Grand Committee
Infrastructure Bill [HL]
(9 years, 10 months ago)
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The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
My Lords, welcome to the Grand Committee on the Infrastructure Bill.
Lord Davies of Oldham
Lord Davies of Oldham (Lab)
My Lords, I shall also speak to Amendment 73, with which Amendment 72 is grouped.
As I thought to construct a speech on this issue, I found myself in the most extraordinary philosophical and political position. All my political life, I have seen the lines of conflict over issues drawn in the following way. Going back to Finance Bills in the 1970s, for instance, I recall that the Labour Government were always accused of drawing up excessive invasive powers—in particular for tax authorities to appropriate property—and the Conservative side was always expressing the rights of the landowner and the liberal proposition that the state should be kept at bay. In fact, on one famous occasion, I remember a Conservative member of the committee telling me, “If this amendment to the Finance Bill is carried, there will be the knock on the citizen’s door and it will be the knock of the French revolutionary of 1789 saying, ‘Ouvrez, au nom de la République!’”, such were the terrors that were being visited upon the British in 1976. I had the temerity—I was a PPS at the time—to suggest that the historical analogy did not quite hold up, not least because the French Republic was not declared until 1793, and therefore he was four years premature in suggesting that the revolutionary was asking for entry in the name of “la République”—after all, Louis XVI did not meet his death until 1793.
However, with this issue here, the position is exactly reversed. The current Government are producing a power of entry that we regard as being quite exceptionable and needing some mighty justification. I do not know whether this proposal in the Bill has emerged from a Conservative Party that has gone soft on supporting landholding interests or from the malign influence of those in the Liberal wing of the coalition, who have decided that they should have regard to the landed interest. However, we are agin this proposal, and I shall go on to explain, as clearly as I can, why. It seems quite unnecessary to give an authorised person,
“to determine whether to offer to enter into a species agreement with a person”,
this excessive right to demand entry. Surely powers of entry must be handled delicately. As a liberal-minded socialist, I would say that powers of entry should always be handled delicately, because the citizen in a democratic state has rights. There needs to be a balance between the interests or rights of the property owner and the rights of environmental authorities wanting to eradicate invasive non-native species.
Of course, we are all with the Bill in its attempt to tackle what we all recognise is a very severe problem, but the authorised person would be seeking to obtain an agreement. It does not seem right, therefore, to allow a power of entry at an early stage in the process before the property owner might even be aware of the need to enter into a species agreement. The persons concerned have not got anywhere near the negotiation stage; as far as one can see, they have not even necessarily identified that there is a problem at all, but there could be this knock on the door from the authority.
In England and Wales, the entry on to private property by any person is a trespass, unless consent is given or the entry is otherwise authorised by statute or by common law. It is also the case, of course, that this concept is enshrined in Article 8 of the European Convention on Human Rights, which provides a right to respect for private home and family life. In this respect, Article 8 can only be interfered with if it is prescribed by law as a legitimate aim and is necessary in a democratic society. It is particularly difficult to describe species control agreements as a pressing social need for action. After all, if the concept anticipates an agreement as the achievement of the policy, what is the pressing need for forthright rights of entry? Moreover, the Home Office’s powers of entry gateway, which regulates powers of entry, sets out tests which must be satisfied, including “Necessity”, “Proportionality” and “Safeguards”. Such powers should be used only when necessary and not routinely, but these powers in the Bill are routine—they come in at first base, as it were, and condition the nature of action.
Will the Minister justify how allowing a power of entry on to someone’s land merely to decide whether to enter into an agreement fulfils the requirements set out in the European Convention on Human Rights? The property holder is going to be asked to enter into an agreement. Of course I recognise the problem that may arise if agreements cannot be achieved and if the threat to the wider society is significant—none of us is going to underestimate the damage which some invasive species can do. We all know that it would be absolutely pointless if one householder dealt with Japanese knotweed alone. The capacity of one householder to deal with Japanese knotweed alone beggars the mind, but if he did succeed in dealing with Japanese knotweed alone it seems absurd to suggest that agreement would not be necessary. Next door would have to be involved; otherwise, one would not have a solution and one would be more likely to have a situation in which the problem was extended.
It may be thought that I am being excessive in challenging the Government on these issues and recalling other occasions when these issues have been raised, when the boot has been on the other foot and I watched Labour Ministers wrestle with arguments from landowners and Conservatives. The crucial issue is that the Law Commission review addressed this issue and highlighted the fact that concerns were raised regarding potential overuse of powers of entry. It concluded that there should be a formal safeguard against potential overuse of powers of entry. Of course, we subscribe to the objectives of the Bill with regard to tackling the problems caused by invasive species, but we believe that we are entirely justified in probing the limits of the power of entry as regards when and how it will be used. I beg to move.
The Minister of State, Department for Transport (Baroness Kramer) (LD)
My Lords, I resist Amendment 72, as circumstances may arise in which Natural England has reason to believe that a non-native invasive species is present on someone’s land but the owner denies access to verify this. However, without that verification, one cannot proceed to issue a control order. If there is no voluntary agreement, the landowner can avoid the imposition of a control order. Typically, Natural England will approach the landowner and give him at least 48 hours to respond. The reason for having this tight benchmark is that sometimes one can determine whether a non-native invasive species is present even when one is off-site. However, that cannot always be done, as sometimes the species is tiny and is therefore difficult to pick up in, for example, an aerial photograph.
The expectation is that arrangements will be voluntary and collaborative with rare exceptions—for example, in emergencies. The Committee will know about Asian hornets. We have almost the equivalent of an alert system around the country, watching out for the arrival of Asian hornets. I am advised that, if they are found, eradication needs to take place very rapidly, possibly within 48 to 72 hours, or they will pose a threat to native bees, with all the consequences that flow from that. Therefore, on occasion, it is absolutely necessary to move fast. It would be problematic to provide a landowner with a mechanism to resist even entering discussions about a voluntary agreement and therefore to avoid triggering the process that would eventually lead to a control order. I fully recognise the issues that have been raised. However, given the purpose of this legislation and the implications of allowing a rapidly increasing invasive species to get out of control, I ask the Committee to recognise that this power is necessary and I ask the noble Lord to withdraw the amendment.
Amendment 73, which is also in this group, is slightly different. It would require an environmental authority to ensure that, whenever it exercised a power of entry, it must leave the premises as effectively secured as they were on entry rather than, as stated in the Bill, to do so when the premises are unoccupied or the owner is temporarily absent. We want very much to ensure that unoccupied premises or premises where the owner is absent are left effectively secured. As regards Amendment 73, we take the point that there might be grounds for a more general application of the provision. One of the things we are concerned about is the need to think through the language that is used, as we do not want to encourage people to “booby-trap” premises, as it were, with expensive systems that would then have to be replaced. Therefore, I am sympathetic to the intent of Amendment 73 but, given the importance of being able to control invasive species, we need to retain the powers in the Bill, which would be negated by Amendment 72.
Lord Davies of Oldham
My Lords, I am grateful to the Minister for her sensitive approach to Amendment 73. We will look again at the wording of that amendment to see whether we can persuade her to change her mind on that matter. It seems a pretty obvious thing to require that, if an authority moves in for the very good reasons that it would have in those circumstances, it should leave the place in the same order that it found it. Otherwise, it seems that we are giving extraordinary powers to those who carry out this action.
Lord Davies of Oldham
“( ) the standards of animal welfare required when carrying out species control agreements and orders.”
Lord Davies of Oldham
My Lords, I move on to slightly gentler territory this time but of great import nevertheless. We all recognise that, in seeking to do the right thing by wider society, we have real problems about how the actions are to be carried out by the authority. That is why Amendment 74 seeks to insert the words:
“the standards of animal welfare required when carrying out species control agreements and orders”.
I am sure the whole Committee will endorse the view that we must ensure that we abide by the highest level of protection for animal welfare. Concerns have been raised by a number of bodies, including the National Farmers’ Union, Animal Aid and the National Anti Snaring Campaign, which have all cited the threat to animal welfare. We must be alert also to the fact that these control orders might prevent farmers and growers being able to react to market opportunities by growing new varieties of crops. That is why those concerned with the countryside argue for an appropriate system of checks and balances to protect their interests. I am not sure that the Bill meets that test at present. The Government have failed to include anything in this schedule to protect animal rights, despite the fact that we know that representations have been made by the International Fund for Animal Welfare, the Woodland Trust and the Law Commission that the legislation should indeed provide for the inclusion of animal welfare provisions. I fail to see why these representations, made while the Bill was being drawn up, have not registered effectively with Ministers.
Perhaps that is to do with the fact that Ministers are fresh from the horrors of the badger cull and the problems they had over that issue; there are also the problems we have all had over dangerous dogs legislation in recent years. However, the Government were quick to denounce the presence of beavers from sightings in Devon and to suggest their ability to carry a disease when, from what I can see, the Government have produced no proof or scientific evidence to back up these contentions. What assessments do the Government make when deciding whether an animal is considered dangerous or harmful? Is the fact that it is just strange and new sufficient for forthright action to eliminate it?
Reports show us that there is a case that animals such as beavers might have an effect that is as positive as it is negative. I know that we all have to come to terms with the development of new species when they arrive. I am told that beavers would cause a great deal of trouble wherever floods were likely to occur, but I had thought that beavers were rather good at building dams and that most of the demands being made from the Somerset Levels and elsewhere during the past year were to say, “We want more defences”. Why can we not get the helpful beaver to chip in with his little bit? At the least, I am not quite sure why he is condemned outright before he has had the chance. It seems that the Government are obsessed with controlling anything that they think to be a threat, without properly assessing whether it is a threat or not—and certainly without even beginning to think that there might be benefits.
The Government do not have the best track record in following the advice of scientists, especially when it comes to the natural environment. Their failure over the badger culls, where they have been heavily criticised across a whole spectrum of informed opinion, is a clear example. We must make sure that species control operations are conducted and introduced on the back of a clause that enshrines the need to look at the preservation of animal welfare. I am hopeful that the Minister, while she might think it rare, will see this as a constructive amendment from the Official Opposition and look kindly upon it. I beg to move.
Baroness Donaghy (Lab)
My Lords, I support my noble friend. There was a good example in Australia, which I could perhaps relay to the Committee. My brother, who lives in housing association accommodation, was invaded by a possum. It was in his roof for about three years before he was able to persuade the housing association to do something about it. Of course, the possum is a protected species but eventually along came Paul, the “Possum Whisperer”, whose job it was to persuade the possum to leave the premises without endangering the species. He did that without any harm to the premises or to the possum, but the end of the story was that the possum re-emerged slightly later, next door but one. The neighbour knocked on my brother’s door and said, “Hey, I’ve got this possum—any advice about how to get rid of it?”. My brother said, “Well, Paul the Possum Whisperer is the person that you need to go to”. So there was a job creator as well as a very skilled person, who could act in a humane way to protect the animal. It may be that the Government could indulge in some job creation activity here by creating skills such as sheep whisperers and beaver whisperers to get these animals off the premises without any harm. This is a very good amendment, which we should support.
Baroness Parminter (LD)
On these Benches, we have some sympathy with this amendment. When we are looking at how we take forward species control agreements, it is important that some principles are set up out front. While I would not go so far as the noble Lord, Lord Davies, and talk about animal rights, we on these Benches support animal welfare.
There are two reasons why this amendment has some merit. First, we need these species control orders to be effective and humane. That is where I have a slight difference of opinion with the noble Lord, Lord Davies of Oldham. We may have disagreements about the outcomes of the Government’s badger-culling pilots, but the Government went in on the basis that the pilots were to test whether a cull was effective, humane and safe. These species control orders should follow the same principles of being effective and humane.
My second point, which may find more favour with some in government, is that clearly whether species control orders go ahead and the cost attached to them will depend on how they are undertaken. It is a damn sight cheaper to free shoot than it is to trap and shoot. Whether a form of species control is humane will have an impact on the cost. Therefore, when we are setting up the principles behind these species control agreements, it is important that a marker is set down that they should be humane, because that will have an impact on the cost, which will be determined on a case-by-case basis for these species control agreements.
For those two reasons, this amendment has some merit. Equally, I think it has the merit that it does not stipulate the control method to be used for each of these species control agreements but talks about the principles for the code. That is what we should be doing. We should be setting down some fundamental principles in the code which can then be interpreted on a case-by-base basis for each of the species control agreements.
Baroness Kramer
My Lords, the noble Lord, Lord Davies of Oldham, is quite right that most people who find that there is a non-native invasive species on their land are glad to co-operate. Unfortunately, about 5% will not. We have experience of this, particularly in the south-east, where it has been extremely difficult to get access when there has been a suspicion about the presence of the North American bullfrog, which eats every amphibian it comes across, and there have been various problems caused by floating pennywort. Unfortunately, there is a history of non-co-operation with access as well as non-co-operation with eradication. We have to be realistic about the consequences of that.
We are attempting to capture beavers and test them because the great fear is that they are Bavarian and come with an extremely nasty disease that is common to Bavarian beavers. Frankly, I had not heard of it before this Bill, but it is a zoonotic disease that I am told one must avoid at all costs.
Amendments 74 and 78 would require the respective codes of practice to set out the standards of animal welfare required when carrying out species control agreements and orders. We agree that control operations need to be consistent with existing published government policy on the welfare of wild animals. Your Lordships may wish to know that the EU invasive alien species regulation that is expected to come into force on 1 January 2015 requires that,
“animals are spared any avoidable pain, distress or suffering”,
in the carrying out of eradication or management measures for those species subject to the regulation.
As the noble Baroness, Lady Parminter, underscored, we have a very useful code of practice that is going to play a very significant role in the use of these control orders. I give a commitment to take a look at that code of practice and see whether there is a sensible way in which to specify welfare obligations in that. If there is, we will come back with a response before Report, because it is our intent to make sure that animal welfare is appropriately protected. I hope that that is sufficient reassurance to allow the amendment to be withdrawn.
Lord Davies of Oldham
My Lords, I am grateful to the Minister for those concluding remarks. Of course, we accept the outcome of her investigation of the situation. I think that that is a safer path, for her, than quoting the European Union control orders, which might be a little inflammatory in some parts of the House, though not on my side. I beg leave to withdraw the amendment.
Lord Davies of Oldham
Lord Davies of Oldham
My Lords, this amendment and the others grouped with it seek to add to the list of those who have a crucial part to play. None of us has anything but great respect for the work of the Environmental Audit Committee in the other place, which has done a tremendous job in reviewing invasive non-native species and highlighting what needs to be done and how we can improve the situation. It would surely be hugely beneficial to have it involved in the process of issuing, revising or replacing the codes of practice for invasive non-native species. That committee is on record as being very supportive of the implementation of the Law Commission’s proposals and some time ago highlighted the need for this to be a priority for the Government. We think that there is a clear role for that committee, particularly against the background of there being more limited resources to hand for the Government in carrying out this crucial evaluative work.
Our remaining amendments involve the local authorities and local nature partnerships. The simple fact of the matter is that most local authorities do not have the capacity or the ability to assess biosecurity risks and to take a proactive or intelligence-led approach to reducing them. Two-thirds of our local authorities no longer employ any ecologists, according to the Association of Local Government Ecologists. The evidence suggests that ecological capacity within local government is stretched very thin indeed, but it has a very wide policy agenda. We are here debating this Bill because that agenda is extending, and we are trying to respond to those difficulties. There is clearly an ecological skills gap within the planning system and a clearer understanding of the specialist ecological competence is required, especially in understanding exactly what the discharge of statutory obligations involves. Having that clearer understanding would enable local government to allocate better its resources against the risks associated with the fact that it no longer has the level of technical expertise that it once had. When dealing with biosecurity issues such as diseases, pathogens and invasive non-native species, 75% of local government ecologists indicate that only “basic” or “capable” levels of competence are required at that stage. There is a worry about the ability of local authorities to play their part effectively, and that is why we would like a reference to local authorities in the Bill in addition to the crucial role of the Environmental Audit Committee.
It may be thought that I am putting enormous stress on a committee of the other place, but so much competence for dealing with these areas has been swept away that inevitably we have recourse to those obvious locales where expertise exists and can be called upon. The Environmental Audit Committee report has been of the greatest significance in the development of policy. I am seeking to strengthen the role of those who have some capacity to assist the Government, with their limited resources, in carrying out the necessary functions under the Bill. I beg to move.
Viscount Hanworth (Lab)
My Lords, the comments that I wish to make may have some relevance to the codes of practice that will accompany the Bill. Amendment 71, in the name of the noble Lord, Lord Berkeley, which has already been debated, could have been a cue in its own right for a wide-ranging and interesting debate.
The noble Lord, Lord Berkeley, proposed the definition of a species. A species is commonly defined as the largest extent of a group of organisms that is capable of interbreeding and producing fertile offspring. That is similar to the definition that the noble Lord, Lord Berkeley, was advocating, which also mentioned the exchange of genes. However, his definition did not include the fertility of the offspring as one of its conditions. Moreover, we know that bacteria of widely differing species can exchange genes via plasmids, which are small DNA molecules that can be separated physically from the chromosomal DNA. One might wish to exclude bacteria from the definition.
These are abstruse matters and I do not wish to pursue them further. Instead, I propose that in place of “invasive non-native species”, the legislation should be talking simply of “pests”. I assert that it is inappropriate to talk only of non-native species. The objection might be raised that the word “pest” is too vague to serve the purposes of this legislation. What is a pest in one context might be a harmless organism in another context. However, this is one of the realities that ought to be taken into account. I will mention the well known example of the English rabbit. When transferred to Australia, it became a major pest that threatened the viability of Australian agriculture. Rabbits destroyed the grazing land and by eating native plants and grasses exposed the top-soil and left it vulnerable to erosion. One way of overcoming an infestation is to alter the ecology by introducing a predator of the pest, or by some other means. In Australia in the 1950s, the ecology of the rabbits was altered radically by the introduction of a malign myxoma virus, which causes myxomatosis in rabbits.
The point I wish to make is that we need to consider pests within their ecological contexts, and ecology can be severely disturbed by inadvertent human interventions. Often the effect of a human intervention is to diminish the diversity of the ecology by eliminating some of its organisms, which may allow others to propagate without restraint. Thus an organism that has hitherto been regarded as harmless may become a pest as a consequence of such disruption. This is an ever present hazard in intensive modern agriculture. The matter of whether an organism is native or non-native is beside the point.
An ancient example will serve as an illustration. It is provided by a variety of grasshopper that was originally confined to the Middle East, which has latterly invaded the entire African continent. This is the locust, of which the pestilential effects emerged when the advent of agriculture upset an ecological balance. The Book of Joel in the Old Testament provides a graphic description of a locust plague in the Middle East.
The point that I wish to make is that we should approach the problem of ecological imbalance not by programmes of localised pest control but in a holistic manner that takes a far wider ambit. Instead of relying on local pest control officers to deal with outbreaks of invasive species, we should be relying on our public sector research establishments to monitor our natural—and our unnatural—environments so as to guard against pestilential outbreaks and to suggest the necessary countermeasures. This reinforces a point that has already been made by my noble friend Lord Davies, and I hope that his comments might be taken into account at a later stage when we come to review the Government’s deliberations.
Baroness Kramer
My Lords, those of us who were privileged to participate in the Defra visit the other day—an opportunity that many of your Lordships took up—will have been very impressed to see the care and control and the deliberate and constant testing and assessment that Defra uses before enabling any biological controls to be used for some of these invasive species. Obviously, that is one direction that is under examination for Japanese knotweed, that much-hated plant, but it sits outside the scope of this legislation, which focuses very much on new invasive species that are not ordinarily resident and where there is a potential for eradication to succeed. The Bill has a narrower target, but other pieces of legislation sit alongside it that tackle, for example, invasive non-native species that are a threat to plant and animal health. So the Bill sits within a much broader context.
The amendments focus on the need for wider consultation on the code of practice. It has always been the Government’s intent to engage a great deal with expertise, with stakeholders and with others on the code of practice, which will be a substantial and complex document that will certainly need a great deal of thought and care. We continue to think about how we should carry out that engagement, and we would like to take a little more time to consider those issues, including the option of undertaking a full public consultation on the code. I can commit that I will have a response on the issue before Report, but I assure your Lordships that it is our intent to have that kind of intensive engagement, including with a number of parties that have been named today. We would like to take this away and think a little more on it, as the code of practice will be complex. However, it is indeed the Government’s wish to be able to tap into that expertise and thinking in order to make the code as effective as possible.
On that basis, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Davies of Oldham
My Lords, I am grateful to the Minister for her thoughtful and constructive response, and I certainly beg leave to withdraw the amendment.
Lord Best (CB)
“Housing as nationally significant infrastructure
Within 12 months of the date on which this Act is passed, the Secretary of State shall introduce a bill to change the definition of “nationally significant infrastructure project” in the Planning Act 2008, to include development programmes that contain over 1,500 residential units.”
Lord Best (CB)
My Lords, after hearing about Louis XVI, possum whisperers and a plague of locusts, I think that Amendment 79A might bring us rather down to earth.
Amendment 79A seeks to include major housing developments in the projects that can be defined as “nationally significant infrastructure projects”. The amendment would pave the way for the Bill to address one aspect of the acute problem of housing shortages in the UK. I am grateful to the National Housing Federation for its briefings on this and also for the advice from one of the UK’s foremost planners, Professor Kelvin MacDonald.
Lord Tope (LD)
My Lords, I added my name to this amendment and am very pleased to support the noble Lord, Lord Best. He has described the need for these measures and the reason for them very fully, and I do not intend to repeat all or, indeed, much of what he said, most of which I agree with.
I am a very strong localist. I am not sure I go wholly with him on his concerns about localism and housing need, but my party has a target in its policy to build 300,000 houses a year by the year 2030. We at least have the realism to describe that as an ambitious target. That is probably a modest description.
Lord Jenkin of Roding (Con)
My Lords, the noble Lord, Lord Best, has made a very interesting and compelling speech. I am more than ever pleased that I was one of his supporters when he took his seat in the House. I have greatly admired what he has been able to do over the years since then, and this is not the least of his achievements. He made a strong case, and I entirely recognise that. The question that I ask is who would initiate these big schemes? I entirely agree with him that these are desirable measures, if we are going to try to reach our housing target, and I entirely agree with him that planning should not be an obstacle to that. The Planning Inspectorate, which, as the noble Lord said, would have to be the body to decide on whether to allow or disallow the investment for something of more than 1,500 houses, is not an initiating body. It does not propose schemes and is not a body like, for instance, the development corporations that now exist in some parts of the country. Its powers are not like those which the Greater London Authority and the Mayor of London have to initiate large schemes of housing, or indeed anything else.
On the point that the noble Lord made about the speed at which it has to approve applications made, of course that starts from the point when it is considering the application. One thing about the inspectorate—and indeed its predecessor, which was proposed by the former Government of the Labour Party—was that it insisted that all consultation of local opinion should be achieved and established before it started to consider the application. I think that everybody approves of that. It is a very good way of approaching this, so that when looking at the application and its impact you do not waste a lot of time on questioning whether local communities or other local interests were consulted.
I am interested as the noble Lord, like me, is of course a champion of localism. At Second Reading, I criticised the Local Government Association’s statement that it did not see planning as an obstacle to growth and development. I quoted some statements that have been made regarding the interests of those who see this from another perspective. I felt, as I argued, that that was a rather unrealistic statement. Of course, it has to be speeded up, but I had a long brief from the Local Government Association, as we have all done from time to time on various Bills. I am a vice-president of the LGA, but it is interesting that it has not offered any comment on this amendment, neither for nor against. It has argued—this is perhaps my central point—that what is needed is organisations which will promote the kind of development that the noble Lord, Lord Best, has been describing. It has argued that there ought to be development corporations along the lines that now exist in certain areas.
I am a huge supporter of the various efforts that have been made to encourage local authorities to join together, perhaps over quite a wide area. One has seen that first in the city deals that have been made, which are proving quite extraordinarily effective. They are a very interesting new instrument of localism, which will surely produce substantial benefits for the future. However, it goes wider than that as it is not just city deals but local authorities which can get together to plan and initiate projects, for which they can then find investors and so deal with them. To my mind, that is the way that it should be done. If you then have local authorities or, as I think it would have to be, development corporations formed by local authorities, that is the way in which they can have what I certainly support: that the decisions should be made locally.
The difficulty with this amendment, although I understood clearly and listened with great interest to the arguments, is that it goes contrary to the whole thrust of policy in many of these related areas: seeking to devolve authority from the centre down to the locality.
Of course, the noble Lord is quite right that there are always nimbys, and that is a problem that has to be addressed. When I was Environment Secretary, my very splendid chief planning adviser John Delafons— who is sadly no longer with us—after asking me, “Secretary of State, have you heard of NIMBYs?”, to which I said yes, he asked, “Have you heard of NOTE?”, to which I said no, so he explained: “Not over there either”. He also had another story that I liked: “The man who occupies the end house in a new housing estate on the edge of a town promptly becomes the secretary of the local conservation society—‘I’m all right, Jack, and I don’t want any more!’”. Those are the kinds of very human, but really rather damaging, impacts that these influences can have.
Would centralising the decisions into the hands of the local Planning Inspectorate make any difference? It might, but surely the right answer is for local developers—or perhaps development corporations supported by a consortium of local authorities, as might be necessary—to win the argument. Some of them are very good at it; others need to match their skills. However, I have some doubts about whether centralising the decision into the hands of the Planning Inspectorate, which is what the amendment calls for, is the right way forward. It might help, but it would also do other things that may be less helpful. Indeed, I think that there are better ways of doing this. It is interesting that local authorities have been arguing for the right to set up development corporations as the Mayor of London can do, but they have not actually put any amendments to me about how that might be properly achieved. Perhaps that is an issue to which we can return on Report, which might be a better peg on which to hang this.
I end on the note with which the noble Lord, Lord Best, began, which is that nobody doubts the acute seriousness of the housing problem in this country. In part, the problem is about overcoming environmental resistance, although one can understand some of that; in part, it is caused by the difficulty of getting developers interested in brownfield sites. I was very struck by the statement made by my right honourable friend the Secretary of State for DCLG, Eric Pickles, which was repeated by noble friend Lady Stowell on 16 June, about what is being done to encourage more development on brownfield sites. There will be extra help for London, but more important is that the success of London in getting ahead of this is now to be emulated in other parts of the country. It seems to me that these are the ways in which one ought to try to deal with this.
I will therefore listen with great interest to my noble friend’s response to the amendment, which has a very considerable appeal, but I have to say that I am not wholly convinced that it is the right answer.
Lord McKenzie of Luton (Lab)
My Lords, the noble Lord, Lord Best, got us off to a good start in our deliberations on Part 3 of the Bill. He touched upon a fundamental issue facing the country—and, indeed, as other noble Lords said, all political parties at this time—which is the housing crisis. I hope that the noble Lord, Lord Tope, will forgive me for quoting a few statistics in a little while, but this crisis is characterised by an acute housing shortage, with housebuilding falling to its lowest levels in peacetime since the 1920s, home ownership being unaffordable for many low to middle-income families, a falling programme of homes for social rent, an unaffordable “affordable rent” model and a burgeoning private rented sector in which rents are rising—all accompanied by insecurity and uncertainty in the marketplace.
The Government will claim that they have built some 445,000 houses since 2010, but this represents just over 110,000 a year—way short of what we need, the 243,000 figure quoted by the noble Lord, Lord Best. This is less than half of what the country needs. Figures from the House of Commons Library show that since 2010 the gap between housing supply and demand has increased by more than half a million homes, with London bearing the brunt of the increasing shortfall. It has been reported that DCLG Ministers have been advised of the prospect of the number of housing starts falling in 2014, with just 16,000 affordable home starts. Perhaps I can ask the Minister whether that is correct.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Stowell of Beeston) (Con)
My Lords, as this is the first time that I have contributed to debates on the Infrastructure Bill as the Minister responsible for Part 3, I start by saying what a privilege it is to be working alongside my noble friends Lady Kramer and Lady Verma. I do not know whether anyone else has noticed that on a Bill all about heavy stuff—whether roads, construction or energy—somebody clearly decided it was a job for the girls. I am glad to be part of that team. Like my noble friend Lady Kramer, I will be very happy to make myself available at all stages of the Bill if any noble Lord interested in Part 3 would like to have a meeting to discuss any issues. We have had a couple of briefings already, but I am very happy to do more of that type of thing if noble Lords would find it helpful.
Turning to the amendment moved by the noble Lord, Lord Best, I agree that we need more housing. That is a clear goal for this Government, and I know it is shared by all parties. I am pleased that this Government have made significant progress, as the noble Lord, Lord McKenzie, acknowledged. Since April 2010, more than 445,000 homes have been built. Last year, the number of new homes being built was up 31% on the previous year and is the highest since the crash in 2007-08, but we need more and we are working to ensure that we continue to improve on that figure. Indeed, the measures in the Bill demonstrate the importance we attach to our efforts to increase the supply of housing.
However, we disagree in principle with the noble Lords, Lord Best and Lord McKenzie, about who is best placed to make decisions on where new housing should be situated. There is a fundamental difference of opinion between us on that. This Government remain convinced that it is the responsibility of local councils to plan to meet housing need through their local plans. Forcing developments with more than 1,500 units through the nationally significant infrastructure regime would significantly reduce this responsibility and would be a move away from local decision-making, which we feel strongly about. It is worth making the point that we know from past experience that when Governments try to impose massive new developments on local areas, they tend not to happen.
Local plans should be at the heart of the planning process in an area and decisions whether to grant planning permission on major housing or mixed-use developments, which this amendment also covers, should be taken in that context. I note that my noble friend Lord Tope said that ensuring that the right homes were situated in the right places was key. We think that is something that local authorities are best equipped to do. In May 2010, 17% of local authorities had adopted a local plan. However, as of this month, 56% of them have adopted local plans, and 79% have published them, so we have come an awfully long way in the four years since we came to power.
It is also worth pointing to the strong improvement in the planning permission regime. More than 178,000 residential planning permissions were granted in England on major sites in 2013-14. That was 23% higher than the year before and 50% higher than the year before that, so the planning process is speeding up and is leading to more sites being approved, which is clearly good news. In fact, compared with the year before the introduction of the national planning policy framework in 2012, there was a 21% increase in the number of homes being approved on all sites in 2013-14. Therefore, real progress is being made in new homes being approved through the regime that we have introduced.
The noble Lord, Lord Best, portrayed the timetable for progressing a business and commercial scheme under the nationally significant infrastructure scheme in a more simplistic way than is the case in practice. Indeed, I think that my noble friend Lord Jenkin acknowledged that. I should make it clear that the timetable is 28 days for a decision on whether a plan is nationally significant. Then there is the public consultation, which could be as extensive as taking up to a year. Then you have the application itself; and then, if that is accepted, the consideration process could take a year to reach a decision. So it could be longer than one year and perhaps anything up to two to three years in total, depending on the complexity of the scheme.
I would argue, therefore, that the nationally significant infrastructure regime is not the silver bullet that perhaps the noble Lord, Lord Best, and others might want us to believe it is in terms of solving the housing crisis, because there is no guarantee that housing schemes will be approved should they go through that regime, and they will not necessarily get permission any faster, because there is normally at least 12 to 18 months of pre-application work, including the local consultation that I have just talked about, before a scheme can be submitted for examination. So using speed as an argument for adopting the nationally significant infrastructure regime is something that I would argue strongly against.
Lord Best
I am very grateful to noble Lords for their contributions to this little debate. The noble Lord, Lord Tope, made the point that something has to change. There has to be something a bit more dramatic, I think, than the measures we are currently working on. He also made the point that it is about quality, not just quantity, and one of the great things about a major development is that you can get the quality. If you are building just 40 houses and cramming them into the space that you have, the housebuilder often sacrifices quality. If you have a master plan working to create a garden village or even a garden community—I like that—on any scale, you can make it work because you have the numbers there.
The noble Lord, Lord Jenkin, was supportive of the need to do more but had his doubts about this particular way of helping. He made the point that it is important to identify who is going to initiate major developments. The use of development corporations, with consortia of local authorities, is absolutely the way to create the vehicles that could then take advantage of an easier, fast-track planning system. They would be the chief beneficiaries. It might be through local enterprise partnerships’ city deals. The Olympic Village was a wonderful example of how the growth boroughs in that area collaborated and achieved what remains a very important piece of housing.
Lord Jenkin of Roding
The noble Lord mentioned the Olympic Village. He is quite right to give credit to the local authorities in the area. Having read the report by the London Borough of Newham on what it has achieved through that, I think it deserves the highest praise for what it has done. I have in fact written to the Mayor of Newham to express that view to him.
Lord Best
I agree entirely. The noble Lord, Lord McKenzie, was very supportive but had some doubts. It was important to hear the plans that are now being formulated by the Labour Party. I know that Sir Michael Lyons’s review is due out fairly soon. I think that will be a creative and important contribution to the debate. The noble Lord, Lord McKenzie, made the point that long-term consensus is going to be essential and we have to work our way towards that, even though he has some reservations about this particular approach.
I thank the noble Baroness, Lady Stowell, very much for her response and for underlining the Government’s commitment to increasing supply, which is the essence of this. My suggestion is by no means a silver bullet, that is for sure. Loans, guarantees, et cetera, are all good; it is whether or not the volume that we need is going to be achieved by the measures that are currently there. With regard to reliance on local plans—remembering that you have no duty as a local authority to meet the needs of your neighbours or of the nation—your local plan must relate to the requirements of your own locality, and that may not encourage you to believe that a very major development is within your remit.
I take the point entirely that the pre-application process adds another year or so to the whole, so in total from beginning to end, with the 28 days from the Secretary of State at the beginning, one may well reach three years. But believe you me, three years for a major development is a triumph in relation to the time that we now must wait to get things done.
This is a proposal for a Bill, not a proposal in itself.
Lord McKenzie of Luton
How does the noble Lord see the issue of the use of the infrastructure planning regime for garden cities and new towns, given the scale of what they entail—very big developments over the longer period? The TCPA thought that the infrastructure planning process did not really suit that. That is why I thought we almost had three situations. There is the local authority with its usual planning role and responsibilities for housing. There are new town development corporations with the much needed mega-expansions. My reservations were about the extent to which intermediate positions would be best dealt with by the infrastructure planning regime or by some other route.
Lord Best
I am sure that that distinction is exactly right. A development corporation need not necessarily go for 15,000 homes, which I believe is the target for Ebbsfleet, the first of these new garden cities. We are looking here at the more modest proposals; ones that are none the less enormous in relation to the place. It may well be that the development corporation model works just as well with a master plan for 1,500 homes as it does for 15,000 and the opportunities that that brings with it, requiring something in between the mega and the everyday that can be encompassed within the local plan.
The amendment is a proposal for a Bill within a year of this Bill becoming an Act. That would give an opportunity for that Bill to take forward all the detailed aspects of this, things such as who exercises compulsory purchase powers in these circumstances or whether one requires a national policy statement as for other aspects of infrastructure that would go with this measure. That is all to play for. At this stage, I thank all those who joined in and beg leave to withdraw the amendment.
Lord McKenzie of Luton
Lord McKenzie of Luton
My Lords, this is a probing amendment that enables us better to understand what is intended by a very specific provision. It also gives us the opportunity more generally to assess progress on the process for dealing with nationally significant infrastructure projects.
To the narrow point first: for non-material changes to a development consent order, the duty to comply with consultation and publicity requirements is placed upon the person applying for consent as well as on the Secretary of State. The Explanatory Note suggests that that “may” happen although it would appear to be automatic given the wording of the Bill. Perhaps the Minister could elucidate. If it is not automatic, who makes the decision to place that obligation on the applicant? When it comes to the exercise of the discretion, it is not clear how prescriptive the regulations will be in setting the parameters of that discretion, and particularly what scope the applicant may have to, say, disapply prescribed consultation requirements. Perhaps the Minister could put something on the record in that regard.
We note that this clause and Clauses 17 and 18, which we support, spring from the review of the nationally significant infrastructure planning regime review. Much of what flows from that review will do so in regulations and guidance, much of it outside the timeframe for our consideration of the Bill. In principle, the direction of travel of that review is something we can support. The creation of the nationally significant infrastructure regime by the Planning Act 2008 was important in seeking to simplify and speed up planning consents for infrastructure projects, as we just discussed. However, even in the short time since that Act there have been changes to the legislation: transferring power back to Ministers, which was then delegated straight back to the Planning Inspectorate; widening the scope so that other major developments are included; eliminating the need for certain consents; establishing the consents service unit; and setting up the major infrastructure and environment unit.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Lord, Lord McKenzie, for outlining his support for Clauses 17, 18 and 19, and for explaining the reasons for tabling his amendment and seeking clarification about what we are intending with the proposals outlined in Clause 19. I hope that I am able to give him the reassurance he is looking for. I will do my best to be simple and straightforward in explaining this, but it is quite a technical thing to explain. I am quite confident that we share the same objectives, so I will give it a go and if needs be we can always talk further, I am sure.
Clause 19 will provide the framework for changes to regulations that will provide a quicker and simpler process for making changes to development consent orders. We will be consulting on changes to regulations shortly. For non-material changes, we will be proposing that responsibility for publicising and consulting on an application should in future lie with the applicant rather than the Secretary of State. Crucially, that will bring the process for making a non-material change in line with the rest of the Planning Act. In moving the responsibility for publicising and consulting on an application to the applicant, the Government want to ensure the necessary flexibility in the regulations to ensure that non-material changes that are unlikely to have significant impacts can be made quickly. In view of that, we intend to retain the provision in the existing regulations that would allow an applicant not to consult someone, but that would be only where they had gained the consent of the Secretary of State to do so.
I hope that the noble Lord, Lord McKenzie, and others who may be interested in this part of the Bill, have seen the briefing paper which we prepared in advance of this Sitting of the Committee. We circulated it by e-mail earlier this week. I will happily send it round again if anyone has not seen the document to which I am referring. The briefing paper gives a preliminary indication of the changes to the regulations on which we will consult later this month, so the consultation should start fairly soon.
The briefing paper does not suggest that we intend to change the current consultation and publicity requirements for non-material changes. I hope that once noble Lords have had the opportunity to consider the consultation paper on changes to the regulations, they will be reassured that the Government are not proposing to use the power of discretion provided in Clause 19 to allow applicants to decide who they should and should not consult. Applicants will continue to consult those persons and bodies set out in the regulations unless they have the consent of the Secretary of State not to do so. Given those comments, I hope that the noble Lord, Lord McKenzie, feels able to withdraw his amendment.
The noble Lord, Lord McKenzie, asked about progress on applications and decisions through the nationally significant infrastructure regime. Twenty applications have now gone all the way through the system and 19 have been granted consent, so that is a 95% approval rate. There was one refusal, which concerned the Preesall gas storage application. This project is being redetermined following judicial review. Four applications have been decided in 2014, with another nine expected, and 13 were decided in 2013. Two were decided in 2012 and one in 2011 through the Infrastructure Planning Commission. Therefore, the regime is being used, and we can see from the number of applications that the process is working. There are 56 applications in the pre-application phase and more in other parts of the system. I hope that gives the noble Lord the information he was looking for and that I have given him the reassurance he sought on this part of the Bill.
Lord McKenzie of Luton
I am grateful to the Minister for that explanation which dealt precisely with my narrow inquiry about the exercise of discretion. If I understood her correctly, it is clear that the Secretary of State’s permission will be needed if an applicant seeks to exercise discretion in this regard. The Minister gave a very helpful update on the statistics. It would also be helpful if at some point, not necessarily this afternoon, those figures could be broken down by sector or type of project and if a distinction could be made between those that arose in respect of the original construct of the infrastructure commission and those that fall within the expanded definitions and facilities in the Growth and Infrastructure Act. Having said that, I beg leave to withdraw the amendment.
“Requirement for planning permission
(1) Section 57 of the Town and Country Planning Act 1990 (requirement for planning permission) is amended as follows.
(2) In subsection (3) after “a local development order” insert “issued by the local planning authority”.
(3) After subsection (3) insert—
“(4) Where a local planning authority propose to make an order under this section they shall first prepare—
(a) a draft of the order; and(b) a statement of their reasons for making the order.(5) The statement of reasons shall contain—
(a) a description of the development which the order would permit; and(b) a plan or statement identifying the land to which the order would relate. (6) Where a local planning authority have prepared a draft local development order, they shall consult, in accordance with regulations, persons whose interests they consider would be affected by the order.””
Lord Tope
My Lords, this amendment stands in my name and the names of the noble Lords, Lord Davies of Oldham and Lord McKenzie of Luton, and would enable local authorities to set their own permitted development rights. I am grateful to have the support of the Labour Benches for this amendment. I take it to be a commitment on behalf of the Labour Party that this will become government policy, should it ever be in a position to make it so. As we all know, the current system is centrally set and nationally determined and local authorities have extremely limited opportunities to change or vary what is set down nationally.
The Minister has already said today, and on many occasions, and I know she firmly believes it, that the people best placed to take these decisions are local planning authorities. We heard this in an earlier debate this afternoon. Local planning authorities are in a position to know what local needs, priorities and circumstances are, they know best what is needed to determine and stimulate local growth, yet they do not have the opportunity to set their own permitted development rights. Surely, it must follow logically from all that we all say that local authorities should have the power and ability to set such rights themselves. That is the purpose of this amendment, and in view of what has been said in earlier debates today I am confident of its acceptance. I beg to move.
Lord McKenzie of Luton
My Lords, as the noble Lord, Lord Tope, indicated, we have added our names to this amendment and we support it. It took me back to a debate during the course of the Growth and Infrastructure Act when identical amendments were moved and rejected by the Government. The Government’s defence then was that the Article 4 direction would be a route that local authorities could use if they were not happy with what central government was doing. At that point, there was disagreement between the LGA and the Government about how user-friendly that route actually was. The Government were going to talk to the LGA to see whether those matters could be clarified, so it would be very helpful to know whether any clarification was forthcoming. In particular, there was an issue about how the Secretary of State should approach the use of Article 4. I refer to the debate on the Growth and Infrastructure Bill:
“Is it still the position that the Secretary of State’s general approach to making an Article 4 direction, as set out in paragraph 4.23 of planning policy guidance note 15—”
here I asked whether that policy guidance still existed—
“is that, ‘permitted development rights should not be withdrawn without clear justification’?”.—[Official Report, 12/3/2013; col. 195.]
It would be helpful to know whether that interpretation is still imposed upon the Secretary of State in dealing with any Article 4 direction.
Having said that and raised those inquiries, I thoroughly support the position of the noble Lord, Lord Tope.
Lord Jenkin of Roding
My Lords, this will be considerably shorter than the last intervention I made. I assure my noble friend Lord Tope that I think this is a good point. It will certainly have my support, and I look forward to hearing the Minister’s response.
Baroness Stowell of Beeston
My noble friend knows that the last thing I ever want to do is to disappoint him, but I think that he is not going to be as pleased with me on this occasion as he might be on others. However, that is only because this amendment replicates what is already set out in secondary legislation. I am pleased to say that local planning authorities already have the power to make local development orders, so it is not necessary to make this change. Similarly, there are powers for a local authority to remove national permitted development rights where it has concerns about the impact of permitted development rights locally. As we have already heard, this is achieved through an Article 4 direction and should be done in consultation with the local community.
The National Planning Policy Framework sets out that Article 4 directions should be limited to situations where they are necessary to protect local amenity or the well-being of the area. Article 4 directions should, therefore, be used sparingly as they remove relaxations which the Government have brought forward. These relaxations remove costs and burdens from local people and allow them the freedom and flexibility to make the best use of their properties. I know that there is a claim—noble Lords have repeated it today—that the Article 4 process is burdensome. However, we disagree. Rather it seeks to ensure that those whose permitted development rights are being removed are consulted and that there are safeguards against inappropriate use of the power. I do not think that there would be support for the reimposition of those burdens without proper consultation.
Lord Tope
I am grateful to the Minister for her reply and encouraging words. Clearly, I would like to take further advice and look more deeply at some of the things she said. Since the joyful days of the Growth and Infrastructure Bill, I have had some local experience of the use of Article 4. I have to say that it bore out all the things that I was saying because I was told that was what the situation was and I learnt from experience that that was the case. It is still far from satisfactory, but I am grateful to the Minister for what she has told us. I will look at this further with those who know better than I do. I beg leave to withdraw the amendment.
Lord McKenzie of Luton
“National infrastructure projects: new towns
(1) The objects of a development corporation established for the purpose of creating a new town shall be to secure the physical laying out of infrastructure and the long-term sustainable development of the new town.
(2) In this section, sustainable development means managing the use, development and protection of land and natural resources in a way which enables people and communities to provide for their legitimate social, economic and cultural wellbeing while sustaining the potential of future generations to meet their own needs.
(3) In achieving sustainable development, development corporations should—
(a) positively identify suitable land for development in line with the economic, social and environmental objectives so as to improve the quality of life, wellbeing and health of people and the community;(b) contribute to the sustainable economic development of the town;(c) contribute to the cultural and artistic development of the town;(d) protect and enhance the natural and historic environment;(e) contribute to mitigation of and adaptation of climate change consistent with the objectives of the Climate Change Act 2008;(f) promote high quality and inclusive design;(g) ensure that decision-making is open, transparent, participative and accountable; and(h) ensure that assets are managed in the long-term interest of the community.(4) In this section “infrastructure” includes—
(a) water, electricity, gas, telecommunications, sewerage and other services;(b) roads, railways and other transport facilities;(c) retail and other business facilities;(d) health, educational, employment and training facilities;(e) social, religious, recreational and cultural facilities;(f) green infrastructure and ecosystems;(g) cremation and burial facilities; and(h) community facilities not falling within paragraphs (a) to (f); and“land” is defined as including all the matters set out in the definition of “land” in Schedule 1 to the Interpretation Act 1978, and also housing including (where the context permits) any yard, garden, outhouses and appurtenances belonging to, or usually enjoyed with, the building or part of building concerned.”
Lord McKenzie of Luton
I am grateful to the TCPA for its enthusiastic counsel in drafting this amendment and for advising me on it.
Overall, we consider that the planning sections of the Infrastructure Bill are a lost opportunity to lay the foundations of a planning system that can help deliver the homes and places the nation deserves. This very much builds on the amendment tabled by the noble Lord, Lord Best. The Bill continues in the long line of measures which reduce the powers of local authorities in ways which in turn risk creating real impacts for individuals and communities. We will discuss Clause 20 shortly. Given the negative nature of the Bill, we propose to use this amendment as a vehicle for a much more positive debate about how planning could be made fit for purpose. We do this by seeking to insert a new clause which would amend the objectives of the new town development corporations. This allows for a more comprehensive debate on the principles and positive purpose that might drive the delivery of quality growth and new homes which is so vital to our nations. Both coalition parties, we understand, support new towns and garden cities—as, indeed, do we. We should be able to find common cause on these issues.
The proposed new clause flows out of the detailed research that the TCPA carried out on the measures necessary to make the existing new town legislation fit for purpose. The legislation, in the form of the New Towns Act 1981, is still in force and provides for the setting up of powerful new town development corporations which can drive delivery. The development corporation was the engine that drove the rapid deployment of the new town programme and had the following core powers: compulsory purchase of land where it could not be bought by voluntary agreement; the preparation of a master plan which, after public inquiry and approval by the Minister, would be the statutory development plan; the power to apply to the Minister for the equivalent of outlying planning permission for comprehensive tracts of the new town to control development—that is, to process planning applications; to deliver key utilities in partnership with the relevant agencies; to procure housing subsidised by government grant and other means; to act as a housing association in the management of housing; and to carry out any other activity necessary for the development of the town.
Although strong on delivery, therefore, the outcomes of new towns did not always reflect the highest design and quality standards. In addition, there is now a need to modernise the objectives of NTDCs to ensure that they have the visionary purpose to effect change while creating new opportunities for partnership and participation and a low-carbon future. Due partly to the nature of the new towns legislation, little of the high social ambition which drove the originators of the 1946 Act was reflected in the legal objectives of the development corporations. These were quite brief and mechanistic, referring only to the laying out and development of the new town.
There is therefore a risk that development corporations might see themselves as engineering departments rather than organisations engaged in the wider social enterprise of place-making. Over the past 30 years there has also been a wide recognition that planning has few, if any, outcome duties. This has in turn led to much criticism that planning has become a process without a purpose. New legal processes have been introduced to focus the system on sustainable development, climate change and good design, but they do not apply to development corporations because they are not local planning authorities.
The suggested new clause is designed to extend and modernise the list of objectives and duties of new town development corporations. In order to modernise the objectives, the first proposed new clause draws on the outcome duties in both the Planning and Compulsory Purchase Act 2004 and the Planning Act 2008, as well as the legislation that created the Homes and Communities Agency, which has statutory objectives that include people’s well-being, good design and sustainable development. The redrafted clause also introduces new and important obligations on the social and cultural as well as physical and economic development of the new town, through strengthening requirements for public participation. It also includes a new definition of “sustainable development” based on the successful wording of the New Zealand Act. I beg to move.
Lord Jenkin of Roding
My Lords, there is a lot to be said for the amendment. Indeed, it follows from what I said earlier this afternoon about the need for more local authority development corporations. I will not repeat that, but it was in the context of local housing estates, which the amendment is not specifically addressing.
My point in a sense supports the noble Lord, Lord McKenzie. This country has learnt a great deal about planning of new towns. I lived for some years not far from Harlow and, even 20 or 25 years after it was founded, there was still talk of what had become known as “new town blues”. I am looking at the noble Baroness, Lady Whitaker, who knows much more about this than I do. However, the new town blues were caused not just by the separation of families, when they went from crowded urban areas to rural areas outside the cities, but because those rural areas were designed with enormous spaces between different little bits of housing. Harlow was a very good example of that. There really could be almost no interaction between little local communities, which felt themselves very much cut off. No one had cars in those days; they relied on foot and bicycle, and whatever public transport might be provided. We have learnt an enormous amount since then. The design of more recent developments is, if I may put it this way, very much more user-friendly. I hope that we shall see that very much at Ebbsfleet. That helps local committees to gel and to develop a local identity. They left that behind when they moved from the cities and, often, city communities were divided as some went to some new towns and some to others.
I saw this a bit in Liverpool, where a lot of the Liverpool council development was in large, out-of-town housing estates that were often quite hideous, with a lot of huge, tall concrete blocks. I hope that I was instrumental in securing something for a group that was eventually called the Eldonians, a tight-knit community of people who were absolutely determined that that was not going to happen to them. Yes, there needed to be redevelopment, but we were able to secure that in a single site, fairly close to where they were already living. I was helped by the fact that the Tate and Lyle sugar factory had closed and that we therefore had a readily available site. To the fury of the Militant Tendency, as it then was, within the leadership of the Liverpool City Council, I was able to insist that that site went to the Eldonians. They have been very kind in their recognition of that ever since, and that community is still going strong.
This is what one has to do: to try to preserve communities, so that they can retain and build their identities to become what one would like to see—a really flourishing social unit. This country has learnt a lot about that. Regarding the development corporations in new towns to which this amendment speaks, I was urging earlier the inclusion of development corporations with the power to initiate substantial housing estates, with the necessary accompanying infrastructure. We are now much better at understanding this, and the planners and other people who have been involved with this deserve great credit. I hope that the Bill will lead to more of the same.
Baroness Andrews (Lab)
My Lords, it is a pleasure to follow the noble Lord, Lord Jenkin. He has said much more eloquently than I could what an extraordinarily important new clause this could be, were the Government to accept it. It really does reflect a very different approach to the creating of communities from the ones that inspired the new towns of the past. Those were, essentially, pragmatic attempts to rehouse populations which were in distress or in stress. We have a much more humane and intelligent appreciation of what it is to create communities these days. The noble Lord spoke eloquently about Liverpool but, in the case of new towns, one is of course creating a community. That means creating a sense of identity and belonging from the first steps up. In my opinion, it should begin with the nature of the community and the sort of infrastructure that sustains the community once it is in place.
That is why there is emphasis in this clause on key words such as, for example, “sustainable development”. That is one big change from the world that we were in 30 or 40 years ago when we were talking about growth and new towns. The notion of sustainability should underpin everything that we construct, whether in the demography that needs to be housed, the way in which we build or what sustains the community in terms of its well-being, such as the emphasis here on cultural and artistic provision, which is vital for creating a sense of belonging and opportunities for people to get to know each other and share a culture and indeed many different cultures.
Lord Tope
My Lords, I echo all that the previous speakers have said. I share the gratitude that the noble Lord, Lord McKenzie, expressed to the TCPA about the extremely important work that it has been doing on all this. Like other noble Lords, I had its briefing today and was quite struck by its comment,
“There is a risk that Development Corporations might see themselves as ‘engineering’ departments rather than organisations engaged in the wider social enterprise of place-making”.
As the noble Baroness, Lady Andrews, has just said, it is very important that we are not just creating new towns; I referred earlier to my preference for calling them “garden communities” rather than “garden cities”, for exactly that reason. We are seeking to create new communities, and a sense of place is fundamental to all communities, but perhaps more than ever to new communities where it may not be immediately obvious. That is enormously important. The place-making and social enterprise—actually, “social enterprise” is probably the wrong phrase in the current context—rather, the social aspects of creating new communities are, I would argue, at least as important in the longer term as creating the mechanical and technical infrastructure. That is obviously necessary—the engineering part of the work.
Whether or not the Minister is about to accept the amendment in its entirety I do not know, but I hope and believe that she will take very seriously the points that are intended here, and that we can use the opportunity of the Bill, during what is going to be quite a long progress through both Houses, to try to have something in the Bill that reflects at least the intent of the amendment and the excellent work that the TCPA is doing to help us to create not just new towns but new communities.
Baroness Whitaker (Lab)
My Lords, following the eloquent advocacy of my noble friend Lady Andrews and other noble Lords, I would just briefly like also to register that it seems extraordinary that the Government should not take the opportunity of this new clause to put flesh on their announced intention to make new towns. There are pitfalls if they do not, from the point of view of a lack of overall comprehensive design; a lack of vision—this new clause could propel vision; and, at least as important, a lack of participation on the part of the people affected. The new clause would leave all these problems behind and advance us into a period of proper place-making, to use the word employed by the noble Lord, Lord Tope, which I think stems from an earlier Administration.
Baroness Stowell of Beeston
My Lords, I am grateful to all noble Lords who contributed to this debate. I and the Government certainly share the vision that noble Lords expressed for great design and quality, and for the kind of communities that noble Lords talked about today. It is absolutely essential that in developing new places for people to live the kind of points raised in the debate today are very much reflected in the design and execution of those plans. However, it would be unhelpful to prescribe the objects of a new town development corporation in such detail as set out in the new clause put forward by the noble Lord, Lord McKenzie.
As the noble Lord said, the objects of the new town development corporations are set out in the New Towns Act 1981. They are quite simply to secure the laying out and development of the new town. We believe that that brevity is helpful because it allows the detailed objectives of development corporations to be established in each particular case, in consultation with the local area and reflecting local needs. Prescribing such detail in primary legislation takes away that opportunity.
I say to all noble Lords who have spoken today that the Government attach great importance to the design of the built environment. It is a key aspect of sustainable development and we have made that clear in the National Planning Policy Framework and our planning guidance. These make clear that local and neighbourhood plans should develop robust and comprehensive policies that set out the quality of development expected for the area. As I have already said, the proposed new clause would mean that sustainable development should be included in the new town development corporations’ objects. Although we strongly support the principle of sustainable development, we think that it is right that it is made clear in the National Planning Policy Framework. Making separate provision for one part of the planning system would serve only to dilute that clarity by defining sustainable development differently for different types of development.
It is worth reminding ourselves that no new town development corporations have been created since 1970. However, urban development corporations have been established more recently and the Government propose the establishment of a new one at Ebbsfleet. Unlike new town development corporations, an urban development corporation can be designated as the local planning authority for its area. Where this happens and it exercises functions in relation to local development documents, it is subject to the duty in the Planning and Compulsory Purchase Act 2004 to exercise those functions with the objective of contributing to the achievement of sustainable development.
In the context of Ebbsfleet, I can reassure noble Lords that we want to ensure that Ebbsfleet is a real place where people want to live and work. In setting the vision for Ebbsfleet Garden City, the urban development corporation will look closely at what garden city principles mean in an existing urban context, such as Ebbsfleet. It will work with local partners to support them in developing and delivering a high-quality settlement with locally available jobs and generous green space.
I acknowledge what the noble Baroness, Lady Andrews, said. My response to her and to others who have contributed today is that we absolutely share that fundamental principle of ensuring that, where new houses are built, communities are created which are properly designed and in which people want to live. However, we feel that prescribing this in primary legislation as the noble Lord has proposed is unnecessary, and I therefore urge him to withdraw his amendment.
Lord McKenzie of Luton
I start by thanking all noble Lords across the Committee who have spoken in support of this amendment. The Minister’s response does not altogether surprise me; it is where I thought the Government might be, but it is a pity that she is arguing for brevity. It is difficult to see what should be excluded or what anybody would want to remove from those objects and general powers of development corporations. They may wish to add to it; they may have a particular local focus on it, but that somebody should not want any of those is quite difficult to understand, although I understand where the Government are coming from.
I am grateful to my noble friend Lady Whitaker, who said that this is about having a vision for a place, a community and a town. The noble Lord, Lord Tope, focused on the point that this should not just be about a mechanistic, technical approach to building new developments; it has got to be something more fundamental. My noble friend Lady Andrews, with all her incredible wealth of experience, talked about planning as something which is creative and positive, not something which is mechanistic. She speaks with huge passion and experience on that issue. The noble Lord, Lord Jenkin, again speaking from a fantastic wealth of experience, made the point that things have moved on in recent years. There is the potential of a consensus to create something which may not be the precise wording here, but at least moves us on from where we are.
Would the Minister be prepared to meet the TCPA, just to talk through this issue, to see whether there is anything which can be created which does not necessarily pick up that precise wording, but seeks to retain the concept, the vision and the belief that we should be about more than just delivering bricks and mortar? I am sure that she meets them on a range of occasions. Would she be prepared to facilitate that, together with the TCPA?
Baroness Stowell of Beeston
Both I and my colleagues at the department are always open to meeting different people and I would never refuse a meeting, but if I or one of my colleagues were to agree to a meeting, it would be important for me to be clear at the start what the Government’s position is. I have outlined that today—but, on that basis, my door is always open to anybody who would like to come and talk to me.
Lord Jenkin of Roding
If I may intervene on what is probably the speech of the noble Lord, Lord McKenzie, one needs of course to understand the position of the Government, but I should have liked to hear the Minister say that she was prepared to listen to any proposals that are made and that she, or her colleague or whoever it might be, does not approach this with a completely closed mind? There is quite a lot in the clause with which I find myself in some sympathy. I described a few moments ago how my experience led me to that.
I hope that we may have an opportunity to revisit this at a later stage. In the mean time, I am very grateful to my noble friend for what she has said. I do not want necessarily to be part of determining it—it is for the TCPA, which really knows about these things—but I hope she will meet that body, and do so with an open mind. I would find that very encouraging.
Baroness Stowell of Beeston
I hope noble Lords will forgive me if I respond to my noble friend. He is someone for whom I have a huge amount of respect. I acknowledge just how experienced he is as a previous Secretary of State. He will know and understand the limitations I have when I stand at the Dispatch Box. When I meet anybody, I am willing to listen to what they have to say, but I feel I am duty bound, in agreeing to a meeting, to make clear what my starting position would be. I am always, of course, open-minded, as the noble Baroness, Lady Andrews, was generous enough to acknowledge in her contribution to the debate.
Lord McKenzie of Luton
I am grateful to the Minister for that assurance about the prospect of a meeting, and to the noble Lord, Lord Jenkin. I hope that noble Lords who have been involved in the debate today might join that meeting. I hope we can bring something back at a later stage in the Bill to keep this issue alive, notwithstanding what the Government have said today. It is an opportunity. These Bills do not come up—well, I suppose infrastructure Bills do come up quite frequently, actually; sometimes more frequently than one would want. Maybe we will have another one next year. I am grateful to the Minister and beg leave to withdraw the amendment.
Lord McKenzie of Luton
“except that it does not apply to any condition designed to mitigate direct impacts on public amenity, health or well-being.”
Lord McKenzie of Luton
My Lords, in moving Amendment 79D, I will speak to the other amendments and on whether the clause should stand part of the Bill. In so far as there are issues to address about the discharge of planning permissions, it is suggested that these can be dealt with in another way than that provided for in the Bill. As it stands, the clause is yet another example of central government disempowering local planning authorities.
The ability to impose conditions is an important part of the planning process. They are an alternative to outright refusal of planning permission and therefore an aid to development. By potentially mitigating the adverse effects of the development, they can enable it to proceed. If conditions are imposed, it is important that they are properly discharged, otherwise the system is undermined. Of course, conditions should not be spurious; they should be carefully justified and relate to clear planning issues and policy. They are usually an interlocking set of measures designed to ensure that the development does not harm the public interest.
The NPPF states that:
“Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects”.
The Planning Portal has compiled a set of model planning conditions. There is a right of appeal against what might be considered an inappropriate condition. By way of example, conditions might include requirements for a development to be completed in accordance with lifetime homes standards; for a commercial premises to have cleaning and extraction equipment approved by the LPA; for a restriction on the activity that can be carried out in or from particular premises; or for the protection of, say, an archaeological site. To have these conditions unfulfilled could materially affect the well-being of individuals and negate the planning process.
Of course, local planning authorities should not be entitled to sit and ignore and not sign off situations where conditions have been properly fulfilled, but the route of deemed consent is a heavy-handed and dangerous remedy. We have no idea how it is to be implemented. For a start, the deeming process will proceed by way of a development order, which is subject only to the negative parliamentary procedure. There does not appear to be any provision requiring an applicant to have attempted or succeeded in discharging the conditions for the deeming to be applied—hence Amendment 80. No judgment is required of the Secretary of State as to whether any adverse consequences for the community would arise from a discharge—hence Amendment 81. There are lessening opportunities to mitigate the adverse impacts on public amenities, health and well-being—hence Amendment 79D. There seems to be the prospect that the applicant himself may be given the opportunity to decide when the deemed discharge is to take effect, and no rationale is offered for this—hence Amendment 82. There is no certain relief from the deeming or any delays in the local planning authority responding within the given period that are wholly or partly caused by statutory consultees, the applicant or indeed anyone else. In short, we have no idea how this proposition is to be applied, and we trust that the Minister will be able to give us at least some comfort today.
If a development has been frustrated by unreasonable conditions in the first place, and a failure to address their discharge in the second, it is of course reasonable that the matter is addressed. But the work of the LGA, in conjunction with the BPF, the Planning Officers Society and the Home Builders Federation, should clearly be given a chance before these draconian measures are taken.
In conclusion, perhaps I might ask some questions of the Minister. Could this lead to conditions not having to be implemented or acted on? If so, in what circumstances can that happen? For example, in response to the Killian Pretty report, the then Government identified the use of approved contractors and a fast-track appeals process for matters concerned only with the discharge of conditions. Have the Government given any further consideration to that route, rather than the one adopted in this clause? What research have the Government undertaken to determine why local authorities are not responding to the application for consent, agreement or approval in due time? What is the extent of this failure? In how many local planning authorities has this happened, and how frequently? What consideration have the Government given to the potential negative effect of this clause in discouraging some essential conditions on the basis that the local planning authority has the capacity to deal only with other, fewer conditions—thereby impacting on the quality of development? What is the Government’s assessment of the capacity of local planning authority departments to deal with this, given the huge reductions in funding that local authorities have had to endure?
These are hugely important issues that go to the heart of our planning process, and I look forward to the support of other noble Lords and the Minister’s response. I beg to move.
Baroness Andrews
My Lords, it is with some concern that I rise to address these amendments and to support the thoughtful and measured way in which my noble friend has introduced them, including the debate on whether the clause should stand part of the Bill. I shall focus on a specific aspect that comes within the scope of the clause stand-part debate.
I am very concerned about this, and I speak, in part, on behalf of a wide range of heritage organisations. I no longer have a hat on, and therefore no longer have an interest to declare. I am, however, still very engaged with the work of organisations ranging from English Heritage and the Heritage Alliance to the British Archaeological Association and many others. Their concerns exemplify some of the major concerns that have been raised by noble Lords about the impact of the clause as a whole. These organisations understand very well how easy it is to destabilise the planning system. They were engaged first-hand with the creation of the National Planning Policy Framework, with all the checks and balances that took a long time to work out. It is, in fact, an important and delicate balance, which we would be wise to ensure that we stick to. Of course, they are also concerned, not just with the monuments, but with the everyday, ordinary environments in which we live in this country: our towns, villages and everywhere else. The fact that Clause 20 has raised such profound concerns among these senior organisations should give the Government pause for thought.
I see in this clause yet another attempt to wrench the planning system around in a way that is deeply inappropriate. Over the past few years we have seen the Government reach for the planning system as a recourse and sometimes as a first resort, to try to tackle problems which are far more fundamental, being rooted in economic and social problems. Planning is not the problem. I am afraid that I see this as another casual, Pavlovian response to problems which have their roots in the lack of capacity of local authorities and the complexity of what it takes to have a balanced planning system. This clause will have very perverse—even disastrous—consequences, and my noble friends are quite right to speak with seriousness about it.
I understand the frustration that comes from delays in the system and that the provision is intended to address the stalemate of “no response” from local authorities. But my goodness, what a hammer has been picked up here. It is so broadly cast at the moment, as my noble friend said, and it is not at all obvious what safeguards are to be put in place. I say to the Government: given what local authorities, developers and communities are facing in the maelstrom of planning at the moment, yet another element of uncertainty is really bad news.
I will explain how I think that will affect what happens to what we call heritage protection, which is shorthand for ensuring that our historical environment is accommodated within our future plans and contributes to them in an economic and social way. Much of our heritage protection is effected through conditions attached to outline planning permission, because it is detailed work. Archaeological surveys and design detailing of extensions and new buildings—for example, to cathedrals or to some of our historic monuments—are very often secured by conditions. The department knows this very well. They are fundamental to heritage protection—to what we end up with: what it looks like, what it feels like and what it will do. That is what is at risk here. I therefore ask the noble Lord: what will be the situation vis-à-vis outline planning permission? Can we take it that the situation will be different in the future in relation to both outline planning permission and conditions? Can I please have a clear answer on that?
Of course, we are aware of the need for best process. However, we have to ensure that the process does not sacrifice the best outcomes for what we all want by means of the outcome of the eventual planning decision. Therefore, while it is the applicant’s right to have their application for discharge of the condition dealt with fairly and expeditiously, clearly the historic environment agencies would be very concerned by a provision that meant simply that if the applicant heard nothing back, the condition was discharged.
We all know what it means to be overwhelmed by work. The volume of letters and e-mails we get in this House alone is not as great as it is for Ministers but we know what the noble Lord means when he says that things get overlooked and slip by. As my noble friend said, we are looking at issues of capacity here. Perhaps the Minister could write to tell me how many planning officers have been lost from local authorities across the country. That is a bit onerous, but I know that surveys have been carried out by the Local Government Association, for example, and by English Heritage. Perhaps the Minister could help us to focus on exactly what lack of capacity we are looking at. We know that they have lost many senior and deeply experienced staff; there has been a sharing of jobs; and altogether, a huge strain has been placed on planning departments in recent years. I am not making that an excuse for shoddy work, but it is all too easy for planning departments simply not to be able to do things in the time allocated these days, and there is a huge amount of pressure on them—we must realise that.
The sector would certainly like clarification that safeguards will be put in place to protect the historic environment from any unintended consequences arising from this clause. Any system that allows decisions by default on such important matters is very perilous. Our historical environment is extremely fragile. Once it is gone, it is gone. The safeguards put forward in some of these amendments are certainly worth looking at. They include allowing the LPA to extend time for consideration where there is reasonable justification, or a second notice requirement from the applicants subsequent to the application to invoke the default provision if they have heard nothing back. The latter is to reduce the risk of the application having been overlooked.
We are determined to pursue this clause and its implications, for very serious reasons. I have spoken about the historic environment, but the same problems apply to the natural environment and many other aspects of decision-making where everything depends on the quality of the judgment and the detail that is set out in conditions, because that is what makes the difference between good planning and bad planning, good design and bad design and places that are worth living in and places where we think, “Why on earth did they let that happen?”. I hope the Minister will take that seriously.
Lord Jenkin of Roding
When I read this clause and, in particular, studied the Explanatory Notes my instinct was that there seemed to be some sense in this. Where these things are held up for a long period, it frustrates development. Anxieties have been expressed. They have been expressed to me by the Local Government Association. The only point I wish to make to my noble friend is about whether we could have some idea of what an order under this clause would look like when we come back to this on Report. I made this point to my noble friend Lady Kramer about some of the roads legislation we considered earlier in the Bill, and I make it now to my noble friend Lady Stowell. It would be really helpful to the House, as it will be on Report, to have before it the sort of order that would be made under this Bill. This Bill gives a power to make orders. I am not at all sure what those orders would look like.
Lord Whitty (Lab)
My name is attached to the clause stand part provision. While I think some of the amendments in the name of my noble friends would improve the situation, I think the Government need to think again on this. The Minister should take advice from the noble Lord, Lord Jenkin, and look more closely at what circumstances and processes the problem that the Government are trying to address needs. As it stands, this is a pretty draconian and open-ended provision. Clearly, for all sorts of reasons there can be delays in the local authority being able to assess whether a condition has been met. The conditions can be quite complex because they are not only in the area of heritage, as my noble friend Lady Andrews has said, but can relate to the natural environment, social implications, traffic implications and so forth. These things are not necessarily easily dealt with, particularly by hard-pressed planning departments. As it stands, the clause would allow the Secretary of State to come to this Parliament the day after the period of the condition lapsed with an order to override the non-decision of the local authority. That seems too harsh. It is important that there is some reserve power for the Secretary of State. I understand why the Government are looking for it, but it should be exercised with discretion. Frankly, this clause gives far too much power to the Secretary of State to interfere in what essentially must be a local decision which understands the complexity of local circumstances. This clause gives no indication of what should trigger the Secretary of State’s intervention and the suspicion must be—I put it at its most extreme, but nevertheless—that a developer who happens to be close to the Minister and is frustrated by the delay tips the Secretary of State off and we have a complete override of our planning process as a result, subject only to the negative procedure of this House and another place. That is too open-ended and I hope that the Government will think again between now and when we come back on this.
I should have declared an interest as a vice-president of the LGA. The LGA has great disquiet about this, and that is shared by a large number of other organisations which are engaged in the planning process. I hope that the Minister will be able to give us something on this and that she will have another look at it before we return.
Lord Tope
My Lords, I am reminded that I should probably also declare an interest as a vice-president of the LGA, although I think that that is quite well known by now.
Misgivings have already been expressed this afternoon, and I hope that the Minister will go a long way to reassure all of us on this. I would like to understand better the need for this legislation. I do not know to what extent failure to discharge planning conditions is a problem. What is the evidence of the extent to which there is a problem? I am sure that there must be occasions when local authorities fail to meet the time limit. Very likely, as the noble Baroness said, that is because there has been a huge reduction in the size of planning departments. That was a problem long before the budget cuts started. Too many planning officers were going off to much better paid jobs in the private sector. With the budget cuts, the planning department has been no more exempt from downsizing staff numbers than any other part of a local authority, and that has probably added to it. That may be in part a cause of a problem but I would like to understand the extent to which there is a problem. What evidence is there of the problem that we are trying to solve?
I then come to the question of whether this is the best or the most necessary solution to the problem. I can certainly understand that if there really is a problem—if local authorities are, to any significant extent, simply failing to respond and that is holding up the necessary work—then action needs to be taken. Possibly, in extremis, this is the right action, but let us understand better the extent and cause of the problem that we are dealing with.
A number of questions have already been asked but when the Minister responds perhaps I may seek an answer to another point on the scope of what we are dealing with. Can we be clear that we are talking here about a failure to respond and not a failure to agree? That is quite important because it deals with part of my concern about the extent of the problem. The Minister referred to the very pleasing number of planning consents that are being granted. I have to say that I am much more interested in the number of starts and even more interested in the number of completions rather than the number of consents that are granted, but I hope that it is an indicator that we are moving in the right direction. However, if you ask developers what the delays in implementing planning consents are down to—sometimes they are accused of having land banks and so on, which they all deny—the knee-jerk answer is always “The planning system”, but when you probe a bit more, it is not quite that simple. Therefore, I should like to be reassured that we have evidence that there is a problem here and that we are not just responding to the easy answer that usually comes from developers about the planning system.
As I said, I want to be clear that what we are dealing with here is a lack of response, not a lack of agreement. Part of the concern is that if a developer is not entirely happy with the planning conditions—that is not unknown—that can be used as a means of getting round, wriggling out of or avoiding a consent. I am sure that that is not the intention here but it is something that we all want to ensure is avoided.
There is another thing that I am not clear about. If the Secretary of State gives deemed consent to the discharge of planning conditions but the local authority does not agree with that decision—it may be the local authority’s fault for not responding quickly enough, but one of the reasons for it not responding quickly enough may be that the development is not as straightforward as the developer suggested—can it still use an enforcement order to apply those conditions? Does that happen? I do not know, but I would like to know whether it is still available or if it is also to be taken away. We all have concerns about the detail here, as we always do when more power is given to Secretaries of State. Are we to have secondary legislation that will set out the scope and circumstances of all this? I would assume that we are. If so, when are we likely to be able to see that legislation in draft?
While I do not have quite the strong hostility to this that the Opposition have expressed, I certainly share the misgivings and I wonder whether we are using a sledgehammer to crack a nut that could be better dealt with in a simpler and more straightforward way through discussion, negotiation and agreement—and, frankly, although I never thought I would say it, with more planners.
Baroness Donaghy
My Lords, I do not have the expertise of other noble Lords in this area, but I want to bring in the human element, which perhaps needs to be emphasised around this Judge Jeffreys clause. We need a balance between the needs of the entrepreneur and developer and the individual whose life is impacted by these proposals. We need to think about the protection of the individual. I and, I am sure, other noble Lords in this Room know how miserable it is when something is happening next door over which you do not feel you have any control. It might be an overlarge extension that cuts out the daylight from a much loved garden. The impact on an individual is greatly underestimated by the strong lobby that surrounds deregulation. What consideration has been given to individual rights and community cohesion because these things are extremely important?
Baroness Stowell of Beeston
My Lords, I am grateful to all noble Lords, but I am particularly grateful to my noble friend Lord Tope for asking me to be clear from the outset on what the Government intend in Clause 20 and why we believe that it is necessary. It is important that I start there before addressing some of the concerns which have been expressed about how we expect this to operate. I hope that, by responding in some detail today, I can go a long way towards reassuring noble Lords. I have quite a lot of information to share which addresses directly some of the points that have legitimately been made in the debate.
This provision is about ensuring that local authorities hit the deadlines they are already working towards, thus providing the applicant with greater certainty about when a decision can be expected. Unfortunately, we find that in too many instances local planning authorities are not dealing with applications to discharge conditions in a timely manner. The impact of these delays is experienced by all types of applicants, from those building a small development to people who are taking forward a major housing scheme. The impact is most acute where the local planning authority has imposed a pre-commencement condition which prevents any start to the work on site until a further detail is agreed, but it then fails to deal with the matter efficiently. Before I go any further, I want to make it absolutely clear for the record that this clause is all about the conditions that are applied once an application has been given planning approval. This is not about anything to do with decisions before approval is granted; this is about conditions that are attached when a local authority has already decided that something should go ahead. It is at that stage of the process, not before a decision is made to say yes.
Baroness Andrews
I am very grateful for that useful information, and it is good news about the consultation process, but in relation to the question I asked about the number of planners who have been lost, the Minister put a great deal of emphasis on the Killian Pretty review, which was published five years ago. When she comes back to me with those statistics, will she break them down so that we can see the rate of attrition among planners, before and after Killian Pretty, and have some sort of time series? In relation to the questions raised by the noble Lord, Lord Tope, about the evidence, did the Killian Pretty review say why it thought these delays were occurring? There is an absence of hard evidence of what is going wrong in the system. What is the problem we are trying to solve? That is what the Committee is keen to get to the bottom of. Did the Killian Pretty review recommend this as a solution, or is it a solution that has been generated by the department?
Baroness Stowell of Beeston
I shall see what further information I am able to provide to the noble Baroness following today’s debate. I do not know how much I can provide.
Baroness Stowell of Beeston
I will certainly see what is available. Fundamentally—not to pre-empt the further research I shall do—I think the evidence we have gathered is that a huge amount of effort goes into the process of deciding whether something should receive planning permission, but the conditions post that planning permission are not attracting the priority and importance that we need them to have once it has been decided that something should be built. It is as basic as that. We have already talked about the way we all share a common interest in seeing supply coming through more quickly. This is an area where we think there is scope for improvement. With proper safeguards in place, the measures that we are putting forward will go a long way to address a problem that clearly exists.
Lord Jenkin of Roding
I am extremely grateful for the announcement that there is to be a consultation on this. Will the Minister give us an assurance that the Government’s response to the consultation will come well before we reach Report on this Bill?
Lord Tope
I was going to ask the same question. I am grateful to the Minister for taking some time to explain and try to reassure us. I was very pleased, but not surprised, to hear about the consultation. We look forward to seeing that in some detail. What is of particular relevance to this Committee and to us is that we know the outcome of the consultation and, particularly, the Government’s likely response to that outcome in time for the Bill’s next stage in this House. If the Minister is able to give us that reassurance, we will go away a little less unhappy.
Baroness Stowell of Beeston
I am always eager to make sure that noble Lords do not leave here unhappy. On this occasion, and especially having felt that I was not doing what I always seek to do with my noble friend, I can confirm that the Government will respond to the consultation before we get to Report. That response will be available.
Lord McKenzie of Luton
I thank the Minister for her detailed and full response to the range of points that were raised. Clearly, we need to look at the record and reflect on our concerns and the extent to which they may have been met by what the Minister said. I, too, had a question on the consultation but I am reassured to know that we will see the response by the time we come back at the end of the summer.
We probably need to spend some more time on the issues around Killian Pretty. The deeming of an application of conditions was only one of the possible solutions recommended for tardiness in the discharge of conditions. I asked why the Government did not pursue the other two rather than adopting the mechanism in the Bill. Like my noble friend Lady Andrews, I am still not clear about the reasons for the extent of the tardiness, if there is tardiness, and why it is happening. The noble Baroness said that this issue does not have the priority that getting permission has, and that therefore it sort of drifts. That seemed to be the import of what she was suggesting. We would like to drill into that a bit further.
I thank all noble Lords who have spoken on this amendment. They raised a range of concerns, which may have been satisfied to a greater or lesser extent—or not at all—by the Minister’s response. My noble friend Lord Whitty certainly expressed concern about the draconian nature of the provision. Even given its safeguards, it is a powerful tool which the Government are deploying. Like the noble Lord, Lord Jenkin, I imagine from what has been said that we will be able to see at least a copy of a draft order, presumably, as part of the consultation response when we come back after the summer. My noble friend Lady Andrews raised important issues around safeguards for heritage. Again, I guess we will have to see the extent to which they are satisfied in practice. My noble friend Lady Donaghy made a powerful point about the well-being of individuals and community cohesion, and whether this provision might disrupt that.
I think that the noble Lord, Lord Tope, got an answer to his question on whether this is a case of failure to respond or failure to agree. It is clearly the former, not the latter. Doubtless, he is reassured by that but, again, he stressed the need for evidence. This has been a helpful debate. I will, of course, withdraw the amendment as we are, after all, in the Moses Room, but we will need to reflect on the Minister’s response as I am not sure that it has dealt with all our concerns. I hope that some of those concerns will be alleviated by the process before Report. I cannot guarantee that they will all be alleviated, so we may return to the issue. Having said that, I beg leave to withdraw the amendment.
“Board of development corporations: membership
The board of development corporations established by the Secretary of State shall include at least one local authority elected member who shall have full voting rights.”
Lord Tope
My Lords, in moving Amendment 83A, I wish to speak also to Amendment 83C, with which it is grouped. In many ways we now return to the debate we had on the amendment proposed by the noble Lord, Lord Best, and the question asked by the noble Lord, Lord Jenkin, about who would implement large-scale housing developments. Certainly, one solution that was offered was that of local development corporations. The Mayor of London already has that power as regards mayoral development corporations. This amendment seeks to extend that possibility to the rest of the country.
At this hour, I do not need to go into great detail as it is fairly obvious that Amendment 83C speaks for itself. It seeks to enable the Secretary of State to create local development corporations at the request of local authorities. Amendment 83A requires that any such development corporations so established,
“shall include at least one local authority elected member who shall have full voting rights”.
I hope that is self-evident and that it would happen anyway. I move that amendment as a probing amendment at this stage but hope to receive at least an encouraging response from the Minister. I hope that she and noble Lords opposite will at least support the intentions here. I beg to move.
Lord Best
My Lords, I declare the interest that I did not need to declare in my previous amendment, which is that I am president of the Local Government Association, which supports both these amendments. I see them as complementary to our earlier debate on nationally significant infrastructure projects.
I very much hope that wherever a local authority wants to get on with it and do these things, we should give it every possible encouragement. I hope that these amendments are both acceptable to the Minister but would just add that it is likely that housing associations would play a very significant role in the development corporations. Many local authorities will not themselves be undertaking development on such a scale, and co-operation and partnership with housing associations will also be incredibly important in making the development corporations work.
Lord McKenzie of Luton
My Lords, we are happy to support these amendments. I say only, in relation to the proposal to have one local authority elected member, that the key thing is not so much status on a board and voting rights but the imperative of engaging with the local authority. That is probably behind the amendments, which I am happy to support.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble friend Lord Tope for explaining the background to these amendments. As I said in response to my noble friend Lord Jenkin in an earlier debate, it is not that the Government do not support the purpose of what a local development corporation could achieve in terms of what a local authority could get from that.
We believe that what a local development corporation could achieve is possible for local authorities to do already. They already have plan-making and development control powers for their areas and powers to acquire land compulsorily where necessary. Should they wish to focus on particular geographic areas, they can, under their general powers of competence—new powers brought in by this Government—make appropriate arrangements to do so, whether informally through a sub-committee or through a formal structure such as a limited company. For example, Liverpool has set up a mayoral development corporation to drive growth and development in the city without there needing to be any specific primary legislation providing for this. Where local authorities want to work together to secure the development of an area that crosses local authority boundaries, they are able to pool their planning powers so that decisions about that area can be taken in one place.
It is quite a straightforward measure but I feel that, as I have already explained, because the powers are already there for local authorities to act in this way, I have very little more to add to that, really, in responding to the debate.
Lord McKenzie of Luton
Will the Minister just explain again? Are we saying that any powers that could accrue and be put in place for a local development corporation are, in total, otherwise available to a local authority on an individual or a joint basis? Is that what the Minister is saying?
Baroness Stowell of Beeston
Will the noble Lord clarify what he means by joint?
Lord McKenzie of Luton
I thought the Minister said it is possible for local authorities to do certain things together with other authorities in terms of planning powers; they could share those. Is that the totality of the powers that a local development corporation could have available, or are there things that are excluded?
Baroness Stowell of Beeston
I hope that my noble friend, Lord Tope, will forgive me if I have in any way short-changed him in responding to this. I felt that I did not want to go off into great detail, as it seemed quite straightforward. I can also say to the noble Lord, Lord McKenzie, that the answer to his question is yes. They have the powers available and they can work together jointly, as I have described. There is a principle in what the noble Lord is seeking to achieve through this. It is available and possible; they can do it and there is nothing standing in their way to take advantage of the powers that already exist.
Lord McKenzie of Luton
If I may ask one further question, would a local development corporation be in a position to hold its own assets, effectively through a corporate structure? Would that be different to how a local authority might hold them?
Baroness Stowell of Beeston
Does the noble Lord mean to ask whether a local development corporation would have greater powers? Based on the information I have and the answers I have already given, I think the answer to that has to be no. They would not have any additional powers. As I said earlier, the local authorities can set up a limited company. That is available to them; in Liverpool, they have already set up a mayoral development corporation to deliver what this amendment seeks to achieve.
Lord McKenzie of Luton
So just to be clear, they could set up a local development corporation.
“Custom build housing
(1) Local authorities may make provision for custom build housing through the assembly of land within their area.
(2) Local authorities may charge a fee for this activity from interested parties to recover their costs.”
Lord Tope
My Lords, I have tabled Amendment 83B to enable us to have what I hope will be a short but interesting debate on custom-build housing. This will give the Minister an opportunity to respond with examples of the Government’s enthusiasm for it, which I know is there. I am conscious that this time on a Thursday evening is probably not the best time to initiate such an enthusiastic debate. I am not suggesting for one moment that this is the answer to the housing crisis we discussed earlier today. Plainly, it is not but it is a small and useful part of the answer. There is a growing interest in custom-build housing so perhaps I should be clear for the record what is meant by that. It includes both self-build housing, where the owner builds it himself, and those where individual commissions for building are of a house. I think that the phrase custom-build housing has now been adopted to cover both.
The LGA tells me that one in 10 new houses in the UK is custom-built. If that is the case, as I am sure it is, it is a small but significant part. It is one which is growing and in which there is considerable interest. My part of the Government are certainly very keen to encourage it and if this fairly simple amendment—which, as I said, was intended to create a debate—were enacted it would encourage local authorities to make provision for custom-build housing in their assembly of land. It would give further stimulus and encouragement to what is, as I say, a growing market and make a contribution—perhaps a relatively small contribution but a useful one—to meeting the housing need. It would also meet it in a way which most directly meets the needs of those who wish to use that housing, because it is their housing in every sense of the word. With that brief explanation and introduction, I beg to move.
Lord Best
I will not prolong the debate late on a Thursday, but I add my support to this amendment and note again that the LGA is keen on it. The major housebuilders have moved up from building 46% of the nation’s housing to building 70%. We are becoming incredibly dependent on a handful of very large housebuilders and we need to get back to having the SMEs, the small and medium-sized housebuilders, getting back into business. Many were wiped out during the credit crunch, the recession, and we need them back again. This is a way of ensuring that they can come back, because what they lack is the opportunity to get their hands on land. This is made easy for them by the use of the custom-build technique and this amendment would help in that process. In Germany, they build something over 40% of all their housing on this basis of land being assembled and housebuilders building sometimes a single house but sometimes several houses on the plots that are made available.
There is a slightly sinister aspect to the bringing back of the SME housebuilders, which is the notion that the smaller housebuilders and those developing smaller sites—smaller housebuilders and smaller sites often go closely together, because the big players do not want to deal with small sites—would not in future have a requirement for the provision of affordable housing attached to the consent. It is a government concept, which has yet to be enshrined in any way but is subject to consultation, that sites with perhaps fewer than 10 homes would not be required to have any affordable housing within the mix. One might think that with 10 homes that does not much matter, but in rural areas nearly all the village schemes for affordable housing for local people are of fewer than 10 homes. Something like 70% of all rural schemes are of fewer than 10 homes. The thought that this will help small housebuilders to do more is misguided.
It is the land, which is the subject of this amendment, which is preventing the small players doing the kind of housebuilding they used to do. They cannot get their hands on sites. It is not that they need to have special concessions and reduce the amount of affordable housing that they build, just as it is not the case that smaller schemes should have the requirements removed from them for sustainable housing for the move towards carbon neutrality by 2016. This amendment seeks to bring back those small and medium-sized housebuilders. Those amendments which seek ways of lowering standards or of removing the requirement for affordability are missing the point. It is this one which would help bring back those housebuilders in such a way that we do not make any sacrifices in terms of quality.
Lord McKenzie of Luton
My Lords, I am happy to support this amendment and I support the points made by the noble Lord, Lord Best. Doubtless, the Government will make reference to their custom-build fund, which was announced a couple of weeks ago. As for our plans for custom build, we support an actual requirement on local authorities to include a higher proportion of small sites in their five-year land supply, in order to boost small and custom build, and to guarantee access to public land for smaller firms and custom builders. As I think I said before, to make sure that we give people the chance to sign up to a waiting list for custom build, co-operative homes or community land, trust projects with local people have been the priority. We are certainly supportive of custom build, but we await with some trepidation the outcome of the Section 106 consultation for smaller sites.
Baroness Stowell of Beeston
My Lords, I am very grateful to my noble friend Lord Tope for tabling his amendment. This is, as he suggested, not because I think it is necessary in order to achieve an increase in custom build, but because it provides us with an opportunity to discuss and debate this important matter. This Government very much support custom build and are doing a lot to enable it. The noble Lord, Lord McKenzie, outlined the way the Opposition propose to approach this issue. However, it is worth noting that, sadly, when they were in government there was no advancement in this area, so we have some ground to make up.
Finding a suitable building plot remains the single biggest barrier holding back thousands of new projects every year. Of course, some councils already provide land for custom build. For example, at Bicester, Cherwell District Council is bringing forward land for up to 1,900 custom-build homes. However, the Government want to do more to help custom builders and support this growing industry. I note what the noble Lord, Lord Best, said. This is an important way of encouraging those smaller building firms as well. That is why we announced a further package of measures in the Budget to tackle this problem. Last week, we invited local authorities to apply to become right to build vanguards. Later this year, the Government will consult on creating the new right to build, which will give custom builders the opportunity to buy suitable shovel-ready plots of land.
Local authorities are already required by the National Planning Policy Framework to assess and plan for their housing needs and our planning guidance makes clear that this should include people who want to build their own homes. Those authorities forging ahead on custom build show that they already have the powers they need to support custom building. They can also already recover the costs of sales. Stoke-on-Trent City Council is doing just that and other authorities such as Cherwell, as I indicated, plan to do the same. The Government are keen to continue to consider what we can do to support custom builders but, as I said, I do not feel that this particular amendment is necessary to do that. I wholeheartedly agree with my noble friend that we want to see more local authorities doing more to support custom build.
The other thing is that most noble Lords who contributed to the debates this afternoon are more experienced in the field of housebuilding and planning than I am. However, my father worked in the building trade and I feel very much that, when we talk about custom build, we should be careful to ensure that we paint a picture to people that it is not just the preserve of a small minority or a certain kind of people. Custom build should be available to everybody. With the measures the Government are putting in place, we are firmly on the path to realising that ambition. I am grateful to my noble friend Lord Tope for giving us this opportunity to discuss this matter, albeit briefly, but I hope he will none the less withdraw his amendment.
Lord Tope
My Lords, I am particularly grateful to the noble Lord, Lord Best, for his eloquent support. He is much more knowledgeable on the subject than I and he explained it very well. I am also grateful to the noble Lord, Lord McKenzie, for his support, too, and to the Minister for recognising that I put the amendment down to enable the debate and not with any intention of pressing it to a vote—not that I can—or expectation that it would appear in the Bill.
We have had a short debate, but it is important that we were able raise an issue that will be of growing importance. The Minister made some personal family comments. Actually, a few weeks ago I visited a house in Glastonbury that I had not known about before but which was built by my grandfather’s nephew. He was a small builder and built that house so that each of its four walls was in a very different style. It was built at the turn of the century and was a slightly odd-looking house, but I guess that it must have been one of the original show houses. You would visit the house and choose which type of stonework you wanted. It is now used as a bed and breakfast and if any noble Lord wants the details I am happy to give them. In the mean time, I beg leave to withdraw the amendment.
House of Lords
European Commission: UK Member
(9 years, 10 months ago)
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Lord Dykes
To ask Her Majesty’s Government when they expect to announce the name of the next United Kingdom member of the European Commission.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con)
My Lords, as set out in the treaties, Commission portfolios will be allocated by the Commission President Designate to those nominated by member states and agreed by common accord in the Council. We expect the European Parliament to confirm Mr Juncker’s appointment as President Designate on 15 July. The Commission as a whole will then be confirmed by the European Parliament in the autumn.
Lord Dykes (LD)
With the wise reminder last week of the noble Lord, Lord Kinnock, should not HMG deliberately and carefully make sure that they choose an ideal candidate on this occasion, because of the urgent matters in hand for the European Commissioner? The candidate should be an articulate, international, sagacious, knowledgeable person—maybe female again, like her predecessor—someone who actually likes the European Union and working with people and who likes foreigners and speaks foreign languages. As that would of course narrow down the field if it is a Conservative nominee, what about a Liberal Democrat one? We are the only party that stood up for Europe at the last election.
Baroness Warsi
Possibly even from Yorkshire, my Lords. As to the serious part of my noble friend’s question, we need to make sure that our Commissioner candidate understands the changing role of the European Union, the need for reform and the fact that the Commissioner has to act in a way that benefits member states and the European Union as a whole. I can assure my noble friend, and indeed the House, that the Prime Minister has a line-up of very strong candidates.
Lord Pearson of Rannoch (UKIP)
My Lords, are the Government aware that our new Commissioner will have to swear sole allegiance to the European Union, ignoring our national interest?
Lord Pearson of Rannoch
Actually it is true; it is in the treaties. Does that not rule out privy counsellors, who have taken an oath of sole allegiance to the Queen?
Baroness Warsi
The noble Lord will be aware that a number of privy counsellors have served as Commissioners and they have managed to serve incredibly well.
Lord Tomlinson (Lab)
Does the noble Baroness agree that one of the qualities that our Commissioner will need is a capacity to ignore the personal vendetta that has been run by the Prime Minister against Mr Jean-Claude Juncker and to learn how to get on with him as the distribution of portfolios, which is of major importance to this country, will partly be the responsibility of Mr Juncker?
Baroness Warsi
I take real issue with what the noble Lord has said. I try not to bring party politics to this Dispatch Box but it is important that, when the Prime Minister of this country takes a principled stance on an important matter—a matter on which his party agreed—we should stop the sniping and get behind him.
Lord Cormack (Con)
My Lords, would there not be much relief all round if Mr Clegg were asked to go to Brussels?
Baroness Warsi
Mr Clegg is an incredibly effective Deputy Prime Minister and a Cabinet colleague for whom I have great respect. If he were to take on that role, I know that he would be deeply missed at Cabinet.
Lord Bach (Lab)
My Lords, if I were Prime Minister, I would want to avoid a by-election. Does the noble Baroness agree?
Baroness Warsi
The important thing is that we make sure that we appoint a good Commissioner who does a good job in Europe. All the other factors are secondary.
Lord Deben (Con)
Does my noble friend accept that there are some serious matters at stake here? At the heart of the Question—which has a lot of persiflage round it, if I may say so to my noble friend—is the fact that we need somebody who will go to Brussels and do the job properly, which means doing their best for the whole of the European Community, and who will have the confidence of people throughout the country. It should not be somebody who goes to Brussels with predetermined views and an unwillingness to work with our colleagues in the European Union.
Baroness Warsi
My noble friend makes an important point. However, I think he would accept that at the recent European elections, not just in the United Kingdom but across the European Union, the citizens of the member states sent out a very clear signal about the kind of Europe they want, and it is important that Commissioners reflect that in their work.
Lord Kinnock (Lab)
I have listened to the noble Baroness over recent weeks on this issue. May I say to her—
Lord Kinnock
I said “May I say to her”—there seems to be some difficulty with the English language on the other side of the House. The noble Baroness has demonstrated a full understanding of the real nature of the role of the Commissioner and the way in which the reform agenda has to be promulgated and effectively developed in the European Commission and, indeed, she is manifestly a woman. In order to make a real breakthrough and represent fully the proper interests of this country in the context of the realities of the treaty, which have been misrepresented by UKIP and by certain Members on her own side, may I make so bold as to nominate her for the position?
Baroness Warsi
That is a very kind remark from the noble Lord. It is an incredibly important job but I can honestly say that it is not one that I am interested in.
Baroness Falkner of Margravine (LD)
My Lords, my noble friend has talked about the importance of the characteristics of the individual who is appointed. Given the portfolio that the United Kingdom is hoping to get within the economic sphere—on these Benches we would like it to be the single market because that is an area where reform really needs to continue—does she accept that the right candidate is one who has a deep and thorough understanding of the portfolio and that it is not just the characteristics of an individual per se that are important?
Baroness Warsi
My noble friend makes an important point and, as I said at this Dispatch Box, the United Kingdom will be looking for an economic portfolio. My noble friend will be aware that the make-up of the portfolio itself has yet to be discussed and what the final portfolio will look like will be determined once the President has been confirmed.
NHS: Hospital Waiting Times
(9 years, 10 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, hospital waiting times are low and stable, but there are pressures from a growing and ageing population, and some patients are not receiving their treatment as soon as we would like. NHS England, the NHS Trust Development Authority and Monitor are working with the most challenged providers and commissioners. Operational resilience guidance, published in June, will help the system prepare for winter and improve waiting times sustainably for emergency and elective care.
Lord Dubs (Lab)
My Lords, that is a very impressive Answer. The Prime Minister said some time ago that the test will be to get NHS waiting times down. Judged by that test, will the Minister comment on this morning’s statistics from NHS England which showed that over the past year the number of patients waiting six months or longer for treatment has gone up by 20%? Does that not show that the Prime Minister has failed his own test?
Earl Howe
My Lords, I do not believe that that is a fair comment. In the past four years, since the Government came to office, we have substantially reduced the numbers of patients waiting longer than 18, 26 and 52 weeks to start treatment. Those numbers are lower than at any time under the previous Government. However, we need to address the build-up in patients waiting and, as a result, we are directing extra support and money for hospitals to do more than 100,000 additional operations over the next few months to meet the extra demand.
Baroness Gardner of Parkes (Con)
My Lords, is it not a fact that the statement made this morning by the new president of the Royal College of Surgeons makes quite a lot of sense, and that most people would agree with it? People who need life-saving operations urgently should have priority, and people who have conditions that will not deteriorate—I am spreading more words than she actually said—may be asked to wait longer to give that priority to the more urgent cases. Does my noble friend not think that that first ever woman president of the Royal College of Surgeons is talking common sense?
Earl Howe
Yes, she is. I have known the new president of the royal college for some years. She is a very considerable surgeon, and I agree with what she has said. Clinical priority is the main determinant of when patients should be treated, and should remain so. Clinicians should make decisions about the patient’s treatment and patients should not experience undue delay at any stage of their referral, diagnosis, or indeed treatment. That is why we have moved away from targets to standards—to signal the importance of clinical priorities, which doctors should always feel able to act on.
Lord Hunt of Kings Heath (Lab)
My Lords, does the noble Earl agree that, whatever he says about targets, the previous Labour Government reduced the maximum waiting time for in-patient treatment from 18 months to 18 weeks? Was that not a substantial reduction? Is the Minister not concerned that if we take a whole raft of measurements, it shows a health service now under great pressure financially and in terms of waiting times?
Earl Howe
Yes, of course, the previous Government did an enormous amount to reduce waiting times. I also hope, though, that the noble Lord will give us credit for what we have done to reduce waiting times for those who have been waiting the longest, who were never targeted under the previous Government. I acknowledge that the system is under strain at the moment, but we have plans for the short, medium and long term to address that situation.
Baroness Manzoor (LD)
My Lords, the Government have stated that there is to be parity of esteem between mental health services and acute services. Will my noble friend the Minister state whether this will include waiting times for the provision of mental health services to both adults and children?
Lord Turnberg (Lab)
My Lords, there seems to be little doubt that waiting lists will grow. Is the noble Earl aware of the recent King’s Fund report, The NHS Productivity Challenge, which shows that the share of the national cake for the NHS, which was above 8% in 2009, is now about 7% and is set to fall to around 6% by 2021. Is there any justification for reducing the share of GDP for health services?
Earl Howe
My Lords, the noble Lord knows of the economic constraints that this country has to contend with at the moment. Despite that, the Government are increasing the NHS budget over the course of this Parliament by £12.7 billion. That should indicate to the noble Lord the priority that we are giving to the NHS.
Lord McColl of Dulwich (Con)
My Lords, the Minister mentioned that the strain on the NHS is due to old people getting older, but is it not true that the strain is due to young people getting fatter and fatter? Is it not true that the Department of Health misled the nation by saying that the obesity epidemic—the worst for 90 years—is due to a lack of exercise when really it is due to people eating too much?
Lord Patel (CB)
Can the Minister tell us how those trusts that do not report on their waiting times, although they are small in number, are dealt with? How can they be held responsible when they do not report?
Baroness McIntosh of Hudnall (Lab)
My Lords, I do not believe that the House heard the noble Earl address the issue raised by my noble friend Lord Turnberg. It was not about cash but about share. Can he expand a little on why the share of GDP allocated to the National Health Service is set to go down?
Earl Howe
The share of GDP is only one measure. We have to take into account the state of the economy. If the party opposite had been elected to office, it had in fact decided that the share of the cake should be less than the one we have allocated. We have had to strike a balance and I believe that we have done so in a responsible way.
NHS: District Nurses
(9 years, 10 months ago)
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Baroness Wheeler
To ask Her Majesty’s Government what action they are taking to ensure that the National Health Service has sufficient district nurses.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, the Department of Health is working with Health Education England, NHS England and the Queen’s Nursing Institute to raise the profile of district and community nursing and to attract more nurses to choose this as a career path. That work includes a workforce project led by the Community Nursing Strategy Programme to ensure an adequate supply of highly skilled district nurses to support patients in community settings, provide quality care and improve patient outcomes.
Baroness Wheeler (Lab)
I thank the Minister for his response. Does he not agree that the failure to address the chronic shortage of district nurses makes the RCN’s call to action even more urgent? The college has found that district nurses are so stretched that they can spend only 37% of their time actually dealing with patients in the community, which is deeply worrying. How does this help people with long-term conditions who depend on specialist nursing care to stay out of hospital? When is a comprehensive strategy that addresses the urgent action which needs to be taken on this matter going to be published?
Earl Howe
My Lords, we recognise the need for urgent action, and that it is required across the piece. We need to train more district nurses, and therefore training places have gone up both last year and this year. We also need to equip district nurses with technology. To that end, the nursing technology fund will address the issue that the noble Baroness referred to initially, which is the time that nurses have to spend with their patients. Technology can make time management much more efficient, and it is also good for the patient, who feels more in touch. NHS England and Health Education England have set up a workforce project which, as I said in my initial Answer, is designed to address not only workforce numbers but also the attractiveness of district nursing to trainees.
Baroness Brinton (LD)
My Lords, there has been a 47% reduction in district nurses over the previous 10 years. Does the Minister agree that if we are to have real integration of health and social care, then commissioners, NHS England and Health Education England should prioritise support for district nurses and community posts, not least to reduce the pressure on hospital beds?
Earl Howe
These matters are locally determined by commissioners, but my noble friend makes a valid point. It is important to understand that district nursing services involve qualified district nurses leading and supporting multidisciplinary teams which often include staff nurses, community nurses and healthcare assistants, working with allied health professionals. We also need to recognise that social care relies on the same pool of registered nurses for local authority-funded care, and in fact nurses employed by local authorities are not counted in the statistics.
Baroness Pitkeathley (Lab)
My Lords, I recently came across a district nursing service which had been contracted out to the private sector, to the considerable confusion of some of the patients using it. Does the Minister have the figures for how many district nursing services have been contracted out in this way?
Earl Howe
I do not have the figures, but of course this process started under the previous Government with the “Transforming Community Services” programme, which very often hived off the community provision into social enterprises. If I have statistics on this I will gladly send them to the noble Baroness.
The Countess of Mar (CB)
My Lords, I recently received a letter from a lady whose daughter has ME and is confined to bed. She is under the age of 16, and was given a male care assistant who would not perform certain tasks for her. When her mother went to the surgery to ask if a district nurse could come and do those tasks, she was told no because the girl was under 16. Is this correct?
Earl Howe
I am happy to look into that case, but clearly we need to ensure that there are the right skills for the right patients, and this is what the health service increasingly aims to achieve. The district nursing team has to contain those multidisciplinary skills. If there is a case of someone being inappropriately looked after, then that is certainly a cause for concern.
Baroness Manzoor (LD)
My Lords, nearly 50% of district nurses are over the age of 50. I heard what the Minister said regarding the number of nurses in training but perhaps the numbers could be looked at again, because quite a number of district nurses will soon be retiring.
Earl Howe
My noble friend makes a good point, and this was highlighted by the royal college. Health Education England was established precisely to ensure a greater connection between the needs and demands of local employers and the education and training commissions which are made. It takes into account all the relevant variables, such as the age profile of the workforce, to ensure that it sets the appropriate number of training places for district nurses to meet future capacity and capability service needs. As I mentioned earlier, Health Education England has in fact increased the number of training places for district nurses by 7% this year, to 431 places.
Arts: Lottery Funding
The Earl of Clancarty
To ask Her Majesty’s Government, in the light of Arts Council England’s recently announced funding plan, whether they continue to adhere to the principle of additionality with respect to lottery funding of the arts.
Lord Gardiner of Kimble (Con)
My Lords, the Government believe in the importance of a mixed funding model for the arts. This includes public funding, lottery revenue, philanthropic giving and private income. Each contributes to the vibrancy and success of the arts in this country. The Government expect all lottery distributors, including Arts Council England, to ensure that they adhere to the principles of additionality and remain accountable to Parliament.
The Earl of Clancarty (CB)
My Lords, I am sure that companies whose entire award now comes from the lottery, such as the Royal Philharmonic Orchestra and Glyndebourne Touring Opera, are grateful that they benefit from what is undeniably the changed status of lottery funding. However, does the Minister not agree that what have always been most at risk over the past four years, and increasingly so even within a supposedly improved economy, are the small companies and organisations whose funding by government subsidy has proved over decades to be the best and most efficient means by which innovative work is encouraged throughout the whole country?
Lord Gardiner of Kimble
My Lords, I am grateful to the noble Earl for referring to the whole country, because investment outside London is very much one of the Arts Council England’s priorities. The increasing amount that is invested outside London is terribly important. Arts Council England has the responsibility for ensuring that those funds are directed appropriately. It clearly would not be for government or civil servants to start deciding winners and losers in the artistic world; that is for Arts Council England and its responsibility to invest.
Baroness McIntosh of Hudnall (Lab)
My Lords, is the Minister aware that, during the past 20 years, as a result of the principle of additionality, lottery funds have been allocated substantially to capital? As a result of the combination of lottery and substantial private funding, we have a remarkable range of new-built and refurbished cultural buildings. How will the Government ensure that, in the next 20 years, those buildings are not allowed to fall into disrepair because lottery funding is being allocated elsewhere, as happened in the 1970s and 1980s after the last big series of building projects?
Lord Gardiner of Kimble
My Lords, we have seen some very exciting refurbishments and restorations of our heritage buildings. It is precisely why the Government and arm’s-length bodies such as the Arts Council, the Heritage Lottery Fund and English Heritage have provided extensive funding towards cultural heritage, including buildings. It is important that Arts Council England provides capital grants which can be spent on purchase, improvement and restoration of capital projects. What the noble Baroness said is absolutely right: the last thing we want to do is to have an investment and let it deteriorate.
Baroness Bonham-Carter of Yarnbury (LD)
My Lords, additionality was one of the founding principles of the National Lottery. Another was that there should be only one National Lottery. That is the not the situation today. We have the Health Lottery, which is a national lottery in all but name, and there is the new problem of gambling operators offering products that masquerade as lotteries but are in fact bets. These damage the ability to raise funds for good causes such as the arts. What do the Government intend to do about this?
Lord Gardiner of Kimble
My noble friend raises issues about other lotteries—she mentioned the Health Lottery. The market is changing. The Gambling Commission is providing us with further advice on how the markets are operating, which we will consider before consulting later in the year. The changes in the lottery and gambling markets have made it clear to us that any consultation on society lotteries needs to be far more wide-ranging than was originally thought.
Lord Howarth of Newport (Lab)
My Lords, if the principle of additionality is to mean what we all want it to mean in practice across the country, will the Minister talk to his friends at the Department for Communities and Local Government? So long as local authorities are so severely constrained in their ability to support the arts, it will not be possible to have the kind of thriving arts ecology across the whole country that I know he wants and we all want.
Lord Gardiner of Kimble
That is why I said in my original Answer that it is important that we have a mixed-funding arrangement. It serves us very well to have state funding, lottery funding and philanthropic and corporate sponsorship. The noble Lord is right: local government has huge challenges, as does the nation, about spending. Local government is still the largest investor in the arts, and I hope that it will remain so. There are challenges, but there are enormous success stories where local authorities have recognised that arts and heritage are important for tourism and visitor numbers. There are many examples of cities and towns around the country, Hull and Liverpool among them, which are successful because of their artistic investment.
Lord Cormack (Con)
My Lords, in thanking my noble friend for his own personal commitment, may I ask him to assure the House that the places of worship scheme, whereby grants are given to historic churches and other places of worship on their intrinsic architectural and historical importance, will continue and not be diminished?
Lord Gardiner of Kimble
My Lords, my noble friend’s question is timely, because the Chancellor granted an extra £20 million to cathedrals around the country, mindful particularly of the part that they will play in the commemorations of the First World War. I endorse what my noble friend has said. The buildings to which he referred are some of our most ancient treasures; they need to be helped to remain in good state.
Lord Stevenson of Balmacara (Lab)
My Lords, may we go back to the point in the original Question about the principle of additionality? I am sure that the Minister is aware of the Statement made by the Secretary of State in the other place only a few days ago. He said:
“The principle of additionality is very important and the distributors must adhere to it all times”.—[Official Report, Commons, 3/7/14; col. 1057.]
Given that, can the Minister explain to your Lordships’ House why 102 companies now receiving grant in aid from Arts Council England, which in previous years were entirely funded by grant in aid, are now to be funded from the lottery?
Lord Gardiner of Kimble
My Lords, this is an area on which the Arts Council has been reflecting in particular, and of course it is required to report on adherence to the principle of additionality. One of the key points is that lottery funding for the years 2012 to 2015 has gone towards a specific purpose: touring, and working with children and young people. That is why Arts Council England has announced that these significant elements—of touring and of specific organisations working with children and young people—will be wholly funded through the lottery from 2015 to 2018.
Lord Aberdare (CB)
My Lords, following the report by Darren Henley some years ago, the Government launched a national plan for music education. When will the Government announce the future funding for that national plan, and how will they ensure its successful delivery?
Lord Gardiner of Kimble
My Lords, the Government have committed £171 million over three years to 123 music hubs across England, to ensure that every child aged five to 18 has the chance to learn a musical instrument and perform as part of ensembles and choirs. Because of those hubs, 500,000 children have been given the chance to learn a musical instrument for the first time. There is always more to be done, but a lot of effort is going into recognising and then ensuring that there is fulfilment of the musical experience for young people and children.
Baroness Benjamin (LD)
My Lords, we are soon to see the 50th anniversary of the Notting Hill carnival—but, sadly, we have just seen Arts Council funding cuts to the only carnival arts organisation that provides design, art and culture for children and gives them the opportunity to be exposed to creativity, and for their imagination to blossom. Can my noble friend tell the House what provision has been made to address this deficit?
Lord Gardiner of Kimble
My Lords, obviously the decisions that the Arts Council or any organisation has to make are always difficult; they are full of challenges. But Arts Council England is very clear that if an organisation does not receive funding, part of its advice service is to ensure that other sources of funding are considered and advised upon.
Business of the House
(9 years, 10 months ago)
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Lord Hill of Oareford
That the debates on the Motions in the names of Lord Alton of Liverpool and Lord Woolf set down for today shall each be limited to two and a half hours.
Communications Data and Interception
(9 years, 10 months ago)
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The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, with the leave of the House I will now repeat a Statement made this morning by my right honourable friend Theresa May, the Home Secretary. The Statement is as follows.
“With permission, Mr Speaker, I would like to make a Statement about the use of communications data and interception; the difficulties faced by the police, law enforcement agencies and the security and intelligence agencies in utilising those capabilities; and the steps the Government plan to take to address those difficulties.
Before I do so, I would like to make something very clear. What I want to propose in my Statement today is a narrow and limited response to a set of specific challenges we face. I am not proposing the introduction of the communications data Bill that was considered in draft by a Joint Committee of both Houses of Parliament last year. I still believe that the measures contained within that Bill are necessary—and so does the Prime Minister—but there is no coalition consensus for those proposals and we will have to return to them at the general election.
The House will know that communications data—the ‘who, where, when and how’ of a communication but not its content—and interception, which provides the legal power to acquire the content of a communication, are vital for combating crime and fighting terrorism. Without them, we would be unable to bring criminals and terrorists to justice, and we would not be able to keep the public safe.
For example, the majority of the Security Service’s top priority counterterror investigations use interception capabilities in some form to identify, understand and disrupt the plots of terrorists. Communications data has played a significant role in every Security Service counterterrorism operation over the past decade. It has been used as evidence in 95% of all serious organised crime cases handled by the Crown Prosecution Service. It has played a significant role in the investigation of many of the most serious crimes in recent times, including the Oxford and Rochdale child grooming cases, the murder of Holly Wells and Jessica Chapman and the murder of Rhys Jones. It can prove or disprove alibis; it can identify associations between potential criminals; and it can tie suspects and victims to a crime scene.
I have talked before about the decline in our ability to obtain the communications data we need, which is caused by changes in the way people communicate and the technology behind those forms of communication. That is why I continue to support the measures in the draft communications data Bill. In addition to that decline, we now face two significant and urgent problems relating to both communications data and interception. The first is the recent judgment by the European Court of Justice that calls into question the legal basis upon which we require communication service providers in the UK to retain communications data. The second is the increasingly pressing need to put beyond doubt the application of our laws on interception so that communication service providers have to comply with their legal obligations, irrespective of where they are based.
I can tell the House today that the Government are introducing fast-track legislation—through the data retention and investigatory powers Bill—to deal with those two problems. I deal first with communications data, because we must respond to the ruling by the European Court of Justice that the data retention directive is invalid. The directive was the legal basis upon which the Governments of EU member states were required to compel communication service providers to retain certain communications data where they do not otherwise require it for their own business purposes. Indeed, the ruling provides us with such a problem precisely because very strong data protection laws mean that, in the absence of a legal duty to retain data, companies must delete data that is not required beyond their strict business use. This means that, if we do not clarify the legal position, we risk losing access to all such communications data and, with it, the ability to protect the public and keep our country safe.
The ECJ ruling said that the data retention directive does not contain the necessary safeguards in relation to access to the data, but it did not take into account the stringent controls and safeguards provided by domestic laws—in particular, the UK’s communications data access regime, which is governed primarily by the Regulation of Investigatory Powers Act 2000. RIPA was, and remains, designed to comply with the European Convention on Human Rights. It ensures that access to communications data can take place only where it is necessary and proportionate for a specific investigation. It therefore provides many of the safeguards that the European Court of Justice said were missing from the data retention directive.
This ECJ judgment clearly has implications not just for the United Kingdom but also for other EU member states and we are in close contact with other European Governments. Other Governments, such as Ireland and Denmark, implemented the data retention directive through primary legislation, which means that they have retained a clear legal basis for their data retention policies, unless a separate, successful legal challenge to their legislation is made. The UK does not have that luxury, because here the data retention directive was implemented through secondary legislation. While we are confident that our regulations remain in force, the Government must act now to remove any doubt about their legal basis and to give effect to the ECJ judgment. The legislation I am publishing today—and the draft regulations that accompany it—will not only do this, they will enhance the UK’s existing legal safeguards and in so doing it will address the criticism of the European Court.
I want to be clear, though, that this legislation will merely maintain the status quo. It will not tackle the wider problem of declining communications data capability, to which we must return in the next Parliament. But it will ensure, for now at least, that the police and other law enforcement agencies can investigate some of the criminality that is planned and takes place online. Without this legislation, we face the very prospect of losing access to this data overnight, with the consequence that police investigations will suddenly go dark and criminals will escape justice. We cannot allow this to happen.
I want to turn now to interception because there is growing uncertainty among communication service providers about our interception powers. With technology developing rapidly and the way in which we communicate changing all the time, the communication service providers that serve the UK but are based overseas need legal clarity about what we can access. The House will understand that I cannot comment in detail on our operational capabilities when it comes to intercept, but I have briefed the Opposition on Privy Council terms and members of the Intelligence and Security Committee have heard first hand from the security and intelligence agencies and it is clear that we have reached a dangerous tipping point. We need to make sure that major communication service providers co-operate with the UK’s security and intelligence and law enforcement agencies when they need access to suspects’ communications. This would result immediately in a major loss of the powers and capabilities that are used every day to counter the threats we face from terrorists and organised criminals.
The Bill I am publishing today will therefore put beyond doubt the fact that the existing legal framework, which requires companies to co-operate with UK law enforcement and intelligence agencies, also extends to companies that are based overseas but provide services to people here in the UK. I will make copies of the draft Bill available to the Vote Office and the House Library. I will also make available in the Library the regulatory impact assessments and the draft regulations to be made under the Bill, in order to allow the opportunity for the House to scrutinise these proposals in full.
The parliamentary timetable for this legislation is inevitably very tight. My right honourable friend the Leader of the House has just provided details of the prospective timetable for the Bill’s consideration but it is crucial that we must have Royal Assent by Summer Recess. The Government have therefore sought to keep this Bill as short as possible. It is also subject to a sunset clause that means the legislation ceases to have effect from the end of 2016. This means that the Bill solves the immediate problems at hand and gives us enough time to review not just the full powers and capabilities we need, but also the way in which those powers and capabilities are regulated, before Parliament can consider new and more wide-ranging legislation after the general election.
It is right that we must balance the need to prevent criminal exploitation of communications networks with safeguards to protect ordinary citizens from intrusions upon their privacy. That is why, alongside the legislation I am publishing today, the Government will also introduce a package of measures to reassure the public that their rights to security and privacy are equally protected.
We will reduce the number of public authorities able to access communications data. We will publish an annual transparency report giving as much detail as possible—within obvious parameters—about the use of these sensitive powers. We will appoint a senior diplomat to lead discussions with other Governments to consider how we share data for law enforcement and intelligence purposes. We will establish a privacy and civil liberties board, based on the US model. This will build on the role of the independent reviewer of terrorism legislation, and the board will consider the balance between security and privacy and liberty in the full context of the threat we face from terrorism. And we will review the interception and communications data powers we need, as well as the way in which those powers and capabilities are regulated, in the full context of the threats we face. The Government are discussing in the usual channels the precise form this review might take, but I hope that an initial report will be published before the election.
I have said many times before that it is not possible to debate the correct balance between security and privacy—and, more specifically, the rights and wrongs of powers and capabilities such as access to communications data and interception—without understanding the threats we face as a country. Those threats remain considerable. They include the threat from terrorism—from overseas and from here in the UK—but also the threat from industrial, military and state espionage practised by other states and foreign businesses; the threat from organised criminal gangs; and the threat from all sorts of criminals whose work is made easier by cyber technology.
In the face of such a diverse range of threats, the Government would be negligent if they did not make sure that the people and the organisations that keep us safe—the police, other law enforcement agencies and the security and intelligence agencies—have the legal powers to utilise the capabilities they need. They are clear that we need to act immediately. If we do not, criminals and terrorists will go about their work unimpeded, and innocent lives will be lost. That is why I commend this Statement, and this Bill, to the House”.
My Lords, that concludes the Statement.
Baroness Smith of Basildon (Lab)
My Lords, I am grateful to the Minister for early notification of the Statement, and for providing a copy of it beforehand. Before I refer to the content of the Bill, I flag up our disappointment regarding the timetabling. We understand and appreciate the necessity of this legislation and the time imperative that now exists, as the noble Lord explained. But why is it being brought forward now as fast-track legislation? As he said in the Statement, the decision of the ECJ was taken in April. We accept that it takes some time to digest and analyse the implications of such decisions and to prepare legislation, but it would have been preferable to bring this legislation forward earlier.
Over the past weeks we have been discussing the Serious Crime Bill, and the noble Lord is aware that we support measures in the Bill but have tabled amendments that would strengthen and improve it where we feel that the provisions are okay but too weak. So why were these measures announced today not brought forward alongside that Bill, given that the fast-track Bill he has announced strikes right at the heart of serious and organised crime and counterterrorism?
The data of which this Bill will ensure temporary retention are used in 95% of serious and organised crime investigations, counterterrorism investigations and online child abuse investigations, so we do not doubt the necessity of their use. In considering our response to this fast-track legislation, we have focused on the principle that such crime and counterterrorism investigations must not be compromised. We have a duty to maintain the security of our citizens. We also recognise that this Bill does not go further than existing legislation, as the noble Lord outlined, but maintains existing capabilities.
We also have to ensure that individual privacy is protected. We therefore considered it crucial that there should be safeguards, including a sunset clause and a major review of the legal framework that governs surveillance. Will the Minister confirm that what we are talking about here does not in any way include the content of communications, merely that such communications have taken place?
When our Constitution Committee reported on constitutional implications and safeguards for fast-track legislation, it set out certain safeguards that Ministers must address in Statements to your Lordships’ House. First, Ministers must explain why fast track is necessary. I take that to mean not just the immediate necessity but, as I have already asked, why this was not brought forward earlier. It is also very clear that there should be a presumption of a sunset clause; that is, in effect, that any fast-track legislation should be temporary with an expiry date. We welcome the sunset clause in this Bill. It is essential that a date is set down in statute when the legislation will expire, and it must be reviewed during that period.
The Constitution Committee recommended this for any fast-track legislation. Another issue it raises is that parliamentary committees should be given the opportunity to scrutinise the legislation. Are arrangements being made to ensure that the relevant committees—and specifically the Constitution Committee—will have the opportunity to do so within the timetable, and will discussions take place regarding this?
Another matter the Constitution Committee raised was post-legislative review. I ask that the Government consider using the Interception Commissioner to review this on a six-monthly basis and report back to Ministers and your Lordships’ House.
Noble Lords will be aware that we have called for a review of RIPA, the Regulation of Investigatory Powers Act 2000. The shadow Home Secretary, Yvette Cooper, called for this back in the speech she made in March. As a noble Lord commented in our discussions this week on new legislation to tackle cybercrime, technology moves very quickly and criminals move very quickly. Our legislation has to keep pace with that. RIPA is now 14 years old and needs to be brought up to date. We also need that review to ensure that it is used appropriately. Will the Minister confirm that the reference in the Statement to reviewing,
“the interception and data powers we need”,
does in fact refer to RIPA and that a review will take place? Can he tell us if any decision has been made on who would undertake such a review and what resources and expertise will be made available for that?
Alongside a review of RIPA, we have also asked for an overhaul of the system of independent oversight commissioners, as outlined in the shadow Home Secretary’s speech in March. I ask the Minister to ensure that these reforms are considered as part of the review. Also, it would be helpful to have a wider public debate on this whole range of issues.
We believe that this legislation is urgent, but it is equally important that we have further scrutiny of the whole framework. I hope noble Lords will agree that longer-term reforms are needed.
Lord Taylor of Holbeach
My Lords, once again I thank the noble Baroness for her support for the legislation. I am very happy to reassure her on the various aspects that she quite legitimately raised. It has of course not been possible to talk about this matter in public until today. Noble Lords will understand why that is the case, but the House will have the opportunity to consider the legislation. I expect that will be next week, but that will be for the usual channels to decide and announcements will be made.
The noble Baroness asked why we are having fast-track legislation—after all, the judgment was on 8 April. I can understand her concern. It is not easy to deal with things in fast-track legislation. On the other hand, I think she will understand that this is a difficult and sensitive area of policy. We did not want to get mired down in the communications data Bill, as the Joint Committee originally considered. We wanted to ensure that the measures that we were presenting, and which we are presenting in the Bill today, were sufficient to deal with the immediate problem and no more. We were not looking to extend any powers; we were just seeking to restore the situation ex ante the judgment. We wanted to ensure that there was proper consideration, to work with the law enforcement agencies and the data providers on how we dealt with this problem in legislation, and to give proper effect to the judgment that had been made by the European Court of Justice.
I am pleased that the noble Baroness has welcomed the sunset clause. We accept that this is, if I might use the expression, a puncture repair job; it is not equipping data protection with a new tyre so that it can corner more suitably for the road conditions of the future. Future-proofing has to await new legislation. Meanwhile, we are dealing with the problem that would face us if we did not act now. While I understand that the House will want to scrutinise in detail what we are doing, I hope that we will have its support in taking the Bill through.
The noble Baroness asked what contact there had been with the chairmen of the Constitution Committee and the Delegated Powers Committee. Some of the constitutional issues are addressed in the Explanatory Memorandum that is being published today, but I have tried to ring the chairman of the Constitution Committee; unfortunately, though, he was not available. I also tried to ring the chairman of the Delegated Powers Committee but unfortunately she was not available either. However, both are Members of this House and I have left messages. I shall try to talk to them over the weekend, as indeed I am intending to do with other noble Lords who are interested. Various Select Committee chairmen in the House of Commons have been briefed by the Prime Minister.
The data retention provisions of the Bill relate to comms data. However, I must make clear that companies must provide the content of the communication when served with a warrant issued by the Secretary of State. The powers laid out in the Bill do not change anything in that regard.
There were indications in the Statement that RIPA and its whole relationship with future legislation is a matter for review. If we are to inform a new Bill after the election, we will need to study where we are at present. The role of the independent terrorism legislation reviewer in this matter is clear, and David Anderson is likely to be involved in a number of discussions specifically aimed at ensuring not only that this legislation is achieving its objective but that any future legislation or arrangements regarding privacy are going to be effective.
Baroness Hamwee (LD)
My Lords, I am grateful to the Minister for contacting me earlier this morning. Obviously, bringing this stop-gap legislation in such a hurry to both Houses has been a difficult process, and the opportunities for consultation have therefore been limited. There are very strong and divided views on these issues, including among human rights and civil liberties groups. I wonder whether the Minister can reassure the House that there will be consultation with those groups on regulations and guidance, if there is to be any, as well as their involvement in the review of RIPA.
I welcome what was described as a package of pro-civil liberties measures mentioned in the Statement. Will the Minister tell the House whether they will be introduced to the same swift timetable? Also—I do not mean the question to be frivolous—we are proposing to talk to the Americans, but have they agreed to talk to us?
Lord Taylor of Holbeach
We have good discussions with all our allies and I can assure the noble Baroness that I have no fear in that regard. I understand what she is saying about civil liberties and much of the discussions about this have centred on ways in which we can enhance privacy protection. The noble Baroness is quite right; we have not had time to consult. Letters will be going to a large number of people and I know that the list includes a number of the best-known civil liberties groups. As far as future business is concerned, and the implementation of the powers in the Bill, they will be parties to the discussion in the usual way. I will do my best to ensure that the noble Baroness is also kept informed.
Lord West of Spithead (Lab)
My Lords, I am very supportive of what the Government are doing. I think it is absolutely appropriate, subject to the various caveats that my noble friend Lady Smith of Basildon raised. There is no doubt whatever, as the Minister said, that this has ensured in the past our security, our ability to tackle organised crime and our ability to get murderers, paedophiles and the like. There is no doubt whatever about that, and it was something that was going to be lost. But is it not a disgrace that we find ourselves in this position? The communications data Bill was looked at by a Joint Committee of the House. It made a mass of suggestions as to how it should be amended to protect privacy and civil liberties. All of those measures were taken in and agreed, and the Bill redrafted. I think that the Liberal Democrats should be ashamed of the fact that they did not agree then to go forward with the Bill. If it had gone forward, we would not now be rushing through this legislation. Does the Minister agree?
Lord Taylor of Holbeach
Of course I do not agree. To be frank, I am a great believer in the partnership that the coalition represents. I have given an indication today in repeating the Statement that it is important to see this as a partnership between protecting individual liberty and at the same time making sure that we have the capability. I am so grateful to the noble Lord for his support in that regard. I am sure he would not expect me to go into detail as to why we have not progressed. We said in the Statement that we recognised that there was not enough unity of purpose across the coalition to continue with the communications data Bill. I make no apology for that. This will obviously be discussed at the time of the general election and hopefully afterwards we will be able to address the issue.
Lord Lloyd of Berwick (CB)
My Lords, I hope that the noble Lord will recall that a committee of privy counsellors was set up some years ago to consider the admission of the intercept as evidence in terrorist and criminal cases. Does he agree that the intercept, the actual words spoken, provides by far the strongest basis on which to convict terrorists and other serious criminals—far better than just the fact that a communication took place? When does he think that the Chilcot committee, which is still considering this matter, is going to report?
Lord Taylor of Holbeach
My Lords, I am not in a position to answer that particular question. It may be beyond the gift of anyone to answer it at this stage. The noble and learned Lord makes a very interesting point which I am sure will be considered, but it is not part and parcel of this legislation, which is very narrow in what it is seeking to achieve. We are not looking to extend the powers that we currently have available.
Lord King of Bridgwater (Con)
My Lords, to save the Minister embarrassment I do not expect him to reply to this point; I fully agree with the previous comment of the noble Lord, Lord West, about the failure to move forward with the previous Bill. Having said that, my noble friend will be aware that both Houses of Parliament are very leery indeed about emergency legislation, and are rightly suspicious of it. It is not just the cynics who say that they are not totally reassured when all parties are in agreement on emergency legislation, which has not always had a happy history.
Having said that, nobody could underestimate the importance of the matters that the Minister has discussed and of what the data have meant to the defence of this country. If ever there was a time not to reduce our defences, this must be it. Can the Minister confirm again that this represents no change in the present situation—that there is no advance in the intrusions on the citizen; it is a matter of data, not the content of messages? It is the “who, when and where” that are so vital in the pursuit of this.
The most important thing is that the provisions also contain the surprisingly short sunset clause, as I understand it, of May 2015—
Lord King of Bridgwater
That is still, for the matters which must be discussed, a short sunset clause. It is absolutely right that that is there, and I welcome it.
Lord Taylor of Holbeach
I am most grateful to my noble friend. As a former chairman of the Intelligence and Security Select Committee, I know that he—like the noble Lord, Lord West, from his ministerial role—can see inside this problem. I expect and want the House to scrutinise this legislation, because it is right and proper that we do so.
My noble friend is right also to point to the fact that the sunset clause allows an incoming Government only 18 months to put a new communications data Bill on the table if they choose to do so. If I were part of any such Government I would be exhorting prompt action in that area. Clearly, without the legislation that we are now hoping to bring forward, we place ourselves in an extraordinarily difficult position.
Lord Davies of Stamford (Lab)
My Lords, in all the unfortunate circumstances, the Government were quite right to respond to the ECJ decision as they have. However, on the first part of the Statement on the powers that we thought existed to compel private sector organisations to retain communications data, is not the unfortunate position in which the Government now find themselves a result of their tendency—perhaps more than a tendency; sometimes it looks like a default option—always to implement European directives whenever they can by means of secondary rather than primary legislation? It may the tendency of every bureaucracy, and perhaps every Minister, to try to minimise the degree of democratic transparency and parliamentary scrutiny through which they have to go to get legislation on the statute book. However, in the light of experience, do the Government not agree that they have been getting the balance wrong compared to other countries—the Minister cited the Irish and Danish examples—and that that balance needs to be looked at again?
Lord Taylor of Holbeach
Well, we are now coming forward with primary legislation; I hope that it meets with the noble Lord’s approval. I understand his point exactly, but we are dealing with that problem now. It has been the practice of successive Governments to deal with European directives in this fashion. Perhaps in some areas it may pay us to make exceptions to that, particularly if we think that there are matters that really ought to be brought to the attention of the House through primary legislation.
Lord Armstrong of Ilminster (CB)
My Lords, I was a member of the Joint Committee which scrutinised the draft communications data Bill. I am sure that all members of that committee would attach great importance to restoring the position that we thought we were in before this. For that reason, I, and I think many colleagues on the Cross Benches, will support the Bill. The sunset clause which has been described will make it necessary to review communications data legislation very early in the new Parliament. I hope that the scrutiny given to it will then bear fruit because I think the result was a good Bill which balanced the essential needs of civil liberty and privacy against the Government’s first duty to protect the security and safety of the citizen.
Lord Taylor of Holbeach
My Lords, the noble Lord, Lord Armstrong, speaks from a great deal of experience in this area. I welcome his support. I agree that this is a matter which will have to be addressed very quickly by an incoming Government. This is a live issue, as is properly demonstrated by the debate we are having now.
Lord Pearson of Rannoch (UKIP)
My Lords, would we be in this predicament if we were not members of the European Union and therefore subservient to the judgments of the Luxembourg court? Surely these matters should be for our Government and Parliament and for international collaboration under their control.
Lord Taylor of Holbeach
No, my Lords, I do not see the sequitur in that at all. It is right and proper that we should make sure that the legal framework under which we operate is established in Parliament. That is what we are doing. The way in which we adapt to changed circumstances is a healthy arrangement. Regardless of the European Court of Justice’s decision, we would need to address some of the issues that this Bill deals with. We are right to be dealing with it as soon as we possibly can.
Lord Cormack (Con)
My Lords, when I was in another place I conducted an inquiry into organised crime in Northern Ireland and I became aware of how crucial cross-border collaboration was in that context. Will there be full discussions with the Government of the Republic of Ireland to ensure that our fight against crime in that part of the United Kingdom can continue unabated?
Lord Taylor of Holbeach
Yes. One of the factors which the noble Baroness, Lady Smith, and I welcome is that, in the Serious Crime Bill, there is a whole series of measures attaching to Northern Ireland which have support. We hope that these will enable the two law enforcement agencies on that island to work closely together in the interests of protecting the people of that island.
Baroness Taylor of Bolton (Lab)
My Lords, I associate myself with the comments of the noble Lord, Lord West, and the noble Lord, Lord King, whom I succeeded as chair of the Intelligence and Security Committee. Those of us who have had direct experience of the benefits of this kind of information will very much support what the Government are doing. Perhaps I may ask the Minister a practical question about data retention. By acknowledging that new legislation is required, can we assume that there is nothing that threatens the use of existing data that are held? Will the Minister continue to use examples in the way that he did today in repeating the Statement so that people outside who have concerns about the use of data recognise the productive way in which they can be used in important criminal cases?
Lord Taylor of Holbeach
Yes. I think that sometimes the arguments become focused on particular issues. I agree with the noble Baroness. I know that she speaks from experience and I am grateful for her support. There is an important communications exercise in making sure that people realise why we are involved in the fight against crime and the fight against sexual exploitation. These are all factors in our need to have this capability. I am grateful for the noble Baroness’s support.
Lord Butler of Brockwell (CB)
My Lords, I know that the Intelligence and Security Committee, of which I am a member, will now look at this legislation very urgently, as is necessary. However, that committee has to deal all the time with highly classified matters. Does the Minister agree that it would have made the task of the committee easier, and its task of advising the two Houses easier, if the Government had consulted the committee at an earlier stage?
Lord Taylor of Holbeach
Had that been possible, it might have been done. Clearly, the Bill is a complicated piece of legislation and getting it right has not been easy. I think the noble Lord will understand the background against which the Bill will be presented to the House of Commons and to your Lordships’ House. In such circumstances, it was important that the Government got their own position right first. Having done that, we are very grateful for the scrutiny and advice that we will receive from the Intelligence and Security Committee.
Lord Elystan-Morgan (CB)
My Lords, I wholeheartedly support what has been said concerning the inhibition which now exists on the use of vital evidence by way of intercept, which makes it impossible for what would have otherwise been crucially important prosecutions to succeed. I well appreciate that there are two sides to the argument and I appreciate that final advice to Parliament on this matter is still awaited, but will the noble Lord accept that in many common-law countries the rule is different? It is left to the good sense of the prosecution whether to rely on such evidence, bearing very much in mind the sensitivity of the situation in the public interest. It does not seem beyond the bounds of possibility that the United Kingdom is coming under very severe pressure from very powerful allies in this particular matter, to her own detriment.
Lord Taylor of Holbeach
I do not want to go into detail today on the noble Lord’s points. However, I will examine what he said, because he is talking about procedures rather than the matter that the Bill deals with—how we handle this in legal process. If the noble Lord will allow me, I will write to him in response to his question. I am grateful to him for raising it.
Lord Marlesford (Con)
Given the point that the noble Lord, Lord Butler, has just made, and of course given the total paramountcy of the defence of the realm, will the Minister assure us that if the scrutiny of the Bill were to reveal defects in the legislation—which, after all, is what scrutiny is about—the Bill would be amendable, notwithstanding the parliamentary timetable for the Recess?
Lord Taylor of Holbeach
My Lords, the passage of the Bill contains all the normal phases of discussion so it would be for Parliament to decide whether it needed to change the Bill. I hope that it will not be a political football, with people trying to make further points about what might have been and what could be, and all the rest. I do not think that the House is in the mood for that. All the comments that have been made have made it clear to me that, in general, the Bill correctly addresses the issue and we will look at the wording and make sure that we have got it right. That is what scrutiny is for and that is what we are here for. I hope that we will take advantage of that opportunity. I also hope to brief noble Lords on Monday by party group—arrangements are in place for those briefings—because I thought it would be helpful if we had an opportunity to talk about these things before we consider the Bill and before it goes to the House of Commons, which will consider it early next week.
Arrangement of Business
Baroness Anelay of St Johns (Con)
My Lords, with the leave of the House, it may be helpful if I make a brief business statement to explain how it is envisaged that this House might consider the data retention and investigatory powers Bill.
The House of Commons is due to take all stages of the Bill next Tuesday, 15 July. We will therefore receive the Bill at the end of their proceedings on Tuesday and the Bill will be printed overnight. Following discussions in the usual channels, we have agreed to propose that the House take Second Reading of the Bill next Wednesday, 16 July, and Committee and remaining stages of the Bill the following day, Thursday 17 July.
Members will be able to table amendments to the Bill at any time from next Wednesday and the Legislation Office has kindly agreed to offer drafting advice to Members who require it as soon as the text of the Bill has been published by the House of Commons. A revised edition of forthcoming business, setting out these arrangements as well as the knock-on effect on other business, will be published imminently—indeed, I expect almost as soon as I resume my seat. There will be a speakers list for Second Reading, again, opened more or less as I sit down today.
There are some knock-on effects; it may be convenient if I refer to one in particular, because I see the noble Lord, Lord Mitchell, in his place. Next Thursday we had anticipated a Labour debate day. There are two debates set down for that day, the first to be led by the noble Lord, Lord O’Neill of Clackmannan, and the second by the noble Lord, Lord Mitchell. It has been agreed in the usual channels that those two debates will be delayed. Another date will be found that is convenient for those debates to take place. We will negotiate on that matter. The procedure at the moment is that those speakers lists have been frozen as we are now in the process of changing next Thursday’s business. Those who have already signed up to speak will be informed. Indeed, there are currently only five speakers signed up for the first and four for the second, so I hope that does not inconvenience too many people.
The approach I have set out today, outlined by the Minister, has the support of the usual channels. I hope the whole House will support that next week.
BBC World Service and British Council
(9 years, 10 months ago)
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Lord Alton of Liverpool
To move that this House takes note of the role of the BBC World Service and the British Council in promoting British values and interests worldwide.
Lord Alton of Liverpool (CB)
My Lords, I begin by thanking my noble friends on the Cross Benches for selecting this Motion for debate today. It draws attention to the role of the BBC World Service and the British Council in promoting British values, part of what Joseph Nye once described as the exercise of soft power. It sits comfortably with the debate that will follow in the name of my noble and learned friend Lord Woolf, which draws attention to the role our legal institutions play in promoting Britain’s reputation and way of life worldwide. I am grateful to all noble Lords who will participate, many of whom bring a lifetime of experience and knowledge. I also thank the noble Baroness, Lady Warsi, the Minister who will reply. The House of Lords Library also deserves our thanks for the excellent note it has prepared for today’s debate.
It hardly needs saying that all of our speeches will be held against a backdrop in the Middle East of the exercise of a different kind of power, characterised by visceral hatred and unspeakable violence. They are being held in a climate in which fragile peace and seedling democracies, from the China Sea to Ukraine, are at daily risk. That is to say nothing of global violation of human rights, from North Korea to Sudan, from Nigeria to Pakistan.
More than 30 years ago as a young Member of the House of Commons travelling behind the iron curtain, and in 1981 to India, Nepal and China, I first began to fully understand the importance of the BBC World Service and the British Council as agents for change. The BBC World Service started life in 1932 as the BBC Empire Service, with Sir John Reith—later Lord Reith—warning,
“don’t expect too much in the early days … The programmes will neither be very interesting nor very good”.
More than 80 years later, with a global audience last month of 265 million people and transmitting in English and 27 other languages, there is no doubt that the World Service has surpassed all of Lord Reith’s modest expectations. Often, it has been the only lifeline to honest reporting of news and current affairs. Mikhail Gorbachev said that he listened to the BBC’s transmissions. However, both organisations—the British Council and the World Service—promote the UK’s economic interests too. In one survey of international business leaders in America, India and Australia, two-thirds said that the BBC was the main way in which they found out about the United Kingdom. Hence, the Motion talks about promoting our values and our interests.
During the past 10 years, as chairman of the All-Party Parliamentary Group on North Korea and during visits to remote parts of Africa and Burma, my appreciation of the BBC World Service and the British Council has grown into deep admiration, not least for courageous BBC journalists, such as its chief international correspondent Lyse Doucet and the head of the BBC’s Burma service Tin Htar Swe, who were both recently honoured in the Birthday Honours List.
Courage, however, comes at a price. Let us consider the 90 journalists killed since the start of the Syrian conflict three years ago, with scores of others kidnapped, or the imprisonment of journalists in Egypt, including Peter Greste, the former BBC journalist. James Harding, the BBC’s director of news, said that these jailings were an,
“act of intimidation against all journalists”.
Getting the news out and getting the news in are therefore two sides of one coin.
In Burma, Aung San Suu Kyi says that World Service transmissions reach more than 80% of people. When I visited her in March last year, she told me that the World Service had been a game-changer. Of course, she also listened to the World Service during her many years of detention, describing it as a lifeline. Believing passionately in the power of ideas, she used her Nobel Peace Prize money to establish her own Democratic Voice of Burma radio service.
At the World Service’s 80th anniversary commemoration held in December 2012 at St Martin-in-the-Fields, I was particularly struck by the words of a young Ukrainian woman, who described how her parents had illegally concealed a radio beneath their floorboards and would bring it out clandestinely to listen to the news from London. She said that the proudest day of her parents’ lives was when she told them that she had secured a job at Bush House, where the BBC World Service was located from 1940 until 2012. Not without significance, the audience of the Ukrainian service has tripled in the past 12 months. A long-serving BBC foreign correspondent, Allan Little, recalls an elderly Jewish man in Paris who agreed to give him an interview because, as a boy in hiding in wartime Poland, the BBC was the only way he knew to keep on hoping. He also recalls the old independence fighter in Zimbabwe who hated the British yet, when he wanted to know what was happening in the world, listened in secret. He said, “We listened to you and we trusted you”.
Like many, Little regards the trust placed in the World Service and the BBC, fiercely guarded across the world and over generations, as a kind of covenant. Credibility and authority—what Peter Horrocks, the World Service director, calls “radical impartiality”—marks out the BBC from its competition in increasingly crowded airwaves and with the phenomenal growth of the internet. However, at a meeting held here just two nights ago, Mr Horrocks also pointed out that a broadcaster such as Al-Jazeera probably has a budget two to three times bigger than that of BBC News. If the BBC World Service is not to decline, I hope that the Minister will tell us that comparative resources will form part of the review of the BBC charter scheduled for next year. I hope that the Minister will also say something about the current ambiguity in the BBC World Service’s lines of accountability and its mandate.
On 1 April this year, a great and almost unremarked on change occurred when the Foreign Office ceased to fund the World Service. From now on, the £245 million bill will be borne by the licence fee payer. In January the House of Commons Select Committee which looked at this question voiced strong opposition to the plans outlined by the BBC Trust for wider commercialisation at the World Service. Its March 2014 report, The Future of the BBC World Service, outlined concerns about the impact of changes in the funding of the World Service.
Although the committee welcomed budget increases, it urged the BBC to announce detailed future funding allocations to allow the World Service to plan for the longer term. Many of us share the Select Committee’s apprehension that further commercialisation will both overinfluence the BBC’s decisions on where and what to broadcast, and diminish our ability to use the service to pursue foreign policy objectives. The example of the BBC World News offers salutary lessons. Conceived as the sister television arm of the World Service, this continuous news channel has 74 million viewers each week in 200 countries, and powerfully projects British values worldwide. Unlike radio, BBC World News is owned and operated by a commercial entity, BBC Global News Ltd, and relies entirely on subscription, advertising and sponsorship deals to survive.
The failure of the current business plan means that on the 17th of this month BBC World News is to announce what its managers are calling “significant savings”—that is, cuts. These will come on top of year 3 cuts to BBC News under the programme Delivering Quality First, which since 2010 has seen spending on news cut by 20% and the loss of 2,000 jobs in the BBC. The danger of the commercial imperative alone is that the BBC becomes dependent on it and, instead of seeing such deals as useful, it sees them as additional resource. It cannot be in the British interest for the BBC’s presence in the global media landscape to be increasingly subject to the vagaries of the ups and downs of the advertising market. It is bad for Britain’s business needs, and it is bad for the business of what Britain is all about. I hope that the Minister will do her best to allay those fears today.
In considering commercial factors versus our Article 19 obligation under the 1948 declaration on human rights to take no notice of frontiers but to communicate information worldwide, the Minister may want to comment on the example of North Korea, which was recently listed by the United Nations as a “country without parallel” and a perpetrator of human rights abuses. In the view of the author of the report, Mr Justice Michael Kirby, BBC World Service broadcasts to the Korean peninsula would be a welcome contribution to breaking the information blockade that imprisons North Korea. Professor Andrei Lankov states in his book The Real North Korea:
“The only long-term solution … is to increase North Korea’s awareness of the outside world”.
The noble Baroness, Lady Berridge, will say more on this subject when she makes her speech, and we will return to it in a Question for Short Debate in a few days.
Staying with North Korea for a moment, I particularly welcome the British Council’s English language work there, which I have seen first hand. I also welcome the work of the British Council in Burma. During my 2013 visit, I gave a lecture at the British Council library in Rangoon. I am told that the British Council receives more than 200,000 Burmese visitors to its sites in Rangoon and Mandalay each year. The libraries in Burma have more than 10,000 members and there is a network of 19 remote learning centres across the country. The British Council’s Facebook page has 340,000 “likes”—almost a quarter of the total internet users in the country.
The British Council was established in 1934 and incorporated by royal charter in 1940. It has 70 British Council teaching centres in 53 countries. It taught more than 1 million class hours to 300,000 learners in one recent year, and it describes itself as,
“the world’s largest English-language teaching organisation”.
I know that other noble Lords will speak more about its work, but let me give the example of Project English, which has benefited more than 27 million learners in India already. There is the Young Arab Voices initiative that has helped more than 25,000 young Egyptians, Tunisians and Jordanians. But in 2010-11 the FCO grant was 27% of the British Council’s income. In 2013-14 that grant is forecast to be less than 20% of total income and the proportion is projected to decrease, reaching 16% of total income by 2015-16.
Last month, the Prime Minister said that British values are,
“a belief in freedom, tolerance of others, accepting personal and social responsibility, respecting and upholding the rule of law”.
But he went on to say that these values do not come from thin air, and resources do not come from thin air either. We must be prepared to see the value of these amazing instruments of soft power and ensure that they are adequately resourced. Our military response to global threats and new forms of terror will always require hard power, of course, but we are disproportionate in spending hundreds of times more on hard power than on soft power. Combining the two, what Hillary Clinton has described as “smart power”, should be part of our approach. That is a view which was put by the House of Lords Select Committee on Soft Power and the UK’s Influence in its March 2014 report entitled Persuasion and Power in the Modern World. It said:
“The ‘reach’ of the BBC and the British Council is immense, and this certainly adds to their ability to enhance the UK’s soft power”.
Before I conclude, I highlight for noble Lords a particular work by a notable champion of soft power, the former US ambassador to Hungary, Mark Palmer, who died a year ago. I commend his book Breaking the Real Axis of Evil: How to Oust the World’s Last Dictators by 2025. We have just 10 years left to meet the deadline he set, and I believe that the BBC World Service and the British Council have a crucial role to play in achieving that. I pay tribute to Mark Palmer, and I believe that we in this country could learn much from his ideas. We can also learn from those put forward by the British Academy, which has said in a report:
“UK foreign policy is too often conducted in a compartmentalised manner, with the would-be benefits of soft power either judged to be outweighed by security concerns, or simply never taken into account”.
Soft power is, as the report concludes,
“likely to become more important in international relations over the coming years. UK governments can help themselves simply by recognising this, and by providing enough resources for the development and maintenance of its long-term assets”.
In moving this Motion, I ask the Minister what steps Her Majesty’s Government are taking to strengthen the deployment of soft power, how we are going to combine soft power with hard power, and to affirm, as I hope she will, our continuing belief on all sides of the House that the BBC World Service and the British Council are indispensable in promoting British values and interests throughout the world.
Baroness Warwick of Undercliffe (Lab)
My Lords, the number of speakers in the debate is testament to the huge respect in which both the World Service and the British Council are held in this House. I want to focus on the role of the British Council as part of the fabric that underpins the UK’s foreign policy, and our soft power. There are friends of the UK around the world for whom the first step towards engaging with our country was sitting in the library of the British Council office in their home city.
I have had a long connection with the British Council and was once one of its trustees. Since that time, the landscape in which the British Council operates has changed, and the council has changed, too. It is not widely known that the council now draws just 20% of its income from government, and as the noble Lord, Lord Alton, has said, that is set to fall further. The council exists to provide a public benefit. It has evolved to become a very significant social enterprise with a turnover of nearly £1 billion, but it operates in an increasingly commercial and competitive environment. Its bridge-building work between the UK’s cultural and education sectors, and those overseas, is funded by delivering commercial services. I have no doubt that this social enterprise model has created some challenges for the council, although I am glad to say that it continues to grow, to provide indispensable services and, most of all, to provide a network of well informed staff around the world. It is an exemplar of an entrepreneurial public service model and, in that context, offers excellent value to taxpayers.
I have seen this in the context of universities. The council’s network of international offices is envied by many of our competitors. It has the ability to provide market intelligence and to anticipate opportunities in countries where links are not well established. These are functions that we should protect and support, and I hope that the Minister will agree that the Government should continue to fund them. There is inevitably a tension between its cultural relations role on the one hand, and on the other the need to provide services for which universities are willing to pay. I believe that the council is well aware of this and is sensitive to it.
When I was chief executive of Universities UK, I created a small international and Europe unit. I am delighted to learn that this has grown to be a significant organisation, delivering millions of pounds’ worth of benefits by identifying opportunities, making links, influencing policy and negotiating collective agreements around the world. The council should be applauded for the way in which it has adapted to this changed landscape. It has recognised that it can be most effective by working in partnership with Universities UK’s international unit and with parts of government pursuing opportunities overseas, such as the UKTI education unit. I hope that the Minister will agree that it is important to ensure that those sources of support are well articulated, and work in complementary ways rather than creating confusion and duplication.
I like the fact that the British Council has been working closely with the international unit of Universities UK on an advisory service to help universities develop the rapidly growing area of transnational education. I like the fact that the council is working alongside Research Councils UK, the national academies, the international unit and a range of other bodies to deliver aspects of the Government’s newly announced Newton Fund, which supports research links with 15 emerging powers around the world.
Yes, the world has changed since the creation of the British Council. Yet it remains an important part of the UK’s effort to promote strong and lasting relationships internationally, including through education links. Reduced funding has necessitated changes in strategy, yet it has picked its way sensitively and effectively through this increasingly complicated terrain. It is a hugely valuable asset to the UK. We should be proud of it, and we should continue to support it.
Baroness Bonham-Carter of Yarnbury (LD)
My Lords, I thank the noble Lord, Lord Alton, for this debate. I speak on culture and media matters from these Benches, and I am an avid believer in the importance of the part played by both the BBC and the British Council in binding our nation together and defining us in the eyes of other nations. Yet their role and influence goes further, as was mentioned by the noble Lord, Lord Alton. They are also key to the UK’s successful pursuit of soft power, defined in the very good recent report of a House of Lords Select Committee as,
“the ability to affect others to obtain the outcomes one wants through attraction rather than coercion”.
The pursuit of soft power is essential to UK diplomacy—and prosperity—in the 21st century. I declare an interest: I am the Prime Minister’s trade envoy to Mexico, and in this capacity I have seen at first hand how cultural diplomacy is a major tool in pursuing collaboration on both an economic and a strategic level. In Mexico, the BBC is enjoyed, admired and trusted, and the British Council actively promotes British culture, language and values. Both are instruments by which those in Mexico understand who we are, what we stand for and what we offer.
2015 is the Year of Mexico in the UK and the UK in Mexico, and it will be a great mutual celebration. It will strengthen ties between our Governments, our people and organisations. This forging of greater bilateral trust and engagement will make both of us richer in every sense of the word. On the ground in Mexico, it is the British Council, alongside our embassy, that is making this happen.
I worked for the BBC across genres, across departments and across the globe. I remember that when filming years ago in the Gulf, a fisherman from Somaliland saw our camera and came up to talk. “BBC”, he said immediately, “BBC. We love the BBC”. He was talking about the World Service, which of course in those days was received through a physical entity known as a wireless, not through a wireless connection delivering to a multitude of platforms. The World Service has kept up with the times and now people across the world get their information through many devices, but whatever the device the BBC is respected as accurate, impartial, objective and free of national interests. This goes back to the Second World War. Penelope Fitzgerald, in her wonderful novel set in Broadcasting House, writes that the BBC was,
“dedicated to the strangest project of the war … that is, telling the truth”.
Over and over again we see people turn to it in times of crisis. Noble Lords may remember a photograph taken at the beginning of the Arab spring at a demonstration in Syria, of a young man holding up a placard with “Thank you BBC” written in English.
Charter renewal is upon us. I hope that my noble friend the Minister will agree that the BBC, funded by the licence fee, should be protected and celebrated. We on these Benches support the BBC taking over responsibility for the World Service from the Foreign Office, but the Minister will know that World Service funding has at this point been settled for only one year. Does she not agree that this makes important long-term planning difficult? I hope that she and the FCO will help in the charter process to ensure that the future of the World Service is not diminished.
Lord Williams of Baglan (CB)
My Lords, I welcome this debate on two renowned and much loved British institutions whose impact on the globe during the past century has been immense. We as Members of this House, and, indeed, the British people, can take great pride in what they have done to promote British values of decency, fairness and respect. Both the council and the World Service have ensured a lasting British impact and influence in all corners of the globe.
For reasons of time, and to reflect my own personal experience, I will concentrate my remarks on the BBC World Service. I declare an interest as a trustee of the BBC with responsibilities for the World Service. I should also note that I worked for eight years as a journalist and editor at the World Service’s then headquarters, Bush House, in the 1980s and early 1990s.
In a subsequent career at the United Nations I experienced at first hand, in Cambodia and the Balkans, how critical the World Service is for people caught up in the vortex of violence and conflict, where information is always the first casualty. In the Middle East, I have seen how vital are the BBC’s services in Arabic and Farsi, on radio, in television and online, for the peoples of that region, and perhaps now more than ever, when conflict rages and freedom of the press scarcely exists in any country from the Maghreb to the Gulf. The tasks facing the World Service are as great as ever. In this country, we look to the BBC for information, entertainment and education, but there are still all too many countries in this world where the BBC sheds light where darkness prevails. One of my former bosses, Kofi Annan, the former Secretary-General of the UN, declared the World Service to be Britain’s greatest gift to the world in the 20th century.
I am pleased to say that today, in a striking example of the BBC World Service’s continuing relevance and agility in adapting to changing circumstances, the Foreign Secretary has agreed to a new Thai language digital service being established. This online news service is responding to the need for accurate and impartial news and current affairs at a time when the Thai media are subject to censorship following the coup d’état of recent weeks. I welcome this move, which is of considerable importance. It may be a model suitable for a Korean service, which the noble Lord, Lord Alton, has advocated for some time. Although there are many difficulties in that regard, not least the funding, I salute the noble Lord’s endeavours. When I left the BBC in the early 1990s we broadcast in more than 50 languages, and nearly all on short wave. That number has now diminished to 27 languages, plus English. Our capacity in east Asian languages is much weaker than it was, making a viable Korean service difficult, although we have an online presence in languages such as Mandarin and Vietnamese.
I can testify that much of the focus in recent years has been on launching television and online services in Arabic and Farsi, which have had a great impact throughout the region. Nevertheless, the withdrawal from short-wave broadcasting during the past decade has been too fast, and in some cases deprived some of the most vulnerable audiences that the BBC World Service should serve.
Despite this, the World Service remains the most popular and best known of all international broadcasters. Yes, it is under pressure from competitors and budget cuts, but it is still primus inter pares. Following the financial settlement of 2010, it needs now to do more to show its relevance to licence fee payers.
Closure of the 648 kilohertz medium-wave service was a mistake and I propose to encourage the BBC Executive to do more to promote not only World Service language and World Service English but languages such as Somali, Urdu and Hindi, which have more speakers in our country than Welsh or Gaelic. The impact of the World Service on domestic radio and television has already been apparent, and we are seeing rather fewer white men in suits in the world’s trouble spots. I believe that as we embed the World Service further into the domestic BBC, our people will increasingly see its value at home and abroad.
Baroness Northover (LD)
My Lords, may I remind noble Lords that this is a time-limited debate? When the clock reaches four, noble Lords have had their four minutes.
Baroness Prashar (CB)
My Lords, I thank the noble Lord, Lord Alton, for the opportunity to debate this topic, and for his introduction. The BBC World Service and the British Council are, of course, two of the best instruments we have for promoting our values and interests. I am proud to be the British Council’s deputy chair. This year is its 80th anniversary, and it has retained the same mission for which it was founded in 1934. It has, however, transformed its economic model and changed the way in which it fulfils that mission, in response to changing times.
The government grant now represents less than 20% of the British Council’s turnover. Entrepreneurship delivers the rest. This means that, at a time of declining public sector funding, it has been able to grow its influence for the UK. Some criticise this approach, seeing it as a deviation from its core function. In my view the critics are wrong. The mixed funding model is the engine that keeps the British Council’s global network in more than 100 countries running at a time of austerity. If we want to continue to benefit from the 80 years of relationships and experience that the council has established, it would be unwise to change the mixed funding model that has proved its worth for the UK.
The British Council’s establishment in 1934 was a conscious effort to counter extremist views, and spread values of democracy and free speech around the world. It has continued that work by taking the long view and maintaining a lasting presence in countries, even in circumstances when other forms of engagement are no longer possible. That continuity of presence and purpose has been central to the organisation’s success, and in creating the conditions for sharing our values and strengthening our business ties.
It was the British Council’s lasting presence in the countries of the former eastern bloc that proved so important 25 years ago. Staying in places such as Romania and Poland through the tough times meant that it was able to support these countries’ transformation into liberal open democracies. I could go on and give a number of other examples, but time does not permit.
The British Council’s cultural and artistic work, in today’s digitally connected world, is based on reciprocity —that is, on developing a shared understanding of the world through collaborative effort. This is the approach that we are currently using, for example, to work with South Africa to mark the celebration of 20 years of democracy, which will benefit not only South Africans but those in the UK.
The British Council’s school in Madrid, Spain, which opened in the 1940s during the years of dictatorship, offers bilingual and bicultural education, and was quite explicit about its intention to inculcate values of freedom, honesty, integrity and creativity. Now this school, in a different way, serves the same purpose as the British Council’s work in South Africa—promoting the aspects of our national life that are attractive to others, not least the excellence of our education and the values that underpin it.
This work does not set out overtly to export “British values”, but it is an indirect way of sharing important values—by keeping conversations going and by keeping doors open to exchange views, ideas and beliefs. Reciprocity and longevity are central to the British Council’s success, but those values do not always fit comfortably with the rather utilitarian and short-term views of those looking for immediate results.
The British Council has always had a degree of separation from the political arena and has had operational independence. Repeated studies and recent reports have shown that soft power should be, or appear to be, not closely state-directed. Those reports build on the Foreign Secretary’s concept of a networked world, which best sums up how the council will need to operate in future. That means that the British Council needs not only support but better understanding of how it operates and why. As the salience of soft power has increased, it is all the more important that the factors which have made the British Council so effective for 80 years are protected.
I should therefore be grateful if the Minister would assure the House that the Foreign Secretary and the FCO will do all that is required to ensure that the British Council’s entrepreneurial model and ethos will be supported. Any attempts to tamper with it or change it, as suggested by some, will be resisted—albeit with the promise of continuous improvement from the British Council. It would also be helpful to get an assurance that the British Council’s operational independence from government will be maintained.
Baroness Northover
My Lords, I remind noble Lords that when the clock reaches four, they have had four minutes.
Lord Sheikh (Con)
My Lords, I am pleased to speak in this debate. I think that we all appreciate the importance of soft power in the modern world. We must therefore make friends and influence people overseas. I am very supportive of the BBC World Service and believe that it provides a truly valuable service, but I shall focus today on the work of the British Council.
The British Council is the UK’s international organisation for cultural relations and educational opportunities, building lasting relationships between the UK and other countries. The British Council has been building long-term trust, people-to-people connections and international opportunities for the UK for more than 80 years. Each year, it works with millions of people on six continents and in more than 100 countries. It is an essential part of our international effort to promote British values and interests.
I speak as someone who has benefited from the work of the British Council. Growing up in Uganda, I found the British Council to be an extremely helpful and informative organisation. The regional representative of the British Council used to come to our school to give talks. There was a British Council library in my home town, and I used to borrow books from it frequently. It was through the British Council that I learnt about Britain—its constitution, institutions and values. Indeed, my first knowledge of this House doubtless came as a result of the British Council. Little did I know that I would end up in your Lordships’ House one day—I would never have dreamt that when I was young.
I came to the UK to study by myself, and my family arrived later. When I came to Britain, I stayed in a British Council residence: first in Knightsbridge and, following that, in Lancaster Gate. The council also helped me to find private accommodation in London and once, when I was once in hospital following an injury, a lady from the British Council used to come to see me frequently.
I have nothing but admiration for what the British Council does. I have continued to support it in my work ever since. I have travelled a great deal abroad and have spoken to representatives of the British Council all around the world, including in Bangladesh, India, Malaysia, Sri Lanka, Kenya, Jordan and Nepal.
The British Council does admirable work, but in this country, at least, it is not good at telling people what it does. We must therefore publicise its work. I was pleased to learn that only 22% of the British Council’s funding comes from government, with 63% coming in the form of fees and income from services. By 2015, government funding will be less than 20%. I am pleased that the British Council seeks to maximise earned income to minimise the cost to the public of its activities.
The activities of the British Council can be summarised under the following headings: English examinations, language school accreditation, arts, education and society and overseas development assistance. As noble Lords will be aware, the British Council’s activities are under review, with the findings expected later this year. I would like to add my views on the subject.
I have already said that more needs to be done to promote the work of the British Council. I also think that the British Council could move out of central government, with its multifarious activities taken over by the private sector. I also believe that we need to put more power in the hands of local groups. The British Council is already a very good employer in the areas in which it operates, but individual facilities must be given more autonomy. However, they must work hand in hand with our embassies to ensure a joined-up approach to our overseas activities.
I am passionately supportive of the British Council and hope that the Government continue to give it the support it needs to carry on with the work that it does so well.
Lord Eames (CB)
My Lords, the House must be in the debt of the noble Lord, Lord Alton, for giving us the opportunity to debate this Motion. The expertise that is exposed in the contributions that we are listening to from all sides of the House speaks for itself. Perhaps I may presume to add two human faces in support of the BBC’s overseas programmes.
The first takes me back to the days of the hostage crisis in Beirut, in Lebanon, when I was privileged to lead the efforts on behalf of the Archbishop of Canterbury to gain the release of the hostages—British and Irish. I remember well the incident when a student in Beirut, with the gunfire surrounding us and the thunder of the gunfire filtering the air, said to me, “But for the BBC, we wouldn’t know what the outside world thought is going on”. That was a simple incident.
More recently, I visited North Korea, which the noble Lord, Lord Alton, highlighted in his words a few minutes ago. From a most unlikely source, there was a remark that will live with me for a very long time. Obviously, I cannot disclose the complete circumstances, but the words speak for themselves. “Where”, he said to me, “is the BBC?”. If you knew the person who said that, the circumstances and the position that he held, it would set the balance right of many of the impressions that we have of what is going on in North Korea. Those words speak louder than statistics, transmission problems and the facilities needed, and I convey them to the House with great feeling.
In the present situation, vastly different to 1932 when this all began, with global conflicts and the transition from hard to soft power, the tactics that the BBC now employ to maintain that lifeline—a lifeline of voice, sound and meaning on behalf of our nation—must be maintained. Those of us who have contributed to the BBC’s overseas service, who welcome it and admire it, are among those most anxious that, in this period of financial change, everything is done in the new circumstances to maintain and advance the global role of such a service.
I implore the Minister, when she considers what she hears in this debate, to give serious consideration to those of us who worry that although a budget may be set forth with great hope and vision, there are always circumstances in which political reasons can be found to change it. I, for one, plead with her, as one who has been impressed with the way in which she listens to arguments such as this, to reassure the House that those fears are unfounded.
Lord Watson of Invergowrie (Lab)
My Lords, I congratulate the noble Lord, Lord Alton, on securing this debate, but I regret that he included the word “values” in the Motion. Not surprisingly, he said little about values in his opening remarks and made no attempt to clarify what those values are. That is my point.
We had a debate in this Chamber two weeks ago on the question, which was utterly inconclusive. It is instructive that both the British Council and the World Service in the briefings provided to noble Lords for this debate tried to define British values. The British Council described them as “respect and tolerance”; the World Service listed “fairness, integrity and independence”. “British values” means different things to different people; there is very little consensus on what the values are. Therefore, until such time as there is a settled view on what British values involve, it should not be seen as the role of the British Council, or indeed the World Service, to promote them, because what are they promoting?
The British Council and the World Service are institutions which I have supported and worked for and with for many years, and I have the greatest respect and admiration for them. Both have had to adapt to the effects of cuts in funding in recent times and each has accepted the challenges that brought with a determination to maintain their high standards and long reach. The British Council has had to bear a reduction in its FCO grant of around a quarter between the year 2009-10 and now. Rather than scale back its activities, it has grown its self-generated income and is on course to fill that gap. That is very much to be welcomed.
Every year with the assistance of the British Council more than 2 million people in more than 90 countries sit international exams leading to qualifications that improve their employment and life prospects in an increasingly competitive global market. However, the council’s activities form a two-way street, because by presenting the best of the UK’s cultural assets abroad they attract tourists, students and inward investment to the UK and build links between higher education institutions in the UK and overseas, expanding the exchange of research and innovation which benefits our economy.
The Foreign Secretary is currently considering the recommendations of the council’s triennial review and I hope he will ensure that when implemented it adequately reflects the fact that the British Council is a long-established and continuing success story which does Britain proud. Quite simply, if it did not exist, it would need to be invented. The same can be said of the World Service, which reaches more people worldwide than any other international broadcaster. Independent surveys consistently rate the BBC as the most trusted and best-known international news provider, as other noble Lords have already mentioned.
Three months ago the World Service underwent a fundamental change in its funding model. It was predicted prior to that—not least by a committee in the other place—that the move to licence-fee funding would see a reduction in services and quality of programmes, yet we hear that its funding this year has actually increased by more than £6 million. That is obviously very welcome, because despite suffering funding cuts in 2010 which led to the loss of a fifth of its staff, the World Service weathered that storm and today it can be said to be in very good health, with audiences are up by some 9 million on last year. I think it was the noble Lord, Lord Alton, himself who referred to the situation in Russia and Ukraine as being largely responsible for that. At times of crisis, people know where to turn for dispassionate, fact-based reporting, delivered professionally by World Service staff on the ground.
I believe there remain concerns about governance. The man in charge of the World Service, Peter Horrocks, does not have the top-table seat in the BBC enjoyed by his predecessors, and secure guarantees are required over safeguarding the distinct nature of the World Service into the future. Equally, it is essential that the World Service should be taken into consideration when conversations around the BBC’s charter review and decisions about the future of the licence fee take place.
It is to be hoped that those in senior positions both at the BBC and indeed in government fully appreciate the huge asset that the World Service is both to the BBC and to Britain.
Lord Ramsbotham (CB)
My Lords, I, too, congratulate my noble friend Lord Alton on obtaining this important debate. I am particularly glad that he mentioned the wider context of the soft power role of the World Service and the British Council in promoting British values and interests. I declare an interest as a member of the recent Select Committee on Soft Power and the UK’s Influence and as a member of the Joint Committee on the National Security Strategy.
My own practical experience of the BBC World Service was honed in Kenya and it became an affection when I was commanding a base on the remote border between Borneo and Indonesia during confrontation. My appreciation of the British Council was warmed four weeks ago when, with the All-Party Parliamentary Group on Egypt, I visited Cairo. We were very impressed, first by the energy of the director of the British Council there, and secondly by the fact that he brought together some very interesting young students of English from Egypt who were able to explain to us the youth verdict on what was going on in Syria in a way in which we might not have otherwise realised.
I want to concentrate very briefly on three recommendations in the Select Committee’s report and say something about each of them. First, we stated:
“We are concerned that the Government are not currently doing enough to support the BBC World Service, and we urge the BBC and the Government to ensure between them that the BBC World Service’s budget is not reduced any further in real terms, and the opportunities for coordination across multiple platforms to deliver content are taken”.
The Government said that they disagreed with our recommendation but warmed us a bit by saying that they were currently working on a memorandum of understanding between the Government and the BBC.
Secondly, we stated:
“The Committee supports the use of DFID funding to assist the BBC's development work, and we urge further consideration of how this type of support can be expanded”.
We were very glad that the Government welcomed the support for DfID funding because that opens a much wider consideration of the way DfID funding is applied anyway.
Thirdly, on the British Council, we recommended:
“The Government must ensure that the British Council is properly resourced”.
The response we got was:
“The Government is firmly committed to the work of the British Council and recognises its significant contribution to the UK’s strategic interests through its work … and the Government will continue to work with the British Council on future funding”.
I took particular encouragement from the use of the words “United Kingdom’s strategies” because they suggest that soft power was being considered in wider terms than it had been before.
Reverting briefly to the committee, witnesses we had were effusive in their praise of both institutions. In particular I was very glad that the trust they both engendered was mentioned. I like to think that the tide is now flowing in favour of soft power and I am very glad that the momentum initiated by my noble friend’s debate today may be maintained both by the debate on the soft power report and in the national security strategy 2015 when that is produced.
Viscount Colville of Culross (CB)
My Lords, I, too, thank my noble friend Lord Alton for securing this debate. I declare an interest as a producer at the BBC.
Noble Lords know the great reach of the World Service but I have my own experience. I was filming with the Evenki reindeer nomads in Siberia, 1,000 miles north of the Arctic circle. One evening, the young blades were going to take us to their nomad camp. It was supposed to be a three-hour journey. Unfortunately, they got a bit lost and it turned into a six-hour journey. The temperature was a little parky—minus 46 degrees. When finally we arrived at the camp, you can imagine our relief when we were shown our tent. Inside, warming the tent, was a marvellous gummy old Evenki lady who was chewing reindeer ligament to make it into thread for sewing. She looked at us and said, “I am so very pleased to meet the BBC. I have listened to you all my life. I have listened to your services through communism, through the chaos of democracy and through the autocracy of Putin. It shaped my view of the world. It shaped my view of my country”. I found that moving and very warming, literally.
Many noble Lords have spoken of the extraordinary work done by the World Service to project soft British power across the world and to shine a bright light of truth in places where it is being smothered by darkness and lies. I want to talk about the extraordinary work of my colleagues in the Russian and Ukrainian service of the BBC, who have seen the biggest audience increase of any service this year, to 14.5 million visitors monthly. It is not surprising as the Russian broadcast media has almost completely been taken over by government supporters pumping out nationalism and anti-western sentiment.
Earlier this year, when the Russian Government annexed Crimea, the anchor on the main Russian news announced that Americans must not forget that Russia can turn them to dust in 10 minutes. That was the anchor, not the Defence Minister or a nationalist. However, he has a point. Russia has a nuclear arsenal, an increasingly disciplined and well equipped army and a leader who appears to be prepared to attack its neighbours.
One of the great casualties of this year’s events in Ukraine, as in so many other conflicts, has been truth. The people of the Russia and Ukraine need disinterested news reporting to understand what is happening in their countries, and the BBC is providing that. I cite an example. In May this year, a bus carrying separatist troops was attacked outside Donetsk airport, and a number of separatists were killed. On that day’s evening news the Russians claimed a Red Cross vehicle carrying injured separatists to hospital had been hit by Ukrainian jets and 30 people killed. A Russian website even Photoshopped a picture of the Red Cross symbol onto the side of the vehicle. The BBC simply showed a picture of the vehicle, which did not have the Red Cross symbol on it. It reported that a vehicle with separatists on board had been attacked, it was not known how many were dead, and it was not known at that moment who had attacked them. The values of BBC journalism mean that reporters do not just say what they know but, equally importantly, say what they do not know. However, it is not just what is reported; it is also the tone and words used to report, which is so crucial. The Russians call the fighters in eastern Ukraine “supporters of federalism” and the Ukrainian media call them “terrorists”, while the BBC simply calls them “separatists”.
The inclusion of World Service funding in the licence fee means that whatever comes out of the charter discussions will affect it. We are told that another freeze in the licence fee would be a brilliant outcome, an improvement on the threatened move to a subscription service, which is being talked about. I ask the Minister to make sure that the funding is protected. People ask me why the licence fee payers of Britain should pay for the rest of the world to get the BBC when we do not benefit. In fact, World Service reporting increasingly affects the BBC journalism we receive in this country. Journalists from the World Service are used to report on our main news broadcasts in Britain. Last week, for instance, when there was the attack on Slavyansk in eastern Ukraine, there were no main BBC reporters present. The World Service reporters were the only people there. If you cut them you will also cut the news service that we receive here.
The BBC World Service is a global treasure which must be guarded and nurtured. I am so very proud to be the citizen of a country that supports an organisation transmitting what I see as British values: truth, free speech and democracy.
Lord Loomba (LD)
My Lords, I pay tribute to the noble Lord, Lord Alton, for initiating this important debate. In my brief contribution, I want to focus on India and education.
Taking first the BBC World Service, one of the many advantages of this wonderful institution is that radio broadcasts are available in Hindi. This increases the awareness of British current affairs enormously, which contributes to the cultural interaction between India and Britain. The English-language programmes provide something similar. For example, the “World Have Your Say” programme facilitates discussion of current affairs and cultural ideas, while documentaries increase knowledge and interest in British culture and events. Such programming can also assist in British efforts in international development, through the promotion of British values and increasing mutual understanding between the two nations.
Importantly, the English-language broadcasts also encourage the listeners in their own use of English and therefore provide an invaluable learning tool. There are resources devoted to the BBC “Learning English” programme, which provides free language-teaching resources to those studying English in India. It is clearly of great benefit to everyone involved that the ability to speak English is spread as far as possible. For example, many English speakers in India are of great benefit to British industry in India.
I should like to ask the Minister whether the Government have ever carried out any focused research on how far the BBC World Service is responsible for educating listeners about British culture and British values, particularly in India. Have people been asked why they choose to listen to the BBC World Service? Do we know what they get out of it? Do we know what they would like to see more of? I would be interested in the answers to these questions. If they are not being asked, I would suggest that perhaps they should be.
Turning to the British Council, the UK-India Education and Research Initiative is a programme that develops leadership, innovation and technical skills in leading educational institutions in India. In turn, this develops partnerships between these institutions and British universities, as well as with industry in the United Kingdom. This programme is supported by both the Foreign Office and the Department for Business, Innovation and Skills; but the initiative I have highlighted would not have happened without the British Council. It is a vital tool in promoting Britain to the rest of the world, and is invaluable in shaping the way in which Britain is viewed.
Lord Empey (UUP)
My Lords, there is so much unanimity about the House today that we are in danger of being over-repetitive. However, in a world increasingly dominated by social media, which shape the views of so many impressionable young people around the world, the World Service can provide the United Kingdom with an opportunity to project in a professional and authoritative way our views on key global events. One has only to look at the propaganda that is being put out on social media by the ISIS people, who are brainwashing a young generation of people, including, sadly, people in our own country. But the one thing we do not want the World Service to become is an instrument of propaganda. It must retain a degree of independence and objectivity; otherwise its credibility throughout the world will be lost.
A number of noble Lords, including the noble Lord, Lord Watson, who is not now in his place, and the noble Viscount, Lord Colville of Culross, mentioned the position of Ukraine and Russia. I did not think that I would see in this day and age Cold War-style propaganda coming from Putin and his people. The reports that I listened to were so outrageous, so inaccurate and so misleading. Indeed, they were very dangerous because we know from experience that inappropriate reporting can lead to actual death and destruction on the ground. The material that was coming from Russian sources was absolutely outrageous. Having a source, an anchor, from which people can get reliable information, particularly if it comes from one of our own institutions, is something about which we should be proud.
I have to say that I have some more general concerns about the BBC. I know that the House will return to that issue when the discussions on the licence fee and so on come up. The BBC has perhaps lost focus in recent years. We have seen senior executives coming to the other place to defend the indefensible. That is most unfortunate. However, it is things such as the World Service that give many people in this country a sense of pride that there is something there to defend, protect and ensure. I often wonder whether the production of mindless game shows and other such programmes is really the core of the public service broadcasting ethos that I am sure many people in this House would wish to protect. However, we will have an opportunity to return to that issue. We certainly have not heard the last of it.
I am sure that the Minister will wish to look at the accountability aspect. The report from the Select Committee asked, “Do we want to have proper accountability to Parliament for the activities of the BBC in general?” We certainly do. If the accountability mechanisms are there, a lot of the problems that we have had in recent years will no longer be so strong.
In summary, I must say that the World Service is something that we are very proud of; it is something that is very successful; and I sincerely hope that it is long spared to promote truth and justice throughout the world.
Baroness Coussins (CB)
My Lords, I will focus on the ways in which the World Service and the British Council need and use foreign languages. I do not question for a moment the importance of teaching and learning English around the world. However, in the 21st century, speaking only English is as much of a disadvantage as speaking no English.
I declare an interest as chair of the All-Party Group on Modern Languages, whose secretariat is provided by the British Council, and as one of the vice-chairs of the British Council All-Party Group.
The World Service operates in 28 languages. Five of the language services were cut following the spending review in 2012 and others were reconfigured to reflect changing use of media. The Hindi service was one of those cut, but then reprieved—I believe because of a commercial funding partnership. I should be grateful if the Minister could clarify how the very successful Hindi service is now funded and whether it is now secure. What of other language services that were not reprieved? For example, I believe that there is no longer a service in Spanish to Cuba, or in Portuguese to Africa. Perhaps the Minister could say whether these two have been reviewed. It is the Foreign Secretary who decides whether to open or close a language service. I should like to know what the criteria are, what the process is, and who else is consulted.
The World Service plans to boost language service websites, do more multilingual programming and more translation of key TV programmes. Multilingual journalists do such a great job because they bring not only language skill but the local and cultural knowledge that goes with it. They can analyse and interpret, interview and comment, in a way that no monolingual could ever hope to. However, the pipeline of talent for multilingual journalists is in danger of drying up. The UK lags well behind our international competitors and things are getting worse. GCSE take-up has improved but there is an alarming drop at A-level. Forty-four British universities have scrapped language degrees since the year 2000. We are not taking advantage of the linguistic talent of the 4.2 million people in the UK whose first language is not English but who speak some of the languages in demand for business, diplomacy and the World Service. These include Korean, Arabic, Turkish, Mandarin, Pashto and Farsi.
The British Council plays an important part in keeping this pipeline open. It supports thousands of students every year through the Erasmus programme. It brings native speakers into UK classrooms—nearly 2,000 last year—through the language assistant scheme. Its partnership with HSBC promotes Chinese. Other schemes support school partnerships with francophone African countries to support French, and with Brazil to develop Portuguese. Despite this, only 9% of English 15 year-olds are competent in a foreign language beyond a basic level compared with 42% across 14 other countries. Languages are compulsory up to age 16 in 69% of independent schools, but in only 16% of state schools. It will be 2025 before we see the full impact of the Government’s policy on key stage 2 languages. In the mean time, a whole range of relationships, services and functions which collectively constitute the kind of soft power spearheaded by the World Service and the British Council could be unsustainable unless the Government get a grip our languages deficit.
I ask the Minister, finally, whether she will initiate a coherent cross-departmental languages strategy. The FCO has continued responsibility for the World Service language services, as well as being the department with a most excellent resource itself in the language centre, so it surely has the authority and the enlightened self-interest to take this step.
Baroness Hooper (Con)
My Lords, I, too, welcome this debate and thank the noble Lord, Lord Alton, for introducing it so thoroughly. Because they operate overseas and mainly to overseas audiences, both the BBC World Service and the British Council—particularly the latter, perhaps—are not widely understood and appreciated in this country. More should be done to raise their profiles with the taxpayers who fund them.
Given the number of excellent and informative contributions today and the quantity of briefing that has been put together, as well as the Select Committee report on soft power, there is clearly plenty of evidence of the valuable roles that these institutions play in promoting the United Kingdom and its values and interests worldwide. So I do hope that this debate is well reported. It may be that the British Council’s cultural programme for the Commonwealth Games in Glasgow will also be helpful in bringing its role to the attention of the British public.
As a member of the all-party group on the British Council, I intend to focus on this side of the debate. The all-party group which is chaired by the noble Lord, Lord Bach, has given us, in both Houses of Parliament, the opportunity to hear from a series of regional directors who operate in the Middle East, China, Latin America, Afghanistan and elsewhere. From these meetings, the way in which the British Council’s educational role, in particular the teaching of English, visibly supports the UK efforts to maintain and increase trade and commerce is made very clear. Sadly, these meetings are not always well attended by Members of Parliament, which suggests that many do not perhaps consider this area of their work as a high priority. I think that is terrible. It means in turn that when budget and funding issues arise, there may be insufficient champions of these institutions in the other place. Perhaps after the next election we can do something about that.
In the few minutes that remain, I would like to revert to an issue that I raised with your Lordships on other occasions. As has been said, the British Council does valuable work overseas in promoting British universities and other educational establishments in selection processes for fellowships and scholarships, and also in encouraging the formation of student alumni associations in various countries in order to maintain the links that have been formed. I am particularly aware of this in Mexico, because there are significant numbers of Mexican students who come to this country and many of them become leading figures in the political world and in industrial fields. Maintaining that link is important and valuable.
I believe there is also a role for the British Council in this country. In the old days there was a British Council presence in most university cities—my noble friend Lord Sheikh referred to this. The British Council provided a centre not only for overseas students to meet and relax but also where they could meet British people. Too often nowadays students come to this country and remain in an international grouping, having little or no contact with British people or the British way of life. It is not likely that we will be able to return to the concept of a British Council house in every university city, but if the British Council were to take a lead in providing co-ordination in this area, I ask my noble friend whether the Government would be prepared to support it.
The Earl of Sandwich (CB)
My Lords, honest and accurate reporting plays a vital role in conflict, as my noble and right reverend friend Lord Eames reminded us just now. We all benefit from the risks that these men and women take in the course of their duties. We would do well to remember them more often.
I sincerely congratulate my noble friend Lord Alton on securing this further instalment of a time-honoured debate. The BBC World Service has a well deserved reputation for the integrity and honesty of its reporting and for its diplomatic outreach. It is also highly respected among news reporters themselves, who are the best judges of what can and cannot be trusted. I have some experience of the World Service in developing countries. For example, I thought highly of Focus on Africa for many years and I occasionally contributed to it.
I was pleased to learn that the Afghan service is not winding down in line with ISAF’s defence arrangements but will continue. The BBC reaches around 25% of those in Dari-speaking areas and 21% of those in Pashtun areas every week, which is quite a high proportion. Perhaps the Minister will confirm that the FCO and DfID will continue to support programmes such as the radio soap opera “New Home, New Life” and “Afghan Woman’s Hour”. Many such programmes have international development content, as my noble friend Lord Ramsbotham mentioned, and a BBC survey found that 39% of listeners to “Afghan Woman’s Hour” were men learning about women’s issues such as domestic violence and equality of opportunity.
There have been other successes through the training of local journalists, including refugees: Yalda Hakim, who was born in Afghanistan in 1983 and fled with her family into Pakistan, later returned to Kabul as an Australian broadcast journalist and is currently working for BBC World News.
As has been said, it was a great disappointment to those who follow eastern Europe that under the 16% cuts proposed in the review several services were scheduled to close, including those in the western Balkans. This came at a time when the concept of European Union enlargement not only had become a priority but was one area where the EU could demonstrate considerable success. We have heard since then that through force of circumstance there seems to have been a change of heart. I understand that the Ukrainian service has been much more active, with more local journalists, and has trebled its audience. What changes have taken place in the coverage of events in eastern Europe? Are people there becoming limited to online and digital services, or do they benefit from the full range of live radio reporting?
It is an important time for our relations with Russia. The BBC’s Russian service seems to have continued and expanded its audience, but I would like to hear whether the Minister thinks it is going to confront the Kremlin’s hostile propaganda about the European Union. Incidentally, I recommend to colleagues the BBC’s monitoring service, which, in spite of cuts, still collects news from all around the world. This week, for instance, I learnt that the St Petersburg migration service has had 22,000 applications from would-be migrants and refugees from Ukraine—only on the World Service.
I will say a final word about the British Council, of which I am an enthusiastic supporter. Its office in Juba, South Sudan, remained open throughout the conflict last December. This is an excellent example of the transformative value of culture during conflict. The council has developed an amazing and daring range of projects, and I hope that it will be able to reopen its office and continue.
Lord Crisp (CB)
My Lords, I congratulate my noble friend on securing this debate and on putting values and British interests centre stage, and indeed on linking them. We may not be able adequately to define British values, but I think that all the versions we have seen are pretty compatible with each other. I am also very clear that British values are central to the UK’s reputation and influence in the world. Like others, I see this around me in many different parts of the world.
I agree with my noble friend Lord Alton’s concerns about the resources and support for the World Service and the British Council, and will listen to the Minister’s answer with great interest. The report from the British Academy that has been referred to encouraged the Government to invest in and sustain soft-power institutions such as these over the long term and at arm’s length. That seems to me to be the right formula. That report also pointed out that everything British people do abroad is taken as a representation of the country or a projection of Britain abroad, and it referred to the compartmentalisation of government on this. Those are the points that I want to take up, and I shall ask three questions about them regarding these two great institutions—in other words, how they link with other British activity abroad.
I shall start with what I know about, which is health. You cannot now run the Department of Health or the NHS without having a global perspective on national policy. This means many things, from sharing in the management of global epidemics to, just as importantly, the mutuality of learning and sharing of research in policy development. There is now an established tradition of health as foreign policy and health diplomacy. I am delighted that the Government have set up Healthcare UK to lead this work and to develop these relationships, building largely on the NHS; what could be more emblematic of British values than the NHS? I believe that this is true in other areas and assume that therefore most, if not all, domestic departments need to have some kind of foreign policy, if you like. I wonder how strongly government departments are encouraged to develop relationships with the World Service and the British Council to develop this role.
The comments about activity being a projection of Britain abroad also reflect the importance of civil society and the links of all sorts between hospitals, schools, villages and commercial organisations that exist across countries and continents. Moreover, in today’s atomising society, people-to-people links are more important than ever. People get their news, information and opinions from diverse sources. People are influenced by people like them. National boundaries have become largely meaningless in the way in which people relate to each other around the world. In that context, I also note that today’s Britain is rich in diversity of cultural backgrounds and languages, and in familial and religious links that circle the globe. These, too, are a projection of Britain abroad, a daily, hourly, minute-by-minute and perhaps second-by-second source of interactions globally.
These reflections leave me with three questions for the Minister. What can she say about relationships between domestic departments, such as health and education, and the World Service and the British Council? Do these organisations reflect the full range of interactions and possibilities, or is there more that should be done to encourage these departments to engage? Secondly, what contribution can and does the very diversity of the UK population make to the UK’s soft power? That question may go a bit beyond the remit of this debate but it links to my third question. I would be interested to hear the Minister’s reflection on how effective the Government think these two great institutions, the World Service and the British Council, are in using and harnessing the power of electronic communications and social media to project and develop the UK’s reputation globally.
Lord Parekh (Lab)
My Lords, I, too, congratulate the noble Lord, Lord Alton of Liverpool, on securing this debate. I shall introduce three reservations about the discussion that we have had. First, I do not think that it is a good idea to couple the BBC with the British Council. We should not lump them together because they play different roles in our policies. The British Council is expected to promote Britain abroad in a way that the BBC is not; the latter is an independent organisation and expected to be a voice of impartiality and objectivity.
Secondly, although both are asked to promote British values and interests, we are not entirely sure what British values are specifically in mind, especially in relation to other countries that share almost all our values. When we talk about British interests, we also need to bear in mind that there can be genuine disagreement between two political parties, or between the British Council and the BBC itself, about what British interests are. We should therefore allow for a divergence of views.
The third thing that slightly worries me is the notion of soft power. I have always felt uneasy about it because it seems to be an oxymoron; if it is too soft then it cannot be power, and if it is power then it cannot be too soft. I generally find that if everything is geared to the mobilisation of power, we are in danger of corrupting almost everything that we value because it then becomes an instrument of mobilising power. I want to stay away from the language of “hard power” or “soft power”, whatever “soft power” may mean, and talk instead in terms of moral authority. We as a country want to be trusted and respected; our intentions should be recognised as honourable and other people should want to listen to us. When we express an opinion, people should say, “That’s a mature society reflecting a view. We’d better hear it”. This is not the same as soft power because it is simply us being ourselves, living up to our own ideals and, in the process, exerting a silent influence on others, not deliberately but through people recognising that we have something to say and respecting our moral stature.
Having got rid of these three general points, in the minute that I have left I want to turn to three questions that I have for the Minister.
First, so far as the BBC is concerned, people are simply amazed that we in this country should have an organisation which we fund and over which we can exercise control and yet we restrain ourselves and allow it to speak freely, including criticising the country. The BBC already exemplifies an extremely important value. That means that we should keep a distance between the BBC and the FCO.
Secondly, we are not entirely clear about the role that ethnic minorities can play in projecting Britain abroad. They are our ambassadors and they should be invited to play an important role in the thinking of the BBC and the British Council. I am thinking, for example, of the fact that the Foreign Secretary has announced that we will be having a statue of Mahatma Gandhi in Parliament Square. That is one thing in which the Indian community here could be more effectively involved—certainly, the Gandhi Foundation, of which I happen to be the president. The Gandhi Foundation and other bodies have views on what kind of statue to have and how it should be organised and so on, and I recommend that they should be involved.
Lastly, while the British Council has an important role to play in projecting Britain abroad, I am not entirely sure that it has always been as imaginative and inventive as it could be. Great changes are taking place in the world at large—in India, for example. The British Council could play a major role in bringing the debates that are taking place in India to Britain. Likewise great change is taking place in Britain and those debates could be projected to India so that people can become familiar with how profoundly Britain is changing. I hope I have made some of the points I wanted to make and I would welcome a response from the Minister.
Lord Jay of Ewelme (CB)
My Lord, I have great admiration and respect for both the British Council and the BBC World Service but I want to focus in the few minutes I have today on the BBC World Service. If I may be allowed one small comment on the title of the debate, I would have preferred to talk about the BBC World Service as promoting British interests through promoting British values, which would have guaranteed the independence and objectivity that are so important to it and to which other noble Lords have referred.
The BBC World Service has built up a huge and justified reputation for clear and objective reporting of developments around the world, and it is listened to for that reason. The more closed and controlled the regime abroad to which it is broadcasting, the more important its broadcasts and values are to the people who listen to it. That is why a number of noble Lords who have spoken today, and whose views I share, would very much like the BBC World Service to be broadcasting to North Korea. I know there are difficulties in that but I think it is an aspiration that it should keep.
Those who listen to the BBC World Service in countries like North Korea know that the broadcasts come from London but what is even more important is knowing that they are independent and unbiased. For that reason I, for one, am glad that the World Service is now funded from the BBC’s budget and not from the FCO’s. When I was in the Foreign Office and travelling, for example, in Moscow, Tehran and Beijing, I found a certain wry scepticism as to whether the BBC World Service could be genuinely independent when funded by the state. The BBC is seen as pretty independent, largely because every Government thinks it is part of the Opposition. That seems to me to be a better place for the BBC World Service to be. I am sure that Members of this House and others will put the necessary pressure on the BBC to ensure that the World Service gets the support and the funding that it needs.
Perhaps this is rather daring in the light of what one or two others have said, but I want to finish by saying a word or two about the values that we hope the BBC World Service and the British Council will promote. The British Council sums those up pretty well in its latest annual report, speaking of our openness and pluralism as a society, to which I would add tolerance. These values come under attack from time to time, sometimes from within, sometimes from without, but they seem to have an enduring quality. They include an openness to ideas; an outward-looking society; a free if, we hope, responsible press; and a plural society, open to and respecting different cultures and faiths as long as they respect us too. We do not always keep to that, of course, and our press and the social media tend to focus on our failings and not our success. I thought it sad last week that more prominence was given to the intemperate remarks of a young Briton in Syria than to the appeal by British imams, Sunni and Shia, for those who want to help those suffering in Syria and Iraq to do so through respectable and responsible charities rather than through fighting. I would add to that list of values a tolerance of others and a respect of others’ views at home and abroad. It seems to me that openness, pluralism and tolerance within a democratic society governed by the rule of law are important values in an unstable and rather dangerous world. The more that the BBC, particularly the World Service, can do to promote those values overseas in its own way, the more it is not just helping those who live in other societies but promoting British interests too.
Lord Luce (CB)
My Lords, I agree entirely with my noble friend Lord Jay that really what we are debating today is the promotion of British interests through British values. That is an important way of looking at it.
I want to go back to focusing on the excellent report of the Select Committee on soft power, which my noble friend Lord Ramsbotham mentioned earlier. It highlighted the importance of not only the British Council and the BBC World Service but the Commonwealth in the promotion of British values and interests. I should like to see a strengthening of that connection between the Commonwealth, the British Council and the BBC. I do not need to deploy the arguments about the Commonwealth to this House. It represents 25% of the world’s population and a cross-section of nations, religions, cultures and values, but it has a common set of values through the Commonwealth Charter. I welcome the fact that, in paragraph 155 of the report to which I referred, the British Council talks about the need to not underplay the value of the Commonwealth to the United Kingdom. The report states:
“It brings countries together and celebrates and promotes shared values and experiences”.
An excellent example of this is the collaboration that is taking place now in Glasgow between the British Council, the BBC and the Commonwealth, where they are promoting British culture through music, dance, film, visual arts and the written word against the background of the Commonwealth Games, which are about to open. I am very proud of the fact that, as a former Arts Minister, I nominated Glasgow to be the European City of Culture in 1990. Another example is the collaboration between the BBC, the British Council and the Commonwealth Secretariat connecting a network of pupils aged between seven and 14 in 100,000 schools throughout the Commonwealth. I can think of no better way of strengthening soft-power links than through children at school, using the Commonwealth, the British Council and the BBC as the asset.
I want to ask the Minister two questions. First, does she recognise that the collaborative project in Glasgow could have an enormous impact within the Commonwealth as a whole if it does not end at the time of the Commonwealth Games but is built upon thereafter? Secondly, does she agree that the 53 Commonwealth countries should make sure that their work features in any long-term planning at the British Council and the BBC, and that any reports that they make should embrace the Commonwealth approach? I am not suggesting that any of this should be at the expense of the work that the British Council and the BBC do outside the Commonwealth but I think we are throwing away a real asset and benefit to Britain if we do not urge closer collaboration between those three groups.
Baroness Berridge (Con)
My Lords, whether the BBC World Service can fulfil its role is dependent on where it is broadcast. The BBC charter states that it should deliver news to,
“audiences with the least access to high quality impartial news”.
Nelson Mandela, Václav Havel and Aung San Suu Kyi are just a few of the notable modern heroes who testify to the importance of impartiality and accuracy of the BBC World Service when information is scarce. However, at a time when promoting British values is a role for our schools, the role of the BBC World Service in that task should not be underestimated. There are more than 2 million listeners here in the UK, but when I checked the annunciator in my office this morning I noticed that the World Service is not broadcast through our channels here. Perhaps that is something that we may look at remedying in the light of today’s debate.
I join the noble Lord, Lord Williams, in congratulating the BBC today. In light of the military coup in Thailand and its effect on free information, today marks the start of a digital news stream in Thai and English. I also commend the BBC for finding funds at such short notice for that service. The UK’s contribution to aid in Syria for the refugees is a stunning £600 million. Has DfID made sure that the many people residing in refugee camps who have access to television and radio have access to the BBC World Service? That is not conditionality, it is merely common sense.
Two vital countries, North Korea and South Korea, enjoy no radio broadcasts in either English or Korean by the BBC World Service. South Korea, a G20 country, the 15th largest economy in the world, with bilateral trade with the UK of £500 million a year, has no broadcast. Surely BBC broadcasts to that peninsula, promoting our interests and values, would increase that.
North Korea has a Cold War information embargo and is ranked 178th out of 179 countries for freedom of access to information. Why, then, is the BBC World Service not there? The BBC cites two main reasons. First, do North Korean people have a means to listen? That is, of course, hard to establish in a closed country but a 2010 survey of defectors found that 27% listened to foreign radio before escaping. Surely there were similar issues during the Cold War when the BBC broadcast. Of course, the Chinese might jam the signal to their 2 million ethnic Korean population, and perhaps only a small percentage of the North Korean population would be reached. However, the BBC funds minute services: in the Uzbek language to 400,000 listeners, and in Tamil to an audience of 200,000. The second reason given is that it would cost about £1 million to launch the service. However, surely the option of funding this from top-up advertising, as happens in Berlin, could be considered. The radio service would cover Seoul, which is a huge market, and advertising on the Korean-language website would surely be an avenue to explore.
The BBC is innovating technologically at break-neck speed, but is there such innovation around funding? Could it not even attempt to crowd-fund this? Perhaps more conventionally, can my noble friend the Minister outline whether DfID funding could be made available to fund such a service?
The United Nations Commission of Inquiry on North Korea by Justice Michael Kirby claimed that the practices of the North Korean Government were so appalling that they conjured up,
“images of the Holocaust and the great suffering of the Jewish people and other minority groups in Nazi Germany”.
Yet despite these violent barriers that prevent ordinary North Koreans from receiving information from the outside world, many still do. I grew up during the deep recession of the 1980s, and we saw the importance then of broadcasting to closed, mainly communist, countries. If the North Korean people are brave enough to try and listen, we should broadcast.
Lord Wilson of Tillyorn (CB)
My Lords, like others, I am most grateful to my noble friend Lord Alton for the chance to debate these two terribly important institutions. A good deal has been said about soft power, and I am tempted to cite a moral tale from classical Chinese Taoism: the power of water. Water appears to be the most flexible, malleable thing that there is, but it is about the strongest thing there is. You can try to dam it, you can try to divert it, but it will always get through. That is not quite a motto to put up on Broadcasting House, but it is something like that. If the British Council and the BBC keep going long enough, they get through.
I will concentrate on two areas concerning the British Council. I am a huge enthusiast for the BBC World Service and, like many others, I have depended on it for much of my life, but I have been involved, directly or indirectly, with the British Council—I declare that interest—having some time ago been a trustee for eight years and a chairman of the Scottish committee.
From practically nothing, the British Council operation in China has grown to an enormous size. There is a staff of something like 350. There are operations in Beijing and three other major cities. The potential there is colossal. It is said that some 300 million people in China wish to get more involved in the learning of English; that is of course something that the British Council does superbly. Another important thing, referred to by my noble friend Lady Coussins, is that the British Council goes in two directions: it also helps to recruit teachers of Chinese to come to this country and help people here to learn Chinese. That two-way process is valuable.
Another thing which comes from China is part of the process of “slow movement”. Many years ago I had a Chinese friend who had never left China. In the short period between the defeat of the Japanese and the victory of the Chinese communists he was involved with the British Council in Beijing; he did plays and learnt a lot. He was one of the most knowledgeable people on the subject of British literature I have ever met. After all the vicissitudes and problems of the Cultural Revolution, he eventually became a rather significant person in the Chinese cultural scene.
That is part of my water analogy. It is a drip that started a long time ago, but the power of that drip is realised long after. I suggest that it means that you cannot create a balance and loss sheet every year for the British Council. You have to think long term, not just about what is happening in the course of one year.
The British Council is also an interesting example of an organisation in the UK which very early on realised the significance of devolution and the re-establishment of a Scottish Parliament, and placed itself so that British Council Scotland was seen to be valuable. There were those who said that there should be a “Scottish Council”, but people quickly realised that that would be very expensive indeed; and that, more importantly, the British Council could do it as well if not better than a separate one. The work that could be done by a regional part of the British Council is invaluable. As my noble friend Lord Luce just said, British Council Scotland and the British Council being involved in the Commonwealth Games is a good example of that.
If, in September, the vote goes for a continuation of the union, it will be important not only that British Council Scotland shows that it represents culture in Scotland as well as in the whole of the UK, but that British Council Wales and British Council Northern Ireland and the regions of England also do the same. You need a British Council which is truly British, and not just part of an organisation.
Finally—if I am not going too far—on money from teaching English, it is sometimes said that the triennial review may say that the British Council’s role in teaching English should be reduced. I hope that the Minister may be able to assure us that that will not be the case. Of course there should be competition in teaching, but earning that amount of money is one of the things that enables that great organisation to do so much else as well.
Lord Cromwell (CB)
My Lords, I thank my noble friend Lord Alton, as many have before me, for securing this debate. I will say a few words about the World Service.
Some years ago, I was in western Sudan on a motorcycle and needed to stop for the night at a village. I did so and, during the evening, the local policeman brought out into the street a radio on a table, around which the villagers gathered and listened to the news from London, as they clearly did every night. The policeman turned to me and commented, “The BBC. Now we know what’s really going on”. That story has always remained with me and I know that many of us in this House have other versions—from Timbuktu to Kathmandu.
There has also been reference to the World Service’s actions in Russia. I should alert your Lordships to some inaccuracy abroad. I was taken to a school in the far north of Russia. On my arrival, two small boys were heard to discuss my appearance. One said to the other, “A Lord, and still alive!”, to which the other shook his head disapprovingly, and said, “Yes, but without his dinner jacket”.
The World Service, as a source of balanced and accurate international coverage, has earned an audience of many millions around the world. Whatever our definition of British values, it is clear that some states, now in the ascendant, do not share them and are spending heavily on their own version of soft power activities. If we believe in sharing our core values, we need more than ever to ensure that we are heard alongside and above those voices, not only those of states but also those of organisations. The World Service is such a powerful instrument of soft power quite simply because it is seen to be independent. It stands apart from the organs of the state; it projects a way of living and thinking, rather than current political policies, and it is famous for consistently telling the truth. That is the World Service brand.
That is also why successive financial cuts to the World Service over recent years have been so worrying. Time does not permit detailing them here, and others have touched on them. There have been expansions in other areas to set against this—the Persian and Arabic World Service TV audiences, for example; these now number some 50 million viewers. That growth in audience numbers, in a younger audience and with the wider range of media now deployed, suggests that the World Service is thriving. I celebrate that, as I am sure we all do.
I have two concerns. In seeking to be popular, the World Service must not become populist. In seeking to be contemporary, it should not become simply commercial entertainment. This is something which others have touched on, and I believe that there will be increasing pressure for it to do so.
I have three questions for the Minister. First, what hard evidence is there that moving on to the BBC licence fee has created a more stable basis for the World Service to plan ahead, or is it still beset by uncertainty? Secondly, does she agree that the World Service should grow and be at the heart of BBC strategic decision-making processes, and is that reflected in sufficient representation at board level? Thirdly, if the World Service budget does come under pressure, will the Government step in to assist, or will they simply declare it to be out of their hands?
As an outward-looking nation, the continued success of the World Service is vital to our future. It needs to grow in coverage, not to cut corners. That needs more resources year on year, not less.
Lord Bach (Lab)
My Lords, it is a pleasure to speak for the Opposition in this excellent debate. I thank the noble Lord, Lord Alton, for securing it, and all other speakers who have added to it immensely with their wide expertise.
Before beginning my remarks, I have to declare an interest—which has already been declared for me—as chairman of the British Council All-Party Parliamentary Group. The make-up of its officers is truly all-party. The secretary is a Conservative Member of Parliament and its treasurer is a Liberal Democrat Member of Parliament. As the House has heard, two of its vice-chairs are the noble Baroness, Lady Coussins, from the Cross Benches, and the noble Baroness, Lady Hooper, at whose feet I often sit to learn about foreign affairs and particularly about the British Council. I suppose that I should also declare an interest as a British Council child—my father was a senior British Council officer for many years.
I believe that both the institutions we are discussing are profoundly important to Britain’s place in the world. I call them institutions, as we have during the course of this debate, as a mark of respect. They have both earned that title over time. We have heard many examples of the good that they do in today’s world. They are something of which this country can be proud—not only in the field of soft power but because they are a significant part of modern Britain itself. We would be a much less civilised country without them. Each faces challenges of its own and I shall try to deal with some of these. However, if there is one overriding danger that both face, it is the danger of short-termism. That was exactly the point that the noble Lord, Lord Wilson, made a few minutes ago. By that, I mean the tendency of Governments—Governments of all complexions—not to think sufficiently of the long term.
In the British Academy paper The Art of Attraction, which some of us were sent for this debate, the authors make that point powerfully in relation to both the World Service and the British Council. In the summary, it says:
“Despite their relatively low cost to the public purse, higher education, cultural organisations, arts and museums, the BBC World Service, and other soft power assets have not been protected from financial cutbacks. Neither have the substantial advantages of proper investment in them been fully recognised. If governments are patient enough to wait for the long-term gains, they will reap more benefits than by striving too hard to deploy these potential assets or by running them down for the quick fix of improving a budget deficit”.
It continues:
“Governments would be well-advised … To invest in and sustain soft power institutions such as the BBC, the British Council, and the education system over the long term, and at arm’s length”.
I accept that it is much easier to say all that than actually to do it, but I believe that it is an argument that demands very serious consideration.
There was a general feeling that the cuts made to the World Service and the British Council following the 2010 spending review were unfortunate, to say the least. My right honourable friend the shadow Foreign Secretary argued at the time that foreign policy should advance British values and British interests—which are almost exactly the same words as are used in this Motion. I am sure that the Government would agree with that statement. Of course the Foreign and Commonwealth Office could not be exempt from cuts, but was it wise to reduce expenditure on those two organisations, given their reach across the world and their significance to millions around our planet?
Here we are some time later, and challenges still abound. However, there seems to be a consensus—certainly in this House, shared by the major political parties, but outside it too—that both these organisations are an essential part of the soft power agenda. This was recently reported on by the Select Committee on Soft Power and the UK’s Influence, under the chairmanship of the noble Lord, Lord Howell.
The World Service reaches a huge proportion of people worldwide. Not surprisingly, it has been warmly praised in this debate, in the same way as it is praised outside Parliament too. The fact that so much jamming and blocking takes place is surely another huge compliment to this service. If its broadcasting did not have an effect, why would some Governments seek to prevent it? As the noble Lord, Lord Alton, stressed in his opening, we should be very concerned by increasing violence and intimidation against journalists the world over.
The move to licence fee funding is clearly a significant step, and it is good that the BBC has managed to put some—I think it would agree minor—new investment into the World Service. However, as has been said, the real test will come in a little while, when the charter is up for renewal. We will then be able to judge better what will happen in the future. Alternative sources of funding are of course a fact of life for the World Service; and I note the corporation’s belief that, at most, that could and should provide no more than 10% to 15% of World Service funding in the long term. The point has already been made about the new digital news stream in Thai and English. It is hard to overstate the crucial role that the World Service plays. Does the Minister agree that Her Majesty’s Government must do all in their power to ensure that such a crucial asset is not allowed to wither away?
The British Council has had to undergo huge changes in the past few years, too. A grant cut of 26%—down to £154 million in 2014-15—befell the British Council as a consequence of the spending review. On its own, that would have been near fatal. However, as we have heard, thanks to the leadership that the British Council has shown—great credit should be given to various previous chairmen of the trust, and in particular to the chief executive, Sir Martin Davidson—it has built up at least 75% of its income through fees and income from services and commercial activity. Frankly, that mixed economy of mixed funding has allowed the British Council to continue its vital work in nearly 150 countries and territories.
I shall conclude with a couple of points. First, these days the British Council plays a significant role in areas of the world where enormous changes take place every day. It is in the front line in countries such as Iraq and Afghanistan. It represents British interests and does good in very difficult circumstances, from Syrian refugee camps to Ukraine. That demands special qualities from its staff, not least courage, whether they are local or British. The British Council libraries have of course been a council tradition for very many years, and around the world, many of them have been modernised. The old saying is apparently still true—that in various countries the protesters protest in the streets during the day, but in the evening they sit in the British Council library and talk. That is a reputation that the British Council should be proud of. The council has been very quick to respond to changes taking place in the world. Just look at its current work in countries such as Burma—where it has worked closely and very successfully with the FA Premier League—Libya, Tunisia, Egypt and, as we have heard, Sudan.
Secondly, about two years ago I instigated a debate on the British Council in your Lordships’ House. One message that came across from around the House, and it is even more relevant today, is that the council must remain a public service organisation. That allows it to have the influence that it has. There was much concern that the balance between public funding and commercial income should not go too far in the latter direction. If the council should ever be considered primarily as a commercial organisation, its influence would gradually disappear. Any Government must constantly be alive to that danger. We await the outcome of the triennial review. Can the Minister tell us when we can expect it? This has been an excellent debate and I look forward to the Minister’s reply.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con)
My Lords, I thank the noble Lord, Lord Alton, for introducing this debate. I also thank all noble Lords for a wide-ranging debate with incredibly thoughtful contributions.
As this House is aware, the Government are a strong supporter of both the BBC World Service and the British Council. Both organisations are hugely valued—and valuable—soft power assets for the United Kingdom. They are both, rightly, known and respected around the world for working hard to promote and model—dare I say, in response to the noble Lord, Lord Watson—the UK’s values of fairness, dignity, liberty and justice. I have just given the noble Lord another list. However, I take his point on the difficulty of a full and final agreed list of definitions of British values. Quite rightly, today there has been much praise and support for both organisations. However, I say to the noble Lord, Lord Bach, and other noble Lords, that when the Government faced very difficult financial decisions to reduce the deficit, these organisations could not be exempt.
The BBC World Service has—as this House knows, and as we have heard from the noble Viscount, Lord Colville—a global reach. It provides audiences across the world with free, fair, impartial and informed national and international news, and its global mission and reach is even more important in these troubled times. It helps to protect the most basic of human rights—the right to freedom of opinion and expression—allowing people to receive and impart information and ideas through any media, regardless of frontiers. Although the World Service is no longer funded by the FCO, we remain fully committed to supporting its work and global role. We continue to work with the World Service in support of our mutual objectives.
The noble Baroness, Lady Warwick, asked specifically about funding. The BBC funding of the World Service for 2014-15 is £245 million—£6 million more than the final year of FCO funding. That includes £8 million of new investment in digital and multiplatform use programming. No announcement at this stage has been made on the funding for 2015-16. However, the BBC has publicly committed to maintaining at least the £245 million for the 2014-15 financial year, until the charter review.
The Foreign Secretary’s responsibilities have not changed. He will continue to agree with the BBC Trust the objectives, targets and priorities of the World Service, and the languages in which it is provided, and will continue to meet the chair of the BBC Trust annually to discuss performance and achievements.
The noble Lord, Lord Williams, and a number of other noble Lords referred to the Thai language service. The Foreign Secretary was of course pleased to approve the BBC’s approval of the establishment of a digital Thai language service. Mr Swire, the Minister for South East Asia, said that that was an “excellent idea” which would,
“help support the freedoms of expression and thought which are such critical parts of any successful democracy”,
and that the initiative,
“embodies what the BBC is all about”.
As my noble friend Lady Berridge said, it was a timely and much-needed move.
My noble friend Lord Loomba spoke about the BBC World Service India service. The BBC World Service carries out an extensive range of surveys in all its 27 foreign language services, which is included in its shaping of its service offering. Within that there is a survey of the specific language service that the noble Lord spoke about. The noble Earl, Lord Sandwich, spoke about specific programmes in Afghanistan. While I cannot speak about the programming decisions or schedule of the BBC World Service regarding Afghanistan, I assure him of our ongoing commitment to democracy, freedom of expression and women’s rights. Indeed, DfID’s commitment to those very specific issues will form the backdrop of any support and funding.
The noble and right reverend Lord, Lord Eames, the noble Lords, Lord Alton and Lord Jay, my noble friend Lady Berridge and other noble Lords, spoke about the possibility of a BBC World Service presence in North Korea. We agree that there is a pressing need for a free, fair and impartial news service in the DPRK. Unfortunately, actions taken by the DPRK authorities severely limit the ability of North Koreans to listen to the cross-border broadcasts currently provided by a number of organisations.
I know that noble Lords have heard me talk about this from the Dispatch Box on a number of occasions; I am not sure that the same response will give much comfort, but I will give it anyway. In late 2013, following a review and having considered all the options, the BBC World Service board concluded that it was not currently possible to offer a meaningful, impactful and cost-effective Korean language service. However, the BBC World Service has said that it is keeping the situation under review. However, I can assure noble Lords that, through our embassy in Pyongyang, the UK is one of the few countries able to engage directly with the North Koreans, complementing the efforts of others such as the United States who support broadcasts into North Korea.
My noble friend Lady Berridge spoke about a service to the whole of the Korean peninsula. I understand that the BBC has considered extending a service to the whole Korean peninsula as an option, but it concluded that that would be complicated from an editorial point of view. Due to the different markets, technological development and audience needs, a single editorial proposition serving such a wide population was not felt to be the most appropriate way forward. I also understand that the FM spectrum in South Korea is now full, and that permission for any further foreign news on a BBC FM frequency would not now be possible there.
The noble Baroness, Lady Coussins, asked about languages generally. The BBC World Service is operationally, editorially and managerially independent. Decisions on the establishment of any language service are for the World Service to consider and, if appropriate, are then proposed to the Foreign Secretary to consider. The kinds of factors that are taken into account include feasibility, reach, impact and cost effectiveness. I will certainly pass specific comments on a coherent, cross-government language strategy to the Department for Education.
The noble Earl, Lord Sandwich, asked about coverage in eastern Europe. I can inform him that the BBC’s audience in Ukraine has trebled in recent times and now numbers about 600,000. The BBC’s Ukrainian and Russian services have been crucial to the BBC’s coverage of the current situation there, working with correspondents in country and with BBC news gathering to provide domestic and global news.
The Department for Culture, Media and Sport will continue to have responsibility for the licence fee settlement and charter review. The FCO will provide policy advice and support to the DCMS as appropriate. The long-term future of the BBC and the BBC World Service will be addressed in the next charter review—my noble friend Lady Bonham-Carter, and the noble Lords, Lord Watson and Lord Alton, asked about that. As noble Lords are aware, the current BBC charter ends on 31 December 2016. The Secretary of State for the Department for Culture, Media and Sport can start the review process and begin considering options at any point before the charter expires.
The noble Lord, Lord Cromwell, asked some specific questions; I hope that the following will address them. The BBC Trust has responsibility for governing the World Service and does this in the same way that it approaches governance of the BBC’s other UK public services. If the budget is changed by more than 10%, the BBC board must seek the approval of the BBC Trust. As I have said, the Foreign Secretary’s responsibility for agreeing the objectives, priorities and targets for the World Service have not changed. As he made clear when he gave evidence to the Foreign Affairs Committee on 12 March this year, he will continue to hold the BBC’s feet to the fire in protecting the interests of the World Service. FCO and World Service officials are continuing to work together on existing and new areas of collaboration.
I turn now to the British Council. The Government recognise the concern over cuts to FCO grant-in-aid funding for the British Council, which is why we did not pass on previous reductions in the FCO budget until the year 2013-14. However, the council, like all FCO-funded organisations, has had to bear a share of cuts to departmental spending. Let me assure this House that the Government are committed to supporting the work of the council through grant-in-aid funding, for example by increasing funding for the important overseas development assistance work it does. The £0.5 million cut to the council’s budget for 2014-15 was mitigated by an increase to funding for overseas development assistance activities. Additional ODA funding of £10 million in 2015-16 will mean that the overall grant-in-aid funding to the British Council for 2015-16 will increase by £2.1 million overall from 2013-14. The council will also receive additional funding of £1 million from the Cabinet Office for its GREAT campaign activities.
The British Council’s work reaches people in more than 100 countries. It plays an invaluable role in promoting British values and interests overseas. It supports and promotes the UK’s world-leading higher education system. It celebrates, teaches and expands the use and benefits of the English language. It shares with people across the globe the UK’s values, arts and culture.
The noble Lord, Lord Bach, asked about funding for the following year. We expect the 2015-16 additional ODA funding of £10 million will mean that the overall grant-in-aid funding to the British Council for 2015-16 will increase by £2.1 million overall from the 2013-14 budget.
As I informed the noble Lord, Lord Alton, in answer to a Question on 7 July—or perhaps a letter—details on the triennial review of the British Council are being finalised and the report and recommendations are with Ministers for approval. We hope to lay that report before the House rises for the Summer Recess. I will ensure that the views of the noble Lord, and the specific suggestions of the noble Baroness, Lady Prashar, my noble friend Lady Hooper and the noble Lord, Lord Wilson, are taken into account as those reports are considered. The Foreign Office and the British Council have worked closely throughout the review process. At this stage it would be inappropriate to say much more.
My noble friend Lady Hooper asked about the specific contact the British Council has with UK cities and its co-ordination with universities. This is currently being discussed by the British Council’s board of trustees as part of its overall engagement strategy in the UK. I await any further recommendations or information that may come from that.
The noble Lord, Lord Luce, spoke about the British Council and the Commonwealth Games. We of course support the British Council’s programme of cultural and educational projects during the Commonwealth Games, some of which were referred to by the noble Lord. Through them, we aim to make international connections between Scotland, the wider UK and the Commonwealth. This includes initiatives such as Commonwealth Class, a joint initiative from the BBC, the British Council and the Commonwealth Secretariat that offers free access to teaching resources, classroom activities, online debates and competitions to mark the Glasgow 2014 Commonwealth Games. It is a dynamic and engaging resource that will introduce pupils to Commonwealth values, as set out in the Commonwealth charter.
I ask the noble Lord, Lord Parekh, to bear with me in the use of the words “soft power”. I hope I can give him some examples. I refer first to the GREAT Britain campaign, which promotes British excellence around the world, with ambitious targets to increase trade and investment, tourism and study in the UK. The campaign is active in more than 144 countries; it has secured an economic return of more than £500 million from its first year of activities; and it is expected to deliver a further £600 million to £800 million from the 2013-14 funding. More than 1,000 inward-investment leads have been generated from that campaign. It is another example of soft power.
I will also refer briefly to the Chevening scholarships. Only yesterday my right honourable friend the Foreign Office Minister Hugo Swire welcomed around 600 current and former Chevening scholars to Chevening House to mark the 30th anniversary of the Chevening scholarship programme. He briefly discussed with me the people who were attending. The list was incredible: Foreign Ministers, Finance Ministers, vice-presidents and high-level scholars from 144 countries and territories around the world. There are now 43,000 alumni who are long-term friends of Britain in influential positions in government, business and civil society, who help us to achieve our mutual international objectives and promote our excellent universities and higher education around the world. In 2015 we will triple the Chevening scholarship programme, so that many more scholars can study in the UK. That will be another important aspect of our soft power.
I pay tribute to the work of the noble Lord, Lord Ramsbotham, and his colleagues for the work they did on the report of the Lords Select Committee on Soft Power and the UK’s Influence. As the Government said in response to that report, the UK is most effective as a global actor when it draws together all its instruments of national and international power: political, economic, military and the soft power that I referred to.
The noble Lord, Lord Crisp, asked about diversity as a form of soft power. I refer to it within the Foreign and Commonwealth Office as “Heineken diplomacy”, because diversity allows us to reach those parts of diplomacy that we would not otherwise be able to reach. I could give noble Lords numerous personal examples in relation to the foreign policy work that I have been involved in. I think it is right that we also use that diversity domestically, as the noble Lord, Lord Parekh, said, in relation to, for example, the work that he does. I will certainly make sure that his organisation is brought to the attention of the India desk in light of the recent announcements.
I hope that I have covered both the British Council and the BBC World Service in some detail but also given a slightly wider perspective of how they fit into what I think is our much broader and wider soft power influence. I reiterate the Government’s commitment to the global work of the BBC World Service and the British Council—both of which, as we heard today, are widely accepted as important partners and assets in the UK’s approach internationally.
Finally, I again thank the noble Lord, Lord Alton, for introducing this important debate.
Lord Alton of Liverpool
My Lords, I am extremely grateful to the noble Baroness, Lady Warsi, for the way in which she has responded to what has been an amazingly rich and incredibly well informed debate. All the speeches in your Lordships’ House today have come from either personal or professional experience. The number of people who said that they had heard the World Service in remote parts of the world was striking. We travelled from the remote parts of the Borneo borders to the Arctic Circle, and we were also in Tehran, Beijing, Afghanistan, North Korea, Egypt, Russia, Juba and even at one point Glasgow. We have travelled widely.
We also heard from the noble Baroness, Lady Warwick of Undercliffe, and the noble Lord, Lord Bach, along with my noble friend Lady Prashar, their first-hand experiences of either being trustees or working today in the British Council or, in the case of my noble friend Lord Williams, of being a trustee of the BBC World Service. They gave professional and intimate accounts. The noble Lord, Lord Bach, described himself as a child of the British Council, his father having worked for it. I can only say that if that is his parentage then the British Council has a great deal to be proud of, as we do in this House, because he is a pretty good advertisement for it.
We also heard about the importance of the foreign languages that can be promoted via the British Council and the BBC World Service, and our Commonwealth links. Regarding soft power versus propaganda, the noble Lord, Lord Parekh, made an important point about moral authority. We talked about accountability and the question of values. I think it was Gertrude Himmelfarb who said that sometimes “values” is rather a weak word in comparison with “virtues”. However, I think that perhaps we are also rather modest in this country and do not like to talk about any of our institutions. The British Council and World Service were described by my noble friend Lord Williams as “two renowned and much loved” institutions. We do not often like to talk of them in quite that way, but we have nothing to be ashamed of. These are two wonderful institutions that reach vast numbers of people all over the world.
It was the Prime Minister, describing values, who said that British values are,
“a belief in freedom, tolerance of others”—
“tolerance” was a word that my noble friend Lord Jay returned to—
“accepting personal and social responsibility, respecting and upholding the rule of law”.
That is a pretty good starting point. We may have others that we want to add to the list, and we may have concerns, as the noble Lord, Lord Watson, described, but at least today’s debate has given us a framework.
As we proceed to the triennial review of the British Council and think about the future funding of the BBC World Service, the Government will be in no doubt as a result of today’s debate that your Lordships in all parts of this House—even though the debate was initiated from the Cross-Benches, there have been valuable contributions from all parts of the Chamber— will be watching not just with apprehension and concern but in the great hope that the Government will continue to support both the World Service and the British Council. With those remarks, I conclude the debate.
Legal Systems: Rule of Law
(9 years, 10 months ago)
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Lord Woolf
That this House takes note of the contribution made by the legal systems of this country to the international standing of the United Kingdom and the observance of the rule of law in this country and abroad.
Lord Woolf (CB)
My Lords, I disclose my interests as in the register.
The title of the debate refers to legal systems. I emphasise that at the outset because, having fulfilled the role that I have, I would not want it to be thought that I was not conscious of the importance of the other legal systems within the United Kingdom.
I say at the outset that I am most grateful to my fellow Cross-Benchers who voted to select this topic for debate. I am even more grateful to each noble Lord and to the Minister and shadow Minister who have agreed to take part. They are all extremely well qualified to contribute and collectively they have an extraordinary record of service to the system of justice in this country. Their involvement in the debate is testimony to its importance.
It is uncontroversial that our legal systems have benefited many countries, as well as our own. They have made a unique contribution to improving the global observance of the rule of law. Other countries look to this country for guidance as to what needs to happen if they are to bring their country up to the standards required by the rule of law. With this leadership comes responsibility. However, I now have a concern that there is a real danger that we will not continue to set the example that we have in the past. If we do not, it will be extremely damaging to this county, as well as to other countries which could benefit from our experience.
Today, there is considerable debate about what constitutes British values. The previous debate has a very real relationship with this debate, as the noble Lord, Lord Alton, said. Whatever the right answer is to the question “What are British values?”, I am confident that hitherto those values would generally be regarded as including justice and fairness, which observing the rule of law requires. After all, this country fought the last world war to protect those values.
Since the end of the war, the importance of those values has increased immeasurably. Our legal system, based on observing the rule of law, is a major contributor to this country’s economic health. Internally, it is part of the essential infrastructure required for a healthy economy. Externally, it is now an important constituent of our global exports. The Bar, the Law Society and the Public Law Project prepared briefing papers for this debate. I refer noble Lords to each of those papers, as they provide very useful information on the background to this debate. Even a glance at them makes clear the importance of the contribution made by legal services to this country. We should be very proud of what has been achieved by our lawyers and legal system.
Why, then, my concerns? To understand them, you have to understand how our legal system developed. It is necessary to remember that our legal system, unlike those on the continent, was not the creation of a single code; nor is our legal system, like almost all other developed systems, protected by an entrenched written constitution which sets out explicitly the functions of the different entities of the state. Instead, there was the creation of the common law, which today is subservient to the will of a largely sovereign Parliament. It is also dependent on the Executive for its resources. This brings with it dangers for its independence, as was pointed out by my noble and learned friend Lord Browne-Wilkinson when he was vice-chancellor. He warned that as the Executive paid the piper, they would inevitably be tempted to call the tune. Fortunately, at least in relation to the role of the judiciary, the Executive have usually exercised commendable restraint. Despite its vulnerability, our system, without an entrenched and dependent common law, is not without virtues. It combines a considerable flexibility with a critical core of common-law values. This enabled the common law, during the expansion of our empire, to be absorbed into and to take root in more than a third of the countries around the globe, including the USA.
Common-law values are important in any legal system, whatever its source. This is because they are a basic requirement of any developed justice system, and closely allied to the values to be found in conventions such as those on human rights. They are also essential ingredients of any effective democracy. In the case of common-law countries, values have a long history, usually traced back to Magna Carta by members of the Commonwealth and the USA. I understand that another contributor may make reference to Magna Carta in that context, particularly as next year is its 800th anniversary. Although it has an ancient pedigree, the common law is still very much alive and kicking. A visit to any Commonwealth law conference will confirm that. Perhaps its values are incapable of being rigidly defined, though fortunately, before his untimely death, Lord Bingham of Cornhill was able to bring considerable clarity to the subject and his work is being continued by the Bingham Institute, under its director Sir Jeffrey Jowell. It has also received detailed attention in the World Justice Project, which has just published this year’s Rule of Law Index. This sets out four universal principles of the rule of law. The project also indexes the extent to which the rule of law is observed in 99 different jurisdictions. No country gets a perfect mark but I am rather disappointed that this country only manages to be the 14th most observant of those countries that form the 99.
Undoubtedly, there is still a very high regard globally for our legal system. This results in multiple benefits to this country. Our courts—especially the commercial court—are used by litigants from around the globe. Our lawyers and judges are universally admired and branches of our international law firms are prospering. Their integrity and ability is not open to question. Because of our judiciary’s reputation both before and after they retire, our judges are in great demand to assist other jurisdictions, which they do willingly. I hope that some of my judicial colleagues who are down to speak will inform the debate with their experience. I will not speak to mine, except to say that I cannot resist mentioning in the presence of the noble and learned Lord, Lord Phillips of Worth Matravers, that we were once called upon by President Chirac in Paris to give him advice, which we happily did. I have also sat in overseas courts.
While the position may look comfortable, at present we cannot assume that in the future it will take care of itself. It needs appropriate support and that support has not always been forthcoming as rapidly as it should. Instead, over the past decade, there have been a series of events that collectively suggest a lack of appreciation in government of the importance of ensuring that our legal system remains fit for purpose. This is a new era in which other jurisdictions wish to compete with us for the benefits that our legal system has already earned for us.
I referred to disturbing events. Let me mention what I have in mind. I have already indicated that we have no entrenched constitution. It is essential, therefore, that our constitutional arrangements include checks and balances to protect our rights and freedoms. Here, the historic office of the Lord Chancellor played an important role. His responsibilities included speaking up in Cabinet for the judiciary, of which he was a member, and for the legal system generally. The former Labour Administration attempted to change one aspect, also involving judicial review. It was vigorously opposed by the legal profession and the judiciary, and I am glad to say that it was withdrawn.
The former Labour Administration also attempted to change our constitution by altering overnight the status of the Lord Chancellor. As a result we now have a situation where there is a Minister in the Commons who combines the roles of Lord Chancellor and Minister of Justice. He is not a lawyer and he has different and wider responsibilities than those of his predecessors. Inevitably this affects his relationship with the judiciary, the profession and our legal system. The Constitutional Reform Act 2005 says he should “be qualified by experience” but so far I am not sure of the precise form that that experience took. This is no doubt a handicap for him, and I commend him for establishing excellent personal relations with the senior judiciary. I hope that he will forgive me, however, if I say that it would be natural for there to be suspicions. Unlike the old-style Lord Chancellor, he sees his current role as being only one more step in what will no doubt be a glittering political career. This is not what the profession and the judiciary expect from a holder of this still high office. I am sure that he recognises that at times the impression he could give is of a politician in a great hurry, which will not make it easier for him to obtain agreement that would facilitate the changes he is anxious to make.
Our lack of an entrenched constitution supported by a constitutional court means that we require an effective legal mechanism for ensuring that public bodies do not exceed or otherwise abuse their powers. This need has become much greater as society has become more complex. The judges responded by developing a streamlined procedure of judicial review which gives judges wide discretion to hold the balance between the Executive and the citizen. As the citizen requires judicial review to protect his position, it is essential that he has a right of access to the courts to achieve this. The procedure is one where the involvement of lawyers is particularly important but the availability of legal aid has been drastically cut, and that interferes with the ability of some litigants to appear before the court. What is more, the Lord Chancellor is now proposing in legislation to interfere with areas of judicial discretion which were working perfectly satisfactorily and were so regarded by everyone concerned.
I know that the Minister will pray in aid the need for austerity. But even if savings could be achieved by what is proposed, which is highly doubtful, they would be modest. Part 4 of the Criminal Justice and Courts Bill discloses a failure to attach sufficient significance to the importance of ensuring that justice is done in an area playing a vital role in achieving the balance to which I have been referring.
Judicial review may at times be inconvenient to the Government but it achieves better administration, which benefits the Government. It is their task to accept that it is a critical part of our society. The changes are being made contrary to the wishes of the senior judiciary. They show signs of being ill considered and rushed. While reforms to judicial review are perfectly proper this is not the way they should be made.
I turn to the area of criminal justice, where I fear that the unintended consequences resulting from government action could be grave indeed. The quality of our judges is dependent on the quality of the legal profession from which they are drawn. As a result of the changes being made in funding, it would be difficult today for any responsible person to advise a youngster coming into the profession to take up a criminal practice. It is essential that standards do not fall, because if they do the effect will be serious. Moreover, the position is not confined to newcomers. We also have problems with the heaviest cases, which are well known, so I will just draw attention to what was said by Lord Justice Levinson when giving a wise judgment.
These are some of the concerns, and I look forward to the other contributions to the debate.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I thank the noble and learned Lord, Lord Woolf, for giving us the chance to debate this important topic. As he knows, and as my noble friend on the Front Bench knows, I am not a lawyer, so I would like to make three remarks from a lay man’s point of view. They are a great deal less technical than the speech of the noble and learned Lord, and I hope he will forgive me for that.
The first point concerns the UK legal system and Britain’s world reputation. Like the noble Lord, Lord Ramsbotham, I was a member of the committee chaired by my noble friend Lord Howell, the Select Committee on Britain’s soft power. Our report was published in March and the Government, as the noble Baroness, Lady Warsi, reminded us a few minutes ago, have given their response. We have yet to debate the report and, in Shakespeare’s words, I do not want to run before my horse to market, but perhaps it is worth quoting two sentences from paragraph 175:
“The UK is also a world leader in the legal profession. According to the Humanitarian Intervention Centre, the UK’s ‘highly sophisticated and developed legal system’ is respected around the world ... In the Centre’s view, this legal prowess ‘affords the UK a high degree of legitimacy and credibility in the international arena which in turn gives its diplomacy great weight”,
and efficacy. That is my first point.
My second point is of a more personal nature. During their school or university career, many noble Lords may have had an occasion, be it a lecture, a class, a lesson or a tutorial, where something was said that transformed the way they thought. I share one such example with noble Lords today. After completing my undergraduate degree here in England, I went to live in America for a number of years. While I was there I took an MBA at the Wharton School of Finance and Commerce, as it was then known. The school used to arrange for eminent people from around the world outside of business to come and talk to the MBA students. One afternoon we had a talk from Peter Bauer. He was born in Budapest in 1915 and came to England in the 1930s where he lived for the rest of his life, later becoming a Member of your Lordships’ House as Baron Bauer, of Market Ward in the City of Cambridge. On that afternoon 45 years ago in Philadelphia, he explained his vision for helping the less fortunate of the world. At the time development was largely seen as a government-to-government matter, but Bauer argued that that was not effective. He saw effective development as being conducted at a much lower level, through trade rather than aid, and where aid takes place, at the people-to-people level. His legacy is the GATT rounds that we have seen and, indeed, the growth of the NGO movement.
Bauer went on to argue that afternoon that people-to-people relations are not conducted in a vacuum; they need a framework. Bauer’s framework, as he explained it to us, was respect for property rights and acceptance of the rule of law. He emphasised in particular the value of the English common-law system. Rather as the noble and learned Lord, Lord Woolf, did a moment ago, Bauer explained how flexible it was and how it could be adapted to changing circumstances. He saw it as the responsibility of the richer parts of the world to help establish a ladder up which the poorer parts of the world could slowly, and no doubt painfully, clamber. He saw the rule of law as being an essential rung of that ladder. I accepted that argument then, and today, faced as we are with continuing great impoverishment, I see it as an important reason for supporting the proposal of the noble and learned Lord.
My third and final point is perhaps rather more discordant. For my part, I do not see the actual law and the rule of law as being entirely separate. The rule of law is a vital principle, but if under its cloak laws are enforced which are ossified or outdated, then respect for the rule of law itself will be undermined. UK judges and judges around the world have great power to hold us all to account, and that is quite right, but with that great power, as the noble and learned Lord pointed out in his speech, comes great responsibility—the responsibility of ensuring that judgments and approaches reflect the changing world. That is not to say that judges should reflect transitory, ephemeral public opinion; that way lies rule by the mob. However, there is a need to be in touch and in tune with underlying social and economic changes and attitudes. As I say, that is perhaps a discordant point, so in conclusion I return to Peter Bauer. It has been written of him that:
“Bauer’s legacy is a better understanding of the forces that shape economic development, especially the institutions of private property, stable money, free trade, and limited government under a rule of law”.
I can think of no better reason for supporting the noble and learned Lord this afternoon.
Lord Morris of Aberavon (Lab)
My Lords, we are particularly grateful to the noble and learned Lord, Lord Woolf, for securing this debate. There could be no better example of the contribution made by the judiciary than the ever watchful eye of the noble and learned Lord; we have heard this afternoon, of course, his own outstanding contribution. Moreover, I have had the privilege of appearing before him. For the removal of doubt, I make it clear that my appearance was as counsel and not in the dock. Before I leave the issue of the integrity of our judiciary, I compliment another outstanding figure of integrity, the noble and learned Baroness, Lady Butler-Sloss. I compliment the Government on choosing her to fulfil a difficult role.
I will deal with only one aspect of the observance of the rule of law, and that is in international affairs and the difficulties that I experienced. It is the interpretation and implementation of the rule of law that causes problems. Domestic law in general is more certain than international law, where judicial precedents can be scarce. As the Attorney-General, it was my task to be the Government’s principal legal adviser. I was fortunate in being able to call on a galaxy of legal expertise to assist me. However, before I took office it never crossed my mind that the interpretation of international law would play such an important part and demand so much of my time and attention—from advising on resolutions of the UN Security Council and interpreting the Geneva conventions to drafting the rules of engagement for our troops. It seemed to be an endless conveyor belt.
However, it was the interpretation of the rule of law during the war in Kosovo that was my biggest problem. As Ministers, the military and civil servants, we are bound under domestic law and the Ministerial Code to obey international law, hence the military’s anxiety to get legal cover for its activities. With the growth of international courts, that is becoming more and more important. Our decision-makers, particularly but not only the military, could find themselves having to answer for their actions before an international court. My job was to give what assurances I could for the actions proposed by the Government. In Kosovo, the internationally assessed evidence was quite clear: an overwhelming humanitarian catastrophe was taking place in that country. Ethnic cleansing was being perpetrated on a scale with few parallels. What was the background? Article 2(4) of the United Nations charter prohibits the intentional use of force except for self-defence or with the authority of the Security Council. During my time, it was impossible to get the Security Council to allow the use of force by passing an appropriate resolution.
Was that the end of the matter? My Conservative predecessors had to consider whether force could be used on humanitarian grounds in Iraq 1 in order to set up no-fly zones to protect the Kurds and the Marsh Arabs. I distinguished Iraq 1 from Iraq 2, and they agreed that it could be used. The difference between Iraq 1 and Kosovo was that the United Kingdom acted passively in the former, whereas if bombing night after night was authorised in Kosovo we would be proactive, if not aggressive. We believed that there was no practical alternative to our proposed use of force and that it was the minimum necessary.
Our observance of what we deemed to be the rule of law was further manifested in that, night after night for 68 days, I personally had to agree each bombing target to ensure that we adhered to the Geneva conventions. I queried some of the applications to bomb, and I turned down the last application to bomb a great part of Belgrade. Many years later, I was present in Brussels when I heard the NATO supreme commander saying, “If the Brits thought it right, it must be right”.
My prognostications about the possibility of having to answer for our actions before an international court turned out to be true. I was summoned back from a conference in the Caribbean to lead for the United Kingdom in an action brought by Yugoslavia before the International Court of Justice at The Hague, in its attempt to stop the bombing. The United Kingdom was one of nine NATO defendant countries. The court found that it lacked prima facie jurisdiction to entertain Yugoslavia’s application. The main issue was deferred and never resolved. I was disappointed that the legality of our actions could not be determined, and some distinguished academic lawyers have since condemned and contested our actions.
I believe that international law has to evolve to meet the post-1945 conditions. I note that the present Attorney-General, in his advice to Parliament on the proposed military action in Syria last year, followed precisely and word for word the relevant observations set out in my own memoirs. In the part of his opinion that was published, there was no reference to the possibility of actions being challenged by a legally competent, interested country in an international court. I am sure that as a distinguished lawyer he made it quite clear that there was this possibility, and brought it to the attention of the Cabinet.
Finally, against the celebrations of Magna Carta, we can all be extremely proud of our own legal system and its contribution to the world.
Lord Lester of Herne Hill (LD)
My Lords, I too am grateful to my noble kinsman, the noble and learned Lord, Lord Woolf, for initiating the debate and for his very timely words of wisdom. I am particularly glad to be speaking in the presence of the noble and learned Lord, Lord Irvine of Lairg, who in my judgment was one of our great Lord Chancellors. I wish we could maintain that standard in that great office.
I was unable to take part in the Second Reading of the Criminal Justice and Courts Bill last week, but I read with admiration the contributions from the noble and learned Lords, Lord Woolf and Lord Brown, and the noble Lord, Lord Pannick, warning of the threats to the rule of law in Part 4. These threats are harmful to our legal system, to the UK’s international standing, and to the rule of law.
One of the main values of judicial review is in curbing abuses of power by the Government themselves. When Governments seek to limit judicial review, they are judges in their own cause. I hope that the Government will heed the argument that Part 4 of the Bill should be taken out altogether. The Joint Committee on Human Rights, on which I serve, found no evidence to support the Government’s proposals. Last Friday the Constitution Committee, on which I also serve, noted that lowering the threshold for judicial review risks unlawful administrative action going unremedied. The Committee asked the Government to heed the warnings from the senior judiciary, and I hope the Government will respond positively.
Everyone in this debate will agree that the British legal system has made a great contribution to the international standing of the United Kingdom and to the rule of law. Even though only four out of 47 countries in the Council of Europe are common law countries, we British may take justifiable pride in the drafting of the European Convention on Human Rights—mainly in Whitehall—and in having exported the convention rights to the constitutions of so many Commonwealth countries and dependent territories in Africa, Asia and the Caribbean. We may take pride in the way that British lawyers have influenced both European courts to have regard to our dynamic common law.
We may take pride too in the quality and integrity of British judges, who have served with such distinction on both European courts. These include Lord Mackenzie Stuart, Lord Slynn, Sir Konrad Schiemann, Sir Francis Jacobs and Eleanor Sharpston in Luxembourg, and Lord McNair, Sir Vincent Evans and Sir Nicolas Bratza in Strasbourg, to name only some of them.
One challenge is to encourage outstanding British judges and lawyers to apply to serve on each of these European courts. Thanks to the Human Rights Act and the willingness of our courts to interpret the convention rights wisely in the context of our own political and legal system, British judgments are especially influential in Strasbourg. As our judges have become more familiar with the jurisprudence they have opened a dialogue with the court where they consider that its reasoning is questionable. It is a partnership that works well, and it has encouraged our courts to develop the common law progressively to meet modern needs and values rather than treating law as full of ossified fossils, as was pointed out by the noble Lord, Lord Hodgson of Astley Abbotts.
Unfortunately, much of this is threatened by a narrow insular ideology, fuelled by right-wing sections of the media and Europhobic politicians. However, they are not all confined to the right wing of the Tory party. I must say that the failure of both Lord Chancellor Jack Straw and Lord Chancellor Chris Grayling—one a lawyer and the other not—to abide by the final judgment of the Strasbourg court in the prisoners’ right to vote cases is unprecedented, and in blatant breach of international law. It has tarnished our international standing and the rule of law in this country and abroad.
Threats by the Home Secretary and the Lord Chancellor to tear up the Human Rights Act and limit the powers of our courts and the European Court of Human Rights have hugely diminished our international standing and influence. Their rhetoric and their threats set a terrible example to the pseudo-democracies of Europe and beyond. I am not convinced that the British people will be enthusiastic when they come to realise that such constitutional vandalism will weaken and not strengthen the protection of British rights by British courts. There would be no redress if, for example, Parliament enacted a racist statute depriving British black or Muslim citizens of the right to vote.
It is 50 years since I argued the first British case in Strasbourg. I have witnessed the way in which British lawyers and jurists have brought the convention system to life. I have had the privilege of frequently meeting ambassadors, judges and European civil servants in Strasbourg. A decade ago, our international reputation was outstanding and our influence was significant. Five years ago, thanks to an outstanding ambassador, Eleanor Fuller, and Ministers, we successfully promoted much needed court reforms. Much still needs to be done, but UK influence has declined.
I know that my noble friend the Minister, Lord Faulks, will not agree. We were good colleagues on the Bill of Rights commission, but in the paper he wrote for the commission with Jonathan Fisher QC he disagreed with the Attorney-General, Dominic Grieve, who warned that the UK would become a pariah state if we left the convention, and found it difficult to see how the UK’s withdrawal from the convention would weaken the protection of fundamental rights. I hope that this debate and the Attorney-General may cause the Minister to think again.
Lord Judge (CB)
My Lords, I shall not disclose confidential conversations that I have had with the present Lord Chancellor nor say anything that might lead to the impression that I am disclosing private conversations, so I shall be reticent. Instead, in six minutes, I propose to cover 800 years of history, and I hope your Lordships will see why.
We are going to celebrate 1215. We know what we are celebrating, do we? We are celebrating no punishment without trial, but deeply significant and frequently overlooked is clause 61, which states that the King is subject to the law. In the olden days the King made his oath and he accounted to God for whether he had obeyed it. As a result of Magna Carta, he had to account on earth. If he failed to obey the law as declared in Magna Carta, the barons and everybody else were absolved from their oaths of fealty. In the 1350s, due process was introduced. 1610 is the first time that I have found the rule of law actually appearing—it appears in the protest in the other place. In the 1670s, independence of the jury was established, and in 1689, the independence of the judiciary.
In the mean time, another strand was going on. 1616 was the year of the founding of Virginia, in which the charter provides—it is called the Great Charter—that citizens who went to Virginia would have the same rights there as if they were still living in England. And then, most importantly, in the early 1700s, a clear decision was made: unless the country had an existing system of law, whenever there was a new colony, British law would apply. Hence, in 1765, when Parliament passed one of the more foolish Acts that it ever passed, the Stamp Act, the American colonies decided that they had had enough and we ended up with a rebellion.
May I just pause? No punishment without trial; independent process for decision-making; due process; equality before the law; the rule of law—they were exported from this country. There are many facets of imperialism which are open to question, but if you were to go now, as I have been in the past few years, to the annual Commonwealth Law Conference, there gathered together are men and women, lawyers and judges, from the entire Commonwealth. They will criticise us for this and comment adversely for that, but the heritage of the rule of law is something for which they hold us in affection. When we discuss, as we do, the problems faced by other Commonwealth countries, or one or two Commonwealth countries or around the world, they look to us not in any sense of profound respect because we are British, but because, in a sense, we inspired some of these ideas which now matter to them.
It is not entirely accidental that, when you look at your television screen—if you do—to see the trial of Oscar Pistorius, the judge trying the case may not be wearing a wig, but she is wearing the identical robes that a High Court judge out on circuit trying a murder case would be wearing in Birmingham, Manchester, Liverpool or Cardiff. It is a very important living tradition in which the United Kingdom still holds high authority. I must add that the Australians think that they are now the repository of the common law. The Australians—I say with great respect to them—never fail to make a claim when they can. They think that our grasp of the common law has been weakened, if I may say so to the noble Lord, Lord Lester, by the contaminating effect of the European convention.
There is one point that I want to make which perhaps will not be obvious, on judicial training. This is one example, and it is only one, of the value of our system. We have visits from all sorts of countries to the Royal Courts of Justice. I do not mean a social; I do not mean looking around the building and having lunch with the judges; I mean a serious visit to find out how we do this or how we do that. The Judicial College, as it now is, welcomes people from all over the world who come to learn about training. More importantly, they ask the college to send men and women judges to train the trainers in their countries, or to train their judges. The topic, largely, is judicial ethics and conduct. The countries include Russia, Rwanda, Nigeria and Pakistan. This is part and parcel of the respect in which our system is held. It is comforting that the European Commission conducted a huge investigation into judicial training throughout the countries of Europe and came to the conclusion—it is a nice thing to be able to say—that the largest number of best practices were to be found in the United Kingdom and our Judicial College.
Can we please not take any of this for granted? The quality of our judicial training depends on the judges who do it. The quality of our entire system depends on attracting high-quality men and women to the judicial Bench. If we take it for granted, we will lose it.
Lord Pannick (CB)
My Lords, it is a great pleasure to be part of a team of speakers with a forward line of three former Lords Chief Justice and two former Supreme Court justices that would win any legal World Cup.
This country is, as Shakespeare’s John of Gaunt says—it is still true—
“the envy of less happier lands”.
One of the reasons is our legal system, with its skilled and independent judges. There is a reason why Prime Ministers reach for a judge to investigate complex and sensitive public policy issues. They do so because judges and retired judges have a reputation for expertise, for integrity and for a determination to ensure that justice will be done—none more so than the noble and learned Baroness, Lady Butler-Sloss.
The legal system is important not just to the quality of our life but to our economic prosperity. The United Kingdom accounts for 7% of the global legal market. We are the leading global centre for the provision of international legal services. A paper issued by the Ministry for Justice in 2012 stated that the legal services sector in this country contributed £3.2 billion that year in exports, nearly three times more than a decade ago.
I declare an interest as a practising barrister. I make my modest contribution to that £3.2 billion in exports. In the past year, I have worn my wig and gown in the courts of Trinidad and Tobago, the British Virgin Islands, Bermuda and the Special Administrative Region of the People’s Republic of China—that is, Hong Kong. I have also travelled in the past 12 months to advise clients in Gibraltar, Zurich, Paris and Moscow. A number of my colleagues, either at the Bar or in solicitors’ firms, have more stamps in their passports.
We all find that, across all these geographical and cultural borders, the universal truth is that English law, English judges and English lawyers are regarded with enormous respect and admiration, none more so than the noble and learned Lord, Lord Woolf, who I thank for initiating this debate.
In applying the presumption of innocence, the principles of judicial review, the laws of contract and the protection of fundamental rights, the world still looks to London for guidance and legal services. Part of this is the historic residue of empire and the influence it commanded. In his epic account of the British Empire, Pax Britannica, James Morris tells how a hill tribe in India were involved in a dispute with their government about forest rights. Their elders were discovered sacrificing an animal to appease a distant but omnipotent deity:
“We know nothing of him”,
the elders announced,
“but that he is a good god, and that his name is the Judicial Committee of the Privy Council”.
Nowadays, the influence of London as a legal centre of excellence depends not on the chains of empire but on the quality of the product we produce. This influence and respect, hard won, are very easily lost.
I share the concerns that have already been expressed, particularly by the noble Lord, Lord Lester of Herne Hill, that the policies of the present Secretary of State for Justice, Chris Grayling, will damage the reputation, the influence and the financial success of our legal sector. If you undermine judicial review as an effective control on unlawful executive action, if you refuse to implement judgments of the European Court of Human Rights with which you disagree, if you reduce the scope of legal aid so that the most impoverished citizens of this country are denied effective access to the courts, and if you cut legal aid rates so that the brightest students—who are, of course, the judges and senior prosecutors of the future—cannot afford to work as barristers, and if in general you seek to administer our justice system on the cheapest basis possible, you will inevitably dilute its quality and pollute its reputation.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I, too, congratulate the noble and learned Lord, Lord Woolf, on securing this debate and on introducing it so engagingly. Although I prefer to regard the Motion as a call to arms rather than a glorification of our legal history, I cannot resist the temptation to start by listing some, at least, of the proud legal maxims that resonate throughout our history. Freedom is the birthright of every Englishman; an Englishman’s home is his castle; let right be done, though the heavens may fall; be ye never so high, the law is above you; the presumption of innocence—the golden thread that runs throughout our law; trial by jury—the lamp that shows that freedom lives; and habeas corpus.
Habeas corpus is literally a direction to a jailer to bring up the body of his captive in court, together with any suggested explanation for his detention. In this context I must mention Somersett’s case, in 1771, and Lord Mansfield’s historic holding that slavery was,
“so odious, that nothing can be suffered to support it, but positive law”,
and that in England there was none. The words that end that historic judgment are:
“The black must be discharged”.
But I always thought that counsel had the best line:
“The air of England is too pure for a slave to breathe”.
However, we must be careful not to appear immodest, or to boast about our past contributions to the rule of law. Rather than emphasise the pride that, naturally, we all take in our strong tradition of fair play and justice down the centuries—a tradition that we owe to our forebears—should we not rather focus on the need for our own generation to safeguard that reputation? That, surely, is the imperative today.
On the subject of boasting, I am afraid that I cannot resist quoting a little ditty that has long pleased me. It is displayed on a plaque in the men’s locker room at Huntercombe golf club, and it reads thus:
“Golf and boasting do not mix.
If you win by 7 and 6,
Apologise for what you’ve done
And write it up as 2 and 1”.
I am sure the Minister knows that ditty; certainly he is far more likely than me ever to have been in the position of winning by seven and six.
Today we are concerned with the law, not with golf, so—with profound apologies for my appalling doggerel—might not a rough legal equivalent of that ditty for today go something like this:
“The law and boasting do not mix.
Better far, let’s try to fix
Attempts to erode judicial review
By voting down provisions new”?
That, of course, is a reference, as has already been made by other contributors, to Part 4 of the Criminal Justice and Courts Bill now before this House in Committee, which contains provisions that seem to many of us to constitute a real threat to the courts’ supervisory jurisdiction and the judges’ power to hold government decision-making to account, particularly as these provisions come in the wake of the severe cuts to legal aid that, as the noble and learned Lord, Lord Woolf, mentioned, were introduced earlier this year by secondary legislation. A few years ago I attended, as did others here, an international conference in Hong Kong under the title, Effective Judicial Review: a Cornerstone of Good Governance. So it is—and we diminish it at our peril.
The other central threat to this country’s international legal reputation that I, in common with the noble Lords, Lord Lester of Herne Hill and Lord Pannick, see is the readiness of too many nowadays to cavil at the constraints put on us by our being party to the European Convention on Human Rights—to the point, indeed, of dishonouring our obligation under Article 46 of that convention to comply with Strasbourg judgments in United Kingdom cases.
As has already been mentioned, the Government’s stance on prisoner voting is a classic illustration of that. The Joint Committee’s report last December is a model report, addressing the whole question of our relationship with Strasbourg, and it demands close attention and early action. I do not have time to recite some of the powerful conclusions of that committee, but it points out that one cannot cherry pick the obligations under the convention, as that would only give succour to states of the Council of Europe that have a poor record on protecting human rights, and which might draw on such an action as setting a precedent that they may wish to follow.
I invite the Minister, in his reply, to assure the House that the Government have no thought of withdrawing from the convention. Indeed, I hope that he will be able to assure us that the court’s judgment in Hirst is finally to be honoured, so that some prisoners, at least, will have the vote by next May. Assuredly we have a proud legal history. Let us ensure that we maintain it for the future.
Lord Marks of Henley-on-Thames (LD)
My Lords, I, too, refer to my interests in the register and echo other noble Lords in congratulating the noble and learned Lord, Lord Woolf, on securing this debate and on the eloquent and erudite way in which he opened it. We all know how much the continued high standing of the British legal system owes to his personal contribution.
I will not concentrate on our pre-eminence in the field of commercial law—the noble Lord, Lord Pannick, and others have made that case well. I will add only a mention of arbitration and ADR. The development of a body of arbitration law by which parties are left free to choose their arbitrator, venue and procedure, underpinned by a strong enforcement regime, has been important for our international standing. So, too, has our reputation for ADR and the willingness of our courts and the professions to encourage and facilitate mediation.
The Motion speaks of the rule of law. To me, the cardinal principle is that the law, not the state, is supreme. As Dr Thomas Fuller expressed it in 1733:
“Be you never so high, the law is above you”.
Fuller was famously quoted by Lord Denning in the Gouriet case in 1977, again by Lord Bingham of Cornhill in his seminal book on the rule of law, and just now by the noble and learned Lord, Lord Brown of Eaton-under-Heywood.
We in this country are confident of the independence and incorruptibility of our judges, which are guarantees of impartiality—we are fortunate in that—but certainty and consistency are also important for our reputation, and the doctrine of precedent has helped greatly with them. Transparency is also increasingly important, with electronic communications now disseminating information instantly and universally. I suggest that there is room for more televising of cases, particularly judgments and reasons for sentence. Of course, there must be restrictions, particularly on witness evidence, but more recording would enhance public understanding of judges’ decisions at home and internationally, unfiltered by an often populist and partial press.
Several noble Lords have mentioned the European Convention on Human Rights, the great work of, largely, British Conservative jurists, the vision of Winston Churchill, which substantially underpins our system and enhances its credibility. It allows the scrutiny of the exercise of state power by reference to a guarantee of fundamental human rights and freedoms justiciable in our courts under the Human Rights Act.
What do I see as the threats? I shall highlight just four. First, the political threat to the Human Rights Act is serious. Sadly, it comes largely from politicians, who are frequently complicit in falsely portraying it as a creature of the European Union and treating it, perversely, as a charter for the unworthy and a threat to law-abiding citizens. There is a crying need for a wider understanding of the reality—and, as several noble Lords pointed out, for respect for the judgments of the European Court of Human Rights.
Secondly, the contraction of legal aid as a result of austerity has risked access to justice, and so our international reputation for fairness. I hope that, where alternative funding methods cannot be found to fund legal advice and representation, in due course the Lord Chancellor’s powers will be exercised, as funds allow, to bring some of the excluded areas back into scope.
Thirdly, the threat to judicial review, mentioned by others, which we will debate later this month, threatens our reputation for the rule of law. The measures proposed would unfairly and unjustly choke off private funding to support challenges to the Executive, stifle interventions by public-spirited bodies and prevent judges from protecting litigants of limited means who challenge government action.
Finally, we have made far too little progress on judicial diversity. In the four years since the excellent report of the noble Baroness, Lady Neuberger, we at least passed the judicial diversity provisions in the Crime and Courts Act. However, last year, we missed a golden opportunity to appoint our first woman Lord Chief Justice. Since April last year, there have been three appointments to the Supreme Court Bench with not a hint of diversity among them.
The issue is important. Whatever we think of Oscar Pistorius and his trial, the international reputation of South Africa’s legal system has been immeasurably enhanced by our witnessing, day after day, the quiet, careful and considerate handling of his trial by Judge Masipa in a case mentioned by the noble and learned Lord, Lord Judge.
To achieve judicial diversity, we must achieve more diversity in the professions. However, the reduction in legal aid and the uneconomic remuneration rates for criminal work reduce the number of lawyers undertaking publicly funded work. When I asked my noble friend about that on Monday, he said that,
“there is less for lawyers to do and inevitably there will be fewer lawyers to do it”.—[Official Report, 7/7/14; col. 10.]
That may be technically accurate, but, equally inevitably, the reduction is in those doing publicly funded work. The reduction in the standard of lawyer undertaking such work has been mentioned, and is important. Wishing no disrespect to either my noble friend or me, the more that the professions sound like him and me and look like him and me, the less we are likely to present to the world a judiciary that is genuinely representative of modern Britain.
We are rightly proud of our legal system but we cannot stand still, and I fear that we may not be keeping up in important areas.
Baroness Flather (CB)
My Lords, in thanking the noble and learned Lord, Lord Woolf, for initiating this debate, I want to share some personal memories. I think I have known the noble and learned Lord longer than anyone else in this Chamber. We were at UCL. He was a year senior to me, but I had the great good fortune to know him from my student days. I must have been one of the luckiest law students in the country, because the other person with whom I shared dinners in Inner Temple was the noble and learned Baroness, Lady Butler-Sloss. In those days, to students like me Law Lords were gods. You never imagined that you might be able to sit next to one or two, listen to them speak and have their friendship. I thank all my great friends who have been wonderful to me and have given a lot of value to my life.
I want to say a few words about India because I think it is worth mentioning. When India was under the rule of the East India Company, there were three major presidencies and they all had separate laws. It was a big muddle. No legal system applied everywhere but for 200 years there were appeals to the Privy Council, which is quite amazing. One or two islands may still have appeals to the Privy Council. What could say more about the esteem in which the British legal system is held? People still feel that if they can have this as a last point, they should keep it.
Eventually, of course, there was the Law Commission chaired by Lord Macaulay which marked the beginning of the proper legal system in India. It is still going on. It has been slightly updated but basically it is the common law. Not only that but, as has already been mentioned, many of the former colonies took the system on and, from the period when Lord Macaulay did the work, countries such as Malaysia and Singapore have the same law still. There is a reason why this common-law system has lasted. It has lasted because it has value. Nothing which has no value can last. People think it is something that should continue; they do not wish to change it into something else.
In India there was one difference. There were a lot of personal laws. There was a Hindu law, a Muslim law and possibly a Christian law and a number of different personal laws about things such as marriage, adoption and inheritance. I fear that we might be starting to allow that in this country. Every country should have a single system of law and not allow people who come from different backgrounds and have different social attitudes to start developing their own laws. That is not only against the basis of common law but against the interests of this country. All laws should apply to everybody equally and should be enforced properly. India is a secular country and there are a number of religions. This is not a secular country. It behaves like one but it has a state religion. If there has to be a religious law, it can only be a Christian one. We have no personal laws dictated by religion and that is a very good thing. I think it should apply to everybody else as well.
I want to say a few words about the noble and learned Lord, Lord Woolf. He did the review of civil procedure. I think it is amazing that a report got enacted so quickly. That is not the fate of all reports. It must have been of value to have been enacted. He put down eight points and they are so sensible and so clear that even Parliament thought it was good idea to enact it.
I want to mention another thing, which is again personal. I had the great good fortune of knowing the mother of the noble and learned Lord, Lord Phillips of Worth Matravers. She was a friend and she liked me. One day—it was State Opening—when I came in from that end where the judges were sitting, first the noble and learned Lord, Lord Woolf, got up to greet me, and then the noble and learned Lord, Lord Phillips. By the time I got to a seat they said to me, “We thought maybe all the judges were going to stand up to greet you”.
Lord Walker of Gestingthorpe (CB)
My Lords, as a footnote to several of the eloquent speeches your Lordships have heard, may I mention one aspect of our legal arrangements which is not perhaps well known but makes a significant contribution to the rule of law and, incidentally, to the standing of this country? It is the participation by the Bar of England and Wales, and to a limited extent the judiciary, in the training of young lawyers, both here and overseas, in the art or craft of advocacy. This important work is undertaken entirely on a voluntary basis and without remuneration. I declare an interest as I am a patron—with the Chief Justice of Hong Kong and Justice Kiefel of the High Court of Australia—of the International Advocacy Training Council, which I will mention towards the end of my speech.
I begin with a little history. For hundreds of years, the training of young advocates was entirely in the hands of the judges and the Bar. It was a thoroughly hands-on training. The students spent the day in court listening to the arguments and judgments. They lived in the Inns of Court, where they discussed points of law and listened to their elders and betters discussing points of law. That went on until about the middle of the 17th century, when, for a variety of reasons, there was a sad and steep decline. Legal education in the Inns of Court became formulaic, perfunctory and basically useless.
I am glad to say that that decline has now been decisively reversed. The Inns of Court—all of them—accept that their primary function is as centres of legal education. The Inns and the circuits—the other bit of the Bar’s infrastructure—work to supplement and continue the learning given to students in the university law schools and the Bar’s professional training course, especially in the fields of practical advocacy and professional ethics. They are able to do that only because a large number of practitioners, including some of the busiest practitioners and judges, are prepared to give something back.
I would be delighted to tell the House more about the methods and techniques that we use—groups of six students, usually with one or two trainers—but I fear that it would take up too much time. I will say only that the instruction is intensely practical; it is largely at an elementary level because we are dealing with beginners—and with them one is concerned with the elements, not the niceties, of advocacy. There are, however, much more advanced courses. The most outstanding course, of which at least my legal colleagues will be well aware, is the week-long advanced advocacy course held every year at Keble College, Oxford, which goes on to more advanced matters, including appellate advocacy, and the important topics of handling vulnerable witnesses and expert witnesses. The courses at Keble are regularly attended by numerous students and trainers from overseas, and the Inns of Court have, to an increasing extent over the past 10 years or so, either singly or in combination, sent parties of trainers to other territories in order to pass on the system to them—to train trainers, as it were. They have been frequently to Hong Kong, Malaysia, different parts of the Caribbean, Mauritius and elsewhere.
About four years ago at Keble, the international Advocacy Training Council was launched—primarily an initiative of the English Bar, but readily and warmly supported by judges and advocates in Australia, Hong Kong, Malaysia and South Africa. In fact, the annual gathering for advocacy training at Stellenbosch is probably the only serious competitor of Keble for being the top world event in advocacy training.
The demand for advocacy training exceeds supply. Some Bars, such as those of Hong Kong and Malaysia, are very prosperous and can afford to pay some or all of the expenses of visiting teams. Other jurisdictions are less well off; and the visiting teams have to pay their own way there, as well as give their services free of charge. But it is striking how, wherever they go, the experience is one of huge gratitude for the help and encouragement given to the local Bar, nowhere more so than in Zimbabwe, where a team visited last year—probably the most testing task that they have undertaken, having received no support at all from the Government of Zimbabwe—but with great success.
In short, advocacy training has become for this country an invisible export, freely bestowed and enormously appreciated by the recipients. It is something of which we can be very proud.
Lord Plant of Highfield (Lab)
My Lords, I should like to add my thanks to the noble and learned Lord, Lord Woolf, for initiating this debate. Perhaps I may draw attention to my interests as set out in the register.
I want to devote all my remarks to the idea of the rule of law, because what exactly that might mean is not without controversy. There is a fairly straightforward idea of the rule of law, which I think is highly inadequate. This view is that the law is what a duly constituted sovereign says and that it emanates from a recognised sovereign power. The rule of law then is a matter of complying with those laws issued by that sovereign. This positivistic view is still much debated and discussed, but there are two fairly major objections to just seeing the law as validated by its source.
The first objection is that it is perfectly possible to have a duly constituted sovereign power that has a highly authoritarian set of laws. I do not want to prejudge it too much, but Egypt might be a coming example of this. There is no doubt that General al-Sisi was duly elected and there may well be a raft of highly oppressive laws coming down the track. On this positivistic view, however, they are still the law; complying with the rule of law is complying with those laws whether you like it or not.
The second objection to the positivistic view of the rule of law is that it is highly relativistic. For example, we are facing in this House the issue of the role of judicial review. One might say: in that jurisdiction with its laws, there is a place for judicial review and that is fine; and in this jurisdiction with its laws, there is not a very big place—or a place at all—for judicial review. These are perfectly equal. We have no reason for preferring one to the other. They are both fine within their own doctrine of authority, but both of these objections would lessen the attraction of the source view or the positivist view of law to those who are keen on the idea of the rule of law.
We need more—or more subtle—criteria for thinking about the rule of law. One place where this can be found, up to a point at least, is in Lon Fuller’s famous book The Morality of Law in which he lists a whole range of criteria that must be satisfied before the rule of law can be said to exist. For example, the law has to be public and not secret; the law should not be retrospective; there can be no strict obligations imposed on citizens without the force of law; all citizens are to be subject to the law in an equal way; we have to listen to both sides of a legal dispute; laws are to be mutually non-contradictory; they should be constant through time; and the official actions of government and its agencies are to be congruent with the law. This gives us a bit more to chew on than just the positivist view. However, critics have said—I think that there is a lot of force in this—that this does not take us very far, because these are not really moral criteria for thinking about the rule of law. They are just efficiency conditions for any legal system. So any legal system that is going to work will have to include most of these criteria that I have just read out. Therefore, this is not what Fuller calls it, namely the inner morality of law, but rather it is just a set of efficiency criteria for the operation of a legal system.
What we need is a view of the rule of law that pays attention to that, because they are important efficiency conditions, but we need to go beyond that to the place where the noble and learned Lord, Lord Woolf, was in his speech—namely, to think about the broader view of the role of basic moral principles in the law, as exemplified, for example, in the rights that are protected under the European convention, the Human Rights Act and so forth. We have to look at outcomes, not just processes. So much talk about the rule of law is about either the source of law or the Fuller type of criteria. We need to look at what kind of society we want the law to foster, which will include these various rights and protections for individuals, including the justice and fairness of the noble and learned Lord, Lord Woolf.
To finish on a slightly less heavy note, I was once in a committee in your Lordships’ House when someone got rather muddled up and came up with a wonderful comment, which I shall leave your Lordships with. This person said that if you are thinking about how the British legal system has impacted on the world, it has turned warlords into law lords—and I think there is something in that.
Baroness Butler-Sloss (CB)
I should very much like to have the opportunity to respond to the noble Lord, Lord Plant, but I think the short answer to what he said is that the concept of the English rule of law is the one that we follow and which we are discussing today, and which I would commend. However, it would be very good to have more time to discuss the very interesting points that the noble Lord has just made. I have a feeling that this, with some notable exceptions, is very much a lawyers’ meeting place, if not a picnic. I am afraid that, as yet another lawyer, I am contributing to that.
It is entirely appropriate that the noble and learned Lord, Lord Woolf, should have put forward this most interesting debate. Although he is too modest ever to accept it, he is an excellent example of the export of English law and its systems around the world. In my view, he is a shining example of the English legal system and our judiciary. He was one of the British and Australian judges in the final Hong Kong Court of Appeal; he set up the financial court in Qatar and was its first president; he has been an international mediator and arbitrator since his retirement; and, like other English retired judges and lawyers—not retired lawyers—he applies English law right across the world.
I shall speak briefly today about family law, as a former president of the Family Division. I want to make two points, one positive and one negative. First, I congratulate each of the Governments over the past 25 years on the introduction of good family legislation. The family courts apply almost entirely statute law, and it is an area where the legislation has played a much more important part than in many other areas of the courts, and particularly rather less of our common law. Government and Parliament are essential components of the application of family law to the litigants, who need a rather special type of help from the administration of justice. I applaud much of the legislation, from the Children Act 1989, through some excellent legislation under the previous Labour Government to the recent Children and Families Act, together with recent excellent reports such as Munro and Norgrove.
Having spoken of the good part of family law, I now turn to the bad part. From April this year, as noble Lords will know, there is no legal aid in private family law disputes, including children and finance, unless it comes within a very small list of exceptions such as domestic violence and child abuse. From my experience of 35 years sitting at different levels of the family court, I know that divorce or separation of couples who have lived together is a painful emotional process for most people, and for some it is traumatic. In a small but significant minority, perhaps 5% of cases, the former relationship turns corrosive and one or both former partners use the courts as the arena to fight their failed relationship. Some people in this position hate the other person so much that they cannot see why their children should love or have anything to do with the other parent, and they cannot come to any agreement. The government emphasis on mediation is excellent as far as it goes but it will not work in this 5% of cases. Judges and lawyers know this but successive Governments do not and either appear not to understand or will not listen.
Barristers and solicitors who did this private law work did not earn large amounts. Their desire has always been to seek a settlement of the issues between the parties, and their protocols require them to put the welfare of children first. They now do very little of this work because most litigants have no money, so men and women, untrained in the law but fighting their failed relationships through the arena of the courts, are appearing unrepresented before judges and magistrates. The task of the courts, faced with carrier bags of unsorted and disorganised papers in child cases and even more so in financial disputes over the former matrimonial home and maintenance, is huge and unmanageable. On a practical note, it clogs the courts and creates delay so I hope that the Government will listen to the fact that it is not cost-effective. It is only in suspected child abuse cases that there is legal aid so that the children may be represented, and I have to say to your Lordships that parents are the worst people in this group of cases to make any decisions about what should happen to their children. Anyone but parents would be better because this comes in the aftermath of their traumatic separation.
We have Magna Carta celebrations next year and, in my view, they will sound hollow in the face of the failure to be able to do justice in private family law disputes. Clause 40 of Magna Carta, written in 1215, provided for access to justice, which is not achieved in 2014. I am so glad that I am not a judge any more and do not have to sort out these problems. When other countries look across the Atlantic or the channel at the system of family law in England and Wales, they will not applaud us.
Lord Clement-Jones (LD)
My Lords, it is a great pleasure to follow the noble and learned Baroness, Lady Butler-Sloss, in this terrific debate. I declare an interest as London managing partner of DLA Piper and as a member and City ambassador of the Law Society. As the noble Lord, Lord Hodgson, said earlier in the debate, the rule of law in the English legal system is a major source of British influence abroad, as the recent report by the Select Committee on soft power of this House made very clear.
I had the great pleasure recently of participating with the noble and learned Lord, Lord Woolf, in a conference on the rule of law in Turkey, which was a very timely reminder in that country of the essential values inherent in the concept of rule of law, and I thank him for initiating this superb debate today. Many noble Lords have mentioned the fact that next year we are celebrating the 800th anniversary of Magna Carta through the Global Law Summit and other events. It is particularly important that we hand down this tradition to each new generation and that they are made aware of how precious it is.
The rule of law is not only a philosophical ideal and a bastion of individual rights. Our legal framework is critical to economic development, to the creation of jobs and to a successful market economy. A key factor is the integrity and independence of the judiciary and, as my noble friend Lord Marks said, London has become a world leader in dispute resolution. English legal practitioners are another reason for using English law. We have a long and well respected tradition of excellent legal services based on trust and performance. Huge effort over the past few years is beginning to result in a much more diverse profession, with commitment to the PRIME initiative by an alliance of law firms and legal departments across the United Kingdom to broaden access to the legal profession. Pro bono ethos and practice is much more embedded, too, within the legal profession. The noble Lord, Lord Livingston of Parkhead, in his first contribution to this House last December, confirmed his view that the legal services sector is one of the most important sectors for the UK. In fact, it employs almost 350,000 people. The noble Lord, Lord Pannick, referred to the fact that the rule of law is now one of Britain’s great exports; exports of legal services totalled more than £4 billion last year.
Our law and law firms are becoming ever more international to meet the needs of businesses. Law firms such as my own have responded by becoming international in their own outlook, establishing a global presence. There are close links between legal education, our laws and the legal sector. We attract students from all over the world. This needs to be nurtured. The coming decade promises to see increased competition as other cities such as Paris, New York and Hong Kong aspire to compete with London as a world leader in legal services.
We also face legislative threats such as the common European sales law being proposed by the European Commission as an EU civil law alternative to English common law. Protectionist regulations in growth markets such as India and a number of other emerging markets are, however, a major stumbling block, inhibiting the export of UK legal services and, indeed, opportunities for their own lawyers. The profession and the Government have, rightly, made persuading emerging markets to tear down their barriers to entry a key priority. Staring in 2011, the Ministry of Justice’s Plan for Growth set out the importance of English law and English legal services to the UK economy, and the need to open up overseas markets.
Our position in Europe is vital in achieving this goal. Another benefit from the EU is the freedom of establishment under the establishment directive. No wonder that, according to a recent CBI survey, two-thirds of law firms think that leaving the EU will have serious negative consequences. The challenges we face to ensure that the UK remains the world leader in the rule of law, in our standards of justice, in the provision of legal services and in the opportunities that exist in international jurisdictions are significant. However, we can meet them if we heed today’s warnings. I hope that we will be able to fulfil, as Ken Clarke said when he was Lord Chancellor, the UK ambition of becoming lawyer and adviser to the world.
Baroness Prashar (CB)
My Lords, as a non-lawyer I feel like a gate-crasher into this lawyers’ and judges’ picnic. However, I do not regret having gate-crashed because, as I expected, this has been an informative, interesting and thoughtful debate.
I am really delighted that the noble and learned Lord, Lord Woolf, secured this debate a year before we mark the 800th anniversary of Magna Carta. He introduced the debate with his characteristic wisdom and I agree with much of what he has said. The legal system of the UK has made an enormous contribution to the international standing of the UK. We have much to be proud of and much to build on, but we must also be watchful of what other noble Lords have said.
While we can look with pride at the great history of our legal system and the contribution that it has made to the world, we can also look forward to the huge contribution that our legal system can make in a world which faces significant challenges. By so doing, we can remain aware of what it is that we have to cherish in our own country.
The late Lord Bingham, in his brilliant book The Rule of Law, said,
“the rule of law is not fixed for all time. Some countries do not subscribe to it fully, and some subscribe only in name, if that. Even those who do subscribe to it find it difficult to apply all its precepts quite all the time. But in a world divided by differences of nationality, race, colour, religion and wealth it is one of the greatest unifying factors, perhaps the greatest, the nearest we are likely to approach to a universal secular religion. It remains an ideal, but an ideal worth striving for, in the interests of good government and peace, at home and in the world at large”.
The question is how we should continue to strive for it here and abroad. The answer is by example; by adhering to the rule of law; by constant vigilance; by maintaining the standards and the independence of our judiciary, and by the excellence of our judiciary and legal profession. It is also by continuing to engage with international bodies such as the United Nations, the Commonwealth and other professional organisations to promote the rule of law.
The rule of law, however, does not emanate just from state-based legal institutions but from wider socio-political norms and relationships. While focus on legal institutions, writing of constitutions, laws, training of lawyers and reforming the judiciary is necessary, it is not enough. Attention needs to be paid to value systems and informal justice systems and to the wider political and social structures in which judicial institutions are embedded. It needs to address power relations and entrenched interests, as well as how state-based legal systems articulate with customary law and informal justice practices.
The British Council—and I declare an interest as its deputy chair—has worked and is working in countries where there might be more than one legal system in operation or where informal justice systems co-exist alongside more or less effective state institutions. The approach adopted by the British Council is subtle and inclusive. It is one that understands and values UK experience, but is able to apply it on the ground in partnership, working with local actors and with the grain of local culture and context. This engagement by the British Council has shaped its understanding of the link between justice, development and economic growth, and how to achieve that through subtle and oblique approaches, rather than by hard selling.
I am delighted that the British Council is a partner in the Global Law Summit, an international legal conference to be held in London next February. This conference will be celebrating 800 years of our legal history, showcasing the British offer and advancing our shared understanding of how to promote the rule of law worldwide. We are proud to be working with other partners to enhance the international standing of the UK and its legal system and the observance of the law in this country and abroad.
Lord Ramsbotham (CB)
My Lords, like my noble friend Lady Prashar, I feel that I am gate-crashing a debate for which I am very much not qualified to take part. It reminds me of a defence debate in which it was calculated that 36 stars had taken part, so others felt somehow excluded. Rather than the picnic referred to by my noble and learned friend Lady Butler-Sloss, however, I regard this turnout as a tribute both to the importance of the subject and to the admiration and respect with which my noble and learned friend Lord Woolf is held in this House. I join those who have congratulated him on and thanked him for this debate.
I propose to base my remarks purely on the contribution that the observance of the rule of law has made to the international standing of the United Kingdom. However, I fully agree with those who have expressed their concern about the creeping erosion of judicial independence and discretion.
Like the noble Lord, Lord Hodgson of Astley Abbotts, I have to declare an interest as I was a member of the Select Committee on Soft Power and the UK’s Influence, which has already been referred to. I am not going to repeat that judgment but merely want to say that one of the most powerful pieces of evidence we heard was from the high commissioner of Mozambique, who described why Mozambique had applied to join the Commonwealth. Top of the list was the rule of law. This supports absolutely what my noble and learned friend Lord Judge said.
I want to talk about just two aspects. I was very interested in what the noble and learned Lord, Lord Morris of Aberavon, said about his experience with Kosovo. Today’s Armed Forces are in a very difficult position. The law of armed conflict and the Geneva Convention were drawn up to apply to combat in a place of war between armed forces representing nations, and not for what is currently happening, which is referred to as “war among the people”. That is confusing because if a soldier breaches the law, he should, quite rightly, be arraigned under the law.
I well remember spending a considerable amount of time while on operations—for example, in Northern Ireland—on making absolutely certain that every single member of my battalion understood the rule of law. Not only was it explained to him but afterwards he carried it—in the form of a little yellow card— in his pocket to make certain that he would always know it. That applied on the streets of Northern Ireland, where we were working with the police; it does not apply so much in some of the situations with which soldiers are currently faced. However, it is absolutely certain that if any member of the Armed Forces does breach the law, they risk undermining the reputation of the United Kingdom. That happened in the disgraceful affair in Iraq, which has been discoloured by the finding that so many of the witnesses were corrupted, as it were, into giving evidence and demanding compensation, and, of course, in the recent sentencing of a Marine sergeant for murder.
It is essential that our Armed Forces should be aware that there is all the difference in the world—as Sir Michael Howard, the distinguished historian, pointed out—between the Roman words bellum, which is the legal use of force between nations, which is one description of war, and guerra, which is the illegal use of force in a nation. To declare war on terror and on drugs, which are neither bellum nor guerra, is confusing to the Armed Forces, which have to exercise the rule of law.
The second area to which I shall refer is the criminal justice system. As we all know, this system consists of the police, the courts, prisons and probation—but it is a system, as a whole. My noble and learned friend Lord Woolf referred to the legal element of the system. I just want to say that I am very concerned that, as the noble Lord, Lord Lester, and my noble and learned friend Lord Brown have said, it is quite wrong if the Government are seen to be breaking the law as regards the criminal justice system. Noble Lords have mentioned the deliberate problem around voting rights for prisoners. I would add to that the disgraceful procrastination over the numbers of prisoners who are held on indefinite sentences for public protection, a subject which has been raised many times.
I am also extremely alarmed that in the current Criminal Justice and Courts Bill, which is coming towards us, there is a defiance of a Supreme Court ruling on the allowance of the use of force on children to instil good order and discipline. It is worrying because, instead of the Lord Chancellor seeming to resist any failure to observe the rule of law, the breaches of the rule of law seem to be coming from the man who is responsible for the rule of law. Not only does it send the wrong message about the United Kingdom’s observation of the rule of law; it sends exactly the wrong message to those who are imprisoned because they themselves have failed to observe the law.
Lord Taverne (LD)
My Lords, I, too, speak on this topic in this august legal gathering with hesitation and misgiving. I last practised law in 1966 and had only 12 years at the Bar and one year as a Silk, practising mainly before that friendly god the Judicial Committee of the Privy Council. I was then lucky enough to become a Minister at the Home Office in that glorious period between 1966 and 1967 when Roy Jenkins was Home Secretary, which was the greatest period of law reform since the Second World War. Since then, however, I have not been directly concerned with the law. It has changed profoundly, and whatever law I once knew I have forgotten—hence my hesitation, especially since I shall voice some critical comments.
I believe that recent discussions about our legal system have missed one very important point. The Government rightly argue that the cost of legal aid has soared and must be controlled. Lawyers and others concerned with justice rightly complain that cuts in legal aid have restricted access to justice—a fundamental right in a democracy—but no one blames the legal system. I fear that we can no longer claim that the legal system in England and Wales is a model for the rest of the world, in at least one very important respect. I shall restrict my comments to civil litigation, but I believe equally valid criticisms can be made of proceedings in criminal cases.
The costs of litigation are not only exceptionally high by international comparisons, but unpredictable and can end up being out of all proportion as a subject matter in dispute, causing financial ruin to the parties. Valiant attempts to limit and reduce costs, such as the reforms proposed in 1999 by the noble and learned Lord, Lord Woolf, and the proposal of Lord Justice Jackson, implemented in 2013, have not prevented the seemingly inexorable rise in costs. At the same time, according to the Government’s own figures, when the Legal Aid, Sentencing and Punishment of Offenders Act became effective in April 2013, legal aid was no longer available to some 600,000 of the million or so who previously qualified.
Our legal system has become dysfunctional. Why? I will mention some plausible explanations. Losers have to pay winners’ costs, so costs are ratcheted up. Once you start to litigate, you have to go on to the bitter end, because abandoning your case half way means you are the loser. Lawyers, who charge by the hour, have no compelling incentive to limit costs. Even when they want or try to, they have to react to opponents’ moves.
The noble and learned Lord, Lord Woolf, who I have always greatly admired, put forward reforms that offered hope by giving judges control over litigation to see that it was conducted efficiently and economically. So why have costs risen even higher? I am told that a major reason is that there is now much more litigation about costs themselves, which can be very large. Lord Justice Jackson was asked to review the rules and principles governing those costs, and judges now have discretion over their awards in the light of the conduct of the parties. However, this leads only to more jockeying and argument about costs, adding to their total. The sad fact is that the amount of litigation about costs has no parallel in any other country.
Once the issues have been defined, the parties’ lawyers must provide the court with estimates of the cost of running the entire case, which the court must review and approve to make sure costs are not disproportionate. Budgets are approved at the first case management conference after the close of pleadings, but this means that would-be litigants have to retain lawyers to start proceedings and work out budgets. They have to commit themselves to proceedings that may be very expensive, without any idea of what they will eventually cost. Who wants to go to law if their means are limited?
No wonder there has been a vast rise in the number of litigants in person—but litigation demands legal knowledge and expertise in court procedure. Those who argue their own case without either are almost bound to be less likely to obtain justice. Inevitably, cases argued in person also take much longer and add to the costs of administration.
What should be done? First, I have always had doubts that the public are best served by lawyers being paid on the taxi-meter principle: by the hour. More importantly, there should be a major review of the administration of civil justice. It is perhaps the oldest public service. Access to justice at reasonable cost is a vital principle, and the fact that it is no longer available undermines our claims to be a civilised society. Yet this public service has never been independently reviewed. Of course lawyers must play a major part in any review, but they should not themselves be the final arbiters of how the public can best be served. There is something seriously wrong with a system in which, to litigate, you have to be a plutocrat or a pauper.
Lord Phillips of Worth Matravers (CB)
My Lords, one of the first visitors that I had when the Supreme Court opened its doors in 2009 was Andrew Li, the Chief Justice of the Court of Final Appeal in Hong Kong. He had come to ask me whether I would permit two justices of the Supreme Court to spend a month each year sitting as non-permanent judges of his court. I hesitated for a moment, wondering whose permission I should seek in relation to this request, and then I realised that there was no one. I was truly independent. It was a rather heady moment and I unhesitatingly agreed. Could there be any better contribution to the rule of law than to export two members of the United Kingdom Supreme Court to buttress the independence and standing of the impressive Court of Final Appeal in Hong Kong?
My successor, the noble and learned Lord, Lord Neuberger, not only endorsed my decision but goes himself to sit in Hong Kong in the long vacation. There are now no fewer than seven Members of this House, of whom I am one, who sit each year in the Hong Kong court in China. That is really rather remarkable, and there is no better illustration of the worldwide impact of English law and English lawyers. Another illustration is the recent invitations by Mauritius and the Bahamas, at their expense, to the Judicial Committee of the Privy Council to go and sit in their countries, thus demonstrating their devotion to the rule of law.
Last Thursday, this House debated the importance of the manufacturing industry to this country. Today, thanks to the initiative of my noble and learned friend Lord Woolf, we have the opportunity to consider the contribution that English law and English lawyers make not merely to this country but to the world. My noble and learned friend Lord Woolf himself exemplifies that contribution. As the House heard, on his retirement as Lord Chief Justice he was immediately invited by the Emir of Qatar to set up an international commercial court in Doha—where, as on other occasions, I have followed in his footsteps.
That was not the first such court in the Middle East. In 2004, Dubai set up an English language court, applying common law in the resolution of commercial disputes. The first Chief Justice of that court was Sir Anthony Evans, a distinguished commercial judge who had sat in the English Court of Appeal. These courts are an indication of the high regard in which English commercial law and English commercial lawyers are held around the world, and my short speech will focus on commercial law.
The most remarkable development during my life in the law has been the growth of English commercial lawyers. When I started at the Bar some 50 years ago, there was a handful of commercial Silks who appeared in the commercial court and occasionally on what was known as the Hong Kong circuit—the courts of Hong Kong, Malaysia and Singapore.
When I joined Admiralty Chambers, then situated at 2 Essex Court, we had only one Silk, and when 10 years later I moved to 1 Brick Court we had only two. Now, Quadrant Chambers, the successor to 2 Essex Court, has 19 Silks and Brick Court Chambers no fewer than 36. Barristers from these and similar sets of chambers are appearing not merely in the courts of this country but in arbitrations around the world where contracts governed by English law are being arbitrated. Today, we have heard from the legal globetrotter, the noble Lord, Lord Pannick, about his many appearances around the globe.
Several sets of chambers have set up satellite chambers in Maxwell Chambers in Singapore as a base for operating there. Today, the influence of English law and English lawyers in dispute resolution is largely latent because the resolution is taking place in private arbitrations.
The growth of City of London law firms has been even more remarkable. Fifty years ago, these were modest partnerships. Indeed, the number of partners was limited by law. All the partners knew each other well. The large international law firms were based on Wall Street. For 2013 the annual report of Clifford Chance records that the average number of partners during the year was 411. That firm is but one of a number of giant law firms that have their base in London, but the offices of these firms are to be found in almost every major trading city of the world.
What is the explanation for the international pre-eminence of English commercial law and lawyers? I believe that it is twofold. English law is attractive to commercial men because much of it has been custom-made by outstanding common-law judges, often sitting in the Appellate Committee of this House, who cut their judicial teeth in our world-famous Commercial Court. Today, 50% of the contracts concluded around the world are governed, by the choice of the parties, by English law.
The other is the recognised integrity of English lawyers, which owes much, I believe, to the influence of the Inns of Court and the Law Society, and to the importance accorded to the rule of law in this country which Parliament and the Executive must never cease to respect and uphold. We should all be grateful to the noble and learned Lord, Lord Woolf, for underlining the importance of this.
Lord Beecham (Lab)
My Lords, of course, I join others in your Lordships’ House in congratulating the noble and learned Lord, Lord Woolf, and thanking him for giving us the opportunity of an important and very well informed debate.
The reputation of our English legal system stands as high as it does precisely because of the wisdom, expertise and independence of our judiciary, as exemplified by the contributions to this debate of noble and learned Lords who have played such an important part in the development of our jurisprudence and, indeed, to the deliberations of this House. It is a matter of deep regret that in a number of respects that reputation is under threat from government policies reflecting a growing indifference—perhaps even hostility—to some of the cardinal principles that lie at its heart.
As we are frequently reminded, next year sees the 800th anniversary of the sealing of Magna Carta—a document that has acquired an iconic, not to say almost mythical resonance as a charter of liberties. Only three clauses survive unchanged over the centuries, the most important perhaps being the pledge to,
“sell to no man … either justice or right”.
I shall refer later to the issue of whether and to what extent the positive version of the provision, which might be encapsulated in a pledge to ensure access to justice or right, is currently under threat. I am grateful to the noble and learned Lord, Lord Judge, for reminding us that one of the provisions was to render the king subject to law.
In his book The Pursuit of Justice, the noble and learned Lord, Lord Woolf, described Magna Carta as,
“a symbol for the values of the common law, remarkable because it is such an historical statement of the fundamental principles of the rule of law”.
As he said in the book and again today, it is one adopted by other, later jurisdictions from the USA to India. Lord Bingham, who alas is no longer with us, records in The Rule of Law that Magna Carta was cited in no fewer than 60 United States Supreme Court judgments between 1940 and 1990. I cannot resist quoting the memorable line of Tony Hancock’s jury foreman in a parody of “Twelve Angry Men”:
“Magna Carta … Did she die in vain?”.
However, the common law, powerful and flexible as it has been, and instrumental alongside the independence and integrity of our judiciary in earning the admiration of other countries and their jurists, does not stand alone, nor is it immune from threats which seem to be growing in number and intensity. We have debated many times in recent years and months the vexed question of access to justice, particularly in the light of the steady and continuing undermining of judicial review—referred to by a number of noble Lords today, including the noble Lords, Lord Lester and Lord Marks—which we will be debating in the Criminal Justice and Courts Bill, and the erosion of the availability of legal aid and advice in the courts and tribunal system. Whole swathes of rights and remedies are now beyond the reach of many of our citizens, unless they have the means to pay for legal services, or the good fortune to obtain advice and support from an increasingly overloaded and underresourced voluntary sector.
On 21 July we will be debating the latest road block to be placed on the road to justice—the residence test for legal aid—set to deprive even children, admittedly only those over the age of 12 months, of support if they have been resident for less than a year. It might be thought that that is another example of the politics of the dog whistle, which in the view of the Joint Committee on Human Rights is in flagrant violation of the European Convention on Human Rights. That convention is very much the United Kingdom’s contribution to the post-war construction of a democratic Europe in which the rule of law has become the cornerstone of civic and judicial structures, and we all owe a Conservative politician who became the Lord Chancellor, Sir David Maxwell Fyfe and later Viscount Kilmuir, an enormous debt for what became in effect the Magna Carta of the 20th century. Yet, increasingly, a disturbing trend has emerged in which human rights are devalued and the role of the convention is disparaged in the very country which did so much to advance them. As the noble and learned Lord, Lord Woolf, pointed out, if England is to be true to its heritage, which is a commitment to the rule of law, it has to be, and has to be seen to be, a champion of human rights. Making the human rights convention part of our domestic law has proved a great success. He observed that it embodies very much the same values that have been recognised by the common law for centuries. And to those who denigrate the convention, the late Lord Bingham asked, again in The Rule of Law, which of the rights would be discarded.
But rather than cherish these rights, the Government see in our judicial system a commodity to be traded. Access to justice for hundreds of thousands of citizens a year is made hugely more difficult while foreign litigants are rightly encouraged to use our skilled lawyers and our courts to resolve their differences. Justice is in danger of being seen primarily as a commodity and thus as a contributor to our balance of payments, welcome of course though that contribution is, and a tribute as it is to the skill and experience of our practising lawyers and the judiciary. However, while these litigants—Russian oligarchs and others—enjoy a Rolls-Royce service, our citizens are having to contend with an increasingly inefficient and ineffective system. The problems of criminal law practitioners and the future of the criminal Bar in particular have been referred to frequently, and notably today by the noble and learned Lord, Lord Woolf. We have the chaos in the recently reorganised and fragmented probation service, and in our overcrowded prisons in which we house, after a fashion, more people per head of population than any other EU country and with a lower age of criminal responsibility. These are conditions which are little short of scandalous.
The situation in our civil courts is also very worrying. As the noble and learned Baroness, Lady Butler-Sloss, has pointed out, there is growing concern over the number of litigants in person, especially in the field of family law. Last week I attended the opening of a personal support unit offering non-legal support to litigants in person at Newcastle Crown Court. At that event Lord Justice Briggs confirmed that the issue of delays and costs of unrepresented litigants in person was becoming a serious matter, as the noble and learned Baroness reminded us in the debate.
These problems are also affecting other parts of the civil justice system. I am indebted to Patrick Allen from the leading solicitors’ firm Hodge Jones & Allen for an update on some other aspects. It appears that papers can be lodged in a county court, date-stamped and sent to Salford, because that is where all matters now have to be routed, where they will again be date-stamped but not necessarily issued before deadlines have expired, thereby creating the risk of a case being out of time unless the High Court extends it. The savings to be engendered by this new procedure, all of £3 million to £4 million a year, are not even going to be recycled into the system, as the Civil Justice Committee of the Law Society has been told. The promised but belated investment in IT, some £75 million over five years, is to be prioritised for the commercial court. We can understand the incentive for doing that, but equally if all the resources go in that direction there will be little prospect of improving matters for domestic litigants.
In addition, the problems of the decision in the Mitchell case, which imposed what many think were disproportionate sanctions for failure to meet rigid deadlines under the Jackson rules, has led to all co-operation between parties being withdrawn. I understand that the position is to be reviewed, and I am sure that the profession more generally will be awaiting the outcome with great interest. It seems that, as the noble Lord, Lord Marks, rightly referred to, the system of arbitration is being developed. Apparently the new and very effective approach of an alternative arbitration system has been developed by a leading Silk, Andrew Ritchie QC, which will be cheaper, quicker, and more collaborative. It is to be hoped that that will have some impact.
The frustration experienced in the civil and criminal courts also extends to the magistracy, where local justice is perceived as under threat from court closures, large benches and more full-time district judges. The system of which we have been so justly proud, and which other jurisdictions have so often sought to emulate, is under threat as never before. This threat is not from a medieval monarch, but from an obtuse ministry which seems prepared only to pay lip service to the tradition of centuries and the adjustments required to reflect and cater for changing needs in our evolving society. The question at next year’s celebration will not be:
“Magna Carta … Did she die in vain?”,
but “Magna Carta—does its spirit live on?”. If not, where stands the reputation of our much admired legal system?
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I thank the noble and learned Lord, Lord Woolf, for affording the House the opportunity to discuss the United Kingdom’s legal systems. As many noble Lords have said, his contribution to the justice system has been highly significant. The noble Baroness, Lady Flather, chose her dining companions well in those days. I will not repeat the many tributes, but they were all justly described. However, I also say that the Government welcome not only the contributions today from distinguished lawyers and judges but also those from non-lawyers, because of course the law does not belong to lawyers or judges, but to all of us.
This has been a rich debate, full of legal history and the history of legal maxims, the development of Magna Carta and the protection of rights since. Material for many debates has indeed been provided by the contributions of noble Lords. However, I am sure that one thing on which the whole House can agree is that our legal institutions and services are a vital part of the constitution. As a result of their deserved reputation for integrity and excellence, the influence of our legal institutions and services reaches across the world. They not only shape other jurisdictions but also provide the conditions for commerce to flourish.
I first address the question of the rule of law and our constitution. It is crucial to recognise that the rule of law is at the heart of the British constitution, underpinning a fair and just society in which citizens, businesses and civil society can help our nation prosper. As many noble Lords reminded us, next year sees the 800th anniversary of Magna Carta, a document of great symbolic importance. It established the principle, among others, that executive power is not above the law.
The 800th anniversary of the sealing of the charter affords us an opportunity to reflect on and celebrate its values. The Government are working with the Magna Carta 800th Committee to organise commemorative events, which I am sure that many noble Lords are greatly anticipating. Magna Carta began to chart the boundaries of the relationship between the state and the individual, a dialogue that persists to this day. Much of what we do here in Parliament concerns the defining of the limits of state power when it represents a potential threat to individual liberty.
Today the rule of law ensures that all, including the Executive, are subject to a clear, certain and accessible body of law, determined by Parliament and interpreted and applied by an independent and impartial judiciary in a timely manner. The Lord Chancellor is under an oath to respect the rule of law, providing Britain with a system that protects the rights of citizens with respect to the state in areas of public law, and to provide for the fair and reliable resolution of private disputes. We have a judiciary with statutory safeguards through the Constitutional Reform Act 2005. Its members are independent of the Executive and of each other, and this allows for the law to be interpreted and applied impartially. It is to the great pride of our country that our judiciary is held in the highest regard, not merely here but throughout the world. The quality of our judiciary and its incorruptibility is something that we should never take for granted.
Furthermore, the Lord Chancellor has the duty to provide an efficient and effective system to support the business of the courts and tribunals. There has been considerable criticism not only of the Lord Chancellor and the role that he now performs as Secretary of State but of the holder of that office. Indeed, the Lords Constitution Committee is to conduct an inquiry into the office of Lord Chancellor. The Ministry of Justice will provide evidence to the committee in due course on that issue.
It is our shared understanding of, and respect for, the constitutional principles that I have outlined that enables the judiciary and Executive to work in partnership in the delivery of justice so that it can continue to be administered efficiently and effectively.
The noble Lord, Lord Marks, criticised the lack of diversity in our judiciary. It is true that, in the High Court, 21 women out of 108 is not a happy percentage—in the circuit Bench, one in six is a woman from a total number of judges of 654—but I am glad to tell the House that there has been a considerable increase in the number of appointments of women to the Bench recently.
A number of noble Lords raised the subject of judicial review and changes that the Government wish to bring about by the Bill that is currently before your Lordships’ House. I have been well and truly put on notice that there are a number of aspects of Part 4 of that Bill about which there is concern. I hope that noble Lords will forgive me if I do not give a full response to all the potential criticism at this stage, but that would be only a dress rehearsal for what may follow. I well understand the depth of concern about judicial review. I hope, however, that when we come to debate that issue, all noble Lords, whether with a legal or other background, will bear in mind that there are perceived by some people, rightly or wrongly, to be areas of judicial review where it has made incursions beyond those which those who developed the doctrine originally anticipated. However, I should make it clear that the Government, and certainly any Government of which I am a part, do not wish to abolish judicial review, contrary to what is occasionally written in the press, but value it as an essential part of the constitution.
A number of noble Lords raised the question of human rights, not least my noble friend Lord Lester, of whom I was a colleague on the Human Rights Commission. Rightly, attention was drawn to the terms of the European Convention and those who drafted it. I know that very few politicians or lawyers on any political wing would quarrel with the convention itself. What, however, is more open to debate is the relationship between the Strasbourg court and our courts. It is a legitimate reason for debate and a matter on which a number of people on all sides of the political divide have expressed a view: whether the Supreme Court should be the ultimate arbiter of these things and whether Section 2 has either been wrongly interpreted or should be amended. However, I should make it clear that this coalition Government have no intention to repeal or amend the Human Rights Act.
There was also considerable criticism of the cuts in legal aid. The noble and learned Lord, Lord Woolf, I fear, was right when he anticipated that I would mention austerity, which indeed I do. The Government attempted to identify those areas where legal aid was most needed and those areas where it should be possible—if not sometimes difficult, as we accept—for those needing on the face of it some legal assistance to manage by other means.
The full effect of the legal aid cuts will take some little time to assess. The Government are committed to reviewing this within five years—but it might be better to specify a period of three to five years from the implementation of the reforms in April 2013. The difficulty with making any assessment is that there was a considerable spike in the number of claims started just before that date, so it is almost impossible to form a clear view of the effect.
Of course I share with all noble Lords the concern that access to justice should not be denied. Indeed, I, with the noble Lord, Lord Pannick, was part of a group of Peers who were behind an amendment to the LASPO Bill to say that when economic circumstances changed, the Lord Chancellor should consider enlarging the scope of legal aid. I hope that that is indeed the position.
I could discuss the rule of law in more detail. It was elegantly discussed by the noble Lord, Lord Plant, and there has been repeated reference, quite rightly, to Lord Bingham’s great work The Rule of Law, which I am sure will be read for many years to come.
There are few better illustrations of the strength of our legal services than their overseas influence. The rule of law provides the best environment for the nourishment of commerce and economic growth. In turn, this assists the growth of business and wealth around the world. As the noble and learned Lord, Lord Woolf, will be well aware from his own experience, the expertise of our practitioners, coupled with the enduring strength of our legal institutions, is sought by many clients across the world. We should also remember the influence of many legal professionals who, having qualified in the United Kingdom, return to their home countries and bring their education and expertise back to enrich their own jurisdiction. Our legal practitioners, and those who train here, benefit not only the United Kingdom but all the jurisdictions in which they work.
The noble and learned Lord, Lord Judge, rightly commended the work of the Judicial College and its increasing reputation abroad. He was too modest to mention his own significant role in training judges. I must declare an interest as a nervous assistant recorder who was inspired by him to set about the difficult task of sitting as a judge, and who listened to his stirring speech about the dissenting judgment of Lord Atkin in Liversidge v Anderson. The noble and learned Lord, Lord Walker, rightly reminded us of the importance of advocacy training, and how this is a skill that we are spreading beyond our shores.
English contract law has long enjoyed an excellent reputation. Its combination of consistency and flexibility, backed by courts that are independent, impartial and able to enforce their judgments, ensures that it is favoured by many businesses around the world. The noble and learned Lord, Lord Phillips, told your Lordships about the positive explosion of commercial law since he began in practice.
As a fellow of the Chartered Institute of Arbitrators, I am pleased to say that a particular strength of our legal services is arbitration. In a 2010 survey, London was voted the preferred seat of arbitration by an international audience, and we will strive to ensure that international lawyers and business continue to take advantage of our expertise and state of the art facilities when resolving disputes.
Noble Lords will need little further elucidation of the strength of London, with its diverse range of practitioners, close links to the City and fine modern facilities such as the Rolls Building. But as this debate is on UK legal services, I should add that there are high-quality providers in centres such as Edinburgh, Glasgow, Belfast, Leeds, Sheffield, Birmingham, Manchester and Liverpool, offering choice and value to a variety of clients in a wide variety of sectors. It is important to point out that some legal activity—in fact, quite a lot of legal activity—is carried out on a pro bono basis, as the professions generously provide their expertise to those who could not otherwise afford to use their services.
The noble Lord, Lord Clement-Jones, stated the ambition that we should become lawyers and advisers to the world. He was right to remind us of the level of exports accounted for by legal services. They were estimated to generate £20.4 billion for the UK economy in 2012, of which just under £4 billion were exports. I am not sure how much of that was contributed by the one-man export drive that is the noble Lord, Lord Pannick. Of course, the influence goes further in terms of soft power—referred to by the noble Lord, Lord Ramsbotham and my noble friend Lord Hodgson—together with the export of judges, referred to by the noble and learned Lord, Lord Phillips.
I am delighted to draw your Lordships’ attention to two exciting events that will be taking place in the United Kingdom in 2015. In April 2015, Glasgow will host the Commonwealth Law Conference. The conference has the overarching themes of resources, responsibilities and the rule of law. It is organised by the Commonwealth Lawyers Association and the Law Society of Scotland, and I am certain that it will draw a strong attendance from across the Commonwealth, with whom we share so much legal heritage. As the noble Baroness, Lady Prashar, reminded us, in February 2015, London will host the Global Law Summit. This one-off conference will examine how the principles of Magna Carta offer innovative solutions to achieve commercial, political and social goals. It will also provide outstanding opportunities for business and collaborative working. The venture has wide support among my government colleagues, the legal professions in this country and business. Indeed, we are expecting more than 2,000 delegates, comprising political, business and legal leaders from across the world.
Before concluding, I should pick up one or two points made by other noble Lords in the debate. My noble friend Lord Marks referred to the importance of televising court proceedings. That is a difficult area about which I think that opinions can reasonably differ. I am not sure that everyone watching the Pistorius trial would necessarily have been persuaded that televising trials was always in the public interest.
We were rightly told by the noble and learned Baroness, Lady Butler-Sloss, of the challenges that judges—in particular, those in the Family Division—face in dealing with litigants in person, when disputes are so often acrimonious. She reminded the House that there is still legal aid for mediation. Mediation has a good story to tell, although I accept that it is not always the answer. Much needs to be done to improve the lot of litigants in person who, I accept, must inevitably be a greater feature of the legal landscape. I pay tribute to the judiciary as being most helpful, together with court officials, in developing systems. In the High Court of Justice and other courts, increasing help is to be had for litigants. There is improvement of access via computer and signposting to assist those who need help. The Government are expecting reports from two High Court judges on the problems confronted by the courts in dealing with litigants in person. That is a matter that should certainly be kept under review.
We also heard from the noble Lord, Lord Ramsbotham, and the noble and learned Lord, Lord Morris, about the contribution of the rule of law to international law and conflict. It was reassuring and encouraging to hear that the rule of law as we understand it is making a great contribution even in the complex scenarios that international conflict continues to throw up.
Our system has much in it to be admired but, as the noble Lord, Lord Taverne, told us, it is expensive. The expense of litigating can mean—as he rightly said, it has often meant in the past—that it is only the very rich or those on legal aid who can afford to litigate at all.
The noble and learned Lord, Lord Woolf, made a great contribution to improving the legal system by the Civil Procedure Rules, but I am sure that he would be the first to admit that it is not beyond further improvement. Various initiatives such as cost capping are helping. The reforms in Part 2 of LASPO, which implemented the Jackson report, are beginning to have their effect. The use of qualified one-way cost shifting and the reduction of the recoverability of ATE premiums in conditional fees have made it a little more economical to litigate. This area is a matter of great concern to any Government. It is a matter, one hopes, of co-operation between government, the judiciary and lawyers to ensure that we have a system that maintains accessibility to all.
The global summit, to which I referred, marks an apt point at which to conclude my remarks. It reflects the enduring relevance of our constitutional heritage while providing an opportunity for the UK legal service to continue to demonstrate its prowess across the globe. Our system has many admirers. To continue the quote from the John of Gaunt speech started by the noble Lord, Lord Pannick, it is indeed a,
“precious stone set in a silver sea”,
as indeed is the noble and learned Lord, Lord Woolf, to whom I pay great tribute for initiating this debate.
Lord Woolf
My Lords, it is a pleasure to be able to say that this debate has exceeded all my expectations. This is because of the quality and spirit in which contributions have been made. It is not for me now to take up the time of the House by going over the various contributions, but I think that your Lordships will forgive me if I echo one or two points that have been made.
First, I particularly thank those who are not lawyers who have taken part in this debate. Their contributions were of huge value and the debate would have been the lesser without them. I also congratulate those noble Lords who managed to take part in two debates this afternoon and made very distinguished contributions to each. I was much moved by the idea of this being a picnic, and I was wondering what we could bring as presents for people to take away from the picnic after it is over. I am very glad that the Minister was able to provide us with something to take away—I will certainly regard it as an important contribution, as I know will many other noble Lords here—in his assurance that the Government have no intention to either repeal or amend the Human Rights Act.
I think that both the spokesman for the Opposition and the Minister also deserve to be congratulated on the way that they have tackled the issues before us in this debate. I agree with the Minister that there is a lot left to argue over, which will no doubt occur within this Chamber in the future. I do not think that there will be reference again to the days when I was a student so long ago in University College London, when I had the huge advantage of having the noble Baroness, Lady Flather, as a fellow student. I am bound to say, and know only too well, that she has weathered over the years so much better than I have.