Tenant Fees Bill

Lord Sentamu Excerpts

3rd reading (Hansard): House of Lords
Tuesday 15th January 2019 Lords Chamber

[Baroness Grender (LD)]

My Lords, on these Benches we accept this amendment. I take this opportunity to thank the Minister and his team for all their hard work. The last time I thanked them, they were a little busy trying to sort out a little local difficulty regarding definitions of damages. I am pleased to learn from Citizens Advice that it is now reassured that sufficient clarity will be given in guidance. If there is a latest draft of the guidance, having suggested some of the amendments, I would be happy to take a look at it. I am sure that my noble friend will do the fulsome thanks in the next bit but I just wanted to thank the ministerial team and the Minister very much for progressing the Bill. I look forward to its further rapid progress and would like to hear from the Minister when he thinks it will be enacted.

[The Archbishop of York]

My Lords, I too thank the Minister for listening. He has been very attentive in listening to the suggestions, comments and evidence from tenants and all those people involved with this part of the Bill. I have been in correspondence with the Minister, starting in the Moses Room. He has been very attentive to people’s concerns and cares. The Bill is what it is because of that attention.

[Lord Foulkes of Cumnock (Lab Co-op)]

I have a question for the Minister about the definition of the day. Does it include any day of the week or is it just a weekday, excluding Saturdays and Sundays?

Islamophobia

Lord Sentamu Excerpts

Monday 14th January 2019 Lords Chamber

[Lord Bourne of Aberystwyth]

My Lords, first, if the noble Baroness goes back to that debate, she will find that there were certainly Muslim contributors who had different views. I am not saying that they did not want to confront Muslim hatred and Islamophobia—they did—but there are certainly different approaches that we would have to look at. I share her view about making sure that, in a shared endeavour, we bring down anti-Muslim hatred and Islamophobia and confront them both.

[The Archbishop of York]

My Lords, on the overall question of definitions, sometimes it is much easier to do things when we handle them as concepts. In the Stephen Lawrence inquiry, we struggled with the question of racism, particularly when it is found in institutions, so we ended up saying: “The concept that we apply to this case of institutional racism is this”. That is much easier than a definition because a definition can restrict what you want to say. Is it not better to learn from what the Stephen Lawrence inquiry did? We in that inquiry also struggled with the question of homophobic incidents in many other places. In the end, we adopted the word “concept” as opposed to a definition, because a definition is always contingent on who speaks and who does what. May I advise that it might be worth while visiting the way in which the Stephen Lawrence inquiry handled the question of institutional racism?

[Lord Bourne of Aberystwyth]

My Lords, the most reverend Primate is right and I take his advice on this very seriously. There is obviously major work to be done here and I will certainly revisit issues relating to the Stephen Lawrence inquiry and how we learned from what came forward there. It is vital that we get this right; I am sure we all share in that ambition. It is about making sure that we do it, not about rushing to judgment and coming to a set conclusion without looking at the evidence. I am keen to see the evidence and to act on it.

Anti-terrorism: Hate Speech

Lord Sentamu Excerpts

Wednesday 27th June 2018 Lords Chamber

[Lord Bourne of Aberystwyth]

My Lords, I am most grateful to the noble Baroness, who speaks with great authority on the issue. I am sure that the whole House will take note. As I said, as I go around the country and visit mosques and other religious institutions, evidence of what is happening up and down Britain is that it is exactly as she said.

[The Archbishop of York]

My Lords, does the Minister agree that pursuing anti-terrorism is the business not just of the Government but of all citizens of the United Kingdom? Therefore, if noble Lords do not mind an African saying, when two elephants fight, or make love, the grass gets hurt—what will not work is either side of the House thinking that it is doing a better job than the other. All of us are involved in trying to resist terrorism; it does not matter where it comes from. It is the duty of every citizen to pursue that particular reality. I lived in Uganda at one time when Idi Amin could just pick on anybody; it did not matter who you were or what you believed. What is critical, when we as citizens of the nation do not assist in the whole question of overcoming terrorism, is that it would be a mistake to think that it is purely an Islamic question.

[Lord Bourne of Aberystwyth]

I am most grateful to the most reverend Primate for his words. It is certainly something for all of us and all religions, as he has said. It is reflected in the integration Green Paper, on which we have been consulting. I was recently in Peterborough, which is one of our areas trailblazing integration, to see the good work being done there across all religions.

Neighbourhood Planning Bill

Lord Sentamu Excerpts

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

In 2015, CAMRA did a consumer poll that showed strong public support for better planning protection for pubs: 68% of respondents supported planning permission being required to demolish a pub and 69% of respondents supported planning permission being required to change the use from a pub to a shop. If we had had a supermajority clause in the European Union referendum, those figures would have passed all the thresholds. CAMRA urges that local people be empowered to keep valued community pubs open. As a result of these amendments, councils would be able to deliver planning policies designed to support the retention of valued pubs and reduce the burden of assets of community value on communities, councils and businesses. I wholeheartedly support these amendments. They protect British pubs, which are a valued part of our wonderful country.

[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.

Neighbourhood Planning Bill

Lord Sentamu Excerpts

Report: 1st sitting: House of Lords
Thursday 23rd February 2017 Lords Chamber

[Lord Kennedy of Southwark]

My Lords, I will be very brief. We discussed this amendment in Grand Committee. There was cross-party support for it then, and as we have heard, there is support for it today. The Minister was supportive of the aims of the amendment when he spoke in Committee, but it would be good when he responds if he could go a bit further. The amendment is about putting power over expenditure and the appointment of board members in the hands of local authorities. It is about localism and has lots of support around the House. It is a good thing to do. It may be that the Minister cannot accept the amendment as it is now, but maybe he could outline a bit more how he intends, or hopes, to bring what is asked for in the amendment into effect.

[The Archbishop of York]

My Lords, I spoke at Second Reading about building flourishing communities, not just houses, and emphasised the contribution of affordable housing and green spaces to communal life. If land has been compulsorily purchased, surely the powers need to be given back to the local community to decide what kind of housing will go there. The Government have been very good at taking measures to increase the supply of affordable housing. However, the number of completed social rented homes has decreased from just under 40,000 in 2010-11 to just 6,550 in 2015-16, and affordable housing completions more generally, including other tenures, are at the lowest level for 24 years. The recent government housing White Paper showed a greater focus on homes to rent and it is important that that includes genuinely affordable social homes to rent, which is the only affordable housing tenure suitable for those on the lowest incomes.

Affordable housing not only benefits individuals who would otherwise be unable to secure a home but contributes to the diversity of local places, encouraging interaction across social boundaries. Securing a mixture of tenures in local development enables different types of people to meet each other every day, rather than being shut behind gates. Derwenthorpe in York, a development by the Joseph Rowntree Housing Trust, is a good example of integrated housing provision on one large estate. Why was it done? Because the local authority had some say. The amendment would allow us to ensure that the example of Derwenthorpe can be replicated in many different places, so I support it.

[Baroness Young of Old Scone (Lab)]

My Lords, I had not intended to speak on the amendment, but my degree of rage is rising so I feel I need to say something. I declare an interest, because the very phenomenon that has been described—reducing the number of people who could object to the creation of a vibrant, attractive and charismatic garden city that nevertheless ruins one village next to it—is precisely the situation I find myself in in North Bedfordshire.

I make one plea in all of this. There can be an unholy alliance between the proposers of such a development and the local authority, because it plays very much to the business of achieving housing targets in a publicly very sellable way and reduces the angst felt in many communities across the whole of the planning authority’s patch, where previously the proposals to meet housing targets would have been infill, edge-of-village development and attempts to boost the viability of smaller settlements within the planning authority’s area, of the sort the noble Lord, Lord Teverson, talked about. I sound a note of caution about the unholy alliance that can arise, because it can be seen as the line of least resistance.

Having been involved in a similar development in Cambridgeshire, in Cambourne, where there was a considerable commitment to get the design of the settlement right ab initio on a greenfield site, I believe there needs to be a clear view of how the promised benefits touted at the beginning of the planning process actually get delivered over a substantive period. The experience is that they can gently dribble away during the course of many successive years until the settlement is complete.

--- Later in debate ---

[The Archbishop of York]

My Lords, first, I apologise to the noble Baroness, Lady Cumberlege. I was whispering to her because the spirit was on me, and was saying, “Preach it, sister, preach it”, as she referred to a document as a bible.

Clause 13 concerns pre-commencement planning conditions. This is the most controversial aspect of the Neighbourhood Planning Bill as it attempts to ban pre-commencement planning conditions without the developers’ agreement. This has been done on the basis that such conditions slow the development process, but I remain concerned that it could lower environmental protection and other standards. This is at the heart of the Bill. Amendment 11 was very graciously withdrawn because it would have neutered the entire Bill. I do not know why Amendment 12 was not pressed as it goes in almost the same direction as Amendment 18, but be that as it is.

The change we are discussing shifts the balance of power towards the developer. I know that this is a very technical issue and that there are arguments on both sides. However, I support Amendment 18 because it seeks to give local authorities exemptions to the regulations framework, particularly in regard to conditions that ensure conformity with the national planning framework. The Government’s proposed arrangement in which local authorities can only refuse planning permission entirely may lead to some authorities compromising on important environmental regulations in order to get a development off the ground.

The noble Lord, Lord Stunell, eloquently explained Amendment 18, and was supported most eloquently by the noble Baroness, Lady Cumberlege. That amendment would ensure that regulations would not prevent a local planning authority imposing conditions on a grant of planning permission that are in conformity with the National Planning Policy Framework. If we do not allow that subsidiarity in every local authority, I am afraid that we will lose some of the best planning regulations. Therefore, I support this amendment because what it seeks to do is in keeping with the National Planning Policy Framework. It simply says that these regulations will not prevent local planning authorities imposing conditions on developers which they consider necessary in the interests of the environment, the development and sustainability. Therefore, as I say, I support the amendment too.

[Baroness Andrews (Lab)]

My Lords, I will try not to embarrass the co-pilot any more but he is a reasonable man, and these amendments seem to be reasonable. They attempt to help the Government to make clear what is genuinely not clear at the moment.

On the principle of pre-commencement as set out in the Bill’s requirement for a written consent, the question of evidence is important—that is, whether the lack of that at the moment is generally slowing down the planning application process. I am not convinced, and clearly few other noble Lords across the House are. There is clearly a lack of detail about how this will actually be applied.

However, I am more concerned about the unintended consequences that might occur as a result and the confusion inherent in the situation. I would like to know from the Government whether it is correct—and therefore Amendment 18 would genuinely help—that the Government intend to stick to the NPPF. If that is the case, Amendment 18 would ensure that pre-commencement conditions in line with the National Planning Policy Framework could still be imposed. That is all that we are seeking to do to establish some clarity. If that is not the case and the Government want to go further, we should know exactly what they want to do, how they see any extension of that process working, why they think it is important to do it, what effect it will have, what problem it will solve and what benefits it will bring.

To come back to archaeology, which is a key area and an exemplar of what might happen, there are concerns among the archaeological and heritage bodies about the clause. Of course, for most applicants the archaeological work is done in advance of development work to mitigate risks—we all know that; we have been over it many times in this House. The archaeological bodies are concerned that it would potentially allow less scrupulous developers to try to avoid paying for archaeological work by refusing to accept a pre-commencement condition. That means that, essentially, they could just walk away and nobody would benefit, which seems a rather draconian situation.

I know that the Minister is inclined to say that that should be governed by regulations and guidance, but an awful lot goes into guidance and regulations in this Bill, and something as crucial as being clear about the status of the NPPF in relation to pre-commencement orders should be established in the Bill if there is any difficulty around what is intended.

National Policy for the Built Environment

Lord Sentamu Excerpts

Tuesday 24th January 2017 Grand Committee

[The Archbishop of York]

My Lords, it is essential that more homes are built to support the population of the United Kingdom. Parliament’s own publication estimates that a minimum of 230,000 new homes need to be built each year, a level of building not sustained since the 1970s, and two to three times above the current levels of supply. Some 81,000 households were estimated to be homeless or in temporary accommodation in 2013-14. It is young people in their late teens and 20s who are most unable to afford rents, particularly in the private sector. The gap between average household income and house prices continues to rise, further reducing affordability for many households. Therefore, as affordable new-build housing is essential, the quality and effort put into designing the living environment and communal space becomes even more important. It is particularly relevant that different types of housing are integrated as much as possible, so that different types and groups of people meet each other in the course of everyday life, rather than being shut away behind gates or stigmatised. Derwenthorpe is a good example of integrated housing provision on a very large site.

Community is not just about buildings and streetscapes—it is about the people who live and interact in a particular locality. As the Secretary of State for Communities and Local Government recently said, government,

“can build … homes … but alone can’t build communities … a sense of belonging or force people to love thy neighbour as thyself”.

Archbishop Justin in his speech on the debate on shared values on 2 December 2016 spoke of the importance of intermediate groups and institutions, saying that that was where,

“democracy is founded and our diversity preserved and nurtured for the common good ... Intermediate groups are where we build social capital, integrate, learn loyalties, practices and values, learn to disagree well and learn to build hope and resilience”.—[Official Report, 2/12/17; col. 417.]

Newly created settlements that do not allocate sufficient physical space for these intermediate groups and institutions to be formed will struggle to become cohesive communities in their own right and are more likely to fail to integrate into existing communities.

Church congregations make significant contributions to strengthening existing communities, and contributing to building new communities. This can be achieved through formal, organised activities and events, such as regular social gatherings—coffee mornings or lunch clubs—particularly for those of whatever age who are at home alone during the day. After-school clubs, activities for families, children and young people all help to bring people of all ages together. Services such as Messy Church, cafe church and other new approaches help people to engage with faith and get to know one another at the same time. This contribution to the creation of social capital in a settlement, both bonding and bridging, is done most effectively when working in partnership with organisations and groups that already exist or are forming in the community. However, it is the informal networks of friendship, good neighbourliness and participation in other groups and organisations by congregation members that make the most significant, but often hidden, contribution to building community. Research into the relationship between congregations and social capital shows that it is church members who are the glue that holds communities together, with the impetus to bring people together, thereby addressing isolation and loneliness, but also building community where it has not existed before.

The National Planning Policy Framework states at paragraph 55:

“To promote sustainable development in rural areas, housing should be located where it will enhance or maintain the vitality of rural communities”.


New developments to be built under the NPPF must be sustainable environmentally, economically and socially. It is not clear if enough attention has been paid to the social aspects of some new developments. New-build communities need to be linked to existing housing in the area and provided with safe, joined-up pedestrian access and cycle routes. Streetscapes and the shape of developments all have relevance to linking new and existing residents. Developments that turn their backs on their neighbours, or are turned in on themselves, are not conducive to building cohesive and resilient communities. Her Majesty’s Government have endorsed the findings of the Select Committee to encourage developers to use the Manual for Streets. Again, this is to be welcomed.

On this theme, providing access to much-needed services is also part of building community. This is not just medical care, shops and schools—important though these are—but multi-use spaces, such as cafes, pubs, community halls or places of worship. The provision of green space and playing fields, as well as play areas, makes a large contribution to individual and community well-being. Green infrastructure makes an important contribution to sustainability, as well as community building. It is a missed opportunity not to specify minimum standards for this. Leaving decisions solely to local planning authorities risks losing the potential for fully integrated land use.

The health of people living in places with new-build housing would benefit from the use of health impact assessments—HIAs—which is strongly recommended by the Select Committee. In their response, the Government have endorsed this approach, particularly for large-scale developments where the local planning authority considers it germane. It would be appropriate to point out the value of HIAs to mitigate negative impacts and maximise the potential gains in health, and to encourage more widespread use of this tool, beyond larger-scale developments. Public Health England supports a free service for HIAs to be developed. The recognition that, particularly for large-scale development through the National Infrastructure Commission, engagement with local people ensures the maximum sustainable benefits resulting from the new development is welcome. We look forward to the more consensual approach to development promised by the establishment of this body.

The strengthening of neighbourhood planning, supported by the Neighbourhood Planning Bill debated on 17 January 2017, is welcome, particularly the proposal to take into account in planning decisions neighbourhood plans that have been approved but not yet passed by a local referendum. Communities formed from existing and new-build housing will be cohesive only if existing communities have a say in how the new development is built.

Neighbourhood Planning Bill

Lord Sentamu Excerpts

2nd reading (Hansard): House of Lords
Tuesday 17th January 2017 Lords Chamber

[The Archbishop of York]

My Lords, I hope I will not abuse the great privilege your Lordships have given me by allowing me, as the 24th speaker, to speak in the gap.

I support the Bill because of the three areas it covers: neighbourhood planning, local development plans and compulsory purchase. Neighbourhood planning is dealt with in Clauses 1 to 5, which enable planning decision-makers to take account of well-advanced neighbourhood plans by giving such plans legal effect at an earlier stage, prior to full approval by a local referendum. That is critical. A neighbourhood plan attains the same legal status as a development plan once it has been agreed at a referendum and is brought into force by a local planning authority. At this point, it becomes part of the statutory development plan. Applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise. This will help communities that are well advanced in the neighbourhood planning process to have more protection from speculative development that would contravene the proposed neighbourhood plan.

Will local referenda become nimbyism charters—not in my back yard? I hope not. The noble Baroness, Lady Hodgson, is also concerned about the localism issue. I hope that referenda will not be a charter for those who want to protest and do not want anything to be done. In York, we have many grade 1 listed buildings. If we try to change them to make them usable for the local community, everybody comes out of the woodwork saying, “The building is in a mess but the pews are lovely. Don’t remove them”. I hope that localism does not prevent people doing anything.

Secondly, pre-commencement planning conditions, dealt with in Part 1, Clauses 12 and 13, are requirements that local planning authorities can place on planning applications which prevent development taking place until they are formally met by the applicant. As I understand it, the Bill would allow a local planning authority to use pre-commencement planning conditions only where it has the written agreement of the developer. However, if I have read it correctly, the Bill would not restrict the ability of local planning authorities to seek to impose conditions that are necessary to achieve sustainable development in line with the National Planning Policy Framework. Again, the Bill tries to do two things, and does them well.

Although it is important to prevent the imposition of unreasonable conditions on developers, it is essential to ensure that archaeological heritage, habitats and species, and the concerns of the community are fully taken into account in the planning process, even after permission to build has been granted. It seems unlikely, by the way—maybe I am wrong—that a developer will agree in writing to have pre-commencement conditions imposed on them, and implementing these clauses could further blunt the powers of local planning authorities to try to ensure sensitive development.

The DCLG maintains that appropriate protections for important matters such as heritage, the natural environment and green spaces will be retained, along with measures to mitigate the risk of flooding. Clause 12 —this is where I want the Minister’s help—will grant the Secretary of State the power to make regulations setting out what conditions may or may not be imposed on the granting of planning permission. It would be helpful to have more detail on what these regulations might be—the noble Baroness, Lady Hodgson, said the same thing—as the Bill goes through Committee and Report. The Government have indicated that the regulations would be subject to public consultation.

As someone who voted to remain in the referendum, I want to say that part of the trouble with the EU—one of the things that bedevilled it—was what I call a forest of regulations. I hope that regulations will not be used as a way to create greater lack of clarity.

A very helpful clause on compulsory purchase has been included in the Bill. It clarifies the potential payment and prevents claims to increase the value of compensation payable if proposals then change. These changes seem proportionate and will help to bring brownfield sites into development. Work needs to be done on that.

There do not seem to be any provisions in the Bill that will have disproportionately positive or negative effects on different areas of the country, different land types or different communities. In other words, it is a balanced Bill for all areas and, coming from the north, I welcome that. There is much to support in the Bill, which will help to strengthen neighbourhood plans and bring more sites into development. There are some concerns about possible restrictions on the use of pre-commencement planning conditions, but that can be sorted out in Committee and on Report. For those reasons, I welcome the Bill. Its sponsors are to be encouraged and I want to say simply, thank you.

Terrorist Asset-Freezing etc. Bill [HL]

Lord Sentamu Excerpts

Wednesday 6th October 2010 Lords Chamber

[The Archbishop of York]

My Lords, in the debate on Second Reading on 29 July, I supported the noble Baronesses, Lady Hamwee and Lady Falkner, and the noble Lords, Lord Pannick and Lord Myners, in suggesting that “reasonable suspicion” provided too low a threshold for action that would violate a person’s liberty, privacy and financial interests. I prefer the term “reasonable belief”. The difference between the two is that reasonable suspicion means that something may be so, whereas reasonable belief means that something is so. To me, the distinction is important. However, I congratulate the Government because at least they listened to the debate. The noble Lord, Lord Sassoon, argued in his reply that the test of reasonable suspicion was necessary to allow preventive action to be taken before any terrorist acts were actually committed. He cited the freezing of assets in connection with the transatlantic bomb plot in 2006. However, he indicated that he had listened to the arguments.

Last Friday the Government tabled their amendments, which essentially create a distinction that I think is probably reasonable. The amendments create an interim designation that would expire after 30 days and a final designation that would be made subsequently. New clauses inserted after Clause 5 state that the test for an interim designation would be that of reasonable suspicion, while Amendment 2 amends Clause 2 to provide that the test for a final designation would be that of reasonable belief. This provides a way of allowing preventive freezing through a lower threshold of proof for a limited period.

The noble Lord, Lord Pannick, and the noble Baronesses, Lady Hamwee and Lady Falkner, have tabled an alternative set of amendments that would apply a more rigorous test by substituting the test of reasonable belief in Clause 2—Amendment 3—and by providing that designation should expire after 30 days unless confirmed by the High Court. This would bring judicial review forward to an earlier stage in the proceedings and make it automatic rather than dependent on the lodging of an appeal.

I have only just seen these amendments with the publication of the Marshalled List, but my initial inclination is to think that they do not meet the point about preventive action, which is at the heart of the Bill. Noble Lords will remember that UN Resolution 1373, adopted in 2001, required member states to prevent the financing of terrorist acts, including the freezing of funds, and to prevent their nationals and those within their territories from making funds and resources available: so it was intended to prevent actions. On that particular bit, I am happy with this two-pronged approach: first, an interim designation, and then after 30 days an actual designation. But I am not sure why the final designation is not to be made by the High Court. Why have we not gone that little bit further? I understand the interim designation because we need to stop people, as the United Nations requires us to do. Indeed, we are here today simply because the Supreme Court has ruled that the orders that have been made by Order in Council should not have been made in that way. It said not that they were not right but that they should have been made through an Act of Parliament. I suggest that, in keeping with UN Resolution 1373, and with Resolution 1452 in December 2002, the interim designation that is being attempted here goes a long way to meet my concern last time, but I am not so sure why, after a period of 30 days, the designation will not be made by the High Court.

[Lord Myners]

My Lords, I join others in giving credit to the Minister for the changes that have been made on the issue of reasonable suspicion and reasonable belief. When I was a Minister, I came to recognise that officials’ favoured recommendation on any amendment or discussion in this House and probably in the other place is “resist”. It is much to the credit of the Minister that he listened carefully to the arguments and has brought forward a constructive proposal.

It is clearly the case that you can reasonably suspect something without necessarily believing it, as the Minister’s proposal acknowledges. It is possibly churlish, therefore, to find any fault. However, I have a reservation that the proposed interim test may now be recognised as rather simple and could be used for a fishing trip to flush out further evidence during the period. It will be interesting to hear the Minister’s response as to how we can be assured that the test of reasonable suspicion will be implemented with appropriate respect for our intention in that regard.

I hope that the Minister will also confirm that the acceptance of these amendments today will not limit further discussion on Report. Other Members of the Committee have noted that these amendments, constructive and welcome as they are in most respects, have nevertheless been tabled quite recently. As the noble and learned Lord, Lord Lloyd of Berwick, indicated, they give rise to significant issues, which Parliament should be expected to consider carefully.

I add my support to the observation of the noble Lord, Lord Pannick, about the protocols that will apply in a situation in which an initial freezing might be extended. The noble Lord is right to say that that should be done not simply on the basis of there being new evidence but on the basis of substantial and material new evidence. This is to ensure that the abuse that the Government have in mind—the granting of successive interim orders without ever having to go to the test of reasonable belief—is addressed. The noble Lord’s suggestion in this respect is entirely consistent with the grain of the Minister’s thinking.

As the Minister who took the temporary Bill through this House earlier this year, with the noble Baroness, Lady Noakes, responding on behalf of what was then the Opposition, I agree that the Minister has presented us with a significant improvement on that legislation.

--- Later in debate ---

[Baroness Noakes]

My Lords, the Government’s move away from the judicial review basis to a more natural appeals process for designations in their Amendment 57 is welcome. It shows that the Government have been listening to concerns about civil liberties in this Bill.

However, I have continuing concerns about Clause 22, and for that reason I shall speak in support in particular of Amendment 62 in the name of the noble Baroness, Lady Hamwee. Before I do so, I have a question for the Minister in connection with government Amendment 57, which sets up the new appeal process for designations. Am I correct that there is no provision for any appeal against the decision taken in the High Court or the Court of Session? Does it mean that the appeal process, so far as the designated person is concerned, ends there? I am not sure whether I mind one way or another, but I would be grateful to know what the Government’s position is on that.

I turn to the remaining decisions that will be dealt with under the terms of Clause 22. I accept that designations may appear to be the most important of the decisions the Executive will take in relation to the matters covered by the Bill, but decisions about licences are also vital for people who are designated. The licence regime will allow living expenses for those individuals, or possibly for the expenses they incur in order to carry on their business or trade. I spent most of the last 10 years on the Benches opposite arguing, in various circumstances, why people should not have to rely on judicial review when they get enmeshed in one Act or another. I argued strongly that judicial review is an unsatisfactory process for the citizen. That is because while the courts may well be expanding a little at the moment, typically they have involved themselves in or interfered with decisions of the Executive only where they are perverse in one way or another—perhaps because no normal decision-maker could have made the decision, the decision-maker took account of irrelevant facts or failed to take account of facts that were clearly relevant. Any civil servant worth his salt knows how to protect his Ministers from a judicial review challenge. Such a challenge is much more about form than substance, so I have never seen judicial review as something that gives the citizen much protection. If the person affected by a designation cannot convince the court that the decision was perverse in one way or another, there will no remedy at all.

The noble Baroness, Lady Hamwee, has alluded to the question of whether the court can vary the terms of a licence. If they fail to establish a perverse decision at judicial review, there will be no remedy, and if they could establish that a decision was perverse, which would probably be unlikely, there is then a question of whether any remedy is available at that stage or whether the matter has to go back to the Treasury for a further determination.

I hope that the Minister will reflect further on the Government’s position in Clause 22 and look again at whether the safeguards for those who are designated are adequate in those circumstances that go beyond the actual designation. It is good that we have moved to designations and it would be good if we could move a little further.

[The Archbishop of York]

My Lords, earlier I supported interim versus final designation, as the Government have proposed in their amendments. At the previous stage I also raised this question: when someone’s assets have been seized, how are they expected to bring forward appeals when they may not have any access to money to hire lawyers? We have been told that the final designation should be made by the Treasury and not by the High Court, which I would have preferred. There is wider resistance to this proposal, and I find the amendment persuasive. It provides that a designation,

“shall expire after 30 days unless confirmed by the High Court”.

That would help the person whose assets have actually been seized because they need to know what is going to be done. The appeal process comes much later, in the new clause to be inserted before Clause 22. Although it is helpful, again I do not think that it will cure the problem that I raised earlier in this Committee.

I feel that the Government have got to respond to this. What happens after 30 days? Does it continue? The person’s assets have gone and they perhaps cannot have access to lawyers, but it has been said that they could appeal under the new clause introduced before Clause 22 by government Amendment 57. However, that is a little too late because after 30 days, if it did lapse, only the court should say, “Yes, we are going to continue to make it as a final designation”.

In the absence of all of that, I would be very worried about our judicial processes. Although I believe the interim order is quite reasonable, as is changing to reasonable belief, but why should it be confirmed after 30 days unless a High Court confirms it? If not, the appeal, to me, comes too late in the process.

--- Later in debate ---

My final point is that if nothing is done to restrict those flows and the accumulation of assets, it will undoubtedly encourage the development of an industry of piracy and hijacking—not merely in the Gulf of Aden but in other parts of the world, because it would seem to be an attractive business with little risk that can be conducted entirely within the law of the land.

[The Archbishop of York]

My Lords, I do not want to detain the House. I am one of those who has been anxious about designation without involving the judiciary. I am very grateful for Amendment 7 in the names of the noble and learned Lord, Lord Davidson, and the noble Lord, Lord Davies, because, as a probing amendment, it has produced from the Minister a statement on the context in which these decisions are taken. I know that it will be in Hansard, but can a copy of what he has said to us about the Treasury taking these decisions and the responsibilities it takes be put in the Library? People could then look at that and refer to it. I am one of those who now thinks it is right that the Executive should take the decisions and the judges should then look at them. Therefore, I welcome Amendment 57, because the matter has been made clearer by the wonderful probing amendment. Without it, I was still living in a fog.

Perhaps I may end on why this clause should be part of the Bill. On page 10 of his wonderful book, The Rule of Law, the noble and learned Lord, Lord Bingham, quotes Magna Carta. I love his translation, because the old language is pretty difficult. He refers to the terms of chapters 39 and 40, which state:

“No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land”.

If the law of the land does it, that part of Magna Carta is right. It continues:

“To no one will we sell, to no one deny or delay right or justice”.

I thought that I heard the Minister tell us what the Treasury does. I am comforted and I should like that description to be placed in the Library.

[Lord Sassoon]

First, I should say that I am grateful to the most reverend Primate. If we have managed to raise a bit of fog through the combination of a probing amendment and a bit of detail from me, and be reminded that we are meeting part of the test in Magna Carta, we will have spent a worthwhile hour or so. He also answered rather eloquently part of the further challenge from the noble Lord, Lord Davies of Stamford, on whether it should be the responsibility of the Executive or the courts to issue the order. I do not know whether the noble Lord is still looking for an answer. He partly answered the question himself, because I was going to start by reminding him that indeed it was the previous Government who operated the regime in this way. It was the Bill passed by this House which became an Act in February—

Terrorist Asset-Freezing etc. Bill [HL]

Lord Sentamu Excerpts

Wednesday 6th October 2010 Lords Chamber

[Baroness Falkner of Margravine]

I speak to this amendment on the basis that I was a member of the Joint Committee on Human Rights in the previous Session. I recall that my noble friend the Minister said in his opening remarks some hours ago that he did not want to draw an analogy in the provisions of the Bill with control orders. However, I respectfully suggest that if he looked at the 16th report in 2010 of the Joint Committee on Human Rights, on counterterrorism policy and human rights, which concerned the annual renewal of control orders legislation, he would find that significant aspects of the problems that will arise from Clause 23(4)—not least those of the AF case, referred to by the noble Lord, Lord Pannick—are covered in the report of the committee, which was excoriating. It is a sadness that the previous Government took no account of it whatever.

I do not want to take up too much time at this point in the evening, but let me briefly summarise for my noble friend the three issues that the report raised about special advocates. Those issues were:

“(1) Lack of access to independent expertise and evidence … (2) Ability to test Government objections to disclosure of closed case”,

and, finally,

“Limits on ability to communicate with controlled person”,

after seeing the closed material. The noble Lord, Lord Pannick, has first-hand experience of this, but let me also just read one paragraph from page 21 of that report, which I think expresses quite succinctly what part of the problem is. The report says:

“The special advocates have no means of gainsaying the Government’s assessment that disclosure would cause harm to the public interest, and Government assessments about what can and cannot be disclosed are effectively unchallengeable and almost always upheld by the court. Courts inevitably ‘accord great weight to views on matters of national security expressed by the agencies who are particularly charged with protecting national security’”.

As well as highlighting the deleterious effect of late disclosure, the report touches on international comparisons and finds that no other country uses special advocates in quite the way as we do by denying the defendant—in this case, the designated person—so many rights to which a defendant would normally be entitled under human rights law.

If the Minister is not prepared, at this hour of the night, to concede that there may be some really problematic issues in retaining subsection (4), perhaps he might consider returning to the issue on Report after further consideration.

[The Archbishop of York]

My Lords, under the new clause inserted before Clause 22 by Amendment 57, which we have just agreed, designated persons will be able to appeal and will know the case before them, whether their designation is interim or otherwise. Clause 23, “Review of decisions by the court: supplementary”, then details supplementary provisions on the reviewing of such cases. Therefore, I would have thought that, if I was designated under an interim order, under the new clause inserted before Clause 22 I would be able to appeal on the case before me. Otherwise, how would the case be heard? For me, that is the order in which things will happen.

If the new clause inserted by Amendment 57 had not been agreed, I would have agreed with the noble Lord, Lord Pannick, that the provisions would not make sense. However, now that the Government have inserted that new clause by Amendment 57, it seems to me that the rest now follows. I would agree with the position of the noble Baroness if we did not have the new clause, but I think that the new clause will allow appeal at all different stages. Therefore, the courts will be able to decide on those matters. Clause 23 just makes supplementary provisions on reviewing such matters.