Devolution: English Cities

Lord Hodgson of Astley Abbotts Excerpts

Wednesday 17th July 2019 Grand Committee

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I congratulate my noble friend on his powerful follow-up to his original 2012 report, No Stone Unturned. I make it clear at the beginning that I have no great experience in local government. My contribution to today’s debate flows from four—or maybe three and a half—episodes. The first is the year that I spent chairing a Select Committee of your Lordships’ House looking into citizenship and civic engagement. My noble friend Lady Eaton, who was a doughty member of the committee, will speak later. We looked at some of the underpinnings of the issues that my noble friend referred to in his remarks. The second is my chairmanship of several companies, both in the English regions and abroad—they are all declared in the register of your Lordships’ House—which has given me some economic thoughts. The third is my personal belief that we have created and are creating two nations: London, with its environs in the south-east, and the rest of the country. If that trend continues for the next quarter of a century, we will create strains to our social cohesion that we will come to regret. The last—this is maybe the half—is the fact that, for a very few years, I was the Member of Parliament for Walsall North. This gives me an opportunity to thank my noble friend, who came to speak for me in my by-election all those years ago.

I share the view of my noble friend that, unless we find a way to create at Whitehall a central focus for the regions, the possibility of developing the vision that he has is doomed. There is far too great a danger that critical issues either fall between the departmental cracks or become the subject of departmental turf wars. In the civic engagement committee, we saw this in spades. Our recommendations went to the Department for Education, the Home Office and the Cabinet Office. Indeed, my two noble friends on the Front Bench have in turn replied to them in different ways. We recommended that there ought to be a Minister with overarching responsibility for this matter. I regret to say that all that we have achieved so far is an interministerial working group and we feel relatively neutered.

A second challenge that arises from having no Minister with overarching responsibility is what we came to see in the committee as “initiativitis”. A new Minister arrives. He or she is very keen. They start up something and, a year later, they are moved on. The initiative drifts into oblivion. Nobody checks whether it worked. Nobody sees where there are lessons to be learned that could be deployed across other parts of the firmament and nobody sees whether taxpayers’ money is being wasted. There is a need to find a way to build up the institutional memory, as one might call it, of what works.

In my view, it will not be sufficient for individual regions to go it alone. The noble Lord, Lord Beecham, talked about the northern powerhouse and the rail link between Hull, Leeds, Manchester and Liverpool. If that is to go ahead, it will require a carefully co-ordinated interregional programme of promotion. The cities that form the heart of the region will need to be supersensitive about how actions taken at the centre will be seen in their constituent parts.

In his report, my noble friend refers to Walsall’s worldwide reputation for the leather industry. Walsall and the other towns that make up the Black Country, all with their own specialties, will need reassurance that their concerns are always being fairly addressed. For example, I chair a company based in Manchester. We can recruit people from Manchester and the immediate surroundings but from further away in that geographic area we cannot. Why not? Because the transport links are insufficiently good, the commuting times are too long and people do not want to move to work for the company as they do not want to spend an hour and a half or two hours sitting on a bus or a tram.

My noble friend will understand from my remarks so far that I support the strategic thrust of his report. I hope he will forgive me if I urge him not to try too much to cram together the uncrammable. For example, he and I have some knowledge of the county of Shropshire. Shropshire makes up part of the West Midlands Combined Authority. Take the small town of Clun, west of Shropshire on the Welsh border, on the one hand, and Nuneaton, on the eastern border of the authority, on the other. Those two places are 90 miles apart. According to Google, it takes two hours to drive from one to the other, and the environmental and societal differences between the two of them are self-evident. I hope very much, therefore, that although we are discussing the important subject of devolution from the centre of the regions, as the noble Lord, Lord Tyler, pointed out, there is a need for the regions in turn to be thinking about how they are sensitive to the devolution responsibilities that they have—in this case, to Clun and Nuneaton.

That takes me to my final point. Much of my noble friend’s report is focused on economic activity and performance; and the importance of those metrics cannot and should not be overlooked. If there was one overwhelming thread, however, in the evidence we received at the civic engagement committee, it was that people wanted to belong. They all feel that the developments of recent years have left them uprooted and their sense of community undermined. There is a series of qualitative aspects, some of which my noble friend referred to, which need to form part of any devolution settlement. They are not easy to measure, but are critical none the less.

As an example, when I see, on page 62 of the report, the proposal to transfer responsibility for affordable housing to the combined authority mayors, I have my concerns. It is not that I oppose the idea of finding housing for our fellow citizens, but because, far too often, “affordable” housing has come to mean bad housing: poorly designed, poorly constructed and crammed in, with no sense of community involved. In my view, too often we are in danger of creating the slums of 50 years from now. The housing market has become dominated by a handful of housebuilders who, by careful pricing, impose standardised designs all across the country. The glory of the country, and the glory of our communities, lie inter alia in vernacular, distinctive buildings. Today, if, blindfolded, one is taken and helicoptered into a modern housing estate and the blindfold is then removed, one cannot tell whether one is in Truro, Norwich or Stockton-on-Tees.

The need to create communities to which people feel committed and in which they feel proud to live is a vital part of any devolution settlement—and, indeed, as my noble friend said in his opening remarks, vital in the future creation of a society at ease with itself.

Citizenship and Civic Engagement (Select Committee Report)

Lord Hodgson of Astley Abbotts Excerpts

Monday 19th November 2018 Lords Chamber

Moved by

[Lord Hodgson of Astley Abbotts]

That this House takes note of the Report from the Select Committee on Citizenship and Civic Engagement The Ties that Bind: Citizenship and Civic Engagement in the 21st Century (HL Paper 118).

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I was lucky in at least three ways when I was selected to chair the one-year Select Committee on Citizenship and Civic Engagement. First, I was lucky because, although the topic may not appear glamorous compared to the AI debate that we have just been listening to, this issue is none the less of critical importance, because civic engagement is at root the glue that binds us together. An analysis and examination of that glue and its effectiveness will always be important, but never more so than when the country is going through such a rapid rate of socioeconomic change as it is experiencing at present.

Secondly, I was lucky to have a very talented committee, and not only talented but diverse in view and approach—there was no groupthink on our committee, I think we would all agree. We produced a unanimous set of recommendations, whose varying light, shade and emphasis will be reflected in the contributions that your Lordships’ House will hear over the next couple of hours, I am sure.

Finally, I was lucky in the quality of our support staff, ably led by Michael Collon. I hope that Michael will take it as a compliment—and it really is meant as a sincere compliment—that I used to regard him like a mother hen clucking over the chicks to make sure that they were okay. Members of the committee may not be aware that Michael had a hip replacement operation a couple of weeks ago, so he cannot be here to watch over the chicks this evening. He may be watching on the parliamentary channel but, whether or not he is, I am sure that I speak for the whole committee and indeed the whole House when I send him best wishes for a speedy recovery and return to work. Michael was ably backed up by his excellent assistant, Tim Stacey, and our specialist adviser, Professor Matt Flinders, was redoubtable, irrepressible and innovative—essential ingredients for a really high-quality special adviser. Nor should I fail to mention the others who helped us on our way, notably the House’s press team, led by Katy Durrans.

In my contribution I will focus on three topics: values, the role of citizenship education, and the importance of being able to speak, read and write the English language fluently. First, as our report makes it clear, it is not for a committee of your Lordships’ House to set down a definitive list of the values that citizens and residents of this country must and should adhere to—although at paragraph 58 we offered as a straw man,

“democracy, the rule of law, individual liberty, and respect for the inherent worth and autonomy of every person”.

In this context, individual words can take on a particular significance—specifically the Government’s continued focus on the word “fundamental” as part of the phrase “fundamental British values”. In our view this has, rightly or wrongly, led to a situation where one section of our community feels singled out. “Fundamental” as a word has become pregnant with meaning because of its close association with “fundamentalism”. I regret that the Government in their response to our report were not able to take this point on board.

That aside, there is an urgent need for us as a country to get behind, promulgate and defend those values that are agreed to be central to our society. As Dame Louise Casey said in evidence to our committee, at paragraph 56,

“you do not pick and choose the laws of this country. The laws that protect religious minorities are the same laws that say I am equal to a man. You do not pick which ones you want. It is not a chocolate box of choice; it is something you have to embrace. If you are uncomfortable with that, I now say that is tough”.

There are red lines that need to be defended. As our report went on to say:

“The epithet ‘racist’ has rightly acquired particular force and opprobrium in modern day Britain. Those who seek to continue to promulgate approaches that are not in line with our values, such as the value of equality, have been known to make use of this phrase to rebut criticism of their approach. Where necessary society must be sufficiently strong and confident not to be cowed into silence and must be prepared to speak up. Fear of being labelled ‘racist’ is never a reason for those in authority not to uphold the law, or for citizens not to raise their concerns”.


What is particularly strange is that the Government, who have proved quite obdurate in sticking with the use of “fundamental”, do not appear to be prepared to follow through with identifying and addressing the challenges posed to the agreed red lines as part of their Integrated Communities Strategy. This appears to suggest an approach based on nudging. From the evidence we received, there are some unacceptable views and practices in all parts of our society which I fear are unlikely to be changed merely by nudging.

On citizenship education, our fellow citizens, of any age, do not learn about how our society works—the role of central and local government, as well as of the courts, together with the complex fabric of our civil society—by magic. It has to be taught, and taught well. Further, citizenship education is not part of what is known as PSHE—personal, social, health and economic education—or vice versa. I hope that the noble Baroness, Lady Lister, who I look forward to hearing from later, will forgive me if I steal a moment of her thunder. She beautifully outlined the difference between the two. Citizenship education is about looking out into our wider society; PSHE is about looking in at the way each of us behaves. Good citizenship education is not just book and classroom-based; real-life practical activities such as debating clubs are an equally important part.

While our committee heard evidence of some inspiring work going on in schools, too often it appears that schools regard citizenship education as a “nice to have”, not a “must have”. Surely that needs to be reversed. In this connection, one can only regard the Government’s response to our recommendation 16 as disappointing. First, the Government have used a commitment not to make any changes to the curriculum during the current Parliament as a reason for not pushing forward on this issue, and secondly, they pointed out that the Department for Education,

“does not specify how schools teach citizenship as a subject”.

This approach has resulted in the uneven and unsatisfactory approach to this critical subject, about which our committee was very unhappy.

My third and final issue is on being able to speak, read and write English fluently. This is often an issue seen through the prism of the first-generation immigrant communities. In fact, as our committee found out, the challenge is far more widespread than that. It is hard to think of a job, beyond that of manual labour, where fluency in the English language is not critical—and that is just about employment. The possibility of an individual with limited linguistic skills being able to make a significant contribution to our civic life must be vanishingly small. The Government are to be congratulated on having recognised the importance of this issue in their Integrated Communities Strategy. The challenge for the Government will be whether, from savings elsewhere or from new resources, there will be the capability to drive home these well-intentioned expressions and turn them into practical results.

Of course, it is not just the responsibility of the Government. As in so many areas which are committee-considered, rights have to be balanced with responsibilities. It is therefore really important that all sections of society understand that, as residents of the United Kingdom, they have a duty to make every effort to learn the English language—and not just the head of the household but every member of the family. For example, the statistics on the percentage of women in the UK born in Pakistan or Bangladesh who cannot speak English well or at all are shocking. To remedy this is a critical step in empowering these women and enabling them to live fulfilled and participative lives.

Finally, I turn to what I felt should be called “initiativitis”. New Ministers eager to show zeal and activity begin a programme but too often, before the programme can show whether it is valuable, the Minister has departed and his or her successor starts up yet another initiative. Successful civic engagement is not made up of a series of one-shot deals; it is the result of the sustained application of policies over the long term.

[Lord Haselhurst (Con)]

Does my noble friend share my surprise that the Government have not shown more enthusiasm for the recommendations of his committee regarding the National Citizen Service, when the NCS has been one of their creatures for which they deserve great credit?

[Lord Hodgson of Astley Abbotts]

I certainly agree with my noble friend. We discussed that issue; I know that the noble Lord, Lord Blunkett, has taken an interest in it, and I dare say that it will form part of his comments in a few minutes. We regard it as a success and we hope that it can be developed—with some changes that we suggested should be made.

The Government would be well advised—not least in the interests of the taxpayer—to make some efforts to gather in examples of those practices that work and those that do not, so that the reinventing the wheel approach, of which our committee found far too much evidence, becomes a thing of the past.

Of course, successful civic engagement will not result from the activities of a single government department; it is a classic cross-departmental activity. It therefore needs to have a champion who, without fear or favour, has the power and seniority to move forcefully across the whole spectrum of the Government’s activities.

I will end as I began, with values. Sarah Lyall, a former London correspondent of the New York Times, once wrote that the British are an undecipherable mixture of,

“politeness, awkwardness, embarrassment, irony, self-deprecation, arrogance, defensiveness and deflective humour”.

Our committee has sought to decipher this rich mixture. I beg to move.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts]

My Lords, the hour is late, so if I skitter over the subject, I hope the House will forgive me. I thank the Minister for his thorough reply and for his commitment and hard work. I am not flattering him when I say that his appearance before our committee—his evidence session— was a master of its kind and compared exceptionally favourably with his colleagues from the House of Commons who were altogether different and did not really read the mood of the committee.

In my opening remarks I anticipated differences of light and shade and emphasis in the contributions and, indeed, I was not disappointed. After all, civic engagement is nothing if not multifaceted. I was going to say “one size fits all” but I thought the noble Lord, Lord Russell of Liverpool, would accuse me of using another hackneyed phrase, so I will stick to “multifaceted” this evening.

There are four issues around which things revolve. The first is a wish to belong. Where do I fit in? We need to address this, as the noble Lords, Lord Greaves and Lord Wallace, said. In so far as language is a barrier, the noble Baroness, Lady Lister, covered it. The second is a wish to participate. People wish to get more involved in the way our society operates. That can be formally through the National Citizen Service, which was referred to by the noble Lord, Lord Blunkett, or informally as the noble Baroness, Lady Stowell, pointed out. Quite ordinary people, such as shopkeepers and so on, can help set the tone and create an environment in which things happen. The noble Lord, Lord McNicol, referred to his experience and how it does not take many people. Indeed the committee found this. When we went on our trip to Clacton, we saw quite small groups of people who had made a real difference.

The third issue is learning about our rights and responsibilities, not forgetting the moral dimension to which the noble Lord, Lord Alton of Liverpool, referred in his important remarks. Here my noble friend took a good deal of incoming from almost every corner of the House—from the noble Baroness, Lady Royall, my noble friends Lord Norton and Lady Eaton, and the noble Lord, Lord Beecham—so I hope we will see some progress on that front. I do not forget the important distinction drawn by the noble Lord, Lord Judd, between education and training, which one can tend to overlook.

Finally, but by no means least, there is the need to measure progress and effectiveness. This was referred to by the noble Baroness, Lady Morris. That is probably a good point on which to close by thanking everyone who participated and warning the Minister that we shall be watching him.

Motion agreed.

House adjourned at 9.53 pm.

Integrated Communities

Lord Hodgson of Astley Abbotts Excerpts

Thursday 15th March 2018 Lords Chamber

[Lord Bourne of Aberystwyth]

My Lords, I can certainly assure the right reverend Prelate that we will be very mindful about any changes to funding. The Near Neighbours projects that I have seen—and I have seen a lot of them—have been doing excellent work and providing excellent value, so when we look at funding, as government departments do from time to time, we will bear that very much in mind.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I thank my noble friend for repeating the Statement. I draw the attention of the House to the fact that I am chairing a Select Committee of your Lordships’ House looking into citizenship and civic engagement, and we are due to report next month. Quite a lot of our work washes over into the areas that my noble friend has mentioned. One of the challenges that we have identified is that, unsurprisingly, there is no quick fix; what is needed is sustained, consistent application of government policies. Too often, initiatives in the past do not appear to have outlived the Minister who initiated them. Can the Minister, as he explained this wide-ranging programme, tell the House which department and which Minister are going to be responsible for making sure that this whole ambitious programme is driven through?

[Lord Bourne of Aberystwyth]

My Lords, I thank my noble friend very much indeed for his comments and for the work that he does in chairing that excellent Select Committee. Without hesitation, I can say that the person who is driving this forward is, of course, my right honourable friend the Secretary of State, Sajid Javid. He is not doing it alone, as he indicated in the Statement, because it involves many other government departments. It is cross-government and involves education in particular. We also mentioned the Ministry of Justice in relation to the situation regarding marriage. But I assure the House that the person who is driving it—and he is driving it very hard and is committed to it—is my right honourable friend Sajid Javid.

Neighbourhood Planning Bill

Lord Hodgson of Astley Abbotts Excerpts

Ping Pong (Hansard): House of Lords
Tuesday 25th April 2017 Lords Chamber

[Lord Stunell (LD)]

I thank the Minister for what he has said. I remind the House that the matters in Clause 12 have been debated at each stage of the Bill. There is widespread understanding that this is a good Bill and it has a lot of support, but to many noble Lords Clause 12 seemed out of place. It either gives new powers to the Secretary of State to regulate, as he sees fit, the decisions of local planning authorities—which it is feared could be at the expense of the National Planning Policy Framework—or it is of nil effect because the NPPF already provides the boundaries and constraints. The critics have tended to the first view and the Government to the second. The critics, including me, feared that this Government, or a future one, might use this regulatory power in a way that undermined the capacity of local planning authorities to use the NPPF as it was intended. The Government have, quite understandably, taken the contrary view, which the noble Lord, Lord Bourne of Aberystwyth, has just put.

This House accepted my amendments limiting the Secretary of State’s ability to regulate. That came not just from this quarter of the House—it had widespread cross-party support. Indeed, beyond cross-party, the most reverend Primate the Archbishop of York also contributed to the debate on Report and supported us in the Lobby. Therefore, this is not in any way a party political or partisan issue; rather, it is about firmly entrenching the right of local planning authorities to set planning conditions in accordance with the NPPF and without fear of being second-guessed or overruled by the Secretary of State’s regulatory power. Putting it another way round, it establishes, or was intended to establish, the primacy of the NPPF as the touchstone of legitimacy in judging planning conditions rather than the latest fad of the spads in the DCLG. That is what my amendment did. The Minister—the noble Lord, Lord Young—was very helpful on Report, as far as his brief would allow, but not sufficiently eloquent to persuade your Lordships of the Government’s point of view, and the amendment was passed.

I thank the noble Lord, Lord Bourne, for the work he put in subsequent to that and the discussions that we had. We clearly did not have a full meeting of minds, which was probably as much my fault as his. However, gradually, the essence of the argument made across parties at each previous stage of the Bill has seeped into our proceedings and on to the record.

The noble Lord, Lord Bourne, referred to the letter that he circulated, and we see it in the reasons before us for rejecting your Lordships’ original view on this matter. It is extremely important that it is clear that it will always remain lawful and legitimate for conditions to be imposed by local planning authorities provided they conform to the requirements of the National Planning Policy Framework. Indeed, that is the reason before us for the Commons rejecting the amendment. I remind your Lordships that the reason states:

“Because section 100ZA already has the effect that the regulations must be consistent with the tests for planning conditions in the National Planning Policy Framework”.


That is clearly the Government’s view and the view of the other place. I hope it will turn out to be the view of all future Governments and Ministers and, in the case of dispute, that the courts will share that benign view and interpretation of Clause 12. I believe that the Government’s declared intentions would be far clearer with the amendment that was originally proposed. However, on this occasion, with grateful thanks to those around the House who supported the original amendment on Report and valiantly joined me in fighting the fight, I will not press the matter any further.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I rise to say a word or two on the drinking establishments —pubs—amendment. I was very concerned about the direction of the debate in your Lordships’ House because this sector is under pressure and the more legislative restrictions that are placed on it, the less likely it is that people will invest in it. I accept that the will of the House was not with me. However, I am grateful to my noble friend for considering the matter further. We have reached a reasonable compromise that will provide a way forward. It is obviously a very good thing that both CAMRA and the BBPA have accepted and supported it. It is important that we find a point at which those who own and operate pubs can draw a line under the further changes that may be made to the regulatory environment, given that there is already talk of needing to change the Pubs Code regulator as it is not satisfactory. That came in a couple of years ago. For the moment, however, this is a good compromise that will enable both sides to emerge from the discussions with honour.

West Midlands Combined Authority (Functions and Amendment) Order 2017

Lord Hodgson of Astley Abbotts Excerpts

Thursday 30th March 2017 Lords Chamber

[Lord Shipley (LD)]

My Lords, I thank the Minister for introducing this order. I find it refreshing that councils want to join the combined authority, as opposed to wanting to opt out of it. It is good to see the broadly positive outcome of the consultation, with some quite strong figures. It will be helpful to have the extent of the responsibilities and powers that are defined in the order, because they are not up to the same as other combined authority orders, so it makes it much easier to pile up the differences between combined authorities. It is also good to see in the order the checks and balances in the powers of the constituent councils, the combined authority and the mayor. They are quite complex, particularly in view of the number of constituent councils, but I think they are quite workable.

I want to ask the Minister a very specific question about the powers of the mayor and the combined authority, given that they have compulsory purchase powers and, of course, that the combined authority takes over the powers of the Homes and Communities Agency. I just want to be absolutely certain on the record that there is no involvement by the mayor or the combined authority in the granting of planning permission in any part of the West Midlands Combined Authority.

The Minister referred to the independent remuneration panel. This panel relates to the mayor and the deputy mayor of the West Midlands. I think that we are creating too many independent remuneration panels. The time has come for there to be a single, national system for England in the remuneration of combined authority members, elected mayors and councillors. It should not be difficult to construct a system; most other organisations have national schemes. I no longer understand why everything has been localised in the way that it has or, indeed, why there has to be a separate independent remuneration panel for the mayor and deputy mayor of a combined authority.

I want to make two final, very brief points. In the paragraph about the appointment of a political adviser, which I understand applies to all combined authorities, can the Minister clarify the meaning of “within proportionate resource”? A political adviser can be paid “within proportionate resource”, but I do not understand what it is proportionate to. It could be proportionate to the remuneration of the mayor or of the deputy mayor; it could be proportionate to the remuneration of those serving on the combined authority; or it could relate to the budget of the office or of the mayor’s office. We need to be clear about what that phrase means because it is the kind of thing that might cause difficulty later.

My final point relates to political balance. There are 28 members on this combined authority, which I find a welcome number because it means that there is support for the concept of the combined authority. First, I want to be clearer about the political balance of those 28 members to ensure that all interests are involved. In other places—for example, in individual councils—questions of political balance on the appointment of committees are required to be considered. I am slightly concerned that one may find a predominance of only one political party, or maybe two, on a combined authority. How will political balance be ensured, given the number of members on the West Midlands Combined Authority? Secondly, with regard to the scrutiny function, which is subject to legislation that has already been passed by your Lordships’ House, I just want to hear from the Minister that political balance will be ensured on the terms that have already been agreed and that there will be no difference at all in the West Midlands, given the importance that scrutiny is going to have in what is a comparatively large combined authority.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I have not been involved in these matters before, but I am a member of the Secondary Legislation Scrutiny Committee and, during our earlier reviews, I have become aware of the questions about the extent of public consultation and the extent to which that consultation has favoured the Government’s proposals. My noble friend referred to that in his opening remarks; I think he said that 1,328 people had responded. That is a decent number, but we are talking about several million people in the organisation that we are talking about, so it is not a significant number statistically. Nevertheless, I welcome that more than half that number were in favour.

I happen to have had a regret Motion on a completely different matter that preceded the discussion we had the other day, about the combined authorities of East Anglia and the north-east, and I noted some of the concerns expressed by other noble Lords at that time. When the scrutiny committee had the West Midlands authority brought before it, I decided to look at it with slightly more care. I entirely appreciate and support the original concept of the urban West Midlands. I know that there are tensions between the Black Country and Birmingham, and so on, but nevertheless there is some cohesion. But when I saw what had been tacked on, I got out my mobile phone and googled the distance from Nuneaton, which is on the eastern end of the area, to Montgomery, which is just over the border in Wales and just outside the western end, and the distance is 96 miles. I did the same from north to south, and the distance is 106 miles. This is a very big area indeed, and I wonder what an authority which runs from the Potteries to the Cotswolds and from the M1 to the Welsh border is going to be able to do to hold this thing together and give it a sense of cohesion.

I understand about the urban West Midlands and the mayor elections taking place there in May. But with this very limited consultation in the first place, which brings in an entirely different type of society—rural, quite lowly populated—I wonder whether we are creating a structure that is really going to deliver what the people in those outlying, tacked-on areas are going to appreciate as a worthwhile and efficient use of local authority and indeed central government funds.

[Lord Snape (Lab)]

My Lords, on the question of remuneration for the mayor, I ask the Minister whether the Government have a particular figure in mind. He will be aware that the election of a mayor in the West Midlands has caused a little controversy in the area about the size of the salary. Indeed, I understand that a recent meeting of leaders of various local authorities recommended a figure of around £40,000, which is, understandably, a bit less than one or two of them earn themselves. Can we have an idea from the Minister, before he sets up the remuneration committee, what a sensible figure would be? Does he agree that that figure ought at least to be in excess—perhaps considerably in excess—of the salary of existing local authority leaders, given the wide area, as outlined in the previous contribution, for which the mayor would be responsible? Can the Minister give us some assurance that whoever is elected will be seen to be independent of government, so that if it is necessary for the mayor to take a decision contradicting the views of government Ministers, he would not, regardless of party, be subject to the sort of treatment that has just been meted out to the noble Lord, Lord Heseltine, who, because of his temerity in disagreeing with the Government’s philosophy, was hurriedly dropped from a particular government position despite his distinguished record? The least the Minister can do is to reassure the House that whoever is elected will be seen to be independent of government.

--- Later in debate ---

[Lord Rooker (Lab)]

I will briefly follow up on a couple of the points that have been made. I declare an interest in the sense that I live in the total area, as I live in Ludlow, in Shropshire. I will be amazed when the people of Shropshire wake up on 8 May and discover that they will be sending the combined authority what will be a few tens of thousands of pounds—they are not involved in the election of the mayor, because the mayor is only for the metropolitan county area, which is the old seven councils. I wish it well—do not get me wrong—but the noble Lord, Lord Hodgson, mentioned the variety of the area, and I think that we do need to exploit the assets of the area.

For example, there are 326 local authority areas in England, and their density of population varies from 9,000 people per square kilometre to well under 100 people per square kilometre—as it is in Shropshire. Of the 326, Shropshire lies at about 312; in other words, it is an incredibly sparse area. What that tells me is that it has land for development. We do not need to rip up the countryside to use the land for development, and therefore there is potential in this area—the motorway links are not brilliant, by the way.

I do not know what the local authorities will do about this. The bosses who run Shropshire are not very keen on factories coming into the area. I once raised the issue at a public meeting, as I think jobs and manufacturing are important. In the area of the old seven councils—where I lived and worked and I also represented the area, so I know what it is like—it is not easy to put a factory on a greenfield site. You cannot do that in the Black Country; you can use brownfield sites, but you are absolutely limited for modern, technological industrial undertakings and you cannot do it in the old way. I just want to put that on the record.

On consultation, I have not seen anything in the local papers about the effect of this. I remember that the issue of consultation was raised about three orders ago. I hope that we are not playing with fire, because the body is being set up and it will perform its functions from 8 May.

My final point is that, in the West Midlands, we miss figures of substance, if I can put it that way.

[Lord Hodgson of Astley Abbotts]

I think that the noble Lord will find that, because Shropshire volunteered, it was not consulted at all. The consultation referred to by the noble Lord, Lord Grocott, was about the West Midlands area. I do not think that there was any consultation in Shropshire at all; it was a volunteering effort by the Shropshire leadership. So I do not think that the people of Ludlow, where the noble Lord and I both live, would ever have had a chance to say anything.

[Lord Rooker]

That is right; it has not been commented on. It has not been an issue that has figured at all, and that is why I think it will be a bit of a surprise on 8 May.

My final point is that I hope that the new structure will generate some figures of substance. We miss in the West Midlands people of the stature of the late Sir Adrian Cadbury and the late Denis Howell, who were Midlanders who got things done. That is the one thing that has been missing in the West Midlands compared to the north-east and north-west, where figures of substance have emerged in a leadership role, which has transformed the communities. So in some ways I hope that—although I have not seen any on the horizon at the moment—once this new structure is up and running, such people will come forward.

Neighbourhood Planning Bill

Lord Hodgson of Astley Abbotts Excerpts

Report: 2nd sitting (Hansard): House of Lords
Tuesday 28th February 2017 Lords Chamber

[The Archbishop of York]

My Lords, Amendments 35 and 39 were debated extensively in the other place. They relate to planning protection for pubs. At the moment, pubs are subject to permitted development rights, meaning that they can be developed for alternative commercial use—for example, they can be turned into offices or shops—without the need for planning permission. The only exception is where a pub has been designated or recommended as an asset of community value—an ACV. More than 1,750 pubs have been given ACV status but, like the noble Lord who moved Amendment 35, I argue that the process is too cumbersome. As Roberta Blackman-Woods put it on Report in the other place:

“Although pubs can be protected if they are designated an asset of community value, the process for that can be very cumbersome. I believe it is much more appropriate to return the decision on whether a pub can be demolished or converted to the local community, where it belongs, rather than dealing with it through permitted development”.—[Official Report, Commons, 13/12/16; cols. 737-8.]


Unless pubs are designated or recommended as an asset of community value, they are at risk of closure in a difficult market for pubs and landlords. Pubs in high-value areas are highly sought after for conversion, even if they are profitable. The amendments would remove pubs from permitted development rights, meaning that planning permission would be needed for conversion, regardless of ACV status. It is argued that this would help local communities protect profitable pubs as the local council will be able to refuse an application for conversion where the pub is profitable and viable. Given that pubs are considered an important aspect of a vibrant community life, and given the Church of England’s concern for that community life being vibrant, these amendments should be supported. I have no investment in any pub.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, pubs, as we realise, arouse strong emotions. We had a lengthy debate on this topic in Committee in the Moses Room. I do not want to rerun all the remarks that I laid out then. I remind the House that until three years ago I was a non-executive director of a company that operated brewers and about 2,000 pubs. I am outside the quarantine period, so that is no longer in my entry in the Register of Lords’ Interests.

I begin from what I hope is a shared position: we all want to keep pubs open wherever possible. The question posed by this amendment is at root this: will pubs be kept open by this additional legislation? I am afraid that for me the answer is negative. Pubs are closing because people use them less, and people are using them less because of changing leisure habits. Pubs are closing because people can buy the beer far more cheaply in the supermarket and then drink at home. Pubs are closing because of increasing beer duty and council tax and because of the introduction of the minimum wage, the living wage, the smoking ban, the drink-driving ban, new licensing requirements, and new health and safety legislation. Collectively, these have all combined to squeeze the general profitability of pubs to a point where many can no longer provide an adequate return to long-suffering and hard-working landlords.

Legislation cannot make a bad landlord into a good one. Legislation will not enlarge the curtilage, or land area, of a pub to enable new kitchen facilities or new parking areas to be constructed.

[Lord Porter of Spalding (Con)]

Will my noble friend give way? He said that no pubs are closing because of the changes to permitted development rights. I do not think anyone disputes that a number of pubs will close because they are not used by the communities that they are situated in, but can he prove that no viable pubs have been turned into supermarkets?

[Lord Hodgson of Astley Abbotts]

I certainly cannot. There are 37,000 pubs in the country and I am not able to stand here and say that the 37,000 pubs have been operated completely to the highest standards or that people have not tried to run them down. I shall return to the point about how there is already adequate protection for the community if it chooses to use it. One of the ways to improve a pub is to improve your kitchen facilities or enlarge your car park, but some of these pubs do not have the land area or curtilage to be able to do that.

It is not as though there is not already an opportunity for individual communities, using the asset of community value—the ACV facility—to apply for it to be listed. The noble Lord, Lord Kennedy, suggested that this was not an adequate remedy and that in some cases local authorities were reluctant to get involved for a series of reasons. I am sure there have seen cases like that, which is why I shall come in a minute to the question of one of the remedies for this. But equally, it is fair to say there are cases where local authorities have blanket-classified a whole series of pubs in their area—the lot—and that is also not what the ACV arrangements were designed to do.

Am I suggesting that every pub is being run scrupulously? Of course not: there are thousands of them and there will be outliers, on both sides of the case, in every community and every part of the country. But to introduce new legislation on the basis of a small number of cases—and it is a small number of cases, some of them anecdotal—is in my view a mistake. What the industry needs above all is more investment, not less, and nothing is more likely to put off potential investors than restrictions on how they can, in the end, realise their investment.

It has somehow gained credence that the groups at which these amendments are aimed are the allegedly rapacious pubcos and integrated brewers. If that is the aim, I have to tell the House that the target is being missed. The losers will be the independent operators, for example the many thousands of mum and dad operators. There are probably 20,000 couples who have worked long and hard, maybe after inheriting the pub from parents, and who now wish to sell up and retire. But because of restrictions like these, they find the sale price of the pub—also their home and their only asset—reduced in price drastically and maybe even unsaleable pending the ACV negotiations. If it is felt that the ACV process is not working well, I agree that it should be reviewed—but reviewed in the round so that the cases that the noble Lord, Lord Kennedy, refers to and the other cases where there have been block listings can be looked at and we can see how the balance of the ACV operation has been proved to work.

I urge those who support the amendment to be careful what they wish for. Legislation about the pub industry in the past has all too frequently led to some very unhappy unintended consequences. It is worth remembering that the emergence of the pubcos—companies that only own pubs, buy in all their beer and alcoholic drinks and are most disliked by CAMRA—came about only because of legislative action. The beer orders had the intent of opening up the market by reducing the power of the large brewers to dictate which beers were produced, and which owned and controlled the vast majority of the pubs.

Forced divestment of pubs did not lead to the anticipated happy outcome. It led instead to the emergence of what were essentially specialist property companies, all too often highly geared, with all that that implied for reinvestment in the pub industry. In my view, a similar unintended consequence may result if my noble friend were minded to accept this amendment, or the noble Lord was minded to put it to the vote and won the subsequent Division. My reason is this: because of the highly competitive nature of the market for the sale of alcoholic drinks and other changes in our socioeconomic life, pubs have increasingly turned to food, as a means of improving their profitability. Increasingly, they are becoming, in effect, restaurants. If I were an independent owner of a pub, faced with yet further changes, I would consider what the balance of my business was like; I would boost my food offering and apply for a change of use from my current A4—drinking establishment—to A3—restaurant/café. As a result the loss of pubs would accelerate, not slow down.

There is no evidence of widespread running down of pubs to accelerate closure. Where it happens the ACV procedure is available for the community to use. A handful of cases do not justify the imposition of additional restrictions on the whole industry. Hard cases make bad law—

[Lord Bilimoria]

I thank the noble Lord for giving way. I made the point about pubs increasingly offering food. That is happening—it is part of their offering, along with the drink. But the noble Lord’s argument seems to imply that he is not for the British pub industry and British pubs. The BBPA, which represents 20,000 pubs in this country—the majority—and CAMRA, which represents a huge part of our beer industry, feel that these amendments are good. The noble Lord has not convinced me, for a start.

[Lord Hodgson of Astley Abbotts]

I hear what the noble Lord says. Actually, I am not sure that the British Beer and Pub Association does approve of these amendments. It is concerned at further restrictions being placed on the operation of pubs which will deter investment. What the British Beer and Pub Association favours, with which I entirely agree, is a review of the operation of the asset of community value system in the round. We are taking a sledgehammer to crack a very small nut. The danger is that we will miss the nut and damage the industry.

[Lord Berkeley (Lab)]

My Lords, I am very interested to hear the noble Lord, Lord Hodgson, for once sticking up for the couples who run pubs. We have been listening for the past two or three years to him, virtually single-handed, opposing the ACV system that both the Labour Party and the Government supported. There are still problems with it, as we know; we need not get into it. It was, however, good to hear him stick up for the small pub couples. I agree with the noble Lord, Lord Bilimoria, that the noble Lord, Lord Hodgson, is wrong. Pubs are closing. They are closing and having change of use when the community does not want them. It is very easy to stereotype. I live in Cornwall, in a little village by the sea; if the two pubs there were to close it would be a disaster for the community, but the owners would make much more money selling them as desirable second homes. The same applies in London, because the property prices are so high. Many owners would rather sell their pubs and turn them in to luxury flats or something rather than keep them going, especially when the business rates issue is coming to the fore and there is fear of an enormous growth in the rates they will have to pay.

It is perfectly reasonable and very desirable that these amendments are supported. Pubs, as other noble Lords have said, are an essential part of the community. There have been examples where people have walked down the road and found that their pub suddenly has a barrier around it and is closed for good. They did not know that was going to happen as it was all done in secret.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts]

Just to be clear, I support keeping pubs open and I support people’s property rights.

[The Countess of Mar (CB)]

My Lords, I am sorry to interrupt the noble Lord, but I remind him that this is Report. If he has a question for the noble Lord, Lord Berkeley, would he ask it briefly?

[Lord Hodgson of Astley Abbotts]

My question is: is the noble Lord now questioning property rights for individuals? If someone has an asset, should they not be allowed to dispose of it?

[Lord Berkeley]

There are many types of property in this country that have different constraints on them, and from my point of view pubs should be one of them because they are a very important part of the community. These are reasonable amendments and I fully support them.

Justice and Security Bill [HL]

Lord Hodgson of Astley Abbotts Excerpts

Monday 23rd July 2012 Lords Chamber

Moved by

[Lord Hodgson of Astley Abbotts]

69: Clause 10, page 7, line 3, leave out paragraph (b)

[Lord Hodgson of Astley Abbotts]

My Lords, Amendment 69, which is also in the name of the noble Lord, Lord Dubs, is one of a group of three, and our names are also attached to Amendment 69ZB. I will pass the baton to him—appropriately in this Olympic week—for the second amendment in a minute.

The group of amendments is concerned with Clause 10, the general provision about Section 6 proceedings, and subsection (2), which is about rules of court relating to Section 6 proceedings. Paragraph (b) says:

“enabling or requiring the proceedings to be determined without a hearing”.

My amendment seeks to leave out those words.

When my noble and learned friend winds up this debate, he may say that this is just a case of avoiding expense where no hearing is needed. If so, I understand the purpose, but I do not entirely support it or agree with it. Carried to an extreme, this would deprive the special advocate and/or the claimant of any opportunity to engage to any extent in this part of the procedure. We are talking here about closed material proceedings—secret hearings—about which there may be public concern.

I hope that my noble and learned friend will be able to explain why the interests of transparency and open justice do not command the idea that some hearing, however formal, formulaic or brief, would be appropriate. In particular, I hope that he will explain why the word “require” should appear here; I understand why “enable” should be included, but requiring proceedings to be determined without a hearing seems a step too far. I beg to move.

[Lord Dubs]

My Lords, I shall speak to Amendment 69ZB, but before that I comment that in previous Committee sittings on the Bill, the Government have had hundreds of thousands of pounds-worth of free legal advice—some of it contradictory, but advice has been there. They are not going to get any from me because, like the noble Lord, Lord Hodgson, I am not a lawyer, so I tread tentatively along this path.

Amendment 69ZB is somewhat more complicated than the amendment by the noble Lord, Lord Hodgson, to which my name is also attached. I understand that it is a well preserved tradition that in common law there are rules against the admission of hearsay evidence, inexpert opinion evidence and other unreliable forms of. However, I also understand that in recent years there has been a move away from those rules, because it is now easier for evidence to be challenged and the trial judge can, with the benefit of that challenge, assess how much weight to give to the evidence.

The difficulty is that, in a CMP regime, the judge cannot assess the reliability of unchallenged evidence; he is disabled from doing that. The public and the excluded party need to be reassured that the state will be permitted only to allow private evidence to deprive the citizen of a verdict if that evidence is deemed reliable by objective standards. That is my first point.

Secondly, there is a duty of frankness on the Secretary of State. The provisions in proposed new subsections (6)(b) and (f) do no more than ensure that an excluded citizen will get the same protection as is usually afforded to an absent party in the High Court—one might refer to ex parte proceedings, and so on. It would be unreasonable for the Secretary of State not to make such full and frank disclosure to the court when he is obtaining the huge advantage of a CMP.

The material must be relevant to the following matters: any issue in the case; the question of whether any evidence is admissible; and, in the case of hearsay statement, whether it was obtained by torture and whether it was accurately recorded. Next, there is the reliability of the evidence: whether the source was subjected to threats or bribes to induce him or her to give information. Then, as regards witnesses, there is the existence of lines of inquiry or names of witnesses. Given the disadvantage faced by the special advocate in challenging the state’s case, the state should give any special advocate the leads it has. That echoes the traditional common-law rule—I think it is known as the old Peruvian Guano case—which obliges the party to disclose lines of inquiry in any civil litigation. Finally, there is any evidence relevant to whether the CMP is necessary at all. The need for that disclosure is self-explanatory.

Proposed new subsection (6)(b) prohibits the Secretary of State from redacting parts of documents disclosed to the special advocate. After all, special advocates are already security cleared. There can be no justification based on security risk or privacy to suppress parts of otherwise relevant documents from those within the security ring or circle. If part of the document is relevant, the entire document should surely be seen so that everything can be read in its context. Quotations out of context may not be meaningful.

Then there is the question of banning evidence obtained by torture or cruelty. Evidence should not be admitted unless the court is convinced that it was not procured by torture or other cruel treatment. There is a danger that statements from persons in detention abroad may have been obtained in this way. Given that there is already a ban laid down by the Supreme Court on using statements obtained by torture, and that only the Government would have access to information about how statements were obtained, surely it is only fair that the burden of proof should rest upon the Government to show how such statements were obtained when they seek to use them in evidence. The excluded party would have no ability to make such inquiries.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, there is a danger of going over some of the ground that we went over at an earlier stage. There are two stages to what we are proposing. There is what we have commonly come to describe as the gateway stage and there is the subsequent stage where individual pieces of evidence are argued over and special advocates make representations on those individual pieces of evidence. If the impression has been given that somehow intercept evidence is in a category of its own and will not be allowed to be challenged by the special advocates, then that is a wrong impression. Like other pieces of evidence, it will be subject to robust argument and debate overseen by a judge who, as the noble and learned Lord, Lord Woolf, said, is there to ensure that there is fairness. It is not a question that somehow such evidence is in a special category and in a box not to be challenged and not to be talked about.

[Lord Hodgson of Astley Abbotts]

My Lords, I am extremely grateful to my noble and learned friend for the very full response he has given to the debate. Obviously, there is a lot of information for us to absorb and think about during the Recess before we get to the next stage of the Bill.

When a couple of non-lawyers such as the noble Lord, Lord Dubs, and I propose an amendment and we are followed by a past Lord Chancellor, a past Attorney-General, a past Lord Chief Justice and a past head of the security services, we need to be pretty careful about what we are doing and sit up and listen. The purpose of the amendments was to improve the balance and the fairness. They were probing amendments at this stage and intended to shine a light of transparency wherever and as far as we could.

The noble and learned Lord, Lord Woolf, argued about proportionality. He said that this would apply in only a limited number of cases in civil proceedings and that the issue of judicial discretion could carry the day. However, in previous debates I have said how in a very few cases that could involve the minority community and in particular the Muslim community, which could have a disproportionate impact on the way that our society operates and the way that justice is seen to be operating. I have referred to my own visits to schools and so on as part of the Lord Speaker’s outreach programme, where one sees how extremely sensitive these communities are about the way our judicial system works. Therefore, I am concerned about that. I am also concerned about what the noble Lord, Lord Beecham, said about mission creep. His Amendment 69A concerns another area of danger in Clause 11—where the mission could be expanded quite a lot on the basis of regulation—which we all need to explore.

The noble Baroness, Lady Manningham-Buller, feels that I have got it in for the security services. I have not got it in for the security services at all—

[Baroness Manningham-Buller]

I assure the noble Lord that I have no such thoughts.

[Lord Hodgson of Astley Abbotts]

I am merely testing the case and, as I have said before, I quite understand the anonymity of sources and the danger of publicity to them. However, perhaps I may just say that the amendments that the noble Lord, Lord Dubs, and I have tabled today refer to the role of the special advocate, who is security cleared. Therefore, we should be able to rely on that.

With regard to Amendment 69, my noble and learned friend said that this was an issue of case management where the parties have agreed and that it was business as usual. Unfortunately, this is where the ice cracks under my feet because I have no idea whether that is a good argument. I see nothing about parties having agreed in the Bill at present. However, I am sure that we will have a chance to consider this further. I will certainly need further advice before going any further on the point. Therefore, at this stage, I beg leave to withdraw the amendment.

Amendment 69 withdrawn.

--- Later in debate ---

[Lord Beecham]

My Lords, this amendment and the other amendments in the group relate to what are extraordinarily wide powers that Clause 11(2) and subsequent subsections would confer on the Secretary of State to amend, for the purposes of the legislation, the definition of “relevant civil proceedings”. The Delegated Powers Committee looked in some detail at these matters and I rely heavily on its observations. It raised significant concerns and made it clear that, while, of course, the procedures are confined to civil proceedings, the effect of the Bill is to permit any such civil proceedings to be ones in which the procedures can be invoked.

Subsections (2) to (4) of Clause 11 confer a very wide power on the Secretary of State to amend the definition and to amend the definition by affirmative order. In so doing, courts or tribunals can be added or removed and rules can be prescribed. The committee stated that:

“The powers are undoubtedly wide”.

They might, indeed, in the view of the committee, be exercised so as to specify a coroner’s court. Of course your Lordships will recall that the question of inquests has been mentioned more than once. The Lord Chancellor has indicated that procedures would not apply to inquests but, on the face of it, that decision could be changed under the provisions of Clause 11(2), by order, to be approved, as I have indicated, by affirmative resolution. In addition to that, there is the possibility of some urgency being required in the mind of the Government and that is also a question which the committee addressed. There is the possibility of a made affirmative procedure being invoked under which a change could be instituted by, effectively, tabling an amendment. Although, ultimately, that would have to be approved, it would take effect immediately.

The committee, while acknowledging the Government’s concerns about urgency, pointed out that if a situation arose in which it was felt that an application needed to be made in proceedings before a court or tribunal which was not initially specified and for which, therefore, an order would have to be brought forward, the Government,

“does not explain why it is thought that an order which attracts the draft affirmative procedure should offer any speedier means of meeting that perceived need for amending legislation than, for instance, a short Bill fast-tracked through both Houses”.

It said, and I think that there is considerable force in the argument, that that approach,

“would at least ensure that control over further extensions of the ‘closed material procedure’ would remain with Parliament, rather than with the Government”.

Nevertheless, it took the view that the House should consider,

“the scope of the powers conferred so that it may appreciate the unconstrained nature and extent of the provision that might be made under them by this or any future government. The House may wish to consider whether the Bill should be amended to restrict that scope or to include any such safeguards as the House might regard as necessary for ensuring Convention rights are observed and for protecting the interests of open justice”.

The Constitution Committee thought that the made affirmative procedure might be more appropriate, but the Delegated Powers Committee felt that that would perhaps be the least likely way to meet the need for urgency.

The provisions here are extensive. The procedure that the Government propose to adopt does not really allow sufficient parliamentary scrutiny and leaves the decision, as the Delegated Powers Committee made clear, in the hands of the Government when there is an alternative if a situation of urgency arises. Your Lordships might think that this is much too broad a power to be left in the way that this clause and its subsections provide and I sense that the other amendments in this group reflect that view. I hope that the Government will reconsider and go back, before Report, to the recommendations of the Delegated Powers Committee and seek to amend this provision as it currently stands to one that is more acceptable and more consonant with the procedures of parliamentary scrutiny of what might be significant changes to the scope of the Bill. I beg to move.

[Lord Hodgson of Astley Abbotts]

My Lords, I have tabled Amendment 70 in this group. The noble Lord, Lord Beecham, has covered the points and I do not wish to weary the Committee with repetition. Amendment 70 would remove subsections (3) and (4), as well as subsection (2), and is therefore more brutal in its application. One of the briefings I received on this part of the Bill said that this was a potentially,

“unwarranted extension of an unsatisfactory procedure”.

I therefore support what the noble Lord was saying about the dangers of mission creep, which we have discussed before. As we keep hearing it stressed that this is going to be a very rare procedure, it seems strange that we should allow courts to be added in what is essentially a pretty cavalier manner. I am all for statutory instruments and their positive nature, but they are unamendable and inherently too weak to tackle something that is as dangerous and difficult as this area that we have been discussing these past few days.

Subsection (4)(a) refers to “explaining the meaning” of “rules of court”. Do they really need to be explained? Are we not, as the noble and learned Lord, Lord Woolf, has explained to us, able to rely on judicial discretion and ability to interpret? I am concerned that explaining the meaning of the rules of court carries with it, in some more sinister way, an instruction as to what they mean and what judges should do. Similar wording in subsection (4)(b),

“enabling provision of a particular description to be made by such rules of court”,

seems to me, as a non-lawyer, to carry with it a degree of direction and fixed purpose that does not fit well with the sensitivity of the nexus that we have been discussing between civil liberties and the need to protect national security.

[Baroness Turner of Camden]

My Lords, I am not a lawyer but I am a former trade union official and tend to look at the proposed legislation before us from the standpoint of people who are working in industry and are members of unions. I am most concerned about the possible impact of this law on employment legislation.

We know that the Government are currently considering employment law and have been considering employment tribunals now for a very long time. Every time I have asked about employment tribunals I have been told that they are under consideration and that the Government are looking at them, and so on and so forth. Every time that employment tribunals, or tribunals of any kind, make an appearance in legislation, I ask what the Government are up to and what it means. Can we be told whether there is an impact on employment in subsections (2) and (4)? It is these two subsections, referred to in Amendment 70, that first attracted my attention. Can we be told precisely what these subsections are intended to involve regarding reference to tribunals, with all that that could mean for employment law?

Justice and Security Bill [HL]

Lord Hodgson of Astley Abbotts Excerpts

Tuesday 17th July 2012 Lords Chamber

Moved by

[Lord Hodgson of Astley Abbotts]

53: Clause 6, page 5, line 18, at end insert—
““national security” means an operation of the intelligence or military services”

[Lord Hodgson of Astley Abbotts]

Amendment 53 is a simple amendment, which merely inserts at the end of Clause 6(7) a definition for “national security” as meaning an operation of the intelligence or military services. If I say “simple”, it is probably deceptively simple, because I fully appreciate that its consequences are far from simple. Indeed, the noble Baroness, Lady Manningham-Buller, has very kindly told me that she does not agree with this approach, and as she has forgotten more about national security than I will ever know, I await with interest what she has to tell me on the other side of this coin.

I make two background points. One is that I am not wedded to the wording of the amendment. This is just the best that the organisation Reprieve and I could come up with. However, I am wedded—this is the second point—to the idea of a debate, so that we can explore the advantages and disadvantages of having a definition. Why, on balance, do I think that there should be a statutory definition? I suspect that, over the years, the absence of a definition has given the Secretary of State quite a lot of freedom. It may or may not, in the past, have been useful and helpful to have a flexible definition, but we are now looking at different things in the Bill and I think that the arguments about flexibility come under more stress and strain.

I will share with the Committee some examples of the flexible use of the phrase “national security” in the past. Some 40 years ago I applied to join the Foreign Office and it turned me down, greatly to its good fortune. I was told in my interview that if I had certain sexual preferences, this would give rise to questions of national security. More recently, I recall an elderly heckler of the then Prime Minister Tony Blair being detained under prevention of terrorism laws, which presumably also could give rise to questions of national security. The rather graphically described “spy HQ” overspend on both the MI5 and MI6 buildings, whose costs overran by £226 million, was able to be discussed only in part on grounds of national security.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I am grateful to my noble friend Lord Hodgson for bringing forward the amendment. It is clear from the contributions that it raises an important issue. I certainly recall that on publication of the Bill, the issue of whether there was a definition of national security was raised not just by a number of Members of your Lordships’ House but more widely. It is important to define the type of material that closed material procedures should be used for. I hope that I can set out why we think we have reached in the Bill the right definition of the type of material that would be considered within a CMP—material that if released would damage national security.

The Government carefully considered the responses to the public consultation on the Green Paper, including consideration of the scope of the material to be covered, before bringing forward this legislation. The Bill makes provision for closed material procedures to be used only in contexts where there would be damage to national security. Examples of sensitive material that might be relevant to a case that would give rise to a duty to claim public interest immunity, and which could also be heard in a CMP under this legislation, include, for example, information from a sensitive source whose life or safety could be put in danger if openly disclosed. I think that example was given by the noble Baroness, Lady Manningham-Buller. Other examples include information relating to current operations that would be compromised if it were to be made public; intelligence material shared with the United Kingdom by foreign intelligence agencies; or the content of telephone calls or e-mails intercepted by the intelligence agencies that would not be admissible in open civil proceedings. It is difficult—a number of noble Lords said this in their contributions—to be completely prescriptive about all the types of damage to national security that could justify closed material proceedings.

The amendment in the name of my noble friend introduces a definition. I would assert that the term “national security” is clear, tried and tested. My noble friend Lord Lothian said that it is clear “when you see it”. One noble Lord asked: “Who sees it?” In this case, the judges see it. The Secretary of State makes an application to the court, and the judge determines whether it satisfies the condition that there would be damage to national security.

It has been for judges to interpret this term appropriately and flexibly. The flexibility of the current approach allows the judge to consider the arguments of the Secretary of State on their merits. Of course, the procedure, even at the initial gateway stage, would also allow special advocates to make representations to the court.

The noble Lord, Lord Beecham, mentioned Article 6 of the European Convention on Human Rights. It is important to remember that in Clause 11(5)—

[Lord Hodgson of Astley Abbotts]

The noble and learned Lord just said that the special advocates could make representations to the court. I am not a lawyer, as I have said frequently, but Clause 7(1)(b) states that,

“such an application is always considered in the absence of every other party to the proceedings (and every other party’s legal representative)”.

Does that not mean that only one side presents?

[Lord Wallace of Tankerness]

I think that my noble friend has an amendment later where we can explore this more fully. It is the case that special advocates could be engaged both at the second stage, when individual pieces of evidence are being considered, and, by virtue of Clause 10(4), at the application stage.

I will finish my point on Clause 11(5). Nothing in Clauses 6 to 11 should be read as requiring a court to act in a manner inconsistent with Article 6 of the European Convention on Human Rights. In that respect it could be said that Article 6 trumps the provisions expressly set out in Clauses 6 to11.

My noble friend expressed a recognisable concern that national security today might involve serious crime or international relations tomorrow. It is very clear that not only will it not, but that international relations and criminal activity have been considered and rejected for the purposes of closed material proceedings in civil cases. The Bill deliberately omits other aspects of the public interest from CMP clauses, such as international relations and the prevention of detection of crime, even though these categories are included in existing statutory CMPs. I hope that that gives the assurance that it is certainly the intention of the Government that there should not be definition creep, as it were.

My noble friend asked about Pepper v Hart, as did the noble Earl, Lord Erroll. It is not only when European Union issues are involved but when there is doubt in a court case about the interpretation of any primary legislation that the parties can resort to statements made in Parliament that should throw light on the interpretation. So this is not limited to an EU context. We cannot dictate to the courts how to apply Pepper v Hart, but doubtless, in future, parties to litigation will be able to read what I am saying today at the Dispatch Box and, if pertinent, advance cases to the court on that basis.

I have an embarras de richesses.

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[Lord Wallace of Tankerness]

My Lords, I hear what the noble Lord says. I have already tried in response to the debate to indicate some of the things that are excepted from the definition as we have it. With those considerations in mind, I invite my noble friend to withdraw his amendment.

[Lord Hodgson of Astley Abbotts]

My Lords, I began by saying that I did not believe that this was an open-and-shut case, and so it has proved. My noble and learned friend has referred to the “statutory straitjacket” and problems thereof. Interestingly enough, while the debate was going on, I was passed a note by one of my noble friends showing a case in which he was involved, where national security was invoked in quite an extraordinary way. I do not therefore think that I have yet reached entirely firm ground.

I am grateful to my noble friend Lord Deben for his powerful and very apposite remarks and speech. My noble friend Lord Lothian is of course an eminent Scottish advocate. I am not an advocate, Scottish or otherwise, but in reference to his remarks on Clause 6(2) about the court deciding, I am told that where a judge is faced with a statement by the Secretary of State leading to a CMP—not a weighing of evidence like we have in PII—to the effect that this would be damaging to national security, the judge is unlikely to push back on it. Therefore, the idea which the clause might technically give rise to is not, according to legal opinion that I have heard, likely in practice to happen. Those who have experience in your Lordships’ House will be able to discern this better than I can. That is something which we can no doubt explore another day.

I said that the noble Baroness, Lady Mannigham-Buller, had forgotten more about national security than I would ever know. It was meant to be a compliment, for the avoidance of doubt.

[Baroness Manningham-Buller]

I take it as a compliment. It just sounded as though I had been boasting, and I would not want to do that.

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[Lord Hodgson of Astley Abbotts]

It certainly was not boasting. It was my remark, not any remark the noble Baroness made to me. I found her history lesson, as she described it, very useful. We started from a narrow definition which has now moved out to a much wider range of threats. Of course, one must accept her stricture about protecting sources of intelligence where men and women put their lives on the line to help provide intelligence that protects this country. I thought her suggestions about narrower definitions were very interesting. As we are going to be using CMPs in rare cases and we accept that this is a dangerous precedent in many ways, perhaps some relationship between the definition and the operation of this Bill might be helpful.

In conclusion, I just say that the shift in gears with this Bill—the widening use of CMPs—requires us to consider and reflect on how we use the term “national security” as the trigger without any definition. My noble and learned friend has given plenty of food for thought and I would like to have a chance to consider and reflect. In the mean time, I beg leave to withdraw the amendment.

Amendment 53 withdrawn.

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Moved by

[Lord Hodgson of Astley Abbotts]

55: Clause 7, page 5, line 28, leave out “is always” and insert “may be”

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[Lord Hodgson of Astley Abbotts]

My Lords, in moving Amendment 55 I shall speak also to Amendments 56, 63, 64, 65, 66 and 67. This group of seven amendments spans Clauses 7 and 8. Their underlying purpose is to improve the relationship between the special advocate and his client—if that is the right word—and the special advocate’s ability to carry out his duties effectively. The group breaks down into three subgroups.

First, Amendment 55 concerns Clause 7(1)(b), under which the rules of court require,

“that such an application is always considered in the absence of every other party to the proceedings (and every other party’s legal representative)”.

This is the point that I made in the debate on a previous group of amendments. My amendment seeks to replace “is always” with “may be”. I accept that some, perhaps most, matters will be considered with national security in mind and so will have to be heard in a closed court. However, I wonder whether there will never be any matter that could be argued with a special advocate and other legal representation present. Obviously, one question is: what constitutes national security? We have had a debate about the looseness of that term. At the moment we have no definition of it. Then there are other sorts of information, such as that provided by the police and generated within the UK, which might come up and would not be within the closed material proceedings. I suppose the principle behind this is to increase judicial discretion and therefore fairness—an issue on which the Government have placed great stress. My last point on this amendment is that requiring a judge to hear CMP applications in the presence of only one side under all circumstances does not seem to fulfil the principles of natural justice.

The second group consists of Amendments 56, 64 and 65. This group is about the nature of the appointment of a special advocate and ensuring it is made in a timely fashion. Amendment 56 inserts a new paragraph after Clause 7(1)(b):

“that where a party is excluded from such an application his interests are represented by a special advocate appointed in advance of the court hearing such application and, if the application is granted, for the duration of the section 6 procedure and trial”.

The important words here are “in advance” and “for the duration of”. In other words, the special advocate needs to be given time for preparation and for consultation. My noble and learned friend may say that this will happen anyway but I am told—I stand to be corrected—that there is no statutory requirement at present and it seems to me that in these special circumstances it might be worth while to consider that.

Amendment 64 covers the same points in Clause 8. Clause 8(1) states:

“The appropriate law officer may appoint a person to represent the interests of a party”.

For me, the critical word is “may”. My amendment seeks to replace “may” with “must”. Again, the reasons for that are self-evident and run parallel with the supporting arguments I have given for my natural justice amendment.

Amendment 65 amends the same clause by removing the words,

“in any section 6”

and replacing them with,

“as soon as practicable following”

an application. Applications should not go unchallenged. Therefore it needs to be certain that the claimant is represented at the time of his application and during the proceedings.

The last group, Amendments 63, 66 and 67, is intended to try to strengthen the relationship between the special advocate and the claimant. Amendment 63 takes us back to Clause 7 and inserts two new paragraphs regarding what the rules of court must provide where the proceedings are in connection with a Section 6 declaration. They make it clear,

“that the special advocate is afforded the opportunity to take instructions from the party whose interests he is appointed to represent, and … that the special advocate is at liberty to apply to the court at any time if he considers that any relevant material should be disclosed”,

if he feels that is opportune.

Amendment 66 goes back again to Clause 8. Clause 8(4) states:

“A person appointed as a special advocate is not responsible to the party”.

That seems to me to be strangely indifferent and distant. I understand the nature of the relationship implied by “represent” and that is why my amendment does not propose that but it replaces “not responsible to” with the slightly warmer and more positive phrase,

“responsible for representing the interests of”.

That understands the positive nature of it but does not imply the normal professional duty and relationship.

Finally, Amendment 67 adds four new subsections. The proposed Clause 8(6) requires the special advocate to provide gists of material. We shall come to that in the next set of amendments. The proposed Clause 8(7) permits the special advocate to withdraw if,

“he considers that he is prevented or otherwise unable to properly represent the interests of the excluded party”.

I hate the split infinitive “to properly represent” but it provides a quite important albeit rather nuclear approach regarding the special advocate in the sense that he could draw attention to how the case was being run by withdrawing if he felt that his position had become untenable.

On proposed new subsection (8) in Amendment 67, the requirement for the special advocate to make a report to the ISC about each case for which he is responsible is intended to be an additional element of control. Proposed new subsection (9) would impose a duty and responsibility on him to preserve the confidentiality of closed material, except for the gist to which I referred under proposed new subsection (6), and except where material may lead to a crime that should be referred to the CPS. I have said before about that that I am the treasurer of the All-Party Parliamentary Group on Extraordinary Rendition. Some of the things that I believe have gone on in a rather shadowy way around that rather nasty practice could usefully be given some light. This would be a way in which that light could be shed.

To conclude, this group of seven amendments is intended to try to improve the quality of justice and the equality of arms by giving the special advocate a more defined role in Section 6 proceedings; ensuring that the special advocate attends proceedings where the issue is outside national security; ensuring that the special advocate is appointed in a timely fashion, before a Section 6 application is made; strengthening the ability of the special advocate to represent the claimant by ensuring proper access; and enabling the special advocate to resign if he feels that he cannot do his job properly.

The special advocates have circulated a paper to which I have already referred. I was particularly impressed by paragraph 17, where they list eight reasons why CMPs lack fairness and effectiveness. Three of their reasons seem to have relevance to this group of amendments. The special advocates think they are unfair because of the,

“prohibition on any direct communication with open representatives, other than through the Court and relevant Government body, after the SA has received the closed material”.

That is the first reason. The fifth reason refers to:

“A systemic problem with prejudicially late disclosure by the Government”.

The seventh reason refers to:

“The increasing practice of serving redacted closed documents on the Special Advocates, and resisting requests by the SAs for production of documents to them (i.e. as closed documents) on the basis of the Government’s unilateral view of relevance”.

These amendments are designed to tackle some of those problems. Some of the others in the list have importance, but those are the three most relevant. I beg to move.

[Baroness Williams of Crosby]

I mention again that I am not a lawyer, but I have the greatest respect for the noble Lord, Lord Hodgson of Astley Abbotts, who has done a very great service to this country in the excellent work that he and others have done in the All-Party Parliamentary Group on Extraordinary Rendition.

I want to underline what the noble Lord said about Amendment 66 and to ask my noble and learned friend on the Front Bench whether the wording could not be less sweeping than that in the Bill. Clause 8(4) states that,

“a special advocate is not responsible to the party to the proceedings whose interests the person is appointed to represent”.

I understand some of the problems and appreciate that there are difficulties here, but I ask my noble and learned friend to look again at the wording of the Bill. In particular, my understanding is that a special advocate is responsible for everything short of something that might put at risk national security; it does not mean that the special advocate has a way out of in any serious sense representing the interests of the person whom he has been appointed to represent. I think that that is the meaning of the wording of the Bill. Will my noble and learned friend consider wording that is less likely to raise any questions about the obligations of a special advocate for the people before them who have no other way to get across their case? I suggest that some wording that more precisely defines a special advocate’s duty and where it begins and ends would be much better than the wording currently in the Bill.

--- Later in debate ---

It is important that we have discussed these different issues. I hope I have shown that the provisions in the Bill and the rules of court which will be made under these provisions will enable special advocates, in dealing with closed material proceedings, fully to deploy the skills in which they have already been shown to be more than competent. I ask my noble friend to withdraw his amendment.

[Lord Hodgson of Astley Abbotts]

My Lords, this was a menu of issues that I felt we ought to discuss today. I am exceptionally grateful to my noble friends Lady Williams and Lady Berridge for their support on Amendments 66 and 67. The noble Lord, Lord Pannick, did us non-lawyers a favour by revealing the full neutrality—or less than neutrality—of the special advocate. Describing my amendment as a “fig leaf” may have been a bit brutal, but it was at least clear. We now know where we stand, even if we are not reassured by it. I say to my noble friend Lord Gold that, whatever the rights and wrongs of the explanation given by my noble and learned friend on the Front Bench, to say that a special advocate has to stay because it is better that he stays, even if he does not like doing the job, than for the case not to be able to carry on, seems to be a strange way of following justice. My noble friend Lord Faulks seemed to be dangerously close to saying, “This is as good as it is going to get. Let’s trust the judges”. If we are not careful, we will put too much weight on the judges and on their judgment. We need to provide some buttress and support to them in their difficult choice and the difficult task that they carry out.

I am grateful to my noble and learned friend on the Front Bench for his extensive summing up. I am convinced by the arguments on Amendments 55 and 63. On Amendment 64, my noble and learned friend said that a claimant may not want to have a special advocate. Given what the noble Lord, Lord Pannick, said about the nature of the relationship, it seems that the claimant has virtually no interest in this at all. On “must” be appointed, it would be a good idea if he were appointed, because at least it would be better than nothing happening at all. That is an important issue and it is made more important by the way that the noble Lord, Lord Pannick, has illuminated the nature of the relationship or non-relationship.

With regard to Amendment 67, I am not suggesting that the ISC should have judicial scrutiny. I am trying to find a mechanism that will enable some body in which the Government, Parliament and society can have confidence to cast an eye over the way this procedure is working and ensure that the very important delicate balance, which we all know exists between national security and individual liberty, is maintained.

The speaking notes that officials prepared for my noble and learned friend did not get to the heart of what I was driving at. However, a lot of useful information was given by my noble and learned friend. I am extremely grateful to him and to all other noble Lords. I am sure that there are bits that we will want to come back to, but for the time being, I beg leave to withdraw the amendment.

Amendment 55 withdrawn.

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Moved by

[Lord Hodgson of Astley Abbotts]

57: Clause 7, page 5, line 31, leave out paragraph (c)

[Lord Hodgson of Astley Abbotts]

My Lords, I am afraid that I have another group of amendments. In moving Amendment 57, I will also speak to Amendments 60, 61 and 68. Other amendments in this group, Amendments 58 and 59, will be spoken to by noble Lords more experienced in the law than I am. Again I await with some relief the arrival of the heavy artillery.

The purpose of this group of amendments is to encourage the use of gisting as a means of ensuring equality of justice. I accept that the amendments are quite challenging in the form that they have been put down, but I ask my noble and learned friend to see that they are balanced by the duty of confidentiality that was imposed on special advocates in my Amendment 67, which was in the group that we were just discussing.

Simply put, Amendment 57 omits Clause 7(1)(c), which imposes a duty on the court not to allow gisting. That strikes at the root of what this group of amendments is trying to achieve.

Amendment 60 takes Clause 7(1)(d) and replaces the words “consider requiring” with the word “require”, so that,

“if permission is given by the court not to disclose material, it must consider requiring the relevant person to provide a summary”,

would read,

“it must require the relevant person to provide a summary”.

As I said, the aim is to widen the use of gisting. Amendment 61 would omit Clause 7(1)(e) because it is again dependent on the national security definition and has in part been covered, as I said in my introductory remarks, by the duty of non-disclosure imposed by Amendment 67.

Finally, Amendment 68 would omit Clause 10(1) because I am not quite clear what it means. It seems to repeat Clause 7(1)(c) and I would be grateful if my noble and learned friend could explain why we need it.

In Committee, all our debates have had a pre-eminent underlying theme: how to balance the liberty of the subject with the need for national security and the judicial process. Gisting is one way to help that balance. I beg to move.

[The Deputy Chairman of Committees (Viscount Ullswater)]

My Lords, I must advise your Lordships that if this amendment is agreed to, I will not be able to call Amendments 58 and 59 because of pre-emption.

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[Lord Wallace of Tankerness]

I fully accept—and it was said from this Dispatch Box in earlier debates—that it is very much seen as an exceptional procedure. It is not intended to be run-of-the-mill, and nor would we wish it to be seen as “creep”. It is meant to apply in only a very limited number of cases where the Government believe that they have a proper defence to cases made against them, but where at the present time it is not possible to deploy that defence because it would mean disclosing material which would be damaging to the national interest.

As for the earlier point, it has been said on a number of occasions that the role of the special advocates is crucial. It will be crucial in arguing over and determining which pieces of material should be disclosed and which should not and in making representations as to what should or should not be in any gist. However, as I indicated in an earlier debate, it is important to remember, too, that we are dealing with civil proceedings in which the defendant will almost certainly be the state and the claimant will be the person who has been excluded. Therefore, they will know full well what their case is as it is their own case that they will be advancing. Before the closed material is made available to the special advocate, there will be an opportunity for the person who knows what his or her case is to discuss it with the special advocate.

Finally, many judges have gone on record as praising the very valuable work that special advocates do in these cases. It would be wrong to suggest otherwise. Perhaps the noble Lord is not suggesting that, but it would be wrong to give the impression that special advocates are totally hamstrung. They have a very good track record, as has been recognised by a number of senior judges.

[Lord Hodgson of Astley Abbotts]

My Lords, the length of the debate and the breadth and depth of contributions have indicated how important gisting is. My noble friend Lord Carlile spoke about fairness, the noble Lord, Lord Beecham, about balance, and my noble friend Lord Faulks about the dangers of not giving sufficient weight to the demands of national security. One of the problems with not practising law is that you do not have real-life examples, such as those produced by several noble Lords this evening, to back up the impact and give bite to their particular recommendations.

I shall briefly repeat what I said at Second Reading: my experience of working with, speaking to and meeting young Muslim men and women as part of the Speaker’s outreach programme in Birmingham and the West Midlands shows that they have a keen interest in how our justice system works and whether it delivers fairness and balance to all sections of our community. While these are probing amendments, I am sure that this is an issue to which we will come back. Now that my noble and learned friend has given us a lot of helpful information and a careful explanation of the procedure to be gone through, we will have time over the summer to reflect on this. We shall see where we come out, but I am sure we will want to have a further crack at this to make sure that our society and the communities within it do not feel that the justice system does not deliver fair, open and transparent justice to them. In the mean time, I beg leave to withdraw the amendment.

Amendment 57 withdrawn.

Justice and Security Bill [HL]

Lord Hodgson of Astley Abbotts Excerpts

Tuesday 17th July 2012 Lords Chamber

[Lord Beecham]

As does the noble Lord, Lord Marks. I had the misfortune to sit beneath the portraits of both those distinguished judges at my school and my college. I could not escape them but I would not wish to escape the noble Baroness.

Despite these warm words, I am somewhat disappointed by the noble Baroness’s reply on the amendments. Amendment 67A seeks, in effect, to replicate the independent review process of the independent reviewer of terrorism legislation without adopting that individual, as the noble Baroness, Lady Berridge, suggested. Having said that, it would not be beyond the wit of government to appoint a second independent reviewer of terrorism legislation and allied matters if that were thought to be required. It is the independence of the review that is essential. Furthermore, the post-legislative review process is normally designed to take place after three to five years. Five years is too long. This is a rather different piece of legislation from most of that which would be reviewed. We are dealing with some fundamental rights and a fundamental change in the justice system. It deserves special consideration. I hope the Government will think again about that. The same really applies to Amendment 67B. It is important that there should be in the public domain regular checks on precisely what use is being made of these procedures. Concerns have been expressed in Committee today that, like Topsy, the use of these things may simply grow. The legislature needs to keep an eye on developments here. The assumption is that there will not be many. That is an assumption which needs to be tested regularly. A compilation of statistics on an annual basis should help that.

[Lord Hodgson of Astley Abbotts]

Does the noble Lord agree that the phrase “mission creep” could be made for this sort of thing? We just find it spreading out. Mission creep would be a most dangerous aspect of this legislation.

[Lord Beecham]

I concur with that view, hence the need for regular reporting, not just of the statistics. The next amendment I will move will deal with other aspects. There does not appear to be available in general an indication of how much use is being made of the process under the present regime. It will be even more important when we are looking at the new developments that the Bill proposes. I am somewhat disappointed with the reply. It may well be that we will have to return to these issues on Report. In the circumstances, I beg leave to withdraw the amendment.

Justice and Security Bill [HL]

Lord Hodgson of Astley Abbotts Excerpts

Wednesday 11th July 2012 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My Lords, I have amendments in this group that refer to the inability of parties other than the Secretary of State to access CMPs. Amendment 41 and consequential Amendment 50 would omit “The Secretary of State” from the first line of Clause 6(1) and replace it with:

“Any party to relevant proceedings”.

I propose this on the grounds of fairness. Throughout the briefing and our debates so far, the Government have stressed the importance of fairness. In my view, the present drafting of the clause represents an unacceptable inequality of arms. A party who is suing the Government has no right to apply for a CMP, yet one of the justifications for CMPs in the Green Paper was unfairness to claimants. The Green Paper claimed that some claimants might find their cases being struck out because a fair trial was impossible due to the fact that the issues were so steeped in secret, undisclosable material that the Government would be unable to defend themselves. The Government claimed CMPs would be necessary to protect the claimants from that eventuality.

In the Government’s briefing, which they circulated ahead of the proceedings on this Bill, they said:

“It is also clear that in some cases, the absence of CMPs is particularly unfair on the claimant. In a recent naturalisation case (AHK and Others) the judge ruled that without any means by which sensitive intelligence could be heard in court, ‘the Claimant is bound to lose, no matter how weak the grounds against him, there is obvious scope for unfairness towards a Claimant’”.

If it is advantageous to any party to use closed material proceedings, why should they not be able to so?