to promote religious freedom or peaceful coexistence.

The UK fails to name persecution for what it is and, even worse, to name genocide for what it is. Words matter: they determine priorities and policies. The House of Commons, the United States Congress, the European Parliament and others have declared events in Syria and Iraq to be genocide.

In a leading article, the Times said that the destruction of Christians from the Middle East,

“now amounts to nothing less than genocide … That crime, most hideously demonstrated by the Nazis, now enjoins others to take active steps to protect the victims”.

Writing in the Daily Telegraph, the right honourable Boris Johnson said that ISIS is,

“engaged in what can only be called genocide … though for some baffling reason the Foreign Office still hesitates to use the term genocide”.

Perhaps when she comes to reply, the Minister will ease Mr Johnson’s bafflement and tell us why the Government still fail to name this genocide for what it is, or to table resolutions in either the General Assembly or the Security Council seeking a referral to the International Criminal Court, or to help establish a regional tribunal to try those responsible. Great nations should not sign conventions or affirm declarations such as Article 18 and then fail to uphold them.

The Minister might also tell us why DfID fails to recognise Christians and Yazidis as “vulnerable” under the criteria for aid and whether it has assessed the reports that Christians and other minorities are too frightened to enter the refugee camps and have even been targeted again when they reach Europe.

ISIS works in a consistent manner, killing men, women and children, but also destroying their holy places, doing its utmost to eradicate any collective memory of a people’s very existence. While the ISIS genocide in Syria and Iraq may simply be seen as inhumane butchery, it is fundamentally an attack on freedom of conscience and belief.

Our failure to prevent, protect and punish contributes directly to the refugee crisis. There are 55 million people now living as refugees, asylum seekers or internally displaced persons, with a further 60 million people forcibly displaced. Conversely, in those countries that promote freedom of religion or belief, there is a direct correlation with prosperity and the contentment and happiness of the populace.

How right is the BBC’s courageous chief correspondent, Lyse Doucet, when she says:

“If you don’t understand religion—including the abuse of religion—it’s becoming ever harder to understand our world”.

But western Governments are often illiterate when it comes to religious faith. We just call it “terror” and have developed a worrying, timid moral equivalence, refusing to call evil by its name for fear of giving offence.

Although I welcome strongly the Article 18 conference, which the Foreign and Commonwealth Office will host in October and which I hope the Minister will be able to tell us more about, does the FCO still have only one desk officer dedicated to Article 18 issues? Learning to live together in respect and tolerance, whether we have a religious faith or not, is truly the great challenge of our times. Scholars, the media and policymakers need to promote far greater religious literacy and shape different priorities.

The life-and-death urgency that this task represents was starkly underlined by the recent execution of the 84 year-old French priest Father Jacques Hamel, and by the murder of the Glasgow shopkeeper Asad Shah, who often reached out to his Christian neighbours and customers. Tanveer Ahmed allegedly drove up from Bradford to kill Mr Shah because he said that he was disrespectful of Islam. Mr Shah was an Ahmadi. In Pakistan, millions of Ahmadis are denied citizenship and 10,000 have fled this year. Now it seems that they are to be targeted in Britain too.

If Jews, Muslims, Christians, atheists and others are no longer to see one another as an existential threat, we must provide an alternative narrative, based on Article 18, capable of forestalling the unceasing incitements to hatred which especially pour from the internet and which capture unformed minds.

Britain, for all its faults, is a society in which adulterers are not flogged, gays are not executed, women are not stoned for not being veiled, churches are not burned, so-called apostates had not, until recently, been killed, and non-believers are not forced to convert or treated as “dhimmis” or second-class citizens. In thanking all noble Lords for participating in today’s short debate, I conclude by saying that we should be proud of the freedoms we enjoy and must work hard to achieve the same freedoms for all. In that task, Article 18 must remain our lodestar.

14:10

[Baroness Berridge (Con)]

My Lords, I am grateful to the noble Lord, Lord Alton, for securing today’s debate and draw attention to my interests in the register.

Only yesterday, at an event hosted by the noble Lord, Lord Oates, the new UN special rapporteur, Dr Shaheed stated: “Freedom of religion or belief is in crisis”.

Last July, my noble friend Lady Anelay stated:

“Freedom of religion or belief is not just an optional extra, or nice to have; it is the key human right”.—[Official Report, 16/7/15; col. 599.]

This is crucial now that the UK itself is entering a new era of human rights and freedom of religion and belief post-Brexit. While the major focus is on Brexit and trade, the UK will no longer be part of the human rights diplomacy of the EU and the EAS, so we need to look elsewhere to replace this avenue. The warmth of the embrace given our Prime Minister by the Prime Minister of Australia at the recent G20 summit gives us the obvious answer: the Commonwealth.

As my noble friend Lady Anelay is also now the Minister responsible for the Commonwealth in Her Majesty’s Government, this gives your Lordships’ House a key role in engaging with this institution. Section 4 of the Commonwealth charter 2013 for the first time references freedom of religion and belief in a Commonwealth instrument and, on 22 January, in a Written Answer, Her Majesty’s Government stated:

“We will also continue to encourage Commonwealth partners to embrace the values set out in the Commonwealth Charter, including the freedom of religion or belief. We also look forward to discussing freedom of religion and other issues with the new Commonwealth Secretary General when she takes up office in April”.

Has my noble friend Lady Anelay indeed met the Commonwealth Secretary-General, the noble and learned Baroness, Lady Scotland, to discuss the UK’s approach to the promotion and protection of Article 18 in Commonwealth countries? What focus will human rights and Article 18 have at the Commonwealth Heads of Government Meeting in spring 2018, to be held here in the UK, and for the two years following when we will chair the Commonwealth? I also hope that Her Majesty’s Government will make time available for a lengthy debate in your Lordships’ House on the UK’s future strategic plan to engage with the Commonwealth.

While the Foreign and Commonwealth Office is looking to strengthen rules-based international systems on human rights, as the noble Lord, Lord Alton, said, it is no longer enough to rely on international compliance with human rights instruments as an effective mechanism for human rights implementation, not least because it can serve as a smokescreen for only prima facie safety compliance. As we can see across the globe today, this is at the expense of ensuring that human rights and, more specifically, freedom of religion or belief, are accessible and meaningful to the individuals who bear those rights.

Unlike the EU, or indeed the UN, the Commonwealth has no binding formal obligations. Rather, its channels are considered informal and relaxed but none the less effective. Will my noble friend confirm that the new £400 million soft power fund will be open to projects to promote and protect freedom of religion or belief and other human rights in the Commonwealth? This neglected, multifaith network is vital to the UK’s future trade, diplomacy and human rights work. My noble friend Lord Howell previously called the Commonwealth the soft power network of the future but, in the light of Brexit, it is the soft power network of today.

14:14

[Lord Clarke of Hampstead (Lab)]

My Lords I, too, thank the noble Lord, Lord Alton, for securing this short debate and pay tribute to him for his continuing mission to give voice to the persecuted minorities of many faiths in our troubled world. In the few minutes available, I will focus on the situation in Iran—a truly dreadful situation that goes on and on. I should add that it is now 30 years since I first got involved in trying to get our Government to talk at the United Nations about the persecution of minorities and the abuse of human rights in that country.

Once again, we are discussing the persecution of religious minorities. This debate is very important, but I and many colleagues in both Houses believe that it should not be a substitute for concrete action to end systematic persecution.

The persecution of Christians, Baha’is and Sunni Muslims in Iran cannot be denied. It is well documented, and the Government and the FCO point to this in their latest Human Rights Priority Country update, published in July. It said:

“The Iranian constitution only formally recognises 3 religions other than Islam: Christianity, Judaism and Zoroastrianism. Despite this, minority religions, and even non-Shi’a Muslims, face persecution and harassment in Iran”.

On 5 August the United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, condemned the execution of 20 Sunni Muslims in Iran. It was deplored that:

“In many of the cases, there were serious doubts about the fairness of the trials, respect for due process and other rights of the accused”.

Christian communities in Iran are not allowed to build their own churches. They are forced to turn their homes into churches for their congregations. These in-house churches are repeated targets for the Iranian Revolutionary Guard and plain-clothes agents of the intelligence ministry. On 12 August, 11 Christians were arrested during a raid at an in-house church in the city of Isfahan. Several days later, five converted Christians were arrested. They were all charged with bogus national security allegations, similar charges to those used by the Iranian authorities to justify the arrest and detention of British dual nationals in Iran. The Baha’i religion is not even recognised by the authorities in Iran. The Baha’i are hence deprived of their most fundamental rights and constantly harassed. It is essential to understand that the deteriorating human-rights situation in Iran, including the persecution of religious minorities for the past three decades, is a direct consequence of the culture of impunity enjoyed by the perpetrators.

In this context, it is worth noting and highlighting the massacre of 30,000 political prisoners in Iran in 1988, which for 28 years was overlooked by the West and the international community, and it still is. New revelations from a recently released audio file and information exposed by the Iranian democratic opposition, the NCRI, show that at least 59 of those officials responsible at the time are today holding senior and ministerial positions in Iran, including the Supreme Leader Khamenei and the Justice Minister of President Rouhani’s cabinet, Mostafa Pourmohammadi. This shows that those actively involved in oppression of people and annihilation of dissidents are rewarded rather than held accountable. Minister Pourmohammadi recently said of his role in the 1988 massacre, “We take pride in eliminating those who wage a war against God”.

If our aim is to improve the situation of religious minorities in Iran, the best approach by our Government is to take a lead on the global scene and make the perpetrators of the 1988 massacre accountable before an international tribunal. These officials are those who oppose religious minorities. In November last year the noble Baroness, Lady Anelay, speaking at the UN General Assembly’s Third Committee about the progress in human rights, said that it was high time for words to be translated into actions. May I respectfully ask the Minister that her words be pursued more forcibly in the coming weeks and months, whenever the opportunity arises?

14:19

[Lord Cotter (LD)]

My Lords, I thank the noble Lord, Lord Alton, for securing this debate. There are many areas of concern about the implementation and promotion of Article 18 of the Universal Declaration of Human Rights. The key point is that it is an essential component of the UN charter, from the UN’s original formation when the United Nations Assembly was conceived. It is very important because of that.

There are many parts of the world where Article 18 is not respected but I want to speak about one country in particular and support what the noble Lord, Lord Clarke, has said. I hope that by both of us speaking on this issue this point will be addressed; namely, concerns about Iran. Iran has been identified as one of the worst countries in the world. Article 18, which sets out the right to believe, not to believe, or to change your belief, is broken every day in Iran, which last year executed almost 1,000 people because of their religious or political beliefs. The recent upgrading of our relations with Iran is most puzzling in the light of consistent human rights violations.

It is especially concerning that the Christian community in Iran is so much under attack. Christians in Iran are prevented from openly exercising their beliefs or promoting their religion. It has also been highlighted that Baha’is are being executed, tortured or imprisoned in great numbers. Christians are criticised as illegal and systematically harassed and intimidated. Iran is one of the world’s 10 most inhospitable countries for Christians and those of other beliefs.

It is right that this matter should be addressed. Looking at Iran, we see that many of those who committed the 1988 massacre of political prisoners are still very much in charge so it would be naive to think there will be any change unless the international community raises the cost for the Iranian authorities of committing these atrocities against members of religious minorities and ordinary citizens. I urge the Government to publicly demand the prosecution of those who are known to have committed the 1988 massacre and impose sanctions on the identified perpetrators for their role in the systematic abuse at that time.

Like my colleague, the noble Lord, Lord Clarke, I am very interested in Iran and have been to the many international events that have been held. I urge the Government to listen to Maryam Rajavi, who symbolises interfaith harmony between Christians and Muslims in that country, and to examine her 10-point democratic platform. Her plan, absolutely required in Iran, is also a possible route for many other countries. I hold it in great regard, and we in this country should support what she says and its implementation in Iran.

14:23

[Lord Hope of Craighead (CB)]

My Lords, I, too, thank the noble Lord, Lord Alton, for securing this debate, and for his tireless search for a solution to the problem of promoting universal adherence to the principles that underlie this article. Reduced to its simplest terms, Article 18 seeks to protect two inalienable rights. The first is the right to freedom of religion or belief itself. The second is the right to manifest that religion or belief in whatever way one chooses. Without the first one cannot have the second, and so it is the threats to the first that are of the greatest concern. They are legion, and they affect every faith.

The question is: what can be done to eradicate violations of the article? As a lawyer, I would love to think that there was a legal base for the article so that it could be enforced. After all, rights are not really rights unless the person whose rights are being infringed has access to a remedy. Two examples come to mind of legal bases which are to be found in other human rights instruments. There is the 1950 European Convention on Human Rights, Article 9 of which is a mirror image of what we see in Article 18. As everyone knows, Section 2 of that convention set up the European Court of Human Rights with jurisdiction to say what its articles mean, to receive applications from individuals and to provide just satisfaction if there has been a violation. That mechanism was practicable within a small group of relatively like-minded nations such as we have in Europe, but we have to face the fact that it would have been beyond the reach of the universal convention, which was designed to apply across the entire world. So it is not there.

The other example is the 1984 torture convention. It was entered into having regard to Article 5 of the universal declaration—so there is a link there—and Article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one shall be subjected to torture. Article 4 of the torture convention provides:

“Each State Party shall ensure that all acts of torture are offences under its criminal law”.

Article 5 provides:

“Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4”,

where, among other things,

“the victim is a national of that state”.

However, the convention goes even further than that. It requires,

“any State Party in whose territory a person alleged to have committed any offence … is present shall take him into custody”,

and to prosecute him there; failing which, to extradite him to the state of which the victim is a national so that he can be prosecuted in that country. We in this country, as many will remember, were asked to give effect to our obligations under that convention in the case of Senator Pinochet by extraditing him to Spain so that he could be prosecuted there for acts of torture committed in his own country but perpetrated against Spanish nationals, although he was able to escape from the consequences on grounds of ill health.

The Question which the noble Lord asks is directed to the Government. In the absence of a mechanism such as those to which I have referred, which would enable breaches of the article to be brought before a court, it surely is the Government’s responsibility to do all they can to eliminate the appalling violations to which other noble Lords have referred. But perhaps the time has come for someone to develop the idea of a freedom of religion convention along the lines of that which was devised to address the problem of torture. We cannot go on just talking about the problem. Something more fundamental needs to be done. I ask the Minister to at least take this suggestion away for further thought and consideration.

14:27

[Lord Suri (Con)]

My Lords, Pakistan is a country that has prevalent issues in its adherence to Article 18 of the UDHR. Today, minorities are subject to forced conversions and marriages, blasphemy laws and even rape. The current situation is a sad state of affairs when we consider Muhammad Ali Jinnah’s speech to the New Delhi Press Club in 1947 which pre-empted the Universal Declaration of Human Rights. He highlighted the importance of religious pluralism and freedom of religion or belief, and in his address he set out the basis on which the new state of Pakistan was to be founded. In particular, he forcefully defended the right of minorities to be protected and to have their beliefs respected, saying:

“Minorities, to whichever community they may belong, will be safeguarded. Their religion, faith or belief will be secure”.

Today, however, minorities do not have the safeguards he spoke of and from current trends it appears that the realisation of Article 18 in Pakistan may become a distant dream. One area that is exacerbating the situation for minorities are the curricula and public school textbooks, which contain indoctrinating teachings against minorities. There is considerable evidence that many children from religious minority backgrounds are discriminated against in schools and some do not attend at all due to a culture of intolerance and hatred against them within classrooms. The United States Commission on International Religious Freedom has highlighted issues with many textbooks used in Pakistan, which are sowing discord and animosity against minorities. Its major findings are that the content of Pakistani public school textbooks related to non-Islamic faiths and non-Muslims continues to teach bias, distrust and inferiority. This perhaps provides some explanation of the deteriorating state of religious freedom in Pakistan today.

Considering that over 30% of DfID’s aid to Pakistan is allocated towards education, it is important to ensure that Her Majesty’s Government do not in any way contribute towards perpetuating the negative portrayal of religious minorities and the incitement of intolerance and hatred. Instead, we must ensure that we support vulnerable children from religious minority backgrounds and address the discrimination or persecution they may face. Not only would this help encourage more students into education but it would contribute to building peace and stability while countering prospective radicalisation. It is imperative that that these curricula and the culture are reformed to ensure that a generation of children are not brought up with a skewed and intolerant attitude to religious minorities as this provides fertile conditions for radicalisation.

Inevitably, the manifestation of intolerant attitudes will further inflame an environment which is already hostile towards minorities. It will further degrade the fragile condition of freedom of religion or belief in Pakistan. Thus we must ensure that we are doing everything we can to bring about cultural change in Pakistan in order fully to respect Article 18.

14:30

[Lord Singh of Wimbledon (CB)]

My Lords, I also offer my thanks to the noble Lord, Lord Alton, for initiating this important debate and for the vast amount of work he does in this field. All too often, debates and questions in this House describe the appalling treatment of religious minorities across the world. Unfortunately, the response from government is in my view far from even-handed. The world, it seems, is still seen in terms of friendly countries to be spoken to quietly, if at all, and the characterisation of those who are not dependent on us for trade or strategic influence as nasty regimes to be condemned in the most strident terms.

Let me give an example. In 2014, the Government described the human rights record of the Sri Lankan Government as “appalling” and called for an international inquiry. I asked whether the Government would press for a similar inquiry into the Government-led massacre of thousands of Sikhs in India. The short, sharp response was that it was “a matter for the Indian Government”. Why the lack of even-handedness? I have asked the same question several times both in the Chamber and in Questions for Written Answer, but always to no effect. On the last occasion, some six months ago, I was promised a considered reply from the Minister, but I am still waiting for it.

In France today, Sikhs are being humiliated by being asked to remove their turbans for identity photos in defiance of a UNHCR court ruling that the actions of the French Government are an infringement of the rights of Sikhs under Article 18. There was no mention of this in our Government’s recent report on human rights abuses across the world. France, after all, is a “friendly” country. These examples of religious discrimination are especially hurtful to the followers of a religion in which freedom of belief is considered to be so important that our Ninth Guru, Guru Tegh Bahadur, gave his life defending the right of Hindus, those of a different religion from his own, to freedom of worship.

What is of concern to me and others is that we, like other members of what we euphemistically call the Security Council are still living in a world of 19th-century power politics, a world in which the abuse of human rights was conveniently overlooked in a greed-fuelled era of strategic alliances. If there are any doubts about the failure of our power-bloc politics, we should reflect on the current tragedy of the Middle East, which began a century ago with the carving up of the former Ottoman Empire by British and French diplomats.

As a Christian hymn reminds us:

“New occasions teach new duties; Time makes ancient good uncouth;

They must upward still, and onward, who would keep abreast of Truth”.

The great human rights activist Andrei Sakharov said that,

“there can be no real peace in the world unless we are even-handed in our attitude to human rights”.

We will fail future generations if we do not heed his far-sighted words.

14:34

[The Earl of Sandwich (CB)]

My Lords, it is a pleasure to follow the noble Lord. My noble friend Lord Alton has again raised a major question of conscience on a subject that I approach with trepidation. The Universal Declaration of Human Rights is so important that it needs to be read aloud like a catechism. Admittedly, we are dealing with only one article today, but it touches millions who are suffering from flagrant abuses of human rights, freedom of thought, conscience and religion.

I want to look briefly at one aspect of this abuse, which is the condition of the Dalit community worldwide. This is an area about which my noble friend has considerable knowledge and is another form of modern slavery, which this Government say they want to eliminate. I have visited Dalit communities in Rajasthan, Andhra Pradesh and elsewhere supported by Christian Aid, meeting human rights lawyers, aid workers, journalists and other activists who investigate atrocities. I recall houses burnt down, Dalits raped or murdered, young Adivasis made to worship and become prostitutes, and the daily humiliation of millions of Dalits who carry out the most menial tasks. The responsibility for these crimes may lie with their employers or their higher-caste neighbours, but they are almost always condoned by people in authority—village leaders, police and even judges.

We think of the Hindu and Sikh caste system but Dalits belong to every religion and they are abused, persecuted and killed by their own people, often for petty reasons of long-outdated customs and prejudices. Muslims and Christian Dalits are a persecuted minority within a minority and they are victimised by other Muslims and Christians. I am glad to say that there is a vast international network of NGOs and individuals dedicated to this campaign and some MPs in India have joined it, although that can also be an electoral bandwagon. Plenty of legislation exists to end discrimination but it is rarely implemented and few politicians take it seriously. However, earlier this year, Prime Minister Modi passed minor laws to speed up the judicial process and to support Dalit entrepreneurs. These must be welcomed.

In Nepal, the Kamaiya are a similar group to the Dalits in India. Later this month, I will be there asking similar questions, although the bonded labour system was supposedly banned in 2002.

On 11 July in Una in Gujarat, four Dalits from a sub-caste that skins animals for hides professionally were tied to a car and flogged for skinning two cows that they claimed had died naturally. This caused an explosion of anger from 10,000 Dalits in Ahmedabad, which ended with the dumping of carcasses, roadblocks and burning buses. A month later, on 15 August, Prime Minister Modi celebrated India’s 70th Independence Day in Old Delhi while thousands of Dalits gathered in perhaps the largest ever demonstration. Meanwhile, the Government have again proclaimed their commitment to changing the system. We will have to see whether this is a political move, considering that state elections take place in Punjab and UP next year.

Finally, I remind the Minister that this issue also concerns the United Kingdom, whose response to human rights abuse was reviewed only last month by the UN Committee on the Elimination of Racial Discrimination. While complimenting the UK on its new legislation on human rights, the committee also expressed concern that several provisions of the Equality Act 2010 have not yet been brought into legal effect, including Section 9(5)(a) on caste-based discrimination and Section 14 on dual discrimination. I know the Equality Act is beyond the scope of this debate and I only point out that on an issue of such international importance the UK may not be putting its best foot forward at home, although I recognise, and perhaps the Minister will repeat, that DfID is very well aware of the condition of Dalits worldwide.

14:38

[Lord Collins of Highbury (Lab)]

My Lords, I, too, thank the noble Lord, Lord Alton, for initiating this debate. It is just under a year since the last short debate on this topic and since then we have seen the publication in May of the department’s excellent Human Rights and Democracy Report 2015. As noble Lords have done in today’s debate, it highlights the harsh reality of the world we live in and the fact that countries that do not respect religious freedom or the right to have no belief invariably do not respect other basic human rights. I also highlight the horrific acts of genocide in Syria and Iraq. I use the term because, as reflected by the unanimous decision of the House of Commons, what Daesh is doing has all the hallmarks of genocide as well as crimes against humanity and war crimes.

In the light of previous assurances that we have received, both in this Committee and in the Chamber, what progress are the Government making in gathering evidence? When do they intend to take the evidence to the UN Security Council so that the matter can be referred to the courts and due legal process?

The FCO’s thematic approach to human rights raised concerns about whether the work on freedom of religion or belief would suffer. The noble Baroness, Lady Anelay, reassured us last year that it would remain integral to what the Foreign Office does. However, how does this work in practice? How will the Minister ensure that the FCO’s spending on freedom of religion or belief projects under the new Magna Carta fund is not reduced any further?

The FCO’s conference on freedom of religion and belief in October is welcome, too, as is the updating of the FCO’s current toolkit. However, concerns remain, as the noble Baroness, Lady Berridge, highlighted, over how the Government will ensure that they will keep momentum on freedom of religion and belief post-Brexit. Earlier this week we heard that Brexit is about seizing opportunities and putting the national interest first. If that is so, it is important to be clear where those opportunities lie. One area is to hold different nations to account over their human rights and freedom of religious belief violations by including human rights clauses in the trade agreements that the UK will be renegotiating. EU trade policy has increasingly incorporated human rights considerations, and the Commission’s published trade policy states:

“Trade policy can be a powerful tool to further the advancement of human rights in third countries in conjunction with other EU policies”.

What reassurances can the Minister give us today that the FCO’s important work on human rights and freedom of religious belief can be mainstreamed throughout the Brexit negotiations across the three main departments? We need to be serious about human rights not being a constraint on trade but an enabler of it.

14:42

[Baroness Goldie (Con)]

My Lords, I thank noble Lords for this very thoughtful debate, particularly the noble Lord, Lord Alton, not only for securing it but for his kind welcome to me, which I much appreciate. This is an important issue and I welcome the contributions that we have heard today. Support for the freedom of religion or belief is at the heart of the work that the UK Government do, both at home and abroad, to promote global security and stability. In societies where freedom of religion or belief is respected, it is much harder for extremist views to take root. The noble Lord, Lord Singh, made a very eloquent contribution about the value of human rights and the importance of respecting them. I confirm that the Government remain firmly committed to promoting and protecting the right to freedom of religion or belief, as set out in Article 18 of the Universal Declaration of Human Rights. The noble Lord made a number of specific points about India, as did the noble Earl, Lord Sandwich, and I hope I may write to them both about the points that they raised.

Since the last debate in this House, the Government have continued to work hard to promote and protect this basic human right. We have done so through bilateral and multilateral engagement, and through our project work overseas. The noble Lord, Lord Alton, asked whether the Foreign and Commonwealth Office has enough staff and raised the important point about having only one desk officer working on freedom of religion or belief. All our foreign and Commonwealth embassies and high commissions are also responsible for raising human rights issues in the countries to which they are accredited. We believe that these issues are best handled by those who understand the individual concerns and countries in detail, rather than trying to do that remotely by a separate policy unit.

We continue to work hard to improve the quality and range of projects that we support under the Magna Carta fund to tackle this whole issue. The noble Lord, Lord Collins, in particular made an important point about that: he expressed concern about the fund, asked whether there was enough money in it and sought an assurance that it would not be reduced further. In the 2015 spending review, the Foreign and Commonwealth Office more than doubled its annual funding commitment to the human rights and democracy fund, newly titled the Magna Carta fund, and in 2016-17 the fund has a budget of £10.6 million compared with £5 million the previous year. I hope that offers some reassurance.

In Iraq we are promoting legal and social protection for freedom of religion or belief, to prevent intolerance and violence towards religious communities. In Syria we are supporting a project that aims to build dialogue between different communities, including between Syrians of different faiths. In south Asia, working with Christian Solidarity Worldwide, we are building a network of human rights defenders and religious minority leaders across the region.

The noble Lords, Lord Cotter and Lord Suri, raised specific issues about Pakistan. They particularly wanted reassurance that we are attentive to the situation in Pakistan and that we are cognisant of the challenges in that country. They were two very thoughtful and eloquent contributions. In March this year, during a visit to Pakistan, the then Foreign Secretary, Philip Hammond, raised with the Pakistan Government the importance of safeguarding the rights of all minorities, including religious minorities. In April, Philip Hammond raised UK concerns about religious freedom and human rights with Sartaj Aziz, the adviser to the Prime Minister on foreign affairs. Again, under the Magna Carta fund, we are supporting projects in Pakistan to promote greater tolerance and religious freedom. So Pakistan remains a priority for UK development assistance, with programmes to try to improve human rights.

[Lord Alton of Liverpool]

Before the Minister leaves that point, she will know that we have spent over £1 billion in aid to Pakistan over the last few years. Can she indicate to us, if not now then perhaps in a letter to those who participated today and raised the issue of Pakistan, how much of that £1 billion has been used to promote coexistence, to support these beleaguered minorities and to help those who have been fleeing the country and are held in the degrading detention centres that I visited last year in south-east Asia?

[Baroness Goldie]

I thank the noble Lord for raising that point. I do not have that specific information to hand but I will undertake to try to ascertain it and to write to him.

In general, we also continue to work closely with international partners in the Organisation for Security and Co-operation in Europe. I am pleased that the UK continues to be represented on the Advisory Panel of Experts on Freedom of Religion or Belief by Dr Nazila Ghanea of Oxford University. She follows in the eminent footsteps of Professor Malcolm Evans of Bristol University. We would like to see the OSCE make regular use of that panel.

The UK Government also supported the meeting of the International Panel of Parliamentarians for Freedom of Religion or Belief that took place last September at the United Nations General Assembly in New York. That growing parliamentary network shows real promise. I hope we can continue to work together, to strengthen the voice of parliamentarians in countries where freedom of religion or belief is regularly violated.

The noble Lord, Lord Clarke, made the important request that he wants words translated into deeds. No doubt that is a sentiment with which in any debate we have a lot of sympathy, but I hope that what I am telling the Committee today and what I am about to outline will reassure him that there are many deeds taking place and we are not just talking about unfounded rhetoric. For example, my noble friend Lady Anelay will be attending the launch of the Open Doors Hope for the Middle East report on 12 October. That report, which is a call to action, looks at the impact and significance of the Christian presence in Syria and Iraq. My noble friend will continue to work closely with Open Doors and with all our key partners as we further develop our policies to support religious minorities in the region.

We are appalled by the barbarism of Daesh towards all of Iraq’s communities. Daesh is conducting a campaign of violence and terror in both Syria and Iraq and has carried out atrocities against many communities including Muslims, Christians and Yazidis.

Reference has been made to the London conference, which my noble friend Lady Anelay will be hosting on 19 and 20 October, as the noble Lord, Lord Alton referred to. It is an important event that will discuss how protecting freedom of religion or belief can help to combat violent extremism by building inclusive societies. It will be an important forum and if any Members are interested in attending, I urge them to contact my office and I will do whatever I can to facilitate their attendance.

The noble Baroness, Lady Berridge, asked whether my noble friend Lady Anelay had met the Commonwealth secretary-general to discuss freedom of religious belief. I reassure her that my noble friend has met the Commonwealth secretary-general on a number of occasions to discuss human rights issues. The Commonwealth secretary-general was very keen to be involved in this forthcoming conference, which we are holding at the FCO. Sadly, she has another engagement, but she herself suggested that she participate virtually in the conference, and she will be recording a visual message for the event. I hope that reassures my noble friend that there is engagement.

The conference will bring together a wide range of experts, including from the environments of government, business and the media, as well as parliamentarians, lawyers and NGOs, to share best practice and identify opportunities for working together. I am delighted to be able to confirm that the most reverend Primate the Archbishop of Canterbury has agreed to speak, along with Sheikh Abdullah Bin Bayyah, who may be known to some noble Lords, and the UN special rapporteur on freedom of religion or belief, Ahmed Shaheed of Essex University. The aim of the conference will be to provide staff working on human rights at our embassies across the world with practical and innovative ideas to help in their work to promote and protect freedom of religion or belief. To that end, we will also be updating the Foreign and Commonwealth Office freedom of religion or belief toolkit for staff, which was first published in 2009.

I come to the characteristically erudite and thoughtful contribution from the noble and learned Lord, Lord Hope. He raised the interesting prospect of a freedom of religion convention. I understand that given the polarised nature of discussions at the United Nations, we assess that a convention would be difficult to negotiate as it is not predictable that there would be universal assent to it. The difficult balance that we need to strike is that we need to consider whether our time is best spent negotiating such a convention or whether it is better to spend our time working in individual countries where the freedom of religion or belief is under attack and we feel we can do something about it. That is not to say in principle that this idea is not worthy of being kept on the radar screen, and it was very important that the noble and learned Lord referred to it.

We greatly value the work of all the partners with whom we work on this important issue. Ministers, diplomats and officials continue to meet regularly with leaders of different religious groups from around the world, UK faith groups and civil society organisations. We try to understand their concerns and endeavour to examine how we can better work together to promote a universal commitment to religious freedom.

[Lord Alton of Liverpool]

My Lords, before the Minister concludes, as we have a few minutes before we have to finish our proceedings, may I just press her on the point that the noble Lord, Lord Collins of Highbury, and I raised about the declaration of events in Syria and Iraq as a form of genocide? She will record that I cited the current Foreign Secretary’s remarks, before he was appointed, that he was baffled by the failure of the Foreign Office to make such a declaration. What is the Foreign Office doing not just to collect evidence but to take it forward and place a resolution at either the General Assembly or the Security Council so that proceedings may be brought against those who have committed these heinous crimes?

[Baroness Goldie]

With the change of regime of the Foreign Office, it may be timely to refer the question again. That is all I can offer to do, and I undertake to the noble Lord that I will do it. We can only see what response is forthcoming.

I thank all contributors today for this serious and thought-provoking debate. It is an area where there is no monopoly on wisdom and all worthwhile suggestions and contributions are very welcome and received with great warmth. I reassure noble Lords of the continued commitment of the UK Government in support of Article 18. I hope I have done that by giving just a few examples of how we are working with groupings such as academics, think tanks, NGOs, faith representatives and parliamentarians in further pursuit of this fundamental human right. The Government will continue to work towards the full realisation of the right to freedom of religion or belief for every individual and we look forward to doing that in tandem with everyone, such as your Lordships, with an interest in securing that vital objective and undertaking that vital task.

14:56

Sitting suspended.

Parliamentary Commission on Banking Standards

Thursday 8th September 2016 Grand Committee

Question for Short Debate

15:00

Asked by

[The Lord Bishop of St Albans]

To ask Her Majesty’s Government what is their assessment of progress towards implementing the recommendations contained within the report of the Parliamentary Commission on Banking Standards, Changing banking for good.

[The Lord Bishop of St Albans]

My Lords, I start this debate by saying how pleased I am to see the Minister responding today in his last time in his present role, although I look forward to working with him when he takes up his new duties at DCMS.

We are now three years on from the publication of the parliamentary commission’s report Changing Banking for Good. Thanks to the decisions made by this and previous Governments, our banking system is taking tentative but important steps along the road to recovery. We must not forget, however, the blunt summary in the report which laid out the scale of the problems with banks over the previous decade:

“Banks in the UK have failed in many respects. They have failed taxpayers, who had to bail out a number of banks including some major institutions, with a cash outlay peaking at £133 billion, equivalent to more than £2,000 for every person in the UK. They have failed many retail customers, with widespread product mis-selling. They have failed their own shareholders, by delivering poor long-term returns and destroying shareholder value. They have failed in their basic function to finance economic growth, with businesses unable to obtain the loans that they need at an acceptable price”.

Some people, not least some bankers, claim that this is now all in the past and that today everything is different. However, even a cursory glance at our newspapers reveals the catalogue of problems that continue to dog some parts of the industry.

I will focus my comments on those recommendations of the commission which sought to shape the corporate culture of our banking institutions. The banking crisis of 2008 was, after all, not primarily a regulatory failure but a moral failure. It was a failure of a corporate culture that came to reward irresponsible and reckless behaviour, eschewed accountability among senior managers and failed to value the interests of its customers, and which refused to acknowledge its duties and responsibilities to wider society.

By the time the commission’s final report was published in 2013, it was clear that the banking industry had become detached from the moral moorings that had helped to shape its activity over past centuries. Gone were the principles of collective endeavour and mutual success, to be replaced by a misalignment of risk and reward which had stripped many parts of the industry of any substantive values besides the pursuit of short-term capital return.

While a tightening of the rules could help bring broken banks into line, the parliamentary commission quite rightly noted that the task of reform would remain incomplete while banks and regulators continued to see those regulations as little more than boxes to be ticked. What was and is still needed is a renewal and a re-embedding of the values by which banking is governed. Only when banks themselves come to take seriously their long-term responsibilities towards customers, employees and the common good will they find themselves in a position in which they can regain trust.

The commission therefore made a number of recommendations aimed at encouraging this renewal of culture and values. Increasing accountability at the top of banks through the new senior managers and certification regimes should help to concentrate the minds of senior management on the importance of embedding good corporate values throughout the bank. The new set of conduct rules and the requirement that banks train staff in their implementation will set a basic standard of values against which all staff can be held to account. Finally, the new rules on remuneration, with a proportion of any bonuses deferred and new facilities for clawback and malus, should strengthen the alignment of individual rewards with long-term risk.

The Government’s willingness to implement these recommendations is welcome, even if there has been some hesitancy to implement them in full—for example, the extent to which remuneration should be deferred. However, the effectiveness of these reforms has yet to be tested, and that will be an important part of the process. Can the Minister inform us what will be done to monitor the implementation of these new rules and regulations? Will Her Majesty’s Government report, for example, on the number of senior managers being held to account by the regulator? Will they keep a public record of the number of staff being disciplined for failing to abide by the conduct rules or on the number of cases of banks exercising their right to claw back remuneration? It is no good banks and regulators being given these new powers if they never actually use them.

These regulatory changes are crucial steps in helping to reshape at senior levels the culture of British banks, but cultural change must go deeper than the top layer. It needs to become embedded within middle management: those individuals who actually drive sales and investments. There is of course a serious question as to how far regulatory changes can successfully embed cultural values into the heart of any organisation —as large, for example, as Barclays or HSBC. Cultural change has to come, at least in part, from within the industry itself.

In this regard the creation of the Banking Standards Board, as recommended by the commission, is an important step towards a sustainable and responsible banking system. The BSB is in a unique position to encourage and facilitate banks to move in a more sustainable direction. It can employ the soft power of public opinion and help to share examples of best practice. It also holds the key to the professionalisation of an industry that has often lacked proper accreditation standards.

I urge the board to act boldly in holding its members to account, but Her Majesty’s Government also have a vital role to play. Crucial to the BSB’s success is a competitive market, but I fear that the recent recommendations from the Competition and Markets Authority do not go far enough in driving transparency and competition, or in levelling the playing field for challenger banks.

Beside the BSB, responsibility for cultural change in banking also requires senior management to ensure that it is rewarding, promoting and embodying those values that are commensurate with the long-term health not just of its organisation but of its customers and the wider economy—the common good. Since the crash, a number of CEOs and senior managers have made cultural transformation a top priority of their tenure. However, it is worth noting that many of them have faced huge problems in maintaining and increasing short-term shareholder returns.

Herein lies a core problem for banking that is noted by the commission but remains unaddressed. While it is clear that long-term thinking over investments, debts and customer care is integral to the sustainability of any bank, there is an inevitable pressure to focus on short-term returns when the average share is held for just six months. Keeping shareholders happy remains the central priority of senior management. As long as that continues, regulations protecting the wider economy will continue to be seen as a hurdle to be cleared and short-term gains will continue to be pursued at the expense of long-term stability.

The parliamentary commission made a number of recommendations on this, including consulting on changes to the Companies Act to remove shareholder primacy in the case of banks that posed a wider economic risk, replacing that with a primary duty to financial safety and soundness. As far as I am aware, this is not something that Her Majesty’s Government have acted upon. Can the Minister comment as to whether this sort of approach might be considered by our new Prime Minister? Can he also inform the Committee what impact the UK’s impending withdrawal from the EU might have on current and future banking reforms?

15:09

[Lord Haskel (Lab)]

My Lords, on 19 July the head of HSBC foreign exchange trading was arrested at New York airport. He was charged with making $8 million by abusing a client’s confidence on a foreign exchange deal. Of course, this is but one of a series of foreign exchange abuses that we have heard about in recent years. However, this one was a little bit different: it had been fully investigated by the bank, and its decision was that there had been no wrongdoing. I put it to the Minister that this episode calls into question whether the changes in culture and the stricter controls called for in the banking commission’s report are in fact working. Are we taking the steps to recovery that the right reverend Prelate is so concerned about?

In spite of what has gone on, foreign exchange trading is still more lightly regulated than other sectors of the financial market. This is because of undertakings to treat clients fairly. Are we still seeing exploitation because of this light regulation? The right reverend Prelate is right to raise this report and I congratulate him on his timely Motion. This incident would suggest that it is time to take another good hard look at the incentives given to traders, as he suggested, and whether they are balanced not only by rules but also by the culture called for in Changing Banking for Good.

The predatory attitude in banking affects us all because it rubs off on the rest of business—the current word is “interconnectivity”. As it is, the reputation of business seems to be at an all-time low, with the social contract between business and society coming apart. The Prime Minister has promised a more equal approach to the economy and an industrial strategy but at the end of the day it will be our companies, their boards and the banks that will have to deliver this. It is they who will have to ensure that there is no ambiguity about the social values and behaviour needed to deliver these commercial and financial objectives.

Before coming to your Lordships’ House I spent over 30 years in business. That was a long time ago, but even at that time we knew that our purpose and strategy had to be in line with both our social and commercial values. We did all we could to encourage what we considered to be the right behaviour; we called it stewardship. So this is not new, nor is it rocket science; most people in business know about it. Indeed, it is laid out in guides for corporate governance by organisations such as Tomorrow’s Company, and it is in the senior managers regime and other codes of practice. It is even in the Companies Act, and research has shown that it works in terms of both company performance and public trust. Commentators have been pointing this out for years, and the commission’s report Changing Banking for Good makes many recommendations along the same lines. Much of this is also reflected in the recommendations of the Financial Reporting Council, an organisation that the City itself set up. We all know what is to be done, so let us get on with implementing it and help to stop the growing spread of dissatisfaction with our banks and businesses, which will stand in the way of any industrial strategy.

What brought banking into disrepute is that many innovations clearly breached the golden rule, which may be familiar to other speakers: do not offer your customers a financial deal that you would not accept for yourself. Businesses and investors themselves have to make this assessment as part of their corporate governance.

Earlier today, in reply to an Oral Question, the noble Baroness, Lady Neville-Rolfe, said the Government will issue a paper later this year on governance. I hope this will be a part of the industrial strategy that we have been promised. Indeed, we now have a department to carry out this strategy, even though it will have to involve every government department. I ask the Minister to urge the Government to include in that strategy the governance principles, which are supported by so many, of building strong companies through governance that delivers strategic commercial and financial objectives through values and behaviour welcomed by society. We would thereby avoid the need for bankers to be arrested at New York airport.

15:15

[Baroness Kramer (LD)]

My Lords, I will miss the noble Lord, Lord Ashton of Hyde, and it is a privilege to be at his last venture into this portfolio. I know he has an exciting set of portfolios in front of him. I congratulate the right reverend Prelate on obtaining this debate. I was privileged to be a member of the Parliamentary Commission on Banking Standards; the most reverend Primate is also here, and the noble Lord, Lord McFall, is listening to this debate. Members of the PCBS often voiced the fear that their recommendations would make a big splash and appear to be accepted but, as time passed and memories faded, Governments, regulators and the banks would return to business as usual.

Some of those fears have been realised. The FCA last year abruptly scrapped its work to challenge the culture of individual banks, its CEO was undermined and morale collapsed. We shall see now if Andrew Bailey can demonstrate the FCA’s independence and its effectiveness. It is crucial that he does. Then the Bank of England Act last spring absorbed the PRA—the prudential regulator—back into the Bank of England, removing a small but significant opportunity for challenge. The same Act also diluted the capacity of the courts to oversee the Bank’s performance and, most significantly, scrapped the reversal of the burden of proof for civil misconduct—a presumption that senior managers are responsible for the banks they run—greatly to the relief of bank CEOs and senior managers.

I know that the most reverend Primate and I disagree on this issue but I felt that it went right to the heart of the PCBS’s work on identifying the importance of culture and making sure that senior managers could not escape a sense of responsibility for everything that happened within their organisations. We must see if the new senior persons regimes give the regulators enough powers that the big players take on that responsibility, take it seriously and achieve the cultural change that is so essential.

I realise I have lost the argument on reversal but I suggest the Government pursue a “one strike and you’re out” policy: if we have one occasion when yet again the regulators are hampered in exposing wrongdoing and senior management walks scot free, we restore the reversal clause. One could say that the banks have proved themselves very effective at lobbying and, indeed, the pace is gathering. In the world of financial services I scarcely hear a speech that does not first stress the importance of not returning to the world of light-touch regulation and then in the same breath calls for a review of regulation because it is evidently too burdensome for the health of the industry.

I think we can safely say that many banks now facing reduced revenues will be arguing for their capital buffers to be lowered. Some also see Brexit as an opportunity to roll back the very regulation in which the UK was a leading force. I do not deny that these are tough times for the banks, but the British public are still suffering the consequences of the abuse of light regulation and the new rules were not intended just for the easy times. I hope the Government will stand firm, not just on their own actions. The EU brought in the cap on bonuses for senior management, limiting them to only one times salary. The British Government did not like that but it has been extremely effective and I hope we do not see that as a quid pro quo for some of the Brexit measures. We must not repeat the past where, salami slice by salami slice, regulation to curb bank misconduct was subtly and gradually weakened.

There are just a few areas in which I particularly want to raise questions with the Government. The first is the issue of the change in bank culture. Frankly, I am rather underwhelmed by the industry’s efforts to bring about change. Will the Government tell us how effective they think voluntary industry efforts are? To what degree are we seeing new blood on bank boards? Has whistleblowing increased? What evidence do the Government have of a shift in power towards audit and compliance? How have recruitment and training changed?

Ring-fencing was a compromise with the industry to find a way to prevent the cross-contamination of retail and investment banking without total separation. Where are we in that process, especially in establishing a framework for the electrification of ring-fencing? I have always been concerned about the viability of bail-in bonds—a key element, we have always been told, in reducing future risk to taxpayers. What assessment have the Government made of the bail-in bond market and has it been undermined by indifference from many of the sovereign funds?

Perhaps most importantly, is the banking sector now meeting the needs of the real economy? The Government have always rejected my party’s arguments to use RBS to create a backbone of local and community banks to serve SMEs and lower-income people, so they must now demonstrate that the conventional banking system is stepping in. My conversations with SMEs suggest that credit is still hard to obtain, and that fits the findings of the Federation of Small Businesses. Export finance for small companies seems virtually unobtainable from UK banks. Charities working with vulnerable people suggest that their banking options have hardly improved, and the Competition and Market Authority’s timid resistance to capping overdraft fees is, frankly, discouraging.

I know that we are making progress with challenger banks and alternative forms of finance, such as peer-to-peer, but those need time to mature. The PCBS report is now two years old. Here is an opportunity to hear from the Government how its implementation has progressed and for them to reassure us that backsliding is not part of the agenda.

15:22

[Baroness Coussins (CB)]

My Lords, I, too, am grateful to the right reverend Prelate the Bishop of St Albans for tabling this debate. I declare my interest as president of the Money Advice Trust, the charity which helps people across the UK to tackle their debts and manage their money with confidence. Among other things, the trust runs the National Debtline, which last year provided free advice to almost 400,000 people over the phone or online.

In this debate about a report which focuses on issues to do with governance, professional standards, structure and regulation, I want to emphasise how important it is that we do not lose sight of the interests of the consumer. An important aspect of the debate on banking standards is, of course, the question of trust in financial services. That was undoubtedly damaged in the wake of the financial crisis and, nearly 10 years on, there is still some way to go before this trust is rebuilt.

Key to rebuilding this relationship is treating customers fairly; in practice, that means on the ground, at the point of service. I offer two observations. The first is the need, as others have already said, to embed the fair treatment of customers into the culture of financial services and to make further improvements to competition as a means to this end. Several steps have been taken in recent years to improve the way in which customers are dealt with by financial service providers, including the FCA’s requirement that all firms must be able to show that consistently fair treatment is at the heart of their business model, as laid out in its “fair treatment of customers” outcomes.

Similarly, the Parliamentary Commission on Banking Standards’ recommendation on the need to improve competition in the retail and SME sectors paved the way for the CMA’s recommendations last month. These included making account switching easier and introducing open banking data sharing, which could unlock huge benefits for consumers by harnessing new technology to help them manage their money. Both these measures are welcome and will improve outcomes for consumers.

However, of even greater concern to many people, and a far bigger barrier to trust in financial services, are the high overdraft fees people find themselves being charged by their bank. The CMA’s announcement that banks will have to place a monthly cap on overdraft charges is welcome, although with customers currently paying £1.2 billion a year, it is debatable whether anything less than an industry-wide cap will make the difference that we need to see. From the consumer’s perspective, getting this right will be a significant part of restoring the trust in the UK banking sector.

My second observation is that improving fairness and trust requires more to be done to focus on one group of customers in particular: those in vulnerable circumstances. For several decades, vulnerable customers have been overlooked, with their treatment by financial service providers varying hugely in the absence of concrete guidance and policy. Whether the vulnerability in question relates to mental health, bereavement, terminal illness or any other factor, the way that these customers are treated by their bank or credit card company can make an enormous difference to their situation, either positively or negatively.

The Money Advice Trust has been closely involved in the work of the Financial Services Vulnerability Taskforce, established by the British Banking Association in early 2015 to address how financial institutions can improve the experience of such customers. The task force brought together major banks, building societies, charities and consumer groups, building on the FCA’s previous work on consumer vulnerability in order to push this issue up the agenda of financial services firms. The good news is that the industry is responding well in addressing the findings of the task force, and vulnerability is now included more comprehensively in the new standards of lending practice, which bring the achievement of improved customer outcomes for vulnerable consumers within the Lending Standards Board’s monitoring regime.

Of course, there is still much more to be done, including better collaboration between different sectors, to make vulnerable customers’ engagement with firms as straightforward as possible. Nevertheless, it is important to recognise that real progress is being made in this regard. I ask the Minister, following on from the task force’s valuable work, what specific lessons Her Majesty’s Government think could be learned by public sector bodies, especially those engaged in debt collection, in respect of their treatment of people in vulnerable circumstances.

In conclusion, I emphasise that improving the treatment of customers—in practice on the ground, not just in the fine words of policy documents—and paying particular attention to vulnerable customers will be key to resolving the lack of trust in banking that the Parliamentary Commission on Banking Standards was set up to address. I hope the Government and regulators will keep up the pressure on this crucial aspect of the agenda.

15:27

[The Archbishop of Canterbury]

My Lords, I add my congratulations to those of other noble Lords on the appointment of the noble Lord, Lord Ashton, as the Minister at DCMS. I have no doubt that we will come across each other again as “C”, “M” and “S” all seem to cover the Church in various forms. I should also say that I served on the Parliamentary Commission on Banking Standards and had the very good fortune to do so with the noble Baroness, Lady Kramer, from whom I learned a great deal. I am also chairman of the Church Commissioners, who were involved in seeking to buy some of the spin-off assets of the Royal Bank of Scotland.

I am grateful to the right reverend Prelate for arranging this debate. I agree entirely with his speech and indeed with the other four speakers that have been made before mine. I shall try to avoid repeating what they said. As we know, and as previous speakers have said, the key issue is banking culture. Culture comes from actions and decisions, and actions and decisions feed into culture. There is no doubt that changes introduced by the Government and the Bank of England have been extensive, and in many cases very effective. However, there are four linked areas, all of them around “too big to fail”, leading to what must be the long-term aim of ensuring that the Government do not have a contingent liability with respect to large banks that would result in them needing to provide support in the event of serious problems, as they had to do in 2008 at such cost.

First is the internal measure of capital. After some reluctance from the Government to concede this, banks now have a leverage ratio which is set by the FPC. However, in contrast to the recommendation of the Commission on Banking Standards, it is set at 3% rather than 4%. Obviously there is a balance to be met between a low ratio that leads to insecurity and a high ratio that leads to perverse incentives to take on high-risk assets. It would be interesting to know why there has been resistance to the figure of 4%, which has been the unanimous recommendation of all the external experts who have reviewed this case.

Leverage is one way of measuring capital adequacy, and a crude one. One of the great problems in 2008 was that most of the measures of capital adequacy relied on banks’ internal modelling. Recent reports—for instance, concerning the Royal Bank of Scotland and internal transfers of as much as £70 billion across what would after 2019 be the ring-fence—demonstrate that capital adequacy and movement of assets remain very important aspects of the security and good governance of large and complex banking institutions. It therefore remains a matter of concern that significant weight continues to be put on banks’ internal models for measuring capital which the Commission on Banking Standards’ report showed very clearly were not consistent with each other and in addition have a level of subjectivity which makes them almost entirely unreliable.

So long as there is good capital adequacy, the implied subsidy coming from the government guarantee of banking liabilities and assets, which has been measured by the banks themselves as around £30 billion a year, and by external bodies to be as much as £70 billion a year—just think how that might have helped Tata Steel—remains a severely market-distorting factor. Does the Minister agree that it must be a principal target of bank regulation and governance that the Government may formally withdraw any guarantee beyond the fairly low statutory level set for retail deposits, renewing in doing so a culture of risk and reward—not merely reward—and genuine values of resilience in order to ensure that banks remain in business and protect their customers? That leads me to the question of resolution and the importance of the adequacy of plans for resolution which ensure that, especially for banking activities outside the future ring-fence, contagion is avoided and certainty is provided. What progress is being made and how satisfied are the Government with plans for resolution?

Finally, the issue of competition has been raised by other noble Lords. The spin-off from RBS has of course been greatly delayed, in part owing to difficulties around the setting up of independent information technology and governance systems. Be that as it may, it is clear that there remains a lack of new entrants into the banking market; that figures for transfer of current accounts remain very low; that the illusion of free banking in credit is being maintained and is as market-distorting as ever; and that thus one can talk fairly and with reason about a banking market that simply does not function as a market.

The banks have been very clear about their resistance to increases in the ease of transfer of current accounts. Although we now have the seven-day guarantee, more sophisticated and advanced methods that have been available for some years, such as portable account numbers, do not appear to have come over the horizon in practical terms for implementation. They would be of huge benefit, particularly to the retail consumer. Until there is significant competition both for assets and liabilities as well as the essentially utility aspects of banking in terms of money transfers and movement, there will not be competition which keeps things simple, fair and honest, and embeds values.

We need a definitive change of culture to one that says that banks should be treated in ways that encourage competition and reduce government guarantees, and that banks should not be content with being privileged but should have a service mentality growing ever stronger, and should show self-restraint. For me, one of the most memorable quotes from our evidence was from a banker in a state of great distress, who said, “If I had my time again, I would remember that you can have big, simple banks or small, complicated banks but you cannot have big, complicated banks”. When the banks begin to have that sense of restraint, perhaps we may begin to see a more secure future for our banking industry.

15:35

[Lord Davies of Oldham (Lab)]

My Lords, I thank the right reverend Prelate for introducing the debate. It is an important issue and he focused on the most important question we have to ask the Minister. We want a report not just on progress thus far, because we can do some of that work ourselves, but on how the Government will monitor their aspirations to success in what we all recognise is an extremely challenging environment, how they will measure their success and how we will get reports on it.

The call, of course, is for a moral dimension to banking. The noble Baroness, Lady Kramer, said that she was underwhelmed by the response thus far. I am a little more disappointed than that. I am pessimistic about it. It seems to me that the City has to a very large extent returned to its prime driver, which is the culture of greed. If we are going to get some moderation of that position and recognition of responsibility to the wider society, the Minister needs to respond to several of the salient points made in this debate.

We all recognise that the financial industry is a very important part of our economy. It is a major earner of overseas earnings and important to our balance of payments. We all therefore want it to be healthy, but that also means hitting higher standards than those which led to the appalling collapse in 2007-08. Since then, we have not had a great deal of evidence of a commitment by the City to improve its level of morality. Its friends in Westminster, of course, blamed the Labour Government of the time—an extremely successful ploy in electoral terms but not much referred to now when we talk about the financial industry, because we all recognise the depths of the issues which bought it low and caused so much pain to our wider society. After all, few in the banking industry have been brought significantly to account. Many have returned to business as usual. Those who were brought to account were on the whole smaller fry than those who had responsibility and took the great rewards.

We want the Minister to give a clear response. The Government have been somewhat selective in the advice which they have taken and implemented. Both the most reverend Primate and the noble Baroness, Lady Kramer, referred to the key proposals first presented to the Government in the Vickers report. Sir John Vickers indicated that he was severely disappointed at the action taken in consequence of the report. The Government have some explaining to do in circumstances where a very clear model of reform was presented but we have had limited action.

Of course, I give credit to the Government for introducing the Bank of England Bill, the fact that the Bank of England has been put firmly at the centre of banking regulation and that there is an improvement in the bodies now authorised to carry out this exercise. We all recognise the virtue of a concept such as ring-fencing, which was recommended in Vickers, but it does not come into effect until 2019. I therefore cannot feel that driving, effective pressure from the Government is under way when they are prepared to subscribe to a timetable to which substantial delay is built in.

I share with the noble Baroness, Lady Kramer—who also referred to this—that the only issue that seems to have given a real shudder of anxiety in the City about its processes and conduct at present and the possibility of government regulating it with some force, was that of the burden of proof. Of course, the Government reversed this so that the regulator has to establish the case, not the person who is being examined on the basis of damage that might have been done. To many of us that looked like a signal to the City that this Government could be and indeed were soft in that instance.

We should also appreciate the extent to which the rewards system in the City seems to have changed very little. The banks can make colossal losses and still pay out very heavy bonuses, which are matched by scarcely any others in society. Surely there must be a recognition, in circumstances where bankers see that they have to pay out for the mistakes of the past, that it cannot possibly be right that significant amounts of money are going to senior staff. One part of the morality of the City is to recognise that its basic unfairness and disregard for the society that it serves are no advantage to it, except in terms of the pockets of those who get the financial bonuses.

What my noble friend Lord Haskel referred to and what also underpins this is that the Government must think about empowering those, in addition to the regulators, who can hold the banks to account. That means changes in shareholder powers. It means a companies Act that gives real responsibility to shareholders rather than to those on the remunerative merry-go-round that they appear to operate at present.

15:43

[The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, I am grateful to the right reverend Prelate for securing this debate here today and to all noble Lords who have spoken, including distinguished members of the commission itself. I am also grateful for the kind words of those who were wishing me godspeed on my way. There is always doubt as to whether they are longing to get rid of me or want to come to see me in another form.

The theme around today’s debate is that we all acknowledge the problems. We realise that they were incredibly serious and that they had an effect on real people’s lives all over the country. Therefore, the issue demands a huge amount of attention, not only when the commission took place but also as it continues, so it is good that we are having a debate such as this today. There is a theme that some progress is being made—or is it illusory?—and that competition is necessary but consumers should be served well and fairly. I hope to be able to convince noble Lords that real progress is being made and to answer a lot of questions.

It is also helpful that the noble Lord, Lord Davies, took the time to mention that this is a very important industry for the country. It employs 1 million people, two-thirds of whom are not in London and the south-east. They raise £60 billion of tax revenue to pay for things that we all want, such as hospitals. It is very important in the context of Brexit, which I will come on to later. It represents 12% of UK exports.

I think we all agree that the report is an exceptional piece of work. It identified fundamental problems within the banking system and clear solutions to them. In the wake of the financial crisis and a succession of scandals, though, public trust in our banks has undoubtedly been dented, so it will take not only legislative and regulatory reform but a long-term shift in culture if the industry is to fully restore that trust. Culture is a theme that came up throughout the debate.

I shall summarise some of the progress that the Government and the regulators have made in response to the commission’s main recommendations. The noble Lord, Lord Davies, asked me to comment on individual responsibility. A key focus of the commission was the so-called accountability firewall that allowed senior individuals and banks to evade responsibility for serious failings in their firms. Criminal sanctions were introduced for senior managers who recklessly cause their banks to fail, and who can now face up to seven years in jail. We have significantly strengthened the regulator’s ability to hold senior managers to account through the new senior management certification regime, as we were reminded by the right reverend Prelate. This ensures that all the senior managers and key decision-makers in the firm have statements of responsibilities setting out clearly what they are accountable for, enabling the regulator to hold these individuals personally to account if things go wrong. This is because there is now a statutory duty on senior managers to take reasonable steps to prevent regulatory failings on their watch.

There are strong incentives to take such steps because the penalties for breaching the duty can run to an unlimited fine, and firms must review the fitness and propriety of key staff on an ongoing basis. In short, we have taken the steps to create a culture of accountability, sending a powerful message to both senior and junior staff that good conduct is their own personal responsibility.

The regime is still young—it came into effect for deposit-takers and large investment firms in March—but we are already seeing evidence that firms are taking it very seriously. I will come on to the monitoring in a minute. From 2018 the regime will start to be applied to all other authorised financial services firms and firms where misconduct that can undermine the integrity of the market and let customers down can be caused by failings similar to those identified by the commission in banks.

So much for the stick. The commission’s report also highlighted the importance of getting the carrot right. The actions of individual bankers are also influenced by the system incentives that are in place, and again the linkage between risks and incentives was a theme in the debate. As the right reverend Prelate said, one of the roots of the financial crisis was the system of incentives and rewards that existed within financial institutions that meant that the long-term risks were poorly aligned with the short-term rewards. In responding to the commission’s recommendations for reforming remuneration practice, we have created the toughest regime for any major financial services centre. All firms must be able to claw back bonuses if it subsequently emerges that an individual has not met robust ethical and professional standards expected of them. For those who are high earners, or who take significant risks for the firm, at least 40% of any reward must be deferred over five years at least, and at least half must be paid in shares. The Bank of England has also laid out proposals that will enable bankers’ bonuses to be revoked after they have moved employer in the event of misconduct.

As a result of these reforms we have seen a big increase in deferral periods and payment in instruments, with the industry clearly moving away from the kind of remuneration system that promotes a culture of short-term gains over long-term profitability and stability. However, the legislation regulation can only go so far. We think it is important that businesses take responsibility for reform in their own culture.

The commission recommended the creation of a professional body to promote high professional standards, and we are seeing progress being made. The Banking Standards Board, established in response to the recommendation, now has 32 members ranging from the largest banks and building societies to some of the smallest, and has begun valuable work to support a strong banking culture. For example, it has run a comprehensive culture assessment of banks and building societies in the UK to show them their scores benchmarked against their peers along with an analysis of key issues facing their firm. In response to a recommendation by the Fair and Effective Markets Review, the FICC Markets Standards Board was established to improve conduct in wholesale fixed income, currencies and commodities markets, which the noble Lord, Lord Haskel, mentioned. It has already taken important action, publishing some draft industry standards. Therefore I, with the right reverend Prelate and other noble Lords, look forward to seeing how the work of these bodies progresses.

In the limited time available I will address specific comments and questions from noble Lords. We agree that competition is important and that it is important to have more of it in banking. However, the CMA report shows that there is more to do. We welcome the report and will be responding within the 90-day deadline; I think it reported in August. We agree that it is not the end of the debate and will continue to keep a firm eye on the actions that may be required to create a more competitive market.

The most reverend Primate talked about the lack of new entrants in banking. There has been progress on that. We saw one new retail banking authorisation up to 2010 and we have seen 11 new retail banking authorisations since then; shortly we will see some of those names filtering through. However, of course, as the CMA report showed, there is more to do.

The right reverend Prelate asked to what extent the remuneration should be deferred, saying that it was inadequate. We have gone some way, deferring it to five years, which was an extension from three. For senior managers the deferral period was seven years in response to the recommendation of 10, so we are not that far apart.

The right reverend Prelate and the noble Lord, Lord Davies, asked how we are monitoring this, which is an important question. The regulators will keep a public register that will show suspensions and restrictions of public enforcement action for individual senior managers and the FCA will publish an annual enforcement performance account. Since the SMCR has become effective for banks, the regulator has been monitoring its impact with a view to conducting a review of its effectiveness.

Based on his last two questions, the right reverend Prelate obviously has a sense of humour: he asked me to opine whether the new Prime Minister would effectively tear up the basis on which joint stock companies have been working for several hundred years and to comment on Brexit. Having been in post for about four weeks, I feel comfortable answering those questions. At the moment we will not change the principal duty but of course we will keep in mind that the regulators have a duty to maintain adequate financial resources and to take reasonable care to organise and control the affairs responsibly and effectively with adequate risk-management systems. On Brexit, we are determined that the industry and government work together to ensure that Britain takes full advantage of the opportunities. We want the best deal for financial services in Europe and outside and are aware of the implications of things such as passporting and equivalence; clearly, that will be part of the negotiations going forward. Work goes on to deliver those goals as we speak. Noble Lords will not be surprised to learn that after the Statement yesterday by the Prime Minister and the Leader, I will not go any further than that today.

The noble Lord, Lord Haskel, says that culture is not embedded. Of course the SMCR came into effect for banks only in March this year. Personally, I think a huge amount depends on the message from the top in organisations, but we are setting up the mechanisms and firms are taking them seriously.

Change will take time. The work of the Banking Standards Board and the FICC Market Standards Board will be key to raising standards. The Bank of International Settlements is making significant progress on a global code for foreign exchange, which is due to be published in May 2017. The noble Baroness, Lady Kramer, acknowledged that industry is responding well to the taskforce’s work on vulnerable people and things like that. I will come on to that in a minute.

The noble Baroness was honest enough to admit that she had lost the argument in this House about the reverse burden of proof. This was removed after long discussions involving some members of the banking commission, and I am not going to go over those again. I believe, as does the majority of Parliament, that the duty of responsibility is a better approach for embedding senior accountability across the financial services industry.

The noble Baroness also talked about the bonus gap. We did not support the bonus gap but for now it is in place and we have withdrawn the challenge to the EU. We want to build a system of pay in the global banking system that encourages rather than undermines responsibility.

The noble Baroness also talked about public sector organisations in helping vulnerable consumers. I agree that that is an important point—I will continue for a couple of minutes because I think we have until the hour. The CMA identified key groups of consumers who are not well served by the banking sector. No doubt the FCA will want to consider this alongside its high-cost short-term credit costs, and separately it is undertaking an extremely important piece of work on the needs of vulnerable customers.

The most reverend Primate talked about the leverage ratio set at 3% rather than 4%. One of the recommendations was to take this decision away from the Government, so we have left it to the FPC. That includes powers to set an additional leverage buffer to be applied to the systemically important firms that will supplement the minimum requirements if they so feel. It is an important point that this be left to the FPC.

There are some more questions that I have not spoken fast enough to get to, so I will write to noble Lords to answer the questions that I have not answered today. To summarise, we believe that huge progress has been made but also that industry is stepping up to the challenge. We know that momentum, once generated, must not be lost. That is why it is crucial that this vital industry learns from the mistakes of the past and moves on from them to earn the trust of the public once again.

15:58

Sitting suspended.

Schools: Admissions

Thursday 8th September 2016 Grand Committee

Question for Short Debate

16:00

Asked by

[Lord Lucas]

To ask Her Majesty’s Government what plans they have to support parents in navigating schools’ admissions arrangements.

[Lord Lucas (Con)]

My Lords, parents choose schools, or at least we make great efforts to give them that opportunity. Certainly I believe it is extremely good for parents to have that choice. They should have the chance to find the school that suits their preferences and those of their children and not simply be stuffed into whatever school happens to be closest to them. In my life outside this place as the editor of The Good Schools Guide I spend a great deal of time trying to make that happen. I feel and I think the Government agree that parents having a choice is good for the system as a whole. It is a slow mechanism. Parents change their views about schools and schooling quite slowly, but over time it works to improve the system and it certainly works to improve the relationship between schools and parents. When parents have a choice of school, that makes for a much better day-to-day relationship between parents and schools than was the case before when schools tended to shut parents out because they did not need their permission to exist.

In order to make a choice you need high-quality information that is easily available. It also needs to be accessible in the sense that it must be delivered in a form that enables parents to make sense of it without devoting their lives to doing so. Successive Governments have made great strides in this direction. Performance tables are now hundreds of columns wide and contain a great deal of data. Government websites are becoming ever more informative. The latest edition is just out and is a great improvement on the previous one, and no doubt we will see more of that. Apart from the occasional imposed idiocies—I am thinking of my great friend Nick Gibb and the noble Lord, Lord Knight —of excluding GCSE and similar exams from the data, it is pretty high quality and useful stuff.

The attitude of the department over the years has always been open and constructive. However, the one area where this is not true is information on admissions. Yes, it is available after a fashion. Local authorities publish brochures in physical or PDF form. They are all in different formats and do not by any means contain all the information they are statutorily supposed to show. Moreover, they are generally not set out in a way that encourages comparisons between schools and understanding what you as a person located in a particular place on the map with a particular set of circumstances have access to. As the fragmentation of the system has continued, the quality and availability of this information have declined. I know of only one organisation that makes a serious attempt to collect this data, which is 192.com, and indeed a lot of schools are simply delinquent about providing the data. The information is patchy even though it is the best that is available.

Availability also means accessibility, something that can be used to make decisions. Because the data is available only in PDF form, with no standard format within the PDF, it cannot be integrated in any way that helps parents to make decisions. That creates a complex system where, in somewhere like London, you have to look at several sets of data because people live close to local authority boundaries. You have an immense variety of catchment systems. Distance is measured six different ways, I think, in English catchment systems. There are feeder schools, selection or partial selection and multiple streams of entry.

The result is that the advantaged in society become yet more advantaged. They know enough, they know the people to talk to, they have the understanding to find out what opportunities are there, the schools that have ballots that they may take advantage of or understand how to navigate a banding system to their advantage—which band you want to get your child in to have the best chance of getting into Camden School for Girls, or whatever. The disadvantaged become yet more disadvantaged. Even the advantaged, who are the people I spend most of my life talking to, are full of anxiety at this uncertain, unclear, difficult-to-navigate process.

The Government could do something about it very simply and at very low cost. The data are all there. Every admissions authority knows its admissions criteria. They all follow a coherent structure and the information on how an admissions round has gone is not exactly complicated. If each admissions authority had to contribute those data to a common table and the table was then made open data by the Government, that would be all they had to do. The great gods in my world are the property websites. They command so much traffic that we all have to pay attention to what they want. They want as good a set of catchment information as they can get. If the Government were to make these data open, I and a multiplicity of other people would suddenly find ourselves having to spend large amounts to catch up with the market, and that would be no bad thing.

The cost to the Government would be the creation of a table and no more. The responsibility for the accuracy of the data would remain with those who put the data into the table. The benefits, apart from a general reduction in anxiety, would be a better quality of choices, particularly for the disadvantaged, because it becomes easier to give them something that they can use to understand their options and encourage them to look at schools that are opening their doors to them.

Something that some schools are trying, and which I really encourage the Government to consider instead of grammar schools, is opening some of their admissions to ballot rather than things that are gameable. Schools that do so find that they still get only the advantaged applying because the disadvantaged do not know how it works or even that they have the option.

To have serious information systems out there that made it easier to find out your chances of getting in to which schools would be really helpful in giving the disadvantaged access to excellent schools. Local authorities I have spoken to would also find that helpful. They are getting less and less complete information as to what is happening in admissions in their area because crucial data are withheld by academies. They are just a black box. You send them a list of people who have expressed a preference and back comes a list of people that the academy will accept. There is no indication of what process the academy has gone through; no data are flowing back.

If we are to pick up on the White Paper—I would be very happy if we did—and make local authorities the champions of parents, we have to provide excellent data. To have the data open and available would do nothing but good for the honesty of schools in the application of their admissions criteria, because every disappointed parent could see why they failed and whether that was fair.

16:10

[Lord Knight of Weymouth (Lab)]

My Lords, I congratulate the noble Lord, Lord Lucas, on securing this important debate and on his contribution. I agreed with pretty much everything he had to say, which often happens, but not always. In particular, when I talk about the relationship between parental choice and those with disadvantages, I will echo some of his points.

I start, however, with the new Prime Minister’s commitment to social mobility, made in her first speech outside No. 10. She said that Britain should be,

“a country that works not for a privileged few, but for every one of us”.

I thought that not only would that have been a nice thing to hear a Labour Prime Minister say going into No. 10—they could easily have done so; it sounded a bit like the “for the many not the few” rhetoric used so much by Tony Blair—but that it was a positive sign of her commitment to education.

Parental choice, which is what this debate is about, is designed to improve the quality of education for everyone. The notion is obvious: if you give parents the power of the market in accountability terms, you can improve schools because they can use their choice to go somewhere else—with per-pupil funding, the consequence will be that schools sort themselves out. We know, however, that this does not necessarily work. I represented a rural area in Dorset when I was in the other place, and in the chunk of my constituency in the Purbecks you basically had no choice. You had to try to get your child into the local secondary school because the distance you would have to travel otherwise was, for most parents, prohibitive.

There is, moreover, an assumption that parents will choose on the basis of standards. That is also not always the case. When I was doing the Minister’s job, I recall being particularly frustrated that there was a Catholic school in the east of England that was doing appallingly in examinations but had full rolls. It was oversubscribed largely because of an influx of Catholics from Eastern Europe who wanted to send their kids to the nearest Catholic school. They were exercising their choice but not necessarily in the way the policy intended. So we have to have some caution about parental choice.

The best recent discussion of evidence that the disadvantaged find it harder in an environment of parental choice is in the department’s own analysis, published in January 2014 and authored by Rebecca Allen from the Institute of Education and Simon Burgess and Leigh McKenna from the University of Bristol. They conclude:

“The evidence suggests that what parents look for in a school may vary by social class: middle classes tend to value performance and peer group; lower SES groups may look for accessibility, friendliness of staff and support for those of lower ability. This may lead lower SES groups to select themselves out of high performing schools to avoid possible rejection or failure. Disadvantaged families (by definition) have access to less in the way of resources, which may limit the range of schools which they can consider due to transport costs. More affluent families tend to have access to higher quality information on schools and be more adept at using it. The publication of performance tables and Ofsted reports aims to level the playing field in this regard, but cannot generate informal knowledge of local schools”.

That sums up all of the reasons why support for parents in navigating schools’ admissions arrangements is really important. We have to try and replace that lack of informal knowledge that more advantaged and better networked people have. How many local authorities now offer a choice advice service? As I recall, this was introduced in the Education and Inspections Act 2006, a piece of legislation that I inherited from my predecessor Jacqui Smith when I was a schools Minister. It all passed by in a bit of a haze, but I think that piece of legislation brought it in. It is a very useful service. I had a quick look today at the council websites for the London Borough of Barnet, Nottingham and Redcar and Cleveland. Those authorities clearly have active sites with active advice and are employing people to try to help families in their areas. I would be interested in how much of that sort of service still continues, given local authority cuts and how effective it is.

It is also important to think about how we might develop more peer-to-peer networks so that families from communities that are successfully navigating the complicated picture of different schools’ admissions policies can to some extent be like the expert patients that we have sometimes had in the health service. They are to some extent the expert parents. Can more be done on what the noble Lord, Lord Lucas, said about the use of data? We can then enable private and third-sector smartphone app developers to develop solutions to make it really easy for parents to show their preferences on transport, as well as standards and faith and all the different things that weigh on parents’ minds when they have the anxious experience of deciding which school to choose.

It is really hard for parents to select schools. It makes me want to ask—this is just about relevant to the debate—why we might want to make it easier for schools to select parents. It is really important that we have a tough admissions code. It is really important that we create as level a playing field as possible for parents so that schools are not going out to choose them to make their job easier in the high-stakes accountability that we have in this country.

It is equally important that we do not extend selection. My parents benefited from a grammar school education, as a result of which my father became an accountant. He joined the professions without going to university. My mum was able to join the banking profession. As a result they were able to afford to buy me and my brother the privilege of an independent school education and we were then the first in our family to go to university. At one level, you could say that is a great story of social mobility, but they were the lucky 25% at a time when in the economy there was perhaps a logic to letting 75% go and work in factories or marry those who worked in factories. That logic no longer persists because we now have a very different economy from the one in which the grammar school system was designed. We need to move away from education being used to sift people and being more about an education than a schooling system. I know the Minister is committed to empowering every single child and helping them achieve the best of their talents. Writing off too many through a selective system does not do that.

I also point to the work of Professor John Hattie from the University of Melbourne, who says the data from all the studies around the world show the two things that work are great teaching and what Carol Dweck would call a growth mindset. How do you develop a growth mindset in a bunch of kids who feel that they failed at the age of 11 and no longer have any life chances? No wonder Alan Milburn, the social mobility tsar, calls it “a social mobility disaster” and the chief inspector a load of “tosh and nonsense”.

I cannot help but be diverted to say in the context of this debate that we must not go back to grammar schools. I do not know what sort of information you would give parents in the context of a selective system, especially once their child had failed. If the Minister wants to answer that, I would be most grateful.

16:20

[Baroness Wolf of Dulwich (CB)]

My Lords, I congratulate the noble Lord, Lord Lucas, on securing this debate. I declare my interest as a governor of King’s College London Mathematics School, which is a state-funded school for 16 to 19 year-olds, sponsored by my university and employer, King’s College London. I have therefore had first-hand experience of struggling with the construction of admissions codes that can be clearly understood by potential parents and students.

Like the noble Lord, Lord Knight, I found myself agreeing with just about everything the noble Lord, Lord Lucas, said. However, I would like to say a little about the nature of the information that is provided to parents. The complexity of that information seems to be a problem in and of itself. There is a very real danger—I will duck the grammar school question, which would just make it even more complex—that in responding to perceived problems we will actually end up increasing the complexity of the codes and the fact that parents are faced with more and more information that they cannot really cope with.

Because it is not my own experience, I have been struck by the perception of many people that schools are already trying to manipulate their criteria in such a way that they are in fact selecting parents. For example, John Dunford, who was once general secretary of the Association of School and College Leaders, believes that some schools are making it as opaque as possible for parents in order to maximise the chance that those schools will receive fewer applications from children from poorer homes. As I have said, that is not my personal experience in any of the schools that I have had to deal with, but from this very complexity comes the perception that these rules are very hard to understand and that, when it comes to appeals, it is much easier for middle-class and educated parents to know how to appeal and to do so successfully.

I hope I will be able to persuade the Minister that the answer to this is not more and more complex codes. That would be a tempting and easy route to go down but my own experience, which has been borne out by many other people who have tried to create all-singing, all-dancing, totally transparent codes, is that that is not something that works.

Both noble Lords who have already spoken have alluded to the fact that we are in a system of school choice. Obviously, you get rid of admissions problems if you simply allow the state to decide where every young person should go. Personally I am not in favour of that, but if you have a system in which you have oversubscribed schools, as is very likely, you essentially have two options: either you use a lottery or you have rules for deciding who gets a place in an oversubscribed institution. In fact, we have some experience of what happens with lotteries because Brighton and Hove tried it out. The experience was an educational one, in the sense that it was a field day for the researchers, but it was also rather depressing because the reality was that it did not improve access. That was not the result, partly because they did not go for a complete city-wide lottery, which might have resulted in practically every child in Brighton and Hove having a long journey to school.

The experiment also made it clear that many people do not find lotteries fair. There is a perfectly good case for lotteries not being seen as fair because, first, they do not take account of the strength of preferences and, secondly, they do not make it possible to take account of individual circumstances. That is the crux of my point. The reality is that when you are faced with a problematic set of decisions, which school admissions are, either you can try to have automatic algorithmic rules or you are thrust back on decision-making, discretion and judgment. It is very tempting to feel that bureaucratic rules that you cannot get around, where there is no room for discretion, must be better and fairer. However, the experience of human beings is that all too often this is not the case. You have to choose between the possibility that sometimes people will not exercise their judgment correctly and fairly and the certainty that if you have a system that does not allow you to take account of the unexpected, the problematic and individual circumstances, you will always have situations in which a decision is seen by those affected as unfair and unjustifiable. That is just the way life is, but it has tremendous implications for how we might respond at this point.

Schooling is becoming more and more important; more and more parents take seriously where they want their children to go, therefore the issue of oversubscribed schools will get more rather than less acute. There are good reasons for feeling that it will be easier for the educated and the privileged to deal with this. As I said, I argue that the answer is not more and more rules. In preparing for this debate, it was interesting to look at what the previous schools adjudicator said about the current situation. You get the impression that the whole thing is a catastrophe: at least half the schools in the country are breaking the code.

However, when you look at the details, you find two things. I have tremendous sympathy with one of the problems—and anybody here who is a school governor and lives with this calendar of policies and things that have to go up on the website will sympathise. A large number of problems are caused by schools that do not do what they are directed to do because they did not understand that they needed to do it. I do not mean putting up your admissions criteria—clearly, that is important. As an example, a school might have decided that it will just go on doing what the local authority did; the local authority decides to change it, the school does not have a meeting of governors at which it deliberates and decides, and therefore it has broken the code. That sounds so silly that one does not need to take it seriously, but it is important to understand that many violations of the code are of this sort.

However, there is also the very real complexity issue, which I will concentrate on for the last couple of minutes. The adjudicator points out that in many cases you have complex arrangements and over-subscription criteria that are difficult to understand. It is also the case that just about every sixth form out there is in contravention of the code. That is because once you get to that point, there are complex decisions to be made. It is not like admitting somebody to a completely standardised primary school curriculum: you have to make decisions, not just about the number of students in your school but whether or not you will have viable numbers. Do you end up with a set of students and end up abolishing certain key A-levels because you were not allowed to take any account of whether or not the students you accepted would create a viable group, which might be the only group in that city which was offering that A-level? In the current situation, unless you are a special school, like a mathematics school, you do not have any ability to balance out these very real dilemmas. I argue that when you have a code that everybody breaks, which is the case for the sixth forms, maybe the problem is the code, not the sixth forms. When everybody breaks something, maybe there is a real problem.

There have been a number of occasions in the past—for example, national vocational qualifications—when Governments have believed that you could create a set of rules so clear that anybody, trained expert or not, could come along and say, “Okay, this one has passed—that one has not; this one goes in this box—that one goes in that box”. The reality of experience in every case is that we cannot foresee all the circumstances that occur—we cannot foresee the future—therefore in any complex situation we have to allow some room, or some slack, for human discretion and judgment.

In conclusion, I hope that the Minister will do a great deal to support parents. However, I urge him in doing so to look at procedures, access to help and, above all, simplifying rather than further elaborating the current code and requirements.

16:29

[The Lord Bishop of St Albans]

My Lords, I am also grateful to the noble Lord, Lord Lucas, for bringing this Question to the House for debate. The right reverend Prelate the Bishop of Ely normally takes the lead on these matters but he is unable to be here today, so I want to make just a few comments. The subject of admissions is a complex one. As a child’s education is so vital and important, not surprisingly it often leads to impassioned responses. That can be true of the subject of admission to church schools, on which I know that several Members of this House have expressed opinions in the past. Before I turn directly to the topic of faith-based admissions, which your Lordships will not be surprised I wish to address, I would like briefly to set out some points by way of context.

It is important to recognise the role that Church of England schools play in the lives of their families and the wider community. Around 1 million children across the UK are educated in Church of England schools that reflect the diversity of their local areas. In many rural areas Church of England schools form an integral part of a local rural community. Indeed, I saw that yesterday when making a visit to one of our schools in the diocese in Bedfordshire. It is also important to recognise that many parents want and positively choose for their children the vision and ethos that underpin our schools. The Church of England’s vision for education is that every child should have fullness of life and enjoy academic success as well as moral, spiritual and personal development. Sometimes, that is missed. We hear complaints from people who object to Church of England schools, not praise from those who value them.

By way of context, I hope that the House understands that the majority of Church of England schools actually have no faith-based admissions criteria. Church of England schools exist to serve the whole community, not a select faith group. The make-up of the student body tends to be representative of the wider community. Church of England schools have as many pupils on free school meals as the national average, for example, while schools operating in areas with a high population of a religious minority tend to reflect that. A substantial number of Church of England schools have more than 80% intake from the Muslim community. Where faith-based admissions criteria exist, they apply only when the school is oversubscribed and they tend to feature only in areas where alternative provision already exists.

Of course some people have no objection to the principle of schools that embody a Christian ethos but strongly object to the idea of faith-based admissions criteria. They argue that such schools increase social division and tend to benefit the middle classes. I probably do not need to tell the House that those criticisms exist within the Church of England as well as without. The reality is that there is no silver bullet when it comes to achieving a fair admissions policy. Research shows that parents who are the most affluent and best connected stand the best chance of getting through the admissions policy, whatever is put in place. Research also shows that those parents are much more likely simply to have bought a house in their desired catchment than to attend church, for example, in order to get their child into their desired school. Where faith-based admissions exist, at least they allow students to attend from beyond the immediate and potentially sometimes more affluent catchment area.

On the issue at hand, helping people to navigate school admissions arrangements, I am grateful for many of the suggestions that have been made, with interesting points not least from the noble Lord, Lord Lucas. It is clear that some schools, including Church of England schools, have in the past failed in their duty to provide clear admissions information to parents. The report from the British Humanist Society and the Fair Admissions Campaign called An Unholy Mess identified technical and minor errors in how a number of Church of England schools administered their admissions policy. Examples of errors included forgetting to name the feeder school or failing to have an effective tie-breaker between two applicants living equidistant from the school. It is worth pointing out that none of the errors identified by the BHA in Church of England schools were specific to the issue of faith-based admissions. It is clear that similar areas would be found in any school which acts as its own admissions authority, whether religious or not. However, it is clear from the research that many schools find the process of admissions difficult to administer and this will inevitably make it harder for parents. I believe that the answer is not to attack schools for their failures but to ask how they can be better supported. A rapidly changing landscape of education with its greater focus on autonomy and independence for schools in the academisation process will only increase the challenges for schools in providing clear admissions criteria and advice.

With an increasing number of schools becoming their own admissions authority for the first time, it is more likely that errors could be made. With this in mind, the School Admissions Code, which is available to parents, would benefit from revision and clarification to ensure that both schools and parents are confident in navigating admissions arrangements. It is also important that the Office of the Schools Adjudicator is strengthened and well equipped to prioritise admission complaints that have a basis in legality rather than having to waste its time on complaints that arise only from ideological objections to particular admissions criteria.

As I say, there is no silver bullet for making admissions fair and open to all, but I hope that the Minister agrees that the future lies in all stakeholders working together to help schools to improve their administrative processes so that parents, wanting the very best for their children, are better equipped to navigate what can be a difficult, confusing and sometimes puzzling system.

16:35

[Lord Puttnam (Lab)]

My Lords, I thank the Whips’ Office for allowing me to speak in the gap, and I promise that I will not delay the Minister for very long at all. I am also grateful to the noble Lord, Lord Lucas, for raising this issue. It is interesting to note that over the almost 20 years that I have been a Member of your Lordships’ House, I typically follow the noble Lord in the speakers’ list for debates only to find that everything I wanted to say has already been said by him—sometimes to the consternation of my own Benches. We have been ad idem most of the time for many years.

The wonderful thing about being in this House is that you are able to look back at your own experiences and try to offer them for the future. I should like briefly to give the Minister a short, personal narrative. The day King George VI died, 6 February 1952, was the most important day of my life. It was the day I took the 11-plus exam. I was 10 years old, and indeed most children sat the exam at that age. I have never understood the extraordinary misnomer of 11-plus. I passed, so I got a cap and a blazer and, unlike almost all the other children at my primary school in north London, I went to a grammar school. I never saw my friends from primary school again. An extraordinary wall came down, with them on one side of it and me on the other, and I have never really fully recovered from that.

I am convinced that the only selection component involved in my passing the exam was the fact that my mother took herself off to Foyles bookshop on Charing Cross Road and bought a batch of old exam papers, which I was then required to go through. I vividly remember sitting in the exam room that day and seeing the absolute horror on the faces of the kids around me as the exam papers were turned over. At least I was familiar with what I was about to do.

I put it to the Minister that never can we go back to a system where life’s chances are determined irrevocably at the age of 10. I am here today because of that one day in 1952. As he was reminded yesterday in Oral Questions, the 1944 Education Act had two routes. It offered the opportunity for children to retake the 11-plus exam at the age of 13 or the opportunity to go to a technical college. There were no technical colleges and I think that only around half a dozen were ever built. I am sure that the statistics are held by the department, but I never knew a child to arrive at my grammar school having retaken and passed the 11-plus at 13 years old; it just did not happen. Effectively, my entire generation’s life chances were determined at the age of 10 or 11.

All I would ask the Minister to do is to remember this story. I have the privilege of sitting in the House of Lords because my mum got on the Tube and bought a batch of old exam papers in Foyles. That opportunity was not afforded to the other 30 children in my class.

16:39

[Lord Watson of Invergowrie (Lab)]

My Lords, in the week in which many schools in England have returned from their summer holidays, it is appropriate that your Lordships’ House has been given the opportunity to debate the important issue of admissions arrangements. I commend the noble Lord, Lord Lucas, on achieving that, and welcome the fact that we are returning to the subject following the QSD in my name on the specific issue of the admissions code, which the House considered in May. The admissions code underscores everything that has been said in the debate so far because the “schools’ admissions arrangements” referred to in the title centre around the code.

I note what the right reverend Prelate the Bishop of St Albans said about schools themselves needing some assistance with the code, but parents also need help interpreting the code, and that is the nub of the problem. Every parent, and I am one, knows of the tension associated with doing their best to ensure that their children secure a place at the school of the parents’ choice. Around 80% are successful in that venture, which is commendable. However, when they are not, they must, at the very least, have the knowledge that they were competing on a level playing field.

The question of school admissions is very much a hot topic, with the Government—whether wittingly or unwittingly—having reintroduced the subject of grammar schools and the selection that that involves. The debate on grammar schools is for another day—in the not too distant future, perhaps, if rumours of an impending Green Paper are to be believed. However, as we just heard vividly from my noble friend Lord Puttnam, a major and long-established problem with the 11-plus exam, which is used to decide who is admitted to a grammar school, is that well-off parents pay for coaching or to get the exam papers in advance. That is a very sensible tactic, but not one that is available to everyone, as not everyone is familiar with Foyles, far less with the Charing Cross Road. It is an important point that some children have additional assistance to get into a grammar school. That is not a level playing field.

Last evening, the Prime Minister commented to Tory MPs that she already believed there was selection in state schools, caused by the ability of some parents to move to expensive housing in the catchment areas of high-performing schools. I very much agree with her. But those who claim to live at advantageous addresses are not always genuine in doing so and the admissions code should be a means of ensuring that that is not often the case.

The current system is open to abuse, and that is where the admissions code comes in—at least, it ought to. It is not acceptable simply to say that we cannot criticise parents for doing what they believe is in the best interests of their child. Actually, we can and we should, if, in so doing so, parents are wrongly or unfairly depriving another child of a place that he or she is entitled to.

All state-funded schools in England must comply with the School Admissions Code and the School Admission Appeals Code, and the statutory legislation that underpins them. Objections to admissions criteria and procedures can currently be submitted by anyone to the Office of the Schools Adjudicator, whose decisions are binding. However, as noble Lords will be aware, for some months now, the Government have been putting forward plans to restrict those who can object to breaches of the code.

The right reverend Prelate the Bishop of St Albans has already referred to the Fair Admissions Campaign and the British Humanist Association survey that was carried out. It demonstrated that there are many schools with intakes more favourable than would be expected given their location, and that these are often faith schools or other schools that control their own admissions. The two organisations analysed the admissions policies of a sample of faith schools and found that virtually all of them broke the admissions code in one way or another. I accept what the right reverend Prelate said: that in many case these were minor breaches. However, they were breaches none the less, and the adjudicator upheld 87% of the objections put to her in 48 schools. People have said that that is only 48 schools, but to repeat a remark I made in our debate in the Chamber in May, we are told that a sample of 1,000 can give the opinions of 60 million. Therefore, 48 schools is a valid sample, and a lot of important information was gleaned from that survey. The title of this debate is particularly apposite in the light of those findings.

The question is this: how do the Government provide support to parents seeking to navigate their way through what can be shark-infested waters? The admissions system is becoming increasingly complicated and difficult for parents to find their way through, favouring as it does those with the skills and the time needed to deal with it.

In the debate in May, I questioned the noble Baroness, Lady Evans—whatever became of her?—as to what the DfE had done to make sure that the schools identified in the survey as having breached the code had changed the way that they operate. The noble Baroness did not, at that time, give an answer, so I hope that the Minister may be able to now—perhaps the civil servants behind him can give him the information. Those schools surely cannot carry on as they were prior to that survey.

The issues identified by the survey are only part of the story, because there are a considerable number of devices used by schools that have been found to be acceptable under the code but which enable schools to gain a more favoured intake. The level of segregation of pupils by faith and, less often, by ethnicity and socioeconomic position is dangerously high. It is a significant threat to social cohesion, which of course all schools have a duty to promote.

I was quite taken aback by the powerful contribution by the noble Baroness, Lady Wolf. I knew that there were problems in the way the code does or perhaps does not operate, but I was unaware of the extent of it. I certainly knew nothing about the sixth-form aspect of it. Perhaps I might arrange to meet her at some time to discuss that in more detail, because it sounds like a serious problem.

In opening the debate, the noble Lord, Lord Lucas, said that parents should choose schools. Surely that is the bottom line; it should be for parents to choose the school that their children go to, not the school that chooses the children. When the Schools Minister led a revision of the code some years ago, it was driven by his wish to allow anyone to object to malpractice. At that time, there was also a Select Committee inquiry. It received evidence from the Sutton Trust, which said,

“all the evidence suggests that those schools that are autonomous or have autonomous admissions are those that are most socially selective when compared to their localities”.

Yet, regrettably, the Government are proposing changes to the code that will reduce the number of complaints. They are supposedly about “unclogging the system”. Neither I nor, I suspect, anyone else has any wish to clog the system; I certainly would not want to see schools overburdened. However, the solution for any school that feels it is being or might be burdened by complaints about code violations is quite simple: stick to the admissions code. If they do that, they will have few if any additional administrative demands placed upon them.

Slightly worryingly, the Secretary of State’s rationale at the time when the changes were put forward was:

“So that parents can be confident that the school admission process is working for them”.

I fear that is little more than a coded message to those who are able to benefit from the present arrangements. Perhaps the Minister can explain how requiring schools to adhere to the rules in some way prevents school admissions codes from “working for them”. Taking issues to the adjudicator is not about changing the rules; it is about enforcing them—unless of course “working for them” means benefiting from the current situation when rules are all too often breached.

There is another issue here: no one is involved in enforcing or even monitoring the code. I asked the noble Baroness, Lady Evans, in May whether the Government would bring forward a means of ensuring that the code was at the very least monitored. She did not give me an answer but said that the question was being looked at. Is there any update on that? The noble Baroness said,

“we are looking at whether we need to do more around compliance”.—[Official Report, 11/5/16; col. 1786.]

I hope there may be something to say. The right reverend Prelate the Bishop of St Albans said that one of the options was to strengthen the role of the schools adjudicator. If she was given more staff, monitoring might be an option.

I contend it is essential that organisations concerned about the manner in which the code is being adhered to should retain the right to raise complaints. If it becomes widely accepted among parents that there is in effect a two-tier system on admissions, cynicism will set in. For parents to come to believe that those with sharper elbows will crowd them out would be a gross distortion of what should be a fair and transparent system. It would lead to greater inequality and social disadvantage, which I am confident the Minister will agree must not be allowed to happen. I hope he will set out how he proposes to ensure that that it is not.

16:48

[The Parliamentary Under-Secretary of State, Department for Education (Lord Nash) (Con)]

My Lords, I am extremely pleased to answer this Question for Short Debate, which, as the noble Lord, Lord Watson, said, is particularly timely as children across the country take up their new school places this week. I start by making absolutely clear that our priority is to ensure that the admissions system continues to fully support parents. Choosing a school for their child is one of the most important decisions a parent makes and we want to ensure they can easily understand how to navigate the admissions system and obtain a school place. I am particularly grateful to my noble friend Lord Lucas for bringing this debate today as I have recently taken over responsibility for admissions—it is extremely prescient of him to have organised such a helpful teach-in for me. I am also grateful to the noble Lord, Lord Knight, for his comments about the Prime Minister’s commitment to social mobility and for bringing his valuable experience to this debate.

Let me reassure noble Lords that right across the admissions system there are good processes in place to support parents in applying for and obtaining a school place. Indeed, it is fundamental to the way the system is designed. All schools, including academies, are bound by the School Admissions Code and other admissions law. The code makes it clear that when drawing up admission arrangements the criteria should be fair, clear and objective. It stipulates that parents should be able to look at a set of arrangements and easily understand on what basis school places will be allocated. This will help parents consider whether their child has a good chance of obtaining a place. The code contains safeguards to ensure that the process of obtaining a place remains fair and transparent. For example, schools are prohibited from prioritising applicants who have named the school as their first preference to ensure parents are not restricted in their choice of school.

The process by which parents apply for places is also designed to make it as easy as possible for them to navigate. Although parents applying in the normal admissions round can express a preference for at least three schools, they only have to submit one application form to a single deadline, directly to their local authority. We require local authorities to then work with all the schools for which a parent has expressed a preference. They then give all parents in their area a single offer of a place at the parent’s highest preference school, which has a place available for their child. We also require this offer to be made to all parents on a national offer day—1 March for secondary schools and 16 April for primary schools—so there is clarity and consistency.

To support parents through the application process, each year local authorities are, as my noble friend Lord Lucas mentioned, required to publish a prospectus on admissions which contains information about how parents can apply for a school place in their area. It also includes the admission arrangements for all mainstream state schools in the area, including academies. Thereafter, local authorities continue to be a valuable champion for local parents and provide them with advice, assistance and support throughout the whole admissions process.

Having read all that from my brief, I was very interested to hear what my noble friend Lord Lucas had to say about data, both as regards their accessibility and usability. I found many of the issues he raised quite compelling and I was put in mind of a talk given by somebody from New York a couple of years ago about the New York iZone, which I think noble Lords will be interested to investigate. He said that when he took over responsibility for schools in New York the admissions requirements were so complicated that the average parent could not possibly work it out, and that the government website, as sometimes can happen, was rather difficult to fathom. They put the service out to tender to a whole lot of companies—no doubt run by young tech wizards—and within a few weeks had a number of apps which basically cracked the problem.

I was looking at this and I would like to read what it says on their website, as some of it might feel familiar. It says that research found that participants struggled to find personal relevance amidst the superabundance of admissions deadlines and data—I am sure that sounds familiar. Proceeding on the premise of certain understandings about how people experience choice-making and how design can influence human experience—for example, that people do not just need data to make choices but ways of evaluating options and relating those options to their own lived experiences —iZone led six software developers through the first school choice design challenge to create prototypes of new digital tools to help students and families identify schools that fitted their interests and qualifications, enhancing the school admissions process. Essentially, they designed ways to actively support more engagement and meaning during the evaluation stage, which led to more informed choices, which produced better outcomes.

I thought that was very interesting and I can assure noble Lords that we will investigate the iZone experience in some detail. I would also be delighted to continue discussions with my noble friend Lord Lucas to see what we can learn from that and other projects to modernise the admissions process and lessen its complexity.

The noble Lord, Lord Knight, asked about advice services. This is apparently not a compulsory requirement, although the school admissions code makes it clear that local authorities must provide advice and assistance to parents when they are deciding which schools to apply for. However—the noble Lord will be familiar with this phrase—the number of local authorities offering choice advice services is not centrally held information. I can assure him that I will investigate the issue further.

The noble Lord also mentioned Carol Dweck’s growth mindset, which I am a great fan of. I strongly recommend that he visits the excellent free school in Bradford, Trinity Academy, which practices this approach very strongly. I was struck by what the pupils had to say about their growth mindsets and I would be very happy to make that introduction.

I do not think at this stage, having been on my feet twice in the past 26 hours in relation to the matter of grammars, that there is anything more I particularly want to say on the subject, except in relation to the very moving points made by the noble Lord, Lord Puttnam. We have no intention of turning the clock back and will consider all the issues in relation to any increase in selection very carefully.

On a point made by the noble Lord, Lord Watson, I repeat what I said in the House yesterday: we are working with the Grammar School Heads Association to develop tests that it will be much harder to coach children for.

The noble Baroness, Lady Wolf, made some very powerful points. I pay tribute to King’s Maths School—which I have visited—which is producing a generation of new mathematicians. It is a very impressive establishment. I assure her that I share her suspicion of complexity and her desire for simplicity, and I was extremely interested in what she had to say about sixth form admissions. I will look at that very carefully in my new brief.

The right reverend Prelate the Bishop of St Albans mentioned the vital role that Church schools play in this country. I pay tribute not only to that but to the important role they play in community cohesion. Some years ago, the University of York carried out a very persuasive study to show that, in fact, Church schools were the most inclusive in the country.

The noble Lord, Lord Watson, requested various information. As I said, I have just taken over responsibility for this brief but I will look at his points carefully. We need to get it into context, though. Last year, the adjudicator received 218 objections, which is just 1% of schools.

The system we have in place to support parents ensures that the vast majority of children attend a school of their parents’ choice and 95% get one of their top three choices. However, as we said recently, many parents still cannot get their kids into a good school close to them, and that is partly what any reforms we come forward with would aim to improve.

In the last few years, we have made great strides in creating new places; something that I am also responsible for now. We have created 600,000 new places in the last five years and have funds in place to create another 600,000 over the next five years. We will continue to work hard to ensure that every child has access to a good education so that they can go as far as their talents and hard work can take them.

I thank all noble Lords again for their contributions to this debate.

16:58

Sitting suspended.

Legislation

Thursday 8th September 2016 Grand Committee

Question for Short Debate

17:00

Asked by

[Lord Framlingham]

To ask Her Majesty’s Government whether they plan to consider the proposal that, for a period of time, all government departments should cease devising new legislation and concentrate on sound administration.

[Lord Framlingham (Con)]

My Lords, I am greatly privileged to have obtained this short debate. In the time allowed to me I wish to explore a broad yet specific matter of principle rather than an individual problem. I am conscious that the attendance today is rather small but I am sure that the wisdom is great. I suspect that I will learn rather more than I impart today.

I want to talk about the unhealthy balance that has arisen over the years between the quantity of legislation produced and sound government administration. In particular, I want us to acknowledge and accept that while some legislation has succeeded in its objective, much has failed badly and, in some cases, done more harm than good. I am certain we can all think of our own examples.

There can be no doubt that the volume of ill-considered legislation has grown over the years. The average length of Bills introduced to Parliament seems significantly greater than in previous decades. Multi-purpose Bills, sometimes called Christmas tree Bills, are more common than they were. Daniel Greenberg, a former parliamentary counsel, argued in a report earlier this year:

“The length of new Bills and the number of clauses that they include is becoming so great that Parliament is unable to properly scrutinise them”.

He calculated that while the number of Acts passed by Governments had stayed “approximately the same” over the last 50 years, the average number of clauses in them has doubled.

The Cabinet Office Guide to Making Legislation, prepared by the Secretariat to the Parliamentary Business and Legislation Committee of Cabinet, says:

“The committee will look ‘favourably’ on bills that have been published in draft for consultation and pre-legislative scrutiny although, if a bill is ‘politically important’, then it may be given a slot in the programme ‘before many of the details have been fully worked out’”.

Green Papers and White Papers allowing the detailed, progressive and lengthy study of a proposed Bill are now rarely produced. Some pre-legislative scrutiny of Bills is undertaken, but not always and not necessarily comprehensively. Because the old, once rare, guillotine system in the House of Commons has been permanently transformed into the routine programming of all Bills, few Bills of any size get the scrutiny in Standing Committee that all their clauses and schedules warrant. As a result, a regular procession of ill-digested Bills makes its way to your Lordships’ House, where we carry out our rightful revising role with as much patience and competence as time and the sheer volume of legislation will allow. In the last Session, while we were dealing with the Housing and Planning Bill, several Peers described it as the worst-prepared Bill they had ever seen in their lives.

Manifestos are often unrealistic. They are frequently designed to be eye-catching and dramatic and many government departments seem to feel obliged to bid for a slot for a Bill. As a result, the House of Lords is continually being set unrealistic and frustrating volumes of revising to undertake, and too often this produces poorer, less effective legislation, with the people affected by it badly served and disillusioned.

This has become routine and accepted although, of course, it is completely unacceptable. It must change. It needs to be looked at through a new pair of eyes at the highest level. Theresa May, our new Prime Minister, has already shown by her words and deeds her willingness to look afresh at some of our seemingly intractable problems. I sincerely hope she will see action on this issue as not only necessary in its own right but also likely to lead the whole government machine in a much more organised and competent direction.

As I said earlier, we are all aware of the effect of legislation in our national life, for good or ill—capital punishment, seat belts, Sunday trading, foxhunting, dangerous dogs. I take great pride in the Private Member’s Bill I successfully took through the House of Commons which had the world-shaking effect of extending the coverage of a gun licence from three to five years. All these Bills had specific and limited objectives. They were not, as has all too often happened in recent years, attempts to micromanage by legislation.

Let us deal with just health and education. Over the last 50 years, there have been 95 Acts of Parliament to do with the health service. In that time, we have banished the traditional matron, who was the backbone of every hospital in the country, totally altered nurse training and completely reorganised the entire health service, and now what a desperate mess we are in. In the same period, we passed 52 Acts relating to education. During this time, educational standards have fallen. Most grammar schools have disappeared. Teacher training has been completely altered and we even stopped teaching children to read in the time-honoured way of phonetics: “The cat sat on the mat”. And we wonder why children leave school unable to read. Recently, a professor responsible for these matters said that social mobility in this country is at its lowest level for 40 years, with all the potential problems that implies.

These are huge issues in massive departments, affecting the lives of millions of people every day. We have got much of it badly wrong and done much damage to our national fabric. We need to get it right—if not impossibly perfect, at least much, much better. I am obviously not suggesting, as the title of this debate suggests, that there should be no legislation at all—although I must say I find that prospect extremely tempting—just that it should not be the first tool we reach for. It is a step we should take reluctantly when it has become essential, not eagerly as a matter of policy. We should then take it only after the deepest and most careful consideration, in the conviction that no other routes are available.

Legislation will never produce caring and competent nurses, thoughtful and inspiring teachers, or aspiring pupils and parents. Personal desire, example and careful instruction are surely the best way to achieve these aims. Having created sound systems in our schools and hospitals, we should, while keeping the closest possible eye on standards, trust those responsible to get on with the job, not seek to micromanage through constant legislative tinkering. Gentle, thoughtful improvement is often much more sensible and effective than drastic and dramatic change, and crucially avoids the inevitable upheaval that is always expensive, so upsets people and systems, and often causes more problems than it solves.

As a country, we face so many difficult issues. It is the task of Parliament, not just the Government, to try to resolve them. Your Lordships’ House, with all its accumulated experience, is uniquely placed to help, but the list is a long one: education and, in particular, the serious problems with the NHS are far from resolved; from immigration to population, from energy supplies to an ageing population, and from Hinkley Point to Heathrow Airport and on to HS2. We have to deal with diesel pollution, and, in a rapidly shirking world, we must decide whether we will continue to allow foreign investors to take control of our strategic industries. All this is on top of the day-to-day issues for the economy, unemployment, welfare and so on.

What is important in all these issues is not to rush to legislate, not even to feel the need to make immediate decisions, but to discuss and debate in depth and at length to come to the right decision and carry the country with us. At the same time, every government department should ensure that it is working as well as it can. Any serious shortcomings require the effort and time-consuming task of legislation, rather than internal, departmental management correction.

In conclusion, I am trying to explain my belief in the need for a different approach to legislation—not too radical, but different; a shift that would see less major legislation, all of it better thought-through and all of it, with no exceptions, subjected to pre-legislative scrutiny. Much more time would be spent, particularly in your Lordships’ House, on debating honestly and at length the major issues of the day, with the time we spend on revising legislation being much more proportionate and constructive. I believe this step change in legislative pressure will be of huge benefit to Parliament as a whole, the House of Lords in particular, and the people we serve.

17:10

[Lord Beith (LD)]

My Lords, the noble Lord, Lord Framlingham, has done us a great service—I would expect no less from a distinguished former Deputy Speaker of the House of Commons—by focusing attention on legislation and the alternative, which is getting on with the job of running the country. In that respect, I am delighted to be debating once again with my old friend the noble Lord, Lord Young of Cookham, who has never left office without buying a return ticket. No Government in which his party is involved can really cope without him, and we well understand why. We have worked together in the past, including during the coalition, and I hope he will agree that one of the benefits of the coalition proved to be a degree of extra restraint in some areas of legislation. If you have to get two parties to agree to proceed with a Bill, you have another hurdle over which to climb.

The noble Lord, Lord Framlingham, referred to the size and complexity of the statute book. As chairman of the Justice Committee, I visited the National Archives. It is a wonderful place in that you see all the records that you expect to see, but tucked away in the corner is a small group of people whom I did not know about until I went there. Their job is to know what the law actually is because they are the people who assemble the statutes, statutory instruments, commencement orders and modifying orders. They are probably the only people in the country who really know what the law is and which bits of it are in force at any one time, because it has become so complex.

In some respects we have improved legislative scrutiny to try to prevent some of these problems, but for much of the time it is like trying to climb up a down escalator. Pre-legislative scrutiny by Parliament has brought about a real improvement. Public Bill Committees in the Commons have also offered some significant advantages, and then there is the essential work that this House does on so much legislation.

As a Liberal Democrat, I believe that some degree of restraint is needed when you decide to bring in new laws. By nature, law tends to restrict the individual and therefore you should think twice and have a strong justification for it. You should not bring in laws because you have to be seen to do something. We are entering that rather dangerous season of the party conferences, when Ministers, in particular, feel that they have to throw some meat to the assembled ranks. Out of that come commitments to bring in legislation.

Nor should you legislate as a signal. When I hear laws described as a signal that things have to change, I know that the content of the legislation will probably not be much use at all. It is really just another way of saying that we have to be seen to do something. That is a particular problem in the area of criminal law, where we have so much criminal justice legislation. I will not even bother to go into the statistics—we all know them. Much of that legislation simply makes the task of those in the criminal justice system more difficult by increasing the number of mandatory sentences, for example.

However, I also believe that law is needed for some purposes. It is needed to establish rights and to protect citizens from violence, fraud, abuse of power and environmental or health damage. It is also how we define the structure of governance—for example, how we might reform the House of Lords, which the coalition proved unable to do. That requires changes in the law. Taxation also requires law. It is better to be regulated by law than by the arbitrary use of executive power. There are some countries that delight in not having many laws because the Executive have an enormous capacity to rule by decree, but that is not what we want. Laws are also required to provide a framework for commerce and trade—in the sense of not just commercial companies but private individuals. At the moment I am one of those pressing for the Government to do what they say they want to do when the legislative opportunity arises and provide legislation on the guardianship of the property of missing persons. These detailed matters are often dealt with in Private Members’ Bills, which are important.

However, legislation can be a distraction from vital things such as enforcement by departments, resourcing in departments and the delivery and provision of services—the things that departments really should get on with. There is an elephant in the room, though, and departments will have to stop devising new laws pretty soon. When I listened to the Queen’s Speech, I thought about what version might have been written if the referendum had already been held and gone the way it eventually went. It would go roughly: “My Government will be wholly occupied with bringing forward legislation to implement our exit from the European Union, and no other measures will be laid before you”. That is not too far from the reality, because there will be a gargantuan programme of legislative change, including repeal of the 1972 Act and replacement of the vast range of EU laws which apply directly in this country. If there are things that have to be temporarily retained, there will need to be measures relating to subsequent changes to EU law in areas on which we continue to rely on what was previously EU law.

It is a massive programme, and anyone who wants to know a bit more about it only needs to look at the report from the European Union Committee on withdrawing from the European Union, which records Sir David Edward as saying that the Government,

“would need to enact in law everything that it wanted to keep in law, which is currently either the consequence of the direct effect of the EU Treaties or, for example, the product of a Directive”.

It really is a massive legislative task. Departments are already finding that their civil servants are being borrowed by the Department for Exiting the European Union, whose Ministers now proudly proclaim that they are increasing the size of their bureaucracy all the time, which is not what Conservative Ministers are supposed to say. Not only that, but their time and energy within the department will be involved in reviewing the whole corpus of European law which affects them. It may please the noble Lord, Lord Framlingham, that at least there will be some restraint on other laws being brought forward, but it is a bigger block in our system even than that.

What can we do to improve the laws that we do pass? Before we start, we should ask: is there anything this Bill can do that cannot be done at least as well under existing law? That is the primary question we should always ask. Then, is the Bill fit for purpose? Has it been discussed in detail with those whom it will affect and their elected representatives in Parliament? Has it been through pre-legislative scrutiny and other processes that allow it to be examined by people who really know what its impact would be? Has previous law in this area had adequate post-legislative scrutiny and are there any lessons to be learned from that? Has the proposed new law been tested for unintended impact and legislative clarity?

That, of course, is an argument for the quite often canvassed idea of a legislative standards committee, which is not about the substance of law but about whether the law is framed in such a way that it can achieve its intended purpose. When I think about that proposal, I cast my mind back to the late Lord Renton—Sir David Renton—and the committee that I served on with him years ago, which looked at trying to improve the standard and quality of legislation. We have to apply tests like that and recognise that sometimes in this country we rush to legislation when really Governments should simply be doing their job properly.

17:18

[Lord Norton of Louth (Con)]

My Lords, it is a pleasure to follow the noble Lord, Lord Beith, who started his professional life as a politics lecturer before being deflected by other interests. I congratulate my noble friend Lord Framlingham on raising this important question. I appreciate the sentiment that underpins the question and want to reinforce some of the points advanced by my noble friend and indeed touched upon by the noble Lord, Lord Beith.

We certainly need sound administration, but also good legislation. I have some sympathy for the position of Governments, as they are in a situation that they cannot win. If a Government bring forward a full legislative programme for a session, they are criticised for legislating too much and we hear calls for less legislation. If they fail to produce a full legislative programme, they are accused of running out of steam. We have accusations of a “zombie Parliament”, with parliamentarians filling time by debating issues instead of being able to get to grips with legislative measures.

We could well do with less legislation, but better legislation. Governments are too prone to legislate in haste, usually on the basis that “something must be done”, responding to a moral panic by seeking not to educate but to placate. Too much rests on hope or beliefs and not enough on evidence.

I want to follow up on my noble friend’s speech and identify some ways in which we can move forwards to achieving an improvement in the quality of legislation. As has been mentioned, Parliament clearly has a role to play in ensuring effective scrutiny. I too welcome the use of pre-legislative scrutiny. It is a means of ensuring that a Bill is tested prior to the Government becoming too committed to its provisions while allowing for engagement with those outside Parliament who understand or are affected by the measure.

There are problems in terms of the timeframe for such scrutiny and in the fact that pre-legislative scrutiny is not the norm for Bills. When the Constitution Committee undertook its review Parliament and the Legislative Process in 2004, it was envisaged by government that it would become the standard practice. Since then, the number of Bills subject to pre-legislative scrutiny has fluctuated from Session to Session. There was a welcome increase in the last Parliament; I know that is something in which my noble friend Lord Young of Cookham can rightfully take some pride. Indeed, in replying to this debate perhaps my noble friend could give some indication of the Government’s plans for, and commitment to the principle of, pre-legislative scrutiny.

It is an extremely positive development that your Lordships’ House now has a role to play in post-legislative scrutiny. Post-legislative review by departments has been the norm since 2008. I very much welcome that, as it derives from the recommendation of the Constitution Committee’s 2004 report. However, no mechanism was set in place for post-legislative scrutiny by either House. That has changed, with at least one ad hoc committee being appointed in this House each Session to review one or more Acts covering a subject. That scrutiny has proved productive and we should seek to build on it. Post-legislative scrutiny can improve the quality of legislation, in that if a department knows that a measure will be subject to it, it is more likely to focus on ensuring that the provisions are crafted to deliver what is expected of the measure. In short, the measure of success will shift from being Royal Assent to whether it has achieved its purpose. Stipulating how one will know that a measure has been successful will also help to concentrate minds, providing a clear basis for assessment when an Act is scrutinised.

Like the noble Lord, Lord Beith, I am persuaded that there is a case for a legislative standards committee to ensure that Bills meet clear standards when introduced. The Leader’s Group on Working Practices recommended in 2011 that such a committee be created. In 2013, the Commons Political and Constitutional Reform Committee identified various standards that could be applied, including that a policy should be well tested, for example through the use of internal and external consultation. I know my noble friend Lord Young will argue that there is in effect such a committee within government: the Parliamentary Business and Legislation Committee, where Bills are checked against certain standards before introduction. However, I fear that that argument is not persuasive in light of some of the Bills that have been brought forward in recent years.

There is much that both Houses can do to ensure that legislation is improved but the fundamental challenge lies with government. Parties tend to out-promise one another at elections and believe that problems can be solved by legislating them away. We are in danger of moving towards measures that impose obligations that are essentially aspirational—“By such and such a date, sin must be eradicated”—and without any attendant penalties. They do not keep to the Cabinet Office’s own guidelines, a point that my noble friend touched upon. They seek to take action but in a way that is not appropriate to legislative propositions. Like my noble friend, I shall quote the Cabinet Office Guide to Making Legislation. It states at paragraph 10.9:

“It can sometimes be tempting to ask the drafter to prepare a provision that is not intended to change the law but is instead designed to serve some political purpose or to explain or emphasise an existing law. However, non-legislative provisions of this sort are likely to go wrong because the courts will be inclined to attribute legal effect to them on the grounds that that Parliament does not legislate unnecessarily—and the legal effect attributed may be one the Government could not have predicted”.

What is needed is a culture shift in government so that legislation, as my noble friend has already said, is seen as a last resort, not as a useful political tool for giving the impression that something is being done. In the long term, the use of legislation for this purpose undermines the impact of legislation.

I fear that the defence that the number of Bills introduced by government has not increased in recent years will not work. It is the volume of legislation that counts, and that applies to primary and secondary legislation. Nor is the defence open to government that the quality of legislation is improving. That is belied by looking at some of the Acts that have made it on to the statute book in recent years. Tomorrow we shall be debating a Private Member’s Bill designed to correct some of the failings of the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014. That is a prime example of how not to legislate. Part 1 is supposedly to do with transparency of lobbying. If the short titles of Acts of Parliament were subject to the Trade Descriptions Act, the Government would not have a leg to stand on. The 2014 Act is not concerned with lobbying—it focuses on the person, the lobbyist, and not the activity—and does nothing to enhance transparency.

On the face of it, the Cabinet Office Guide to Making Legislation is a model of best practice, but it comes up against Ministers wanting to get their big Bills on to the statute book and against successive Governments wanting to be seen to be taking action. As has been touched upon, my noble friend Lord Young has gone from poacher to gamekeeper—I estimate four times—in his distinguished parliamentary career. He is ideally placed to recognise the scale of the problem, so I look forward to him telling us what the Government are doing to achieve that essential culture shift and to produce not more but better legislation.

17:28

[Baroness Smith of Basildon (Lab)]

My Lords, this has been an interesting and stimulating debate. I must admit, I made some notes before I came in but I wanted to hear the debate first before deciding in what direction to take some of my comments. I am grateful to the noble Lord, Lord Framlingham, who has done the Committee a service today. He has focused our minds on an issue which goes right to the heart of what we do. It feels slightly odd to welcome the noble Lord, Lord Young of Cookham, to his new responsibilities in government. The noble Lord, Lord Norton, described him as a poacher turned gamekeeper, but I always thought that the life of a Minister was more that of the quarry in many ways, so perhaps he has gone from poacher to gamekeeper and then, as Minister, back to being the quarry. However, I hope he will not feel that in this debate.

We understand that we are part of the legislature. Our role is different from that of the House of Commons, and as an unelected House it is rightly both constrained and specific. We are a scrutinising and revising Chamber. The proposal today is not to be taken literally—it would be a big leap to go from too much legislation to no legislation—but it is a mechanism to allow the experience in this House to consider the basic principles of why we legislate and how we can do it better. We have heard some of those principles already: we should legislate with care; we should bring in new legislation only if Parliament also ensures that there are the means to enforce it; and we should take post-legislative scrutiny far more seriously.

It is understandable that any potential Government set out the legislative programme on which they seek to be elected. Once elected, there is a duty on that Government to implement the commitments in that manifesto in the lifetime of the Parliament. It is the nature of the political system that new Governments have new programmes. I was interested in the list of legislation that the noble Lord, Lord Framlingham, referred to. I felt that he did not like the Labour Government’s legislation. Fox hunting and the death penalty are two causes particularly dear to my heart. He mentioned those as things that perhaps we should not have done. They would be at the top of my list of things that should be done. That is the nature of the political system: different parties will have different policies, which by nature will be contradictory. Obviously, some will have a higher priority than others, and issues will come along. Circumstances can change and make legislation in the manifesto more or less desirable, but there is also the matter that all noble Lords have referred to, which is that issues will arise and a response is needed. That response too often becomes a legislative response. “Legislate in haste and repent at leisure” might be worth adopting in this regard.

When looking at the amount of legislation, we have to look at both primary legislation and secondary legislation. Part of the picture is the number of Bills and the amount of delegated legislation, but that is only part of the picture; as we have heard, it is also its complexity. The noble Lord, Lord Framlingham, referred to “Christmas tree Bills”. There are not baubles and presents on those Bills. It seems to me that “kitchen sink Bills” might be a more appropriate term for them. It seems that as a Bill progresses through Parliament, more and more things are thrown into it. I remember dealing with the Immigration Bill and the Criminal Justice Bill, which got bigger and bigger—like snowballs rolling down a hill picking up more and more as they went along. That does not work. It also undermines scrutiny as things are introduced later.

We have not really talked about the use of secondary legislation and its complexity. Tax credits are a good example. Whether we consider that the Government were technically correct to bring the SI forward or were even wise to use an SI for that issue, there is no doubt that a controversial policy matter was brought to Parliament through a statutory instrument. We are seeing that now in primary legislation. The noble Lord, Lord Framlingham, quoted the Cabinet Office guidance on politically important Bills, which might not have been addressed in detail before they being introduced to the House. The Childcare Bill was in effect only a framework Bill. It lacked detail. It was a very cavalier approach.

It strikes me that perhaps that is sometimes one of the problems of a Lords starter. Governments always use Lords starters for the most non-controversial Bills, but because a Bill is non-controversial in its principle does not mean we will not want to look at the detail to ensure that the Bill carries out the policy intention that has been announced. The problem with the Childcare Bill was that it was thought it could be started in the House of Lords as it was not controversial, yet the lack of detail was embarrassing. There was no financial information, and we could not be confident that the detail supported the policy objective. There have been other examples in this Session. The Children and Social Work Bill and the Buses Bill have far too many pieces of secondary legislation attached to them, 20 or 30 pieces in both cases, and as we go down the line, we will see more.

We have heard some suggestions about the way forward. All legislation needs great clarity of purpose at the very beginning. I am sure the noble Lord, Lord Young, will also recognise that we need to be careful about Ministers coming back from Cabinet meetings boasting about how much parliamentary time they have got for legislation as a mark of honour.

We should also look at how much legislation is not properly enforced. There have been no prosecutions under the FGM legislation. So often now the police are telling us that they cannot implement or enforce certain laws. As there is so much legislation, they do not have the resources to implement it. We have ended up in a position where other agencies are making decisions about which laws to implement and which to not. That has been taken away from Parliament. Does that mean we have too much legislation? It may, in some cases, but it may just mean that we are passing legislation without ensuring that we have the means or resources to enforce it.

My final point is about the adequacy of post-legislative scrutiny. Once legislation is passed by Parliament, there is no automatic, systematic, effective mechanism to monitor its effectiveness. That might deal with some of the issues about how much legislation we have. It could be done through a Joint Select Committee of both Houses. I am not really fussed about the mechanism, but we have to address the issue and look much more seriously at post-legislative scrutiny.

17:35

[Lord Young of Cookham (Con)]

My Lords, I join other noble Lords in congratulating my noble friend Lord Framlingham on giving us the opportunity to debate this important subject. The bait that he put on the hook may not have attracted very many fish, but it has attracted some very big fish. It has been a good debate with sound advice and recommendations for Governments of all complexions. I am grateful for the kind words that people have said about me personally. I feel like one of those fireworks that everyone thinks has gone out, and you are about to pick it up and throw it away when suddenly it bursts into flame before finally expiring.

Putting this debate in context, legislation is an important function of Parliament but not the only one. There is the key function of holding the Government to account and debating the important issues of the day. In the time that I have been in Parliament, there has been a shift in the centre of gravity away from legislation on the Floors of the Houses towards scrutiny by the Select Committees. I am sure that that is a process which my noble friend would welcome. I recall that in a recent debate my noble friend Lord Norton of Louth noted that Parliament is now arguably at its strongest in modern political history in scrutinising the Executive.

I have enormous sympathy with the proposition that my noble friend has put forward: that there should be reluctance before we legislate and we should do it only when there is no other route. During my time as Leader in another place, I chaired the Cabinet sub-committee responsible for the legislative programme, the PBL, which meant overseeing the process of drawing up the programme of Bills. I can assure my noble friend that under any Government the demand for legislation exceeds the capacity, and it may please him to know that many government Ministers went away empty-handed when they were told there was no slot in the legislative programme for their ambitious social reforms. Part of the job was to ensure not just that the Bills were in good shape but that the totality of the Bills in the programme was commensurate with the capacity of Parliament to scrutinise it.

Government departments have to go through a fairly rigorous process before they are given access to primary legislation; it is a bidding process and quite competitive. One of the things that business managers always do is push back to see whether a policy can be delivered without resorting to legislation, a point made by the noble Lord, Lord Beith. During my time as Leader of the House in the other place, we were able to sift out a large number of prospective Bills with that particular challenge.

The Government are of course responsible for a lot of the demand for new legislation, but there are others. Our statute book stretches back to the 11th century, so we have inherited quite a lot. Ministers are lobbied on a daily basis to reform different aspects of the law. Indeed, we need look only at your Lordships’ House where 51 noble Lords have sought a place in the ballot for their own Bills, some of which are to be debated tomorrow. As the noble Lord, Lord Beith, said, a Finance Bill is required each year to prevent certain taxes from lapsing, and quite often we need emergency legislation to respond to events such as in Northern Ireland and elsewhere. The noble Lord, Lord Beith, eloquently made the case for a measure of legislation.

However, we also need legislation to achieve the changes set out in a party manifesto. This Government have already legislated for several manifesto commitments. Sound administration, which is mentioned in the second half of my noble friend’s Question, in itself requires good, relevant legislation to underpin it. Indeed, in some cases legislation can be deregulatory or can simply consolidate and simplify existing legislation. The Deregulation Act 2015, for example, contained a wide range of measures to relieve unnecessary burdens on public authorities, or the Cities and Local Government Devolution Act 2016 which will improve administration by pushing back on overcentralisation—I am sure my noble friend will welcome those particular pieces of legislation. On top of that, we have regular legislation from the law commissions to update and tidy the statute book.

I know that some of your Lordships have concerns about the quantity of government legislation. That was one of the themes of the excellent debate we had on 9 June when we went around some of this course. I reassure noble Lords that legislation has actually decreased in recent years. Only about 750 statutory instruments were laid in the last Session, fewer than in any other Session since 1997. The average since 1997 is nearly double that, at 1,315. Over the whole of the last Parliament, fewer statutory instruments were laid than in any Parliament since 1997, and of course the last Parliament, unlike most of its predecessors, ran for a full five years. It is a similar story for primary legislation. Twenty-six government Bills were introduced in the previous Session compared with an average of 35 since 1997. The previous Parliament saw fewer government Bills introduced than in any Parliament since 1997—again, despite its longer than average length.

In my experience, as has been said in the debate, Governments are criticised either for legislating too much or for not bringing forward enough legislation, and indeed we had accusations of a zombie Parliament at the tail end of the previous Parliament. From a business manager’s point of view, with fixed-term Parliaments and five equal Sessions, it should prove easier to plan the legislative programme as we move forward rather than worrying that the Prime Minister will push the button after three and a half years and you have to get everything through quickly. However, we also have to be prepared for extra legislation, as we have seen in the wake of the EU referendum, and I will come on to that in a moment.

My noble friend is right to point out that it is important that as well as passing legislation, we continue to deliver good policy. This Government are committed to ensuring that we maintain the right balance between developing new policy and delivering it effectively. Within government and alongside Cabinet committees, the implementation task forces monitor progress on implementing existing policies. The Government also track delivery of progress on their priorities through the single departmental plans. These set out each department’s priority objectives, the key programmes and policies that will deliver them and the metrics by which performance can be measured. These show the importance that the Government attach to ensuring good policy rather than simply reaching for yet another change to the statute book.

The Select Committees—not least the Public Accounts Committee—also have a key role in monitoring existing policies, and I will return to that in a moment. We also have a regulatory policy that requires the equivalent of £3 of regulatory burden on business to be lifted for every £1 of new burdens imposed. That is independently audited and the Government have set a target of lifting £10 billion-worth of burden by 2020.

I shall try to deal with some of the points raised during this interesting debate. I mentioned the number of Bills, but I may have heard someone ask about the number of pages. While the number of Bills and statutory instruments may have dropped, it is asserted that the number of pages has increased. That was true up until 2010, but again in the previous Parliament the number of pages of primary legislation was lower than in any of the three previous Parliaments. Between 1997 and 2010, on average more than 3,000 pages of primary legislation were introduced per year, but between 2010 and 2015, the figure fell to fewer than 2,650.

My noble friend Lord Framlingham made a point about scheduling Bills. It is indeed the case that when he was in another place, in the 2005-10 Parliament, there was regular guillotining of Bills and inadequate time was left. In the 2010 Parliament, it changed. All credit to the Opposition as well as the Government for making that change. Nowadays, programme Motions are increasingly agreed by discussion through the usual channels and it is relatively unusual, although not totally exceptional, for the programme Motion to be voted against because of that discussion. That may not automatically guarantee that there is enough time for debate in Committee, but it shows that a genuine attempt is being made to ensure adequate time.

I think that lessons can be learned from the Housing and Planning Bill, but it is worth making the point that in the first Session of a Parliament there is less opportunity to deal with Bills in draft. The nature of the coalition was such that no one party could pursue its individual policy through the Civil Service, so the first Session was different.

I agree with everything that has been said about the virtues of draft legislation and pre-legislative scrutiny. We are committed to publishing Bills in draft where possible. Examples before the House at the moment are the Investigatory Powers Bill and the draft Wales Bill.

The noble Lord, Lord Beith, said quite rightly that the coalition imposed a slightly finer sieve through which legislative proposals had to pass. That was certainly the case and it took slightly more time to develop policy because of the coalition.

The noble Lord asked about the impact of the decision to exit the European Union. All I can say is that, in preparation for the negotiations to leave the EU, the Government are undertaking work across a range of areas, including with their legal teams, to establish how best to deliver the Government’s objectives. That covers the issue that the noble Lord raised about separating domestic law from EU law.

I entirely agree with what has been said about the importance of post-legislative scrutiny. Each government department produces a memo on Acts five years after Royal Assent, which is then passed to the House of Commons but, with relatively few exceptions, the Select Committees have other priorities and most memos have not been scrutinised by Parliament. It is not the fault of the Government, to that extent, that there has not been post-legislative scrutiny; it is simply that Select Committees—for very good reasons, possibly—have other priorities than looking at those reports.

In conclusion, my noble friend has raised an important question, one that Governments grapple with every day, and there is a balance to be struck. Of course, we should not seek endlessly to change the law without stopping to consider whether the current law is working or looking at the impact that there would be on business or civil society. But legislation is often needed simply to make the changes that the people elected this Government to enact. It does not have to and it should not come at the expense of sound administration— on the contrary. It can support and enable effective government.

I heed the warning from my noble friend that we should be mindful about the amount of legislation that we bring forward. I hope he will be comforted that the overall numbers have decreased under a Conservative Government. The lesson that I will take away from this debate is that of the three words used by my noble friend Lord Norton: “Less, but better”. I thank my noble friend and others who have spoken in this valuable debate.

Committee adjourned at 5.47 pm.