Deregulation Bill
Lord Stevenson of Balmacara Excerpts(10 years ago)
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Lord Stevenson of Balmacara (Lab)
My Lords, in moving Amendment 78ZA, I shall speak to Amendments 78ZB and 78ZC in this group. These are probing amendments, as I have some sympathy for what is being proposed. As a former director of the British Film Institute, I can hardly object to a measure which is aimed, I think, at broadening access to group viewing of films, which must he a good thing. However, I worry that what this clause proposes is at one and the same time oversimplistic and unsighted about some of the problems of operating such venues.
The clause effectively would create two classes of film exhibitor—one that is regulated and another that is unregulated. In the regulated sector would be the majority of current commercial cinema operators and several dozen existing voluntary and community-run enterprises, such as the Ritz Cinema in Thirsk and the Market Hall community cinema in Brynmawr, which in its 120th year was recently awarded “cinema of the year” at the prestigious Screen Awards—something which we should all celebrate.
In the unregulated sector would be the new “community premises” over which the appropriate licensing authorities would have no control. I suggest that we need some definitions. What are the community premises of which the Bill speaks? Will the Minister spell out today the type of venues these community premises would be? Who can operate these events? New Section 6A(2)(b)(i) to be inserted in the Licensing Act 2003 under Clause 58 suggests that they might be,
“a trade, business or other undertaking (for profit or not)”.
I assume that this might include, for example, a pub, a bingo hall or any other place which would otherwise require a local authority licence to attest to its ability to host a public gathering. Perhaps the Minister will confirm that. If such operators were to organise any other type of event, such as a dance or a charity function, particularly if alcohol was to be sold, would these meet the same definition of “community premises” and would they need to be licensed?
The Government have made the proposal sound like an idea to open up windy church halls to genteel afternoon showings of perhaps classics of the silent cinema or even “Brief Encounter” and the like. However, the clause is so loosely worded as to allow for any operator to exhibit any film without a licence. The clause opens up a world in which any group might exhibit virtually any type of film or video presentation in public. What about children? What is role of the BBFC in this matter? What role will the local authority have in all this? I seem to remember that the wonderful film “Life of Brian” is still banned in some local authority areas.
What is a not for profit venue? The Government suggest that this clause is aimed at not for profit venues but no legal definition is offered. Given that the venue itself could be for profit or not, how does that sit with the wording in the clause, which states that the deregulated film exhibition,
“is not provided with a view to profit”?
What does that mean? Does it mean that the film costs less to hire than the price of entry, that the ticket income does not exceed the cost of any venue hire or that the total revenue for the event, perhaps including food and drink, does not exceed total costs, including contributions to the venue’s heating, lighting, staff and other overhead expenditure? We need more detail on that.
At the heart of all this is the question: why should public safety regulations not apply? An existing commercial cinema exhibitor must adhere to licence regimes covering fire, electrical and heating safety, hygienic food handling practices, noise pollution and local environmental rules, as well as, on occasion, fitness to serve alcohol. Why would the Government want to reduce existing levels of public protection? We should remember that these venues will be capable of holding up to 500 people at such an event. What happens if there is a problem such as a fire?
More generally on the size limit, why is it so high? Will the Minister explain the thinking here? I am informed by the Cinema Exhibitors’ Association, which represents well over 90% of UK cinemas, that there are no more than 60 screens nationwide which can show a film to an audience of 500 persons. Why then should an unregulated cinema be allowed to present films in an unregulated environment to so many? I strongly suggest that the Government consider a much lower maximum attendance figure.
Finally, unregulated film exhibition of the type proposed threatens to significantly weaken controls over piracy, which remains a very real threat to the livelihoods of all those working in the wider film industry. What consultations have the Government held with the industry about this, and what reassurances have they given? Are they content with the situation more generally?
Existing licensed cinema operators have a strong history of offering safe, clean, well managed and fair access; the lack of clarity in this clause is not helpful and we need a lot more detail from the Minister when he responds. In an extreme case—it would be extreme, I recognise that—the Government could find themselves deregulating cinema exhibition for a well meaning purpose but letting unsavoury operators into a market that is currently well regarded, law-abiding and safe for its customers and staff. Quite apart from the health and safety, fire, food and environmental regulations gap, will the Minister say how the Government can be certain that the other necessary public protections, such as child protection, will work in practice?
Undefined “community premises” no longer needing to apply for an entertainment licence would effectively fall off the radar of protection and enforcement authorities. The planned changes, although welcome, appear to put at risk the high standards of safety and child protection that have worked well over the years. There would be little or no oversight of the admissions criteria or content shown at community premises and no real control over who could claim such community status and so avoid enforcement. The level playing field in standards for public protection would be lost.
Our amendments point to the need for further work on the maximum audience size, on the definition of community premises and on defining what “not for profit” means in practice—all aimed at avoiding the creation of an unlevel playing field with existing regulated community cinema providers. Assurances are also needed about the continued regulatory role of enforcement bodies in order to ensure that wider public protections are in place to safeguard customers, with regard to, for example, underage admission, BBFC certification, piracy, public decency and safety standards. I beg to move.
Lord Gardiner of Kimble (Con)
My Lords, I thank the noble Lord for his amendment. It is important that I should start with the definition of “community premises”, because I hope to be able to reassure the noble Lord and your Lordships as to the modest nature of these measures, and the protections included in them.
Community premises, as defined in Section 193 of the Licensing Act, are those premises which are or form part of a church hall, a chapel hall or other similar building, or a village hall, parish hall, community hall or similar building. The Government’s view is that this modest measure relates only to the exhibition of film in community premises as I have outlined. We do not believe that these events will bring in meaningful competition with local cinemas, even where such cinemas operate on a not for profit business model. This is because the deregulation is subject to certain conditions, one of which is that the exhibition is not provided with a view to profit. This includes where the profit is for charitable or other fundraising purposes.
The Government believe that intention is the key factor here. For example, a film society is not set up to exhibit films for profit; its intention is to explore film culture rather than to generate income. We are therefore confident that the test of intention will provide protection against an exhibitor with a profit-making motive being able to exhibit a film legally under this exemption. To assist licensing authorities that are responsible for enforcement, and event organisers, the Government will issue revised statutory guidance on this exemption. Indeed only yesterday the Minister for Sport and Tourism deposited in the House Libraries a working draft of the revised Chapter 15 of the licensing guidance, to assist with Parliament’s scrutiny of Clause 58.
A rather more blunt measure of whether or not profit was made, without reflecting the intention, could have a detrimental effect on community film screenings. I will explain why. For example, people would have to be turned away from an unlicensed exhibition if their attendance could give rise to a profit being made. It would also require the event organiser to know, with the audience already present, whether they had generated more income than the total cost of the exhibition. If they had, then in the absence of a licence or other authorisation the exhibition of the film could not legally proceed.
The whole point of this exercise is that the Government wish to remove the licensing burden for low-risk entertainment activities, such as the exhibition of a film in community premises as defined in the circumstances of Clause 58. The Government therefore consider that the clause cannot be exploited by anyone seeking to exhibit films on a “for profit” commercial basis, without the need for a premises licence.
Amendment 78ZB would limit to 250 persons the maximum audience allowable for an exhibition of a film in a community premises. I know that the noble Lord was particularly concerned about that point. The Government consulted widely in 2011 on a proposed audience limit for all forms of entertainment. The audience limit of 500 is reflective of the wider outcome of that consultation. An exhibition of a film is a lower-risk activity, and having an audience limit of 500 people maximises the cultural benefit for community groups and does not, in the opinion of the Local Government Association and others, give rise to particular public safety concerns. The limit also provides a read-across to the 499 audience limit for an event authorised by a temporary event notice.
This limit is generally regarded by local authorities and the emergency services as an appropriate audience ceiling for these sorts of events. Further, it is consistent with other entertainment activities within the Licensing Act, such as a performance of dance or of live music. Indeed, it would be very odd if community premises could put on a pantomime for 500 people without the need for an authorisation, but could show a film of that pantomime to an audience of no more than 250 people. I also make it clear that key safeguards remain in place; Clause 58 makes no changes to protections already in place in respect of alcohol licensing, health and safety, noise pollution or fire safety.
In more detail, the noble Lord’s final amendment in this group seeks to add a further condition to the qualifying criteria. The Government’s starting point is that regulation should be required only where it remains necessary and proportionate to safeguard the licensing objectives. The licensing objectives—set out in the Licensing Act 2003—are in respect of the prevention of crime and disorder, public safety, the prevention of public nuisance and the protection of children from harm. The issue of an appropriate audience limit relates most closely to the public safety objective. The Government considered those objectives when preparing these proposals, and concluded that licensing film exhibitions in small community premises could not be justified when assessed against the risk to the four licensing objectives.
The four licensing objectives rightly focus, as I said, on the prevention of disorder and ensuring public safety in places where people gather together in numbers for leisure. They ensure that regulation is focused on what is necessary to protect the public. Very importantly, they also avoid duplication with other regulatory regimes, which can increase the cost of regulatory compliance for all concerned. I will take the proposed conditions in turn. The noble Lord posed these questions, and I hope that your Lordships will find the following reassuring.
As regards fire safety, Clause 58 makes no change to the requirement that community premises owners are responsible for fire safety. This is set out in the Regulatory Reform (Fire Safety) Order 2005, which in most cases is enforced by the local fire and rescue authority.
Lord Gardiner of Kimble
I am most grateful to the noble Lord. If some information can be provided to me during my remarks, I will be able to record it here—but, if not, I will make sure that that noble Lord and the Committee know of the response.
The whole purpose of this part of the Deregulation Bill is to make it easier to exhibit films in village halls and other community premises, as I have suggested. We wish to strike a better balance between necessary protections—I hope that I have outlined what will remain and why that is so important—and removing unnecessary burdens. I think that we would all agree that there are too many examples of burdens sapping the will of volunteers and very often soaking up scarce financial resources.
Where the conditions of this exemption are not met, then, rightly, a licence will still be required. Other key protections will continue to apply, such as alcohol licensing and health and safety and noise abatement legislation.
The noble Lord, Lord Stevenson, asked a number of questions relating to fire safety and health and safety. A person who organises a film screening will continue to be subject to a whole range of legal duties on fire safety, safe workplaces and public nuisance. This includes a common-law duty of care towards the health and safety of those attending the film screening.
On the question asked by the noble Lord, Lord Watson, those responsible for the exhibition of a film on community premises must have in place operating arrangements. That would include a suitable child admission policy implementing the recommendation made for that film by the BBFC or local licensing authority. They may operate a membership subscription scheme which pays for entry to all titles in a season and is limited just to adults, or they could sell tickets to the public and ensure that children are permitted entry only in accordance with the age rating for the film. If there is anything further I have on that, I will write to the noble Lord and ensure that other Members of the Committee are made aware of it.
The noble Lord asked about the weakening of controls on piracy and how this could be controlled. Indeed, a film shown in a community premises must be compliant with the Copyright, Designs and Patents Act 1988 in the same way as a film shown in a cinema.
The noble Lord raised a number of questions. I know that these are probing amendments but it is important that all the points the noble Lord has raised are clarified and there are assurances that this proposal is a force for good. Coming from the countryside, I know that very often cinemas are 30 or 40 miles away from communities. I do not believe there is competition in place. This is about communities enjoying films to which those who live in suburbs and towns have a much readier access. That is the whole purpose of the clause—to ensure that communities have the advantages that those who live in cities and towns and close to cinemas enjoy. I have been to many community film exhibitions near to where I live. They are well supported and anything we can do to encourage communities to enable people to enjoy film is desirable. So if the noble Lord would like to discuss anything further with me before further stages of the Bill, I would be delighted. I hope I have been able to reassure your Lordships, and that the noble Lord will withdraw his amendment.
Lord Stevenson of Balmacara
My Lords, that is the first time I have been invited to go to see a movie with a member of Her Majesty’s Government. I will reflect carefully on that. We actually live quite close to each other and there are several local community film venues between our respective villages, so it is feasible to do that. We will think about that.
Film as we see it today is rarely controversial and rarely leads to public disorder but it was not always thus. Those of us who are interested in film history will know that one of the early screenings by the pioneers of cinema—a train arriving at the station in Lyon—resulted in the audience evacuating the hall so fast that it could not be considered safe, because they feared that the train was actually coming out of the screen at them and leapt out of the way to avoid imminent disaster. I do not think even 3D could possibly cope with that. But we should bear that in mind when thinking about what we are doing here.
I will read carefully what the Minister said and may take him up on his idea of a meeting. It is slightly irritating that we did not get sight of the draft licensing regulations. They may have been placed in the Library yesterday but it would have been useful to know that they were around; we could perhaps have saved a few of the questions I raised.
There are three points that I would like to make. First, it is now clear from the noble Lord’s response that the model here is the live music scene—I think he mentioned dances and music—where obviously an upper limit of 500 is perfectly understandable. I do not see this being appropriate in church or village halls or even parish halls, which are not ever going to be as large as that. If that is the restriction, I think the 500 is otiose but I will reflect on that.
Secondly, I still think there is a dichotomy in the way in which this is intended to apply. If it is restricted in operation to church halls, village halls and parish halls but can be run by profit-seeking bodies such as pubs or others, there is still a tension about what is exactly in mind here, but the gap for those who might be wishing to exploit that for profit may not be as bad as I originally feared.
Thirdly, the trick here is to limit the exercise of this to sites that are licensed in the full round of local authority licensing—including fire safety, public health and noise—but the event itself will not be specifically licensed, so that it can be done with a minimum of fuss. I still think there is a tension there about what happens when child protection issues are raised or there are questions about whether the films are certified under the BBFC or by the local authority. We are not quite sure about that. But that is not sufficient to hold back discussions today and I beg leave to withdraw the amendment.
Lord Stevenson of Balmacara
My Lords, Clause 59 mandates the Secretary of State to carry out a review of the alternatives to criminal sanctions for non-payment of the TV licence fee. A television licence is required to watch all live, or nearly live, broadcast television content on any device in the UK. It has become popularly known as the BBC licence fee but that is of course a misnomer—it is a licence to receive a broadcast signal sufficient to be able to watch television or to listen to radio. Nevertheless, the BBC is tasked with collecting the licence fee. The function is subcontracted to a private company under the brand TV Licensing. Failure to have a TV licence is an offence under Section 363 of the Communications Act 2003, punishable by a fine. This clause specifies the timing of a review, which is to commence within three months of Royal Assent and to be completed within 12 months of it beginning. It specifies that a report must be presented before both Houses of Parliament and presented to the BBC Trust.
It is surely an irony beyond satire to have a clause in a deregulation Bill which duplicates what is already happening in the real world. On 9 September 2014, the Secretary of State for DCMS announced his intention to begin a review into TV licence enforcement, which will be independently led, on behalf of the Government, by David Perry QC. The objectives are in fact broader than this clause specifies. They are:
“To conduct a review into the enforcement regime for failure to have a TV Licence to … examine whether the sanctions for contravening this offence are appropriate, fair and whether the regime represents value for money for licence fee payers and tax payers; and … identify and assess options for amending the current enforcement regime, including those for decriminalisation of TV licensing offences, and whether these options would represent an improvement”,
based on certain key considerations.
Mr Perry has to,
“make recommendations to the Government by the end of June 2015”,
which is well within the timescale specified in the clause. He is charged with producing:
“A report setting out an assessment of the current and proposed enforcement regimes, key findings, conclusions and any other supporting information to be submitted to the Government by the end of June 2015”.
The Secretary of State is required to,
“lay this report before both Houses of Parliament and present it to the BBC Trust”.
These requirements are identical, in all but a few words, to the requirements specified in Clause 59. So what, precisely, is the purpose of this clause? It has been overtaken by events, is not required and should be excised forthwith. I look forward to the Government agreeing with me that this clause should not stand part of the Bill.
Lord Gardiner of Kimble
My Lords, at Commons Committee stage, the Government supported the amendments tabled by the honourable member for North West Leicestershire. Clause 59 imposes a duty on the Secretary of State to ensure that a review of the TV licensing enforcement regime is carried out—as the noble Lord, Lord Stevenson of Balmacara, mentioned. This review will identify whether the current enforcement regime is appropriate and proportionate. The review will also ensure that there is a strong, evidence-based case for any potential changes to the TV licensing enforcement regime.
The findings of the review—which has already started—will be completed by June next year and should be considered in the context of the charter review. It will be for the Government of the day to take forward any further actions as they see fit. The current Government are very clear that the review of the licensing enforcement regime is a high priority. Hence, we have taken the decision to commence the review this autumn, in advance of Royal Assent.
If there is potentially an issue with the current regime, it can be of benefit to no one to delay the review or to prevent its findings informing any required change to the existing system. Our overriding aim is to ensure that the system is appropriate, proportionate and fair and that it represents the best value for money for licence fee payers and taxpayers. There was significant support for both of the TV licensing clauses in the earlier stages of this Bill in the other place. We believe that the firm commitments set out by the Government at that time must be honoured, particularly given that strong cross-party support. For that reason, we would not seek to remove the review clause from the Bill.
The current review has clearly defined terms of reference and, although there are no guarantees over decisions that any future Administration may seek to make in this area, particularly if they were minded to go against the will of Parliament as demonstrated in the strong support for these clauses, we do not believe that there should be any delay to the review. However, we think that the retention of Clause 59 ensures that at the absolute latest the review must be completed within a year of having begun. This duty will apply to the future Government and provides a crucial backstop to ensure that this important piece of work completes within the charter review period. That is why, although the noble Lord, Lord Stevenson, made a very interesting point about the Deregulation Bill and I am sure that he will pull my leg about it, the Government believe that this clause should stand part of the Bill. As I have said, strong views were expressed in the other place that we think are important. This provides some backstop to the work of the review. That is why I very much hope that Clause 59 will stand part of the Bill.
Lord Stevenson of Balmacara
My Lords, this has been a very good debate about a very important topic. It is important to pick up that this amendment, signed by all sections of your Lordships’ House, was also spoken to by every side of the Committee, and is therefore reflective of the difficulty that the Government might have if they were to take this matter much further. There would be considerable opposition to the overall concept implied by the two clauses here and strong agreement about the need to ensure that the arrangements that may come out of Mr Perry’s report should not be implemented until at least after 1 April 2017.
We have heard from those who work with and have worked with the BBC, and from those who just watch and absorb its activities. All the contributions were redolent of a feeling that we have created a national institution that is admired and loved widely, not just in this country, and one that, as has been pointed out, needs safeguarding. The words of the noble Lords, Lord Grade and Lord Stoneham, and my noble friend Lord Rooker, about the question of whether or not this is a stalking horse for a much bigger prize, the destruction of the financing arrangements under which the BBC is currently safeguarded—the use by the enemies of the BBC of a Trojan horse—rang true. We must be very careful as we go forward on this matter.
There is of course no objection to the review of the enforcement regime; it is a good thing. It may well be a solution in search of a problem and, as the noble Lord, Lord Grade, said, much is said here that is not accurate in practice. What exactly the offence is that has been committed, and how it is dealt with through the courts at present compared to how it might be dealt with in future, is a very technical issue. It will have wide implications but it is still at heart an issue that needs to be narrowed right down to the precise issue that is being questioned. It would not be wise or sensible to see the review as being something more widely about the BBC; it must be about the question of the collection of a fee for the receipt of broadcasting communications, not the funding of the BBC.
However, the implications of any recommendations, and whether they would generate more income or less as a result of the processes that would follow the review, have to be considered. Of course, it would be completely wrong for the Government to introduce a significant change before the start of the next licence fee period on 1 April 2017—whichever Government were in power.
Lord Gardiner of Kimble
My Lords, this has been a fascinating debate. On occasions it may have strayed to the merits of the BBC rather than the precise clause and amendment in question. But there is no harm in that because, as we all acknowledge, the BBC does extraordinarily good work across a range of issues of which our country can be extremely proud.
The amendment seeks to apply timing constraints to the implementation of any potential—I emphasise that they are potential—changes to the enforcement regime that underpins TV licensing offences. The Government have been very clear on the importance of these issues and of considering the efficacy, proportionality and fairness of the current regime. The amendments concerning TV licensing enforcement, as noble Lords will recall, received significant support, across all parties, in the other place.
As has been mentioned, the Secretary of State announced in September that the review of the regime would be commencing this autumn, and the terms of reference for the review were published and laid in the Libraries of both Houses on 21 October. The terms of reference clearly define the scope of this work. A review will be conducted into the enforcement regime for failure to have a TV licence, examining whether the sanctions are appropriate, fair and represent value for money, and identifying and assessing options for amending the current enforcement regime. It will not consider or assess the licence fee itself or broader issues or options for the future funding of the BBC.
As has been referred to by noble Lords, the review of TV licence enforcement will be led by an independent lead reviewer, David Perry QC. It will begin taking evidence this autumn, and Mr Perry will submit a report making recommendations to the Government by the end of June next year. The enforcement review will start gathering views and data this autumn and, as noble Lords would rightly expect, any findings and recommendations will be based on the best possible evidence.
These findings will then be presented to the Government. The Government have been clear that the findings of the review should be considered in the context of the charter review process, which will not begin until the next Parliament. The BBC charter review is the point at which the Government can consider all aspects of the BBC. As has been mentioned, the current charter runs out on 31 December 2016.
I emphasise that if the existing regime needs to be improved—we should make no presumptions about this until Mr Perry’s review has been able to complete its work and to report findings to the Government of the time—surely it does not make sense to apply any constraints that could hinder moving to a new enforcement regime; nor would any such constraint represent the best approach for licence fee payers, or the courts system. Having said that, and in light of the enforcement review now being in its preliminary stages, I must stress again that the Government are keeping an entirely open mind and look forward to the findings of the review, without any preconceptions about whether or when changes need to be made. It is right that the Government of the day must be free to consider the report when it completes in June 2015 and be able to act without unnecessary limitations at that point.
The noble Baroness, Lady Howe, mentioned Henry VIII clauses. If there were any changes to an enforcement regime under this clause, it would be afforded proper scrutiny in this House, as regulations would be subject to the affirmative resolution procedure. The noble Baroness and, I think, the noble Lord, Lord Watson of Invergowrie, referred to the impact on the revenue of the BBC should decriminalisation go ahead and result in reductions in BBC income. Any impact on BBC services will be examined in the review. I can of course make no assumptions as to the outcome of the review. We obviously want an open process which considers all options available to us and delivers for the licence fee payer. All those points clearly will need to be borne in mind.
Lord Stevenson of Balmacara
On the record, will the Minister be clear about my final question? I thought I heard him say that he felt that the outcome of the report should feed into the charter and licence review. In his current speech, he has clearly said that he does not wish to see the Government constrained in any way as to the timing of any changes, if there are any changes. Does that not fly directly against the commitment given when the 2010 licence fee settlement was signed?
Lord Gardiner of Kimble
I do not believe that it does. The Government obviously want to be in a position after the report to consider those matters. I have already said that those matters will play a part in the considerations of the charter review but we need to consider what the QC brings forward in his report. I do not think that it conflicts.
We believe that it would be inappropriate to apply a constraint to the timing of implementation of any potential changes to the existing regime and that it would be unnecessarily restrictive to inhibit any potential future changes to the enforcement regime, should the findings of the review lead the Government of the time to be minded to make them through specifying a date before which any change could be implemented. I emphasise that this is about a review of the enforcement. We make no presumptions about the possible outcome or findings of the review. As I have said, the Government have stated that the review findings will be considered in the broader context of the charter review. After June 2015, these matters will take some time but we do not think that there should be an artificial limitation on timing. On that basis, and with the reassurance that they are to be considered in the broader context of the review charter, I ask the noble Baroness to withdraw her amendment.
Lord Dubs (Lab)
My Lords, I have enjoyed listening to the speeches on the amendment moved by the noble Lord, Lord Grade, who gave a very powerful indictment of the present situation. I do not know what the Front Benches will say to this.
When I was first in the Commons in 1979, a small Bill or measure was working its way through—I cannot remember what it was—and both the Front Benches were passionately in favour of it. I ended up in the Lobby, voting against it with friends, who said, “When both the Front Benches agree, we’d better all be careful”. I do not know about that. However, when Governments are in difficulty, our brilliant officials put forward a number of ideas or thoughts. One is to say, “Accept the principle, but not now”. That is pretty much what Governments do in order not to have to do anything. The other thing they could say to get out of it is, “Well, we’re going to have a review”, because that puts it all into the long grass. Or they can say, “This measure has other implications, and we’ve got to think about those”. Those are all stock excuses that the civil servants, in their brilliant and imaginative ingenuity, pull off the shelf and say, “Here, Minister; these will get you out of the mess you’re in”.
The Minister is in a bit of a mess, because people with far more experience in the industry than me have all united to condemn this anomaly, which, frankly, in logical terms, cannot be defended. I bow to the experience of many Members of this Committee who have far more media experience than I have. I served for a brief time on the ITC and for a slightly longer time on the Broadcasting Standards Commission, but we on the commission certainly did not deal with matters of this sort, so I accept that noble Lords here have far more experience in this than I have.
I suspect that the Minister will say that he accepts the principle, and then there will be a big “But”; I look forward to hearing that. However, we are in a ridiculous position if he does not accept it anyway. We have a brilliant creative industry in Britain; our television creativity is second to none. We are allowing it to be weakened by this anomaly, which dates back many years as a way of protecting a small and up-and-coming cable industry. The time has come to say, “No, there’s no point in this”.
We have to support our creative industries and, in terms of competition, have at least a semblance of a level playing field, which we simply do not have at the moment. We are allowing the public service broadcasters to subsidise the pay TV platforms, and surely that is not right in any approach to competition policy. In a normal situation, one would say that these things have to be negotiated freely between the parties and, where they cannot be negotiated freely because of anomalies, we should get rid of the anomalies. Good heavens, I am in the Labour Party and I am arguing for competition—what is going on here? What we do not want is this partly hidden subsidy.
Of course, as has been said, Virgin Media and Sky are willing to enter into such a process for the channels not covered by Section 73—in other words, ITV2, ITV3 and ITV4. It does not make sense even in those terms, any more than it makes sense in terms of what News Corporation is doing in the United States. There are many ridiculous defences of the present position and they just do not stand up at all. I would argue that Section 73 has outlived its useful life. It defies logic, it defies fairness, it defies competition policy and it might defy even the ingenuity of the Government to defend it.
Lord Stevenson of Balmacara
My Lords, this has been a very interesting and useful debate, again, on this topic. I say “again” because although when the noble Lord, Lord Grade, introduced the topic he said that he could not think of a more perfect vehicle for this amendment, he might like to reflect on the fact that we have had this argument before on four other occasions—this is the fifth time this issue has come up—and every other vehicle has also been seen as a perfect vehicle for this amendment. I rather suspect, although I would not wish to impugn any of his motives, that there are people on a mission to do a particular thing who are looking for any vehicle that comes along to hook their amendment to. That is not necessarily wrong, though; this is a complicated topic.
Section 73 is part of a very complex web of regulations that provides equilibrium in the UK broadcast market—at least it has done for some 28 years, as we have heard. Its focus is on consumers, who have of course already paid for public service broadcasting content through the licence fee or through indirect taxation, paying for advertising costs on the goods that they purchase. It is a question of whether or not the arrangements that were set up in 1988, not on a temporary basis, are still relevant today. It is important that among all the various vested interests that we have heard about today, the consumer interest is kept at the forefront of our thinking.
Obviously, Section 73 is an old clause. It was created when the cable industry was in its infancy. It is also true, as everyone has said, that the industry has changed a lot since then. It is interesting, though, that the reason why this suddenly became prominent in people’s thinking, and why it has been raised in three successive Bills that I have been involved in, is because of a case involving catch-up television that is still going through the courts and therefore perhaps should not be excessively commented on. The point is that the judgment in the first instance will have raised legitimate concerns about the use of Section 73 as a defence for retransmission of free-to-air channels online. That, of course, is radically different from any cable commitments or any negotiations that may take place between Sky, Virgin and others that are involved in this. It is right to have in mind that the reason why this has become so topical starts with that case, which is ongoing.
Of course we would say—wouldn’t we?—that the age of things does not necessarily determine whether or not they still have value, and attempts to delete old things just because they are old cannot give much comfort to Members of this House. Is this not perhaps another candidate for the Law Commission, about which we have heard? There is an issue of whether or not this measure is still relevant and perhaps needs to be reregulated. The right thing to do is to accept that there is a big issue here and to carry out the due process to get it to a point where it is considered by a review to ensure that it still delivers good public policy objectives and is good for consumers. I think that the findings will be very useful in understanding that better.
My understanding is that the Government have announced that they will carry out a review of how Section 73 might be amended. I hope that the Minister will let us know what progress has been made—
Lord Deben
Does the noble Lord notice that he is almost exactly paralleling the suggested answer that was given to him by his noble friend Lord Dubs? I respectfully say that it is supposed to be Ministers who listen to the civil servants giving them those ideas; I thought it was the Opposition who were supposed to get out of that and be free to be able to say, “Well, we may have got it wrong in the past but perhaps we are now on the side of the progressives who have been so far putting forward this case”.
Lord Stevenson of Balmacara
I am always grateful for comments made by the noble Lord, Lord Deben, whose expertise and knowledge are legendary in this House, but, of course, prospective Ministers might also be wise to think about what civil servants are advising.
Lord Macdonald of Tradeston
On the question of our perhaps not discussing this matter because it has been in the courts for some four years already, is my noble friend aware of the Interpretation Act 1978, which speaks of this very issue? It provides that,
“where an Act repeals an enactment, the repeal does not … affect any investigation, legal proceeding or remedy”.
Just to rub in the irony, when the copyright Act came in, in 1988, it was despite related ongoing legislation at that time.
Lord Stevenson of Balmacara
I am not as well briefed as my noble friend Lord Macdonald, but it is also true that the Digital Economy Act suffered from similar problems, which have not allowed it to emerge from the purdah in which it has been placed.
As I was trying to explain before I was accused of being too craven towards the Minister, which is a very unlikely position for me to be in, if a review is already ongoing then we should at least do the decent thing and wait for that. I think that the review will be forthcoming and give us the results.
I still worry about whether we are being told the whole story about this. The noble Lord, Lord Grade, the noble Viscount, Lord Colville, and other noble Lords have suggested that we could expect savings from this area; figures of about £100 million have been mentioned. If that were reinvested in British original content, that must be a good thing—there is no question about that—but what exactly would we see for it? Where has anybody specified in detail what that would be? It would be helpful to have some knowledge of that. Would it be more children’s programming or regional programming, better local news or better investigative work? We do not see quite so much of that as we used to on the commercial channels, and they have PSB ratings and should therefore perhaps be expected to move up to the mark. They need to be a bit more forward about that. I say this because, in September, media analysts at the Bank of America said on this issue that an extra £100 million of revenue for ITV could add about 15% to profits and could be worth 40p a share. I am not saying that that is what is driving this issue, but we might wish to bear it in mind.
I am sure that this issue needs to be resolved. We need a review, which I think has started. It is not right simply to put down an amendment at this stage. We should do this in a proper process, and I hope that the Government will push ahead with their review.
Lord Gardiner of Kimble
My Lords, I thank my noble friend for his amendment, because it has enabled a fascinating debate, the basis of which, I think, is that we all care very much about the creative industries and the public service broadcasting channels. They are of enormous importance to our national life, and there is so much to be done in terms of the economic benefit that they bring to our nation. So the Government come to this with that very much in mind.
Section 73 permits the retransmission on cable of the main public service broadcast channels—it is important to say to my noble friend Lord Holmes of Richmond that Section 73 applies only to cable and not to satellite platforms. The effect of it is that public service broadcasters are not able to charge cable operators for retransmission of their services.
Section 73 is part of a much wider framework that supports the availability of TV and investment in television programming in our country. A variety of rules and regulations affect the production, availability and the ease of discovery of PSB programming and its relationship with the different platforms—cable, satellite and digital terrestrial television—that carry it. These include the obligations on PSBs to offer their content to all relevant platforms, the rules governing payments by broadcasters for “technical platform services” and the powers for regulators to compel these services to carry PSB content, as well as Section 73. This is an area where many competing interests are at large and must be balanced; namely, those of broadcasters, platforms and, of course, viewers. The Government believe therefore that we should not abolish Section 73 without exploring these interactions within the wider framework of regulation that impacts the balance of payments between platforms and PSBs. That is precisely the approach the Government propose to take.
The noble Baroness, Lady Ford, referred to the Culture Secretary, who has already announced that the Government are going to look at whether the time is right to remove Section 73 of the Copyright, Design and Patents Act, which could allow PSBs to invest more in high-quality content. We believe that, rather than doing so in isolation, we will look at this in the wider context. I am very conscious that now when I think of the noble Lord, Lord Dubs, I must think of “But”. I know that noble Lords would like the Government to accept this amendment, but we think that it is not sensible to do so in isolation. More work needs to be done and we will examine the framework of regulation that governs the balance of payments between broadcasters and platforms. The Government will examine whether the amount of regulation around these transactions is really necessary.
I should perhaps say to my noble friend Lord Grade that my understanding is that the Government are wholly satisfied that this section is consistent with EU law, but I do not think that I can say much more than that at this moment. A number of noble Lords, including the noble Lord, Lord Stevenson, my noble friend Lord Deben and, in particular, my noble friend Lord Stoneham mentioned the Government’s intentions. They intend to consult by early next year on a proposed approach to Section 73 within the broader framework of the balance of payments debate. We think that that is the right way, given the fact that this matter has complexity. It is not as straightforward as just saying, “Away with this section”. There are intricacies and we need to look carefully at the impact on regulation relating to the must-offer obligations of the PSBs and the must-carry requirements on pay-TV platforms. That is the position and we want to get it right.
I understand that the noble Lord, Lord Dubs, will add another category to his “But” point, but it is for those reasons that I hope that noble Lords will feel that work is about to be put in hand on this area. The Culture Secretary and the Government are serious about ensuring that the work is thoroughly and properly done. For those reasons, I would ask my noble friend if he is prepared to withdraw his amendment.
Lord Grade of Yarmouth
I am grateful to my noble friend for that response. As a long-term Charlton Athletic supporter, I have sympathy for the underdog on any occasion. Given the score here today—an unexpected own goal from the Opposition Benches, but there you go—there seems to be a widespread body of strong opinion in terms of the list of obfuscations and get-out-of-jail-free cards alluded to by my noble friend Lord Deben and as regards trying to complicate the issue in order to avoid it. It is not a complicated issue.
The noble Lord, Lord Stevenson, alluded to public interest and talked about the shareholders of ITV, Channel 5 and so on. I do not know about the figures but if £100 million is sitting somewhere, would he rather that money went to News Corp and Liberty Media than to the shareholders of British companies who control the purse strings of what gets invested under the obligations of their licences to broadcast? I was really shocked by that comment.
Lord Stevenson of Balmacara
If the noble Lord is going to play that game, he must add another one to his list: make an outrageous suggestion which he could not possibly say no to and then ask him to respond.
Lord Grade of Yarmouth
I think that we need to move on. This is a very simple matter which does not need to be complicated in reviews. I am very disappointed that the Government seem determined to let this legislative bus pass by without getting on it and correcting what is clearly an anomaly, an action for which there is widespread support across the House.
In the end, it is a simple matter. If you believe in a free market, in investment in the UK creative industries, in support and competition in regional and national news, and in stimulating employment in areas of the United Kingdom other than London, then the commercial free-to-air broadcasters need to get a fair return, not an unfair return, on the investment and the risk that they take on investment in British production. This section alone prohibits them by law from getting a fair return on their investment. It seems a great shame that a Government who I support and who believe in a properly regulated free market do not seem able to accept the arguments that have been put today from all sides of the Committee. I am sure we shall return to this matter—I look forward to returning to it—and I beg leave to withdraw the amendment.
Scotland: Independence
Lord Stevenson of Balmacara Excerpts(10 years, 5 months ago)
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Lord Stevenson of Balmacara (Lab)
My Lords, as the noble Lord, Lord Steel, said, in his recent book My Scotland, Our Britain Gordon Brown draws attention to,
“what is unique about the modern United Kingdom—and distinguishes it not only from the US and other federal countries but from the European Union—is the extent to which UK citizenship guarantees fundamental social and economic, not just civil and political rights. It means that regardless of whether you are Scottish, English, Welsh or Northern Irish, you have a right to a UK-guaranteed pension; a right to UK-guaranteed assistance when unemployed; a right to fully funded health care free at the point of need; and a right to minimum standards of protection at work, including a UK-wide minimum wage and tax credits, no matter who you are and where you reside. The system of sharing across the UK creates a form of equality between the citizens of the four nations that no other group of countries can match for its depth and sophistication and this is arguably the defining characteristic of the Union today”.
We are surely right to care deeply about this and to campaign as hard as we can for its retention.
I want to deal with wider questions on the basis that the SNP’s independence referendum is defeated on 18 September, because the problem will not go away. The SNP is clearly peddling a lie when it asserts that Scotland can be a nation again only if it becomes a separate state. We are a nation. We have always been a nation, and what is more we have been successfully part of a world-class state for more than 300 years. Other speakers have explained what this has meant in practice and celebrated the contributions that Scots have been able to make on a world stage as part of the United Kingdom.
In Scotland, we control our institutions. We have a separate legal system, we are free to practise different religious practices and we have a distinctive culture. It is the best of both worlds, so what is the problem? It does not seem to be Scotland. My reading of the situation is that the people of Scotland would like to remain within the United Kingdom in the union that has lasted for more than 300 years, but that the conditions under which they are prepared to do so have changed and they need to be reflected in a new constitutional settlement. Like my noble friend Lord Richard, I believe that our present constitutional arrangements are a complete mess. The changes that need to be made are significant but not impossible to deliver, although there are consequences that may take time to be worked through.
This is a constitutional moment, an opportunity to sort out issues, that we must seize. The problem that we have to solve after 18 September is with the UK, not Scotland. There are three dimensions to it. The first is the sovereignty of the UK Parliament. Noble Lords will recall that in the run-up to the referendum on devolution, the sovereignty of the UK Parliament was reaffirmed and in the 1997 White Paper Scotland’s Parliament the Government said:
“The United Kingdom Parliament is and will remain sovereign in all matters”.
This claim was repeated in the assertion in the Scotland Act 1998 that the Scottish Parliament,
“does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”.
With the benefit of hindsight, this now seems the wrong way round. Not only have we transferred significant powers to Brussels, for good reason, but one Parliament, two legislative Assemblies and a high-powered London authority are taking powers from the centre. Referendums, reflecting our new notion of popular sovereignty, are in effect required when important constitutional decisions are made.
Then there is local government. I think noble Lords enjoyed the rather delicious, bilious attack on the present arrangements by the noble Lord, Lord Haskins, and would wish for them to be changed. I also thought that the noble Lord, Lord Purvis of Tweed, was right to bring up the quotation from Jo Grimond, which correctly analyses where power resides.
It is a mistake to believe that Britain is in any meaningful way a unitary state today. In any case, in my view what Scotland wants is the certainty that in its own sphere the Scottish Parliament holds undisputed power and its decisions will not and cannot be overruled by Westminster. This should apply to all devolved Administrations. So the second problem that needs solving is the need to decentralise decision-making in Britain, which is not devolution, as has rightly been said, and should not be confused with it. Decentralisation is different.
What we now need is more than the simple devolution to Scotland, Wales and Northern Ireland, which should happen; we need double devolution, which means that power will also go to the UK city regions and other areas so that London powers, at least, are operating in Glasgow, Edinburgh, Belfast, Cardiff, Birmingham, Manchester, Liverpool, Newcastle and Teesside. We could add to that the Midlands and the south-west. In practice, Parliament does not legislate on matters directly affecting Scotland, Wales, Northern Ireland or London, so would it be so different if devolved matters in England were left to city regions or an equivalent wording?
Thirdly, with regard to our own House, one further set of reforms might help to cement the new arrangements. The House of Lords could perhaps be replaced with an elected senate-like forum that represented the nations and regions, was sensitive to their needs and recognised that there are areas so controversial that they may cause polarisation, sufficiently strong to jeopardise the union, and therefore provided a forum where these issues could be resolved.
If we manage to seize the legislative moment—a constitutional moment that comes up only very rarely—and move to a more federal system, we will need a properly codified constitution. Federal systems all around the world are typically characterised by clear divisions of powers between different tiers of government, a set of autonomous institutions, a formal division of competences and rules for the resolution of conflict. As the noble Lord, Lord Tyler, said, the Commons Political and Constitutional Reform Committee and its advisers are doing a great job on this, and surely its time has come. It might be good if, as part of its programme, it could look at how responsibility for defence and security issues, the maintenance of our single economic market, welfare and guarantees for the funding of key services such as healthcare and pensions could be organised within the new federal system, while at the same time allowing for the proper and unfettered devolution of other powers without reservation.
Whatever the post-Scottish referendum arrangements are, the UK already looks more like a constitutional partnership of equals in what is in essence a voluntary multinational association. In some way it must make sense to codify the new division of powers and the new power-sharing, tax-sharing, risk-sharing and resource-sharing rules in a beautifully crafted and written codified constitution. As others have said, we should start working on that now.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
Lord Stevenson of Balmacara Excerpts(10 years, 10 months ago)
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“( ) No union shall have to submit a membership audit certificate to the Certification Officer before August 2016.”
Lord Stevenson of Balmacara (Lab)
My Lords, at Report the Minister said that he was happy to offer reassurance that unions will have the time that they need to comply with this new legislation. He said that unions would,
“have at least 17 months to comply from the point at which the legislation takes effect, because the provisions will not apply retrospectively”,
and because,
“17 months is the combination of the 12-month reporting period plus the five months that is allowed after that period to submit the annual return”.—[Official Report 13/1/14; c. 92.]
So if Parliament granted Royal Assent next month, the earliest that the provisions could take effect is May 2016. However, this timetable is complicated by the fact that the Minister for Employment and Consumer Affairs gave an assurance in the other place that the Government will undertake a public consultation prior to commencement on the order that will set out who is eligible to be an assurer. In a recent letter, the noble Viscount also announced that the Government will use this consultation to inform the development of guidance for employers and employees, to support implementation, and he will be seeking further evidence to revise and republish the impact assessment before commencement. That was agreed when we were discussing the Bill earlier.
Our point at Report was that this section of the Bill will operate successfully only if the legislation gives the unions, and particularly the larger unions, adequate time to comply with the requirements in a way that is cost-effective, economical and practical from their point of view. Under questioning from my noble friend Lord Monks, the noble Viscount conceded that,
“this is not the most straightforward of timetables to set out and I would be very happy to meet the noble Lords, Lord Stevenson and Lord Monks, and any other noble Lords to clarify the timings”.—[Official Report 13/1/14; c.92.]
He also mentioned that there were ongoing discussions with the TUC and others.
That is the background to this amendment. My noble friend Lord Monks and I had a further meeting with the Minister when he confirmed that the department did want to adjust the timetable for the unions to comply. In a letter following the meeting, the noble Viscount wrote:
“Further to concerns raised about the time unions will require to prepare for the new requirements, and discussion both at Lords Report and separately between BIS and the TUC, I can also now confirm that the Government intends to work towards commencement in April 2015”.
It is indeed a complex picture of calendars. Our understanding is that this will mean that no union will have to submit a membership audit certificate to the certification officer before August 2016.
I hope the Minister will accept this simple amendment, which does, I think, reflect the Government’s intention. If not, I hope he will use the opportunity to spell out precisely the timetable for the unions so that we are all clear about what is required.
In closing, while we on this side of the House deplore this part of the Bill, which places costly and unnecessary burdens on the larger unions and poses a threat to the security of their data, the noble Viscount has, as usual, been unfailingly courteous to all of us who spoke in this debate, and he and the Bill team have been able to assist us on all our queries over these last few months. We thank him for that.
Lord Monks (Lab)
My Lords, I support the remarks of my noble friend Lord Stevenson. I hope the Minister will be able to confirm the points that are being raised and in particular the points that have already been covered to a high degree in a letter to my noble friend Lord Stevenson.
We still do not know why we have Part 3. It is onerous, it is expensive and it is uncalled for. There is no evidence of any problem that it addresses. There is no evidence that any questions of public interest about union membership cannot be addressed by perfectly adequate existing remedies, particularly the existence of independent scrutineers in ballots. There is no information about who wants this Bill, who has been pressing for it or what lobby is behind it. Transparency, which is in the title, certainly does not extend to the reasons why this part of the Bill exists. We simply do not know. We do not know who thinks this is deserving of public interest. The Government have still to explain that. I hope that one day—perhaps not today—we shall get an explanation of what this was really for and what it was all about.
This morning I received a petition organised by the TUC and others. It is signed anonymously by nearly 12,000 people. They do not give their names, they give their occupation and location details. The trade unions have got the information about their names. The individuals trusted the unions with this information. They do not trust these public officials who the Bill proposes to turn loose on union membership records. This is not an academic issue. We currently have over 2,000 cases in the construction industry of allegations of blacklisting—of people who have been out of work, in some cases for years, because of misuse of confidential information, allegedly by some of the most prestigious names in the construction industry.
This part of the Bill has no practical value. I regret it. I hope the Minister can confirm now that the problems, at least in terms of its introduction, will be eased. We do not respect Part 3 because we do not know why we have got it. We do respect the Minister and the courteous way in which he has dealt with us. I hope that next time he comes to the House with something about trade unions and employment, he has a real issue to address rather than the fiction which is in this part of the Bill.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con)
My Lords, first, I take this opportunity to thank all noble Lords who have provided thoughtful and constructive contributions to debate throughout the passage of Part 3 of the Bill. I personally understand how sensitive many of these issues—some of which the noble Lord, Lord Monks, has iterated just now—are to some noble Lords. In particular, but by no means exclusively, I thank the noble Lord, Lord Stevenson of Balmacara, for his kind words earlier; the noble Lords, Lord Monks, Lord Whitty, Lord Beecham and Lord Lea of Crondall; and the noble Baronesses, Lady Donaghy, Lady Turner and Lady Drake. I also thank my noble friends Lord Tyler and Lord Balfe and, in particular, my noble friend Lord Cormack, whose brief contribution I failed to acknowledge on Report. Finally, I give my sincere thanks to the Bill team for all their hard work.
I know that the intention behind the amendment of the noble Lord, Lord Stevenson, is to probe the Government’s plans for commencement of Part 3 and to ensure that trade unions are given sufficient time to be able to comply with changes requiring them to report annually on their membership registers. On Report, I offered to meet the noble Lords, Lord Stevenson and Lord Monks, to discuss this matter in more detail. Indeed, as they alluded to, that meeting took place two days following Report, on 15 January. Noble Lords may like to be reminded that, on Report, I suggested that the earliest the provisions would be commenced was October 2014. I am pleased that I was able to say at the meeting last week, and can confirm to the House today, that commencement will not occur before April 2015. This follows careful consideration of what has been said during the parliamentary stages and concerns raised during the BIS consultation, as well as discussions between the Secretary of State for Business, Innovation and Skills and Frances O’Grady, the general secretary of the TUC.
Commencement in April 2015 would mean that the very earliest any trade union would be required to submit a membership audit certificate to the certification officer would be August 2016. In practice, it is likely to be later than that for many unions, as many have a calendar reporting year and would not be required to submit their first certificate until June 2017. Noble Lords will recall that this is because unions will submit a membership audit certificate for the first full reporting year after the changes become law. The 17-month period that I referred to on Report is a combination of the union’s 12-month reporting period and the five months that is allowed after that period to submit the annual return.
I hope that this thoroughly reassures noble Lords as, in the meeting that I had with the noble Lords, Lord Stevenson and Lord Monks, I was led to believe that the reassurances that I personally gave were accepted. However, we will continue to work closely with trade unions as we head towards commencement, in particular by discussing with them the guidance that will be needed as well as consulting on the draft order that identifies eligibility to be an assurer. I believe that an April 2015 commencement date will give trade unions the time that they need to prepare and to amend their rules, and understand that the general secretary of the TUC agreed that this was achievable. I have written to the noble Lords, Lord Stevenson and Lord Monks, and placed copies in the Libraries of both Houses confirming this. The Secretary of State has written in similar terms to Frances O’Grady. I hope therefore that the noble Lord is reassured and that he will withdraw his amendment.
Lord Stevenson of Balmacara
My Lords, I thank the Minister for his very full response to our amendment. I am obviously sad that he will not accept the amendment as laid, as it seems to exactly mirror what he has announced, but maybe these are days when the Government do not want to see too many concessions being scored, so I understand the problems. Assuming that what he has said is exactly what we think it is, and given that we have letters and documentation to support that and that letters are also being written separately to the TUC confirming it, I beg leave to withdraw the amendment.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
Lord Stevenson of Balmacara Excerpts(10 years, 10 months ago)
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Baroness Williams of Crosby
I very strongly support the amendments tabled by the noble Lords, Lord Monks and Lord Stevenson of Balmacara. Since we have seen some of the troubling issues—for example, the keeping of a blacklist in the construction industry—it is clear that somebody whose personal details have been revealed can be at risk in a way that should not be acceptable. It is very sound and sensible to propose that there should be very stringent sanctions against any inspector who fails to recognise that confidentiality of individuals. It is accepted in this country that very strong and good relations should exist between responsible employers and responsible trade unionists. An amendment like this should be supported by the House.
Lord Stevenson of Balmacara (Lab)
I declare an interest as a retired member of a large union. As the noble Baroness has just said, it is common ground that the unions in Britain play a significant part in the modern economy. They should be cherished, not castigated. As has been mentioned, if the Government had brought forward such a burdensome set of duties on any other section of civil society, there would have been an outcry. Well, there is an outcry and the Government should listen.
For many employees, their membership or lack of membership of a trade union is a private choice, and one which they desire to keep confidential for what may be very legitimate reasons. The knowledge that under these new powers, trade unions could be required to provide their membership register to a government-approved official for “good reason” may act as a disincentive for workers to join unions, particularly in light of the current concern over union blacklisting. As my noble friend Lord Monks said, the Government are introducing this series of measures at the same time as the full extent of the scandal of blacklisting in the construction industry is gradually coming to light. This is by no means the only industry in which members of a union may wish to keep their membership confidential for fear of being subject to discrimination.
These measures clearly go beyond what is necessary and they are certainly not proportionate if they are to achieve any legitimate aim behind the proposals, if indeed there is one.
Viscount Younger of Leckie (Con)
Before I address the amendments I would like to say a few words about blacklisting, which was raised by the noble Lords, Lord Monks and Lord Morris, and my noble friend Lady Williams, because at each stage of this Bill we have sought to emphasise how seriously this Government take any allegations of blacklisting. The Trade Union and Labour Relations (Consolidation) Act 1992 makes it unlawful to refuse to employ a person because they are a member or not a member of a trade union or because they refuse to join or leave a trade union. This position was strengthened in 2010, when in response to the Consulting Association blacklist uncovered in 2009, the Government introduced anti-blacklisting regulations and increased the penalties for unlawful processing of data. Data controllers can now be fined up to £500,000 for serious offences. There have been several allegations of new evidence of blacklisting to date, but no evidence of this practice recurring. The Scottish Affairs Select Committee and Information Commissioner are both currently investigating the potential for ongoing offences, and the Government continue to take a close interest in this issue. Therefore, the provisions that we are considering today do not increase the risk of blacklisting, because of the protections in place around the treatment of membership data.
Lord Lea of Crondall
My Lords, I think the word that my noble friend Lord Whitty could not quite conjure up, because it is not often used in this House, is hypocrisy, and it has to do with red tape. My noble friend Lord Monks reminded us that, not only because of Christmas and the new year but also because of the pause, we are between Parts 1 and 2 of the Bill, and now are dealing with Part 3. It is all rather confusing. There is overkill of all these lists of people who have some sort of role. We mentioned the electoral roll and how 80% might be up to date. I think that 50% would be a very good score for a candidate examined on this set-up even when it has been a year in use. It is quite remarkable. I will not go through the whole list.
It reminds us of the point made by a number of colleagues at Second Reading to do with the famous impact assessment and the enormous costs falling on the trade unions and many other people as well, which requires some justification. In particular, some justification is required of a Government whose raison d’être seems at some times to be to cut out red tape. If this is not red tape, what is it? The Government are clearly are going to be obstinate and will stick to their guns, whether the bowling is fast bowling, a googly or whatever else. We know that they have been taken over by dogma on everything to do with industrial relations.
Finally, I have here the report about which my noble friend Lord Monks and I have had a conversation. We asked people in the international departments of European countries to tell us, in answer to a questionnaire, what goes on in these successful democratic countries on these sorts of questions. No one remotely has a top-heavy superstructure such as this. I have little doubt that the only reason why a Labour Government might not repeal this on day one is that they would have very much bigger fish to fry, no doubt, in some respects.
I have little doubt that the life of this legislation will be very short, which is the only saving grace I can think of to mention in support of my noble friend Lord Whitty on this amendment.
Lord Stevenson of Balmacara
My Lords, it is interesting that the questions we are left with keep coming back and keep being unanswered. What is the serious public policy issue behind this proposal? What exactly is the problem? What will this Bill achieve that current legislation does not achieve? Will the measures being proposed do more than simply increase the regulatory burdens on trade unions? We have all those questions and very few answers.
We know that union membership is already regulated by the Trade Union and Labour Relations (Consolidation) Act. Section 24(1) puts a duty on unions to maintain an up-to-date register of members’ names and addresses so far as reasonably practicable. This legislation has stood the test of time since the days of Mrs Thatcher. As has been said already, we are not aware of any calls having been made to the Government to extend this provision. BIS, the certification officer and ACAS have confirmed under freedom of information requests that they have received no representations for such a measure.
As my noble friend Lord Whitty said, it may be that a better self-certification system could be an advantage. I say “it may be” because we do not know what the problem is but cloaking the issue in some spurious idea that there is some public concern out there that would be remedied by having an additional checking arrangement is simply not sufficient.
Viscount Younger of Leckie
My Lords, I turn to two amendments which seek to drastically reduce the effect and extent of the provisions as drafted. This would in practice undermine the Government’s key policy objective, which is to introduce a proportionate and effective reporting and enforcement mechanism alongside the existing duty of unions to maintain an up-to-date membership register so far as is reasonably practicable.
Amendment 29 would remove Clause 37 and the role of the independent assurer from the Bill altogether. Clause 37 gives credibility to the assurance process by requiring independent scrutiny, which is in line with the Government’s overarching aim to provide greater assurance of the maintenance of trade union membership registers for the benefit of members, employers and, importantly, the wider public. As some unions become large organisations representing members across a variety of employers and workplaces, their administrative requirements become more complex. As a consequence of the prevalence of very large unions in recent years, there is also now an increased public perception of a union’s scope of influence.
This may be an appropriate moment for me to restate what I said in Committee: I am not minded to comment on the media coverage of particular industrial disputes, such as the Grangemouth refinery or, more recently, the issue affecting Howdens. Instead, as I should, I will focus on the separate issue at hand relating to the obligation of unions to maintain up-to-date membership registers. Perhaps this can also be described as playing a straight bat. I hope so.
The nature of union membership data means that they decay easily—for example, addresses can quickly become out of date. About 2 million people move in and out of union membership every year, which equates to around one in four union members. The register for a union which has a 25% turnover in membership could theoretically be entirely out of date in four years. Unions are already required by statute to maintain a register of the names and addresses of their members. What we are introducing is annual reporting on the compliance of unions with this duty where currently there is none. I believe—
Lord Balfe (Con)
My Lords, let me first apologise for not taking part in the earlier stages of the Bill. As a new Peer I had not made my maiden speech and therefore under the conventions of the House could not intervene.
There is a common misconception in many parts of the United Kingdom that trade union membership equals Labour Party support. This is not true. Setting aside the fact that voter turnout among trade unionists is not dissimilar to that of the rest of the population, of those who do vote around one third of TU members vote for the Conservative Party—may that grow in the future.
Unions are already firmly regulated in two ways, first by provisions in the Trade Unions and Labour Relations (Consolidation) Act 1992, passed by the last Conservative Government and left on the statute book by the Labour Government. I noticed the noble Lord, Lord Lea, mentioned the life of legislation as being short, but that is not the precedent we have from the party opposite when it was in government—indeed, it left most trade union legislation firmly in place. Secondly, the contractual relationship between unions and their members is set out in each union rule book, which is a legal document that governs how unions operate. In order to change its rules, a union must obtain support from its members. Having received that support, the rule changes can be made only within the context of statutory legislation.
In order to ensure—and I am sure we all support this—that small and unrepresentative groups of members cannot change the rules of unions without fully consulting the members, unions all have democratic procedures in their rule books which must be followed if changes are to be made. In order to give effect to the provisions of the Bill, many unions will have to hold special rules revision conferences where members vote to change their union rule book to comply with the new provisions. This is, of course, especially and usually the case with larger unions.
Tonight I ask the Minister to consider two points: first, to raise the exemption limit in Clause 37 from the present 10,000 members to a figure of around 40,000. Mention has been made of turnover in big unions. Small unions often face a very different situation. Many are professional unions, such as the radiographers or the physiotherapists, who will be caught by this Act, but have a very low turnover indeed, as do many of the others. If we went from 10,000 to 40,000, we would go from 22 to 37 unions but we would exempt all the unions that traditionally have a low turnover and a highly professional membership.
The noble Lord, Lord Martin, who is not presently with us, earlier mentioned small unions. I had the privilege for many years to belong to a very good small union called AUEW-TASS. I must say that since TASS merged, it has got more and more out of touch. Now I am almost ashamed to say I am a member of Unite, as I remain a member of Unite. I still look forward to the day when we might have an engineering section in Unite that could compare with AUEW-TASS. None the less that is a digression. Even if this change were accepted, 90% of union members would remain within the assurer provisions of the Bill.
Secondly and finally, no doubt the Government and the certification officer will want to ensure that unions are able to make these changes following the agreed procedures. This will mean giving notice to members of a special conference. Good administration—which I am sure we all support—would indicate that a transition period of at least 17 months would be helpful. I would welcome an assurance from the Minister that the transition period after commencement will at least accommodate the 17 months, because it is in all our interests that this is done properly and competently.
Lord Stevenson of Balmacara
My Lords, I have never in my long life met a Conservative member of a trade union. It is very nice to be introduced to one and to hear him speak. It has been very evident from the speeches we have heard, both in this small debate and previously, that if the Bill is to progress and be brought into law it must operate with the best chance of success otherwise it will not have been worth a candle doing it. As my noble friend Lord Monks said in an earlier intervention, the right way to do this is to give the unions—particularly the larger unions—adequate time to comply with the Act in a way that is cost effective, economical and practical, but also from their point of view. Unions are, after all, independent self-governing bodies. As the noble Lord, Lord Balfe, said, they rightly have procedures for making complex changes in their constitutions and it will be necessary, as the Bill recognises, that the unions will make some changes through rules conferences and the like. This is not to say in any sense that there is not anything wrong with what is currently in the Bill, but I detect in some of the comments made that we are still not absolutely clear about how the procedures will operate and the timescales that will be on and that will interfere a little bit with transparency.
When he responded to this point in Committee, the Minister said that he shared the sentiment that,
“trade unions should be given sufficient time to prepare”,
and he hoped he could,
“offer a positive and emollient answer”,—[Official Report, 11/11/13; col. 596.]
to allow time for the bedding down of the new legislation. I take it from that that he is still interested in trying to make sure that this works well. Picking up on what has just been said, I get to 17 months from the comments that were made during Committee if I follow two tracks. The first is that a union whose reporting year ends on a fiscal basis—that is, 31 March—would not need to submit a report for the year ending 31 March until the end of August 2015, which I think is 17 months if I do my maths correctly. However, a union that reports on a calendar-year basis would have a little more time. It would not have to submit its report for the year ending 31 December 2015 until the end of May 2016.
That is the sort of level of complexity which we are operating on. If we are going to fit a 17-month period, which I think was mentioned earlier as being appropriate, combining it with a Royal Assent, possibly by March 2014, and a period of consultation on the question of how assurers are going to be both defined and appointed, that suggests that it would be sensible to have one further round of discussions before it is finalised. Will the Minister consider having a short meeting with me and a few colleagues to try to run over this so that we can get some absolute clarity on it? Thereafter, we can all work together, not in any sense to shake the principles which are part of this part of the Bill, but to make sure that they work effectively.
Viscount Younger of Leckie
My Lords, Amendment 33A could delay commencement of the provisions in Part 3, as they would not come into effect until the certification officer knows that all trade unions with more than 10,000 members have changed their rules to provide for the appointment and removal of an assurer. I know that noble Lords have been concerned that unions should have sufficient time to prepare for these new arrangements. In particular, we have been told that many unions do not routinely have an opportunity to make rule changes—I think the noble Lord, Lord Monks, alluded to that earlier. I am happy to offer reassurance to the noble Lord, Lord Stevenson, and other noble Lords that unions will have the time that they need. They will have at least 17 months to comply from the point at which the legislation takes effect, because the provisions will not apply retrospectively.
Unions will be required to submit a membership audit certificate alongside their annual return for the first full reporting year after the changes become law. The 17 months is the combination of the 12-month reporting period plus the five months that is allowed after that period to submit the annual return. The earliest that the provisions will take effect is October this year, which would depend on Parliament granting Royal Assent next month. That being the case, unions would have a minimum of 25 months from Royal Assent. In practice, many unions will have much longer.
Unions have different reporting years: many work on either a calendar or a financial year, which the noble Lord, Lord Stevenson, mentioned. Were the legislation to take effect in October 2014, a union with a calendar reporting year would first provide the membership audit certificate by the end of May 2016; for a union with a financial reporting year, it would be the end of August 2016. The noble Lord, Lord Monks, raised the issue of allowing unions sufficient time to meet the new requirement. I entirely sympathise with that and have said something about it just now. I have to confess that this is not the most straightforward of timetables to set out and I would be very happy to meet the noble Lords, Lord Stevenson and Lord Monks, and any other noble Lords to clarify the timings and state why we think this would be sufficient for trade unions to make the transition. That reflects the discussions that we have had with the TUC and others.
I take this opportunity to warmly welcome the noble Lord, Lord Balfe, and the experience that he brings on union matters, something I mentioned earlier in respect of the noble Lord, Lord Monks; it is only fair to acknowledge the experience that the noble Lord, Lord Balfe, has as well. I have had some discussions with him, at his request, on the question of whether the £10,000 threshold is set at the right level. Our primary objective is to supply assurance to union members, and to the wider public, about the existing statutory requirement to maintain an up-to-date register of members. The requirement to maintain a register applies to all unions, no matter what size. However, at the same time, the Government do not want to unnecessarily prohibit the creation of trade unions or undermine their ability to operate. We believe that it is possible for a union to be confident in the accuracy of all its records where its membership is small. We also believe that the wider public will think it reasonable that special provision is made for the smaller union and accept that where numbers are smaller it is reasonable to rely on the union’s own assessment.
Self-certification means a union officer assuring that every individual record is up to date, so far as is reasonably practicable. We think that this is achievable for unions with 10,000 members or fewer, but it becomes much more challenging where there are more members than that, which was part of the debate that we had earlier. The union official would have to be confident of the position and union members and the wider public would have to have trust that this was reasonable—a point, again, that I made earlier. By contrast, independent assurance focuses on whether the system in place for monitoring records is satisfactory, as opposed to making a statement about the accuracy of individual records. I therefore believe that this amendment is unnecessary and I ask the noble Lord to withdraw it.
Succession to the Crown Bill
Lord Stevenson of Balmacara Excerpts(11 years, 7 months ago)
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Lord Luce
My Lords, I am sure that the Minister will have concluded that raising the legislation with the other realms would create considerable complications. If I understood the noble Lord, Lord Cormack, aright, he was making it plain that the purpose of this amendment was to try to remove any misunderstandings that may still exist about the position of the Roman Catholic Church in connection with the children in line of succession arising from a mixed marriage.
In the debates that we have had over past few weeks, not least on Report, there has been considerable clarification. The Minister has said a lot more since the Second Reading and above all the right reverend Prelate the Bishop of Guildford has set out very clearly what he perceives to be the position of the Roman Catholic Church. The only thing that is missing is a clear endorsement of its position, as expressed by the right reverend Prelate, by representatives of the Archbishop of Westminster, or by the Archbishop himself. Given the remarkable progress that has been made in relations between the Church of England and the Roman Catholic Church it would be helpful to have that endorsement. I hope that the Minister can help us in that regard.
Lord Stevenson of Balmacara
My Lords, like several noble Lords who have just spoken, I take the view that this would insert into the Bill an unnecessary recital with no legal force. It would have the complication, as has been mentioned, of making it more complex and difficult to obtain agreement among all the 16 realms that need to agree to the proposals.
The intention of the noble Lord, Lord Cormack, is to seek further reassurance that despite the removal of the ban on Catholic marriages, no Catholic could ever succeed to the throne. He and others have made this point with some force throughout our debates. However, I wonder, as the noble Lord, Lord Deben, said, whether we are not pushing too hard on this point. Obviously the case has been made in an attempt to ensure that the Anglican supremacy is preserved. However, all that it serves to do is push our attention further toward the fact that the removal of the ban on Catholic marriages—obviously a welcome measure in itself—exposes the religious discriminations that remain. That is, no one who is a Catholic or who is not in communion with the Church of England can succeed to the throne.
It has been said that we are where we are, and I have some sympathy with that. However, we as a Parliament will need to return to some of these points in the not too distant future.
Succession to the Crown Bill
Lord Stevenson of Balmacara Excerpts(11 years, 8 months ago)
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Lord James of Blackheath
The noble Lords, Lord Forsyth and Lord Deben, have both got very close to being the first Peers in this debate to mention that here we are addressing the concern of whether we can alter the Bill of Rights. Sooner or later, that issue will have to be debated in much more detail than allowed for by today’s agenda.
I have one technical question for the noble Lord, Lord Cormack: does he believe that the papacy is able to commit its successors any more than, as he no doubt believes, one Parliament can commit another?
Lord Stevenson of Balmacara
My Lords, this has been a very good debate and, has just been mentioned, will inform a number of the amendments that we are due to discuss. Maybe we will be able to move a little faster as a result.
The amendment, in the names of the noble Lords, Lord Freeman and Lord Cormack, makes abolition of the Catholic marriage ban conditional on an agreement with the Vatican that children of such marriages should be brought up as Anglicans. As for preserving the Protestant succession, the amendment is unnecessary because under the present rules no Catholic will be able to succeed. As we have heard, it seems highly unlikely that the Vatican is in any position to make children of mixed marriages be brought up as Anglicans, should we require it to. In any case, we understand that this is a matter already delegated to the Catholic hierarchy in the UK.
However, as several noble Lords have suggested, this issue raises the question of whether any religious test should be preserved as one of the rules for succession. As we will hear from the noble and learned Lord, that will perhaps be a matter for another time, but I will come back to it in later amendments.
Lord Stevenson of Balmacara
These amendments go to the heart of whether the present Anglican establishment in England can or even should remain in its present form. They raise issues which it would be irresponsible to dismiss out of hand. Therefore, I suggest that all parties come together sooner rather than later to ensure that the subject remains a topic for further parliamentary consideration. That might be by way of using the existing committee structure—perhaps the Constitution Committees in both Houses might wish to take this on—or even through the facility in your Lordships’ House for setting up a committee for this very purpose. It seems to us that the spirit of change, referred to by the noble Lord, Lord Deben, and the points just made by the noble Lord, Lord Forsyth, are too important to be left on the table. They need to be addressed, otherwise they will rancour, come back and hit us in places that we do not necessarily understand at this time.
I sense in the debates that we have had so far a willingness to engage at a level which is not possible within this Bill because of its particular purposes and focus but which would help to create a better understanding at least and possibly an opportunity for a road map for change. It would be important to take that up.
Lord Wallace of Tankerness
My Lords, as my noble friend Lord Trefgarne indicated in moving this amendment, this is one of the key issues raised by this Bill. Certainly, his Amendments 10 and 11 and the consequential ones to the schedules are interesting and were flagged up at Second Reading. They are an interesting way of addressing what has been seen as a dilemma: if the sovereign was to be a Roman Catholic, how could that person also be the Supreme Governor of the Church of England?
When I tried to answer my noble friend Lord Forsyth’s question as to whether the proposal was to allow the heir to the Throne to marry a Roman Catholic or to remove discrimination, I think I said that it was both, and it is. Clause 2 is of symbolic importance because it removes a discrimination which I believe does not have a place in our society today. As I think I also indicated, and as has been accepted across the Chamber, these issues with regard to the sovereign being a Roman Catholic go much wider than the person who may ascend to the Throne being married to a Roman Catholic. The Government are committed to the Church of England as the established church in England with the sovereign as its Supreme Governor. I note what the noble Lord, Lord Stevenson, says about a possible further examination. Certainly, the Government have no plans to do so. Indeed, the Government suggesting to Select Committees what they may or may not do probably is not good form. But he has made his proposal and there will be others who will have heard it. It may be that a Select Committee will choose to do that but I do not think that it would be appropriate for the Government to take that initiative.
I now turn to the idea of separation of the roles of sovereign and Supreme Governor.
Lord Cormack
My Lords, although not entirely relevant to the amendment, it would be very helpful if when my noble and learned friend responds he could give us some indication of when we are likely to have the Report stage, because a lot of matters have been raised this afternoon—I can see my noble friend Lord Trefgarne nodding—about which many of us remain either mildly or even acutely concerned. Some of us would like to have conversations with him on some of these issues. I hope that there will be time, because the one thing that has not been made clear during today’s deliberations is the need for rushing this legislation. I hope that there will be adequate time between now and Report, and between Report and Third Reading. I fully appreciate that my noble and learned friend is not in charge of the business arrangements of the House, but if he would give us some rough idea of when we are likely to debate these matters next, I think that it would be helpful to all of us.
Lord Stevenson of Balmacara
My Lords, the two amendments in this group would give us an alternative way of bringing the Bill’s provisions into force. Amendment 17 slightly overlooks the point that local parliamentary approval is not necessary in all realm Parliaments as we have discussed, so it perhaps should not be taken forward at this stage. However, I am interested in Amendment 16, because it plays to some of the strands of discussion that we have had both at Second Reading and today. For instance, the Minister addressed at Second Reading the issue of whether the Bill was being fast-tracked. He said:
“I accept that the Explanatory Memorandum states that, but in fact the Government in the other place paid regard to what was said by your Lordships’ Constitution Committee”.—[Official Report, 14/2/13; col. 829.]
He went on to explain that, because the Bill has retrospective effect, there is no significant time pressure, and certainly not sufficient to warrant fast-tracking—that point has been picked up and talked about a bit today.
The Constitution Committee was therefore listened to in respect of the time allocation, but it also drew attention to the constitutional importance of the Bill—which, again, the noble Lord, Lord Trefgarne, has talked about. It is this point that I am interested in. There is obviously a case for moving the legislation forward in a way which minimises any possibility of getting out of sync with the other realms, and we must have regard to that, but there is another strand, which is that this is a major constitutional position. We are all, I think, agreed on that point, if we are not agreed on how much of it we need to deal with in this process.
In some ways, what is being proposed seems pretty hole-in-the-corner stuff. Would it not play to the advantages which the noble and learned Lord has been claiming for the Bill if it were given the full parliamentary approval process for secondary legislation; in other words, going through both Houses of Parliament and being agreed by both Houses? I know that it would be more onerous and would involve a little more time and effort on the part of the Minister and his officials, but it would mean that we had the evidence that all the other realms had looked at the Bill properly and considered it. We would have the detail about which ones had put forward a different or alternative version of the words—we could check whether exactly the same intent was being imported by the words being used in those local areas—and we would have the reassurance that everything had been done, with all the “t”s crossed and the “i”s dotted. It is in that sense that I suggest to the Minister that we should think about bringing in this process.
Something that is in the control of this House and this Parliament does not affect how others do it but would play back to our sensibility that this is an important Bill worthy of the detailed scrutiny that we have given it today but worthy also of the other appurtenances that go with constitutional measures.
Perhaps I may respond on behalf of the Government in terms of where we are on the process: Forthcoming Business has the Report stage of the Succession to the Crown Bill down for Wednesday 13 March.
Lord Northbrook
Perhaps I may draw the Minister’s attention to something of which I have already given him notice in respect of Amendment 17; namely, the House of Lords Library paper on the Succession to the Crown Bill. It says, in summary, that when there is constitutional change there have to be referenda in the following countries: Australia, Jamaica, the Bahamas, Grenada, St Lucia, St Vincent and the Grenadines, Antigua, Barbados and St Kitts and Nevis. Could he confirm that the Library is correct on these matters and, again, how the timing might take place?
Lord Wallace of Tankerness
My Lords, this picks up on some issues that were debated earlier. I should clarify that the reason why the Bill specifies the Lord President is that the ministerial responsibility for constitutional and elections law currently rests with him. The Privy Council is also involved in constitutional matters. Indeed, credit should go to my right honourable friend the Prime Minister because I do not think that my right honourable friend the Deputy Prime Minister was in Perth. It was not simply a case of discussing this matter over lunch; it was more than that. I think that the noble Lord, Lord Stevenson, was involved in this issue in a previous incarnation under the previous Administration.
Lord Wallace of Tankerness
The noble Lord may not have been involved in any lunches but I think that he was involved in efforts at No. 10 to try to forge some of the agreements to take this matter forward. That indicates that this issue did not suddenly emerge at the Commonwealth Heads of Government conference in Perth, Australia. It was the opportune time, with the Heads of Government being present, for that agreement to be finalised, but a considerable amount of work and discussion went on ahead of that. As I have indicated, the reason why the Lord President is referred to is due to the current ministerial responsibilities.
I am not wholly unsympathetic to the idea that we might have a subsequent form of approval, but it is not common for Parliament to approve commencement orders. This is a commencement order. It is not as if it is an order that will make amendments to anything or promulgate a new set of regulations; it simply commences something which Parliament will already have approved through the proper parliamentary procedures. Indeed, the Delegated Powers and Regulatory Reform Committee, whose reports the House sets great store by, found no fault with this provision. Given that this matter has been debated, I wonder what further steps we could take. The noble Lord, Lord Stevenson, indicated that there might be an opportunity to reassure both Houses that each of the realms had done what was necessary under their own provisions. I am very sceptical about that but it does service to the arguments that have been put to consider it. We have made it clear—I must again give this reassurance—that we will commence the legislation only once we are satisfied that each realm has taken the necessary steps to give effect to the changes. There is flexibility in the commencement date to ensure that the laws across the realms are consistently applied.
My noble friend Lord Northbrook raised the question of referendums. This was also picked up by my noble friend Lord Trefgarne. My understanding is that referendums would be necessary in other realms only if they decided to amend their constitutions. We do not believe that any realm intends to do so. Officials working on this legislation do their utmost to try to keep in touch with the different realms and they have been given no indication by any realm that it intends to hold a referendum. However, as I indicated to my noble friend Lord Forsyth on an earlier amendment, I will do my best to give an update on where each realm is in terms of what process they are proposing. Perhaps in that context I could helpfully clarify the position on referendums. However, I emphasise to your Lordships’ House that it is our understanding that no realm has flagged up that it intends to have a referendum.
Succession to the Crown Bill
Lord Stevenson of Balmacara Excerpts(11 years, 9 months ago)
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Lord Stevenson of Balmacara
My Lords, I thank all speakers for contributing to this wide-ranging debate, in which we have heard many useful and important points. Although not all have been within the scope of the Bill, many of them ought to be addressed. Having said that, I fully understand why the Government may not wish to address them today, or even in the short term. At least on the evidence of today’s debate, and particularly on the evidence of the words said just before I started to speak, these points will not go away.
The Bill is a piecemeal assemblage. Given the nature of the uncodified UK constitution, it is probably inevitable that, when we have the opportunity to tinker with the constitution, that is indeed what we do. However, as several noble Lords and particularly the noble Lord, Lord Lang of Monkton, said, in our work in this House we need a sense of the principles and what the underlying proposals would lead to in the long term. On a number of occasions, we have come up against points where pragmatism seems to have trumped principle.
A number of noble Lords have raised the issue of why this Bill has been fast-tracked. We heard from the noble Lord, Lord Northbrook, who made reference to the Constitution Committee’s 2009 report—its most recent one—which suggests that,
“the use of fast-track legislation, while it may be necessary for reasons of emergency and overriding public interest, will rarely, if ever, be appropriate for significant constitutional matters”.
The Minister said, when he introduced the Bill, that this was a profound measure. I think he goes along with the fact that this is an important, significant constitutional matter. I do not want to make too much of this issue, as we are going through all the stages in your Lordships’ House, but we should take from this the fact that using the expedited procedure for constitutional measures is, in principle, regrettable. It is to be hoped that the Government do not make a habit of resorting to the device.
Several noble Lords drew attention to the mechanics that underlie this Bill. I should put on record the fact that I had some involvement with those mechanics when I was working in Downing Street a few years ago. As we understand it, the whole point of consulting the other 15 states who have the Queen as head of state was to ensure that common action was agreed, which was necessary to avoid a situation in which different people emerge as monarchs in different states because there had been no uniform change to the succession rules. We also understand that the UK had to go first to blaze the trail, although some states will not have to legislate at all because their constitutions automatically accept whoever is the legitimate successor in the UK. Can the Minister, therefore, tell us how far we have got with simultaneous ratification in the other realms? I would like to follow up the suggestion of the noble Lord, Lord Trefgarne, that the Minister should say what would happen to the Government’s plans if several states—or even one of them—that have to legislate, fail to do so successfully?
I appreciate that the agreed retrospection to 28 October 2011 removes the most urgent time pressures but it would be unfortunate if changes that we agree upon here are effectively negatived by what happens in other realms. I understand, for example, that the proposed method of proceeding in Canada may be inconsistent with what one—clearly favoured—reading of its constitution considers to be the right course. Perhaps the Minister could advise us of whether there is any recent information on that point.
On primogeniture, the change to gender-neutral primogeniture for royal succession is welcome and, despite the safety net of retrospection to 28 November 2011, there is a clear case for settling the matter before the delivery of the Duchess of Cambridge’s child later this year. However, although the change to gender neutrality demonstrates our monarchy’s protean ability to move with the times, a primogeniture rule is a pretty rum way of selecting people for any job, let alone head of state. Of course, it is not an unqualified rule, as we prioritise adherence to a particular religion more highly than personal merit, which is a trade-off that was certainly important to us in the past, but has surely lost its rationale in the present. Having said that, our present monarch has conducted herself impeccably, and has set what we must hope is an entrenched example that will be emulated by her successors. Of course, it is highly relevant that the modern monarchy has no executive functions, even if it retains many public roles.
On whether there is a possible read-across from royal primogeniture to a peerage succession, the Government’s argument is that Crown and peerage primogeniture are distinct. We agree that, as things stand, Crown succession must and can never fail but there is no public interest to be served by putting peerages in the same position. To my mind, regardless of questions of legitimate expectations and private law arrangements being invaded by unforeseeable changes in the succession rules, anxieties about peerage succession can serve only to raise the question of why hereditary peerages should continue at all, let alone in this House.
That is not in any sense to demean the arguments put forward today. Nor does it deal with the argument for change in the peerage succession rules, admirably put forward by a number of noble Lords but also by a number of wives, sisters and daughters who have corresponded with a number of your Lordships. They argue, and I agree with them, that the lack of a Y chromosome can and does see some women denied their natural inheritance. That should be addressed.
On the issue of religious tests, I am sure that the whole House welcomes the proposal to permit the sovereign to marry a catholic, which at least gets rid of one of the most visible bars to full Roman Catholic participation in our society. However, because abolishing this disqualification leaves untouched the remaining Catholic disqualifications, the question that naturally follows is: why should any remain? After all, it will still be the case that the monarch cannot be a Catholic and will also have to be “in communion with” the Church of England. As we have heard, this latter rule means that, even if all the explicit bans on Catholics succeeding were repealed, an implicit ban would remain, and it is not much of a consolation that the ban includes everyone else not “in communion”, that is non-Trinitarian Christians, all non-Christian believers and all non-believers.
I note that the Church of England issued a statement on 21 January about this Bill, which included the following about the marriage bar:
“Its proposed removal is a welcome symbolic and practical measure consistent with respect for the principle of religious liberty”.
It should be noted that it says “religious liberty”, not “religious equality”. Liberty and equality are not the same.
The customary defence to preserving the explicit and implicit Catholic bans is that repeal would be incompatible with the monarch remaining Supreme Governor of the Church of England, a title which derives from Section 8 of the Supremacy Act 1558. In practice, all senior diocesan and cathedral appointments are now made by the Church of England in a situation where the recommendations of its committees are waved through by the Prime Minister on their way to the sovereign. All measures require prior parliamentary approval and all canons the prior approval of Ministers. The actual content of the supremacy is therefore largely formal and the church is, in practice, autonomous.
We do not have an established church in Wales, Northern Ireland or in Scotland. I draw the attention of the noble Lord, Lord Maclennan, and my noble friend Lord Berkeley to the Church of Scotland Act 1921, which confirmed that the kirk has independence in spiritual matters. We ought to bear in mind that here we are talking about an English issue and not a UK one.
Several noble Lords raised the issue of whether it was time to abolish the supremacy. At the very least I agree with the noble Viscount, Lord Astor, that we should debate this otherwise it will suddenly come and get us when we are not expecting it.
It is my understanding that there are two possible ways of proceeding. We could do a wholesale statutory repeal or we could do a minimal change to the law combined with changes of practice. The first would require the repeal of all the relevant statutes. But there are precedents for that as we repealed, in an appropriate time and an appropriate way, the legislation disestablishing the Church in Ireland in 1869 and in Wales in 1914. How far and how deeply statutory reform would need to reach would depend on what, if any, roles the church wished to retain in England and Parliament was content to continue. This route would be technically laborious but not impossible and perhaps best undertaken by the church itself in stages, proposing the means by way of synodical measure.
The second method would be to proceed by minimal repeal; that is by repealing the prohibitions against Catholics and the requirements for the monarch to be in communion with the church, and amending the accession declaration oath. This would remove the compulsory religious qualifying link between the sovereign and the church and yet permit, as a matter of practice, the remaining formal functions to be regarded as the involvement of a friendly but non-confessional royal patronage towards one of the most ancient of national institutions. As the noble Lord, Lord Deben, has just said, free to adopt any belief system they wished, sovereigns could remain Anglicans if they individually desired but the compulsory link would be abolished and the way cleared for them to choose freely like everyone else. At the same time, all belief systems would thus become equal under the sovereign and, while there would be recognition of Anglicanism’s historic presence, that church would no longer have an entrenched constitutional role in England.
The present sovereign has herself voiced reinterpretive language about the modern role of the Church of England. The right reverend Prelate the Bishop of Worcester cited extensively what the sovereign said at one of the first Jubilee celebrations at Lambeth Palace on 15 February 2012. The key passage, which I should like to repeat, is:
“The concept of our established Church is occasionally misunderstood and, I believe, commonly under-appreciated. Its role is not to defend Anglicanism to the exclusion of other religions. Instead, the Church has a duty to protect the free practice of all faiths in this country”.
That certainly opens the way for further work, if the current Government are so minded. It is important to recognise that what one would be doing here is securing religious equality as well as religious freedom in this country.
The third part of the Bill deals with royal approval for marriage. It is a bit of a surprise to find that this subject occupies more of the Bill than the other provisions put together. Many noble Lords have expressed concern about the fact that that tidying-up exercise raises the question of whether royal consent should be required for anyone’s marriage in the first place. Although the 1772 Act machinery would have been an important element in, for example, Princess Margaret’s decision not to marry Group Captain Townsend, the objection that he was a divorced man would now perhaps not feature as an insuperable objection.
Presumably, other targets of unsuitability are thought to have force. If so, what exactly are they? Would the line be drawn at marriage to one’s personal trainer, as happened in Sweden, or to an unmarried mother, as happened in Norway, where official consent was forthcoming in both countries? Repeal of the clumsy—some would say vindictive and heavy-handed—1772 Act is clearly an advance, above all in the way in which the new system will not invalidate marriages where prior royal consent is not obtained. On the other hand, it would be helpful to know exactly in what circumstances the Government envisage that that consent would be withheld. Can the noble and learned Lord confirm that consent will be withheld only following and on the advice of Ministers; or where there is a well founded personal objection to an intended spouse by reason of their past conduct or present associations being likely to bring the institution of the monarchy into disrepute; and that those reasons would be given?
As the noble Lord, Lord Trefgarne, asked, will that all be subject to judicial review? If the Minister cannot so confirm today, will the Government set out before the Bill’s remaining stages when they envisage royal consent may legitimately be refused?
As I said, this has been an interesting, illuminating and highly educational debate. As was said earlier, this important debate has the capacity to interact very substantially with the culture of this country. Unlike most of the business with which we routinely deal, it is in some senses a one-off. It has impacts which are unlikely to be seen in full effect for about 100 years, as the succession moves on.
I conclude by stressing what my noble friend Lady Hayter said at the beginning of the debate, which is that we on this side support the limited but important aims of the Bill and will do what we can to ensure its smooth passage through your Lordships’ House.