Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Phillips of Sudbury Excerpts(12 years, 3 months ago)
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Lord Pannick
My Lords, there are undoubtedly few examples of claims under the scheme that raise complex legal issues that require legal advice, but there are some, and it is unfortunate that the Bill should seek to exclude legal advice and representation in cases where such complex legal issues arise. It is particularly unfortunate that paragraph 16 of Part 2 should exclude claims under the criminal injuries compensation scheme because that conflicts with one of the most welcome and important developments in criminal law in recent decades: the recognition of the rights and interests of victims of serious crime. The criminal injuries compensation scheme is one of the earliest statutory—or non-statutory, in its case—recognitions of the rights and interests of victims. I can think of nothing more likely to undermine the real interests of victims where complex matters are raised than denying them any opportunity of legal aid and advice through the legal aid scheme.
Lord Phillips of Sudbury
My Lords, I was rather impressed by the case that was put to the House by the noble Lord, Lord Beecham, and at the same time I heard what my noble friend Lord Thomas said from his direct experience of these types of tribunal. In summing up this debate, perhaps my noble friend might contemplate a compromise where legal advice would at least be available even if legal representation is not. That would significantly alleviate the sort of case that the noble Lord, Lord Beecham, told us about, and would see justice done.
Lord Pannick
My Lords, perhaps I may add a few words on Amendment 91. The defect in Clause 9(3) is that it defines the “exceptional case determination” exclusively by reference to breaches of convention rights and EU law rights. But those rights are designed as a floor and not a ceiling. It is most unfortunate that the Bill treats them as a ceiling. I hope that the Government, on reflection, agree that the interests of justice are criteria entirely appropriate for the responsible director to consider and to apply.
The wording of Clause 9(3) is very regrettable. If this amendment is not accepted, the consequence is that the director is compelled to deny legal aid even if he considers that the interests of justice require it in the circumstances of the case.
Lord Phillips of Sudbury
My Lords, my name is attached to Amendment 91. It is common ground across the Committee that the concern of those of us putting forward amendments is that, not just occasionally but frequently, the Government will inadvertently cause serious injustice by the exclusions from scope to legal aid. We have had a lot of debate on that broad proposition. The exceptional case provision in the Bill is therefore of huge importance, and if it were to be couched in sufficiently wide language, I believe that it would go a long way towards assuaging some of the great concern that is felt, as I have said, across the Committee about what this Bill will do in practice.
I want to pick up on the point made by the noble Lord, Lord Bach, that this amendment has been drafted by the Law Centres Federation. No other body of legal advice organisations in this land is as intimately knowledgeable of the on-the-ground reality of what, after this Bill has come into effect, will in practice be essential in order to avoid the greater injustices. Although my name is added to Amendment 91, I have to say that Amendment 91A is rather better and would also give the Government some solace. The arrangements that would result from it are defined in practical terms which the Government could accept. It may be that they would still be unhappy about the final subsection which talks generally about the “interests of justice”, and if that is the case, surely the way forward would be for the Government to accept the four paragraphs under the first subsection and add further ones as the price of excluding the general “interests of justice” exception. I hope that the Government will take this opportunity to put our minds at rest.
Baroness Howe of Idlicote
My Lords, I would like to support this group of amendments. I am sure that some tidying up is needed, but on looking at the areas covered, I had thought originally that I was probably keener on the generality of the amendment tabled by the noble Lord, Lord Thomas of Gresford, because it gives scope for decisions based on individual circumstances. Amendment 91A is more detailed and spells out several important areas, and that is helpful in many ways, but I wonder whether the age limit, when we are talking about vulnerable or disabled children, or even more important, children who have been in care, is not too low and should not be much closer to 25. However, I strongly support the intentions behind this group of amendments.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Phillips of Sudbury Excerpts(12 years, 3 months ago)
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Lord Howarth of Newport
My Lords, the speech of the noble Lord, Lord Best, was well worth waiting for. This is a very important and valuable group of amendments and I endorse the arguments so powerfully stated by the noble Lords who have spoken. Under the Government’s proposals in the Bill, legal aid will no longer be available for damages claims in relation to tenancy disputes; for example, disrepair. CLG tells us that more than 40 per cent of private rented dwellings do not meet the decent homes standard. Tenants will still be able to get legal aid to seek injunctions to get the work done, although only where there is serious risk of harm to the health or safety of the household. So there is a very high threshold for one to get legal aid for an injunction of that kind.
Under the current arrangements, as the noble Lord, Lord Best, explained, bad landlords know that the longer that they delay in carrying out the repairs, the greater the damages that they will have to pay. Therefore, the current arrangement, whereby legal aid is available for damages suits for disrepair, constitutes an incentive on landlords to carry out the repairs relatively promptly. Without the availability of legal aid for such damages claims, the pressure on landlords not to let their properties fall into disrepair will be removed.
Illegal eviction, actual or threatened, is a horrible reality for all too many people. Under the Government's proposals, legal aid will be available only to secure an injunction for the tenant to be reinstated to the property from which he has been illegally evicted. Again, as the noble Lord said, it is most likely that tenants will not want to go back to a tenancy with that same landlord. They will want to secure recovery of their possessions but they will not want to go back to that landlord. Under the Government’s proposals, the worst landlords will be able to get away with the worst behaviour and their victims will not be protected and will not be able to obtain compensation. The availability, through legal aid, of damages claims against bad landlords is a deterrent against bad behaviour; and the aggravated and exemplary damages that are, from time to time, awarded because the court takes a particularly severe view of the behaviour of a landlord are a most important deterrent. We will not be able to see that working in the future.
These problems are all too extensive. Environmental health officers testify to the fact that there are too many bad landlords and that many of them behave with the peculiar ruthlessness with which unfortunately people tend to act in housing matters; 90 per cent of environmental health officers say that they have personal experience of landlords harassing or illegally evicting tenants. The proportions of people availing themselves of private rented accommodation are rising at the moment. The Localism Act encourages local authorities now to place homeless households in the private rented sector. The benefits cap and the cuts to local housing allowance will drive families lower down the scale of the private rented sector towards the bottom end. It seems bizarre that legal aid will not be available to people facing housing problems until they are actually on the precipice of losing their homes. It is obvious that early intervention to deal with the underlying causes is a sensible policy to prevent the underlying problems deteriorating. It is both kinder and more economic.
Removing welfare benefit and debt cases from the scope of legal aid will mean, as my noble friend Lord Stevenson pointed out, that we will see a compounding effect of people getting deeper and deeper into trouble until they face homelessness. Under the Government's proposals, only then will they be able to get legal aid to help extricate them from the crisis that they have been allowed to get into.
This policy will increase insecurity and distress among tenants. It will add to the pressure on tribunals and courts, as the noble Lords, Lord Shipley and Lord Best, told us. It will increase costs to the taxpayer because of the consequences of the distress and of the problems that will be without remedy.
The Minister prayed in aid time and again in debates on different parts of this foolish and iniquitous Bill the requirement of the Treasury that the Ministry of Justice should make its contribution to reducing the deficit. The Treasury will certainly not be swayed by the pathos of vulnerable people finding themselves in greater difficulty than they need be in, but it should be swayed by the prospect of increased costs being shunted around Whitehall so that we end up with no reduction of the deficit but possibly an increase in it. I very much hope that the Treasury will review the policy that is proposed in the Bill before we get to Report. I hope that it will look at the arguments and figures put forward by Dr Cookson of King’s College. The central case on which the Minister relies—that all this, miserable though it may be, is inescapably necessary in order to reduce the deficit—is profoundly flawed. I hope that on Report we will see major government amendments to the Bill.
Lord Phillips of Sudbury
My Lords, after three excellent speeches I will make only one point, following directly from the last point made by the noble Lord, Lord Howarth. What I may perhaps call the Cookson report—the King’s College report—quantifies certain knock-on costs. What it does not do is look at indirect knock-on costs. For example, in a case such as the one my noble friend referred to when he moved the amendment of somebody not getting timely advice and as a result finding that he and his family were on the street with the local authority having to pick up the problem and provide housing, along with the welfare fallout and so on, the indirect costs were not included in the figures of the King's College report. That makes the self-interest of the Government in listening to and agreeing the amendments in this group all the more acute.
My only other point was made by all three preceding speakers but is worth emphasising. The noble Lord, Lord Best, drew an analogy with Somali pirates. He talked of a small minority of exploitative landlords. That is absolutely fair; it is only a small minority of private landlords. However, they are concentrated among poor tenancies. If we throw our minds back to Rachman, we will remember that his tenants were among the poorest in London. That was no accident. Landlords who are of that evil mind know that poor tenants are least able to protect and stand up for themselves, and most easily harassed. Again, it is an issue of self-interest on the part of the Treasury to recognise that. If it does, it will see the sense of the amendments in this group without getting into morality and justice.
The Earl of Listowel
My Lords, I confess to feeling very troubled by what I have heard in the Chamber during this debate. I will say a few words about my concerns in particular about vulnerable families in private accommodation. A few years ago I accompanied a health visitor in the borough of Redbridge in north-east London just north of West Ham. We visited a number of families living in very poor conditions in private property. In one such home the basement was flooded and the landlord had taken no action to remedy this. Another was overcrowded. A mother and her two young children shared one room with water almost running down the walls. The third, and most shocking, was a home in which the shower and the lavatory were somehow combined in one system. It may be a small proportion of landlords, but there seemed to be a lot of them in Redbridge, back then, at least. I declare my interest as a landlord. I hope that the Minister can offer some real reassurance in his reply that the most vulnerable individuals and families in society are not going to suffer significantly because of what the Government propose.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Phillips of Sudbury Excerpts(12 years, 3 months ago)
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Lord Bach
My Lords, the Committee should be grateful to the noble Lords, Lord Carlile of Berriew and Lord Thomas of Gresford, for moving and speaking to their various amendments in this group. From this side of the Committee, we unreservedly support the series of amendments that make up this group. They are important amendments.
I have two things to say to start with. Apart from supporting the amendments, which is the first thing I have to say, the second is to say how much we support the Government in having kept judicial review in scope in general terms as part of legal aid. It plays an important role. However, they seem to intend to be too restrictive on immigration matters. The position of the Official Opposition on legal aid for immigration matters is clear; we believe that immigration law should remain within the scope of legal aid. It is an important, if qualified, check on poor decision-making by the UK Border Agency and other agencies, and it ensures that immigrants, many of whom are vulnerable, disorientated and scared, are able to assert their rights by accessing what may be a confusing new judicial system. Moreover, it keeps the machinery of justice working efficiently as well.
We regret that the Government have carved out immigration law from the scope of legal aid and judicial review, which are important areas, save, of course, where their advisers—and here I have no doubt that it was experienced and leading counsel—told them that it would be in breach of their convention obligations. Asylum cases remain pretty much in scope, although not entirely, as the noble Lord, Lord Thomas of Gresford, has just pointed out. Judicial review was an area that we thought likely to be uncontentious. The Government themselves have said, as we have said, that judicial review is the safeguard against mad or bad decision-taking. The test is not an easy test to meet, if you are an applicant, as the noble Lord, Lord Carlile, showed very clearly a few minutes ago when he referred to the Wednesbury test.
It is worth reminding the Committee what the three limbs of that test are: that the public authority, in making the decision, took into account factors that ought not to have been taken into account; that it failed to take into account factors that ought to have been taken into account; or that the decision was so unreasonable that no reasonable authority would ever impose it. In other words, as stated in another leading case, it must be,
“so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”.
Just to state those words shows what a high hurdle has to be reached for someone to succeed in a judicial review against the state.
Of course, such worrying decisions are occasionally taken by government or emanations of government. It happens, and the fact that there is a remedy in our law is a huge advantage to our law and very much respected around the world, but surely the answer for those who have suffered in that way is not to punish them for the bad decision-making that has been made by the state. There have of course been problems with judicial reviews being used as a weapon by some people—letter before action, in particular. However, as has been stated, the tests are very rigorous and do not permit vexatious or tendentious proceedings. They effectively act to safeguard the public purse, and we have heard no arguments at all to suggest that there has somehow been a failure of the system in the areas that are being taken out of scope of judicial review. It is really incumbent on the Government to show that there has been a failure of the system before taking these cases out of scope.
The Minister in another place, the honourable Mr Djanogly, stated in response to a query by my honourable friend Mr Michael Connarty as to how many cases there were that showed the failure of the system:
“We do have figures, but I do not happen to have them with me. I will write to the hon. Gentleman with figures”.—[Official Report, Commons, 31/10/11; col. 650.]
In his response in writing, however, he said:
“We do not keep these specific figures”.
I raise that not to make some petty point but only to invite the Minister—who, if I may say so, I am delighted to see in his place as it seems a long time ago, perhaps about a year, since we last faced each other across the Dispatch Box; crossed swords is perhaps putting it too highly—to please go back and double-check whether there are any of those figures.
Lord Phillips of Sudbury
I cannot resist asking the noble Lord whether he would also class as a failure of the system the fact that more and more legal aid practitioners in immigration and asylum have withdrawn from the scheme altogether, because they tend to be concentrated in city centres and the current rates of remuneration for this work are such that they are simply not sustainable? As I say, I could not resist adding that to his catalogue.
Lord Bach
I cannot blame the noble Lord for asking an-ex Legal Aid Minister that question. In immigration law over the last 20 years or so—this has been hinted at already in contributions, and no one really can gainsay it—it was spotted that there were those who practised immigration law who did not do their profession any credit. Perhaps I might put it as cautiously as that; it is probably a good deal worse, frankly. The previous Government, with general support, therefore took steps, as the noble Lord, Lord Thomas of Gresford, reminded us, to make sure that the industry, as it were, became regulated. Thank goodness for that, but the rewards to be gained from doing legal aid work properly in this field are not very great. I have to concede that.
Will the Minister please double-check in the Ministry of Justice, which I know is not his department, whether any figures can be employed for the Government’s case for taking these parts of judicial review out of scope? As the noble Lord, Lord Thomas of Gresford, pointed out with some force, there was no consultation on this point, nor was there any comment in the Government's response to consultation—presumably because it was never referred to in the first place. We believe that judicial review is an important safeguard. Obviously the Government believe that too. That is why we support these amendments, because we want to know why the Government intend to take this part of judicial review out of scope.
Lord Berkeley
My Lords, I shall speak to Amendment 61ZA, which is in this group. It does not much relate to the amendments of the noble Lord, Lord Ramsbotham, but it raises an interesting issue to explore at this stage. It would include the Duchy of Cornwall or the Crown Estate as a public body under paragraph 19 of Schedule 1, to allow for those who believe that these organisations have abused their positions of power. My reason for tabling this amendment is the continuing uncertainty over the status of these bodies, which can be summed up by saying, “Are they private or are they public?”. Are they accountable to Parliament and how do Ministers take into account the issues raised by them, including the numerous handwritten letters that they reportedly receive from Prince Charles, which must always remain confidential? There is a complete lack of transparency.
My attention was drawn to this because of a recent case before the First-tier Tribunal of the General Regulatory Chamber on information rights between someone called Michael Bruton and the Information Commissioner and the Duchy over allegations that the Duchy allowed an oyster-growing grid to be deposited in the Helford river in Cornwall—in what was reported to have been an SSSI—without carrying out the necessary environmental assessments. The question then arose of whether the Duchy is covered by the Environmental Information Regulations, and hinges on whether it is a public body. The Duchy’s counsel said that,
“the Duchy is not democratically accountable in any meaningful sense”.
I find that rather an extraordinary statement. We can debate what it means, but the tribunal’s decision hinged on the definition of a public body. The tribunal found that the Duchy was a public body under the Environmental Information Regulations. Its judgment hinged on the fact that the Duchy is the harbour authority for the port of St Mary’s in the Scilly Isles. The Duchy has appealed so we do not yet know the result.
It is interesting because, at the same time, I have a Private Member’s Bill that is going through your Lordships’ House rather slowly. I was told by the Clerks that I would have to ask the Minister to write to the Duchy to ask permission for the Bill to be taken forward because it affects the private interests of Prince Charles. Clearly, in this House it is believed that having an interest in a harbour is a private interest, whereas the information tribunal thinks that it is a public interest. There are around 120 harbour authorities in this country. I had to ask why the Minister had to write to just one and not the other 119 but that is probably something of an aside. There is a lot of uncertainty there. I do not know how Mr Bruton is funding the appeal or the original work but he certainly did not get legal aid. Perhaps that should have been considered.
I turn quickly to the Crown Estate. Noble Lords will be aware that the Treasury Sub-Committee in the House of Commons investigated the workings of the Crown Estate. Its report was the first for around 20 years and it was clearly frightened by some of the issues that came back. It is interesting that the Government have recently changed the method of funding the public activities of Her Majesty by going back to pre-George III times and agreeing to give 15 per cent of Crown Estate revenue. However, they cannot tell what the future revenue of the Crown Estate will be because there could be very large revenue from North Sea oil and all the wind farms that are being built. Until now, that revenue has gone to the Treasury. We do not know what will happen in the future but I fear that there will be a lot of uncertainty about this. It is still not clear how one can ask questions about the activities and financing of the Crown Estate. Is it a public or a private body?
This uncertainty, coupled with the fear of some people and the unwillingness of the Government to subject the Duchy and the Crown Estate as public bodies—if that is what they are—to proper scrutiny, is a major hurdle for anyone willing to take them on in the courts. That is probably what is intended but it is unfair. It seems that these bodies decide whether they are public or private as it suits them in particular cases, which is all wrong. Therefore, there is very little precedent and, no doubt, much higher costs for any appellant. I will be very interested to hear what the Minister has to say about this. Does he believe that it would be equitable for legal aid to be available in such cases? Alternatively, or additionally, will the Government set up a review of what is private and what is public in these cases to produce some clarification and transparency, so that everyone who has to deal with these organisations knows where they stand?
Lord Phillips of Sudbury
My Lords, I shall speak in favour of Amendment 60, for which the noble Lord, Lord Ramsbotham, has made a strong case. I expect the Minister may say that, ipso facto, an abuse of power is unlawful. The problem is that if that is the argument, the way that sub-paragraph (6) is drafted apparently provides a complete definition of the phrase “abuse of power” in the context of paragraph 19, and the totality of that definition is in sub-paragraph (6)(a) and (b). It seems necessary to include the word “unlawful” although, as I say, it seems manifestly obvious that any public authority acting unlawfully is, by definition, abusing its power.
I would also be grateful if the Minister could tell us whether the word “deliberate” here means the same as “intentional”. I rather assume that it does, but some explanation is needed of why the normal terms—“intentional” or “with intent”—have been changed in this instance to “deliberate”. Does the definition as drafted exclude the careless exercise of power on the part of a public authority because there is a difference between a reckless or careless exercise of power and one that is deliberate or intentional? I hope that the noble Lord will refer to those points when he sums up. As I say, I am happy to support this amendment.
Lord Howarth of Newport
I, too, would like to say a word in support of the amendments tabled by the noble Lord, Lord Ramsbotham. He has raised very important points. Surely, what he has argued for is self-evidently right in principle. As the noble Lord suggested, public authorities are almost by definition powerful in relation to citizens. It is, of course, incumbent on all public authorities to act lawfully. Ignorance of the law on the part of a public authority should be no excuse for that public authority any more than it is on the part of the citizen. Therefore, the amendment of the noble Lord, Lord Ramsbotham, would repair an omission in the drafting. Otherwise, it would be possible under the Bill as drafted for the public authority to say, “We did not realise. We did not mean to do this. It was not intentional. It was not done knowingly”. Or it could tell lies, but it will be caught that way. If the public authority said that it was sorry and that it had made a mistake of law, it certainly seems to me that the citizen ought to be entitled to some redress.
Amendment 61 in the name of the noble Lord, Lord Ramsbotham, is also very valuable. From time to time a number of us may be rather concerned at the readiness and apparent arbitrariness with which people seeking immigration status can be detained. It must be beyond question that deprivation of liberty, whether or not it was deliberate or dishonest, is a harm. Therefore, it is surely right that the two amendments that the noble Lord has proposed should go in the Bill. They make evident good sense and they are proper.
Lord Phillips of Sudbury
I am sorry to interrupt the Minister’s flow, but this is a valuable opportunity to get to the bottom of this. From what he is saying, a reckless act on behalf of the state would be neither deliberate nor dishonest. If it was reckless, there would be no redress. Can that be right?
Lord Wallace of Tankerness
My noble friend well knows that where recklessness goes into intent is not always very clear. I very much hear the point that he is making; I want to reflect on it. There is a continuum, but I have made it clear that it certainly does not include negligence. That is why we are concerned about “unlawful”, because that opens the provision beyond what is intended and could lead to cases of damages for what are not by any stretch of the imagination serious consequences or serious harm for the individual.
Fixed-term Parliaments Bill
Lord Phillips of Sudbury Excerpts(12 years, 9 months ago)
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Lord Goldsmith
I have two answers for the noble Lord. First, that is one of the reasons why this Bill has never been necessary. It would have been perfectly possible for the Prime Minster to have made it very clear—on his honour, on his commitment, or whatever— that he was not going to go to the country until later. That was undoubtedly one of the options which was available, as we know from the evidence that has been given. The reasons why it was not taken I do not find at all convincing. Nevertheless, that is the route by which the Government have gone. Secondly—I say this with respect to the noble Lord, who has not been here as long as some other noble Lords—this House has the obligation and the responsibility of saying to the other place, “We think you are wrong. Think again”, and from time to time of saying, “We think you are wrong and we are not going to support what you are trying to do”.
Lord Phillips of Sudbury
Does the noble and learned Lord know of any precedent or parallel for the provision which he supports?
Lord Goldsmith
This House has put forward sunset clauses which have been agreed a number of times; the precise mechanism does not matter. The point is that this House has said from time to time—for example, in relation to control orders—“All right, Government, you can have them for the time being, but you are not going to keep them without some further legislative process”. That seems to me to be a very good idea.
Fixed-term Parliaments Bill
Lord Phillips of Sudbury Excerpts(13 years ago)
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Lord Falconer of Thoroton
My Lords, the opportunity has not been taken, so we must now build on the work done by this House. I am very disappointed in the lack of interest in this rather staggeringly important constitutional Bill—which confirms that this House seems to have the same view as the people in the Dog and Duck to whom the noble Lord, Lord Cormack, referred. I will leave it to noble Lords to get to the Dog and Duck.
This is an important Bill: it will have an impact constitutionally. It is a Bill to take seriously in the course of this scrutiny at Report stage, which will last two days. I am grateful to the usual channels for providing two days, which seems entirely appropriate. It is time for this House to take decisions, building, I would respectfully submit, on the work that this House and the other place have done. When I say building on the work that has been done, I include the work done by the Select Committees in both Houses—the one chaired by Mr Graham Allen in the other place, and the one chaired by my noble friend Lady Jay. I am very glad to see my noble and learned friend Lord Goldsmith and other members of the committee in the Chamber today.
We as a party support fixed-term Parliaments. However, the investigations done by both Houses, including both Houses’ Select Committees, have increased Parliament’s doubts about fixed-term Parliaments. Our own committee, the House of Lords Select Committee on the Constitution, said that the case made by the Government for fixed-term Parliaments had “not been made out” to its satisfaction. A similar view was expressed by the House of Commons Select Committee.
There were three specific anxieties that underlay that view. The first was the length; both Select Committees concluded that four years was better than five. Secondly, both Select Committees concluded that the provisions could be abused by a Prime Minister who, with a majority in the House of Commons, could go for an election whenever he wanted. Thirdly, the Houses of Parliament were seeking to include in legislation the House conventions in determining when a Government lost the confidence of the House of Commons, which is a critical part of our constitution.
These anxieties were well expressed in good debates on Second Reading and in Committee in this House. In today’s Report stage we on this side of the House intend to try to address those specific anxieties, and to support the Government and other Members of the House who have tabled amendments to try to resolve them. However, resolving these specific problems will not deal with the underlying sense of anxiety which still exists in this House about the Bill.
In those circumstances, the opposition party—the Labour Party—intends to support the amendment to be introduced by a number of Cross-Benchers, including the noble Lords, Lord Pannick, Lord Butler of Brockwell and Lord Armstrong, and the noble Baroness, Lady Boothroyd. The effect of their amendment is that if there is to be a fixed-term Parliament after each subsequent election, it will have to be approved by a resolution of both Houses. That seems to us a suitable response to a constitutional Bill which is of such importance but which has been introduced without pre-legislative scrutiny, proper public consultation or an adequate response from the Government to the particular issues raised. So I preface my remarks by indicating our support for that amendment. It does not stop us going into the Bill’s detail or—in the context of a Bill with this provisional aspect—seeking to improve it.
The first three groups of amendments concern the length of a Parliament, the issue being whether it should be four or five years. We have evidence on this: I refer to the speech of the noble and learned Lord, Lord Lloyd of Berwick, in Committee. He completely demolished the argument that it is a matter of judgment—the implication being that if it is a matter of judgment, any period would do. If it is a matter of judgment, it is all the more important, as the noble and learned Lord pointed out, to analyse what the “good judges” have been saying about what the right conclusion is. The first judge, I would respectfully ask the Government to bear in mind, is the person who introduced the current arrangements, namely Herbert Asquith. When introducing them in 1911, he rightly said that a maximum of five years was likely to produce Parliaments lasting about four years, which is close enough to the previous election or the coming election to ensure that Parliament remained properly accountable to the people.
The weight of academic evidence given to both Select Committees was overwhelmingly of the view that a fixed-term Parliament should be four years rather than five. Professor Robert Hazell told the Commons Select Committee:
“The balance between four and five years is more even than folk memory might suggest. But those parliaments which lasted for five years did so because the government had become unpopular and did not want to hold an earlier election. The Prime Minister stayed on hoping that his or her party's luck might change. It did not, save for the case of John Major, who scraped through with a narrow majority in 1992”.
Professor Blackburn, who has done a lot of work on this, was quoted by the noble and learned Lord, Lord Lloyd of Berwick, in his speech. The Select Committee in the Commons reported:
“Professor Blackburn suggested to us that when governments have lasted five years between elections, ‘the last year of every one has been pretty awful’”.
The Bill seeks to make it the norm that we should have five years. I would respectfully ask this House, if it wishes to have a proper process of scrutiny, to acknowledge where the weight of evidence is from all those who have looked at the issue, including Members of this House. I also pray in aid the following people: Mr Tony Wright, who introduced a Bill saying four years; my noble friend Lord Rooker, who is greatly respected in this House, and who introduced a Private Member's Bill in the House of Commons saying four years; and Mr David Howarth, no longer an MP, who introduced a Bill for fixed-term Parliaments which said four years and had the support, as co-sponsors of the Bill, of Mr Simon Hughes, Mr Chris Huhne, Mr Nick Clegg, Mr Danny Alexander, Mr David Heath, Ms Lynne Featherstone and Mr Paul Burstow. I mention these names only because every single one of them, with the exception of Mr Simon Hughes, is now a Minister in a Government proposing five years. Furthermore, the noble Lord, Lord Plant, who is not in his place, conducted an inquiry into our constitution in 1991 and 1992 and he recommended that there should be fixed-term Parliaments. He also said four years. The Liberal Democrats, as they proudly point out, have said for many years that there should be fixed-term Parliaments and that they should be four years.
Perhaps I may say with respect that if you are responding to a proper analysis of the evidence, the conclusion would be four years, not five years. If it should be four years, should it be four years for this Parliament or should it be five years for this Parliament and four years for subsequent Parliaments? In Committee, the noble Lord, Lord Cormack, said—I suggest with a heavy heart—that it should be five years to give this Government their coalition agreement, but four years thereafter. As I made clear on 21 March at cols. 505 and 512, I do not support that siren song. I have three reasons for not supporting it.
First, if five years is wrong for the future, it must be wrong for this Parliament. Secondly, if the reason that five years is wrong is that you end up with an “awful” fifth year, to quote Professor Blackburn, imagine the circumstances that we are currently facing. We have a number of politicians, the Liberal Democrats, who are greatly respected by all in this House. Let us assume that they do what every other politician in their position—that is, facing defeat—does; namely, they cling on until the last moment. If we pass a Fixed-term Parliament Bill of five years, we will allow the Liberal Democrats to do what MPs have done since time immemorial—to cling on to the bitter end. We are going to have an awful fifth year. I strongly recommend not succumbing to the siren song of five years for this Parliament and four for the next.
The third reason that we should not succumb to the argument is this. I can imagine no worse precedent than a Government coming into power and setting in place special arrangements for how long the first Government should be and then changing the constitution for everyone else thereafter.
Lord Phillips of Sudbury
I commend the noble and learned Lord on the eloquence and persuasiveness of what he has been saying so far, but might it be the case that the fifth-year syndrome he has described, and to which Professor Hazell referred—that the fifth year is always difficult—might just be a final-year syndrome? Might it not then become the fourth year that would be misery hereafter?
Lord Falconer of Thoroton
No, I do not think it would. Can you identify a third or fourth year which has been as been as awful as the fourth or fifth year? I also refer to what was said during debates in Committee by the professor and noble Lord, Lord Norton of Louth, who sadly is not in his place. He said that it was extremely unlikely that any Government would have something proper to fill in their fifth year. So there is no historical precedent for the fourth year being as bad as the fifth year, nor do I think that if the fixed term were four years would the third to fourth year become awful. But that is a matter of judgment for this House to make. My own judgment of it is that the third to fourth year would not be remotely as bad as the awful fifth years that we have had on previous occasions.
We in the Opposition are going to vote for Amendment 1, which alters the date of the first election from five years from the date of the last election to four years, and we are then going to vote for four years thereafter. We are going to vote for what might be called the “Baroness Boothroyd, Lord Pannick, Lord Butler of Brockwell, Lord Armstrong” amendment because we do not think that the Government dealt effectively with the fundamental criticisms of fixed terms.
Fixed-term Parliaments Bill
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Lord Newton of Braintree
—and for recovering ground that I may have lost yesterday.
Somewhat to my surprise, I find myself a little more distant than I usually am from the noble Baroness, Lady Hayter, and it is on her speech that I should like to concentrate. I have not yet fully digested the speech of my noble friend Lord Cormack but I am certainly not distancing myself from it until I have had a chance to think about what he said.
My comments, which I hope the Front Bench will not find unhelpful, are based on three points. First, the noble Baroness asked why you should need 14 days rather than five. I accept that either figure is a bit arbitrary but, given some of the things that have happened since—actually, my Front Bench may not welcome this—it might have been worth taking more than five days to complete the coalition agreement. Am I allowed to say that?
Secondly, the British electorate may like quick, seamless, one-day change, with the pantechnicons arriving at the back, or successively at the front, but I think they are going to have to get used to something else. When I started in the Conservative research department in 1960, we carried out what was called “cohort polling” —it was very expensive and we probably could not do it now—whereby we went back to the same people at intervals. It has been clear for 50 years that the old-style “I am red”, “I am blue” and “I am yellow” syndrome is breaking down. We saw the final conclusion of that at the last election. I do not boast about this, but people did not want anyone to win; they wanted to make us work together. I do not say that will always happen, but it will happen more frequently and the British public will have to get used to it.
My last point on the noble Baroness’s speech—I hope she does not think that I am being too unfriendly—is that the markets will have to get used to it as well, just as they get used to it in Germany. In most European countries, an election is followed by a prolonged period of negotiation—at the worst, horse-trading—before a Government emerge. In many cases it takes far longer than 14 days. I do not see them collapsing in a heap as a result.
Lord Phillips of Sudbury
I hate to interrupt because I agree with so much of what my noble friend has said. He speaks of other countries where 14 days has been exceeded; I believe Belgium is into its 11th month, is it not?
Lord Newton of Braintree
That may be a bit excessive, but then Belgium has some rather unique problems—which, so far, have not happened here—in terms of racial, linguistic and ethnic division. I take my noble friend’s point and I hope that he will take mine that most European countries do not expect to have the pantechnicons arriving on election day or the day afterwards. They have got used to it; why cannot we?
Fixed-term Parliaments Bill
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Lord Phillips of Sudbury
I have slightly lost the noble Lord’s argument. Is he arguing in favour of a bare majority or a 75 per cent majority?
Lord Howarth of Newport
I have two amendments, to enable the House to consider both possibilities. I am not sure that we need to legislate at all. We could simply proceed on the traditional basis that a 51 per cent vote was required. However, in the context of a Bill creating fixed-term Parliaments, we perhaps do have to specify in law that a majority of one would be sufficient to trigger an early general election. I am not very happy with that, but I am not very happy with the two-thirds requirement, for the reasons that I have indicated. Therefore, I have suggested that the House might like to consider a different figure to provide a safeguard against exploitation of this particular escape-hatch which would give the Government of the day an opportunity to escape from the ordinary provisions of the legislation on fixed-term Parliaments. For these reasons, I have tabled the amendments. I beg to move.
Lord Wallace of Tankerness
Hypothetically, if he was able to do that, it could have happened. In a Parliament with less than six months to go, it is highly unlikely that that would have happened. There has to be a political reality. It was quite clear that that Government had run their course and there was a general view that an election was needed. Therefore, I think it highly unlikely that a new Government would have been formed, and no new Government having received a vote of confidence within 14 days there would have been a Dissolution. That is one set of circumstances. However, there ought not to be a vote of no confidence if that is not the reason behind the consensus that Parliament needs to come to an end and for there to be a general election. Rather than contrive a vote of no confidence, one should have it as a solution but with the threshold set at such a level that it cannot easily be obtained by a single party for political advantage.
In much of the noble and learned Lord’s speech at Second Reading, his main agony about this Bill was that it would be possible for a Government to abuse the procedure and seek a Dissolution, which would defeat the whole purpose of having fixed-term Parliaments. Therefore, we believe that it is appropriate that the Dissolution should be set at a level which has not been achieved by any governing party since the Second World War. I fully accept that we departed from the 55 per cent figure because that was clearly not going anywhere. It was roundly criticised in this House and, indeed, in other places. As I say, I make no apology for having listened to that criticism, reflected on it and come forward with a proposal which still maintains that there should be a vote which could trigger a Dissolution, but one where the percentage figure is much higher to the extent that it would not be achieved by one party alone. That is why that first trigger mechanism—the subject matter of this amendment—is there. The two-thirds majority that is proposed is the same majority required for a Dissolution vote in the devolved legislatures, as set out in the relevant legislation.
Lord Phillips of Sudbury
I am sorry to interrupt my noble and learned friend but I think that three times now he has referred to a two-thirds majority. However, it is not a two-thirds majority because that would be two-thirds of the votes cast in the Division. This is two-thirds of the number of Members, including vacant seats. Will he set the record straight?
Lord Wallace of Tankerness
I am happy to do so. I think that I corrected myself the first time I got it wrong. I am grateful to my noble friend for reminding me of that. As I say, since the Second World War no Government have been able to command two-thirds of all the seats. This means that Parliament can choose to dissolve itself but Government cannot dissolve Parliament for their own political advantage.
The noble Lord, Lord Howarth, asked why the two-thirds requirement should not be set out in Standing Orders rather than in statute. The two-thirds requirement is set out in legislation as opposed to Standing Orders so that any change to the requirement would have to be made by fresh primary legislation, which would require the consent of both Houses of Parliament, whereas Standing Orders of the other place would require only one House of Parliament to determine that and probably could be amended or revoked by a single simple majority in the other place, and therefore could defeat the purpose of the measure. It is better to have the two-thirds vote set out in statute, which means that it has to be changed by statute. That would involve this House rather than the other place simply determining it by means of its own Standing Orders. It is not appropriate that a significant detail of reform affecting Parliament as a whole with implications for our prerogative should be amended by Standing Orders of one House of Parliament.
The noble Lord, Lord Howarth, very helpfully indicated that he would speak to his Amendments 28 and 29 at the same time. The first of those would omit the requirement for a two-thirds majority while the second would increase the figure to three-quarters of all MPs voting in favour of the measure instead of two-thirds. The reason why we are opposed to the simple majority—it would be a majority in that case—for the Dissolution is because it would undermine one of the purposes of the Bill: namely, establishing a fixed term and removing the Executive’s ability to decide when Parliament should be dissolved. Noble Lords may recall that at Second Reading mention was made of the late Lord Holme of Cheltenham and his analysis of arrangements whereby the Prime Minister can choose the timing of the election. Lord Holme described a general election as,
“a race in which the Prime Minister is allowed to approach it with his running shoes in one hand and his starting pistol in the other”.—[Official Report, 1/3/11; col. 1007.]
I have reflected why he would not have his running shoes on, but he would certainly have the starting pistol in his hands. Unfortunately, Amendment 28 of the noble Lord, Lord Howarth, would preserve the Executive’s ability to decide when a Parliament was dissolved, by providing that a Dissolution motion could be passed by a simple majority.
At the other end of the scale, the noble Lord suggests a majority of 75 per cent of Members who vote. Again, it is not an unreasonable proposition, but I believe that, on balance, the threshold of two-thirds strikes the right balance in providing a safeguard against abuse of the power, while ensuring the effectiveness of the Bill’s provisions. This Parliament passed similar provisions in relation to the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly.
I have sought to explain why there are two mechanisms and how they are different. I indicated clearly that the 55 per cent originally proposed did not find favour. Therefore, it was only right and proper that the Government listened to those views, and we have come forward with two trigger mechanisms—one for when there should be an election, if there is a consensus, and another for when the Government have lost the confidence of the House of Commons. They are different issues that are dealt with separately. Interestingly, the Constitution Committee, whatever other concerns it may have had, thought that the Government’s proposals on the two trigger mechanisms were an appropriate way forward. In those circumstances, I ask my noble friend to withdraw the amendment.
Parliamentary Voting System and Constituencies Bill
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Lord Higgins
My Lords, I have not previously intervened in the debates on this Bill, although I have voted several times—in, I feel bound to say, both directions. I begin by making a procedural point. One of the most damaging things done by the previous Labour Government was to change the situation with regard to guillotining Bills. The old procedure was always that if the Government felt that there was undue delay or something was urgent, there would be a guillotine Motion debate for half a day and a vote at the end of it. This was replaced by programming, which was carried out throughout the previous Labour Government. Regrettably, it is continuing under the coalition, with the result that we will no doubt continue to have Bills arrive in this place with some parts having been very quickly considered. I very much hope that the Government will abandon programming from now on.
The reality is that the programming on this Bill has meant that debate in the other place has been severely curtailed, not least in respect of the amendments made by this House. The amendments that we are discussing today were given four hours of debate, and on this important constitutional amendment the debate lasted for 45 minutes or rather less. It is difficult to see how the other place can consider our amendments and think again in the course of a debate of that length. The fact that the other place has sent the measure back here needs to be considered in that context.
I turn to the substance of the amendment of the noble Lord, Lord Rooker, which I enthusiastically support. My view throughout my time in the House of Commons—this remains my view—is that Members of the Commons are there as representatives, not delegates. As I said to my former constituents many times, that means that I will not vote as I would vote if I knew how a majority of my constituents would vote. I will consider their views and take them into account and then I will vote having taken all that into account. A referendum strikes fundamentally at that principle. Therefore, I have always been opposed to referendums but, as the noble Lord, Lord Rooker, points out, they have always been advisory. Therefore, I am totally opposed to the idea not of an indicative referendum but of a mandatory referendum, which is what we have been considering.
I strongly supported the noble Lord, Lord Rooker, and voted in favour of his amendment in which he made the basic point that the referendum should not be mandatory. Alas, that amendment was not carried. However, as he rightly points out, the amendment he is now putting forward constitutes a compromise. Although I am totally against a mandatory referendum altogether, I certainly enthusiastically support the noble Lord’s amendment. I very much hope that your Lordships will return it to another place with a large majority. Once one has considered these issues, it seems to me that the case for having a threshold is very strong indeed.
In the very short debate that took place in another place, Mr Winnick intervened in the Minister’s speech. He asked:
“At what point below 40%—10%, 15%, or 20%—would the Government conclude that the result did not carry any credibility whatever?”.—[Official Report, Commons, 15/2/11; col. 902.]
That is the situation. We have no idea what the turnout may be, but it may be very low indeed. We may have a very small majority on a very low turnout. We will then find that the law is changed automatically on a major constitutional point without any reference back to the House of Commons whatever. I believe that that is completely and totally wrong. I shall support the noble Lord in the Division Lobbies.
Lord Phillips of Sudbury
My Lords, initially, I was inclined to support the amendment of the noble Lord, Lord Rooker. However, as time has gone by, I have to confess that my view has changed. I say at once that the arguments are evenly balanced—I think that many noble Lords agree with that. The noble and learned Lord, Lord Lloyd of Berwick, could have added to the strength of his already strong case by referring to the fact that the alternative vote referendum was a major plank of the manifestos of both the Liberal Democrat and Labour Parties at the recent general election.
I come back to the issue of a deterrent to voting at the forthcoming referendum, assuming that we get this Bill through. I disagree with the noble Lord, Lord Lawson; my understanding is that if we accept the amendment of the noble Lord, Lord Rooker, the probability, rather than the possibility, is that it could inadvertently act as a deterrent and a disincentive to vote. It is true to say that at many of the forthcoming local elections there will not be a 40 per cent turnout. There is no suggestion that local government comes to a halt if 40 per cent of the electorate do not turn out to vote for anybody. Indeed, the noble Lord, Lord Rooker, said that more than 40 per cent of this House voted for his amendment the first time round. But how many votes in this House reach the 40 per cent figure? What would happen if his amendment were passed and the referendum turnout was 39 per cent, with two-thirds of that 39 per cent being in favour of AV? What would then happen if the measure were to come back to this place? Noble Lords may say they can improve it, but you may not get even a 40 per cent turnout in this House.
What do the public think about a situation where we say, “We sort of trust you. This is, sort of, the decision which the public should make. But in the end, if 40 per cent of you don’t turn out, we will decide”.? There will not be a lot of understanding of that by the public, especially given that there is no more partisan issue imaginable than that of the voting system.
Lord Phillips of Sudbury
Absolutely. I am perfectly willing to accept the decision of the British people, whatever that is and whatever the turnout is. I really do not understand how you can, if you like, push the partisanship completely out of account by saying that if there is not a 40 per cent turnout, we will decide. At this forthcoming referendum, the majority of the Conservative Party will be against AV; and although it was in its referendum, I sense that the Labour Party will be against it. Partisanship will rule.
Lord Myners
The noble Lord spoke about the referendum of the Labour Party, but I think he meant the manifesto. Perhaps I may correct him; he described AV as being a major plank of the Liberal Democrat manifesto. In fact it was not. AV was described by the leader of the noble Lord’s party as a “miserable little compromise”.
Lord Phillips of Sudbury
It was a major plank in the Liberal Democrat manifesto and that is a fact. And so—
Lord Phillips of Sudbury
No; no more. That is quite enough. For those reasons, I will vote against the amendment of the noble Lord, Lord Rooker.
Lord Elystan-Morgan
My Lords, the noble and learned Lord, Lord Lloyd of Berwick, speaks from the very heart of reason and common sense when he says that the real role of this House, in a situation such as this, is to invite the House of Commons to think again. That, however, does not mean that that should happen only once. In the circumstances of this case, as has been so clearly shown by the noble Lord, Lord Lawson, the House of Commons has thought twice about the matter and come to totally different conclusions—although in both cases it happened to reject the proposition that we are discussing. In the first instance, the other place voted by 540 votes against and 31 votes for a threshold in the referendum. Last night, the vote against was carried by about 65 per cent to 70 per cent. The curve is clearly pointing in one direction. But be that as it may, one cannot say that the other place is expressing a consistent and monolithic view on the matter. That does not in any way defeat what the noble and learned Lord, Lord Lloyd, is saying, but to some extent it qualifies it in the special circumstances of this case.
One can summarise the issue in this way. We are dealing here, I think, with a balance of risks. The noble and learned Lord, Lord Wallace, is perfectly correct to say that when you invite the public to partake directly in a decision such as this, there is a risk that Parliament could be seen—in some way or other, without intending it—to be spurning that decision. That is a real risk. No one spoke very much about that risk in 1975 when the referendum was indicative or consultative. I have read the Act and there is clearly no suggestion that that referendum would have been mandatory in any way at all.
I urge noble Lords to consider another risk. A derisory turnout would deprive this vote of any sovereignty or realism as an arbitrement of the people. That is a massive risk. It is very unlikely to happen. It does not matter a great deal which of these proposals one chooses; I tabled one myself which might not have been quite as meritorious as the one now before the House. They are insurances against a failure that is unlikely to happen, but which could happen. A person insures his house against fire not because he knows that it is going to be destroyed—unless he has criminal intentions—or because he believes that it is likely to be destroyed. He does so because he considers that there is a slight chance that it could be destroyed. The more one thinks about something, the less likely one is to be prepared to take even the slightest risk. I am sure that that is our attitude to the families we love. Here the risk is small, but it can be covered by a small, modest and reasonable premium.
Parliamentary Voting System and Constituencies Bill
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Lord Phillips of Sudbury
In the light of the wording of his amendment—which is a bit strange, if I may say so, particularly the section that reads,
“will not be broadcast if they deal with pictures or implied support of any particular side”—
what if the Lib Dems put out an election broadcast, let us say, six weeks before the referendum in which they said, for example, that they are strong supporters of constitutional reform across the board, or words to that effect? Would that fall foul of this amendment?
Lord Falconer of Thoroton
I accept the noble Lord’s implied, or indeed express, criticism. My wording is not good and that is my fault. It would have been much better if the amendment had said: “Party election broadcasts during the referendum period will not be broadcast if they support any particular side in the referendum on the voting system”. It would have been much simpler if I had just said that, and then one would have known where one stood.
On whether the proposition put by the noble Lord in his question would fall foul of my amendment, if the six-week period is within the referendum period, then it would. I would have to check with the Minister because I am not sure whether the six-week period is within the referendum period. However, if we assume that it is within the referendum period, then saying, “We are strong supporters of constitutional change”, implies support, I would have thought. I beg to move.
“( ) The Chief Counting Officer must take whatever steps the officer thinks appropriate to facilitate co-operation between that officer and the officers to whom sub-paragraph (3) applies in taking any steps under sub-paragraph (1) or (2).”
Lord Phillips of Sudbury
My Lords, I hope that I can move this amendment even more briefly than I did in Committee and on Report. I, too, thank many Members of the House who have supported the principle of the amendment, not least the opposition Front Bench.
It is a straightforward, practical and modest amendment but it goes to what many noble Lords will think is one of the hearts of the Bill—the bit which seeks to ensure that as many of our countrymen as possible take part in the referendum. In paragraph 10 of Schedule 1—I pay tribute to the Government for including this from the outset—there is a series of provisions under the heading “Encouraging participation”. Among them is one which casts upon each of four officials—the chief counting officer, a regional counting officer, a counting officer and a registration officer—a formal duty to encourage participation in the referendum. As noble Lords will see from the way in which I have drafted the amendment, it simply maximises the effect of the provisions in the Bill by ensuring that someone seeks to co-ordinate the activity between those four sets of officials. Without someone having that responsibility—not to order them what to do but to facilitate co-operation—one might find black holes and serious and unnecessary overlapping and, of course, we have little time in which to generate interest and informed interest in this referendum. The amendment simply seeks to do that.
If anyone has questions about how I have moved the amendment or about the amendment itself, I will be happy to answer them. I hope that that is sufficient to spread understanding of the amendment and I invite your Lordships’ appreciation of it. I beg to move.
Lord Falconer of Thoroton
My Lords, we support the amendment and we supported it previously. The noble Lord invited our appreciation of the amendment. I expressly appreciate the amendment for its drafting and also its mover who has spent a lifetime supporting participation of this sort. He thoroughly deserves to get his amendment.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Phillips for the amendment and I join in the general approbation of it. For all the difficulties that we have had during parts of this Bill, a common theme in all parts of the Chamber has been the importance of participation in the referendum process. As my noble friend indicated, this paragraph of the schedule does that anyway but he has highlighted the way in which it can be done even better. I am grateful to my noble friend for the constructive discussions we have had on this and the result of those is that the Government agree that the proposal adds useful clarification to the Bill, particularly by emphasising the importance of co-ordination and co-operation. I am pleased to urge the House to accept my noble friend’s amendment.
Parliamentary Voting System and Constituencies Bill
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Lord Falconer of Thoroton
I apologise for not making this clear. It will, but with the benefit of the recommendation made by the chair after a local inquiry.
Lord Phillips of Sudbury
The noble Lord has been extraordinarily patient, but I am sure that he wants us all to understand—and I may not be the only person in the Chamber who does not from his explanation—whether cross-examination will be allowed.
Lord Falconer of Thoroton
It will be entirely a matter for the chair, probably operating in accordance with guidance given by the assistant or deputy chairs of the Boundary Commission. We will encourage a process that is streamlined and non-formal. If cross-examination would help let it be so, if it would not let it be a matter for the assistant chair hearing the inquiry on the day. I trust the right people to make the right decisions on how to get to a conclusion as shortly, as economically and as appropriately as possible.
In our amendment we propose that the chair of such a public inquiry must be a legally qualified assistant commissioner, appointed by the chair of the Boundary Commission, with the power to make recommendations. We say this must be a legally qualified person because they will have experience of ensuring short, sharp hearings, which I think is what everybody wants. Without that, the system of hearings put forward by the Government is little more than a public reading of statements. It will lead, I am sure, to a sense of frustration because there is no response of any detailed sort.
The issue of public inquiries is one of the most central concerns we have with the Bill. The Government’s initial response to the debates we had on this matter was pivotal in breaking the deadlock in Committee. We have understood that they would respond favourably to this and other amendments on public enquiries; it matters hugely. However, we have put the proposal forward in a spirit of compromise. We have sought at every stage to listen to what the Government have said.
Lord Thomas of Gresford
I intervene very briefly because the noble Lord, Lord Rooker, reminded me of appearing in the planning inquiry in mid-Wales on the drowning of Dulais valley, which was proposed by his council, Birmingham council. We were concerned because the Secretary of State for Wales, Lord Cledwyn, was to take the decision, but the person who heard the inquiry came up from London; “Who was he?” and “What does he know about Wales?”. These were real concerns that affected the people who I was representing—for nothing, if it matters—in that particular inquiry. We would much have preferred to put our views before the Secretary of State for Wales directly—to the decision-maker—who we knew knew something about the issues. As it happened, the inspector held in our favour and was upheld by Lord Cledwyn, who made the final decision and announced that no valley in Wales would ever be drowned again.
That is an example of wishing to make representations not to the unknown person from London but to the real decision-maker. The government amendment would enable all the representations and the evidence given by objectors to be put in their raw condition to the boundary commissioners, without any intervening stage.
Lord Phillips of Sudbury
My Lords, while there has been a lot of anxiety in this House over recent weeks about what we are doing here, the debate that we have had on this very difficult amendment has shown just what an extraordinary resource of experience this place can provide.
I have three points to make. First, I would be most grateful if the Minister, in summing up this debate, could answer the forceful point made by the noble and learned Lord, Lord Falconer, that by having the public inquiry when he plans to have it—that is to say, after five weeks before all the written representations are in—surely deprives the oral hearing of being able to respond to the points that local citizens are making.
Secondly, I was much struck by what my noble friend Lord Marks said about the virtue of the timetable proposed by the Government, which gives a full 12 weeks for written submissions, until he rightly said that most members of the public will provide their opinions by that route and will not appear at the oral hearing.
My final point is to assist the noble Lord, Lord Martin, who asked the noble Lord, Lord Pannick, whether there could be cross-examination under the Government’s system, if I can call it that. The answer to that is yes. Amendment 39 in the name of the noble Lord, Lord McNally, specifically prescribes that cross-examination will be in the gift of the person conducting the inquiry under the proposals being put forward by my noble and learned friend, Lord Wallace of Tankerness.