House of Lords
Monday, 28 July 2014.
Prayers—read by the Lord Bishop of Sheffield.
Debt Management Organisations
My Lords, the Government have given the Financial Conduct Authority responsibility for protecting customers of debt management firms. Debt management firms are subject to binding FCA conduct rules and must treat customers fairly. FCA prudential and client money requirements are also being introduced to protect customers’ money. The FCA will thoroughly assess every debt management firm’s fitness to trade as part of the authorisation process from October this year.
My Lords, half of the clients of fee-charging debt management companies do not know that there are equivalent free services. These clients are mostly recruited by cold calling and 31 million cold calls were made last year. The FCA says that it does not regulate these calls. Can the Minister say who does regulate them and are cold callers required to advise of the existence of free debt management services?
On the second part of the noble Lord’s question, debt management companies will be required under the new rules to signpost consumers to free debt advice, which will be a major improvement. There are two elements of regulation of cold calling and unsolicited text messages. The ASA has some responsibility in that area and it has already taken action to ban payday lenders’ use of unsolicited text messages. As with its regulation of other financial services markets, the FCA is committed to ensuring that cold calling by phone, text or e-mail makes the identity of the firm and the purpose of the communication clear to those being called.
In a recent Parliamentary Answer I found out that since 2005 companies in the financial services sector have been fined £1.2 billion. Will the Minister agree to look at the points made by the noble Lord, Lord Sharkey, and maybe use a small portion of those fines to fund good charities, good organisations and credit unions which actually help people who are in debt?
My Lords, as the noble Lord knows, the Government are already committed to funding credit unions to a considerable extent. On the issue of free money advice, the Money Advice Service has allocated some £38.1 million this year to fund free debt advice, which will be given through organisations such as Citizens Advice and StepChange.
My Lords, I had just such a cold call this morning and the person who made it did not leave their address or their name. It was a tape-recorded message. Is there anything that I can do about that? Can the Minister say what will be done to protect people who have pension funds from being scammed? There was a lot about that on the radio this morning.
The FCA has very considerable powers to regulate all financial services firms in this area. In the sector we are looking at, it took on responsibility earlier in the year. It has introduced stricter rules and is putting in place new authorisation processes. But if the FCA finds that despite the way in which it is tightening up its procedures, there are still significant problems in respect of cold calling, it has the powers to intervene further.
Is it possible for my noble friend to insist that somebody who is either erroneously or speculatively called and does not want the services of a debt management organisation can dial 1471 and get the number so that we can put a stop to some of this calling? I have tried to do it; it does not work; and I am fed up with it.
My Lords, it is clear that many noble Lords share my noble friend’s view that unsolicited cold calling is a nuisance. I think that people find this in a whole raft of areas, whether it is double glazing salesmen or this one. The absolutely crucial thing about cold calling is that, certainly for financial services products, those making the calls should be absolutely clear who they are calling from and why they are calling so that people have the opportunity to put the phone down quickly.
My Lords, I declare an interest as chair of StepChange, the debt charity. Is not the problem with debt management companies that the regulatory functions, as the Minister said, have only just started and that we are not taking advantage of some of the measures that already exist in the United Kingdom? Has the Minister looked at the situation in Scotland, where statutory relief is available to those who get involved in free debt advice schemes so that they are not charged additional interest and the pressure from people such as cold callers and others is reduced?
My Lords, we have made clear to all parties in South Sudan the need to support an inclusive peace settlement, through high-level messaging from UK Ministers and through the close engagement of the UK’s special envoy to the South Sudan peace talks. We have also directly supported efforts to ensure that South Sudanese civil society is engaged, notably through our backing for the IGAD-led symposium in June. We welcome the announcement that peace talks are planned to restart on 30 July. The UK will continue to press for an inclusive outcome.
I thank the Minister for his Answer. I gather that the situation in South Sudan is absolutely dire at the moment. There is acute food insecurity, about 1.4 million people have fled their homes and there are around 4 million who need acute humanitarian assistance. Many of them are women who have fled with their children. I gather that there are very high levels of sexual violence and that women and girl children are particularly vulnerable. Can the Minister please assure me that particular attention will be paid to the women’s concerns and that their voices will be heard at the peace talks?
My Lords, the situation is dreadful. Many of those who have fled their homes have therefore missed the planting season, which means that there is a real possibility of very substantial famine in six to nine months’ time. We should in no sense underestimate how serious the situation is. Of course, it is not simply one conflict; there are all sorts of overlapping local and trans-border conflicts that affect South Sudan. The Government are fully engaged. We are glad to see that UNMISS, in its assistance to refugee camps, is paying special attention to the need to protect women and children, but we are conscious that many are at risk.
My Lords, very often in that part of Africa the church is the sole common point of reference between the different tribal and ethnic groups. Will the noble Lord please ensure that both the FCO and DfID make use of the good offices of the ecumenical representative of the World Council of Churches and of the councils of bishops and evangelical churches in order to ensure that there is proper resourcing for peace and reconciliation work? It does not come cheap but it is effective.
I entirely agree that the churches are among the strongest and most widespread civil organisations in that deeply embattled country. Of course, many of the civil society organisations are now in refugee camps outside Sudan. I pay a particular compliment to those aid workers who are helping in South Sudan, in conditions of very considerable insecurity. Many of them come from British NGOs. We all recognise how difficult the situation is and we are certainly working with the churches as far as we can.
Does the Minister agree that too much time in South Sudan has been focused on state building rather than nation building, and that that is reflected in the 38% of revenue that has been spent on armaments in South Sudan compared with the 7% spent on education? As we approach the peace process, will he ensure, as the noble Baroness, Lady Hodgson, argued, and as the noble Lord, Lord Boateng, has just said, that the representative nature of the peace process becomes more apparent, including not only warlords but many of those who have suffered, not least the women in South Sudan?
My Lords, this is, of course, a very new country and there has not been very much time for either state or nation building so far. We are certainly working through IGAD to pull in as many civil society organisations as we can in order to ensure that we do not have warlord-dominated negotiations of the sort the noble Lord suggested.
My Lords, it is evident that the long-term process of finding an inclusive Sudanese-led reconciliation can begin only once hostilities cease and a political settlement and resolution is reached. This is why international diplomacy is so vital. Will the noble Lord tell the House what plans the Government have to address the current understaffing of the UK Sudan unit, which has a role in this?
My Lords, the number of staff in the UK Sudan unit has fluctuated over the past few months; my understanding is that it is now rather larger than it was two or three months ago. I do not think that we can wait until the fighting stops to begin negotiations; local fighting is likely to continue for some considerable time and we have to start to move to construct at least the basis of some form of government now.
My Lords, I very much welcome the comments of the noble Lord, but he just mentioned the number of refugees outside South Sudan. In fact, 180,000 refugees have arrived in Ethiopia and the number is expected to grow to 350,000 by the end of the year. What further steps will the Government take to ensure that Ethiopia and other neighbouring countries do not themselves collapse under the weight of this terrible tragedy?
My Lords, that is a problem not only for this conflict but for the Syrian conflict and the neighbours of Syria as well. The United Kingdom is the second-largest donor to South Sudan and those donations include assistance to refugees in surrounding countries. IGAD, the international action group, operates as a means through which all the neighbouring countries get together. I emphasise how serious the conflict is. It is estimated that perhaps 7 million out of the 10 million people in South Sudan may be short of food or under famine conditions by this time next year.
My Lords, I welcome the agreement between the parties that representatives of the people displaced by the conflict will take part in the peace talks. Will the representatives be selected by IGAD or by some other means, and if so, what will be the process? Will the talks to be started on Wednesday cover the details of how the transitional Government of national unity is to be established?
IGAD is currently consulting outside the country with potential civil society representatives who will be included in these discussions. This will in no way be a beautiful or perfect set of arrangements. If we manage to achieve some sort of transitional Government of national unity, we will have done extremely well.
My Lords, I declare an interest as a trustee of the Disasters Emergency Committee and echo the Minister’s comments about the courage and commitment of the workers for those aid agencies who are out in South Sudan. They all report a desperate humanitarian situation in which it is not just the lack of resources—I pay tribute to what the UK Government have done in this—but ongoing fighting that is a barrier to those most in need receiving aid. Does the Minister agree that with more than 50% of farmers not able to plant in this year’s rainy season, unless a long-term enduring agreement is reached, this crisis will not only continue but deepen?
My Lords, there has never been an effective and functioning state in South Sudan. It is a new country born out of civil war. It is going to take a long time to construct an effective state administration with the ability to provide education and order within the 10 provinces with a large number of tribal groups and some 200 different languages. This is a major preoccupation with which all the states around South Sudan are engaged. Britain, the United States and Norway represent the troika of outside Governments who are most concerned. Of course we want other Governments to be concerned. It is good news that China has now recognised that it also has interests at stake and is considering providing additional troops to the UN peacekeeping forces.
My Lords, of the Governments who are most concerned, Uganda and Kenya are members of the Commonwealth. The Commonwealth has substantial experience in the field of internal reconciliation. Do the Government see any role for the Commonwealth and for members of the Commonwealth in this sad situation?
It is also important to ensure that we have Ethiopia and—as far as there is a Government in Somalia—Somalia on board. There are problems with allegations that Ugandan troops are too close to the side of President Kiir and biased against Mr Machar, so there are a number of delicacies that would raise questions about a Commonwealth role.
My Lords, will the Minister confirm that efforts to eradicate the guinea worm continue in this region? It is a terrible parasite that is on its last legs. Through the excellent work of this Government supporting the Carter Center, it is down to its last handful of cases in South Sudan. It would be a terrible pity if the parasite were to escape again.
My Lords, in conditions where it is extremely dangerous for aid workers to be outside towns and where there are now severe problems in making sure that polio vaccination continues, I doubt that we have the capacity at present to ensure that the guinea worm eradication programme continues, but I will write to the noble Viscount.
Railways: High Speed 3
My Lords, the Government have asked Sir David Higgins to produce an ambitious proposal for connecting the great northern cities. This work will look at how to bring the benefits of high-speed rail to the north more quickly, as well as initial proposals for faster east-west connections, including options on route, timescales and cost, by the time of the Autumn Statement later this year.
My Lords, does my noble friend agree that if combined with high-speed broadband across the region and increased capacity at Manchester Airport, High Speed 3 has the capacity to once again enable the northern cities to be economic powerhouses—a 21st-century Cottonopolis?
My Lords, we need to unlock the economic potential of our northern cities. The cities of the north are individually strong, but collectively not strong enough. Therefore, the floating idea of the Chancellor to have an HS3 was welcomed, but we have a lot of work to do on that.
My Lords, last week in this House my noble friend Lord Faulkner of Worcester stated that it was,
“generally understood that the Chancellor’s announcement about HS3 came as a complete surprise to the Department for Transport”.—[Official Report, 21/7/14; col. 926.]
The noble Baroness, Lady Kramer, did not deny that, and today is a second opportunity for a government Minister to do so. Is the commitment from the Government a commitment to build HS3? Is it, 10 months from an election, simply an announcement to look at the case for HS3, from a Chancellor from a northern constituency who was speaking at the Museum of Science and Industry in Manchester and worried about whether the Conservatives would hold on to such seats as Calder Valley and Colne Valley? If it is a commitment to build HS3, what benefits were revealed by the cost-benefit analysis, and who did it?
My Lords, that was a long question—in fact, many questions. The Chancellor has set out a vision for how to unlock economic potential in northern cities. Something remarkable has happened to our northern cities in the last 30 years. They have done very well. It is time that we take them to another level. One way to do so is to have the infrastructure investment. We are having HS2, which has been widely discussed in this House. HS3 is a floating idea. We wait for a further report from David Higgins to justify a business case for HS3. But we need to rebalance the economy, we need to support our northern cities and HS3 will probably become a welcome idea.
My Lords, I wonder whether the Minister will reflect on the fact that whenever HS3 is built it will be a long time, and there is a very urgent need to improve east-west connections right across the country—from Norwich to Liverpool, Lincoln to Birmingham and so on. Is it not much more important to concentrate on getting these schemes working and, at the same time, to make provision for a through facility at Leeds which will link Liverpool, Manchester, Leeds and Hull and completely revolutionise the situation?
My Lords, the Government have invested more than £600 million for the Northern Hub. I agree with the noble Lord that we need to speed up the works that are going on in the Northern Hub to make sure that we have the right connectivity between our major cities and towns. I agree with him that the work is in progress but there is more to be done.
My Lords, the Minister confused me a little by referring to a floating idea. In the north, we like straight yes or no. Are the Government—the Department for Transport, the Chancellor and the whole Government—committed to meeting the needs of the north, or could this idea float away again after the general election?
My Lords, the government policy is to rebalance the economy. The announcement by the Chancellor was to see how we could unlock the economic potential of the northern cities and make them into a hub for economic growth. HS3 is an idea that has come from the Chancellor, and we are quite categorically saying that this will depend on the report that we will have from David Higgins before the Autumn Statement.
Schools: Local Oversight
My Lords, arrangements for the management of academies and free schools will be enhanced by the collective expertise and wisdom of eight regional schools commissioners supported by their head teacher boards. Two RSCs are already in situ, and the other six start in September. We have also strengthened the guidance for local authorities on intervening in maintained schools, and inspections are undertaken using a risk-based approach, with more frequent inspections for those schools not performing well.
I thank the Minister for that reply. Last week, when dealing with the Trojan horse Statement, he conceded that the department has to take its fair share of the blame for the failings that occurred in Birmingham. However, does he realise that, at the heart of the situation, people have lost confidence in the Secretary of State’s ability to manage thousands of schools from the centre? Does he not see that the proposed regional commissioners for academies who he has just mentioned just add a further level of confusion, as they will not apply to all state schools? Surely what is needed here is a strong system of local oversight for all schools, such as our proposed directors of school standards, that would give parents, teachers and governors real confidence that their voices will be heard and that poor standards will be addressed.
I do not recognise the picture that the noble Baroness paints. We believe that this system is efficient; in devising it we were advised by people who have set up national and international organisations. We find that the position of the party opposite is confusing. On the one hand its leader tells us that nobody wishes to revert to the local authority system, while on the other its policy adviser, Mr Blunkett, says that he wants to have between 80 and 150 directors of school standards, all supported by their own bureaucracies, and many of whom will be recycled local authority people. We do not think that that is the way forward. There is no role for RSCs on maintained schools; that is a role for local authorities, and, as I say, we have clarified their role.
My Lords, my noble friend will recognise, I think, that a substantial number of academies very much regret the lack of clear local accountability. Can he therefore tell us whether the new Secretary of State will consider a method under which local accountability can be more clearly established so that problems such as those arising from the Trojan horse story in Birmingham will be obviated at local level and not have to turn into a national horror of one kind or another?
Our solution to ensuring better local accountability is to have a system of regional schools commissioners which is run by head teachers. Personally, I trust head teachers to be better wired into their local systems than bureaucracies and bureaucrats are, any time. We are also increasingly seeing the emergence of regional multi-academy trusts, which are proving particularly effective.
My Lords, after the Trojan horse allegations, it has been reported that teachers who spoke out at the time are now suffering harassment and the threat of losing their jobs. What do the Government propose as a way of protecting whistleblowers locally so that they are given enough courage to come forward and speak out?
The noble Baroness raises a very good point. We are doing all that we can to ensure that that does not happen. Indeed, there are some teachers we are particularly concerned about who had themselves been causing harassment and who have now been suspended from their jobs. We are talking to Ofsted about expanding its whistleblowing arrangements to cover exactly this kind of situation.
We have not yet gone as far as mandatory training. We have a high expectation that all governors will be trained where necessary and that they should be chosen for their skills. We brought in this big focus on skills rather than representation: governors may come from all walks of life, but they must have the expectation that they will be trained. We have also brought in tightening regulations so that where governing bodies feel that one of their governors needs training and they refuse to take that training, they can be suspended.
Can my noble friend confirm for me and for the House that the overwhelming success of the vast majority of free schools and academies is the best evidence that allowing autonomy and freedom to schools and heads is the best way of raising standards?
I am grateful to my noble friend for her comments. The overwhelming success of the programme is unarguable. Some 24% of free schools are rated outstanding, which makes them by far our highest performing group of schools; converter academies are far more likely to retain or increase their Ofsted rating at the next inspection; and sponsored academies are increasing their performance at a rate approximately twice that of other schools.
These are arrangements which are sorted out under a scheme of delegation between the trustees and the local governing board. They can delegate quite a few of the responsibilities, or limit them, but all academy trusts have to make this very clear in their schemes.
Whatever the arguments—and they are substantial—between the two sides of the House on the merits of the Government’s policy of allowing so great a range of different administrations for secondary schools, what is unarguable, as I am sure the Minister will agree, is that the Government’s programme has resulted in a huge increase in the Secretary of State’s personal responsibility—whoever he or she might be—for the ultimate management of so many secondary schools. Given that no individual could possibly do this on their own, can he tell us what structures are in place within the Department for Education, how many people are employed within those structures, and how much it costs? We might then get some sort of measure of how this awesome responsibility is being undertaken and who on earth is undertaking it.
The Secretary of State, to put it simply, has always been responsible for schools in this country. I cannot put it better than this:
“If a school is not delivering sound education for its pupils, and a different way of running the school would yield a different and better result, it is our duty to institute the change”.
I could not have put it as well—and not surprisingly, as that was a former Prime Minister, Tony Blair, speaking last week. We believe that the regional schools commissioners are the right structure. As for cost, this Government inherited a department from the previous Government that had no concept of value for money. We have halved the cost of running it in real terms. I will write to the noble Lord if he would like the figures. However, the actual cost of running the regional schools commissioners will be something like £5 million, compared with the huge expense of the bureaucratic system that the party opposite proposed to put in place.
It has always been the case in the recent past that we have appeared to have a shortage of head teachers. We are increasingly seeing younger heads coming forward and academy chains growing their own senior leadership teams. Teaching schools are now, of course, also playing an increasing part.
Does my noble friend agree that the previous Secretary of State for Education has been a hero in this field in introducing and carrying out policies that have greatly enhanced educational opportunities for children throughout the country?
I entirely agree with the noble Baroness’s comments. He is the first Secretary of State for many years, I think, to stop the decline in school standards. His changes, which are dramatic, will take years to have effect, but we are already seeing quite significant early signs of the positive nature of their effect.
Right to Die at Home Bill [HL]
A Bill to create a right to die at home.
The Bill was introduced by Lord Warner, read a first time and ordered to be printed.
Consumer Rights Bill
Order of Consideration Motion
That it be an instruction to the Grand Committee to which the Consumer Rights Bill has been committed that they consider the Bill in the following order:
Clauses 1 to 60, Schedule 1, Clauses 61 to 63, Schedule 2, Clauses 64 to 70, Schedule 3, Clauses 71 to 75, Schedule 4, Clauses 76 and 77, Schedules 5 and 6, Clauses 78 and 79, Schedule 7, Clause 80, Schedule 8, Clauses 81 to 91.
Paternity and Adoption Leave (Amendment) Regulations 2014
Copyright and Rights in Performances (Extended Collective Licensing) Regulations 2014
Community Interest Company (Amendment) Regulations 2014
Motions to Approve
Electricity Capacity Regulations 2014
Electricity Market Reform (General) Regulations 2014
Contracts for Difference (Allocation) Regulations 2014
Contracts for Difference (Electricity Supplier Obligations) Regulations 2014
Contracts for Difference (Definition of Eligible Generator) Regulations 2014
Contracts for Difference (Standard Terms) Regulations 2014
Renewables Obligation Closure Order 2014
Motions to Approve
That the draft regulations and draft order laid before the House on 23 and 30 June be approved.
Relevant documents: 4th and 5th Reports from the Joint Committee on Statutory Instruments, 6th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 24 July.
Road Safety (Financial Penalty Deposit) (Appropriate Amount) (Amendment) (No. 2) Order 2014
Drug Driving (Specified Limits) (England and Wales) Regulations 2014
Motions to Approve
Local Government (Transparency) (Descriptions of Information) (England) Order 2014
Motion to Approve
Criminal Justice and Courts Bill
Committee (4th Day)
Relevant documents: 2nd Report from the Constitution Committee, 3rd Report from the Delegated Powers Committee, 14th Report, Session 2013-14, from the Joint Committee on Human Rights
Clause 50: Wasted costs in certain civil proceedings
69A: Clause 50, page 54, line 31, leave out “must” and insert “may”
My Lords, the amendment is to Clause 50, which deals with the Government’s new provisions in respect of wasted costs orders. Such orders fall to be made at the discretion of the court when it is thought by the court that the conduct of lawyers for the parties, or one of the parties, may have acted in such a way, either by deliberate act or by act of omission, so as to prolong the case unnecessarily and lead to costs which should not have fallen to either side or to the court system to pay.
The Government consulted about improving the system, as they described it, for wasted costs orders, and have in the end come forward with this clause, which requires the court to consider reporting lawyers to the regulatory agency to which they are responsible. Those agencies would be the Law Society, the Bar Council and, I assume—perhaps the Minister will correct me if I am wrong—the Chartered Institute of Legal Executives, if it is involved. These considerations would apply both to court proceedings and to proceedings in the tribunal system.
There was a consultation on this matter, and the responses of the Bar Council and the Law Society were quite interesting. The Bar Council certainly took the view that the Government’s proposals were flawed and opposed them in pretty forthright fashion. They responded to a number of questions—for example, on whether the fee should be charged to cover the costs of any oral hearing of a wasted costs order and whether that fee should be contingent on the case being successful. The Bar Council’s response was that:
“A person seeking to defend a wasted costs application should not be required to pay a fee at an oral hearing … It is appropriate to require a party asking for a wasted costs order to pay a fee upon making the application, as a disincentive to unfounded applications and satellite litigation”.
I assume that, since the Government are not legislating on that point, they have accepted the Bar Council’s view in that respect.
A general question was also asked about the possible scope for any changes relating to wasted cost orders for cases other than judicial reviews. The Bar Council’s response to that was very clear. It stated that the Jackson reforms, instituted by Lord Justice Jackson over a year or so ago now,
“ought to be permitted to take their full effect before further changes are made. The costs budgeting provisions of the Civil Procedure Rules are intended to reduce the costs of civil litigation as a whole and ought to reduce the prospects of a party paying for the avoidable errors of a legal representative”.
It did not see how any additional cost provisions would materially assist.
The Law Society was somewhat briefer, as is the society’s wont in these matters, and described what was Clause 36 in the Bill as debated in the House of Commons—now Clause 50—as “unnecessary”. The society made the valid point that:
“The court already has the discretion to make a lawyer personally liable to pay any litigation costs”.
The additional sanction therefore seemed to be “superfluous”—it might be thought a piece of legislative window dressing. The society also made the statement, on which it would be interesting to hear the Minister’s comments, that:
“The Solicitors Regulation Authority would not take further action if notified that a wasted costs order has been made against a solicitor”,
on the grounds that:
“The existing liability to a financial penalty is sufficient sanction”.
If the solicitor transgressed—heaven forefend that that should ever happen, but if it did—then the financial penalty incurred by the imposition of a wasted costs order by the court would be sufficient and the Law Society would not take any further steps. There was also a suggestion that reference should be made to the legal aid authority, but it seems it would have no power to do anything. Quite what the rationale of that would be remains to be seen.
The clause has no place in the Bill at all. It is not necessary, for reasons which have already been explained. It is purely window dressing. The sensible thing would be for the Government to withdraw it—hence our intention to oppose it. On the amendment, if the clause, despite all logic, remains in the Bill and is enacted, to make it clear that it does not impose a strict duty on the court or tribunal, the wording should be such that the court “may” make such a reference, rather than be required to make such a reference, which looks like the implication of the clause as drafted. I beg to move.
My Lords, a wasted costs order transfers costs caused by the legal representative’s improper conduct from the party to the legal representative personally. The clause places a new duty on the courts, where a wasted costs order is made, to notify a legal representative’s regulator—I confirm that all the regulators mentioned by the noble Lord, Lord Beecham, would be included, within the definition of the 2007 Act—and/or the Legal Aid Agency, where the court considers it appropriate to do so.
The clause’s rationale, and the reason it should stand part of the Bill, is that there are no further formal consequences when a wasted costs order is made. The Government’s view is that the implications of receiving a wasted costs order should be strengthened to encourage legal representatives to consider more carefully decisions they make, both in handling claims and in deciding whether or not to pursue a case. The changes introduced by the clause seek to achieve this, and I will therefore in due course urge that Clause 50 stands part of the Bill.
Amendment 69A, in the names of the noble Lords, Lord Beecham and Lord Kennedy, seeks to replace the duty to consider notifying the regulators or the Legal Aid Agency with the discretion for the court to decide whether or not to notify them where it considers that it is appropriate to do so. It does so by changing “must” to “may”. In the Government’s view, the amendment is unnecessary. The mandatory requirement—the “must”—goes no further than requiring the court to notify where it considers it appropriate. The court is not absolutely required to inform the listed bodies or persons, or to inform any one of them, but to inform such of them, if any, as it considers appropriate. If the court does not consider it appropriate to inform any of those listed, it does not have to do so. Accordingly, it has to consider whether it is appropriate to inform one or more of them but it is not obliged to do so in a particular case: it is entirely a matter for the court. The discretion that the amendment seeks to introduce is already provided for in the clause as drafted.
Our view is that the courts should consider making a notification in every case where a wasted costs order is made but that it would be inappropriate to require it in every case. We agree that it is a matter for the courts based on the facts of the individual case. When notified of a wasted costs order, it will be for the relevant body to decide what, if any, action should be taken. Clause 50 does not make mandatory any action, as in the Government’s view that is properly a matter for the body based on the individual circumstances.
The noble Lord asked about the position of the Bar Standards Board, the Solicitors Regulation Authority and, I think, the Legal Aid Agency. The independence of the regulators is a fundamental principle and we do not wish to undermine this by setting out what action they should take upon receipt of a wasted costs notification. The Government have been in touch with the relevant bodies, informing them of the changes under Clause 50 and offering advice as to how they may wish to proceed. The Bar Standards Board has advised that it would treat the matter under existing procedures as an expression of concern about a barrister’s conduct. It might choose to investigate and could ultimately take formal disciplinary action if it considered it appropriate to do so. The Solicitors Regulation Authority would also welcome wasted costs order notifications and would treat such information in the same way as it treats all intelligence that it receives. The Legal Aid Agency is looking into taking account of wasted costs orders using existing contract performance management mechanisms for current legal aid contracts and contracts commencing this August. If adopted, contract managers would consider the number and financial value of wasted costs orders made and discuss them with the provider directly. The Legal Aid Agency might consider it appropriate to issue a contract notice or to take other contractual enforcement steps.
In view of the explanation that I hope that I have provided, and in view of the fact that I understood this probably to be a probing amendment, I respectfully ask the noble Lord to withdraw Amendment 69A, and I urge the Committee to agree to Clause 50 standing part of the Bill.
I suppose that I should have declared an interest as a member of the Law Society, although I confess—thank heavens—that I am not actively practising my profession and have not done for some time.
I thank the Minister for his explanation. I am still slightly at a loss to understand how it can be claimed that, as far as the solicitors’ profession is concerned, the clause would make any difference, given the Law Society’s stated response, as I have already indicated, that:
“The Solicitors Regulation Authority would not take further action if notified that a wasted costs order has been made against a solicitor”.
I do not know whether that has been discussed directly with the authority or whether there has been subsequent discussions and a change of position. It just stands slightly at odds with the Minister’s reply. Perhaps he would care to look into that and write to me, placing a copy of the response in the Library, because it looks as though different approaches may be being adopted by two of the three parts of the profession.
Having said that, I certainly concur with the noble Lord that this is essentially a probing amendment and I beg leave to withdraw it.
Amendment 69A withdrawn.
Clause 50 agreed.
Clause 51: Strict liability: limitations and defences in England and Wales
My Lords, I now turn to Clauses 51 and 52 and government Amendment 86. Clause 51 amends the Contempt of Court Act 1981 by introducing a defence available to publishers or distributors. This provides that, where they have published material relevant to proceedings but prior to those proceedings becoming active, they cannot be in contempt unless the Attorney-General has given notice that proceedings are active. If the publisher fails to remove the material, the Attorney-General can commence contempt proceedings. Clause 52 provides a related right to appeal against court injunctions.
These clauses were included in the Bill at introduction to implement recommendations by the Law Commission intended to reform the law of strict liability contempt. The purpose was to remove the burden on publishers to monitor online archives for potentially contemptuous material, while protecting a defendant’s right to a fair trial. However, the Government have received representations from media organisations making it clear that they oppose the measures. The Joint Committee on Human Rights also commented on the issue in its 14th report of this Session. The Government have carefully considered those concerns. We remain of the view that the proposals are balanced and measured but we are satisfied that the existing law will continue to provide satisfactory protection to the integrity of legal proceedings.
Since the measures were intended to assist the media but the media do not want them, we see no purpose in proceeding with the clauses. The then Attorney-General therefore announced in a statement on 30 June, and I also gave notice at Second Reading, that the Government had decided not to pursue the measure and would seek to omit the clauses from the Bill. Amendment 86 is consequential to the omission of Clause 51, since there is no purpose in defining its extent. I urge the Committee to agree that Clauses 51 and 52 should not stand part of the Bill.
My Lords, as the noble Lord the Minister said, the Government have had second thoughts—somewhat belatedly, but nevertheless just in time—about their proposal to create a new defence to the strict liability rule in relation to the offence of contempt of court, where material published on the internet before criminal proceedings commence remains accessible online. The objects of the Government’s policy are clearly laudable but the method involved the Attorney-General issuing notices to publishers identifying prejudicial material. While the notion seems sensible in principle, the JCHR has pointed out concerns that this risks creating what it described as an “arbitrary or disproportionate” exercise of power by the Attorney-General, since the Bill in no way qualified the power by restricting its exercise to where there might be a,
“substantial risk of serious prejudice”,
despite the Government’s indication that this was their intention.
The JCHR also questioned whether the “public interest” defence contained in the Contempt of Court Act 1981 was affected by the Bill as it was drafted. Perhaps the Minister would care to respond to that. I appreciate that it is almost irrelevant but it would be interesting to know whether the Government had taken that point in the original draft. The committee went on to express surprise at the Government’s state of denial that the arrangements had any implications for the freedom of expression and, further, that they did not intend to lay down regulations about the exercise of the Attorney-General’s power. This looked an appealing notion in many ways but it was ill thought through and led to some wholly inadequate drafting of the clauses that the Government have now withdrawn, having clearly had second thoughts about them.
It would be churlish not to welcome this apparent change of heart; after all, for every Minister that repenteth there is much rejoicing—especially when it comes to the Ministry of Justice—if not in heaven then in legal and judicial circles. However, none of this must be taken by the less responsible elements of the media as a licence to produce or permit the continued publication of material that might prejudice a fair trial. We have seen the media—sometimes the print media but also other forms that have such wide circulation nowadays—engage in such publication too often.
It may be necessary to revisit the issue at some point, but in that case I trust that this or any succeeding Government would look carefully at the points raised by the Joint Committee on Human Rights, which certainly merit reflection. If anything were to be done along the lines of, or motivated in the same way as, the Government’s original proposals, obviously it would be sensible to incorporate those concerns and to deal with them in a way that might meet them if it became necessary—although one would hope that it would not—to strengthen the law in this area. Perhaps the second to last thing that anyone would want to do would be to curb the freedom of the press; the last thing that anyone would want to do would be to prejudice the possibility of a fair trial. The media has a role in ensuring that that highly desirable end is met in all circumstances. I do not dissent from the noble Lord’s withdrawal of the two clauses.
Clause 51 disagreed.
Clause 52 disagreed.
Clause 53: Upper age limit for jury service to be 75
69B: Clause 53, page 56, line 35, leave out “but under seventy-six”
My Lords, in moving Amendment 69B, I shall speak also to the other amendments in the group. I am not against allowing older people to serve on juries but I want to understand how the Government have come to the decision that it should be restricted to people under the age of 76. Over the last few decades, the qualifications and prohibitions determining who can serve on a jury have undergone significant changes. Before 1972, jurors were drawn only from those who owned property of a prescribed rateable value, which tended to ensure that all juries were white, male, middle-class affairs.
In 1972, eligibility was extended to anyone on the electoral register. In 1998, the lower age limit was reduced to 18 and the upper age limit was raised to 70. Older people serving on juries could be a very positive thing. It is a fact that we are all living much longer. Allowing older people to participate in the jury room will allow us to benefit from their experience. Will the noble Lord, Lord Faulks, tell the Committee whether he believes that a court will have to make any additional provisions to enable older people to serve on juries or does he believe that the extension to 76 will not need any additional provisions, which is why the Government have set that age limit?
Amendment 69D seeks to amend the Bill by giving the judge a power to limit the use of electronic communication devices for a period of time. Having people surrender their devices, as the Bill proposes, probably goes a little too far. If the average length of a jury trial is a week or two and a juror lost the use of their device for that time, it could cause considerable difficulties. We all know that smartphones are getting more advanced. Banks and companies are already talking about the elimination of plastic cards for credit and debit transactions that can be undertaken by mobile phones. Will the noble Lord tell the House what he believes is covered by the words “electronic communication devices”? Is that a mobile phone, an iPhone or similar device, a tablet or laptop? What devices is he talking about?
I very much agree that jurors have to understand their responsibilities and the important role that they play in the criminal justice system. Many years ago, I was a member of a jury in a serious criminal trial. I ended up being the foreman of the jury. It was not a “Twelve Angry Men” moment but I remain impressed at how the jury conducted itself during the trial and during the deliberations a couple of weeks after the commencement of the trial. That was 25 years ago and none of the devices we take for granted today was around.
The Government, the Courts Service and the judiciary have to do everything possible for the juror clearly to understand their responsibility in what they are undertaking. They must also make clear what they are not allowed to do. If they break the law in these matters, there are serious penalties. If the noble Lord cannot tell the Committee today, perhaps he will write to explain what happens when a juror arrives on the first day at the Crown Court. I hope that an officer of the court will explain in simple and clear terms the duties and responsibilities, and the restrictions—what can or cannot be done. That should follow information that they should have received in writing in advance. If necessary, the judge should reinforce that at the start of the trial.
Amendment 69J in my name and that of my noble friend Lord Beecham seeks to improve the information provided for jurors. It states that, “on the first day”, jurors will be required to,
“sign a declaration to say they will … not undertake their own research … base their verdict only on the evidence presented at court … not seek or disclose information about any case they try”.
That, along with the Courts Service, will make the jurors’ obligations very clear to juries.
We also include a requirement for the Department for Education to require all schools to deliver teaching about the role and importance of jury service. I think we are very well served by the jury system in this country and citizenship education is very important. I am a big supporter of our education system teaching people not only how to read and write and giving them a broad knowledge, but how to understand the practical things in the role that citizens play in our society. The role of a jury is an important part of that.
Amendment 69H makes very clear what I think is the case but does not appear to be very well known: namely, that disclosing information or deliberations in the jury room for the purposes of allowing approved academic research is not an offence. It is important to make that clear and our amendment seeks to do that. Being able to understand what goes on in the jury through academic research provides us with valuable information for the criminal justice system. I beg to move.
My Lords, Clause 53 amends the Juries Act 1974, raising the upper age limit for jury service from 70 to 75 years of age. Raising the age limit to 75 will mean that juries better reflect the current demographic make-up of the adult population and will allow juries to benefit from the experience and knowledge of those aged 70 to 75. The existing age limit for jury service was set by the Criminal Justice Act 1988, which raised the upper age limit from 65 to 70. However, that was more than 25 years ago, and it does not reflect the current healthy life expectancy of older people in England and Wales. On that basis, we believe that it is reasonable to expect people aged up to and including 75 to sit as jurors if summoned.
Amendments 69B and 69C would remove the upper age limit altogether. That would be a very different matter. Over the age of 75, there is an increasing risk that people would be unable to perform jury service and as a consequence would seek to be excused for that reason. We do not believe it would be right to put people in those circumstances to the trouble of having to apply for excusal, or indeed to burden the taxpayer with the additional cost of administering those excusals. Our view is that the appropriate age limit is 75. I will, in due course, ask the noble Lord to withdraw the amendment and will argue that Clause 53 should stand part of the Bill.
As to Amendment 69D, Clause 54 provides a judge with the power to order members of the jury to surrender their electronic communications devices for a period. The noble Lord, Lord Kennedy, asked me to define that. I respectfully refer him to Clause 55(2)(5), where it says that,
“‘electronic communications device’ means a device that is designed or adapted for a use which consists of or includes the sending or receiving of signals that are transmitted by means of an electronic communications network (as defined in section 32 of the Communications Act 2003)”.
I hope that clears things up for the noble Lord.
The Government do not believe that the term “limit the use of” is sufficiently clear. It would allow jurors to retain their devices in the jury room even when a judge thought it necessary in the interests of justice that the devices should not be available to the jury during their deliberations. The Law Commission recommended that devices should be surrendered and we believe that this is right. The provision provides judges with the discretion when making an order to take account of circumstances. They can only do so when the order is necessary or expedient in the interests of justice, and proportionate to that aim. With those assurances, I ask the noble Lord not to press that amendment. Usually, jurors will be able to use their devices and they may be required by the judge or the coroner in some circumstances when they are deliberating to surrender their electronic communication device, but it is not a blanket ban on the use of devices at other times or a blanket ban for the duration of the jury service.
Clause 55 also provides powers for a judge to order court security officers to conduct a search of a member of the jury so as to determine whether the juror has failed to surrender a device in accordance with an order made under Clause 54. We have aimed to ensure that the power to search is not an overly intrusive one, and goes no further than is necessary to ensure that a judge’s order, made in the interests of justice, is complied with.
Clause 55 also provides powers for security officers to retain articles surrendered or seized. If it is not possible to enforce the judge’s order, there will be a much greater risk that devices would be retained and potentially used during deliberations, thus bringing a risk of an offence being committed. It would also be harder to bring a successful prosecution and thus would reduce the effectiveness of the measures we are taking to deal with juror misconduct. I therefore argue that the clause should stand part of the Bill.
Amendments 69E and 69F would remove the requirement that proceedings for the new offences of researching a case and sharing that research with other jurors should be brought only by or with the consent of the Attorney-General. These offences concern damage to the administration of justice and public confidence in it. The Attorney-General is well established as the guardian of the public interest in the administration of justice. This is evident in, for example, his responsibility for bringing or consenting to proceedings in the case of contempt.
We believe that the Attorney-General should continue to maintain oversight of the public interest where such juror misconduct arises. Proceedings are very rare and we believe that the close involvement of the Attorney-General in cases of juror contempt should continue when such misconduct is prosecuted as an offence. I fear that I cannot support this amendment and urge the noble Lord not to press it.
Amendment 69G would change the scope of the offence in Clause 58, which inserts a new Section 20C into the Juries Act 1974. The proposed offence stems from a case before the Divisional Court in 2013 where a juror had posted on Facebook the fact that he was trying a defendant charged with a sexual offence on a child, and suggested an intention on the juror’s part not to try the case fairly. We want to ensure that proper criminal sanctions and procedures apply where a juror engages in behaviour that can give rise to a suggestion that they will not try the case fairly. Such behaviour brings the jury system into disrepute, leads to the perception of unfair trials and potentially causes trials to collapse.
We committed to and have given very careful consideration to the amendment proposed. The effect of the amendment would be to change the offence from an objective test to one that was more subjective. It would therefore be difficult to prosecute and prove and there is a risk that it would need to be proved that the juror did have that intention. Our view is that it should be a criminal offence where a juror intentionally posts material on the internet and that material allows someone reasonably to conclude that the juror is, for example, biased for or against the defendant. This conduct could throw doubt on the fairness of the trial and lead to it being stopped or result in an appeal. There is also an additional precaution in the use of the offence that any prosecution requires the consent of the Attorney-General. I therefore cannot agree to this amendment and ask the noble Lord not to press it.
Amendment 69H would add an exception to the offence in new Section 20D to provide that it is not an offence to disclose information for the purpose of allowing approved academic research into jury deliberations—the matter specifically referred to by the noble Lord, Lord Kennedy. We believe that it is of the utmost importance that the confidentiality of jury deliberations is protected and that disclosure is permitted only where absolutely necessary. If the amendment were made, it would mean that approved academic research into substantive jury deliberations would be allowed.
The Law Commission recommended that research should be allowed into the substantive content of jury deliberations. It suggested that this type of research could be used to inform and undertake reform to improve the jury system, while enhancing public understanding of trial by jury. However, as noted by noble Lords at Second Reading, research into juries currently does take place. Academics are currently able to undertake meaningful and important research without infringing Section 8. Indeed, during the Bill’s public evidence session, Professor Cheryl Thomas, the leading academic regarding jurors and jury trials, commented that she had,
“never been hampered by section 8 of the Contempt of Court Act 1981”.
Personally, I have sympathy with the amendment, in the sense that a fundamental system of trying the most serious criminal offences should not be beyond examination by academic research. Any restrictions need justification. However, the Government will be responding shortly to the Law Commission’s recommendations on this matter. I therefore cannot agree to this amendment and ask the noble Lord not to press it.
As to Amendment 69J, the objective of the new clause is to ensure that jurors understand their responsibilities. That is something on which all noble Lords can agree and much is already done to that end. A video about the role of the juror, which is shown to all jurors, makes clear that only evidence adduced in court should be considered. It explains that jurors should not carry out research into the case or disclose information about it and that doing so could amount to contempt of court. The Criminal Practice Directions require trial judges to give similar instructions to jury members.
I am grateful to my noble friend for giving way. I should declare the interest of having appeared for the juror in the case to which my noble friend referred a few moments ago. I make no comment on the case or the result, but the jury video and the instructions given to jurors were not perhaps quite as good as they might have been, particularly for a young juror under the age of 21 who used his social media almost as a part of his body. Can we be reassured that when these new provisions are brought into force a new jury video will be made available immediately, as well as revised instructions, so that jurors young and old, including those between the ages of 70 and 75 who also enthusiastically use their social media, really understand what they are not permitted to do? It can be very confusing.
I am grateful to my noble friend for that intervention. Clearly this matter should be taken very seriously. I do not think that these directions are frozen in time or form, and the debate as to precisely how best to communicate what there is agreement on over the use of electronic communications will go on. I entirely take my noble friend’s point about the degree of attachment to them that exists, depending on the individual and not necessarily depending on their age.
The new clause proposed would impose statutory obligations on the Department for Education, the Judicial College and HM Courts and Tribunals Service, and on jurors themselves, in connection with jury service. These obligations cover the same ground as some recommendations from the Law Commission, which we are still considering and to which we will respond shortly. The crucial point, however, is that if it were decided to implement them, or to make any further suggestions about improving directions to jurors or about jury management issues as opposed to trials of particular cases, legislation would not be required. It could be done administratively, and in our view that would be a better course than accepting the suggested amendment. I invite the noble Lord to withdraw it.
May I say a word about the proposed age limit of 75 for serving on a jury? I had better declare my interest straight away because I was born in 1926. It seems that anybody older than 75 is being written off as no longer fit to take part in an important public duty. Bearing in mind that lately we have had people of 84 and 85 being tried in court, we should call upon those over 75—perhaps, say, up to 100—provided that they are able to carry out the duty. It may be insulting to people of mature age who are still very intelligent and keep up with affairs, particularly public affairs, to debar them from what other people are asked to do to help the public weal and their fellow citizens.
I am grateful for the contribution of the noble Lord, Lord Stoddart, to the issue, which I entirely accept is delicate. There can be no doubt that he would discharge the role of juror in an exemplary fashion and to the great benefit of all those who were tried—either in a way that they would want or not.
The respondents to the consultation about the upper age limit were almost equally divided as to whether there should be one, and I do not pretend that it is an easy issue, but the Government’s view was that, notwithstanding the health and vigour of many over the age of 75, an increasing number of people would find it difficult or almost impossible to sit as jurors and would therefore seek to be excused jury service. They might not want to have to go through the process of seeking to be excused jury service. Rather than putting them through the process of applying for excusal, and spending taxpayers’ money dealing with that additional administrative burden, the age limit is set at 75. I do not pretend that there is any precise science behind that, but it reflects a balance of different arguments.
From the point of view of the magistracy, where there is currently retirement at 70, it is the view of the Magistrates’ Association that that is about right and that it should not be increased to 75. The reason for that view is that many defendants who come before the Bench are much younger. Obviously that is true in the youth court, but it is true in the adult court as well. The issue is regularly debated at the Magistrates’ Association, and the view of the association is that 70 should stay as the age of retirement for magistrates.
I am grateful for that intervention. The noble Lord, Lord Ponsonby, makes a good point in the sense that a defendant might feel more confident if there was not such a wide age disparity between him and someone aged, say, over 75. The noble Lord reminds me that the upper age for judges is 70, so it is not unreasonable to restrict jurors to the age of 75.
I think that it is fair to say that the ultimate upper limit for judges is 75; that of course accounts for a good number of our noble and learned friends who are here today. The difficulty of fixing that limit was just the same as for jurors. The general view among the judiciary at the time, and I hope that it remains its view, was that 75 was a reasonable compromise because people—not everybody—over 75 become increasingly less able to perform the judicial function, which the jury function is, as the years progress. Therefore, you have to get some sort of balance, and 75 seems as good as any.
My Lords, the noble Lord, Lord Stoddart, makes an important point about the age of jurors. Of course, many noble Lords are over the age of 75 and make an important contribution to our deliberations. The noble Lord is absolutely right: many people over that age are able to make a contribution to the courts on jury service.
I thank the noble Lord for making the point about communication devices in the Bill. I wanted to be clear about the importance and use of these devices. They are used more and more and I wanted to be clear if they were to be taken away or if it was just a matter of a stern instruction from the trial judge. My noble friend Lord Ponsonby talked about magistrates retiring at 70. I hear the point he makes but if we are to get rid of jurors and others at 75, perhaps the time has come to consider whether the age for magistrates should be 75 as well. With that, I beg leave to withdraw the amendment.
Amendment 69B withdrawn.
Amendment 69C not moved.
Clause 53 agreed.
Clause 54: Jurors and electronic communications devices
Amendment 69D not moved.
Clause 54 agreed.
Clause 55 agreed.
Clause 56: Research by jurors
Amendment 69E not moved.
Clause 56 agreed.
Clause 57: Sharing research with other jurors
Amendment 69F not moved.
Clause 57 agreed.
Clause 58: Jurors engaging in other prohibited conduct
Amendment 69G not moved.
Clause 58 agreed.
Clause 59: Disclosing jury’s deliberations
Amendment 69H not moved.
Clause 59 agreed.
Clause 60 agreed.
Schedule 9 agreed.
Clause 61 agreed.
Schedule 10 agreed.
Clause 62 agreed.
Amendment 69J not moved.
Clause 63 agreed.
Amendments 69K and 69L not moved.
Clause 64: Likelihood of substantially different outcome for applicant
70: Clause 64, page 64, line 35, leave out “must” and insert “may”
My Lords, there would have been a time when the noble Lord, Lord Pannick, could have been here, but I think he is in the Supreme Court at the moment. In those circumstances, I hope that your Lordships will not mind my leading when I was looking forward to being junior counsel with regard to the submissions that the noble Lord, Lord Pannick, was due to make. I hope that my presence does not mean that I get it all wrong in this different capacity in which I now find myself.
I am reminded of a time many moons ago when I had to be at the same time in the Court of Appeal before Lord Denning and before Lord Widgery in the Divisional Court, in what are now called the Senior Courts. Having investigated the matter very fully, I came to the conclusion that the appropriate thing to do was to go before Lord Widgery and leave my pupil watching the situation in the Court of Appeal. As fate would have it, as normally happens in these situations, the matter came on in quite the opposite way from that expected and the pupil had to rise to his feet in the same way as I do now. Unfortunately, he did not appreciate which side he should be on and he made submissions to great effect before Lord Denning, which were diametrically opposite to what I was meant to be advancing on behalf of the Crown. Lord Denning was not at all put out by this. What he did was to say, “Those were very clear submissions, Mr So-and-so, but perhaps what you really meant to say was X, Y and Z”, and in that way justice was done.
In my submissions now, I am very much concerned with the way that justice should be done to those who want to rely upon judicial review. What I have to say to the Committee with regard to Part 4 applies to the various provisions in it, all of which in some way operate on judicial review. Judicial review has been an area where what has happened with regard to procedure and practice has been a matter for which the judiciary has been responsible. It has tried to balance—successfully, I suggest—three different interests: those of the citizen, those of the Executive and those of the judiciary. The ability to perform the difficult task of operating as a judge in public law is quite different from the position of a judge who is hearing a private law case. In public law, the judge always has to remember that, while the interests of the individual citizen making the application for judicial review are of the greatest importance, so are the interests of the public body which, in the case of the Government, has responsibility for governing the country.
Judicial review has therefore been tailored to have special protections for the Executive. In particular, there is the unusual requirement of permission to bring proceedings. Once proceedings are given permission to be brought, the whole process is heavily laden with discretions in the court. In this area, I make the general remark that it is not a very good idea for the legislature to intervene because it may not appreciate the full significance of the position with which it wants to interfere.
Clause 64 puts an obligation on the courts to take action if they come to the conclusion that it is highly likely that the outcome of the application,
“would not have been substantially different if the conduct complained of had not occurred”.
In many situations, the courts already regard that as an important matter to take into account and, in their discretion, will refuse relief—indeed, they will refuse permission to make the application—if they are of the view that the application is misconceived and it is not appropriate that it should go forward, even though there may be some technical reasons why it could be successful. Clause 64 has the effect of changing what is the court’s discretion to take that action into action which it must take. That is very different, because it would need to decide whether someone who has a remedy—that is the premise of Clause 64—should be turned away from the court even without having his case heard, as the refusal applies to the process of granting permission to apply for judicial review as well as judicial review itself. This would be very unfortunate. In particular, I do not think, with the greatest respect to the draftsman of Clause 64, that he had in mind the increasingly important jurisdiction of the High Court, on application for judicial review, to grant declarations.
In the case of a declaration, what the court does is to clarify the legal position. It may well be possible to have a case—I shall refer in a moment to one in which I was an advocate—where what is at stake is a matter of only a few pounds, but where the citizens in general will all be affected by a few pounds. We do not want, in that situation, to have more than one application; otherwise it is simply duplicating the work of the court. A single application will be made and the court will come to a decision. If the decision is in favour of the applicant, he may recover the few pounds to which I referred. The provision in Clause 64 would, it seems to me, make that impossible. It is clear from the Explanatory Note that the Government have in mind declaratory relief in this context. This illustrates why the proposal is most unfortunate. The position is one where the courts need to have flexibility, so as to do justice to the different parties, as I have indicated. The clause, unless the Minister makes it clear that I am wrong on this, will prevent that.
The case I had in mind to illustrate this was the case of Congreve v the Home Office, which involved television licences. Mr Congreve knew that the BBC was going to put up the licence fee, so instead of waiting until his licence expired, he decided to apply for a licence early so as to pay the lower fee. He was successful, contrary to my efforts. Lord Denning explained that this was a position in which there was a clear breach of the law by the BBC and Mr Congreve should have his remedy. The BBC was influenced by the fact that it did not want Mr Congreve to give a lead to all the other citizens who would jump on the bandwagon and make applications in the same way, which would deprive the BBC of a substantial sum of money, but he did it himself and he is to be admired for doing so. The case is an example of how the rule of law is upheld by the courts even though the amount may, at first sight, seem trivial.
This is quite a common occurrence in planning cases, where applicants are bringing a case not only on their own behalf but on the behalf of many persons indeed. There is nothing exceptional about it. The Government should look again at their proposals for Clause 64 and, in particular, should not persist with seeking to insert that provision into the Act.
This is just an illustration of the faults that are exactly the same in the other provisions. The Government have taken on a task that they should not be performing. It was well understood in the courts that matters of practice and procedure are normally best left to the rule committee to handle. It would not make the sort of mistake that I have indicated. Especially when one is dealing with the remedy of judicial review, it is very important that one avoids tying the hands and discretion of the court so that it cannot come to the right answer in the case.
Other provisions are linked to Clause 64 and can be dealt with in the same way with regard to this group. One is the provision of information about financial resources. This is a very unusual provision in Clause 65. It requires information to be given by an applicant on an application for judicial review about his resources for bringing the proceedings. I do not understand why this was thought to be an appropriate matter to be dealt with in statute. If a judge hearing an application feels it is important to find out the financial resources of an applicant, he has plenty of powers to do that. There is no need for a statute. Why burden the application for judicial review in every case, as I understand it, with an applicant having to give information about his resources, even though it is not a matter which will arise in the particular case? There is no need for a statutory provision of some complexity to be placed on the statute book to deal with it.
The same situation arises with regard to Clause 67. Intervention by third parties—
I am most grateful to the noble and learned Lord for giving way. I just want to clarify one thing for the benefit of the Committee. The noble and learned Lord is speaking of a number of different clauses. It may be that he is seeking to illustrate a theme and an overall point that is relevant to this group, but he will, of course, understand that his two most recent references are not in the group we are currently debating.
I am grateful to the Minister for drawing the attention of the Committee to that point. I am well aware that that is the situation. The Minister was entirely right. I am saying that each of these provisions is not only wrong in its application but the collective effect should be considered. The provisions need to be considered together because, if I am right in what I am saying, there has been wholesale interference in one provision after another in the discretion of the court in an area of the greatest importance to the ordinary citizen and to the rule of law in this country. Perhaps the Minister will allow me to come back, if need be, but I do feel that it is possible to deal with this only holistically, and that is what I hope I have been doing.
The position is the same with regard to the capping of costs. That is an area where, in judicial review, there have been fairly recent developments, and those have been properly catered for by the courts, and they do not need these provisions. I submit that the whole of this part is a misuse of the powers of the Government in this sense. It is not that Parliament cannot intervene; of course Parliament can intervene and can pass legislation, but this is one of those areas where one would expect the Executive to be very sensitive to interfering with the discretion of the judiciary, and where, as far as I know, nobody is complaining about how it is exercised, in situations where the Government will always have the ability to appeal if they are not satisfied with the decision.
I hope that the Committee will look very critically at these provisions. They may not seem to be matters of very great substance, but there is a point of important principle here which has to be established and maintained.
My Lords, I wish to make three short points in support of the noble and learned Lord, Lord Woolf. I do not know how long this debate is going to continue. We heard that the noble Lord, Lord Pannick, is unable to be here at the moment. I hope I will be excused for being absent for about half an hour from 5 pm.
The three points I wish to make are these. First, it seems that there is a belief that it is very easy to obtain permission to move for judicial review. For those of your Lordships who are not lawyers—and happily there are many here—I want to lay that belief to rest. Like myself and, in a much more distinguished way, other noble and learned Lords, anybody who has faced the challenge of a list of cases requesting permission for judicial review will know that a vast percentage of those applications are refused at the paper application stage.
I shall give your Lordships what might be a useful insight. The typical High Court judge or deputy High Court judge—and it is in that latter capacity that I have sat and continue to sit—is faced on any given day with about a dozen paper and oral applications for judicial review. My estimate, based on my own experience and on talking to others—there may be more formal statistics—is that at most one or two of those applications move on to the next stage, and the other 10 or 11 are refused. Nobody should, therefore, get the idea that it is very easy to challenge the Government or public bodies by way of judicial review.
The second point is about the phrase “highly likely”, which appears in Clause 64. I think the use of this phrase confuses especially the lawyers on the standard of proof which is required in judicial review applications. Does “highly likely” mean “more probable than not” or less than “beyond reasonable doubt” or what? Why do we need to add this almost tautologous standard of proof to a well honed system in which judges—who are, believe it or not, trained in these matters, and many of whom have great experience—know exactly what to do without an artifice being added for reasons which are not clear?
The third point which is of real concern to me is that the test in new subsection (2A) that Clause 64(1) seeks to insert in Section 31 of the Senior Courts Act 1981, which refers to the outcome not being,
“substantially different if the conduct complained of had not occurred”,
is a licence for vestigial consultation. Many cases that come before the High Court on applications for judicial review are cases in which the Government and other public authorities that are devolved parts of government have failed to carry out proper consultation with the public. Sometimes the failure to carry out consultation is a very serious matter indeed, because it is a denial of the right of the public not only to be told that they are being consulted, but to express their views in that consultation and to have them considered in a full and proper way.
There have been many cases in which judicial review has been granted because of the failure of consultation, and in many of those cases the outcome is eventually exactly the same as that which the Government would have wished before the failure of consultation. Therefore it may be thought by the judge highly likely that the outcome would not have been substantially different if the conduct complained of had not occurred. Sometimes that failure of consultation is—or borders on—the contumelious by the public authority concerned. I suggest that we should not license that kind of failure by governmental authorities which would thereby deprive the public of the right to have proper consultation. I hope that those three points are useful to your Lordships. I do not want to add anything else, because the noble and learned Lord, Lord Woolf, has given a very full exegesis of the concerns.
My Lords, first, I apologise that I have not spoken on the Bill before, but I wanted to intervene on Part 4. At Second Reading, the noble Baroness, Lady Hamwee, observed that Part 4 raises “citizens’ issues”. I hope that noble Lords will agree that it is therefore important that non-lawyers—who were referred to by the noble Lord, Lord Carlile—add their voice in support of the highly expert advice from the great legal minds in your Lordships’ House. Not only are those citizens’ issues, but they affect in particular poor and marginalised citizens, including, in the words of the Bar Council,
“some of the weakest and most vulnerable in society”.
Here I declare an interest as an honorary president of the Child Poverty Action Group, and a former director and legal research officer—believe it or not, although I am not a lawyer—of that group back in the 1970s, when the group spear-headed what came to be known as the social security law test case strategy, under the late Sir Henry Hodge, or the plain Henry Hodge as he was then, as CPAG’s solicitor. According to an evaluation of that strategy, Henry Hodge saw it as having an,
“independent value in obtaining substantive improvements in the law and in producing a higher standard of behaviour from administrators”.
Those are still two important functions of judicial review that are now under threat.
I fear that CPAG may be one of the organisations that the Government had in their sights, given that Mr Iain Duncan Smith accused it of “ridiculous and irresponsible behaviour” and “an ill-judged PR stunt” when the High Court dismissed a challenge to the housing benefit cap, for which it had been granted a cost protection order and permission on the basis that the case was arguable and raised issues of public importance. In contrast, Sir Stephen Sedley, in oral evidence to the Joint Committee on Human Rights, of which I am a member—I have a feeling that the Minister was himself a highly valued member at that point—said that,
“not all public interest litigation is hostile; it can be creatively used, and has been in the past. The Child Poverty Action Group was a pioneer in this respect, to elucidate the law to the benefit of everybody who is involved. Social security is a very good example, because it is an arcane and hideously complex area of law, where it is easy to get things wrong and a mistake can affect millions of people. It is very much to the advantage of everybody if the Government collaborates with challengers like the CPAG in getting the issue to the core”.
I speak today not so much as an honorary president of CPAG but as a member of the Joint Committee on Human Rights, which recommended that this clause be deleted from the Bill. I therefore support the contention that it should not stand part of the Bill, as well as supporting those amendments that would revert to the status quo. I will not rehearse at any length the arguments of the JCHR, some of which were quoted on Second Reading; there are arguments of both principle and practice, including that we should not be condoning unlawful decision-making, and the danger that it would mean that the permission stage became a full dress rehearsal and therefore could be more rather than less costly. However I would like to emphasise what is perhaps a key human rights point, when we said that it may give rise to breaches of the right of access to court in ECHR Article 6(1),
“a right which, in order to be practical and effective rather than theoretical and illusory, includes the right of access to a legally enforceable remedy”.
On this argument alone I believe that the clause should not stand part of the Bill. But as we have heard today, and earlier at Second Reading, there are also other persuasive arguments.
My Lords, I support all the detailed amendments in this group but, more fundamentally, I support the root and branch opposition raised by all those who have put their names to Clauses 64 to 67 not standing part of the Bill. It is with regard to that basic question that I want to say a few words today. Whether the thinking which underlies these provisions is, as some would suggest, positively and consciously mischievous, or merely misconceived and mistaken, I do not know. However, it would be a grave misjudgment if we were to allow them to pass into law. If they are persisted in, I hope that on Report this House will reject them.
What the Government are proposing here is a heresy. With regard to Clause 64, it is a double heresy. Without repeating all that I said at Second Reading, I will try to explain what I mean. The basic heresy here is to treat judicial review—which of course is the title of the whole of this part of the Bill—as a matter generally suitable for legislation at all. Essentially, I suggest that it is not. I seriously wonder if those who are behind these proposals understand the intrinsic nature of this supervisory jurisdiction. Judicial review is no more and no less than the exercise of the courts’ inherent jurisdiction to ensure that the decision-making of the Government, their executive action, remains within the bounds of legal propriety. As the noble and learned Lord, Lord Woolf, explained today, it is judge-made law par excellence; it has been and should remain, essentially, a matter for development and control by the judges themselves. If ever there was an area of the law that for the most part should remain free from legislative interference, it is this. It is difficult, perhaps impossible, to think of any field of law less suitable for legislation, for government diktat as to its future development. Most obviously this is so with regard to provisions which, as here, are designed to essentially cramp and narrow down judges’ powers and discretions. In this field of inherent control of administrative action, it is intended to discourage those who seek to question the legality of governmental decision-making.
In truth, these provisions would make serious inroads into the separation of powers; they would represent a significant shift in the constitutional balance between the judiciary and the Executive. That is the basic heresy that underlies the entirety of Part 4—the supposition that Parliament rather than the judges should decide how the court’s supervisory jurisdiction should be exercised, and its development and control, which are essentially matters of procedure.
The other separate heresy lies in Clause 64 itself, and the proposition in this provision that, even supposing that a public body has behaved unlawfully—perhaps flagrantly unlawfully—in reaching a particular decision, the court must nevertheless ask itself whether it is “highly likely” that the outcome would in any event have been substantially similar. If so, it dictates that the court must, without more ado, dismiss the challenge—with no relief or declaration. It is a slippery clause, as the noble Lord, Lord Carlile, has explained. As others have explained, the court on judicial review is simply not concerned with the substantive merits or demerits of the decision, only with the question whether the impugned decision was lawfully arrived at. The merits of a decision which is under challenge in judicial review are not for the court but for the public authority alone.
As compelling an illustration of that principle as one could look for can be found in an amendment the Bill to the single, brief legislative provision that hitherto has provided the sole statutory context for the modern law of judicial review: Section 31 of the Senior Courts Act 1981, which used to be called the Supreme Court Act until the Supreme Court came into being in 2009. The 1981 Act is, of course, mentioned in these draft clauses as the Act that they are intended to alter by so severely confining the court’s future power and discretion.
The amendment of which I speak was the introduction of a new subsection (5A) into Section 31 of the 1981 Act. Unamended, Section 31(5) allowed the High Court, in quashing a decision, also to,
“substitute its own decision for the decision in question”.
The amending provision was introduced to limit that power so that it can now be exercised only if,
“without the error, there would have been only one decision which the court or tribunal could have reached”.
There is nothing there about the judicial review court being able to impose its own decision just because it thinks that it is highly likely that its own view of the matter is to be preferred.
I suggest that those are the basic misunderstandings and misconceptions that underlie this whole attempt by legislation to cramp and stifle the court’s future powers. I made more detailed objections to Clause 64 at Second Reading. I shall not repeat them now, and I shall not deal with the other clauses not part of this group, which are similarly subject to the same basic objection that they would introduce heretical inhibitions into this area of the law, which has been a healthy development in our jurisprudence in the last 40 or 50 years.
My Lords, I hope your Lordships will forgive me if, like other noble Lords, I preface what I say about the amendments in this group with a few general remarks about the proposals in the Bill for the reform of judicial review. In his Second Reading speech, the Minister described judicial review as,
“one of the most important means by which government and other public bodies can be held legally accountable for their decisions and actions”.—[Official Report, 30/6/14; cols. 1541.]
As Frances Gibb, the legal editor of the Times, reported in today’s edition, he stressed that the Government regarded judicial review as,
“terribly important and we are not trying to get rid of it”.
If that is right, we should have little difficulty, as a result of these debates, in persuading the Government to accept amendments to the proposals and to the Bill to ensure that judicial review is not threatened, as I and many other noble Lords believe that currently it is.
I suggest that the Government ought to respect the following six principles. First, judicial review exists for the purpose of enabling the citizen to hold the Executive to account. Secondly, of its nature, judicial review is a public law remedy. It follows that there is often, although not always, a significant public interest in ensuring that a judicial review case is heard and determined over and above the private interests of the citizen or citizens who bring the application.
Thirdly, judicial review cases, of their nature, attract support from numbers of concerned citizens and organisations—sometimes campaigning organisations—with an entirely legitimate interest in the issues involved. Fourthly—perhaps this is not a principle but part of the factual background—judicial review inevitably is often unpopular with government. It is therefore important that Parliament and the courts should be astute to ensure that it is not stifled by unduly restrictive procedures or rules. The noble and learned Lord, Lord Woolf, used the word “sensitive”; I suggest that is an entirely apt description of the requirement.
Fifthly, because financial gain is often not the primary purpose of judicial review cases, it is important that they can be brought without undue expense and without unacceptable financial risk for those who bring them, often out of public concern.
I believe that the sixth principle can be expressed very simply. It is this: trust the judges. Because, constitutionally, judicial review exists for the courts to hold the Executive to account, the best way of ensuring the robustness of that review procedure, and of gaining and maintaining public confidence in the procedure, is for the judges and not the Executive to be trusted to administer it.
I turn to Clause 64, which, as your Lordships have heard, seeks to ensure that any judicial review proceedings that can be classed as academic must fail. The test the clause seeks to apply is whether an unlawful decision by an arm of the Executive has, in fact, led to a “substantially different” outcome for the applicant from that which a lawfully reached decision would have produced. If it is “highly likely”—I repeat the criticism of that phrase—that the unlawful conduct has not made such a difference, the Bill proposes that leave to apply for judicial review must not be given. If leave is given and it turns out that the case is academic in the sense I mentioned, relief must be refused.
I accept that there may be purely academic cases that should not proceed to a hearing, even where it can be established that no part of the Executive has acted unlawfully—but, as the noble and learned Lord, Lord Woolf, pointed out, the courts already have a discretion to refuse permission or relief in such a case. However, I know of no convincing evidence that in practice a significant number of cases is, or has been, brought in which it can fairly be said that the unlawful decision-making at issue must have made no difference to the outcome for the applicant.
However, the real issue here is whether the fact that a case turns out to be academic in that sense should inevitably lead to its being dismissed. I suggest that there will often be a public interest in having the conduct of the decision-maker examined and, if necessary, overruled if the decision made turns out to have been unlawfully made—even where it may be said to have made no difference.
My noble friend Lord Carlile mentioned the question of a lack of consultation where the repeat exercise, when consultation is properly carried out, may lead to the same result. However, to condemn the lack of consultation and to refuse relief in spite of it is, I suggest, entirely wrong. There is also the question of cases where points of law need clarification or where points of procedure or fact need establishing, and need establishing in the public interest, even where a decision might have made no difference.
Therefore, the amendments in my name and that of my noble friend Lord Carlile seek to make the refusal of relief in a case that turns out to be academic discretionary rather than mandatory and to add an extra condition for the refusal of relief. Relief, we submit, should be refused only if an application is both academic in the sense proposed in the Bill and such that the public interest or the overriding objective of dealing with a case justly does not require that it be determined. Our amendments would apply those tests both at the permission stage and at the relief stage in the High Court and in the Upper Tribunal.
I am not among those who hold the view that Parliament should never legislate on the subject of judicial review. It is the right of Parliament in our democracy to do so, and in that I differ slightly perhaps from the arguments put forward by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. However, I suggest, along with him, that we should be extremely careful before restricting by legislation the right of the courts to intervene in unlawful decision-making by organs of government where the court considers it appropriate to do so.
I can add only that the way in which judicial review has developed over the past few decades has demonstrated the very considerable respect for the breadth of discretion by executive decision-makers. It would be appropriate for the Government now to show similar respect for the need for discretion to be exercised by the judges.
I do not think that anyone on this side has spoken yet.
Everyone who has spoken so far has been a lawyer, with the exception of the noble Baroness, Lady Lister. I am not a lawyer; I am an economist, but perhaps I introduce a rather separate vein of thinking into this debate, which is extremely interesting and very important for the conduct of government.
The issue that concerns me as an economist and as a previous government Minister is delay. Almost all judicial review cases involve considerable delay. Indeed, the noble Baroness, Lady Lister, rightly and very fairly mentioned the report of the Joint Committee on Human Rights which went into the whole business of judicial review. In that case, the Government’s response indicated several instances where there had been great delay as a consequence of judicial review cases. I will not go through a long list, as that would weary the Committee, but I shall give some examples. A development of 360 homes in Carmarthenshire was delayed by 18 months. A development in east London which would have created 500 jobs was delayed by 15 months. The expansion of Bristol Airport was delayed. Very often, in the judicial review in question, the case was found to have no merit whatever, but there was still delay.
We all know that this country is decades behind on infrastructure, railways, roads, airports and, above all, housing. We need to catch up fast on those issues if we are not to have terrible consequences for the welfare and success of our country. As I understand it, the Government are linking this provision on judicial review to the Infrastructure Bill, which the House is also considering. It is a concerted approach to get infrastructure and housing projects moving through a Bill that is directly concerned with them and also through a part of this Bill, which is concerned with striking a different balance between human rights and reasonable concern and getting expeditious results for the Government. Governments are usually criticised for thinking in silos and not having a concerted approach, with a Government doing something that is not thought out and has implications for the rest of government. It is therefore rather odd that the Government should be criticised for having a concerted approach. It is also odd, to an outsider who is not a lawyer, for the Government to be criticised for doing something in this provision that would mean there was no difference in the result of the case, as the case would not be considered if there was no likely difference in the result.
We are dealing here, from a non-legal point of view, with something that does not make sense to an ordinary person; it cannot be made out. From my experience—I draw from my political, non-legal experience—judicial review has reached a stage in its sheer pervasiveness that local authorities now consider whether to go ahead with a particular case or decision and must include in their budget and decision-making the possibility of a judicial review. So pervasive has judicial review become that it is part of the local authority stock-in-trade. Yet, this is a moment when all three major political parties are saying that local authorities must do more if we are to improve the welfare of our people. We want them to be more radical, more entrepreneurial and less cautious. On the other hand, they now have a culture of caution. In my view, one thing that has caused that is the whole business of judicial review and the way in which it has expanded over the past 10 to 15 years.
That is true not only of local government; from my experience as a former Minister of Health, it is also true of the National Health Service. Professor Willett, the director for acute episodes of care in the NHS, recently said that lives are still being lost because of resistance to change in the NHS. In my personal experience, judicial review is often used to thwart admittedly controversial NHS developments, and I have examples in the area that I represented when I was a Member of Parliament. No responsible Government can ignore the quantum of issues arising from judicial review. I therefore agree with the noble Lord, Lord Marks, and disagree with the noble and learned Lord, Lord Brown, that a Government simply must take this into account to run the country properly and meet the aspirations of the people.
We must also consider the wider context. Liberal Democrats will be aware of a very good book, Race Plan, brought out by one of their colleagues in the House of Commons. He is a former Minister in the Foreign Office and he talks about the threat from China. China has a societal arrangement that is wholly different from ours, and its idea of human rights and democracy is totally at odds with ours. Yet, because of that lack of interest in human rights and in democracy, it is able to make decisions far more quickly than we can. If we do not make decisions quicker than we have been doing, we face the prospect of being left behind by countries such as China and so forth.
Even the publication by the Joint Committee on Human Rights on this subject—which I have read, as I have the Government’s response—fairly made the point that the costs and delay resulting from judicial reviews are a perennial problem. As any gardener will know, perennial bushes and plants grow every year: they have to be pruned back or they will overwhelm their neighbours and damage themselves. On this matter, the Government are trying to strike a balance between the natural growth in judicial reviews which has occurred, and which many rightly welcome, and society’s need to ensure that we make progress in areas such as housing, railways and roads, where we have important decisions to make.
I agree with many of the lawyers who have spoken in this debate about the practicalities of how Clause 64 should be considered. Obviously, one should listen to the lengthy experience of lawyers who consider these matters daily. The noble and learned Lord, Lord Woolf, made the point that many of these issues have become common practice in the law courts, a place where I would not venture. None the less, the Government have clearly indicated that they are willing to be flexible on some of these strictly practical matters.
Overall, on the level of principle—and everyone who has spoken in the debate so far has tried to reach the level of principle—surely the Government are trying to strike a slightly different balance between considerations of human rights and the rights of the citizen and the need to have competent and effective government, which is in the interests and the welfare of the people of this country.
The Minister pursued this argument at Second Reading with considerable skill, courage and, perhaps I may say, stamina. All fair-minded and objective people who are concerned about the bigger picture and not just about the legal situation will see that there is a lot of sense in what he is saying.
My Lords, I support all the amendments in this group, particularly Amendments 70, 71, 72 and 73 in the names of my noble friend Lord Pannick and my noble and learned friend Lord Woolf, and I oppose the question that Clause 64 stand part of the Bill. Like the noble Baroness, Lady Lister, I also need to lend my voice to this area of reform from the perspective of the ordinary person. I look at this through the prism of those with little power, little control and very little knowledge.
Clause 64 strikes a blow at the heart of democracy, viewed with the other provisions of Part 4 and the Government’s legal aid reforms. We all agree that British citizens, whether rich or poor, able or disabled, have a democratic right to access the justice system. As I said at Second Reading, holding public bodies to account when they get it just plain wrong is a vital part of the rule of law, and I believe that it leads to better services. I cannot understand why the Government would want to restrict it; surely it is something that we would all welcome.
The clause moves the goal posts when people seek judicial review. It lowers the test and forces judges to refuse it where currently they have discretion. In future, the courts must refuse if the outcome is “highly likely” to have been no different—a significant change from “inevitable”. This is highly likely to mean that unlawful and, I have to say, even dishonest decisions will go unchecked and public bodies will get off scot free. For some very vulnerable people in our communities, this is really serious. It flies in the face of what the Minister said at Second Reading: that Part 4 will ensure that judicial review,
“continues as a check on the Executive”.—[Official Report, 30/6/14; col. 1542.]
Well, this is a very strange check. More importantly, it could give rise to a breach of Article 6(1) of the European Convention on Human Rights in fettering access to the courts. It is also particularly relevant to the public sector equality duty, which requires that due process is followed. The Government may think that that does not matter. It does, crucially, as the Court of Appeal recognised in the Bracking case. The decision to close the Independent Living Fund was held unlawful because it was taken without due regard to the public sector equality duty.
I asked the Minister at Second Reading how judges would be able to weigh up “highly likely” without speculating. Surely, judges are supposed to decide on the facts— that is what I was always told—not second-guess what might have been. I have not heard from the Minister—he was not able to answer me at the time—and I really hope that he will tell me today.
The Minister has said that the aim of Part 4 is to limit the potential for abuse, such as delay. That puzzles me. If the court has to inquire into things that it would not otherwise consider until the judicial review itself, how will that reduce delay? It can only lengthen the case and increase the costs. I agree with the Joint Committee that Clause 64 should not stand part of the Bill but, if it remains, I will certainly support these amendments to reflect the current approach of the courts.
My Lords, luckily, and happily, I think there is little danger of this debate becoming a closed shop of the legal profession. It is very important that that is the case, because in my view Part 4 of the Bill, which represents an attempt by the Government to—I think one can only say—clip very severely the wings of the whole judicial review system, is something that goes to the heart of the way that we are governed, something that is of interest to every citizen as much as it is to professional lawyers. It raises questions such as: do we live in a state in which the Government are subject to the law? Is that a purely theoretical state of affairs or a practical reality? Is there some way of enforcing that principle? Is it possible for the citizen to get an authoritative view of what the law is? He or she is supposed and indeed compelled to obey it, but is it possible to get a judicial decision as to what the law is in a particular circumstance? Do the three powers of government operate as they should? Do they act as a balance on each other, or is one of those three powers oppressive to another? These are foundational questions and I think that we have been quite right to spend a bit of time this afternoon addressing some of these basic principles as well as the Bill.
However, I will now say a few words about the Bill. We heard two very distinguished speeches from the noble and learned Lord, Lord Brown, and the noble Lord, Lord Marks, setting out some of the central principles that lie behind this debate. I agree with much of what was said by both of them. On the central controversy between the two as to whether Parliament should legislate in the area of judicial review, I side entirely with the noble Lord, Lord Marks. It is, in my view, Parliament’s essential job to review and keep under review the constitution, and to make changes to it when it decides that that needs to happen. We created the Supreme Court recently, for example, to keep under review the operation of our legal system and the evolution of jurisprudence, to correct a tendency that we do not approve of by using statutory law, and so forth. These seem to be essential roles of Parliament and we should not shy away from that.
However, the Government’s attempt today to change the law is thoroughly misconceived. I particularly object to the phrases
“must refuse to grant relief”,
“may not make an award”,
in the clause before us today. It is quite clear in principle and in practice that the judiciary, when it undertakes judicial reviews, takes into account among many other factors when it considers the merits of an application whether or not the outcome would make any substantial difference to the applicant; that is perfectly legitimate and it happens at present. To remove altogether any judicial flexibility seems to be a sinister development.
Not only that, it could be quite dangerous and counterproductive. It creates dangerous perverse incentives. I will explain what I mean. The executive branch, which is generally speaking the target of judicial reviews, has in its power very often so to change things as to ensure that the outcome, whatever the result of the judicial review, is exactly the same. I will give an example, which is not far removed from a concrete case that I can remember as a constituency Member of Parliament. Suppose that a hospital trust, with a number of hospitals within that trust in different parts of a geographical area, decides to start a consultation about the future of maternity and obstetrics in one of its hospitals. The public take that commitment to hold a public consultation quite seriously. Local GPs, patient groups, the local authority, the Royal College of Obstetricians and Gynaecologists and all other people concerned spend time and trouble producing submissions to this inquiry.
While the inquiry is going on, the hospital foundation trust starts to undermine the existence of obstetrics and maternity in that hospital by not replacing consultants who retire, moving people to other hospitals within its jurisdiction and allowing paediatric services to lapse in that hospital. That means that obstetricians cannot operate there because they have no paediatricians to whom to hand over problematic young babies and so forth. In fact, the trust is engaged in the process of undermining, prejudging and pre-empting its own review.
It may well be that by the time people have realised what is happening an application is made for judicial review, but it may be too late to save maternity services in that hospital. It will not be possible to attract new consultants in circumstances of such difficulty, and when some specialties have already been removed, to replace staff who have already retired or been moved. It will simply not be possible, whatever happens, to replace maternity services in that hospital. Has that hospital foundation trust got away with an incredibly cynical manoeuvre? It has pretended to have a consultation but has made a mockery of the whole process.
If this clause put forward by the Government survives debate this afternoon and on Report, it would be perfectly impossible for a judicial review to give any kind of relief at all in such circumstances. Two things will have happened as a result of that. One is that there will have been an injustice because an arm of the state has clearly behaved in an utterly dishonest fashion; it should have been held to account and has not been, and that is clearly an injustice. The Government—the state, broadly interpreted—have not actually considered themselves subject to the law. The second thing is that an incentive has been created for other public authorities to behave in such a way as to prejudge the outcome of a judicial review or a threatened judicial review, so more harm will be done in future by public authorities acting in that fashion.
That is the path that in my view we would be going down if we accept this clause. The clause should not be accepted: it is very dangerous. I am sorry to have to agree with what the noble and learned Lord, Lord Brown, said—that this looks as though it is part of a package designed to weaken the element of central protection of judicial review in our system. I hope that that is not a sinister, deliberate intention on the part of the Government, but it looks awfully like it when you look at this clause and the clauses that will come in the rest of this part of the Bill.
My Lords, I recognise the points that were made on the other side of the House about delays and the deterrent effect on certain local authorities. There is a clearly a balance to be struck. But this legislation is a step too far. It is an unattractive step, as has been said by many other noble Lords. The Government are reducing significantly the right of a citizen to challenge flawed decisions of national and local government; they will not to be able to hold national and local government to account. That has come out loud and clear from earlier speakers, but I just reinforce it.
Whatever the disadvantages of judicial review may be, one must bear in mind that to go forward with this particular legislation will be a denial of justice to ordinary citizens—some of whom, as the noble Baroness said, are very vulnerable. I must ask the Government to step back for a moment and rethink whether there is a way forward to deal with delays and other problems without cutting the fundamental importance of the exercise of the discretion of the judge. As the noble Lord, Lord Carlile, said, only in a minority of cases is permission to go forward given. Those cases need to be heard. So I ask the Government to think again and step back. If I could use perhaps an unattractive phrase—back off on this one.
My Lords, I want to speak briefly. I was going to save myself until Report, but this afternoon I was provoked into speaking by the reference by the noble and learned Lord, Lord Woolf, to Andrew Congreve. Andrew Congreve is a partner of mine at Herbert Smith. We both went to the post office to get our TV licences when we heard that the fee was going to be increased. Andrew Congreve was provoked by the threat that his second TV licence was to be revoked by the BBC. That threat stirred him into action. He has not been very well recently. It is only to be applauded that he should be referred to this afternoon: he is now in the Law Reports and will appear in Hansard.
I wish to make a second point. The noble Lord, Lord Horam, referred to delay, as did the noble and learned Baroness, Lady Butler-Sloss. Steps are being taken at the moment to speed up the process of judicial review. Only six weeks are allowed now to bring the case—to make the application. That is a substantial cut to the period of time that was allowed before. The new planning courts, filled with judges who are experienced in this area, now sit to hear these cases. They come on very quickly. In my recent involvement, the six weeks application was made, the leave was granted quickly and the hearing took place a week ago. That was dealt with with enormous speed. If that is the process that is to be fulfilled in the future, a lot of the problems about delay will vanish.
My Lords, I apologise to the noble and learned Lord, Lord Woolf, for missing the opening minutes of his speech this afternoon—indeed, I apologise to all noble Lords—as I attempted unsuccessfully to break the world record for running here from the Supreme Court.
When proposals for amendment of judicial review are brought forward by the Government—who are, of course, the main defendant in such litigation—they require the most careful scrutiny to identify whether they are indeed in the public interest and whether there is any good reason for Parliament to intervene in an area that has previously—and rightly—been left to judicial discretion. Clause 64 seems to me to fail to meet those criteria.
I have three objections to Clause 64. First, it focuses on whether it is highly likely that the outcome for the applicant would not have been substantially different. I emphasise the words “for the applicant”. The clause fails to recognise that judicial review is not concerned just with the narrow interests of the applicant. Judicial review serves the public interest, as the Committee has heard, by exposing systematic breaches of legal requirements by defendants. The court’s judgment—often a declaration—tells the Administration that what has been done is unlawful. Changes are then made; unlawful practices stop. Clause 64 will constitute a major impediment to that vital function of judicial review.
My second objection to Clause 64 is that a remedy may be appropriate in the interests of the individual claimant even in cases where the legal wrong may have made no difference. Last year, Lord Reed emphasised in the Supreme Court in a case concerning the Parole Board—the Osborn case of 2013, in volume three of the Weekly Law Reports, at page 1020, paragraphs 67 to 68—that the law requires public bodies to adopt a fair procedure to ensure not just that the right conclusion is reached on the merits of the individual case but that the subject of such a decision is not left with a sense of injustice that a wrong approach has been adopted in their case. Again, Clause 64 would prevent judicial reviews going forward for that purpose.
My third objection to Clause 64 is that it would require the court at the preliminary stage to conduct a detailed review of what would have happened had circumstances been different. That will of itself be time-consuming and expensive, and will inevitably promote satellite litigation. The noble Lord, Lord Horam, expressed concern about delay, and we are all concerned about speeding up legal procedures. Several steps have been taken; the noble Lord, Lord Hart, referred to them a moment ago.
It is important to say to the noble Lord, Lord Horam, that Clause 64 simply does not address the objective of speeding up procedures; nor will it achieve any such objective. One could have shorter time limits and arrange for speedier, expedited or shorter hearings—those are all processes that are being adopted. The Fordham inquiry for the Bingham Centre has made a number of valuable proposals.
Clause 64 simply does not address the topic; it is a blunt weapon, if removing delay is its objective. It is, for reasons that I have sought to explain, counterproductive, because it will lead to longer hearings at the leave stage and more appeals on the grounds of what would have been the result had a different approach been adopted.
Your Lordships have heard that Clause 64 has been criticised by the Joint Committee on Human Rights. Your Lordships’ Constitution Committee referred to the concern expressed by the senior judiciary during consultation that Clause 64 may well lead to unlawful administrative action going unremedied. The Constitution Committee therefore advised this Committee and the House to consider whether Clause 64 risks undermining the rule of law. I think that Clause 64 will impede the effective exercise of judicial review, and will do so for no good reason. I very much hope that the Government will think again before Report.
My Lords, in brief compass I will say, if I may, that I support the amendments and all that has been said about Clause 64 by those who have opposed it. I am a little hesitant to express matters in terms of my experience because the vast experience of noble Lords with judicial and advocacy experience is such that mine appears very minor. However, it is rather personal and I may be able to give the Committee some idea from that why I regard this as not only undesirable but unnecessary.
The courts have quite sufficient powers to deal with the matters contained in Clause 64. I can tell the Committee exactly why I say I know that. When judicial review was coming on stream in Northern Ireland in 1984 it was exactly the time I became a judge in the High Court. I was put in charge of those matters coming before the High Court and grew up with it. If I may say so, I helped to shape it and to form the judicial approach to the development of judicial review in our jurisdiction. I was very attentive all the while to the way in which it was being developed very well indeed in the jurisdiction in England and in other jurisdictions. I know from personal experience that the judges have the necessary powers. All they need to do is exercise them sensibly and robustly, with a careful eye to the justice of the individual case.
Once you write down these things and put them into legislation, as I have had occasion to say to the House before, two things happen. The first is that you cannot legislate for everything; there will be difficult and borderline cases when the shoe pinches and the exercise of discretion is an essential part of achieving justice. Secondly, once you write things down, it will give rise to an industry of finding ways round it. As the noble Lord, Lord Pannick, said, it will give rise to satellite litigation. For those reasons I strongly oppose the adoption of Clause 64. It may well be right—and I would not rule it out—that the pendulum should swing to some extent. The Government may have some perfectly valid points about matters that should be attended to, but this is not the way to do it.
My Lords, I rise briefly to speak to this amendment. It will become apparent very quickly that I am not a lawyer, and never have been, but I have been involved in one case of judicial review as a result of becoming a victim of phone hacking.
The fact that I was a victim of phone hacking became known to the police, but the police did not inform either me or other victims when that information came to their notice. As a consequence, together with others, we took the Metropolitan Police to judicial review on two counts: first, over its failure thoroughly to investigate phone hacking in the first instance; and, secondly, on its failure to inform those that it knew were either victims or potential victims of phone hacking to enable them to take steps to guard their privacy. The court found that whether the police should have investigated thoroughly the first time round was entirely a matter for the police. However, on the issue of whether the Metropolitan Police should have informed the victims of phone hacking, the court found that it was under a legal obligation to inform them. That important principle was therefore established through this judicial review.
Bearing in mind that by the time we brought the judicial review we had been informed by the police that we were victims of phone hacking, can my noble friend the Minister confirm that the outcome of that application would not have been substantially different for us? In other words, we already knew that we were victims, but we wanted to establish the principle that the police should have told us earlier. If Clause 64 were enacted, we may not have been able to bring that judicial review and establish the important principle that the police must inform victims of this sort of crime as soon as they become aware of it.
My Lords, I, of course, have nothing like the width of experience that has been spoken of already by a number of noble and learned Lords and other noble Lords. However, I have a certain amount of responsibility in connection with judicial review from quite an early stage.
Your Lordships will remember that the law of England originally provided for four rights, which were prerogative writs that had the effect of controlling the subordinate powers at the insistence of the High Court. That is because the High Court is a court of universal jurisdiction. The difficulties of these particular prerogative writs were gradually appreciated and, eventually, the judges decided that it would be a good idea to have a new form of procedure called judicial review. They ultimately incorporated it in a rule of court which, as I remember, was called Order 53, and that was the situation for some time. However, it was not long before the judges themselves decided that it was not good enough to have procedure of this kind depending only on an Order 53 rule of court. It was therefore important that this became statutory and that Parliament should have responsibility for the legislation which affects and controls the process of judicial review. It is therefore 100% clear that Parliament has authority to deal with this. That does not necessarily mean, of course, that any particular action proposed to Parliament by a Government is necessarily the best thing to do.
However, I would like to mention one or two aspects of this. The first is from the point of view of planning. I used to practise some planning work in the 1950s, 1960s and 1970s and in the planning legislation there was, I think almost from the start, always a provision empowering an applicant or a person aggrieved by a decision in the planning field to apply to the court. There were two branches of that: first, where there was no power to make the decision; and, secondly, where the decision was the result of a failure of process. I think that the current form is in the Planning and Compulsory Purchase Act 2004, where the second provision is,
“that the interests of the applicant have been substantially prejudiced by a failure to comply with a procedural requirement”.
It is important to see that it applies where the interests of the applicant have been “substantially prejudiced” by a failure of procedure.
I think that that system worked well. In due course, of course, as a result of various decisions, including a decision of this House in its judicial capacity, in which I took part, it was held that judicial review was sometimes available even when there was a statutory form of appeal, and therefore judicial review started to be used in the planning field, notwithstanding the provision that I have just referred to. A number of cases came along, one of which the noble and learned Lord, Lord Woolf, will remember, when somebody was faced with a document at the beginning of a hearing before the inspector, and the inspector granted him an adjournment only until lunchtime. Lord Denning and his colleagues, notwithstanding the eloquent defence by Mr Woolf, as he then was, found against the Secretary of State. However, that is a success of the old form and the present form of statutory appeal.
In a more recent case at the Court of Appeal, the leading judgment was given by the judge who was the senior presiding judge in England in my time, Lord Justice Auld, who said, on dismissing the appeal:
“In doing so I add a note of dissatisfaction at the way the availability of the remedy of judicial review can be exploited— some might say abused—as a commercial weapon by rival potential developers to frustrate and delay their competitors’ approved developments, rather than for any demonstrated concern about potential environmental or other planning harm. By the time of the hearing of this appeal, as is often the case, the approved scheme in issue is clearly of a piece with—”
what was already there. So, the danger of judicial review as a means of trying to damage competitors was recognised. My noble friend Lord Horam has given a number of cases in which that has actually taken place. That warning was given a considerable time ago and I am delighted to hear that now—this is a fairly recent development—there is a Divisional Court in the High Court with expertise in planning able to deal with planning applications very speedily indeed. That is highly desirable.
The other thing I want to mention is that, when I was first in practice, we did not particularly think that we were not under the rule of law, although there was no judicial review. Another aspect of the law which was quite important was that there were finality clauses in most Acts of Parliament making the decision of the Minister or the authority final and unable to be upset by any judicial procedure. That was a fundamental protection for the Executive, for local authorities and so on—all sorts of bodies had that kind of protection. The Foreign Compensation Commission happened to be the one selected for trial and in Anisminic v Foreign Compensation Commission the judges found the way around this finality clause in such a way that these finality clauses have ultimately disappeared. Therefore, the scope for judicial review is very much greater than for the prerogative writs that were in position originally.
I was involved in one of the early cases on development of judicial review in respect of the standing of, or the right to bring, such a case. Certainly, there is an interesting issue in relation to some of the clauses in this part of the Bill about forming private companies simply for the purpose of promoting a particular judicial review in the hope of protecting perhaps fairly wealthy, not in any way impecunious, people from the possibility of costs. That is a development in relation to judicial review which I think requires consideration.
The idea and doctrine of judicial review is extremely important and very precious. When I was responsible for altering—or proposing to Parliament, which is the correct way to say it, I think—the jurisdiction of various courts, I was strongly of the opinion that judicial review should remain in the High Court. It has remained there, except that the top tribunal now has the power in certain cases to use judicial review. However, we have to be conscious of the fact that judicial review, excellent as it is, is capable of being abused. Lord Justice Auld recognised that in connection with planning, but it is not only in connection with planning that that sort of consideration may arise.
The noble Lord, Lord Adonis, who was a Minister in the previous Government and is well known to your Lordships, has written about judicial review in connection with the academies policy of the previous Government. His book is called Education, Education, Education, which is a war cry that will be fairly instantly recognised. The subtitle is Reforming England’s Schools. On page 78, he writes:
“However, if Parliament was navigated quickly and unobtrusively, the same was not true of the courts. As soon as academy projects became public, opponents seized on judicial review as a means to stop them. Ultimately they failed, but only after years of lengthy, expensive and immensely distracting court actions, mostly funded by legal aid with the real opponents—the National Union of Teachers and anti-academy pressure groups—masquerading as parents too poor to afford to pay legal fees.
The legal campaign against academies was masterminded not only by these opponents, but also by solicitors and barristers who made a specialism of academies case and encouraged legal challenges…
A critical early case concerned St Mary Magdalene Academy, around the corner from my home in Islington. Islington council held an unusual local referendum in 2001, asking the borough’s residents whether they wanted a new secondary school and, if so, of what type. Virtually all those voting in the referendum favoured a new school, and the most popular option was for a Church of England school, Islington having no C of E secondary schools. The council thereafter drew up plans with the diocese of London for an existing Anglican primary school to be rebuilt as an all-through academy for primary- and secondary-age children. However, popular enthusiasm and local authority agreement did not stop anti-academy campaigners from fighting the proposal through the courts, with the support of residents in nearby multi-million-pound houses, few of whom used Islington state secondary schools or intended to do so, and who simply didn’t want a new school of any kind in their back yard. It was a classic unholy alliance”.
In due course, the case went through the courts—it took quite a long time—and in July 2006 the High Court decided in favour of the Government.
That is an account, by somebody who was affected, of the way that judicial review was used. The important thing I find from it is that, so far as possible, the people selected to try to raise the reviews were people who qualified for legal aid. In this way, the whole expense of the campaign, so far as it was financed in that way, was borne by the taxpayer. That passage, from a very responsible source, shows me that we need to think—certainly, we have to be careful—about the way in which judicial review may be used. I am not saying that everything that is said in these clauses will necessarily deal with that, but I believe the clause about finding out the financial position in relation to the judicial review is relevant to this sort of situation.
So far as the first clause is concerned, I do not intend to deal with the detail of the amendments at this stage because the Minister will no doubt wish to do so. So far as I am concerned, the first clause does not preclude the idea that, if the court thought the outcome should be a declaration, it would not be able to do so because it is the outcome for the applicant. If the outcome for the applicant is a declaration that there has been a practical wrong or unlawful practice and the applicant could secure that as a declaration, it would be part of the outcome. It might not make much difference for the rest of his situation, but at least that would be part of the outcome that the court might think was possible. At the early application for leave, that point could certainly be considered.
I am listening with great attention to what the noble and learned Lord is suggesting. Is he proposing to put down an amendment to allow the court, notwithstanding the restrictions that are being imposed in this Bill, in the event of what is described as being an academic case in which the outcome is not likely to be very different one way or another for the applicant, nevertheless to proceed under those circumstances if its intention is simply to make a declaration? That is not provided for in the Bill at present. Is the noble and learned Lord proposing to put down on Report an amendment that would give that suggestion effect?
If that were necessary. I regard it as something that could happen under the existing clause because the outcome for the applicant could include a declaration, in my judgment. It is a question of whether the court thought a declaration appropriate. If it did, it could do so, notwithstanding the provisions of Clause 64.
The noble and learned Lord, Lord Mackay, makes the very proper point that there is ample precedent for Parliament to deal with the issue of judicial review. Indeed, he traced historically how prerogative writs developed, how they were placed on an administrative basis and how, ultimately, they became the subject of specific legislation. One point must be made, however, and I am not sure that the noble and learned Lord did not touch upon it in his powerful address: that when legislation intervened in this area, it did not diminish to the slightest degree the rights of the individual, or, indeed, any of the relative positions in relation to the various powers that judicial review seeks to deal with equitably. In other words, the boundary was not moved a single inch.
My second point has already been touched on: it is about the rule of law. Many here will have read the excellent treatise by the late Lord Bingham, in which he reminded us that there are two boundaries in relation to the rule of law. The most obvious is whether a law has been technically and lawfully passed through both Houses of Parliament and received Royal Assent. However, Lord Bingham went on to make it perfectly clear that if a law was unconscionably wrong, even though it had proceeded through all those stages in a thoroughly proper and technical way, it would still be in breach of the rule of law.
The point that Lord Bingham makes is that there are two boundaries: one is the technical parliamentary boundary; the other, of course, is a boundary beyond that. Indeed, it is in that context that this whole debate is taking place. The boundary that we are talking about is the boundary of the inherent jurisdiction of the High Court, something which has been built up over many centuries and not spelt out by Parliament but which is nevertheless a very real and massive boundary.
If I am right—and I suggest that it most certainly is the case—that Clause 64 breaches that boundary and undermines it, there is a very strong case for changing it. That is the real relevance of the excellent debate that we have had today.
Many speakers have made the point about Clause 64 in the context where the result would have been no different. I would ask in how many cases the following situation applies. A party is elected to government after a hard-fought election. It has set out very clearly in its manifesto exactly what legal changes will be brought about in various fields of law. It will invoke procedures which are already set out in statute to make those changes. Those proceedings will, of course, involve consultation. However, every thinking person knows that that is something entirely chimerical. There will be consultation, yes, but the consultation will make no difference to the determination and resolve of that new Government to bring about that change. If you say that that consultation does not really matter, what can you do? You do not challenge the ultimate right of that party to bring about that legislation, but you can challenge the right of that party to make a mockery of the procedures of law. That is exactly what is entailed here.
Consultation does not, of course, mean that you have to weigh in the balance the views that are tendered to you, but it does mean that you have to look carefully at what is said and give a reasonable period and a reasonable prospect for people to be able to make such representations. The idea that those count for nothing is, I suggest, utterly inimical and utterly contrary to our concept of the law as we have it.
My Lords, I am not a practising lawyer, but I have experience of being judicially reviewed, and after much hard thought, I speak in support of the noble Lords, some of whom are learned, who have put their names to this amendment and similar ones. After much thought, I think that this is the wrong clause, and I think that the way in which it is drafted will open doors to as much costly litigation as it is intended to prevent.
I can well imagine the sort of thing that the Government had in mind in bringing this forward. For example, in my experience, a student would challenge a poor grade or a failing grade on the ground that some tiny bit of procedure had gone wrong, something had not been put up on the notice board at the right time or whatever, and one knew perfectly well that, no matter how many judges looked at it, this student would still, in the end, be a failing student or a student with a poor grade. I quite understand that. However, I do not believe that this is the way to tackle it. There are procedural problems that ought to be tackled first. There are too many opportunities to ask, and ask again, for leave to judicially review something, and then to appeal against it. There are very many bites at the cherry. Although one may know very well that in the end the judicial review will not succeed, for a year or two an expensive dark shadow hangs over the body that might be judicially reviewed while lawyers are having to cope with the case.
Nevertheless, despite those drawbacks, I support this amendment. I call on the Government, instead, to look at procedural reform that would make the whole procedure quicker, cleaner and cheaper.
My Lords, this has been, as ever, a very well informed and interesting debate, and it has been particularly beneficial to have the views of those who are not lawyers to consider. I suppose I must congratulate the Minister on this occasion on having at least two supporters from the government Benches, which is double the usual quotient, if not better than that. I simply say, however, to the noble and learned Lord, Lord Mackay, who makes a valid point about financial information, to which we will come later when we discuss a further group of amendments, that there are other arguments about finances. These include in particular, as we shall no doubt hear, the chilling effect on those who are not in a position of wealth or able to find large sums of money to meet the potential costs. That is an item very much to be weighed in the balance. As the noble and learned Lord himself pointed out to his noble friend Lord Horam, who has been in his time the noble friend to all three political parties and members of them and remains on friendly terms with members of those parties, in the planning field the landscape has changed in any event, perhaps in a timely fashion. I do not think the noble Lord’s concerns are particularly relevant to the day’s deliberations, but in any event all that is required effectively is for those making decisions to comply with the requirements of the law. That is ultimately what judicial review is all about.
I support the amendments in the names of the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Pannick and Lord Carlile, to which I have subscribed my name, and will speak to some amendments specifically in my name. I refer to Amendments 71B, 72D, 72E and 73A and 73C in this group. I will outline those briefly before turning to the substance of the argument. Amendments 71B, 72B and 73C would replace the words that we have heard something about this afternoon, “highly likely”, with the word “inevitable”, which is currently the position. That is to say, the outcome of the Bill for the applicant would not have been substantially different if the conduct complained of had not occurred. Instead of that being “highly likely”, that would become the “inevitable” position. That is a material restoration of the position as it now stands.
Amendments 72D and 73E would remove the obligation on the court—that is, both the High Court and the Upper Tribunal—to refuse to grant leave even if it believes that the outcome for the applicant would not have been substantially different if the behaviour complained of had not occurred. Amendments 72E and 73A would alter the definition of the conduct complained of for the purposes of determining whether such conduct would have made a difference to the outcome to mean any procedural defect rather than the conduct of the defendant; they would put it on more of a procedural basis.
As we have heard today, Clause 64 raises a new and significant barrier on the road to those seeking to hold the Government or other public bodies to account for a failure to observe the law. This self-serving change is one of a series deliberately designed to constrain judicial scrutiny and narrow judicial discretion. Its argument is partly based on a false claim that the number of judicial review cases has trebled whereas, as was made clear at Second Reading and, tellingly, repeated by the Constitution Committee in its second report on 4 July, after taking into account the transfer of immigration cases to the Upper Tribunal, the number has increased in 13 years by only 21%, or 366 cases.
Of those, only 0.4% have been conducted by campaigning organisations—that is to say, 50 cases in 13 years. Yet those campaigning organisations have attracted the obloquy of the Lord Chancellor, who, as we heard powerfully from the noble Lord, Lord Ramsbotham, in the debate on Part 2 of the Bill, has described organisations as being “left-wing”. Incidentally, those organisations that have brought judicial review comprise such extremist left-wing agitators as the Countryside Alliance, the Daily Mail, the Daily Telegraph and UKIP’s former treasurer. However, the Lord Chancellor has not confined himself to that observation. He spoke—or wrote, to be more precise—in the Daily Telegraph that judicial review is,
“exploited inappropriately by pressure groups with a political point”.
The Joint Committee on Human Rights, which I hardly need remind your Lordships is a cross-party—indeed, a cross-House—committee, with members from all Benches, including the Cross Benches, observed that:
“Such politically partisan reasons for restricting access to judicial review, in order to reduce the scope for it to be used by the Government’s political opponents, do not qualify as a legitimate aim”.
I think that most noble Lords who have spoken would concur with that fairly damning conclusion as, I suspect, many others would as well.
If the Government are concerned, as the Minister claimed to be at Second Reading, that “other more meritorious”—I pause to inquire whose definition of “merit” would be applicable—judicial reviews “can proceed more quickly” perhaps the Minister can tell us, in addition to those matters that have already been referred to by noble Lords, how many of the 25 recommendations made by the Bingham Centre for the Rule of Law in February the Government propose to adopt, or, if they have not yet reached a conclusion, at the very least what consideration has been given, and in what form, to those proposals.
Of course, as we have already heard, the amount that the noble Lord, Lord Horam, referred to, of a six-week period for raising an objection, has already been dealt with. A six-week period being imposed would in some cases present very serious difficulties, particularly with regard to the position of the non-availability of legal aid for pre-application work. However, of course, not all those cases are funded by legal aid in any event. I cannot speak of the Islington experience with the inside knowledge of my noble friend Lord Adonis or as acquired by the noble and learned Lord, but the fact that there is a disagreement about that on a particular case does not make a case for the substantial change that the Government are embarking on.
The effect of this clause in lowering the threshold for refusing permission to proceed to one in which it is only “highly likely” that the claimant will not succeed is, in the words of the Joint Committee,
“highly likely to conflict with the requirements of the European Convention on Human Rights”,
and has drawn the vigorous condemnation of the senior judiciary. The amendments before us echo the recommendations of the committee, not least in the requirement that it would be inevitable that the claimant’s case would fail. The Government choose to ignore the difficulty of claimants effectively having to try the issue without the benefit of legal aid or advice, which, as I have said, is not available at the permission stage.
Moreover, the JCHR recommendations address the additional and fundamental issue of whether the application would make a substantial difference to the applicant if the conduct complained of had not occurred. The recommendation in the Bill personalises the claim when in the first place many such claims by definition—as we have heard, again, from other of your Lordships tonight—give rise to a public interest element that transcends the position of the applicant, whether that is the applicant for a television licence or other rather more intrinsically weighty matters. Secondly, of course, it ignores the fundamental imperative of the decision-making being lawful. As the Constitution Committee points out,
“lowering the threshold risks unlawful administrative action going unremedied”.
When the President of the Supreme Court says that,
“any interference in or restriction of judicial review has to be looked at very carefully”—
to which I add the obvious further obvious comment that this must be especially true when those proposing the interference are by the very nature of the process the potential respondents in many claims—your Lordships’ House is obliged to take heed.
I very much hope, even at this late stage, that the Government will review their position. If not, I envisage that on Report, those of us who have tabled amendments and spoken to them tonight will seek to test the opinion of the House about a fundamental, radical and wrong-headed change to our system, which we must use our best endeavours to halt if we cannot improve it.
My Lords, this has, correctly, been a lengthy debate, in which views have been expressed by a number of noble Lords with judicial and legal experience and—to the benefit of the debate—by noble Lords who have different but none the less valuable experience to contribute to the debate as a whole. Since this is our first opportunity to consider Part 4, it is wholly understandable that the comments made by certain noble Lords have ranged beyond the strict confines of the clause that we are considering, because the general thrust of the argument embraces more than one clause. I make clear that any points that arise in the subsequent groups should be taken again, and that no noble Lord should feel any restriction by having mentioned them in this first group.
The development of judicial review has been contributed to, quite apart from this debate, by a number of those who have contributed to the debate. Although they have not said so, it is clear that there is a great deal of judicial pride in the fact that it has evolved and provided a valuable, and indeed fundamental, check on executive power, not just in this country but, as we have heard, in Northern Ireland. I do not resile from anything that I said at Second Reading about the importance which the Government attach to judicial review, nor indeed in the columns of the Times. I have not ventured into the Daily Mail or any of the other organs that the noble Lord, Lord Beecham, referred to, nor have I expressed any views about the particular political affiliations of any potential applicant, which are nothing to the point. The question is whether it is appropriate for any—and in particular these—reforms to take place.
Of course, it is tempting to suggest that judicial review is so perfect an object that it is beyond improvement. It is described by the noble and learned Lord, Lord Brown, as “a heresy” to consider any modification of the doctrine of judicial review. I agree with those who said clearly that any change to judicial review should be looked at very carefully indeed—quite so. That is precisely what this debate and subsequent debates enable us to do. However, I respectfully differ from the point that it is beyond Parliament’s competence to make some modest changes, and these are modest changes. That is appropriate if Parliament approves that these changes are made, bearing in mind, of course, that they should not encroach on the proper role that judges have established and which they perform so well. We must accept, as illustrations have shown in this debate, that there is the potential for abuse in judicial review. That is not to say that it does not have an extremely vital function, but we should be astute enough to ensure that the doctrine is sufficiently rigorous to remove or at least limit the possibilities for abuse.
We suggest that our reforms will effect a modest rebalancing to ensure that meritorious claims—I will deal with the adjective “meritorious”, as invited—that are grounded on failures of public administration that affect people can proceed swiftly and effectively to their being determined. Time limits are now shorter than they once were but there is still the question of obtaining a permission hearing and then, if permission is given, the question of obtaining a full hearing. That may take some time. While I applaud all the attempts by the judiciary and court staff to speed things up, it is plainly the case that there are delays. Sometimes, as my noble friend Lord Horam so clearly pointed out, these delays can be the enemy of progress in infrastructure projects and the like, which I am sure that noble Lords on all sides of the House would not wish to impede, when in fact the grounds for purported judicial review are baseless.
Clause 64 is one part of our approach. It modifies how the High Court or the Upper Tribunal deal with judicial reviews where the matter complained of was highly unlikely to result in a substantially different outcome for the applicant. The clause is designed for the most part to bite on errors in procedure that are highly unlikely to have changed the end result. For example, a public authority might have run a consultation to inform its decision on where to place a pedestrian crossing but failed to notify—when it should have—an individual who ought to have been notified that the consultation had begun, despite the public authority having let many others know. However, that person’s likely arguments have been raised by many other individuals, and the public authority made its decision having fully considered the arguments that were raised. In those circumstances, the court might conclude that the failure to notify that particular individual, unlawful though it was, was highly unlikely to have affected the outcome for the applicant, and it would be futile to quash the decision and require reconsultation since nothing new would be added.
Clause 64 would mean that the court, in the absence of other grounds of challenge, would not give permission or grant a remedy so that the original decision would stand. This clause will help to ensure that judicial review focuses on matters of importance, not on mere technicalities.
It might or might not be “inevitable”, but we suggest “highly likely” would ensure that it would not survive. “Inevitable” might leave room for the argument that it was highly likely but not inevitable. This makes sure that the position would be as we say that it should be.
I am grateful to the Minister for giving way. Does he accept that his remarks in his last few sentences do not really address what has come out of the debate on the subject? It is quite clear at present that the court would almost certainly not give judgment in such circumstances as he described; it would set aside the argument, not accept a judicial review and say that there was no reason to reopen the whole case. The court at present has that jurisdiction and has that opportunity if it wishes to use it. What the Government are trying to do with this clause is to remove any judicial discretion at all by the phrases “must not” or “may not”. The examples cited by the Minister stand in favour of the preservation of the existing law, not the changes in the way recommended or as enshrined in this Bill.
I think that is very much the same comment the noble Lord, Lord Beecham, made, although expressed in slightly different terms. As I will come on to explain, we suggest that the clause—if it is incorporated into the Act—would still give the judge discretion. We are simply making it clearer where the bar is placed.
At present the courts will find that there will be no difference where the end result was inevitably the same. Amendments 71B, 71C, 72B, 72C, 73C and 73D and the amendments consequential upon those would go further in adding additional requirements concerning the public interest and the overriding objective. Those additional requirements do not apply at present as the law is understood by the Government.
The current threshold is already extremely high. In the Government’s view, this means that judicial reviews can be grounded on technicalities which would in practice have made no difference to the end result, or, ultimately, the applicant. That is why it comes up so rarely, and that is why we wish to modify the current approach. In the Government’s view, scarce court resources would be better applied to cases in which a difference to the outcome is more likely. But I reassure noble Lords that, as drafted, what Clause 64 does not do is make the exercise of this power in any way routine. This is because the clause applies the standard of “highly likely”. This will remain a high threshold, and when there is any significant doubt that there could have been a difference for the applicant, the threshold will simply not be met.
Concerns have been raised that in applying this approach of diligence, the courts will be dragged into the forbidden ground of a merits-based review, where they insert themselves into the decision-maker’s shoes. I respectfully disagree with this. I am sure that the courts will continue with the established way in which judicial reviews progress; namely that they consider the process which led to, and not the merits of, the decision, the legality of the process being the essence of the challenge. They will perform this exercise even in the examples postulated by the noble Lords, Lord Beecham and Lord Davies. It is inevitable that they will have to look at the facts there and then on the basis of the information. What we are suggesting is that a very low bar is raised slightly higher, but the exercise will be performed at the same stage.
Furthermore, there is an additional reason why this exercise should not create real difficulties for judges. Judges often have to make decisions on the basis of information available to them which is not complete. For example, in a civil claim where, let us say, a claimant is suing for negligence, the defendant may argue that the claim should be struck out on the basis that it discloses no cause of action. There the claimant’s case may be taken at its highest, and the argument proceeds that even if the claimant is right, the claim is not sound in law and must therefore be struck out, to which the answer often given by claimants is, “Well, my Lord, you haven’t heard the evidence. If you hear the evidence and get a clearer view of the matter, then our slightly adventurous case may be seen in a better light”. Sometimes that argument is persuasive, but very often judges are able to take the view that the position is sufficiently clear for it to be uneconomic and unnecessary to hear the case. This is the task they perform.
Nor do I think that the “highly likely” test should be beyond the agility of our very distinguished judges performing in the High Court, as the noble Lord, Lord Elystan-Morgan, emphasised. It is not the balance of probabilities, but the “highly likely” test is something I feel confident that they will be able to apply.
Amendments 72E and 73A probe the scope of Clause 64 in practice following the recent report of the Joint Committee on Human Rights, to which the Government responded in July, over what types of flaw the clause will affect. In the Government’s view, the term “procedural defect” is too imprecise to be used in legislation. The grounds for judicial review are not defined in legislation; doing so in certain areas would be a significant step. “Procedural defect” has no accepted definition at present under case law, and it would be virtually impossible to arrive at one that would stand the test of time, given how judicial review evolves with each new decision. Furthermore, it would lead to the risk of satellite litigation, referred to by a number of noble Lords.
We have also heard concerns that the clause will cause administrators to act unlawfully, for sinister motives, safe in the knowledge that, if challenged, they will have a “get out of jail” card. No decision-maker is going to follow knowingly an unlawful process simply because they think that at some point in future they may be able to argue successfully that there would have been no difference to the outcome. This is particularly so, as I have already indicated to your Lordships’ House, because our reforms have maintained a very challenging threshold.
Lest it be thought that the Government have not listened and are ploughing on regardless of the views expressed by others, I say that the question of standing was one that was often considered controversial in the reform of judicial review, and the Government initially thought that there ought to be a real connection between the claim and the applicant. The applicant state is referred to by the noble Lord, Lord Pannick. I looked at the White Book as to the summary of the development of the sufficient interest test for standing, and it contained this comment:
“The courts have adopted an increasingly liberal approach to questions of standing over recent years”.
Quite so—but the advantage of having a fairly elastic rule on standing was acknowledged by the Government on the basis that sometimes it is important that these cases are brought forward. It is an indication that the Government are making appropriate responses to the concern that has been expressed.
Some have argued that this clause will add delay to the consideration of judicial reviews by potentially requiring fuller argument at the permission stage. That is in part, as I apprehend it, the basis for Amendments 72 and 73, which would remove the requirement for the High Court or Upper Tribunal to consider a no-difference argument when it is raised by the defendant in the response to the application for permission. The Government consider that it is entirely proper that, when a no-difference argument is made by a defendant, it should be considered by a court or tribunal. I accept that when this argument is raised it requires courts to look at the case and the issues with care, but they do that at the moment. I do not think that that would mean that judicial reviews would become overlong. On the argument being raised more often, I say that it should be put only by defendants sure or confident of their arguments and position; if made without a sound basis, I would expect the courts to look to costs, which would act as a sufficient deterrent. In due course, we will invite the Civil Procedure Rules Committee to create a process that allows for oral arguments on this question at permission. While it would be wrong of me to pre-empt that committee, I am sure that it will be done in a way that makes the procedure straightforward and cost effective.
Amendments 72 and 73 would also remove the duty on the court to refuse permission when satisfied that it is highly likely that in the absence of the flaw complained of the outcome would not have been substantially different for the applicant. Those are, effectively, wrecking amendments. The Government’s view is that in those situations permission should not be granted.
Could the Minister clarify the Government’s position on the point that I understood was raised by the noble and learned Lord, Lord Mackay of Clashfern? As I understood him, the Minister suggested that even under Clause 64 the court could allow a judicial review claim to go forward and could grant a declaration of illegality, even if the outcome of the administrative process would have been the same for the claimant because the outcome of the litigation would be different. It would be a declaration. I see him nodding. For my part, I understand Clause 64 to refer to outcome as meaning the outcome of the administrative process. However, if I am wrong, could the Minister say so?
I was going to come on to this, but it is a highly pertinent point. The position as I understand it is that a decision which has resulted in a declaration, whether it is called a declaration formally or not, whereby the validity of the argument is acknowledged, might give the applicant the satisfaction—and, if there is any significance, significance can be drawn from it—of knowing that there has been an unlawful act, or whatever the nature of the challenge is. But that would not necessitate a full-blown hearing to determine something that is evident on the papers but does not require there to be a full hearing some months later, for example. I am concerned about that point, and I shall consider it further in terms of the mechanism whereby the answer can be given without the need for expensive and cumbersome litigation. I appreciate the point.
May I press my noble friend the Minister a little further on that? As I read the clause as drafted, the fact that the:
“High Court … must refuse to grant relief”,
encompasses a refusal to grant the declaration. For that reason, I was concerned by the intervention of the noble and learned Lord, Lord Mackay, as he expressed it on the point, because my noble friend the Minister’s final speech has dwelt on the question of whether the no-difference test is met. What he does not appear to allow for—and I shall be corrected if I am wrong—is, if the no-difference test is met, under this clause as drafted there is nothing that the court can do if this were implemented, because it must refuse to grant relief. That is how it seems to me, and to the noble Lord, Lord Pannick.
I do not think that I can expand much on my previous answer. If it makes no difference, it is true that, as the clause says, no relief should be granted. What I said that I would consider is the question of when it would make no difference but there is some benefit of a declaration or some judgment which reflects the lawfulness, whereby there might be some scope for providing that that should be given in the course of determining the very issue that Clause 64 covers. I think that that is as far as I can go. I shall consider the argument.
The Minister seeks to make a distinction between the court’s ability to grant relief and its ability to proceed to make a declaration. That seems an interesting line of approach in the light of the debate that has taken place. Can I therefore put to him the suggestion that I put earlier to the noble and learned Lord, Lord Mackay? Would it not be helpful if the Government—in this case, the Minister—brought in a new amendment at Report that made it clear that, notwithstanding the restrictions that appear to be overwhelming in Clause 64, the court could nevertheless proceed to grant a declaration?
I am grateful to the noble Lord, but with very great respect I think that we are going over the same ground again. I hear the argument; I have said that I will consider it, but I want to consider it in a way that does not emasculate Clause 64, which is there effectively to prevent cases in which it would make no difference from proceeding to lengthen expensive litigation. But I acknowledge that there is a potential force in the argument made by the noble and learned Lord, Lord Woolf, and picked up by other noble Lords, including the noble Lord, Lord Davies, about the possible benefit of a declaration, whether it is in the form of a judgment reflecting the point that seeks to be established but does not involve the expense and time of having a full-blown hearing. I do not think that I can take the matter any further at this stage.
In the approach that we suggest to what is essentially a desire to get rid of technical objections, we wish to refer to Lord Denning’s reasoning—and I am glad that he was mentioned earlier as he gets insufficient citation in the courts nowadays. He held that the court,
“should not find a breach of natural justice unless there has been substantial prejudice to the applicant as a result of the mistake or error which has been made”.
That is a reference to a case in 1977—
The case is George v Secretary of State for the Environment. I omitted one or two pages of my speech in order not to weary the Committee but I am most grateful for the offer of an autographed copy of De Smith.
I reiterate that, where there is any significant doubt over whether the flaw complained of was highly likely to have made a substantial difference, permission can be granted, and judges will continue to perform their established role. I remind the Committee of a significant judicial discretion which will remain under the clause. Crucially and properly, this discretion will extend to whether it is highly likely that the procedural defect would have resulted in a different outcome for the applicant in any given case and whether any difference would have been substantial.
Amendments 72D and 73E are intended to replace the requirement to refuse to grant permission where it is highly likely that there would have been no substantial difference with an option to refuse permission. It is worth examining that. It postulates the position where the judge says, “I think it is highly likely that it would have made no difference at all, but still I should allow this to progress”. Similarly, Amendments 70, 70A and 71 are intended to replace the requirement to refuse to grant a remedy, including a financial remedy, where this is the case. The Government’s view is that these amendments would significantly weaken the utility of the clause in dealing with minor technicalities in a proportionate manner.
Under Clause 64 as currently drafted, the High Court and the Upper Tribunal will retain significant discretion over the application of this clause. Crucially and properly, this discretion will extend to whether it is highly likely that the procedural defect would have resulted in a different outcome for the applicant in any given case and whether any difference would have been substantial. Indeed, the term “highly likely” will, as I have said, be interpreted by the courts. Where the court comes to the conclusion that it is highly likely that the outcome would not have been substantially different, the Government’s view is that the court should not grant a remedy. I can see no merit in continuing a case where there is no real prospect of a difference in outcome and a remedy such as a quashing order would be futile.
In conclusion, I trust that I have reassured the Committee that the Government absolutely understand the importance of judicial review and do not wish inappropriately to interfere with the exercise of the discretion by the courts, nor substantially to disturb the approach that the courts have taken in this very important area of the law. In fact, I submit to your Lordships that Clause 64 is modest in ambition and beneficial in effect. I hope that, with that reassurance, the noble and learned Lord will withdraw the amendment and I urge the Committee to agree to Clause 64 standing part of the Bill.
The noble Lord has not responded to a very specific question from my noble friend Lord Beecham, which was: how many of the Bingham centre’s recommendations have the Government accepted? This is very relevant to the point made by the noble Lord, Lord Horam, about delay. He quoted the Joint Committee on Human Rights, making great play of the word “perennial”, but I think that he rather quoted out of context. Perhaps I may read what the Joint Committee said:
“We welcome the Bingham Centre Report as an important contribution to the debate about possible reform of judicial review, demonstrating that the perennial problem of reducing the cost and delay of judicial review proceedings can be addressed in ways which are compatible with effective access to justice”—
that is, it is saying that these reforms are not so compatible.
I am glad to have that intervention from the noble Baroness. In fact, it reminds me that I did not specifically answer a question that she raised in relation to Article 6 of the European Convention on Human Rights. I reassure her and indeed the Committee that the Government’s view is that the reform is compatible with Article 6. As the Committee will appreciate, the enshrined right of access to the court is not absolute. The Government’s view is that this is a proportionate approach to securing the legitimate aim of having judicial reviews based on minor technical defects determined more quickly with fewer resources.
I am unable to respond now on the Bingham centre but I will write to the noble Baroness and the Committee to inform them of the current position.
My Lords, I am grateful to the Minister for the careful way in which he has sought to reply to the issues raised. I also hope that I am not misinterpreting him when I detect that he is prepared to look again at the provisions in Clause 64 to see whether some of the points that have been made may be of substance.
I am sorry to interrupt but I do not want to raise expectations inappropriately. I think that the only area where I said that I would look again was in relation to the very valuable point made by a number of noble Lords, including the noble and learned Lord, about the possibility of a declaration at an earlier stage. Beyond that, I am afraid that I did not give any undertaking at all.
One has at least to be thankful for small mercies, even if, in your view, they do not go nearly far enough. I am certainly not indicating that in due course there will not be a Division in this House on the appropriateness of this clause.
What the noble Lord has not done in his reply is to deal with the question that has been asked very clearly and has been emphasised by the noble Lord, Lord Davies—that is, what are the powers of the courts now? The position as I understand it is that everything that the Government want to achieve through Clause 64 can be achieved by judges now. If in fact it is said that they cannot, why is it not left to the rule committee, which of course the noble Lord knows about? He knows that it consists of an expert body looking at how the law should be changed in order to obtain improvements. The noble Lord, Lord Hart, in his very helpful intervention, pointed out that significant improvements can be made in planning matters.
The noble and learned Lord, Lord Mackay, and the noble Lord, Lord Horam, mentioned the problems that exist in judicial review. I am certainly not suggesting that it would not be preferable if consideration were given to adopting improvements where they can be made. However, I still suggest that the best and only way to bring about real improvement is through the sort of process that, at the behest of the noble and learned Lord, Lord Mackay, I undertook in regard to civil procedure generally, including looking at judicial review. The fact is that you cannot do these things in the piecemeal way that the Government are seeking to do in these clauses. If you do, the result will be that you inhibit judges’ ability to carry forward what they have done so far, not perfectly but to the best of their ability.
Perhaps I may give one more example in relation to declarations which the Minister might want to consider. There are cases of judicial review where a matter comes before the court and it is at that stage or during the course of the proceedings that it is accepted that a particular result should be produced. None the less—and I should add, so as to make Clause 64 relevant, despite the fact that the applicant will receive no benefit—it is still thought by the court that it is in the public interest not only to give a judgment but to grant a declaration. That can now happen.
There are also cases where the court now can be asked to make a future declaration in order to clarify the law. The declaration is a remedy which is emerging to its full extent in this jurisdiction, and there are cases where other steps can be taken that are in the interests of good administration, the interests of the rule of law and the interests of justice. I repeat: it is not that this cannot be done, but this is not the way to improve the system of judicial review.
As the Committee will know, Lord Diplock was not only a Member of this House but a jurist of the highest calibre. He made the boast, of which the judiciary is very proud, that the improvements made in judicial review were the finest things to happen in his judicial lifetime with regard to protecting the rights of the citizen. Once we start legislating in the way of Clause 64, the intent of which is to prevent an exercise of discretion in this area, we fundamentally change judicial review. It is not just something superficial; we would be saying that the judges’ discretion should be curtailed. The Government must think about whether that will really benefit the application of this remedy in this situation. I suggest that it would lead to just the satellite litigation that the Minister wishes to avoid.
Those who have spoken in this debate have, in many cases, great practical experience of judicial review as it is. They see its shortcomings and are all in favour of tackling them; but, unfortunately, that will not be achieved by Clause 64 as it is drafted. I do not believe that the Minister thinks that adopting some of these amendments would undermine what the Government say they are trying to achieve with the provision. Perhaps I may leave the matter in this way: we reserve the right on Report to challenge this provision and to say that it should not be part of the Bill, or that it should be amended in the way proposed. At this stage, however, I will not divide the Committee.
I am not entirely clear about the Minister’s position in relation to the process. Assuming that the highly likely test—indeed, any test under the present arrangements—is retained, it would presumably need to be the subject of the application for permission. The Minister is nodding. Will the applicant not therefore have to make a case at that stage? That is presumably the whole point of applying for permission. In circumstances where legal aid is no longer available for those who do not have the means, does that not place a heavy burden on an applicant in a way that the inevitable—that is the word he used—test would not do at that crucial stage?
An applicant now may fail at the permission stage if the outcome would be inevitable, given the putative departure from lawfulness on the part of the public authority. It is precisely the same calculation that an applicant has to make whether the test is inevitable or highly likely, that the result would be the same. Both are directed at whether there is essentially a technical departure with no real substance. As I said, the only difference is whether the matter is a very low or a slightly higher bar. The position is that all claimants in any form of litigation will have to consider the real merits of their case and decide whether it is worth pursuing.
Would the mover of the amendment confirm that he is seeking leave to withdraw it?
Amendment 70 withdrawn.
Amendments 70A to 73E not moved.
Clause 64 agreed.
Clause 65: Provision of information about financial resources
73F: Clause 65, page 66, line 9, leave out from “specified” to end of line 10 and insert “by the Secretary of State in regulations”
My Lords, the amendments in this group essentially stem from the third report of the Delegated Powers and Regulatory Reform Committee, published on 11 July. They deal with the Bill’s provisions in relation to the requirements on applicants for judicial review to disclose information about their financial resources or, critically, those of third parties—that is to say, someone who, under Clause 66(3), is identified by such information as,
“providing financial support for the purposes of the proceedings or”—
and in my submission, this is deeply worrying—
“likely or able to do so”.
In its report, which dealt with a number of other parts of the Bill, the committee looked in particular at the question of information about resources contained in Clauses 65, 66 and 68. It stated:
“Clause 66(2) provides that the High Court, the Upper Tribunal or the Court of Appeal must, when determining costs … have regard to information specified in subsection (2)”.
The committee also states:
“Subsection (3) also requires the court to consider whether to order costs to be paid by a person who is not a party to the proceedings but who is identified in such information as someone who is (or who is likely, or is able) to provide financial support”.
The information about financing the proceedings will be provided in accordance with the existing legislation applying to the courts and the tribunals.
The committee goes on to say that the Senior Courts Act 1981 would be amended by Clause 65(1),
“to require an applicant to a court for leave to apply for judicial review to provide any information … as is specified in rules of court”.
That may include information of the kind mentioned in the subsection to which I referred—and, indeed, other subsections. Clause 65 goes on to specify that that also includes information about resources likely to be available to an applicant, which is understandable, and then deals with the position of body corporates and their members.
Of course, tribunal procedural rules are made under the Civil Procedure Act. They are made not by Ministers but by the rules committee. The problem with that is that they must be allowed by the Lord Chancellor and then are subject to parliamentary scrutiny by way of the negative procedure. Conventionally, it sounds as if the negative procedure would apply and we in this House are accustomed—perhaps too accustomed—to dealing with matters by way of the negative procedure.
Even assuming that that was satisfactory, it is not as simple as that, and I would argue that in a matter affecting judicial review, we should in any event be looking to the affirmative procedure and not the negative procedure. But even the negative procedure as laid down is not quite as open to the influence of the rules committee as one might think. The 1997 Act enables the Lord Chancellor to give notice to the rules committee that,
“he thinks it expedient for the rules to include provision that would achieve a purpose specified in the notice”.
Section 3A(2), the following subsection of the 1997 Act, states:
“The Committee must make such Rules as it considers necessary to achieve the specified purpose”.
In other words, the Lord Chancellor’s purpose has to be implemented by the rules committee. We are in a position where, ultimately, to use a commonplace metaphor, the shots are all the Lord Chancellor’s. He calls the shots via the rules committee. Therefore, there is no independent role for the rules committee. A negative procedure puts enormous powers in the hands of the Lord Chancellor.
I hope that later we will discuss the details of Clauses 65 to 68 and the potential difficulties that they occasion. Essentially, the point of these amendments is to look at the procedure which would be involved. The issue is one of effective parliamentary oversight over the group of tendentious changes that the Bill proposes in terms of JR. The Delegated Powers Committee declared that it found it,
“inappropriate that the nature of the information to be required under … the Senior Courts Act 1981 and … the Tribunals, Courts and Enforcement Act 2007, and under clauses 66”,
which we touched on with this amendment, “and 68(4)”, to which we will come later,
“is to be specified in rules of court subject only to the negative procedure. We consider that, in so far as such information cannot be specified in the Bill itself, it should be specified in a statutory instrument subject to the affirmative procedure”.
I hope that the Minister will give us satisfaction on that account because the proposals we will discuss are very far reaching.
The notion that an applicant would have to disclose who is supporting an application has far-reaching implications, particularly with the use of the phrase “likely to support”—presumably in a financial way. How that could be judged at the outset strikes me as extremely difficult. What does it mean for any member of the kind of organisations to which I referred earlier—that large group of left-wing voluntary organisations—that might be thought to be backing judicial review in the eyes of the Lord Chancellor, if not the Minister? How might they be affected?
I suspect that most Members of your Lordships’ House are involved with a wide range of voluntary organisations. I declare my interests in the register: I am president of Age UK in Newcastle. I belong to many other organisations and I am sure that many of your Lordships are in exactly the same position. Are our means to be taken into account in the event that there is a challenge by one of those highly reputable organisations to a governmental decision? That would appear to be the thrust of the Bill’s proposals in that respect. Or are family members implicitly thought to be supporting an application by another family member? Are their means, potentially, to be taken into account? Ultimately, an order might be made against them. These serious questions remain to be answered. We may not have too much of an answer at this stage but we will need answers when we move on to consideration of those clauses.
There is a point in some of the concerns expressed about corporate involvement. The Lord Chancellor—for once, I almost do not blame him for something—has taken exception to the way in which the Richard III case was mounted. I have to declare an historical interest because at one time I was a member of the Richard III Society and I am very interested in Richard III. Although I was born in Leicester, I very much regret the decision that he should be interred there rather than in York, but that is another matter.
However, what appeared in that case was a bit of sleight of hand. In any event, I thought that the application was ludicrous, although I sympathised with its objectives. It appeared that a shell company effectively was set up with no assets. I can see some merit in looking at that kind of situation, but that is well beyond the normal run of cases which would be caught by the clauses that we will subsequently consider, and by the procedure outlined in Clause 65.
I hope that the Minister can give us some assurances about this. It is a matter of great concern substantively and procedurally to organisations outside. Even though, as I have pointed out, a very small minority of cases of judicial review are brought by such organisations, they tend to be matters of great public significance. To use a phrase which is becoming a bit of a cliché, there is a real danger of the chilling effect. It would be more chilling if the whole process was to be effected through secondary legislation at the behest of any Lord Chancellor on the basis that the rules committee has no option but to implement the Lord Chancellor’s wishes, which would be subject to the negative procedure, which, as we all know, is pretty nominal in both Houses—especially in the other place but frankly also here.
There is ample scope for the Government to react in a constructive way to the concerns of the committee. I hope that the Minister will give us some assurances in that respect, otherwise we certainly will have to return to that matter on Report, as we may have to after we have discussed further Clauses 66 to 68. I beg to move.
My Lords, I have not proposed any amendments to Clause 65, but I fully support what the noble Lord, Lord Beecham, has said in seeking to implement the recommendations of the Delegated Powers and Regulatory Reform Committee, on which I sit, which recommended that rules of court that sought to implement the proposals of Clause 65 should be made by affirmative resolution.
On the general thrust of this clause, I regard it as entirely unjust for information to be required from any possible supporter of a judicial review application before the permission stage. It is that that Clause 65 would require. It would impose, in public law cases brought by the citizen to hold the Executive to account, a deterrent requirement that applies to no other English litigation. It has never been thought right to restrict access to the courts in this way, and I would suggest that it is particularly wrong to do so in public law cases.
I regret that I see this clause as no more than a threat. It seems to me to be calculated, whether intentionally or not, to have the effect of stifling applications for judicial review. Any supporter of such an application is to be subjected, before the application is brought, to a requirement to disclose all his financial resources, their nature and extent. That requirement is bound to be a significant deterrent to anyone with any means who is minded to support an application for judicial review. That so-called chilling effect I regard as reason enough for the Government to withdraw this clause.
I take as an example the relatively commonplace scenario of a group of residents in a village or a group of parents at a school who wish to challenge a decision of the local authority concerning services in their village or the closure of their school. Inevitably, some residents and some parents will be wealthier than others. The combined effect of Clauses 65 and 66 is likely to be to prevent the wealthier residents or parents from supporting the application for fear that they will be doomed to meet the lion’s share of any costs order made against the applicants if the judicial review application is not successful. That is likely to mean, in turn, that many meritorious applications for judicial review will not even reach the permission stage, let alone secure a determination, for want of financial support.
For that reason, Clause 65 is wrong in principle and, together with Clause 66, it represents a real fetter on the judicial review process. Clause 66 needs wholesale amendment, to which I will return in the next group. It is the case that the courts already have power to require information as to who is funding applications at the stage at which a costs application is made. That is the appropriate stage for that inquiry. Clause 66 needs amendment to see that that principle is preserved. But confining myself to Clause 65, I suggest that the idea that judicial applications should be choked off before the permission stage is entirely wrong.
My Lords, I wish to add my voice to that of the noble Lord, Lord Beecham. Under these provisions, judicial review claimants will have to provide information about the financing of their claim before it can proceed. The court must take that into account and, if someone has given financial support, it must consider whether to make a costs order against them.
I believe that this will hit the poorest claimants the hardest. If they cannot get legal aid, they will need third-party support to bring a claim, whether that be a family, a friend, charities or lawyers who work pro bono. But if their supporters know that they could be liable for costs, these sources will dry up. In fact, the proposals will potentially have a devastating effect on the most vulnerable members of our society, who after all, are the poorest—those who stand to lose the most if access to judicial review is severely curtailed.
I would like to bring to your Lordships’ attention two ground-breaking cases that I believe would never have taken place should this measure come into force. One is the Supreme Court’s ruling that three vulnerable individuals had been unlawfully deprived of their liberty under the Mental Capacity Act. They were poor and had little support, but there was just enough from charities, friends and families to take their case to court, and the Supreme Court ruled accordingly.
The other case was the decision that a blanket ban on manual lifting and handling deprived two severely disabled sisters of family life. This was deemed to be unlawful because of this case. I remember that case very well. I was working as chair of the Social Care Institute for Excellence. I was particularly concerned about the local authority blanket ban on lifting and handling, which potentially meant that many disabled people would have to go into residential care because carers were no longer physically able to lift and manually handle them when they were unable to use a hoist. This case not only gave the sisters the liberty to stay at home with their families but also affected thousands of other disabled people, who could potentially have been deprived of their liberty.
I know that these two cases would not have taken place without the support of charities, families and friends. If people feel that they are liable to costs in any way, even if there is a slight threat, they will not proceed, and these cases would not be heard and many of us would be deprived of the liberties that are so vital to our access to justice.
My Lords, it is unusual for the Chief Whip to intervene at this moment, just before the Minister responds to this debate. I do so with prior agreement in the usual channels that this might be a convenient point for me to move formally, in a moment, that the House resume and that we take the Question for Short Debate in the name of the noble Baroness, Lady Whitaker. The procedure will then be that, as we return at the end of the QSD, I will make a short business statement in which I will explain why the Minister will then respond to this debate and we will then be able to proceed to the advertised business of the debate in the name of the noble Baroness, Lady Boothroyd.
I beg to move that the debate on Amendment 73F be adjourned.
House resumed. Committee to begin again not before 7.58 pm.
Architecture and the Built Environment
Question for Short Debate
My Lords, I declare an interest as honorary fellow of the Royal Institute of British Architects and vice-chair of the All-Party Parliamentary Group on Design and Innovation. The United Kingdom is very lucky to have Sir Terry Farrell’s magisterial Review of Architecture and the Built Environment at the very moment when we have a crisis that requires a very large number of houses to be built fast; when we have pressure to question the tall towers of London; when our undoubted national talent in architecture is rarely matched by equal calibre in planning; and when our citizens, at local level, have the new responsibility of developing their own neighbourhood plans.
The intellectual cogency of Sir Terry’s review has impeccable authority not only because of his own distinction, but because of the breadth of its consultation among experts, representative organisations and lay people—and it has some very nice diagrams, intelligible even to the non-expert.
What problem was it set to address? Those of us who have been depressed by the meagre and dismal quality of some recent public housing and have feared a return to the disasters of the 1960s and 1970s might have thought that reason enough, but in his preface Sir Terry also talks about the increase of urbanisation, the onward march of digital technology and the challenge of sustainability. The Minister, Mr Ed Vaizey, who is much to be commended for having commissioned it, reflects in his foreword to the review on the,
“critical importance of architecture and design in all aspects of our lives”.
The profound impact of our built environment on the way we live our lives needs to be better understood.
In effect, we would be missing an extraordinary opportunity if we did not get the systems and culture that create good and sustainable place-making right for our time now, and we would do irreparable damage to the fabric of our communities if we missed that opportunity. Our systems and culture have not got it right, although there are examples of great achievement here and there. That is what this review sets out to tackle.
There is a large number of detailed conclusions and recommendations, which I hope all those responsible for planning decisions will study, but they fall into simple broad categories. Interestingly, education comes first. The recommendations travel from ensuring that children at school understand the importance of the built environment to equipping architects and all those involved in planning decisions with the skills to engage the public in making sound decisions—and to being better able to make them themselves. This leads naturally on to ensuring quality, including restoring the profession of planning to its rightful high place, making space for design in infrastructure decisions, and the role of industry and public procurement. There follows an imaginative section on the part played by our cultural heritage, and another on economic benefit.
Through all these sections, several cross-cutting themes run: there must be better understanding of what place-based planning and design is really about; better connectedness between all the institutional stakeholders; better public engagement through education and outreach; a sustainable and low-carbon future for our built environment; and a commitment to improving the everyday built environment—to “making the ordinary better”.
In Sir Terry’s conclusion, an overall built environment policy that can rest outside government is proposed, with an independent PLACE leadership council. PLACE is the acronym for its constituent parts—planning, landscape, architecture, conservation and engineering. There should be a government-appointed chief architect to sit alongside the current chief planner and the chief construction adviser on the council. So it has a broad sweep, based on a very detailed analysis, with clear recommendations. I strongly support all these.
In the time permitted, I just want to pick out a few of the more detailed proposals. From the education section, I was particularly taken by the idea that planning committee members and highway engineers, among others, should be trained in design literacy, with the dedicated commitment of the professionals concerned. For too long we have suffered cities and housing estates made fit for the motor car and thereby also made polluted, dangerous and ugly for people to walk in and children to play in. I am also a fan of proactive planning, as recommended in the review, and have long admired its results in the Netherlands and in Sweden, where there is some of the most varied and attractive public housing in Europe. This would really only work, again as the review says, if design reviews were more widely available, much more participative and not just for new applications, but, say, to revive a high street. The plea for government leadership in explicitly valuing the long-term benefit of well designed places, as well as setting up new institutions to carry forward these values, is well made. What is the Minister’s response to this?
I had rather hoped for a bit of detail on space standards, so important in lifting the quality of public housing in the days of Parker Morris and honoured now only by the Mayor of London; and for post-occupancy reviews of new-build housing by the people who live there, but the frameworks proposed by the Farrell review could easily welcome such features.
In conclusion, to implement this review would transform those parts of the UK that most need it. It would harness our undoubted talents in building and design for the benefit of all of us, rather than the fortunate few. Many of us are proud to live in Britain because of its tolerance, humanity, the beauty of the landscape and our civic energy and conscience. Would it not be good if we were as proud of our built environment and the national well-being that that would create, so clear in some of our places, so lacking in others? What does the Minister say to the recommendations of the Farrell report?
My Lords, we are all very much in debt to Sir Terry, but we are also in debt to the noble Baroness, Lady Whitaker, for drawing this important report to our attention and securing this all too brief debate.
When I wake up in the morning at home in Lincoln, I look to the front, to one of the most glorious buildings in Europe. But if I go to the top bedroom and look down the hill, I see some of the worst excrescences of the 1960s and 1970s. Round the Brayford Pool, where the university has developed wonderfully, some of the buildings are, frankly, deeply disappointing. They are on the site of wonderful Victorian warehouses that would have made the most marvellous student accommodation.
I will talk very briefly about the heritage aspect of this important report. I remember over 40 years ago when I first became involved in the heritage movement those marvellous words of Sir John Betjeman, who galvanised people:
“Goodbye to old Bath! We who loved you are sorry.
They’re carting you off by developer’s lorry”.
Of course, it was his stinging verse that helped to reverse that trend. We need to be conscious of the enormous value of our historic built environment. We do not want a repetition of the tearing down of the terraces of Liverpool, the rape of Worcester and Gloucester and the despoliation of the lower town in Lincoln 40 or 50 years ago.
What I hope we can take from this report, among other things, is the message that it is often still better to adopt and adapt than to tear down. There is a great deal to be said for trying to get life back into our cities. Where there is life, there is less crime. So much could be done to adapt and build over the shop, as it were. So much could be done to bring well designed new buildings side by side with adapted older buildings to give pulsating life to our towns and cities.
It is to this that Sir Terry’s report points us. He has sections on the economic benefit of heritage. He has sections on the importance of our historic built environment. If in the few minutes that each of us has at our disposal tonight we could help to underline some of the messages of this seminal report, the noble Baroness will indeed have performed a signal service.
My Lords, I also thank my noble friend Lady Whitaker for securing this important debate, and Mr Ed Davey, and Sir Terry Farrell and his team for an excellent and ground-breaking report. If it was implemented, it could provide a real cultural change in the way in which we live, and approach our communities, towns and houses.
There are many big ideas in the report. One of the biggest is the embedding of design and place-making in our children’s education. If that was taken up and implemented, it would have an enormous impact on future generations. The concept of place institutions and urban rooms is another big idea. A national conversation between architects, planners, local councils and housing professionals, along with the communities, on a regular, systematic basis is an excellent idea, which will have enormous benefits if implemented.
There are many good ideas in the report, but I want to spend my time on the issue of implementation. That is very important. Without it, the report may as well not have been written, like many similar reports in the past. I understand that the Government will be expected to play their part. It will be interesting tonight to hear what the Minister has to say in that respect. I see in the conclusion the comments about Sir Terry keeping track on what is happening and having regular meetings with Ministers. Sadly, I think that that part of the conclusion is a big hole in the report. It is nowhere near enough.
In its conclusion the report needs a huge commitment from the profession, the big-name architects and others. They need to say that they will make this work. That is what we should be looking for. They need to say that they will fund a not-for-profit organisation—let us call it the “Centre of Place”. This will have the stamp and resources to fund and fulfil the mission of this report. It should be a 10-year-plan.
I expect the Government to take a role but I do not expect them to carry the full responsibility. I look to the profession. This report will not happen unless it lives its own prescription—in other words, from the bottom up. We have heard in these debates over the years names from the past, such as Howard Parker and Unwin Hollanby, who gave without asking for return, who changed the face of architecture and the built environment in our nation and I vote that Sir Terry Farrell’s name eventually goes on this list.
My Lords, I warmly endorse the case made by the noble Baroness, Lady Whitaker, and share her enthusiasm for this review. I am so supportive of the general thrust of the analysis and recommendations that I fear that I may be thought unduly critical in expressing a very sincere warning about one conclusion and the associated recommendations.
Conclusion 1B3 says that decision-makers should receive training in design literacy. What follows is full of good intentions but we all know what happens to good intentions. From my experience in the 1960s and 1970s, as the vice-chair of a planning committee, and when I was working for and with architects, and especially as a senior member of the RIBA staff, I am filled with alarm by this recommendation.
A little knowledge is a dangerous thing. Who is to undertake this training? It is an oddity that councillors, faced with the subjective advice of a fire safety officer or a highway engineer, will invariably bow to the superior judgment. Given careful guidance by an architect, drawing on long training, expertise and experience of three-dimensional design, that same committee will treat it as if it is the subjective result of personal taste.
We are all amateur architects. At an individual level we would never trust our teeth to a farrier or our appendix to a barber; but individual buildings and their impact on the built environment are daily left to the tender mercies of the unqualified. I simply do not understand how this recommendation can be made to work to the benefit of the environment and the wider community. Given that about 50% of the top-tier local authorities in the country do not even employ a chief officer architect today, what quality of training can we expect and what notice will the trainees take of it anyway?
In those circumstances we must look carefully at the pattern of employment of qualified architects. Since the 1980s the proportion of architects in the public sector has dropped from 63% to 11%. I am glad to say that unitary authorities have managed to reintegrate some of the skills that are necessary, but all too often, where there are two tiers, the planning profession is split and there are no architect-planners left. I return to my original warning and question. What training in design literacy will take place? That is surely no substitute for appropriately qualified architectural advice.
I am very strongly in support of this review, not least because it makes congratulatory reference to the “long life, loose fit, low energy” project that I headed at the RIBA all those years ago. I am bound to be in support. Yet I wonder whether it has touched on a really important issue and shied away from an appropriate response. While I am wholly supportive of the localism agenda, I must question whether local authorities which have no such architectural expertise at a senior officer level in house and not even a department on permanent call should continue to be allowed to exercise the full range of plan-making and development-control responsibilities.
My Lords, I am most grateful to the noble Baroness, Lady Whitaker, for giving us this opportunity, and of course to Sir Terry and his team for an excellent piece of work.
My interests as a chartered surveyor and my links with the parish and town council movement, and therefore with localism, are well known. I like the suggestion of working better with what we have rather than always trying to invent something new. That applies to the way in which central government, departments and local authorities run their affairs and in which the professions respond, as well as to the philosophy of building reuse as opposed to endless redevelopment, referred to by the noble Lord, Lord Cormack.
A sense of place is as old as human settled habitation. Yet the report rightly points out how poorly we educate ourselves on the practical implications of this. It is not just about professions and procurers being ignorant of the principles of design, but also—to blow my own trumpet a bit—about being insufficiently apprised of concepts of valuation, in whole life economic and energy-accounting terms. Who can blame municipal planning officers or their councillors for not reflecting these when the process of training that I went through and regarded as holistic has now become modular and fragmented, with endless post-qualification accreditation now required? We risk incoherence and linguistic silos worthy of the Tower of Babel.
Modern buildings and layouts often have too little of that slack in design that made old mill buildings capable of being re-engineered into quality homes and wharfsides into modern business centres. I would like to comment particularly on the question posed in the review as to why good design is not better reflected in property valuation. I am a property valuer. The same question has often been asked about energy-efficient environments and was asked of the All-Party Parliamentary Group on Excellence in the Built Environment also. As a valuer I understand where location, design and market sentiment coincide. Values reflect these elements but not immediately or in prospect.
Property valuation, especially for secured lending purposes, is heavily regulated. It necessarily follows market evidence and extrapolates from that to arrive at opinions. As such, its basis is inherently dated. It is both extremely unwise and professionally improper to speculate forwards in valuation. There are heavy liabilities for getting it wrong, due partly to the stance of lenders and partly to the legal arts of allocating risks and responsibilities. So projects without evidence of future market effect frequently get a raw deal.
Tenants may not be as choosy as one might hope, and landlord investors may be more interested in returns and bank covenants than in build design, quality and cost of occupation, sad though that may be. It is in only the private owner-occupied sector that you find the maximum synergy, and even then not always. However, tenants and investors make markets, and if they do not value excellence in design and efficiency, it is difficult for valuers, who strive to interpret their actions, to do so—even if their estate agency colleagues can afford to be rather more bullish.
My Lords, it is a very important report, and I am very grateful to my noble friend for securing the debate and for introducing it so comprehensively.
The unifying and really big idea in the report, which has not been provided with such clarity or meaning before, is about what constitutes the elements of good places and good place-making. What makes the argument in the report compelling is not least that it presents a view of planning which is potentially creative, humane, connective and dynamic—somewhat the opposite to the constrained and rather mean-spirited version that we have had in recent years, which is focused on development control, is seen to be burdensome and has been unfairly blamed for failure, notably to deal with housing supply. I suggest that those failures have their roots in the economic and social challenges which show up the clear failure of policy on place-making and regeneration as a whole.
I am inclined not just to welcome the report but to say, “Amen: at last a different vision. A prospect for the sort of change that so many people who care about this country and what it feels and looks like have wanted for a long time”. In particular, the report makes clear a positive and integrated version of place-making, in which you indeed need planning, landscape, architecture, conservation and engineering working together across disciplines. We have never needed such a powerful vision more urgently than we do now. As a country, we need to plan on a scale which has simply eluded us so far. We need to build new power stations, green energy sites, gas storage facilities, reservoirs, airports, railways and towns. That all requires of us an approach to spatial planning, integrated labour markets, environmental sensitivity and climate change. We need to plan for food, energy and climate security. At the same time, as the noble Lord, Lord Cormack, made so clear, we need to conserve and work with the character of what makes this country so beautiful and different: the spectacular heritage of the everyday and everywhere.
To do all that means accepting the second definition in the Farrell report: that place is character. It involves politics, life, advocacy, community and the environment—elements which bring together not just the professionals but the whole community. Fundamental to that is expanding and sharing knowledge and the need to learn the constituent elements of place-making from the primary school to, yes, the planning committee. I do not agree with the argument that the noble Lord, Lord Tyler, made. I think that there is a lot we can do to assist planning committees of elected officials to understand some of the basic criteria that go into making good decisions.
We also need to inspire a new and energetic generation of place-makers drawn widely from different disciplines who can be taught in different ways by different people—not least, to develop a national habit of design. I have reservations about detail and implementation. For example, although I applaud the observation that conservation and development are not either/or, I do not think that the answer lies in bringing English Heritage and the CABE-Design Council into a single organisation. They deal with different criteria, which are often contestable, of development.
I am concerned about a few missing realities, particularly the serious impact of the loss of specialist planners and architects and the continuing uncertainties in the planning system. I hope that we will have the opportunity to debate the report at greater length. I hope that the Minister will say tonight that it is irresistible and implementable.
My Lords, in my three minutes, I shall touch on just two themes from this excellent and complex report. The first is well-being. It is some years since David Cameron said in a speech that,
“it’s time we focused not just on GDP but on GWB—general wellbeing”.
He understood that economic growth is not an end; it is a means to lives of well-being. That, of course, was understood by the pioneers of planning in this country—for example, those who were responsible for the garden cities movement which, after some hesitation, I think that the Government are again embracing.
Sir Terry Farrell and his distinguished panel want planning inspired by vision, not snagged in process; that is proactive rather than reactive; that is collaborative rather than adversarial. The National Planning Policy Framework touches on a crucial point when it speaks of,
“health, social and cultural wellbeing”,
but it fails to assert that the promotion of well-being should be the overarching objective of the planning system. I am proud to say, however, that the Norwich and Norfolk plan—that is where I live—declares that:
“All development will be expected to maintain or enhance the quality of life and the well being of communities”.
In that spirit, Farrell seeks to broaden design review into a more holistic place-shaping strategy. We need planners to work with health and well-being boards and other service providers. We need planners fully engaging with communities, and confidently and naturally integrating the heritage with the new. If we have planning with that kind of vision, instead of the crises of housing, floods and energy supply and the negativism and resentment about the planning system that we have at the moment, we would have a planning system of vision and ambition that worked towards creating cohesive and confident communities.
The second theme is education. Farrell wants decision-makers—for example, members of planning committees—to be trained in design literacy. I, too, say to the noble Lord, Lord Tyler, that that is a reasonable challenge. At the minimum, we want planners who know how to read a plan. Just as it is accepted that elected members need to be trained in certain legal and financial skills, so, surely, they ought to be in planning skills. I believe that could be done.
Farrell calls for a multidisciplinary common foundation year for the formation of all built environment professionals: planners, architects, landscapers, conservationists, developers, surveyors, engineers and builders. He wants more routes to qualification. That is surely an idea whose time has come. Ministers should endorse it and professional and academic leaders should get on with it. He wants the public to be better educated—of course, they will need to be if they are to rise to the challenge and opportunity of forming neighbourhood plans. He wants more architectural centres, urban rooms, events such as heritage open days, open house and architecture festivals. In schools, he wants teachers to be supported with some training and useful materials, so that we can gradually build an informed public with higher expectations.
We need to develop a culture that demands quality, so that, in the end, there will not be a market for rubbish, for the second-rate buildings that the big retailers and the volume housebuilders inflict on us. We also need to emancipate local government to make room again for civic pride and ambition and to allow councillors to have the power to take decisions in the interests of the well-being of their communities and not be overruled by an inspectorate.
We need leadership at every level and, indispensably, across government. So I await with excitement the response of the noble Lord, Lord Bates.
My Lords, I thank the noble Baroness, Lady Whitaker, for the opportunity to participate in this debate. The report in question, as one led by an architecture practice, emphasises the immediate built environment, which to me feels refreshing. The report rightly stresses the significance of school education, a central aspect of which should be an awareness of the importance of, to cite the review,
“‘your home, your street, your neighbourhood, your town’ where the smallest part, your home and your street, collectively make an enormous contribution to the future of our planet”.
There are many contexts for the study of architecture. The distinction between public and private space is one crucial context not addressed in the report. The first place where the child experiences architecture in a meaningful way must be their home; a good topic, surely, for a child’s first learning about architecture
The reality is that architectural and planning decisions are being made every day around us. My young daughter was aghast when she went to our local playground only to find that many things, including her favourite climbing frame, had disappeared and been replaced by other equipment. She got used to the changes, but she did feel left out of the decision-making process—as, in the wider sense, do many adults about the planning process, and increasingly so, despite the coalition’s long-standing localism agenda. The right as a citizen to have a say in one’s architectural environment should be taught in schools. That should include at least one visit to the local council.
Architecture is clearly not only about history or about famous buildings, important though they are, although the national curriculum would have us learn first at key stage 2 who the so-called great architects are. If this report is to be taken seriously, then we should be looking carefully at the tone and content of the national curriculum.
The report stresses the importance of teaching. It states:
“Architecture, the built environment and an understanding of ‘place’ ... through many different subjects including art and design, geography, history and STEM subjects … rather than as a subject in its own right”.
That multifaceted approach fits with what architecture schools want.
A problem, however, with this approach is that art and design are under increasing threat, particularly in state schools, and less so in independent schools—as is teacher training in these subjects. This is well demonstrated in a new survey by the National Society for Education in Art and Design, which also makes clear that these are things which the Government have in their power to rectify. If these trends continue, success will be made more difficult for some of the good ideas that this report contains, such as the local “urban rooms” that could be used for school outreach work.
I was taken with the idea that councillors should have training in design literacy. At a time when the public have less and less faith that the right planning decisions are being made, this can only be a good thing, although it would mean public money being spent on this, as well as in other areas—despite the plea for volunteering—if this report’s recommendations are to be followed through.
My Lords, we welcome this report and the opportunity to review the built environment. It is more than the buildings, of course; it includes the air in the buildings, the air outside, the water and the landscape. I have always been interested in this. I was a city councillor, dealing not only with pollution and traffic but enabling people to choose the colour of their front door, which was very revolutionary in the early 1970s. It is 15 or 16 years since we had the report from the noble Lord, Lord Rogers. It was a very important report and helped to move London forward in its designs—for example, with the Olympic area in the east part of London.
There is unanimity of feeling about this report, and I would like to introduce a constitutional procedure and ask noble Lords to put up their hands if they want a Select Committee. I would want to put up mine, but I am sure I will not be allowed to do that by the chair. We have never had a Select Committee on this subject. Select Committees are extraordinarily powerful bodies—I have sat on a few myself. It would be the only way to have a genuine cross-cutting move.
There are a number of specific points in the report that are important, one of which is to have a chief architect. Currently, the government chief scientist is doing a tremendous study on cities and buildings. It would be tremendous if there were a chief architect for him to relate to. I have just been lecturing to 1,000 architects, engineers and scientists who are studying the indoor environment and its relation to the surroundings of buildings. There is progress in low-carbon buildings, with low-energy water cooling rather than noisy air conditioning. The important point was that there are many dangers in modern buildings in terms of viruses and microbes. There is the extraordinary statistic that 80% of office workers are dissatisfied with their buildings, according to statistics produced in the United States. One reason they are so dissatisfied is that engineers produce perfectly controlled environments and people want to control their own environments and have a good deal of randomness. I believe in randomness; I studied turbulence.
The other important point in this report is the notion of landscaping. Others have not focused on this so much. The greening of industrial areas, particularly in London but also in other parts of the UK, has made them more beautiful and generated new life. In particular they have improved the health of communities with low incomes and multiple deprivation. Research shows that if you have patches of greenery through a large area there is a lower mortality rate, particularly associated with heatwaves.
The document also referred to public involvement. In a splendid book, which can be found in the Library, on London’s environment—it is the only city in the world that has a book on its environment—there was a review of what Labour did in London through computers and public engagements. There is a notion in the report of an urban room—a strange term, but it involves people in participation. We discussed in a recent Energy Bill that there should be information centres about climate change, energy, ventilation, and so on. I believe that we can bring the energy and architecture people together. We need to have that kind of urban consultation. That is an important part of the point that other noble Lords have been making.
My Lords, reference to the Tower of Babel earlier stimulated me to speak in the gap, and I believe that there is time to do so. Skyscrapers are quite ambiguous—they work in some places but not in others. Why does the Shard work but the Cheesegrater look completely out of place? Maybe that is just my own subjective judgment. Why do some cities that have no need of skyscrapers feel they want them? Some cities in Australia that have all the space they could possibly want still have an instinct to build skyscrapers. It indicates how important the environment is for us. We see no skyscrapers in Paris or Rome. The urban planners there do not allow them.
Buildings have a huge impact on us. We are very conscious in the church that we are responsible for nearly half the great listed buildings in the country. As the noble Lord, Lord Cormack, said, they have an impact on the spirit. Over the years I have had a lot to do with architects in connection with these buildings. I have always thought that the architectural profession in our country is to some extent the poor relation to other professions. A huge amount of work goes into training an architect, but they are not valued, as was mentioned earlier. There is a role for more proactive planning and involvement of architects but I would think it a danger if we thought that all the creativity will be decided in advance. We need a combination of planning and allowing initiative.
I sometimes think that in this country our whole planning regime is too constricted. We need only look at the modern housing that has been built in the last 20 years. I fear that we have the slums of the future. Houses are squashed together because of rules on density that were introduced. They are often on three floors so it is very difficult to put in stair lifts, and so forth. They have very small gardens. Is this really the environment in which people will want to live in the future? Buildings affect the spirit and a planning that involves architects who have a real sensitivity for space and place is important. Alongside that, we should ask people what environment they want to live in rather than decreeing it through some over-rigid planning regimes.
I read the summary of the report this afternoon. It is very important and I hope that the dignity of the architectural profession will be enhanced in the years to come.
My Lords, I congratulate my noble friend Lady Whitaker on securing this important debate. I want to put on record our thanks to her for her tireless commitment to design in the United Kingdom. I thank all speakers who helped to flesh out the report we are discussing today, and to reflect on some of the points made.
I am not sure what the Minister of State at the DCMS thought he was going to get when he commissioned Sir Terry Farrell for his review. As has been mentioned, it was done very quickly—in just under a year. It had a fantastic advisory group. The names of people who joined it are extensive and important. It had a very public and important engagement process with stakeholders, and with 60 recommendations it has brought together a huge number of issues that we need to seriously consider if we are to make progress in the areas that it touches. The results are very comprehensive and they will need some working through and thought before they are implemented, as I hope they will be. There is no doubt at all that this is an important report.
Another aspect that noble Lords have mentioned, and which is important to record, is that people have read the report and liked what they have read—so much so that there is quite a lot of enthusiasm across the trade press about it, and a lot of anticipation about where it might be taken. As the Minister said, he doubts whether a more thorough and wide-ranging exercise to seek out views and ideas has taken place in the sector for several generations. Having said that, it is a bit of pity that more has not been made of the preceding work done between the last Government, and in particular, as mentioned by my noble friend Lord Hunt of Chesterton, the excellent report Towards an Urban Renaissance, written by the urban taskforce, chaired by the noble Lord, Lord Rogers, which was published in 1999 but still bears reading today.
The report has five cross-cutting themes, which people have mentioned. They are important in the sense that they form a new appreciation of the training information required among the population as a whole, in the profession of architecture and planning and among those who have responsibilities for developing buildings, places and spaces. These recommendations, which take up a large proportion of what is there, are important. However, as others have mentioned, too, so is a commitment to making the ordinary better and improving the everyday built environment—an important theme, which we must not lose sight of—plus the requirement, as we must all have these days, to have a sustainable and low-carbon future.
Having said that those are the five main strands of it, it is important that the 60 recommendations, which are more detailed and specific in the traditional sense, are also looked at. Several noble Lords picked out some of them and I do not want to go through them in any detail but, importantly, the strong accent on heritage and the way in which it can truly be a part of the sustainability of modern development was picked up by the noble Lord, Lord Cormack. My noble friend Lord Sawyer talked about the need to think creatively about the place discussions—a sense of trying to bring people together in new configurations so that we can look at places and spaces. That was picked up by my noble friend Lady Andrews and it is also very important. The noble Lord, Lord Tyler, brought up an interesting point about the way in which experience of architecture and its skills have leached out of our public departments. If what he says about the numbers is true, that is really quite shocking. Design literacy will be important but it will not substitute for the professional skills and training that go into architecture, even though the report says that that training might need to be done in a different way.
I was also struck by what my noble friend Lord Sawyer said about implementation; others also touched on this point. At the time the review was launched, the Minister said:
“Good design builds communities, creates quality of life, and makes places better for people to live, work and play in. I want to make sure we’re doing all we can to recognise the importance of architecture and reap the benefits of good design”.
You cannot throw out phrases such as:
“I want to make sure we’re doing all we can”,
without having a suggestion that you might have to follow through on that. It is the fate of many politicians to will the end but not the means. I hope that is not going to be the problem with this report. When he comes to reply, can the Minister confirm whether those aspirations still remain the Government’s intentions here? I say this because in the note accompanying the report, Mr Vaizey says:
“I hope this report is the beginning of a dialogue within the industry about how we can build on our successes and recognise the critical importance of architecture and design in all aspects of our lives”.
That sounds like damning with faint praise. Simply consigning a report to further industry debate is not going to deliver the promised future. This report deserves better than that and I hope that the Minister can reassure us.
My Lords, I, too, congratulate the noble Baroness, Lady Whitaker, on securing this debate and for the inspiring way in which she introduced it to your Lordships’ House this evening. Her words about the importance of understanding better the impact of the built environment on our lives are something which we can all understand, particularly as we are having a debate in such a fine example of an architectural built environment, with heritage as well. I listened with care and interest to the commentary of your Lordships on the debate in response to the Farrell review. To respond initially to the points made in conclusion by the noble Lord, Lord Stevenson, in a sense every debate has to start somewhere. I think everybody is agreed that what Farrell has produced in this review is an excellent platform on which we can then start a continuing dialogue, which must also lead to implementation, as the noble Lord, Lord Sawyer, said.
Britain has some of the best architects in the world but that does not automatically mean that the standards of design in England are as good as they could be. That is why my honourable friend Ed Vaizey invited the renowned architect Sir Terry Farrell to undertake an independent, industry-led and funded review of the way that our built environment is designed and planned. Buildings are important: we spend about 20 hours a day inside them—on certain days, some of us spend even longer. Research shows that the quality of the built environment affects our well-being—a point made by the noble Lord, Lord Howarth. Good design helps build communities, create quality of life and make a place better for the people who live and work there.
I pay tribute to the work of the noble Baroness, Lady Andrews, during her time as chair of English Heritage and when she was a Minister at the DCLG. She spoke about the importance of our heritage. The future remit of English Heritage is being considered in the lead-up to the establishment of Historic England, its replacement body. Heritage was also touched upon by my noble friend Lord Cormack and, in an ecclesiastical setting, by the right reverend Prelate the Bishop of Chester; it is an essential part and a theme which runs through the National Planning Policy Framework document.
My honourable friend Ed Vaizey’s department, the Department for Culture, Media and Sport, is responsible or jointly responsible for policy on the creative industries, which include architecture, and much has been made of the value of that historic environment, including our built heritage, to national and international tourism. All those areas are critically interconnected. The beauty of our landscape clearly affects our tourism.
His officials also work closely with many other government departments whose policy responsibilities influence, or are influenced by, these themes, including the Department for Communities and Local Government, which is responsible for the National Planning Policy Framework, the Department of Energy and Climate Change, the Department for Environment, Food and Rural Affairs and the Department for Transport. Each department is responsible for national policy statements for significant infrastructure. The Department for Business, Innovation and Skills is jointly responsible for a construction strategy towards the industry in the UK and beyond. The Department for Education is also responsible for the Engaging Places initiative run by Open-City.
I want to say a very brief word on behalf of trees. Trees are, of course, not built but planted. However, they are still a very important part of the built environment, providing as they do beauty, shelter and shade. As well as all that, they manage to take in our carbon dioxide and give us back their oxygen, which is an incredible thing to do in terms of our battle against atmospheric pollution. Although this debate is about the built environment, which is very often softened and made bearable by our trees, I hope that in such a debate the role of trees in that environment will be given the highest possible priority. I hope that the Minister agrees with that.
I certainly agree; and more importantly, I think that Sir Terry Farrell would agree too. I recognise the great interest that my noble friend Lord Framlingham, as a horticulturalist, and thanks to his time in forestry, takes in trees. They are a critical part of the environment, and we have talked about how the best design achieves a harmony between our built and natural environments.
Government has another interest in design as the public sector is a significant commissioner of new and refurbished buildings, and government is one of the largest single clients of the construction industry. Indeed, construction output contributes 7% of GDP, and even more if the whole life contribution through planning, design, construction, maintenance, decommissioning and reuse is taken into account. The sector is worth about £110 billion per annum and the public sector accounts for about 41% of that total. Thus the emphasis that government places on design is crucial and sends out a powerful signal to clients. My noble friend Lord Tyler talked about the ability of buildings to depress—as did my noble friend Lord Cormack in reference to one part of Lincoln—as well as to inspire. I know that the noble Lord, Lord Sawyer, will take great pride, as I do, in the great contribution of the Sage music theatre on Tyneside. It has lifted the spirits of an entire region.
The scope of Sir Terry Farrell’s task was huge so he decided early on to harness the knowledge and expertise of others. He gathered an advisory panel of leading figures from the architecture and design industry and took four broad themes. The first was education, the importance of which was referred to by the noble Earl, Lord Clancarty, who dealt with the importance of education and its wider application in architecture not only in terms of design and technology but in mathematics, history and across the piece. The second was design quality. My noble friend Lord Tyler referred to the dangers of the “armchair architect”. Those of us who are addicted to the series “Grand Designs” will enjoy that description of ourselves. The third and fourth are cultural heritage and the economic benefits. In preparing his final report Sir Terry chose to consider a fifth theme, namely the built heritage policy, another matter which has been referred to.
The response to Sir Terry’s call for evidence was extremely positive, producing a range of ideas from differing viewpoints throughout the UK. More than 200 responses were received, including responses from organisations representing more than 370,000 people. Workshops were attended by 192 leading figures from professions including education, planning, sustainability, architecture, landscape, urban design and policy-making. It has always been my honourable friend Ed Vaizey’s intention that this review should be the start of an ongoing dialogue within the architecture and planning industry about how it can build on its success. Sir Terry, his panel and others in the sector remain committed to this principle. The noble Lord, Lord Sawyer, said that it cannot be imposed from the top down by government but needs to be something that is embraced from the bottom up and raises standards across the board.
Sir Terry Farrell has proposed the preparation of a draft manifesto for a PLACE Alliance, perhaps basing it on the model of the Creative Industries Council, and of discussion papers on taking forward recommendations on: proactive planning; digital engagement; urban rooms, which the noble Lord, Lord Hunt, referred to; education; future cities; heritage, and an international forum on architecture. I know that my honourable friend is committed to helping Sir Terry make the connections he needs within government to take specific things forward. For instance, he intends to discuss with the new Minister of State for Housing and Planning—which brings together the two positions in the new role now occupied by my colleague Brandon Lewis in the other place—the Farrell review recommendations on the appointment of a chief architect, a PLACE leadership council and design review panels for infrastructure projects. He will also liaise with UKTI on the Farrell review recommendation on the creation of a global built environment forum. It is a critical reminder of the economic value of architecture. As the noble Earl, Lord Lytton, said, we in this country have sometimes not been able fully to appreciate the value of good design. However, that is certainly not the case overseas. British architects are in demand around the world because of the high quality they bring.
As we have seen, the Farrell review has provided a catalyst for a serious discussion around architecture’s contribution and place within our society. Sir Terry has made some important recommendations and I echo Ed Vaizey’s call to the architecture and planning sector to embrace them. It is an excellent opportunity for the industry to continue its engagement and to shape the future of architecture in this country. It is well placed to do so. The Government also have a role and discussions are taking place on this, led by the Minister for Culture, with colleagues in other departments. There is an understanding, however, that it should continue to be led by the industry and the sector itself. I am sure that the suggestion of a Select Committee, perhaps an ad hoc Select Committee, has not been ignored by the Chairman of Committees. I encourage the noble Baroness to submit an application for wider consideration of that suggestion as part of this review. It should also look at how to champion and promote the best of our design at home and abroad. I look forward to seeing how this progresses and shapes our future.
Arrangement of Business
My Lords, I am grateful to all noble Lords for being so timely in the way they concluded the Question for Short Debate and for the co-operation of the Opposition Front Bench, which will make it possible for the House to avoid adjourning during pleasure. We may now move seamlessly from the Question for Short Debate into the rest of the business for today. Before we resume our consideration of a short part of the Criminal Justice and Courts Bill, I thought that, with the leave of the House, it might be helpful if I make a brief statement regarding how we expect matters to proceed for the remainder of today.
As the Question for Short Debate in the name of the noble Baroness, Lady Whitaker, was scheduled as dinner break business, our procedures require us to return to the Criminal Justice and Courts Bill; that is to say, to go back into Committee after that break. I have discussed this with the noble Baroness, Lady Boothroyd, and explained the consequences, and she is content. There is, however, agreement in the usual channels that proceedings on the Bill should now be extremely brief, as the House will no doubt wish to come to the Motion in the name of the noble Baroness, Lady Boothroyd, as quickly as possible. That is why, just before the Question for Short Debate, most unusually, we adjourned consideration in Committee at almost the end of consideration of Amendment 73F. All that remains now, if no other noble Lord is to intervene—and I think it is the will of the House that they do not intervene—is for the Minister, my noble friend Lord Faulks, to respond to the noble Lord, Lord Beecham, on his lead amendment, and for the noble Lord, Lord Beecham, to address himself to the Minister’s remarks.
We would then, if that were achieved, resume the House. I have agreed with the noble Baroness, Lady Boothroyd, and with the usual channels that once the noble Baroness’s Motion is called and she has spoken to it, we might next expect to hear from one Member from each of the groups in this House, very much in the way that we normally do when tackling a debate where there may not be a speakers list—and this is one of those where there cannot be a speakers list. In order to assist an orderly transition into debate, we might expect to hear, first, from the Conservative Benches, from my noble friend Lord MacGregor; from the opposition Benches, from the noble Baroness, Lady Symons of Vernham Dean; from the Liberal Democrat Benches, from my noble friend Lord Tyler; from the Cross Benches, from the noble Lord, Lord Armstrong; and from the Bishops’ Benches if a Bishop wishes to participate. The expectation is that, after those opening speeches, we will continue to rotate around the House as we have on the previous, rare occasions when such matters have been subject to a debate without a speakers list. We have discussed this at some length and I know that the approach has the support of the noble Baroness, Lady Boothroyd, and of the usual channels, and I hope that it will be for the convenience of the House.
As I said, we adjourned consideration of the Bill at the stage when we were almost concluding Amendment 73F, so I shall shortly propose that the House do now resolve itself into a Committee on the Bill, after which we shall run through the procedural nicety, which I am sure will be very effective, of the Minister responding, and of the response from the noble Lord, Lord Beecham; and at that point we will resume the House, and the clerk will call on the noble Baroness, Lady Boothroyd, to move her Motion.
Criminal Justice and Courts Bill
Committee (4th Day) (Continued)
Relevant documents: 2nd Report from the Constitution Committee, 3rd Report from the Delegated Powers Committee, 14th Report, Session 2013-14, from the Joint Committee on Human Rights
Debate on Amendment 73F resumed.
My Lords, briefly, this group contains amendments to the process for making secondary legislation concerning the provision and use of information about financial resources, the provision of information when seeking a costs capping order, and identifying which cases are “environmental” for the purposes of costs capping orders. As the noble Lord, Lord Beecham, said, these amendments are inspired by the third report of this House’s Delegated Powers and Regulatory Reform Committee, which was published earlier this month, on 11 July.
I hope that I may deal very briefly with these issues. That is not to say that they are not important, and we will deal with them by way of a detailed response when we consider later groups that raise the issues covered by the report. The Government are considering how to proceed with the recommendations in that recent report and will set out how they intend to do so in due course. As such, although I am very grateful to all noble Lords for their amendments, the Government are unable to accept them in advance of full consideration of the committee’s recommendations.
I should, however, take the Committee’s time to discuss the role of the Civil Procedure Rule Committee, which is composed of members of the judiciary, both senior and more junior, and eminent barristers, solicitors and lay representatives. The Delegated Powers and Regulatory Reform Committee’s report proceeds in part on the basis that the existing structure for the making of Civil Procedure Rules, created by the Civil Procedure Act 1997 and amended by the Constitutional Reform Act 2005 pursuant to the principles agreed with the senior judiciary and set out in the concordat on the judiciary-related functions of the Lord Chancellor, does not make the Civil Procedure Rule Committee immune from influence by the Secretary of State, given that he has the power to direct rules to be made to achieve a specified purpose.
I should like to refute any suggestion that the Lord Chancellor improperly interferes with the making of rules, or that the rule-making committees or officeholders in any way play a quiescent role in the making of procedural rules before the making of which they must consult with such persons as they think appropriate. Their experience and expertise is respected entirely and there should be no suggestion of the Government steamrolling or negating the influence of those committees or officeholders on the rules. However, as I have said, the Government are carefully considering the Delegated Powers and Regulatory Reform Committee’s report and intend to make clear their position ahead of Report. In light of that, I hope that the noble Lord will feel able to withdraw his amendment.
Amendment 73F withdrawn.
Leader of the House of Lords
Motion to Regret
That this House welcomes the appointment of Baroness Stowell of Beeston as Leader of the House of Lords, but regrets the decision of the Prime Minister to diminish the standing of the House by failing to make her a full member of the Cabinet; and requests that the Prime Minister reconsiders this decision.
My Lords, we live in dangerous times. The Prime Minister’s demotion of this House in his Cabinet reshuffle challenges its rights, its authority and its long established role and status in the constitution. It breaks the mould of British history. It strikes at the very roots of our bicameral Parliament. The place of this House in the Cabinet of every Prime Minister has never been challenged until now. I never thought I would witness such careless disregard for the way our constitution works. The Prime Minister’s exclusion of the noble Baroness, Lady Stowell, from full Cabinet status has rightly shocked all parts of the House. This Motion calls on him to correct his error without further prevarication.
When the blow fell, the events were somewhat blurred, but the facts are now clear. The fog has been penetrated by our Select Committee on the Constitution, whose report was published only last Thursday. The committee’s findings and conclusions make grim reading, but it is essential reading for every Member of this House. It strips bare the Prime Minister’s pretensions that all is well, that nothing serious has happened and that it will be put right at some time or other. Its report into the status of the Leader of this House and the status of the House itself after the reshuffle sets out exactly what has happened and the likely consequences. The committee states:
“The Leader may often have to give unpalatable advice to ministerial colleagues about the chances of their legislation passing the House, or the time it will take. The Leader may have to block proposals which would clearly not pass the House or would be contrary to its interests. The Leader has to express the House's misgivings to departments about their policies. The Leader has to ensure that questions and correspondence from peers are answered promptly and fully. In such matters the Leader needs authority. While some of that authority can come from tangible things like sitting at the Cabinet table and receiving Cabinet papers, some of it is intangible, such as having full Cabinet status on the same terms as senior ministers in the Commons. Having a member of the House of Lords in the full Cabinet sends an important signal to the rest of Government (ministers and the civil service), and to the House itself, about the status of the House of Lords. If the Leader is no longer a full member of the Cabinet there may be a risk that the views of the House are not fully listened to in the Cabinet”.
What a marvellous report it is.
I have witnessed attempts by successive Governments to ignore the views of Parliament, and I resisted them in both Houses. When the committee says there may be a risk, I can assure the House that there is no maybe about it; it is a dead certainty. That is how government and Whitehall work. The Select Committee’s warnings on the constitutional impact of what has happened are vital. It reminds us that it is a core part of our constitution that Ministers are drawn from the legislature and that the legislature is bicameral. The committee says in two more lines, which I will quote:
“It sits very uneasily with those principles for one House of Parliament to be unrepresented in the full Cabinet”.
I believe the Prime Minister’s actions are absolutely diametrically opposed to those principles. They also shatter the Prime Minister’s pretence that his hands were tied by the Ministerial and Other Salaries Act 1975. Which section of that Act dictated that he promote the Minister for Overseas Development to the Cabinet and demote the Leader of the Lords? Why is the Minister for overseas aid made a Secretary of State with full Cabinet rank and pay while the salary of the Leader of this House and her status are downgraded? The Prime Minister needs reminding that the noble Baroness is responsible for all government business in this House and needs 18 Ministers and 10 Whips to report to and assist her in her duties.
I am beginning to understand why the lack of judgment and ill thought-out decisions coming from Downing Street give cause for concern. Did the Prime Minister really expect the Leader of this House to accept the offer to top up her pay by a subsidy from Conservative Party funds? It was a bizarre proposition. Bravely, the noble Baroness has shrugged off her demotion. I know, and we all know, she will serve the Government loyally, and she will serve this House to the best of her considerable ability. I wish her well. She has already made her mark by saying no to receiving money from outside interests.
The views expressed in last week’s Private Notice Question leave no doubt about the strength of feeling in this House. The noble Lord, Lord MacGregor, whom I hope to hear from later in this debate, has relayed the dismay of his colleagues on the Conservative Benches to the Prime Minister. The Prime Minister’s response, which I think all of us have seen, neither mitigates the offence he has caused nor justifies his action. The flattery in his letter of response is transparent. His excuses are spurious, and his promise to mend the damage depends on his returning to power next year.
The Prime Minister, I am afraid, pays scant attention to his responsibility towards this House. He fails to understand that we are a bicameral Parliament and, as such, that this House should be fully represented at the highest level of government. He has trampled on the constitution. He has discarded the principle of equal pay at the same time, quite frankly. His Cabinet has become the unicameral apex of power in a bicameral Parliament. It will not do. His shuffling this House out of its full status in the Cabinet must be reversed, and it must be done soon. I so move.
My Lords, I wholly share the concern that the noble Baroness, Lady Boothroyd, has raised about the position and status of this House. It was because of that that I went to see the Prime Minister last Monday in my role as chairman of the Association of Conservative Peers, accompanied by my noble friend Lord Cope of Berkeley. I want to make it clear that it was on behalf of the ACP.
I do not share quite the attitude that the noble Baroness takes toward the Prime Minister. There is an issue to be resolved, but I do not think it is quite so fundamental, and I want to suggest how I think it can be resolved. I want to make three points. We had a very positive and constructive meeting with the Prime Minister. As the noble Baroness has said, in the light of our discussion he undertook to write to me, and his letter has been shared, I think, widely in this House and also with the leaders of the other parties.
Some of the points are referred to in the valuable report from the Select Committee on the Constitution of this House published just last week. I congratulate the chairman of the committee, my noble friend Lord Lang of Monkton, on the speed with which his committee worked to dissect and clarify the key issues. I think it is worth quoting in full and putting on the record in Hansard four points which the Prime Minister made to us. First, he said:
“I have the highest regard for the House of Lords and for the vital role it plays in the governance of our country”.
The noble Baroness has tended to dismiss that; I do not. I think he sincerely takes that view. He said, secondly:
“I completely share your view, and the view across the House of Lords, that the House should be properly represented in the Government at the highest level”.
“In particular, I agree that the Leader of the House of Lords should, as a general rule, always be a full member of the Cabinet; unfortunately it was not possible on this occasion, owing to the provisions of the Ministerial and Other Salaries Act 1975”.
Do not worry, I will return to that point. Finally—this is very important, and the noble Baroness well expressed this—
“In the meantime, I want to stress that Baroness Stowell, as Lord Hill’s successor, will in practice play exactly the same very important role that he and his predecessors did in the Government. She will sit at the same place around the Cabinet table, and will have the same full right to speak and contribute to the Cabinet’s business. I will continue to take Lords Business as the second item on the Cabinet’s agenda”.
The Prime Minister says that, as before:
“Baroness Stowell will attend the same internal Downing Street meetings which I hold, including my daily morning meeting”.
I have no doubt whatsoever about the Prime Minister’s sincerity in all of this. I would also add that our concerns on this are about principle and in no way reflect on the current Leader, my noble friend the Leader of the House. She has made a great impression on all parts of the House in her various ministerial posts so far. I am absolutely clear that she will use the powers and positions which the Prime Minister has so clearly outlined to the full extent, whenever it is necessary, on behalf of this House to do so. The concern is not about that; it has been perfectly clear, the noble Baroness made it very clear, and I share it entirely. It is not about the powers or the possibilities open to my noble friend, but about something else. Her role is in no way altered except that she is not a full member of the Cabinet. The concern—and here I agree very much with the noble Baroness—is about the status of the House.
Over my 40 years in Parliament this House has played an increasingly important role in scrutiny of legislation, Select Committee work and so on, making full use of the expertise and experience which exists here. I am deeply committed to that, and this House has played an increasingly important role. The concern is that not having any full member of the Cabinet from the Lords somehow symbolically downgrades the perceptions of our House and the status of the second Chamber. The Select Committee put that very well in the passage from its report which I was going to quote myself, but which I do not need to repeat because the noble Baroness read it out. I totally agree with all that, and the report puts it very well.
My second point is to ask: how has this come about? We are now all much clearer about what the problem is—and it is a problem. The Prime Minister referred to the Ministerial and other Salaries Act 1975, an Act that was put on the statute book long ago. Much has changed since that time. Government has grown, more Secretaries of State have been appointed, we have a coalition—which may have had some impact on the numbers—and the change in the Lord Chancellor removed one automatic seat in the Cabinet from the House of Lords. Therefore much has changed. We now have the rather peculiar issue that relates to the Prime Minister’s decision to make William Hague Leader of the Commons.
Many are perhaps not aware that the last two Leaders of the Commons have not been full members of the Cabinet; I was Leader of the House at one point myself and was certainly a full member of the Cabinet, but they have not been. Understandably, the Prime Minister wanted William Hague to remain as First Secretary of State. That meant that the Prime Minister’s obvious wish to continue to have our Leader as a full member of the Cabinet has been blighted. It seems extraordinary to me that an Act passed so long ago in quite different circumstances is allowed to have that effect. Goodness me—we make much bigger changes to earlier legislation all the time. That leads me to my final point.
The Prime Minister said in his letter to me:
“I want to reassure you, and the whole House, that I see the current situation as a purely temporary one, which I will want to rectify at the earliest opportunity”.
That is a way through. As the Select Committee on the Constitution pointed out—although it guardedly did not call it a recommendation—a simple, short amendment to the 1975 Act could solve the problem, either by specifying that one of the 21 salaries for Cabinet Ministers must be paid to a Member of the House of Lords, or more sensibly, by a marginal increase in the 21 figure. Some will argue that that would look bad in public, because it would be extra expenditure for the Government and the House of Lords to meet. Frankly, that is a ridiculous argument, and I say so as a former Chief Secretary who is passionately in favour of the Government’s many endeavours to reduce the fiscal deficit. However, quite frankly, it is laughable to argue that an increase of £24,000, which this would involve, would be an addition to public expenditure.
I would have thought that this would appeal to all parties and to both Houses. Both would benefit. It does not favour one party—the Labour Government got into some difficulties over this issue and this constraint during their time. It is the best, speedy way out of this difficulty for the Prime Minister and for both Houses, and speaking entirely personally, I so recommend. This issue could be solved, and we could return to the position that there was with the noble Lord, Lord Hill, if that short amendment were made to the 1975 Act as swiftly as possible.
My Lords, I support the Motion so ably moved by the noble Baroness, Lady Boothroyd. I make clear at the outset that I very much support that part of the Motion that welcomes the noble Baroness, Lady Stowell of Beeston, to her new post and new responsibilities. Like so many noble Lords in this House, I am only sorry that she should have been appointed in such a way as to cause so much controversy and, frankly, so much dismay, about the terms on which she has been appointed.
As the noble Baroness, Lady Boothroyd, said, last week the Select Committee on the Constitution published a very clear and concise report on the status of the Leader of your Lordships’ House. As a description of the events around this issue, it sets out a series of decisions and amendments to those decisions that demonstrate the contradictions, the inconsistencies, and the major problems that the terms of this appointment have given rise to.
On 15 July the Prime Minister announced, on Twitter, that the noble Lady, Baroness Stowell, would be the new Leader of the House of Lords,
“and Chancellor of the Duchy of Lancaster”.
Indeed, she is on record in Hansard for that day as the Chancellor of the Duchy of Lancaster. However, the next day, on 16 July, the noble Baroness kissed hands on a different appointment—that of the Lord Privy Seal.
In this reshuffle, No. 10 and others around the Prime Minister were very keen to demonstrate his commitment to having women properly represented in the Government. Many of us welcomed that development. On the very day of her appointment, though, it emerged that the noble Baroness, Lady Stowell, would not be a full member of the Cabinet. Instead, she would be a Minister “attending Cabinet” and not paid a Cabinet Minister's salary. As we are all aware, the noble Lord, Lord Hill, her predecessor, was given the full status of a Cabinet Minister and the full salary that went with it. Clearly, this was an embarrassing setback to the ambition of enhancing women’s position as government Ministers.
In an attempt to mitigate this embarrassment, on the same day, 15 July, the Conservative Party announced that the difference between the salary of a Minister of State and that of a Cabinet Minister would be made up by the Conservative Party. I do not think I was alone in believing that this was not only entirely inappropriate but also unconstitutional for a Minister representing all parties in this House, including the Cross-Benchers. It was also totally inappropriate for a Minister who had accountability to the Crown rather than to the Prime Minister, either as the Chancellor of the Duchy or as Lord Privy Seal, to receive part of their salary from any political party. A week later, that suggestion was withdrawn when on 22 July the Leader said that she would not accept the Conservative Party “top-up” because of her responsibilities to all parts of this House. It was a good, sound decision on her part.
The Prime Minister's letter of 22 July, which the noble Lord, Lord MacGregor has referred to, says that the Leader of the House of Lords should,
“as a general rule, always be a full member of the Cabinet”.
The word “always” cannot be qualified by the words “as a general rule”. Either the Leader of this House should always be a member of the Cabinet, as has been the case, or it is a matter for the Prime Minister's discretion. This Prime Minister has decided that the general rule did not apply but that his discretion did. I fear that in doing so he has set a precedent for future Prime Ministers.
In his letter to the noble Lord, Lord MacGregor, which the noble Lord kindly quoted to us earlier on, the Prime Minister says it was,
“not possible on this occasion”,
to make the noble Baroness Lady Stowell, a full member of the Cabinet,
“owing to the provisions of the Ministerial and Other Salaries Act 1975”.
That Act says there are 21 Cabinet salaries payable, plus the salary of the Lord Chancellor. Apart from the salary to the Lord Chancellor, the Prime Minister himself and the Chancellor of the Exchequer, the Prime Minister may appoint who he wishes to be a Cabinet member. He also has discretion over 19 salaries that could have been awarded to the noble Baroness, the Leader of the House as has been the case since the passing of that Act in 1975. So it was not the case, as the Prime Minister claimed and as quoted by the noble Lord, Lord MacGregor, that the award was,
“not possible on this occasion”;
it was because the Prime Minister chose not to make it. It was his judgment.
There are 21 Cabinet Ministers plus the Lord Chancellor—Ministers who receive a full Cabinet salary and status. There are also 11 Ministers “attending Cabinet”, not in the first rank but doing important jobs and no doubt happy to be around the Cabinet table. It is not, as the noble Lord, Lord MacGregor, said, evidence of highest regard that the noble Baroness is also round the table. Why is she not one of the 21—or 22, with the Lord Chancellor? Why is she one of the 11 second-rankers around that table?
The Companion to the House states that the Leader of the House is a member of the Cabinet. Moreover, and possibly more significantly, Erskine May also describes the Leader of this House as a member of the Cabinet. The Constitution Committee in its excellent report said that there were no examples of any Leader of this House who has not been a