House of Lords
Monday, 15 December 2014.
Prayers—read by the Lord Bishop of Bristol.
Introduction: The Lord Bishop of Southwark
Christopher Thomas James, Lord Bishop of Southwark, was introduced and took the oath, supported by the Archbishop of York and the Bishop of London, and signed an undertaking to abide by the Code of Conduct.
Lord Russell of Liverpool took the oath.
Death of a Member: Lord Knights
NHS: Medical Staff
My Lords, in 2013, the latest year for which figures are available, there were 6,472 doctors working in the NHS—that is 4.4%—who gained their primary medical qualification in Africa and 13,969 nurses on the Nursing and Midwifery Council’s register who trained in Africa. In that same year, 12,203 professional clinically qualified staff working in the NHS—that is 1.8%—held nationality with an African country.
My Lords, I pay tribute to the job that these people do for the National Health Service, but is not the lesson of the Ebola crisis that many of the health services in Africa are seriously underresourced? Can it be justified that not only Britain but other countries in Europe and the Middle East are taking much needed doctors and nurses away from Africa? Could we look at our own training policies to see how that position can be improved?
My noble friend makes a very important point. As he will know, the UK signed the World Health Organization code of practice on the international recruitment of health personnel. My department worked together with the Department for International Development to produce a definitive list of developing countries—based on economic status and the availability of healthcare professionals—that should not be targeted for recruitment. He may like to know that the WHO is planning an assessment of the implementation of that code of practice and is due to report in 2016. However, we are mindful of the point made by my noble friend. Particularly with the Ebola crisis, it is important that we are sensitive to the serious issues that pertain in Sierra Leone in particular.
My Lords, given that, and given the Health Select Committee’s recommendation that although the contribution of overseas staff to the NHS should be celebrated, we should not be dependent on significant flows of trained staff from overseas, does the noble Earl still agree with the decision in 2012 to reduce the number of medical school training places by 2%? Does that not need reviewing?
My Lords, as the noble Lord is aware, we rely on Health Education England to determine the number of training places that the NHS needs going forward, looking at not just the short term but also the medium to long term, informed by the work of the local education and training boards. That is as good a system as we believe we can get. Health Education England is properly funded to do that and we must rely on its expertise.
My Lords, I understand that the NHS in recent years has made it harder to employ people coming from poorer countries in Africa and elsewhere to work here. However the NHS, as the Minister has already stated, has a large number of people working within it from those backgrounds. I have two questions. First, what are the Government doing to aid countries to train more people in their own countries? Secondly, what are the latest figures for the international medical graduate scheme for people coming from Africa training in this country?
I beg your pardon, my Lords. DfID has a number of programmes designed to support the health economies of developing countries. They have been in place for many years. They can take the form of training, not just of doctors but of all healthcare professionals. I am aware that DfID is extremely supportive of those programmes.
My Lords, 10 years ago there were more Malawian doctors working in England than there were in Malawi and the Royal College of Surgeons, working with CBM UK, a disability charity, set up the College of Surgeons of East, Central and Southern Africa. In that time the number of African-trained surgeons has substantially increased through this joint practice. Are other royal colleges following their example in setting up similar projects?
I am not aware of the answer to that question but I can tell my noble friend that the UK has been moving towards self-sufficiency for a number of years. For example, there was a 27% decrease in the number of registrations of non-European Economic Area nurses from April 2010 to March 2014, continuing a longer-term trend. The number of doctors in the NHS with a primary medical qualification from outside the EEA has remained relatively static over the last four years despite the full-time equivalent number of doctors increasing by more than 5% over the same period. I think we can take heart from those figures, mindful, of course, of the need to adhere to the World Health Organization code of practice.
My Lords, I am sure the whole House will join in the sentiments expressed by the noble Lord, Lord Fowler, about the tremendous work that these nurses and doctors do in our NHS. I declare an interest as chairman of Milton Keynes Hospital NHS Foundation Trust. As I am sure the noble Earl is aware, many of the hospitals now are encouraging some of the African nurses to go back and have an opportunity to train the skilled and unskilled nurses who are already in their own countries. Despite the fact that things are obviously very challenging for us here, it is very important that they are able to do that.
I agree with the noble Baroness. It is important to underline that the medical training initiative, which is the means by which we can present an offer to foreign doctors—that is, postgraduate medical specialists—to come to train here, is a fixed-term arrangement for up to two years. It seeks to promote circular migration so that participants in a scheme can return to their home country and apply the skills and knowledge developed during their time in the UK. That is very valuable for those individuals and those countries.
My Lords, during my career as a nurse, I had the privilege of working with nurses from all over the world, including the African continent. They showed enormous compassion and dedication to their work. Does my noble friend feel that it is important that, when these nurses come to England, they are given all the support and training possible so that they reach the high standards that our nurses reach in their training here?
My Lords, I do. My noble friend will be aware that the Nursing and Midwifery Council has established standards which ensure that the quality of the nurses whom we get from overseas is absolutely up to that of home-trained nurses. Support for those nurses while they are in this country is of course an essential ingredient if we are to keep them here for a reasonable length of time.
Higher Education: Financial Sustainability
My Lords, the Government welcome this contribution from the Higher Education Commission and are looking closely at its findings. In fact, the Chancellor, in his Autumn Statement, has already addressed the recommendation on postgraduate education. The UK enjoys a world-renowned reputation for the quality of its universities, and we have protected and enhanced that through our reforms. According to the OECD, we are one of the few nations to have introduced a sustainable system of higher education finance.
The report notes that the overall number of students in higher education in England is actually declining due to very large falls in the numbers of part-time undergraduates, postgraduates and mature students. Does the Minister agree that this reduction in the diversity of our higher education system is a cause for concern, and can she tell the House what plans the Government have to address the situation, particularly when it comes to part-time undergraduates?
My Lords, the figure for accepted entrants as of August 2014 was up by 4% and that for mature students was up by 6%. In terms of postgraduate funding, your Lordships will know that loans of up to £10,000 will be available from 2016-17. Indeed, in 2012 the Government introduced non-means-testing for loans for part-time students of 25% or more of the full-time equivalent.
My Lords, does the Minister not recognise that her original Answer sounded rather like someone sitting in the back of a canoe facing upstream just before going over a very large waterfall? Can she perhaps say something about financial sustainability, which she has not covered very fully? In particular, 45 modern languages schools in British universities closed in recent years on the grounds that they were not financially sustainable. Does that leave the Government calm or worried?
My Lords, I do not recognise the words “canoe”, “upstream” or “waterfall” mentioned in that question. According to the OECD, we are one of the few nations to have introduced a system of sustainable higher education finance. Indeed, our numbers of students are up to record levels at nearly half a million.
My Lords, is there not a triple whammy? The Government are no longer funding higher education; they are funding the debts of students who are attending universities. Students are acquiring debts—the latest figures from the IFS show an average debt of £44,000 per student leaving university. In addition, as we have just heard, universities have lost funding for important courses such as languages. The Government say that there is no imminent pressure on the system. Which way is the Minister facing?
My Lords, we need to bridge the social mobility gap. As the report states, universities will have to face huge cuts in the future. How will the Government ensure that spending on widening access to higher education is not the first place where savings will be found? I declare an interest as the chancellor of the University of Exeter.
My Lords, as someone who has worked in higher education all my life, I was very surprised by the Minister’s response to this report, which is a devastating critique of government policy on higher education. The report shows that it is unsustainable and that commercialism is undermining academic values and it indicates quite clearly that a change of course is absolutely necessary. Can the Minister say what change of course this would be and not just go into defensive mode about it?
My Lords, I do not think I am going into defensive mode. I reiterate the view of the OECD, which is a widely respected body, on the sustainability of higher education finance. Like the noble Earl, Lord Howe, I have forgotten the second part of the question. I remember—since the report was published, as the Chancellor set out in the Autumn Statement, we have in fact announced that postgraduate loan-based funding would be available from 2016. We have addressed some of the concerns within the report.
My Lords, will my noble friend take comfort from the fact that when Mr Blair advanced the policy of “education, education, education”, he did so after the Conservatives had raised participation in higher education to a percentage in the middle 30s after inheriting a figure of 12% from the Labour Party in 1979?
Devolution: Arts and Culture
My Lords, responsibility for arts and culture is devolved within the United Kingdom. Arts Council England works closely with its counterparts in Scotland, Wales and Northern Ireland, and together they share a collective aim of ensuring that arts and culture across the United Kingdom are available to all.
My Lords, does not the Minister believe that, for regions to fund the arts properly, a provision for arts and cultural production—as a major contributor to a region’s cultural identity—should form a significant aspect of devolutionary arrangements? A prime example of much that is now under threat is the Ulster Orchestra, whose future is of concern not only to Northern Ireland but to the UK as a whole.
My Lords, decisions regarding the Ulster Orchestra are, of course, matters for the Northern Ireland Executive. I know that meetings have been held with the Northern Ireland Department of Culture, Arts and Leisure and, indeed, with Belfast City Council. I very much hope that those parties can work together to find solutions, but of course the UK Government have a role to play. That is absolutely why all the creative tax reliefs—there are now five and I hope there will be six, with orchestras under consultation—are going to play a very big part in helping creative industries.
I gather from that response that there may not be total awareness of that fact.
Will the UK Government give positive support to the celebrations, as indeed are the Government of Wales and the Government of Argentina? Does the Minister consider that the Government might look on these cultural links as an opportunity and a context in which to seek to improve the relationship between the United Kingdom and Argentina?
My Lords, culture plays a big part in our relationship with many countries around the world. I am not briefed on whether the UK Government themselves are helping with the Patagonian exchange, but if one goes to Patagonia, there are Welsh-speaking villages and communities there, so it is important that Patagonia is part of our cultural links. I very much support what the noble Lord said.
My Lords, does the Minister recognise that, in the days when local government was treated with respect and enjoyed large freedoms, accountable not to the Treasury but to its own ratepayers, cities thrived and many of them engaged in remarkable patronage of the arts? Unless the Government are willing to allow greater freedoms to cities across the United Kingdom and not just the ones that the Chancellor particularly favours, will not the prospects for funding for the arts outside London be pretty bleak?
My Lords, in fairness I do not think that the prospect for arts funding outside London is bleak. The increase in funding outside London is welcome. The noble Lord mentioned the Chancellor, but the Autumn Statement mentioned government support for £79 million of capital funding towards the construction of a new theatre and exhibition space, Factory, in Manchester, and the Great Exhibition, which is of course across all northern towns. The Government are also supporting the Glasgow School of Art, for example, following the devastating fire there. There are many examples of what is happening around the country.
Following on from the question by my noble friend Lord Howarth, has the Minister read the article in today’s Guardian by Charlotte Higgins about what has happened in Newcastle over recent years as a result of the local authority there seeking to withdraw all its funding from its local arts organisations? Does he agree that with the inexorable move towards greater regional autonomy, it is absolutely essential that the arts and culture are built into the core provision that any local authority should be expected to make available to its citizens?
My Lords, there are many good examples of cities and towns that realise that arts and culture are at the very heart of their opportunity for economic growth. I very much hope that Newcastle will take a different turn, because cities such as Derry/Londonderry, or Hull, which will soon be City of Culture, have recognised that there is an opportunity. I very much encourage Newcastle to think the same.
My Lords, in relation to broadcasting in Wales, will the Minister undertake that the Welsh broadcasting authority, S4C, will be given a special status and strength either by statute or in the new charter for the BBC, which comes into force on 31 December 2016? That would honour the solemn pledge given by the Prime Minister in the heady days following the Scottish independence referendum that Wales would be at the very heart of the devolution settlement.
My Lords, I will reflect on what the noble Lord said. I would want to think about it, but the devolution arrangements that we want to have in place are so that there is local identity and national identity. Welsh language and culture are very important.
Does my noble friend accept that the arts are a unifying force throughout the United Kingdom? Does he also accept that there is considerable unease at the withdrawing of funds from musical education? Nothing is more calculated to bring young people together than a common love of music. This is a cause of real concern.
My Lords, I do not have the figures in front of me but I know that there are robust figures about what the DfE is undertaking in music education, the importance of music education and the opportunities it brings. When I have the figures in front of me I shall speak to my noble friend.
My Lords, the Minister failed to answer the question put by my noble friend Lady Nye on 20 November, which concerned National Lottery funding for the arts and the current unequal impact this has on the arts in the regions. Does the Minister agree with those who argue that National Lottery funding for the arts should be allocated on an equal per capita basis?
Does my noble friend accept that an individual new development in the regions, such as the Lowry in Salford, can have a much wider regenerative effect when it is coupled with, say, the Imperial War Museum of the North and the BBC? The wider regenerative effect of a cluster can be much greater in the regions than in, say, our capital city.
My Lords, again, there are very good examples of where regeneration and the arts run hand in hand. In Northern Ireland, for instance, the creative industries are worth half a billion pounds a year, and there are areas around Belfast cathedral where creative industries are centred, which is very much part of the regeneration of that great city.
Child Sex Abuse Inquiry
My Lords, the Home Secretary takes the appointment of the next chairman extremely seriously. Following the resignation of Fiona Woolf, the Home Secretary has sought the views of survivors’ groups to inform her on the appointment and she will update Parliament in due course.
My Lords, can my noble friend say whether the Government have approached the Lord Chief Justice to see whether a serving judge might be available to chair the inquiry—and, if so, with what result? Can he say what the Government’s position would be if a potential chair made acceptance of appointment conditional on having statutory powers to compel witnesses and disclosure of documents?
I am grateful to my noble friend for that question. With regard to the Home Secretary’s Statement on this matter on 3 November, we have since had 130 applications, some of which have been from serving judges. Therefore, it would be entirely appropriate for the Lord Chief Justice to be consulted on their availability to perform such a task if they were asked. With regard to the statutory footing, my right honourable friend the Home Secretary has said that if the chairman requested that the inquiry should be put on a statutory footing, she would take that into consideration. However, it does not have to be a judge for it to be statutory, because the statutory powers come from the Inquiries Act 2005.
Part of the issue here is that because of a series of announcements and revelations which brought about huge concern, there was a desire to move very quickly to establish the inquiry. The important thing, we recognise now, is to put survivors’ groups, and the confidence of those groups, at the heart of this, which is the reason the Home Secretary has met survivors’ groups three times—on 3, 20 and 25 November—and indeed is meeting them today.
My Lords, while we are discussing who is to be the chairperson for this inquiry—it is important that we get the right person—my concern is to support the victims in the mean time. What assurances can the Minister give about the support that will be provided, because it is not right through the bureaucratic processes to ask these victims what has gone on in their lives while they are being hit by barriers and not being given the right support and recognition of what they have gone through?
My noble friend is absolutely right. I also pay tribute to her work as the Victims’ Commissioner, which she carries out assiduously. Of course more needs to be done to help the victims. We are consulting with the Department of Health to find out what additional help we can provide, and in the interim we will be announcing a further package of £2 million of support for victims’ groups in the ongoing discussions.
We seem to be getting nowhere fast on this one, which is in marked contrast to the successful work done by my noble friend Lord Harris of Haringey on campaigning to close the loopholes on soliciting sexual material from a child—an issue which the Government have at last decided to take on board. Frankly, that they have still failed to find a chairman suggests that suitably qualified candidates are perhaps now being put off by the inevitable trawling through their personal lives, backgrounds and families by the media which the Government’s ineptitude has ensured will now occur. Can the Minister tell us why the Home Office failed to carry out basic background checks on Fiona Woolf, having had the first appointee stand down? Further, while I think the Minister has said that the survivors and victims of abuse are being consulted on the issue of the new chairman, can he say whether the terms of reference and the format of the inquiry are also being discussed with them?
The noble Lord’s latter point is of course central to the discussion with the survivors. They want to have confidence that individuals can be compelled to give evidence and that that evidence will actually be available to them. Perhaps I may say that it is a bit unfortunate for the noble Lord to take that tone in relation to the appointments. Both the people who were appointed to the role of chair are eminently qualified to do the work, but the question mark was over whether they would command the confidence of the survivors’ groups. It became apparent that that was not the case, and that is the reason the Home Secretary is going to the lengths that she is to listen to them now.
My Lords, when consulting with potential candidates for the chair, will the Home Secretary consider the length of time that that person will be available for the inquiry? We must bear in mind the fact that the very nature of the inquiry means that various new issues probably will arise during the course of the panel’s investigations, and they will need to be given proper consideration. She is going to need someone who can be available for really quite a long time.
That was one of the reasons why the panel was set up in its current form for the initial period. It wanted to draw on the excellent work that had been done by Ann Coffey, Alexis Jay and the NSPCC, among others, who had produced literature and evidence. We did not want the panel to reinvent the wheel but rather to get on and make sure that our institutions are sound, that victims’ voices are heard, and that we take action to ensure that these things could not happen again. The emphasis is now on speed. We want to get this done, but obviously the work must be carried out with the confidence of the survivors’ groups.
Keeping and Introduction of Fish (England and River Esk Catchment Area) Regulations 2015
Water Industry (Specified Infrastructure Projects) (English Undertakers) (Amendment) Regulations 2014
Motions to Approve
Single Source Contract Regulations 2014
Motion to Approve
Electricity Capacity (Supplier Payment etc.) Regulations 2014
Motion to Approve
Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2014
Motion to Approve
That the draft regulations laid before the House on 11 November be approved.
Relevant documents: 14th Report from the Joint Committee on Statutory Instruments, 15th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 8 December.
Small Business, Enterprise and Employment Bill
Order of Consideration Motion
That the Bill be committed to a Grand Committee, and that it be an instruction to the Committee that they consider the Bill in the following order:
Clauses 1 to 39, Clauses 71 to 74, Schedule 2, Clauses 75 to 78, Schedule 3, Clauses 79 to 81, Schedule 4, Clauses 82 to 91, Schedule 5, Clauses 92 to 94, Schedule 6, Clauses 95 to 108, Schedule 7, Clause 109, Schedule 8, Clauses 110 to 123, Schedule 9, Clauses 124 to 130, Schedule 10, Clauses 131 to 141, Schedule 11, Clauses 142 to 151, Clause 40, Schedule 1, Clauses 41 to 70, Clauses 152 to 158.
My Lords, further to our Second Reading debate on 2 December, I now beg to move the commitment Motion for the Small Business, Enterprise and Employment Bill. This has been agreed through the usual channels. The Motion sets out that the Bill will be taken in Grand Committee. Furthermore, given that Clause 42 was added to the Bill only at Commons Report stage by way of a government defeat, the Order of Consideration Motion sets out that Part 4 on pubs will be taken after Part 11 on employment.
As I set out at Second Reading, the Government have accepted the principle that there should be a market rent-only option for tied pub tenants. However, the clause will require some amendments to ensure that it works correctly, is consistent and mitigates some potential unintended consequences. A later consideration in Committee will allow everyone more time to consider these important points. I welcome the commitment from the noble Lord, Lord Stevenson, at Second Reading to work with the Government to ensure that the clause works effectively. I look forward to support for the commitment Motion.
My Lords, I thank the Minister for repeating the assurance she made at Second Reading that the Government accept the principle of the introduction of a market rent-only option for tenanted pubs. We understand the reasons for wishing to reorder consideration of the Bill and I confirm that we are very happy to work with the Government to ensure that this option is made workable.
Social Action, Responsibility and Heroism Bill
Relevant document: 3rd Report from the Joint Committee on Human Rights
Clause 2: Social action
1: Clause 2, leave out Clause 2
My Lords, there are many reasons why Clause 2 should not stand part of the Bill, but to my mind the main objection is also the simplest: it serves no useful purpose. The mischief at which the clause is aimed is already covered by existing law. The mischief in question, as defined by the Lord Chancellor in the other place, is that volunteers are being deterred from volunteering by fear of being sued for negligence. That is the very same point specifically covered by Section 1 of the Compensation Act 2006, passed less than eight years ago.
The whole purpose of that section was to encourage people to undertake what the section calls, “desirable activities”. The whole purpose of Clause 2 of the Bill is to encourage people to act,
“for the benefit of society”.
Those are two ways of saying exactly the same thing. Nobody has yet been able to detect any difference between them. Indeed, the Lord Chancellor said that Clause 2 is not intended to change the existing law, so why do we need another piece of legislation covering exactly the same ground now?
The noble Lord, Lord Faulks, accepted that:
“Clause 2 relates to broadly similar territory to that in Section 1 of the Compensation Act”,
but he added that,
“the approach that it takes is different”.—[Official Report, 4/11/2014; col. 1573.]
He did not explain exactly what he meant by the approach being different. When pressed, he said that the 2006 Act had been “ineffective”. However, the only evidence relied on for that assertion—literally the only evidence—was a survey carried out about eight years ago. All it showed was that 47% of a very modest sample, some 300 people at most, said that there was a risk of being sued and that that risk was an issue to be considered. That survey was carried out in 2006-07, before Section 1 of the Compensation Act could possibly have had any effect, so how can it be relied on as showing that Section 1 of the 2006 Act has been ineffective? At the time of that survey, it had not had time to take effect.
A recent report produced by the Joint Committee on Human Rights considered the evidence in support of the Government’s case for fresh legislation in this field. It concluded that the only evidence was almost entirely anecdotal. It said that such evidence was not a sound basis for legislation, and that must surely be right. We now have before us a clause for which there is no evidence of any need covering exactly the same ground as Section 1 of the Compensation Act, which was passed less than eight years ago, and covering the ground already covered by the common law. In negligence cases, judges have always had regard to the matters referred to in Clause 2.
If that was not enough to condemn the clause—although I suggest that it is—the National Council for Voluntary Organisations has recently said that this clause, even if it is to form part of the Bill, will have very little, if any, effect. Indeed, that was the Government’s own case. Paragraph 23 of their impact assessment states that any reduction in claims for negligence will not be substantial.
If, as I suggest, these reasons are nothing like enough to justify the inclusion of this clause, one is driven to ask: what is the real reason the Lord Chancellor is bringing forward this unnecessary clause for our approval? There can be no doubt about the answer to that question, because the Lord Chancellor himself said it over and over again in the other place. The real reason is that the Lord Chancellor wants to send out, as he put it, a strong signal that if people are trying to do the right thing—he used that sort of phraseology over and over again—the law will be on their side. In other words, the justification for including this clause in the Bill is nothing other than a publicity exercise on the part of the Government. If that is the case, and I suggest that it is, it is a flagrant misuse of the legislative process. The purpose of legislation is to make new law or to change existing law so that it can be enforced in the courts. This clause does not purport to do either of those things. It could not be enforced by the court, which is why it will be treated with derision when it comes before the courts—a word that was used by a recent Solicitor-General, Sir Edward Garnier, speaking from the government Benches in the other place. The clause should be rejected on that ground, if none other.
Finally, I should mention points made during the debate in Committee. The noble Lord, Lord Hodgson of Astley Abbotts, who I am glad to see in his place, is in favour of Clause 2. He was chair of the task force which published in 2011 the report Unshackling Good Neighbours. His view is obviously, therefore, entitled to great weight on that ground. I hope, however, that he will forgive me for saying that he did not really answer the point that Clause 2 covers exactly the same ground as Section 1 of the Compensation Act 2006, which should be given much more time to take effect.
On the other hand, the noble Lord, Lord Blair, said that, while he was broadly in sympathy with the Government’s objective, this was, as he put it,
“frankly, a lousy way to do it”.—[Official Report, 18/11/14; col. 404.]
It was smoothing over all the difficulties with words that have very little meaning. The noble and learned Lord, Lord Hope, went further. He was extremely critical of the drafting because of the use of the same word, “person”, in Clauses 2 and 4 to cover two entirely different persons. He said it was a great pity that the Government had not faced up to the real problems in this area. As a result, he said, he was deeply troubled by the clause as it stands.
For all these reasons, I hope the Government will think again before pressing ahead with this unnecessary clause. I beg to move.
My Lords, the noble and learned Lord was kind enough to say some nice things about my report, and I reciprocate by saying that I have had the pleasure of serving under his chairmanship of various committees, and he has always been a punctilious and perceptive chairman. He is particularly kind in being ready to listen to and appreciate the views of those of us who are not learned in the law.
I hope that he will forgive me, but, once again, I cannot support his proposal this afternoon, and I urge my noble friend on the Front Bench not to do so either. We had a pretty thorough discussion of this issue in Committee on 18 November, and I do not intend to repeat the remarks I made then. As I understand it, and as I understood then, the noble and learned Lord is concerned about interplay between this piece of legislation and the Compensation Act 2006. I understand his desire for legal clarity and legal purity, but I have another objective, and that is of legal connectivity.
The report that I produced for the Government, Unshackling Good Neighbours, to which he kindly referred, looked in some depth at what was inhibiting people from getting involved in society and acting as a trustee, and whether they feared potential legal consequences. We received examples in sufficient numbers, which cannot simply be dismissed as anecdotal—a term that I sometimes feel is somewhat patronising. The noble and learned Lord sought to reassure the House that, if a case came to court, the court would throw it out, would, in his phrase, “have regard for the circumstances”. With respect, he may have overlooked the effect on an individual of the agonising, expensive, lengthy and psychologically depressing process of preparing the case—this against the background that, in the event, the court may not throw the case out.
I continue, therefore, to believe that this legislation sends an important signal—there I agree with the noble and learned Lord. This signal may seem unnecessary in the cool, calm, reflective atmosphere of the Inns of Court, but it has a greater resonance at the coalface of our civil society.
At another level, I am particularly looking forward to hearing the final determination of the Opposition’s position on this issue. The noble Lord, Lord Beecham, is a witty speaker and a very practised politician. He has made some disobliging remarks about the contents of the Bill, but he has so far not moved beyond that point. I suspect that, as a practical politician, in his heart of hearts, he knows that this is an issue that, in the minds of the public, needs addressing, and which this Bill does so address.
Before I conclude, I reiterate one other point that I made in Committee. I do not argue for a single minute that the Bill is a silver bullet as regards encouraging volunteering or greater participation in our society. There is much else to be done besides. Better insurance arrangements are crucial, as is the need to debunk myths about the legal consequences of day-to-day actions, too often assiduously and repeatedly promulgated in the press. However, even if the Bill is not a silver bullet, it is a bullet, and one well worth firing. I hope that my noble friend on the Front Bench will resist the noble and learned Lord this afternoon.
My Lords, we have had our fun on this Bill at Second Reading and in Committee. I, for my part, cannot remember a legislative proposal that has been the subject of more sustained ridicule and derision. We now come to the serious business. I have been studying and practising law for 40 years—not as long as many noble Lords, but a long time—and I cannot remember a more pointless, indeed fatuous, piece of legislation than Clause 2 of this Bill, with the possible exception of Clauses 3 and 4 of this Bill. As the noble and learned Lord, Lord Lloyd of Berwick, has explained and as we have previously discussed—and as is not in dispute—Clause 2 will not change the law. Courts already have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members. I referred to the leading cases at Second Reading. The Minister has at no stage suggested that there are any cases in which courts have ignored such obviously relevant factors.
What then is the point of Clause 2? As the noble and learned Lord, Lord Lloyd, has already explained, the Lord Chancellor, Mr Grayling, has been very clear. He wants Parliament to send a message. But if the object of the legislation is to encourage people to volunteer and to encourage heroism without people being concerned about possible litigation—the objective referred to a few moments ago by the noble Lord, Lord Hodgson of Astley Abbotts—Mr Grayling should buy a half-page advertisement in the Sun or the Daily Mail or, if he wants to reach younger citizens, open a Facebook page or set up a Twitter account, and simply tell people the obvious truth, that the law is already on their side. That would be a much cheaper and more effective way in which to communicate a message than to take this sad Bill through all its stages in Parliament.
It is simply ridiculous for the Government to suggest that people who are currently inhibited from volunteering by a fear of litigation are somehow going to step forward when they hear—if they do—that we have approved Clause 2 of the Bill. Mr Grayling cannot seriously think that around the dinner table tonight, or in the Dog and Duck public house, or anywhere, people will say to themselves, “I see that Clause 2 has passed its latest stages in the House of Lords. I look forward to its speedy enactment next year because then I will be much more willing to volunteer and act like a hero, my concerns about litigation having been removed”.
I am very grateful to the noble Lord for giving way. It is not just people in the saloon bar of the Dog and Duck who are influenced by this; it is also the professional advisers. In the example that we discussed in Committee, the problem was that many solicitors offering advice to people actually provide advice that might be changed by this legislation.
With great respect, there is even less justification if we are going to ask the question about professional advice from solicitors, because we are surely entitled to assume that solicitors are capable of understanding basic law. This is not complicated law: it is trite, obvious law that already protects those who volunteer and act as heroes.
It has been said at previous stages of the Bill that we often legislate in the hope of changing people’s behaviour. Reference has been made, for example, to the Race Relations Act. But what is different and what is exceptional about Clause 2 is that it does not purport to change the law one jot or iota. All that it will do is enable Mr Grayling to say that he is in favour of social action; and when we come to Clause 4, he will be able to say that he is in favour of heroism, as if the rest of us were not. I object to legislation being used by the Government to send what is no more than a political message.
In paragraph 125 of its excellent report, published last week, on the office of Lord Chancellor, your Lordships’ Constitution Committee stated that the Lord Chancellor should have,
“a clear understanding of his or her duties in relation to the rule of law and a willingness to speak up for that principle in dealings with ministerial colleagues, including the Prime Minister”.
The Lord Chancellor ought to understand that it is part—an important part—of the rule of law that the statute book has a role and a purpose: it is a purpose distinct from a party conference speech or a party election broadcast. Clause 2 simply debases the parliamentary currency and it therefore undermines the rule of law. If the noble and learned Lord, Lord Lloyd of Berwick, decides to test the opinion of the House on Clause 2, he will certainly have my support.
My Lords, I spoke in Committee in support of the noble and learned Lord, Lord Lloyd, and I am not going to repeat what I said then. I might take issue with the noble Lord, Lord Hodgson, about this matter being discussed in the silent halls of the Middle Temple. If you give ordinary police officers, firemen and ambulance crews two sets of words about the same thing, you are going to cause a lot of confusion a long way before it gets to the Middle Temple.
In the gap since we spoke about this in Committee, this law has achieved something that I have not seen in this House before. I know I have not been here that long, but I have never heard of a particular statute being used as an example in another discussion altogether when it has not even been passed. In the debate put forward on 4 December by the noble Lord, Lord Foulkes of Cumnock, about the procedures and practices of the House, this Bill got not just one but two mentions. It was mentioned by the noble Lord, Lord Butler, who is in his place next to me, and by the noble Lord, Lord Dykes. The noble Lord, Lord Butler, said that,
“we might be saved from legislation such as the absurd Social Action, Responsibility and Heroism Bill”.—[Official Report, 4/12/14; col. 1495.]
Later, the Bill was described as,
“a badly drafted, silly Bill that is all to do with ‘manifesto-itis’ rather than any deep legislative urge on behalf of the Executive”.—[Official Report, 4/12/14; col. 1499.]
I do not think we should proceed with this matter.
My Lords, perhaps I may return briefly to the point that I made in Committee, which is directed to the point made by the noble Lord, Lord Hodgson, about the solicitor advising—no doubt—an employer. The problem to which I drew attention was where somebody such as a fireman, police officer or some other person in the emergency services wanted to take the kind of action for the benefit of society that is talked about in Clause 2, but his superior officers said, “No, you can’t, because if you do that, my organisation is liable to be sued”.
My point is that Section 1 of the previous statute deals with outcomes and separates the outcome from the person who is being sued. The problem with this Bill is that it links irrevocably and inextricably the person who is being sued with the person who is acting. With great respect to the noble and learned Lord, Lord Lloyd of Berwick, I do not think that this clause and the section deal with precisely the same thing. I think that this is a much narrower clause, dealing with a particular part of the subject. Therefore, it just adds to confusion when we have an existing piece of legislation which covers all the aspects and is perfectly serviceable to then come along with something which covers only part of it.
When the Minister replies, I hope that he will say why the Government have not taken the opportunity to broaden this clause so that it covers precisely the same ground as the existing legislation, because to have two pieces of legislation, one half-baked and one dealing with the whole thing, just adds to confusion. It is a great shame to be invited to pass a measure of that kind.
My Lords, the noble Lord, Lord Hodgson, with great force and fervour, invites the House to consider that a silver bullet from this place and the other place is perhaps not a bad thing at all. That may well be so, and both Houses are entitled to fire silver bullets by way of resolutions, debates and in a number of other ways, but not in their legislative capacity. That is really all that this issue is about.
There are only three areas of law—or at least there used to be when I was a law student a very long time ago—statute, common law and custom. If a statute is to have any purpose or meaning at all, it has to change to some extent one at least of those three areas. Custom can be left out of it; it is agreed universally that it does not change the content of a statute by one hair’s breadth. There was, I think, some dubiety in Committee about common law, but I honestly think that that is answered by a long-standing principle in our law—namely, that a statute to change the common law has to say so expressly on the face of it and to make it clear beyond peradventure or doubt that that is happening: otherwise, there is a presumption that the common law is not changed. I should have brought Maxwell’s Interpretation of Statutes along with me but I am sure that the Minister will accept that that is still a fundamental principle of our law. The right to legislate is a sovereign right and privilege to be used sparingly. It is not to be used for propaganda purposes.
My Lords, in speaking in support of this amendment, I draw attention to a matter which I believe to be of general importance and relevance to all the contentious amendments before the House this afternoon, but which has not, I believe, been referred to at all in previous debates on this Bill either in this House or the other place—namely, that the Law Commission has had no input at all into the Bill. The subject matter of the Bill is not on the published programme of current work of the Law Commission: nor—I checked this point a couple of days ago with the press officer of the Law Commission—have there been any informal consultations or amendments concerned with the Bill. Neither the substance of the Bill nor its drafting has had any input at all from the Law Commission. Yet this is a Bill which is said to make significant changes in the common law.
Whether it does, indeed, make significant changes in the common law is highly contentious. Along with many of my noble and learned friends, I believe that it makes no significant change at all. However, on the hypothesis that it does make significant changes in the common law, it is eminently a matter of law reform which should be the subject of systematic and intense study by the Law Commission and a consultation with judges, the legal profession and the wider public, conducted by the commission. None of that has happened.
It is ironic that next year sees the 50th anniversary of the establishment of the Law Commission by the Law Commissions Act 1965. “Law Commissions” is in the plural because there is the Law Commission for England and Wales and the Scottish Law Commission, which of course is now devolved. The Bill that became the Law Commissions Act 1965 was introduced by the then Lord Chancellor, Lord Gardiner, as the “jewel in the crown” of his programme of law reform. The Second Reading of that Bill, in your Lordships’ House, took place on 1 April 1965 and Hansard shows that it was a quite memorable debate. Lord Gardiner made a long and eloquent speech, towards the end of which he said:
“My Lords, our law will never be put into a proper state unless and until there is a body of men”—
I am sure the Lord Chancellor did not intend to exclude women—
“whose sole duty it is to submit the whole of our law to a systematic and continuous review—and that is the object of this Bill”.—[Official Report, 1/4/65; col. 1152.]
There was widespread support for the Bill on all sides of the House. Two former Lord Chancellors spoke: Viscount Dilhorne and Viscount Simonds, who was then 83 years of age, or thereabouts. Several Law Lords spoke, including three who were among the most distinguished judges in the second half of the 20th century: Lord Wilberforce, making his maiden speech, Lord Denning and Lord Reid. Lord Wilberforce drew a distinction between what he called “true law reform” and the amendment of taxing statutes—which is inevitably technical and in almost continuous process—and what he referred to as statutes concerned with social questions. He said these were,
“matters which are really those of social policy and not law reform at all—for example, questions dealing with the eviction of tenants from houses, or leasehold enfranchisement. These are matters of social policy which, once the policy is decided, can perfectly easily be dealt with by the lawyers”.—[Official Report, 1/4/65; col. 1173.]
Those are the sort of matters which may not necessarily call for intervention or participation by the Law Commission, but the reform of the common law is quite different. I must not put it too high, but it seems to me to come close to a constitutional issue if, nearly 50 years on from the setting up of the Law Commission, reform of the common law is a matter on which the commission is bypassed completely.
This is underlined by a further, much more modest, statute. The Law Commission Act 2009 made two changes, specifically directed to the relationship between the Law Commission and Parliament. On 25 March 2009, in another place, the Lord Chancellor, Mr Jack Straw, had said:
“Good law is imperative for accessible and modern constitutional arrangements. For 40 years the Law Commission has played a vital role in that respect, but I intend to strengthen its role by placing a statutory duty on the Lord Chancellor to report annually to Parliament on the Government’s intentions regarding outstanding Law Commission recommendations, and providing a statutory backing for the arrangements underpinning the way in which Government should work with the Law Commission”.—[Official Report, Commons, 25/3/09; col. 23.]
That measure had originally been two clauses in the draft Bill—which I think was originally called the Constitutional Renewal Bill but was changed to the Constitutional Reform Bill. However, it was decided—very sensibly, if I may say so—that those clauses should form the subject matter of a separate Bill, which was introduced, with the support of the Government, by none other than my noble and learned friend Lord Lloyd of Berwick. In this House, at Second Reading of the Bill that become the 2009 Act, the Minister, the noble Lord, Lord Bach, said:
“It is a great privilege for my department to be associated with the Law Commission. The commission, as has been said on all sides, makes a significant contribution to law reform, which is greatly valued by the Government, those in the legal and judicial world and beyond”.—[Official Report, 24/4/09; col. 1737.]
It is a matter of great regret that on a Bill of this sort, which claims to be making significant changes to the common law, there has been no input or advice from the Law Commission, which is, in the words of Lord Gardiner, who was the Lord Chancellor in 1965, “a body of men”—and, of course, women,
“whose sole duty is to submit the whole of our law to a systematic and continuous review”.—[Official Report, 1/4/65; col. 1152.]
This Bill is not the right way to reform the common law. It will make it neither clearer nor better.
My Lords, I do not wish to appear conspicuous by my silence on this Bench but will speak very briefly indeed. I just want to give the House two brief citations from authorities past. The first states that the,
“principle …enshrined in section 1 of the Compensation Act 2006 … has always been part of the common law”.
That was Lord Justice Jackson in 2010. The following year, Lady Justice Smith—now Dame Janet Smith—in another case in the Court of Appeal quoth:
“Section 1 of the Compensation Act 2006”,
“not add anything to the common law position”.
Do we really want our judges, next year or the year after, to have to add to those citations? Nor will Sections 2 and 4 of whatever Act this will become in 2014 or 2015 add anything. That is the position in regard to those clauses by concession. Unlike my noble and learned friend Lord Walker of Gestingthorpe, I do not understand for a moment the Government suggest to that those clauses make the faintest change whatever to the existing law. Clause 3 conceivably raises other, but no less objectionable, considerations. However, Clauses 2 and 4 change nothing.
My Lords, less than a week ago we debated the Government’s amendments to the Criminal Justice and Courts Bill, and inflicted defeats in relation to proposals affecting young offenders and, even more significantly in terms of their constitutional importance, two changes to the procedures for judicial review.
Today we return to this Bill, a piece of vanity legislation if ever there was one, which, except for Clause 3—as we have heard—adds nothing to the provisions of the Compensation Act 2006, which, by implication, it purports to amend. I concur entirely with the critique of the noble and learned Lord, Lord Lloyd, the noble Lord, Lord Pannick, and others of this muddled attempt to deal with a problem for whose very existence there is a complete lack of evidence—a Bill that is very badly drafted, in any case.
At Second Reading, I acknowledged that the House is properly cautious about declining to give a Second Reading to Bills emanating from the Commons, and there is a similar reluctance totally to destroy Bills in the way in which the amendments of the noble and learned Lord, Lord Lloyd, would achieve if passed, which would leave the Bill consisting of only its title. However, if we were to go so far on a Bill as feeble as this, it would actually strengthen the hand of the Lord Chancellor in relation to the vastly more important and damaging provisions of the Criminal Justice and Courts Bill, which we have sent back to the Commons with our amendments. I fear that he would not hesitate to cast this House as a recalcitrant and obstructive group, placing us alongside the left-wing pressure groups and campaigners which he conjured up as the phantom proponents of judicial review and opponents of his attempts to undermine it. It would, I suggest, make it more unlikely for the Lord Chancellor to exercise political responsibility in relation to the amendments on secure colleges and JR by accepting them, or, should he fail to do so, for MPs on the Government Benches to demonstrate political heroism in a just cause by voting for them.
For those reasons, I regret that I cannot advise opposition Members to support the noble and learned Lord’s amendment to Clause 2, nor his amendment to Clause 4—in any case, the Government have tabled an amendment to it that reflects one moved by the noble Lord, Lord Pannick, in Committee, to which I added my name. I do that with regret because I share entirely the noble and learned Lord’s criticisms of the vacuous nature of the Bill; but it seems to me, for the reasons that I have given, unwise for the House to join him in the Lobbies. I say that with the more trepidation as I understand that he is the chairman of the East Sussex Rifle Association; I fear that I may end up as a target—if not for the noble and learned Lord, then for some of the members of that association.
There is nevertheless a serious issue as to the role of the House in these strange circumstances. However, in relation to Clause 3, I will be asking the House to agree that it should not stand part of the Bill, essentially because that clause seeks to effect a change in the law that is unacceptable for reasons which I will adduce when we come to debate that amendment. However, I fear that I shall not be joining the noble and learned Lord in the Lobby—
Is the noble Lord saying that the Opposition are not going to support the noble and learned Lord, Lord Berwick, because, although they think that Clause 2 is absolutely terrible, it is not the worst legislative proposal that Mr Grayling has brought forward in this Session?
There is a lot of competition in that respect. I merely say that on this Bill it is not worth the House taking a position that is a departure from its normal practice. I genuinely fear that the Lord Chancellor will use such a vote to muster support against the much more serious amendments that we have sent back for the Commons to consider. That will not help us in sticking to those amendments, should they come back to us. That is why I will not be in either Lobby this evening if the noble and learned Lord decides to test the opinion of the House.
My Lords, in speaking against Clause 2 in Committee and in the debate today, the noble and learned Lord, Lord Lloyd of Berwick, has maintained that the clause adds nothing useful to Section 1 of the Compensation Act 2006 or to the existing common law and is therefore unnecessary. I take this opportunity to explain why the Government believe that the clause has an important purpose, which merits the support of the House.
The clause stems from our wish to ensure that people can feel confident about participating in activities that benefit others without worrying about what might happen if something goes wrong and they find themselves defending a negligence claim. Clause 2 sets out to provide valuable reassurance that if that happens, the court will take careful and thorough account of the context of the defendant’s actions when reaching a decision on liability. Rather as the noble Baroness, Lady Ashton, said when introducing the provisions of the Compensation Act, as I have quoted before:
“They will reassure people who are concerned about being sued that, if they adopt reasonable standards and procedures, they will not be found liable”.—[Official Report, 28/11/05; col. 81.]
So two separate Governments have identified a fear.
It is said that there is no solid evidence and that such evidence as there is is anecdotal. I agree with my noble friend Lord Hodgson: it is rather hard to identify and amass solid evidence about this. However, I am not sure that many people would disagree with the proposition that we have a culture where litigation hovers over many activities like a shadow and can genuinely inhibit the sort of things that most people would consider to be desirable.
Although the primary concern underlying this clause is to ensure that voluntary activities are encouraged and supported, we see no reason to restrict its application to such cases. In common with other clauses in the Bill, Clause 2 is therefore broadly drafted so that it will apply in a wide range of situations where people act for the benefit of others, whether they do so on a voluntary basis or in a paid capacity. As I indicated in Committee, this could, for example, include organised charitable activities such as running a village fete, or informal individual activities such as helping an elderly neighbour with their shopping. It could also cover workers such as teachers, doctors, and emergency services who act for the benefit of society as part of their jobs.
The idea that this provision might somehow have—I quote what was alleged in earlier debates—“horrific unintended consequences”, is rather difficult to understand. As I have explained, the clause does not tell the court what conclusion it should reach and will not prevent a person engaged in socially beneficial action being found negligent if the circumstances of the case warrant it. It will be for the court to determine whether a person was acting for the benefit of society and, if so, what weight it should give to that factor in all the circumstances of an individual case. This will give the courts the maximum flexibility to reach decisions that are fair and just, while sending a strong signal to reassure the public that they will consider, in all cases, the wider context of the defendant’s actions prior to reaching a conclusion on liability.
The noble and learned Lord, Lord Lloyd, said that the clause was not necessary because it covers identical ground to Section 1 of the Compensation Act 2006. In fact, Clause 2 takes a different and firmer approach. It requires the courts to consider, in every case, whether a person was acting for the benefit of society or any of its members. It also adopts a different emphasis by focusing more firmly and precisely on the actions of the defendant in the particular case, rather than on the general effect that a finding of negligence might have on others participating in similar activities. For these reasons, we think Clause 2 will provide greater reassurance than Section 1 of the 2006 Act. The noble and learned Lord said that it was too soon to tell whether the Act was working, particularly having regard to the evidence that was relied on by the Government. The noble Lord, Lord Pannick, said in earlier debates that the Compensation Act was working well. On the other hand, the noble Lord, Lord Beecham, said that Homer had nodded and that the Labour Party, in identifying this particular problem, had made a mistake: there was no such thing as a compensation culture, whatever may have been the perception.
We say that the need for further measures has been amply evidenced by the support for the Bill from voluntary organisations, such as the National Council for Voluntary Organisations, St John Ambulance, and the British Red Cross, which have made clear that their concerns over liability remain a real issue for many of their members. The plans that such organisations have indicated they have for publicising the Bill and spreading awareness of its provisions will ensure that our core message is transmitted widely and effectively. The noble Lord, Lord Pannick, suggested using Facebook or advertisements in newspapers. I am sure that those bodies are well experienced in knowing how best to convey the message to those they wish to receive it. He seemed to identify the more popular means of transmitting messages or information, presumably on the assumption that those who read the broadsheets or listen to the radio would not need any such reassurance. Perhaps he overestimates the bewilderment that many feel about the state of the law, particularly the state of the law of negligence. The principles are clear; their application to particular facts has often been a subject of uncertainty and criticism. During the debates, the noble Lord rightly referred to the fact that the basis of the Compensation Act was the House of Lords decision in Tomlinson, in which the noble and learned Lord, Lord Hoffmann, produced the seminal speech. That speech represented, he said, effectively—although couched in the most magnificent English—a statement of the obvious which then found its way into the statute book.
Of course, the House of Lords would have to consider it, meaning that someone had identified it as a difficult point. It had had to go from first instance to the Court of Appeal to the House of Lords. In these difficult cases on the margin, very often where there is a seriously injured claimant, finding the answer in a negligence case is difficult and there is nothing unworthy about Parliament setting out and identifying guidelines that should be taken into account and to which judges should have regard while still allowing them to approach cases on their particular facts.
The noble and learned Lord, Lord Walker, quite rightly reminded us of the immensely important role that the Law Commission has played and plays in the development of the law.
Can the Minister help a non-lawyer? Is it the Government’s policy that they are prepared to use legislation to send signals or make declarations of policy? That seems to me what is at the heart of this matter, not whether the courts have found it important to interpret that law as it stands.
I think there is something of both, in the sense that very often in the law of negligence, although the principles are clear, when identifying the answer to a particular factual case—one very much on the margins—a great deal of judicial time is spent identifying what is a duty of care, whether there is a breach of the duty of care and whether there is foreseeability. Extracting the principles from the morass of common-law cases is not easy. This Bill sets out in statutory form principles to which a judge may have regard. That is a legal process. It is also not, I suggest, inappropriate for some form of message—I do not like the word “message” but I think everybody in your Lordships’ House knows what is meant by that—or for some sort of guidance and reassurance to be given to the general population, so that they can act in a way they would like to act without the fear of uncertainty that accompanies litigation.
I was addressing the point made the noble and learned Lord, Lord Walker, about the Law Commission. He is right about the immensely valuable role it plays in making the law and how desirable it often is to have a proper review. He would accept, I am sure, that it is not a prerequisite for the making of law that the Law Commission has examined a particular area. In fact, the Compensation Act 2006 followed an inquiry by the Department for Constitutional Affairs. The committee had produced a report—I was a special adviser so I declare an interest—so it was not via the Law Commission. Valuable though that can be, there is a limit to the amount it can do in a particular timeframe because of the immense calls on its services. While not disagreeing with anything the noble and learned Lord has said, it does not, I suggest, prevent there being a change in the law, notwithstanding the fact that the Law Commission has not considered this matter specifically.
I suggest that this is an important, although not radical, declaration of the existing law. It sends an important note of reassurance. I accept that it may not be the most transformative Bill that has reached this House but that does not mean that it does not serve an important function. The noble Lord, Lord Beecham, continued his attack, which I have sustained now for approximately 12 months, on every proposition that the Government have put forward. I normally follow his arguments, which are lucid and clear. On this occasion, I am unable to follow his argument. However, I do not wish to stretch my already stretched synapses even further in an attempt to do so; I will simply accept what he says.
My Lords, I am puzzled. Will the noble Lord tell us whether it is ever worthy to use a statute as a means of giving assurance? I thought that a statute was to state the law, not to assure somebody somewhere. That would be okay. It would be an amazing way of—you know what I mean.
I think I know what the most reverend Primate means. With respect, as I said on a previous occasion, describing a statute as sending a message is too simplistic a way of explaining what we do in Parliament. We do not legislate in a vacuum. For example, we identify particular issues, whether they are modern slavery or revenge porn, which became part of an amendment to the Criminal Justice and Courts Bill. We pass laws which serve the purpose of clarifying the law but they also reflect what people in society think we ought to be doing in Parliament. I rely on what my noble friend Lord Hodgson said about the desire for neighbours to be unshackled. We need more volunteers; we need people to be unshackled. This law may make a modest contribution and I ask the noble and learned Lord to withdraw his amendment.
I am not sure that off the top of my head I can think of a particular legislative provision that provides reassurance, but part of the function of much legislation is to provide reassurance and protection to the vulnerable. There is nothing novel about producing a piece of legislation which, in a difficult area, provides some clarity and a modest degree of reassurance in an area of considerable uncertainty.
My Lords, I thank noble Lords who have supported this amendment. I want to say a word about the contribution of the noble and learned Lord, Lord Walker of Gestingthorpe. He said that, as the Bill changes the common law, it ought to have been referred in the first instance to the Law Commission. I entirely agree that from time to time it has not been at all easy to discover what the government case has been, but their final position is that it does not change the common law in any way; it merely confirms what was already the common law and what was included as Section 1 of the Compensation Act 2006. I hope that that answers the noble and learned Lord’s difficulty.
So far as the rest is concerned, I shall say nothing more about the arguments put forward by the noble Lord in answer to the debate. They have already been dealt with very fully. However, I want to say a word about the attitude of the Opposition to the amendment. As I understood it until 2.15 pm this afternoon, the Opposition would be supporting the amendment. That was my clear understanding.
If the noble and learned Lord understood that, he misunderstood it, and if I have contributed to a misunderstanding, I apologise. It was never the Opposition’s position that we would support the noble and learned Lord. We were considering the position and I tried to contact him unsuccessfully over the weekend. Therefore, we have not resiled from the position that we previously adopted.
I am quite happy to accept that there must have been a misunderstanding. However, that was certainly my understanding of the position, just as my understanding of the position at Second Reading was that they would be supporting my amendment. I was wrong about that and I am wrong again. However, that still leaves the question of why on earth the Opposition are not supporting the amendment. After all, on the whole, it is the duty of the Opposition to oppose. If they found that they were against something—and I understood them to be against Clauses 2 and 4, just as they are against Clause 3—in the ordinary way they would oppose it.
However, I am wrong about that. The reason given for this seems to me to be entirely incomprehensible. The reason why the Opposition now do not want to oppose Clauses 2 and 4 is that if they did so while opposing Clause 3, that would then have some effect—which I really did not understand—on the attitude of the Lord Chancellor in relation to some other Bill; namely, the Criminal Justice and Courts Bill. That is a wholly irrational ground for an Opposition to act on. I would have thought it their duty, if they are against Clauses 2 and 4, to oppose them. They say, however, that, for reasons which I do not understand, they do not intend to take that view officially. I hope that at least some members of the party which is represented by those on the Opposition Front Bench who take that view will think differently.
I am not sure that I fully understood. Perhaps I did not wholly hear what the noble Lord said. However, the arguments are now over, and there is really nothing left for it but to take the opinion of the House. I do not fancy for one moment that, in the absence of support from the Opposition on this clause, the amendment will be carried. However, in the interests of doing the right thing—those words which the Lord Chancellor kept on using—I ought to take the opinion of the House, which I now seek to do.
Clause 3: Responsibility
1A: Page 1, line 12, leave out “generally” and insert “predominantly”
My Lords, Amendment 1A may be less controversial than the matter that we have just finished discussing, although in matters of the law you never quite know. The amendment was originally tabled in the name of my noble friend Lord Hunt of Wirral, and I added my name to it. My noble friend has had to travel to northern England today on business, so is unable to be here in time to move this amendment. I am moving it on his behalf.
The amendment is very simple: a one-word change to Clause 3, the clause entitled “Responsibility”, to which the noble Lord, Lord Beecham, referred earlier. It replaces “generally” with “predominantly”, so that the clause will read:
“The court must have regard to whether the person”,
demonstrated a “predominantly”,
“responsible approach towards protecting the safety or other interests of others”.
The question was whether the use of “generally” was sufficiently focused to achieve the appropriate balance in individual cases. The adverb “generally” has three definitions in the Collins English Dictionary. The first is “usually; as a rule”. The second is “commonly or widely”. The final one is,
“without reference to specific details or facts; broadly”.
I suspect that what your Lordships’ House will wish the courts to consider, if this Bill passes into law, is whether the defendant will first claim that he was demonstrating an approach which on that occasion was in the main responsible in protecting the safety of others as opposed to the approach which usually, but not necessarily on that occasion, was responsible. Replacing “generally” with “predominantly”—we return to the Collins English Dictionary definition, which is,
“for the most part mostly and mainly”—
should provide the courts with the power to examine the approach of the defendant at the material time and avoid them having to consider the approach demonstrated at other times or taking the matter even wider, enabling them to take into account the approach followed other than that at the material time.
This Bill has an important role to play in reassuring potential volunteers, but equally it should not encourage behaviour which is thoughtless or irresponsible and thus puts others at risk. This change of word may better balance the two aspects, and I hope that the amendment will find favour with my noble friend. I beg to move.
My Lords, Clause 3 is the one clause in the Bill which the Government acknowledge embodies a substantive change in the law. In Committee, I moved an amendment to remove “generally” from the requirement on the court to consider whether,
“the alleged negligence or breach of statutory duty … demonstrated a generally responsible approach towards protecting the safety or other interests of others”.
Neither at Second Reading nor in Committee did the Minister define the meaning of “a generally responsible approach”, and in replying to the debate in Committee he acknowledged that the term was “unusual” in statutory terms. Indeed, he indicated that he would,
“consider carefully whether and to what extent it adds anything to what is in the clause at the moment and whether, on balance, it takes the matter any further”.—[Official Report, 18/11/14; col. 414.]
We await with bated breath the outcome of the Minister’s deliberations along with his response to the amendment tabled by his noble friend, who is seeking to ratchet up “generally” to “predominantly” in the proposed clause.
I have to say that neither term is satisfactory in terms of either definition, which is entirely lacking, or effect. Why should someone suffering damage through an act of negligence or breach of statutory duty be denied compensation on the grounds that the act or omission was in effect a first offence, or at any rate a rare offence? What, for that matter, constitutes a “responsible” approach? How does the Minister define those terms? Moreover, and crucially, the clause is not limited to social action, responsibility or heroism, terms which are in themselves undefined and undefinable, or to personal injury cases. We are dealing not just with safety but, in terms of the clause, with other interests. As I reported in Committee, the Minister in the House of Commons, Mr Vara, affirmed that the clause,
“could in principle be applicable in relation to other instances of negligence such as damage to property or economic loss where issues of safety may not necessarily be relevant”.—[Official Report, Commons, 20/10/14; col. 693.]
Why should a negligent builder, medical practitioner, accountant, surveyor or even solicitor—I declare my interest—escape liability for what might even be catastrophic damage because he has been hitherto “predominantly” responsible? Negligence can lead to large losses outside the realm of personal injury. Is not the reality that this badly drafted clause is yet another concession to the insurance lobby, which ordinarily would of course stand behind the defendant in such claims?
Many Members of your Lordships’ House will have received an e-mail today from one of those pressure groups which so exercise the Lord Chancellor in relation to judicial review. In this case, the pressure group is one which we can be confident he entirely approves of: it is the CBI. Its curiously worded communication supports Clause 3 on the grounds that it,
“provides better protection against accidents for those firms—particularly the small and medium sized companies that already have good health and safety processes in place”.
Of course, it does nothing of the sort. It provides “better protection” against claims for negligence arising from accidents and it extends, of course, to large employers as well as medium-sized and small employers.
The e-mail goes on to suggest that,
“this clause will encourage the courts to recognise that safety is a shared responsibility”,
as if the courts do not already do so, and do not make findings of contributory negligence when a claimant fails to take proper precautions, or dismiss a claim when he is wholly responsible. Of course, again, the CBI ignores the fact that the clause extends to all types of negligence, including by small and medium-sized businesses which might well find themselves a victim of negligence other than of the kind leading to personal injury.
As the CBI’s response eloquently exemplifies, this whole Bill has all the hallmarks of being drafted by the Lord Chancellor on the back of a small envelope. This clause, in particular, is deeply objectionable. Unless the Minister is prepared to abandon the clause, I shall invite the House to divide and consign the envelope to the parliamentary waste bin.
My Lords, I add my support to what has been said by the noble Lord, Lord Beecham. Clause 3 is very troubling for two reasons. First, the defendant may have shown a partially irresponsible approach towards protecting the safety or other interests of others, that partially irresponsible approach may be the cause of the accident and it may be entirely inexcusable. Why, then, is the generally responsible approach of the defendant in other respects of any relevance whatever? The amendment in the name of the noble Lord, Lord Hodgson of Astley Abbotts, would not cure this defect.
The second troubling aspect of Clause 3 is that it does not appear to be confined to the subject matter of the Bill, social action and heroism. I would be very grateful if the Minister would explain whether Clause 3 was intended to be confined to the subject matter of the Bill, or whether, as its wording suggests, it is to have a broader aspect. For these reasons, if the noble Lord, Lord Beecham, divides the House, he will have my support.
My Lords, I support what has been said by my noble friend Lord Beecham and by the noble Lord, Lord Pannick. As a practising lawyer, the idea of having to bring this into effect and applying it in the context of an actual case fills me with horror. I do not know how one would start to go about it. I do not see the benefit the clause brings and I see grave dangers in its application. I was particularly taken by the comment of my noble friend Lord Beecham that this does not even necessarily apply to cases of personal injury or injury of that sort—it can apply to economic loss and to many other sorts of cases. I do not see how this sort of drafting can conceivably be appropriate for such cases.
Will the Minister, when he comes to reply, assist me? I do not see how this clause will apply if there are two defendants, one of whom has shown a generally responsible approach towards protecting the safety or other interests of others and the other who has not exercised that approach. It seems to me to be very worrying from that point of view. I always understood that it is not your general behaviour that the court has to look at in order to find whether you are negligent but your behaviour on the particular occasion when you are said to have committed a tort. If one is going to look at the person’s general behaviour in deciding actions for tort, these are going to take a lot longer to resolve than they have hitherto.
My Lords, I, too, support this amendment. The Bill as a whole is manifestly directed—all the earlier debates have indicated this—to encouraging people to volunteer and take part in generally beneficial activities. As the noble Lord, Lord Beecham, made plain, this clause would apply if you have a claim against your accountant. Perhaps he is a wonderful accountant and has looked after everybody else enormously skilfully over the years, but on this particular occasion when he is looking after your affairs, Homer nods, falls fast asleep and costs you an enormous amount of money, for whatever reason—perhaps he was going through a messy divorce at the time. He is insured. Is it really to be suggested that what he has done for everybody else is relevant and can deprive you of your claim? It is absurd.
My Lords, another feature of this clause occurs to me: how one is supposed to apply it when the issue of contributory negligence comes up. This is one of the problems that the court must have regard to, but we are not told in this very brief provision to what purpose one is examining. I assume that it is whether the individual or body concerned is liable at all, but assuming it is liable, how does one apply it in the context of contributory negligence? I do not believe that that aspect has been thought through at all.
My Lords, we have had the pleasure of a short but informative debate this afternoon. The criticism of Clause 2 was that it did not change the law and therefore was not desirable, but the criticism of Clause 3 is that it does change the law—so I will approach the Bill in a rather different way.
The amendment in the name of the noble Lord, Lord Beecham, would remove Clause 3 from the Bill entirely. I would like to explain to the House why I believe that it is important for the clause to remain part of the Bill. It provides that a court, when considering a claim for negligence or breach of a relevant statutory duty, such as, for example, under the Occupiers’ Liability Act, must have regard to whether the defendant, in carrying out the activity in which the alleged negligence or breach occurred, demonstrated a “generally”—I put that word for the moment in inverted commas—responsible approach towards protecting the safety or other interests of others.
The core aim underlying this clause, and the Bill as a whole, is to provide reassurance to ordinary, hard-working people who have adopted such an approach towards the safety or other interests of others during the course of an activity, that the courts will always take this into account in the event that something goes wrong and they are sued. As well as providing that reassurance, we hope that this will also give them greater confidence in standing up to those who try to bring opportunistic and speculative claims by showing them that the law is on their side.
As I explained at Second Reading and in Committee, we believe that concerns that the clause might in some way undermine the rights of employees and others to bring a negligence claim are unfounded. There is nothing in Clause 3, or in the Bill more generally, which will prevent somebody who has been injured bringing a claim or which will prevent the court finding an employer or any other defendant negligent if the circumstances of the case warrant it.
In addition, the focus of the clause is on whether a generally responsible approach was adopted in the course of the activity—so that we are not looking, as the noble and learned Lord, Lord Woolf, suggested, at the whole of the behaviour in other circumstances or in relation to some other activity—in which it is alleged that the negligence occurred. It will not therefore enable a body with a slipshod approach to safety to escape liability by pointing to its health and safety record over a longer period of time. If its actions during the course of the activity in question were so risky or careless as to be negligent, it can still be found liable.
The need for this measure is amply illustrated by the evidence that was provided in support of the Bill during its passage through the House of Commons. I have referred to evidence from voluntary organisations that concerns over liability continue to represent a real disincentive, preventing many people getting involved in socially worthwhile activities. Evidence provided by the emergency services also illustrated the propensity of some people involved in accidents to bring opportunistic and, frankly, spurious claims, such as the example we have previously discussed provided by the Cheshire Fire & Rescue Service.
The Federation of Small Businesses has also welcomed the Bill, as well as the CBI—as referred to by the noble Lord, Lord Beecham. The national chairman of the FSB, John Allan, said that he,
“hopes this proposed legislation will help protect hardworking business owners against irresponsible claims”.
The Government believe that it must be right to discourage such claims and, in the event that such a claim is brought, to require the courts to take into account the general approach of the defendant to safety during the course of the activity in question.
To those in your Lordships’ House who still have concerns about the possible effects of the clause, I emphasise that the provisions do not direct the courts as to the conclusion they should reach and will not prevent a finding of negligence or breach of statutory duty where this is justified. I am confident that the courts will continue to take a common-sense approach to these cases and will exercise the flexibility which this clause gives them to reach a just decision in all the circumstances of each individual case.
That is also my answer to the question raised by the noble and learned Lord, Lord Hope, about contributory negligence. The courts often have to go through an evaluative process when looking at a case of negligence and deciding the question of whether there is contributory negligence and, if so, what percentage. They, I suggest, will not be prevented from performing such an exercise by these provisions.
Likewise, in deciding, when there are two defendants, if one or both of them should be found liable, the courts will examine the circumstances in a way that they do with the law as it currently is. They will be invited to have regard to the matters in Clause 3, but that should not make it particularly difficult, I respectfully suggest, to come to a just decision on the facts.
I am grateful to the Minister for giving way. I still, I am afraid, cannot understand whether, where there are two defendants, one who can rely on this Clause 3, and one who cannot rely on it, he is saying there could be a situation where it would be proper for a judge to say that one defendant walks out of court scot-free, even though he caused the accident, and the other is found guilty.
The answer is yes. There are lots of different circumstances in which two defendants may find themselves sued. They may be sued on the basis that one is much more likely to be liable than the other. The other defendant may be sued because his insurance arrangements may be considered more satisfactory. There will be circumstances in which one defendant is much more likely to be culpable than the other—in which case very often there will be, pursuant to the 1970 civil liability Act, a division of responsibility between those two defendants. A judge will have to perform that process.
By the same token, a particular defendant in a factual scenario, where an accident is caused, might have, on a particular day, been wholly reckless about the cause of the accident insofar as that particular defendant is concerned. Another defendant might have been predominantly or generally extremely careful for the welfare of that individual. I am not saying that that is necessarily a likely scenario, but it is certainly one within the realms of the many possibilities of claims that the noble and learned Lord and I have been involved in, where a judge has to pick his way through a number of different defendants and try to find a fair answer on the facts. My answer to him is that that particular process, difficult though it is, performed by skilful judges, will not be made significantly more difficult by these provisions.
As I explained earlier, the approach that we have taken does not rewrite the law in detail, but it represents a change to the law in that it does not currently oblige a court to consider whether a person took a generally responsible approach to safety during the activity in question. We wish to ensure that the courts take a slightly broader view of the defendants’ conduct in these circumstances, by looking at whether his approach to safety, taking into account all that he did or did not do, was generally a responsible one. I suggest that that would very much tally with what a number of members of the public might think was fair. If a defendant was really predominantly doing all that he or she could reasonably be expected to do to look after the safety of an individual, why should there not be some reflection of that fact in the determination of liability? Why should it be ignored altogether? The court would be obliged to weigh it in the balance—that is all—when considering the ultimate question of whether the defendant met the required standard of care.
Is there some time period over which the court is expected to assess the generally responsible approach of the defendant? How far does this go back? Has the department made any assessment of how much longer court cases are going to take and how much more expensive they will be if the judge has to assess all those matters?
Perhaps I could finish answering this question before I answer the next one. That would necessitate a judge looking at the activity in question and deciding whether, in relation to the activity in question that is being examined by the court, a generally responsible approach was exhibited by the defendant. What that would not involve would be going through his or her safety record for the previous 10 years, if that is what is being suggested. In fact, as the noble Lord may or may not know from personal injuries claims, very often disclosure of the history of accidents in a factory or documents on previous injuries is done in conventional personal injury claims, as the law is now—there is nothing different about that. So with great respect I do not accept the noble Lord’s suggestion that there would be a lengthening of trial or a greater complication in those terms.
The Minister must forgive my impatience again. He has concentrated on personal injury claims, but he would concede that the clause does not restrict itself to such claims. Could he identify some of the other sorts of cases, as his ministerial colleague did in the House of Commons, the non-personal injury cases—contract cases and matters of that kind? Would he say that, if a defendant had demonstrated an approach towards protecting the safety of his staff, that suffices to let him escape from damage to other interests of others? What sort of other interests do the Government intend to be covered by the provisions of the clause?
The Bill is described in its preamble as being to make,
“provision as to matters to which a court must have regard in determining a claim in negligence or breach of statutory duty”.
I do not see any reference to breach of contract there. But the noble Lord is right in the sense that Clause 3 refers to,
“a generally responsible approach towards protecting the safety or other interests of others”.
That would open the door to the possibility of other interests being considered. Having regard to the general structure of the Bill, I would not wish to add anything to what was said in the House of Commons. I imagine that it is going to be focused primarily on conventional personal injury cases.
I am sorry, but I wonder how the noble Lord can make that observation. If a claim comes before the courts, where there is an allegation of breach of statutory duty or negligence, which as he would readily concede could be negligence arising from a contract, how is that clause to be avoided? For example, the accountant says, looking at the wording of Clause 3, “The activity that I carry out is doing people’s tax returns and advising them on that; I have done it for the last 10 years and I am now going to tell the court about my record”. How do the words in the clause prevent that from being done?
Let me deal with the hypothetically negligent accountant. As I said in answer to previous questions, the Bill is concerned with the activity in question, so it would be the particular tax return or the particular piece of advice, because that is what the Bill says.
I respectfully disagree with that interpretation because it is concerned with the activity in question,
“in the course of which the alleged negligence or breach of statutory duty occurred”.
It would not, therefore, deal with the 99 years of accurate tax returns but would focus on the particular tax return that is the subject of the claim in negligence. That is the correct interpretation of the particular clause.
I will answer the question that I hear from a sedentary position: how do we deal with the question of “generally”? My answer to that is that the “generally responsible” approach is directed at the activity in question. It is difficult to see, frankly, that it would have much of an application on the hypothetically negligent accountant—
Perhaps I may finish answering this question before I answer the next one. The hypothetically negligent accountant—if he or she has made a negligent error—is going to be liable. This is not going to add anything to that position. It would be no good for them to say, “In the 99 other years in which I did this particular act, I did a good job”, because that just would not bite on this. It does not seem to me that it is very likely that, on the particular hypothesis that the noble and learned Lord put forward, it would have any application.
I am grateful to the Minister for giving way. I wonder whether the Minister could be more precise. He talked about the activity in question, but surely Clause 3 has to be read in the light of Clause 1. The whole of this brief Bill is introduced by Clause 1, which tells us:
“This Act applies when a court … is determining the steps that the person was required to take to meet a standard of care”.
Surely one needs to be very precise if one is to understand Clause 3; it is talking about the steps that the person was required to take. It may be that the court is saying, “Well, I am not going to find that the defendant was bound to take that step because I am applying Clause 3”. It is either yes or no, I would have thought. Using the phrase, “activity in question” is far too general. If it is to mean anything, it has to be precisely focused on what Clause 1 is talking about, and the rest will then follow—rightly or wrongly.
Clause 1, in answer to the noble and learned Lord, is describing the scope of the Act, saying that it applies when a court,
“in considering a claim that a person was negligent or in breach of a statutory duty, is determining the steps that the person was required to take to meet a standard of care”.
It then gives, in the three clauses that we are considering this afternoon, three different factors that should be taken into account—or rather, it says that the court must “have regard” to them. Clause 1 is very much scene setting. However, to turn the argument on its head: if, for example, Clause 3 did not have the expression,
“in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred”,
the argument might be stronger, because it could be said that the court must have regard to a generally responsible approach towards protecting the safety of others. Then it could be argued that this is invoking somebody saying “I am normally a conscientious surgeon”, or “I normally look after people in the factory”. However, the very fact that those words are inserted is focusing the court’s attention on the particular activity in question. With respect, therefore, that is my answer to that question.
I submit, of course, that this makes a modest and sensible change, but it is important to bear in mind that the court is only invited to “have regard” to it. If the court thinks that, frankly, notwithstanding a generally or predominantly responsible approach, this particular failure—if such there be—is not acceptable, it will decide on normal principles that there has been a breach.
The amendment tabled by the noble Lord, Lord Beecham, prior to Committee would have removed the word “generally” from the clause without replacement, as he said earlier. This would have removed the obligation on the court to consider the organisation’s overall approach to safety in the course of an activity, which we believe should be a relevant factor. While we cannot therefore agree to a substantive shift in policy, I recognise that concerns have been expressed about whether the phrase “generally responsible” is sufficiently clear. As has been referred to, I said that I would consider the matter, following the debate in Committee.
The House has heard today from my noble friend Lord Hodgson and the views, in his absence, of my noble friend Lord Hunt of Wirral, about the use of the word “predominantly”. I think that that is a better adverb. I am never a great enthusiast for adverbs generally in legislation, but I think that “predominantly” is a better word. It is more focused and conveys with a little more clarity for the purposes of the judge what we intend by that expression.
Provided this clause survives the expected attack from the noble Lord, Lord Beecham, and others, I intend to bring back an amendment at Third Reading which, if not using the precise wording in the order that is proposed, would include the adverb “predominantly” as opposed to “generally”.
I have another question. The Minister’s colleague, Mr Vara, said:
“Narrowing the clause … would mean that … bodies such as voluntary organisations, religious groups or social clubs which demonstrate a generally responsible approach towards protecting the safety or other interests of their clients or members would not be able to benefit from its provisions. That cannot be right”.—[Official Report, Commons, 20/10/14; col. 693.]
That is the argument that he made in opposing an amendment which had been tabled. That seems to suggest that the Government were contemplating situations in which such organisations would be protected in the course of their general functions in the event of a claim arising—rather than, as the noble Lord implied, only in relation to a particular case in which they failed, as it were, to have sufficient regard to the safety or other interests of a client. Surely the noble Lord is in error in advancing the argument that we are looking only at the particular individual who might be involved in such a claim. That seems to me much too narrow an approach to the terms set out in the Bill.
I do not have the full context of what my ministerial colleague said in the House of Commons, but I do not believe that I am in error when I give the reasons for my answers to the various questions that have been posed. As I say, these words are not mere surplusage; they are put in to clarify and limit the extent to which “generally responsible” has an application.
I suggest that this provision is an important but modest reflection of what many people would say was a sensible encouragement of employers to adopt a predominantly or generally responsible attitude to the safety or other interests of others—but which, in appropriate circumstances and subject to the court’s overall discretion, allows these matters to be taken into consideration. That is as far as it goes. It is a modest but, I suggest, sensible addition to the law—and it is an addition to the law, as I think is accepted. Given the clarification I have attempted to give the noble Lord on the limit of the measure’s scope, I invite him to withdraw his amendment.
My Lords, I am grateful to my noble friend for returning to Amendment 1A. I thought for a moment that it had been forgotten in the heavy-duty exchange of legal artillery that was flying across the Chamber. I am also grateful for his reassuring remarks about the possibility of something further being introduced along the lines of “predominantly” if the Bill survives the challenge from the noble Lord, Lord Beecham. In those circumstances, I am happy to withdraw the amendment.
Amendment 1A withdrawn.
2: Clause 3, leave out Clause 3
My Lords, on this occasion I will not follow the precedent of the noble Lord, Lord Hodgson. The Minister has not satisfactorily explained the real purpose or the workings of this clause, although the two things may not coincide in the minds of those who drafted it. It represents a substantive change and, in his noble efforts to minimise the extent of that change, I fear that he has failed to address the new concerns raised by several Members of this House who are much more learned in the law than I would ever profess to be. In these circumstances, I wish to test the opinion of the House.
Clause 4: Heroism
3: Clause 4, page 1, line 17, leave out from “danger” to end of line 18
My Lords, I turn now to Clause 4 and the amendment we have tabled relating to it. We noted the concerns raised in Committee by the noble Lords, Lord Aberdare and Lord Pannick, and my noble friend Lord Attlee that the current definition of “heroism” could be taken to exclude the actions of trained first aid volunteers. That is because the current clause says that a person acts heroically if he intervenes to help somebody in danger without regard to his own safety or other interests. Organisations such as St John Ambulance and the British Red Cross would always train their volunteers to have regard to the potential risks to themselves and others before intervening.
I had a very constructive meeting with representatives from those organisations after Committee to discuss these matters further, which culminated in the amendment that we are bringing forward today. We agreed that the simplest thing to do would be to remove the final 11 words of the clause. This will put beyond doubt that the clause applies to anybody who intervenes in an emergency to help somebody in danger, regardless of whether they acted entirely spontaneously or weighed up the risks before intervening. What is more, St John Ambulance and the British Red Cross, as leading first aid organisations reaching hundreds of thousands of people a year, have said that if the amendment is agreed they will use the opportunity to encourage more people to come forward to act in emergencies. I am very grateful to them for their offer of assistance, which will help to reassure many new first aid volunteers that they can intervene in emergencies secure in the knowledge that the law will be on their side. I beg to move.
My Lords, I also have an amendment in this group. It may be convenient if I say what I have to say now. In many ways, Clause 4, which we are now dealing with, is the oddest of these three clauses. As drafted, it was strongly criticised by the Fire Brigades Union, St John Ambulance and the Red Cross, among others. To take the instance of the Fire Brigades Union, the clause goes directly contrary to advice that it has given for many years to people involved in a fire: to get out of the way of the fire as quickly as they can and to stay out. If they intervene to try to rescue somebody, then they are only likely to put in greater danger the firemen, who will have to come to their rescue as well.
This was pointed out as a difficulty—indeed, as a serious objection—in the other place, but no notice was taken of that criticism until at a very late stage in this House, when the noble Lord, Lord Faulks, gave notice of his amendment to leave out the last 11 words of the clause. Leaving out the last 11 words of this clause is undoubtedly a great improvement, but leaving out half a clause to save the rest of a clause is an unusual thing to do. It only demonstrates that the clause, like the rest of the Bill, was never properly thought out in the first place. In Committee I suggested that it looked like a clause drafted on the back of an envelope. I now think that that may be going too far in its favour. It must surely have occurred to someone at some stage that a clause that protects someone who takes no thought for his own safety, but does not protect someone who takes some thought for his own safety—that, as it was put elegantly, as always, by the noble Lord, Lord Pannick,
“protects the instinctive hero but not the thoughtful hero”—[Official Report, 18/11/14; col. 416.]
—is surely inherently ridiculous. Be that as it may, the objection to Clause 4 is essentially the same as that to Clause 2. The substance of Clause 4, as it will stand if the noble Lord’s amendment is accepted, is already covered by Section 1 of the Compensation Act 2006.
It is difficult to imagine a,
“person … acting heroically … to assist an individual in danger”,
who is not by that very act engaged in a “desirable activity” as envisaged by Section 1 of the Compensation Act. If so, this clause adds literally nothing to the existing law. If the noble Lord in his reply can think of a single example where the point I have made is not valid because something would be covered by this clause and not by Section 1 of the Compensation Act, I hope he will tell us. In the mean time, I submit that it adds nothing and should be rejected on that ground. In due course I will move my amendment too.
My Lords, there is a further reason why Clause 4 is pointless and that is, of course, because it adds nothing to Clause 2. It is very difficult to understand in what circumstances a person is acting heroically in an emergency when they are not also,
“acting for the benefit of society or any of its members”.
Perhaps the Minister can tell the House of a theoretical case that would not fall within Clause 2 that falls within Clause 4. There is no doubt that the removal of the final words of Clause 4 is a distinct improvement. We must be grateful for small mercies.
I have a further concern that when courts have to apply Clause 4 there is ample room for no doubt lengthy debate as to what is meant by “heroically” and “emergency”, neither of which is defined in the Bill.
My Lords, I, too, support the amendment tabled by the noble and learned Lord, Lord Lloyd, for the same reasons as I indicated in respect of Clause 2. It adds nothing. If you ask a simple question whether there is a court in the land which would not, under the common law,
“have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger”,
the question answers itself—of course there is not. I ask the Minister to say what is added by the words “acting heroically by”. Why could it not just be, “when the person was intervening in an emergency to assist an individual in danger”?
Apart from ramping up the rhetoric—that is essentially what this whole business is—what actually is added by “acting heroically by”, except for another hour of the court’s time if eventually it has to apply this clause?
My Lords, I support the amendment which my noble and learned friend Lord Lloyd of Berwick has indicated that he is likely to withdraw. I wish to address briefly the amendment proposed by the Minister and draw attention to the use of language in both Clause 4 and throughout the Bill. I am genuinely shocked by the low standard of draftsmanship in the Bill—presumably it was prepared by government lawyers. It is an elementary principle of statutory drafting that one unit of meaning should be described by one word—that words should not be used interchangeably as the draftsman’s fancy takes him.
At present, the Bill contains the word “person” six times—or five if the government amendment is accepted. It contains the word “individual” once. That very strongly indicates that “person” is being used to describe either an individual or a body corporate. It will be said that when Parliament wants to refer to an individual, it uses the word “individual”. That is the sort of thing that judges say. They assume that statutes nowadays are carefully drafted.
Looking at Clause 4, it may be that,
“without regard to the person’s own safety or other interests”—
words which we are now invited to omit—would be treated as a sufficient context to indicate that, contrary to all normal principles of statutory drafting, “individual” and “person” were being used interchangeably. However, if those words drop out, the person who is acting heroically—whatever that means—is either an individual or a body corporate. No doubt a body corporate charged with providing emergency services in a particular district is a person acting heroically. I suggest that at Third Reading serious thought should be given to the neglect of basic principles of statutory draftsmanship which the Bill reveals.
My Lords, I, too, congratulate the Government on leaving out the 11 words at the end of this clause. Particularly following our debate in Committee, it appeared to me that a “person’s own safety” is not necessarily a part of heroism, so it is a useful removal.
The noble and learned Lord, Lord Lloyd, in speaking to his amendment to leave out the clause, said that his reasons for wishing to do that were broadly the same as his reasons for tabling Amendment 1, which concerned Clause 2. I understand that, and therefore draw the conclusion that I drew a couple of hours ago. I hope that my noble friend will resist that amendment.
My Lords, the noble and learned Lord, Lord Brown, asked what was added by the reference to heroism in the Bill. The answer is that it allows the Government to bestow an acronym on the Bill; otherwise, it would simply be the “Social Action Responsibility Bill”. Now, we have the words “and Heroism”, which make a convenient acronym. That is an interesting way of proceeding with the drafting of legislation and I concur with the noble and learned Lord’s criticisms of that process.
Having said that, the Minister has at least made a concession by, in effect, accepting the amendment moved by the noble Lord, Lord Pannick, to which I subscribed, as I said before. It was of some comfort that St John Ambulance, which was certainly in touch with me and, I suspect, other noble Lords, welcomed that change. The clause does not substantially affect anything, as we have already heard. However, in so far as this modest change makes it marginally more palatable, I welcome the Minister’s concession. He has not been able to offer too many concessions, but I am glad that he has prevailed on the Lord Chancellor on this occasion to make a gesture of an unfamiliarly generous kind to this House. I support the amendment.
My Lords, for the most part the Government’s amendment has been supported. The noble and learned Lord, Lord Lloyd, says that the fact that we had to remove nearly half the clause, because half of it was not worth while, indicates that the clause really was not worth while. That may not do entire justice to his argument, but we say that we responded to the burden of the argument. We listened to the debate and we consulted St John Ambulance. We certainly do not want to do anything that does not realise the main objective of the Bill, which is to encourage people to volunteer, to assist and to provide, if necessary, emergency assistance.
The Government will no doubt take very much to heart the criticism of the use of language made by the noble and learned Lord, Lord Walker. I explicitly do not promise to make any changes before Third Reading but I undertake to revisit the issue in case any further clarity can be attained by the use of “person” or “individual”.
However, I would say to anyone who is not a lawyer that Clause 4 is pretty clear. It states:
“The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger”.
I am really not sure that that is a terribly difficult concept to understand. I think that men and women would understand what was meant to be conveyed by that, and it is perfectly reasonable to ask the court to pay regard to it. The noble and learned Lord, Lord Brown, may well be right that judges would take that into account. Certainly most judges would.
However, the outcome of any negligence case, as those of us who have laboured in that particular vineyard will tell the House, is never clear, particularly when there is a very badly injured claimant. Judges sometimes do not sufficiently bear these matters in mind. The court must now “have regard”—that is all we ask—to whether there is heroism as described. We do not believe that heroism needs further definition or examples. We think that judges should be able to recognise it when they see it.
I submit that, while taking on board the criticism of some aspects of the drafting, this very much maligned Bill and this clause serve a sensible, common-sense purpose, and I ask the noble and learned Lord not to press his amendment.
Before the noble Lord sits down, I wonder whether he would just deal with the principal point made both by myself and by the noble Lord. In what respect does this clause add anything to Clause 2, as it will now stand part of the Bill, or to Section 1 of the Compensation Act 2006? Will he please give us one single example?
I will give the same answer that I gave in relation to the distinction between the Compensation Act and this Bill, which is that the Bill says that the court “must have regard”. That is a distinction. I said in Committee that there may well be an overlap between Clauses 2 and 4. I do not say that they are wholly distinct; they convey an accumulation of concepts which are readily understood, and a judge may find it possible to bear in mind both Clause 2 and Clause 4. That fact does not mean that Clause 4 cannot, in appropriate circumstances, serve a useful purpose.
Before the noble Lord sits down, will he answer the question raised by my noble and learned friend regarding what exactly the word “heroic” adds to Clause 4? Could it not be left out? Intervening for the sake of saving somebody is surely enough. Is there any reason for having “heroism” or “heroically” either in the Title of the Bill or in Clause 4?
Before the Minister answers that, the words that are completely surplus here are “acting heroically by”. Why can it not read, “was intervening in an emergency”? Can the Minister whet our appetite as to whether there is any scenario when you can intervene in an emergency and so on, within the meaning of this clause, without acting heroically? If not, for heaven’s sake get rid of it.
The answer is that the word is used in the clause to describe a particular circumstance which I think would convey to most people exactly what is intended by that clause. Yes, there may be some circumstances in which it is surplusage, and others when it is useful to describe what is said. I am afraid that the criticisms have now been made, and I have given answers to the questions. It is a matter for the House to decide whether they are satisfactory.
Amendment 3 agreed.
4: Clause 4, leave out Clause 4
I am not sure whether I am entitled to say anything more. I do not intend to do so, except to draw attention to the fact that we have not been given any explanation of how Clause 4 adds anything of any utility. However, for reasons best known to themselves, the Official Opposition have decided not to support this amendment. In those circumstances, there is little chance of a result different from that which we had earlier this afternoon. I therefore do not intend to take the opinion of the House.
Amendment 4 not moved.
UK Armed Forces in Iraq
“My Lords, the UK is currently providing substantial support to the Government of Iraq through airstrikes, surveillance, gifting and transporting equipment and the training of Iraqi forces in specialist skills. There are currently around 50 UK personnel working with the Danes in Sulaymaniyah, in northern Iraq, carrying out combat infantry and sharpshooter training. We are coming to the end of the second of four three-week courses. We also have around 10 military personnel in Erbil looking at how we can assist the Government of Iraq in training and equipping other Kurdish forces.
The international coalition is developing its plan for building the capacity of Iraqi security forces. The US envisages a coalition effort across at least four sites in Iraq. Any future UK training contribution would be absorbed into this coalition plan. In early November, I announced our intention to provide further training to the Iraqi military. No decisions on troop numbers, units or locations have been made, although we expect to focus on providing expertise in countering explosive devices.
At Defence Orals on 24 November, I also announced our intention to advise and assist the Iraqi armed forces through the secondment of advisory personnel to command headquarters, and we are considering what contribution we can make. The details of any decision will be announced to Parliament in the usual way”.
I thank the Minister for repeating the Answer given to the Urgent Question asked in the other place earlier today. The thrust of the Answer appears to be that the headlines in yesterday’s papers—in the Sunday Times, the Sunday Telegraph, the Mail on Sunday and the Sun, for example—which said that hundreds of British troops are going back to Iraq are wrong. Are the Government saying to us that these headlines, which appeared in a number of newspapers close to the Government, have just been made up, and have not come as a result of comments made by an inside source, whether injudiciously or otherwise?
The Secretary of State for Defence was quoted as confirming that our Armed Forces would be deployed to four separate sites in Iraq next month to train Iraqi and Kurdish soldiers, and that the training we are going to be offering in January will be in infantry skills and some of the basics, particularly on how to deal with IEDs. The Ministry of Defence has been quoted as saying that decisions on numbers, units or locations have not been made. How long will it be before decisions are made on this issue of providing further training? This will also show just how accurate or otherwise the apparently speculative leaks in yesterday’s newspaper reports were. Bearing in mind what the Government have said about not involving combat troops, what will be the size and composition of the force protection element of the training mission? What is the nature of the requests for further help that have come from the Iraqi Government?
We have supported steps taken by the Government, regional partners and the international coalition in combating ISIL. Do the Government not accept that rather greater clarity is now needed about the role of our Armed Forces in Iraq, the scale of their involvement, and the timeframe of training operations? Would they agree that the public, our Armed Forces and Parliament are entitled to be told about this directly by the Government, rather than via what appears to be a leak—from whatever source—to the media?
My Lords, I assure the noble Lord that we have no plans to send hundreds of soldiers to Iraq, and never did have such plans. The UK is already making the second largest contribution to air strikes and surveillance after the United States. Our training effort in Iraq will be small scale and niche, building on the UK’s strength in areas where we are best able to support the coalition. This will be a very limited mission. Our Prime Minister has made it very clear that we are not going to recommit ground combat forces to Iraq. As the Iraqi Prime Minister himself said on 17 September, the Iraqi Government do not want to see foreign troops fighting on the ground.
The noble Lord asked how many people we are sending. At the moment, I cannot tell the House very much. We have not set a number, but it will be very low. It will be mainly specialists with niche skills, such as counter-IED. That is something in which the British Army has excellent specialists. We will also be advising the Iraqi army on how to manage its headquarters. We have no plans to send in ground combat forces.
The noble Lord also asked what further help the Iraqi Government have asked for. We are in discussions with the Iraqi Government. It is the Iraqi Government who have requested help from us. The Secretary of State was in Iraq last month, and discussions are continuing to take place.
My Lords, we are confident that it is working. We have a very active training programme, which I can tell the noble Lord about. We are carrying out training on heavy machine-guns and combat infantry training. We feel that any training of this sort will help the Iraqi security forces to train up to combat ISIL.
Is my noble friend aware that the House will be grateful that he clarified the point that there is no intention to put in combat troops, because clearly misunderstandings arose over that? It is helpful to have that cleared up. In respect of the question asked by the noble Lord, Lord Jay, what sort of numbers are going through this training programme, and what sort of length is it? Obviously, in some respects, getting greater expertise and skill within the Iraqi armed forces at this time is a matter of some urgency.
My noble friend makes a very good point. These training courses are very important. Following on from the noble Lord’s earlier question, we feel that it is very important that we build them up. We are still scoping these training courses. As I said, we have just completed several courses in the Erbil area in heavy machine-guns. We are currently doing combat infantry training and sharpshooter training with the Danes in the Sulaymaniyah area. Two more courses are being carried out.
Our soldiers have helped commercial contractors to train the Iraqis in counter-IED. As I said earlier, this is something in which we have a real niche speciality. I can assure my noble friend that the “advise and assist” recce team returned to this country on 7 December, and options are being considered to set up a logistics headquarters and a ninth armoured mechanical division. PJHQ is developing a business case for counter-IED training at two build-partner capacity sites.
Will my noble friend tell the House whether, across government departments, there has been an assessment of any further terrorism risks in the UK because of our further forays into Iraq? Could my noble friend also say whether the perceptions of what the UK forces are doing in Iraq has been consulted on with our ambassadors in Egypt, Jordan and the Gulf states?
I can assure my noble friend that we are in discussions with the Foreign and Commonwealth Office and DfID. As my noble friend knows, General Sir Simon Mayall has been out to the Gulf. He has just returned from Egypt and has been discussing with the Egyptian Government the very point that my noble friend raised.
The noble Lord raises an important point about rules of engagement. As we are still scoping the numbers to go out and they are very small numbers, it is too early to say anything about the rules of engagement. But we are confident that members of the Armed Forces who are being sent out will be there in a training role and they will be far from the combat zone. Once we have finished our scoping, this important issue will be looked at very carefully.
I agree with my noble friend. We have absolutely no plans for mission creep. We have previously announced our intention to support the Iraqis with training their forces and, as I said earlier, the Iraqi Prime Minister has been very clear that they do not want to see western ground combat forces.
My Lords, I pay tribute to my noble friend who of course knows Iraq very well, having himself served on Telic 1. As for help from other coalition members, there have been significant offers of support in principle from coalition partners. For example, I understand that the Australians have offered up to 400, New Zealand up to 100, the Danes 120, the Germans around 100 and Italy 280. The US has authorised up to 3,100 personnel to be in Iraq.
Northern Ireland: Talks Process
My Lords, with the leave of the House, I should like to repeat as a Statement the Answer given to an Urgent Question in the other place by my right honourable friend the Secretary of State for Northern Ireland. The Statement is as follows.
“I am grateful for the opportunity to update the House on the cross-party talks which have been taking place in Stormont over the past nine weeks. In September, the Government concluded that the time was right for a fresh round of political discussions to be convened with the parties in the Northern Ireland Executive. The Irish Government reached the same conclusion.
The aim was to address some key issues which are hindering the effectiveness and credibility of devolution and the Stormont Executive. These included: welfare reform and the Executive’s budget; the so-called legacy issues of flags, parading and the past; and reform of the political institutions. The talks began at Stormont House on 16 October.
As a signatory to the Belfast agreement, the Irish Government have been fully involved in all those matters where they too have responsibilities, consistent with the three-stranded approach, which means that the internal arrangements for Northern Ireland are a matter for the UK Government and the parties.
I would like to take this opportunity to put on record my thanks for the positive and constructive role played throughout by the Irish Minister for Foreign Affairs, Charlie Flanagan TD, and his team of officials. In addition, I am very grateful for the support and wise counsel of my honourable friend the Member for South West Wiltshire, the Parliamentary Under-Secretary of State at the Northern Ireland Office. The US Government have also been supportive and closely engaged with this process, in particular through Secretary of State Kerry’s representative, Senator Gary Hart. So far around 90 hours of formal talks have taken place.
My right honourable friend the Prime Minister and the Taoiseach, Enda Kenny TD, have been closely following the whole nine-week process, and on Thursday they joined the discussions directly. They conducted an intensive round of talks with the Executive parties and I would like to thank both of them for their support, perseverance and ongoing commitment to the process.
Despite their efforts, by early Friday they made a realistic assessment that there was still insufficient consensus across the parties for a broadly based agreement to be reached. Shortly afterwards, all five Executive parties declared their firm intention to continue to strive for a deal. They asked me and Minister Flanagan to take part in a resumption of discussions on Friday afternoon, which we duly did.
Let me briefly set out to the House the outline of a deal put on the table on Thursday. A draft heads of agreement was tabled including a fresh approach to the past which puts the needs of victims and survivors at its heart, devolved arrangements for adjudicating on parades that would see the Parades Commission replaced by a new authority and reforms to the institutions such as support for those parties that might want to form an opposition within the Assembly.
The draft also sought a commitment from the Executive to press ahead with welfare reform though with a number of flexibilities to reflect Northern Ireland’s circumstances and to implement a serious efficiency programme to make long-term savings in the costs of government. This draft was the result of the work of both the UK and Irish Governments respecting the three-stranded approach and we believe that it represents a balanced package and a sound basis for cross-party agreement.
During the evening, the Prime Minister also set out proposals to provide further financial assistance from the UK Government. This included flexibilities which would have given the Executive nearly £1 billion of extra spending power to help them through their current difficulties and support their most important priorities. It would also allow the devolution of corporation tax to go ahead—a change which just a few years ago seemed inconceivable and undeliverable is now within the grasp of Northern Ireland’s leaders, if they choose to take it.
The talks resume this week and the stakes are high. All parties agree that if there is no agreement before Christmas, we will not get this close again for months or even years. In particular, failure to agree a balanced final budget would leave the Executive increasingly unable to conduct even ordinary day-to-day business effectively, so this week is crucial.
All of us have a responsibility to do whatever we can in the few days left to us. The UK Government have shown that they can compromise, even over hugely sensitive and difficult issues regarding Northern Ireland’s past and even when resources are constrained by the need to deal with the deficit. We will continue to do all that we can to deliver agreement within the financial constraints in which we are operating.
However, the UK and Irish Governments can only do so much. Ultimately, whether an overall agreement is reached is down to Northern Ireland’s political leaders. They have a chance to show that, once again, they can move Northern Ireland forwards towards a better future, where politics works, the economy grows and society is stronger and more united. This is the prize on offer, and I know that all participants in the talks will have the support and good will of the House in our continuing efforts to seize it”.
My Lords, I am grateful—as I am sure the whole House is—to the noble Baroness for repeating this Statement made first in the House of Commons.
There has always been a broad consensus among the parties, although we have expressed in minor and quite mild terms our concerns about the lack of proper engagement by the Government since 2010. Does the Minister understand the disappointment and surprise of the five Executive parties at the swift exit of the Prime Minister from the talks? That compounds what is perceived by the people of Northern Ireland as a lack of total engagement by the current Government on the issue of Northern Ireland. Non-agreement on the difficult issues of flags, parades and the past means that many communities in Northern Ireland remain divided. What progress does the Minister think has been made in helping to build a shared future for Northern Ireland? As we all know, failure to agree on contentious issues such as flags and parading has in the past led to violent protest. Is the Minister, therefore, concerned by the chief constable’s warning that cuts to the service’s budget will mean that it will have fewer resources to allocate to policing public events?
My Lords, I think it is absolutely unacceptable to suggest that the Secretary of State has been anything less than totally dedicated to these talks. The Secretary of State has personally worked on this very strongly every week since October and has made every effort to ensure that the talks are successful. The Prime Minister has remained very closely in touch.
I remind the House that there is a very strong imperative here to reach agreement. The prize, as was pointed out in the Statement, is the devolution of corporation tax. It is a fact of life that this Government are drawing to a close with the coming election. To get legislation through Parliament in time for the end of our business, with the election coming, it is essential that the agreement on corporation tax is made virtually immediately. Therefore, the Prime Minister’s efforts are concentrated in time to enable this agreement to take place in a way that enables devolution of corporation tax to be effective.
The noble Lord is very accurate in his comments on the impact on day-to-day services in Northern Ireland. He mentions the PSNI, but if there is no agreement on the budget it goes across the board. I urge the parties in Northern Ireland to redouble their efforts, because it is essential that they reach agreement so that day-to-day services can continue to be delivered.
I thank my noble friend for repeating the Statement, to which I listened carefully. However, given that the Statement says that the Prime Minister and the Taoiseach judged that there was insufficient consensus for a broadly based agreement and that there is only one week in which to find any agreement, one is led to the conclusion that the best to be hoped for is for something to be cobbled together that could take us to the other side of the Westminster election, when the numbers of people elected, the balance of parties and coalitions and so on may be different.
However, I am struck by the fact that the Statement says:
“If there is no agreement before Christmas”—
a week away—
“we will not get this close”,
not for a few weeks but,
“for months or even years”.
One might take from that that there was an expectation on the part of the Government that we might be moving towards direct rule. Can the Minister confirm that before there could be any movement towards direct rule, there would have to be an election for a new Assembly in Northern Ireland, to give newly elected Members the opportunity to get into negotiations and to try to form a Government?
Secondly, can she confirm that if that were not achieved and there was direct rule, that there would be implementation—“press ahead” was the phrase used—of welfare reform, and, in the words of the Statement, the implementation of,
“a serious efficiency programme to make long-term savings”?
Can she confirm, too, that the Irish Government would have to be involved in all the cross-border bodies that are already in existence and—without doubt, given that the security situation would be likely to suffer—cross-border co-operation on security and justice issues as well?
It is important not just to pose these questions but to get an answer, because I have the sense that on both sides in Northern Ireland there is a failure to recognise the process that would ensue from lack of agreement, and the consequences for people from both sides in terms of welfare reform, efficiency savings and cross-border co-operation between the British and Irish Governments.
My noble friend makes some important points about the process to be followed. I start by saying that the agreement needs to be genuine, and not something cobbled together, because that would fall apart. My noble friend is right to point out that the Statement clearly says that the window of opportunity will close in the new year. The realities of the time in the electoral cycle make it difficult. If the Executive were to collapse, the first and immediate result of that would be an election, and only if we were unable to re-establish an Executive would it be possible to think of direct rule. There is no legislation in place for the re-imposition of direct rule. If direct rule were, very regrettably, the eventual outcome, it would have to be in accordance with the terms of the Belfast agreement. My noble friend is right to point out that there is a role for the Irish Government in those terms.
My Lords, I thank the noble Baroness for bringing the Statement to the House. She hit the nail on the head when she talked about returning to the Belfast agreement. That was in 1998, and since then we have had little more than tokenism as far as Westminster is concerned. Let me reiterate what the noble Lord said earlier. We have no hands-on direct involvement between Northern Ireland and the Palace of Westminster despite the fact that we are part of the United Kingdom. The Prime Minister arriving without any consultation that I am aware of with anyone who went through the entire talks process from 1994 to 1998—in fact, it was even longer than that—and a Secretary of State who has been negligent in her liaison with those who have experience not only of the political problems but of the terrorist problems that we suffered in Northern Ireland for 28 years, is quite ridiculous. We cannot assume that a 24-hour or 48-hour visit will have the slightest impact on the problems we face or on building confidence between two sections of the community which are still sadly—
The noble Lord refers to a lack of hands-on involvement by the UK Government. I would point out to noble Lords that that is what happens when you abide by the terms of the devolution agreement. If Northern Ireland is to recover from its past, it is essential that the politicians and the structures of Northern Ireland be allowed to bed in, to develop and grow, and to work. It is important to bear in mind that we have now had the longest period of devolution in Northern Ireland since the 1960s, and the success of that period should be acknowledged.
National Parliaments (EUC Report)
Motion to Take Note
My Lords, this is not just a debate about a Select Committee report, or about internal parliamentary processes. It is also by extension a debate about the future of the European Union and the United Kingdom’s relationship with it, so I am delighted that so many noble Lords are here to debate this vital issue.
Today, Europe faces huge, almost existential problems, and the economic crisis has thrown the deficiencies of the Treaty of Lisbon into stark relief. Growing disenchantment and disillusionment with the EU is evident in the continuing fall in participation in elections to the European Parliament, the rise in extremist parties across Europe, and the lack of trust between elected officials and their electorate. The question of democratic legitimacy now needs serious public debate so that the people of Europe can contribute to finding an answer. This is not just a crisis of public confidence in the Union, it is also a crisis of public confidence in politics more generally. Not every vote for UKIP is in my view necessarily a vote to leave the European Union—often it may simply be a protest vote, a vote for “none of the above”. However, we will never succeed in overcoming the Europe-wide democratic deficit unless we also look at and address our own shortcomings. It is not “their” problem over in Brussels, it is also our problem here in Westminster.
Giving national parliaments a more positive and active role in European affairs is not a panacea, but it is a key component in addressing the European democratic deficit. That view is widely shared across Europe, and I pay particular tribute here to the work of our colleagues in the Dutch Tweede Kamer and the Danish Folketinget, which is highly consonant with our report. The European Commission and the United Kingdom Government have also given their support. The Commission has expressed enthusiasm for better engagement with national parliaments as a natural extension of the existing political dialogue. The new Commission First Vice-President, Frans Timmermans, is particularly supportive, and his enhanced role within the new Commission overseeing relations with national parliaments and the issues of subsidiarity and proportionality, is very much to be welcomed.
The problem is in moving beyond easy generalities and warm words. Underlying the general agreement that national parliaments should have a greater role, there are many different political perspectives. Some in the European Commission may see strengthening national parliaments as a way to increase democratic control of the actions of national Governments in the Council of Ministers. In statements by Her Majesty’s Government, their emphasis on national parliaments sometimes acquires a tinge of slightly Eurosceptic flavour, while at the other end of the spectrum, some in the European Parliament fear that proposals to increase the role of national parliaments may simply undermine their own authority. There are also significant practical organisational problems in mobilising national parliaments to action. Against that backdrop, perhaps it is not surprising that whenever it comes to taking specific and concrete action, everything suddenly seems too difficult.
We on the European Union Committee of your Lordships’ House are acutely aware of these problems as we battle to make progress on several fronts at once. On the domestic front, we confront growing deficiencies in Her Majesty’s Government’s handling of parliamentary scrutiny. There is no point in the Government professing to support an enhanced role for national parliaments if they have neither the will nor the capacity to submit their own actions in Europe to proper parliamentary scrutiny.
Last week, the committee took evidence from the Minister for Europe, David Lidington, and I listed a series of failures by various departments over recent months. I will not repeat myself now, but instead and I hope for the last time, I will touch briefly on parliamentary scrutiny of the United Kingdom’s justice and home affairs opt-out. I described this sorry saga at length during our last debate on 17 November. All that I will add tonight is that the Home Office, having consistently failed to abide by its obligations under the scrutiny process, capped it off last week by refusing our request for an oral Statement explaining the scrutiny overrides that took place on 1 December, and then failing even to publish a proper Written Statement. Instead, the department tried to sneak its explanation in under the radar as an annexe to a Statement on the unrelated Justice and Home Affairs Council on 4 December.
I trust that the Minister, as a former chairman of our Home Affairs Sub-Committee, will understand my concern over those events. Will he confirm in his reply that the first essential step towards strengthening the United Kingdom Parliament’s role in the EU is for the Government to do everything in their power to support effective domestic parliamentary scrutiny of European Union matters? I hope also that he will set out for the House some practical steps that the Cabinet Office, which he represents in this House, is taking to address its own shortcomings, and which have been the subject of further correspondence. Put simply, the Government must get their own house in order first of all.
However, this is not just a government problem. The onus is also on us as a national legislature to make a more effective contribution to developments in Europe. We need to elevate the debate on the European Union, speaking with equal honesty about its benefits and its shortcomings. If we fail to do that, the risks are clear. I suspect that the leaders of the two main parties in this country may now be regretting their refusal to engage in a proper debate about United Kingdom membership of the European Union in the run-up to the European parliamentary elections earlier this year, as by so doing they effectively gifted control of the political agenda to UKIP. I might mention at this point that Her Majesty’s Government still refuse to acknowledge in print the democratic mandate of the European Parliament, even though meetings with individual Ministers suggest that the views of the Government are more nuanced than they are willing to admit publicly.
So much for the political background to tonight’s debate. For the remainder of my time, I shall touch on the efforts we are making in the European Union Committee to make progress in a few specific, targeted areas. The first of these is the reasoned opinion procedure. This is the only formal role in scrutinising European legislation given to national parliaments by the treaties, and as such it has an important symbolic value, but it can work only if there is good will on all sides, particularly within the European Commission. Hitherto, frankly, that good will has been lacking, and the Commission’s recent hasty, legalistic dismissal of the yellow card issued in respect of the proposed European Public Prosecutor’s Office was frankly and simply unacceptable.
We suggest in our report various ways in which the reasoned opinion procedure could be improved, without, we believe, the need for treaty change. These could include, for example, extending the deadline or reducing the threshold necessary for a yellow card to be issued. The essential point is that a yellow card should have a real impact, and be seen to have that impact. If a quarter of national parliaments feel strongly enough about a proposal to lodge reasoned opinions, then the Commission must sit up and take notice. It must undertake, if not formally to withdraw the proposal, then at least to amend it substantially. More generally, the Commission needs to be more open to dialogue with national parliaments. It must be prepared to argue its case and, on occasion, change its mind. The new Commission has publicly undertaken to be more receptive to reasoned opinions, which is good news, but the real test, in practice, has yet to come.
A bigger challenge for national parliaments is to engage upstream, in the early stages of policy development, when there is the greatest potential to exercise influence. That is especially difficult in our system of parliamentary scrutiny as it is predicated on reviewing legislative proposals only after they have been formally adopted by the Commission. In effect, we are stuck in reverse, when what we really want is a forward gear.
The so-called green card, described in paragraphs 55 to 59 of our report, could offer us that forward gear. The idea is straightforward: a group of national parliaments should be able to come together to propose legislation to the Commission, and the Commission should undertake to consider and respond to such proposals.
I emphasise that a green card procedure would not necessarily mean more legislation, or yet more Euro-initiatives. It could mean the amendment or repeal of existing legislation. Indeed, my sense is that the current Commission would be much more likely to respond positively to proposals from national parliaments which supported, for example, its own REFIT programme to simplify European law and reduce regulatory burdens. That is also very much our Committee’s approach. The response to the green card idea has so far been positive. At the COSAC conference—that is, the conference of chairs of committees such as the one I represent in your Lordships’ House—in Rome earlier this month, there was widespread support for the concept.
A treaty—I would be subject to advice—is, of course, concluded between member states and, although it is part of the constitution, it is not, by itself, part of the legislation. I think that if there were a widespread demand for a change in the treaty for good reason, that could certainly be taken forward as part of the political dialogue.
To return to COSAC, we met in Rome earlier this month and there was widespread support for a green card and a very positive attitude. More meetings are planned in the new year, at which we will explore in detail how a green card procedure might work in practice. We are also looking at other ways to encourage upstream dialogue between national parliaments and European policymakers. In particular, we need to focus more on scrutinising the Commission’s work programme. We know that President Juncker has promised a more politically responsive work programme, focusing on growth and jobs. We need to be engaged in developing and realising this. That means we need to be more agile, talking to the Commission, responding to consultations, building up alliances with colleagues in other national parliaments and the European Parliament, keeping in touch with our own Government, of course, and undertaking forward-looking inquiries.
Reconnecting the European Union with its citizens is not going to be easy. Nor is it going to be easy, over coming months, to defend the United Kingdom’s continuing role in the European Union. I believe passionately that finding practical ways to enhance the role of national parliaments—which are, by definition, close to their citizens—is an important component in our response to both these challenges. We need a new approach and a new way of working jointly with our partners. I and my colleagues on the European Union Committee will do our part, but I also look to Her Majesty’s Government to lead by example. They must show, by diligently respecting the scrutiny process as it affects the two Houses of this Parliament, that they genuinely embrace the involvement of Parliament in European Union law-making. This is now less a time for words and more a time for effective action. I beg to move.
My Lords, I am very pleased to have the opportunity of speaking in this debate, both as a member of your Lordships’ Select Committee on the EU and as the chair of the EU sub-committee dealing with justice, institutions and consumer affairs. Having only recently become chair of the sub-committee, I begin by paying warm tribute to my predecessor, my noble friend Lady Corston. I know from my own experience and also from other members of the committee how much her wise, calm and friendly chairing of the committee was appreciated. Under her guidance the scrutiny work of the sub-committee was thorough and detailed. This was particularly true in the case of the role of the European Public Prosecutor’s Office, referred to a minute ago by the noble Lord, Lord Boswell, where the committee’s report leading to a reasoned opinion being approved by your Lordships’ House raised issues which are relevant to this report and to our debate this evening.
I very much welcome the report that we are discussing today and the way it has been presented to us by the noble Lord, Lord Boswell. The conclusions of the report contain many worthwhile recommendations which I hope will be acted upon. Indeed, noble Lords will know that our reasoned opinion on the European Public Prosecutor’s Office was one of a number approved in national parliaments across the EU, leading to the yellow card threshold being reached. Yet, as the noble Lord said, when a yellow card is issued, in theory the European Commission should engage seriously in a discussion with national parliaments about it, but in this case it failed to do so.
We very much hope that the new Commission, the words of which have so far been very encouraging in terms of relations with national parliaments, will take much more seriously any yellow cards issued in future. Certainly, the appointment of Frans Timmermans as a senior vice-president with specific responsibility for relations with national parliaments is something we should build on in order to try to get a much more effective system than we have had up to now. I also endorse what the noble Lord, Lord Boswell, said about the desirability of national parliaments being able to influence the process around a green card at a much earlier stage than is normally the case at present.
Some of our recommendations are, of course, directed to the Government. I hope that the Minister will be able to assure us that they will deal with the European Union Select Committee and the sub-committees in a timely and responsible way. On the whole, the Government engage with the work of the committees, but none the less, as the noble Lord, Lord Boswell, said, there have been a number of examples of where the Government have not replied to committees in good time. There certainly needs to be consistency across government and government departments. It would be good to hear in which ways the necessary co-ordination is going to be achieved in future.
In considering these issues, on a personal note, I am influenced not only by being a Member of your Lordships’ House but by having been a member of the scrutiny committee in the House of Commons in the early days of that committee, by having been Europe Minister and by the fact that I began my elected political life as a Member of the European Parliament in the first directly elected Parliament way back in 1979. Perhaps because of that, I am particularly keen to endorse the words of the noble Lord, Lord Boswell, who is on the record as saying that the relationship between national parliaments and the European Parliament should not be a zero-sum game.
Indeed, I somewhat bridled at part of the Government’s response to our report. While it said, quite rightly, that national parliaments seek to be, and in many cases are, close to their citizens, the subtext seemed to denigrate the European Parliament and its representative role, which would be unfortunate. While I yield to no one in my admiration for the thorough work this House does in scrutinising European legislation, it has to be said that we are not elected and we do not have constituencies or geographical areas to relate to or to represent in that formal way. Furthermore, given that Members of the European Parliament represent political parties, they do not campaign just in European elections but take part in general and local elections and presumably have plenty of contact with voters in doing so. I was an MEP in the days of Euro constituencies, which I have to say I rather approve of in comparison with the large regions that are represented today. In that role, I had regular contact with people affected by European rules, whether in the fishing industry, which was a very controversial issue at the time in terms of European legislation, or in the shipbuilding industry, which was big in my European constituency at the time, or in companies, local authorities, charities and others seeking to access European funds or simply requesting information about European single market rules which might affect them.
I am concerned not to promote competition between national parliaments and the European Parliament but to look at ways in which the joint working of the two can be improved. It seems to me sad and somewhat ironic that in these days when the European Parliament has much more power than it had when I was an MEP, contact in many ways seems less frequent and less productive than it was then. I therefore think it is an urgent matter for us and others to consider.
There are practical problems in that the timetables of MEPs, MPs and Members of your Lordships’ House mean that physical contact and joint meetings are challenging, at the very least. None the less, with modern technology that could be overcome, and at least some of the recommendations in the report in front of us today about how committees in both Houses of Parliament could link with rapporteurs and spokespeople in the European Parliament committees need to be acted on and would be a practical way forward to encourage the kind of joint working we would like.
I believe that a more effective role for national parliaments, as well as better co-operation between national parliaments and the European Parliament, can mean better scrutiny and much more accountability and transparency in the European decision-making process. This must improve democracy and help address the democratic deficit. That has to be in the interests of all the citizens whom we seek to serve.
My Lords, as the noble Lord, Lord Boswell, said in his introduction, this report and debate are particularly important because they are about democratic accountability within the European Union—something that all of us, whether we are anti-Europe, pro-Europe or trying to reform Europe, are aware of, and something that needs to change.
The noble Baroness, Lady Quin, mentioned the 1979 election. I, too, was an MEP, but I did not enter the European Parliament until 1994. Before 1979, we had a European Assembly made up of national parliaments—and, basically, it did not work. That is why it needed to change at that time. I am glad to see that the report does not look back to that sort of model. It is good news that we are not trying to work back in that way.
It is useful to say how the system is supposed to work. National parliaments have a very specific role within the European architecture. They always have done. It is clearly to call national Governments to account. That is the fundamental element of European liberal democracies. Parliaments are there to control their Executives and their Ministers. It is Ministers who go to the Council of Ministers and make decisions. Whether before or after those decisions, national parliaments have a fundamental role in the way that Europe works through the Council of Ministers.
The European Parliament has its direct democratic role in terms of representing citizens, however well that does or does not work, and what you have, although few people outside this architecture understand it, is effectively a bicameral European Parliament. You have a house that represents citizens, which is the European Parliament at the moment, and you have a house that represents nation states and Governments, which is the Council of Ministers. Between them, they make decisions.
They do not initiate legislation under normal circumstances, but of course in the UK the Houses of Parliament do not on the whole initiate legislation, either; it is done by the Executive. Successful Private Members’ Bills are few and far between. That is how the system should work: national parliaments tie down their Ministers and their Governments in terms of accountability, and you have a European Parliament that should be fully respected by its citizens and represents direct democratic accountability.
Of course, that does not work perfectly. In fact, it does not necessarily work very well at all, because for that system to work there needs to be full confidence in the European Parliament and parliaments have to call Ministers to account effectively. It needs national Members of Parliament to understand how European institutions actually work, and that is a huge challenge. Certainly, when I was an MEP, I was quite astounded by how national parliamentarians had no clue about how the European Union worked. That is key, and I find it quite strange.
It also needs subsidiarity to work. Subsidiarity means that the European Parliament and the Council of Ministers do only things that are appropriate to the legislation they are undertaking, but that requires a common understanding of what levels of subsidiarity might be, and there is quite a north/south divide on that.
The first route in terms of getting institutions to work to more democratically is to get that system to work. Certainly, in terms of European Union reform and the European Parliament, that requires getting rid of the double seat of Strasbourg and Brussels, the European Parliament stopping its penchant for turf wars with the other institutions, and better representation. I entirely agree that regional representation is much better because of proportional representation, but it is more difficult in terms of single-Member accountability. Ironically, I was the Liberal Democrat who suffered from proportional representation in 1999. In certain nations, such as France, there is the national responsibility of deputies. I do not think that is a very good system, but clearly national Governments should be able to decide. The size of the European Parliament should perhaps be controlled, but who are we, as the House of Lords, to preach on that matter?
When it comes to national Parliaments, I think that the most important thing, in terms of national architecture, is that we do not start setting up further institutions that do not have the power to do anything. The Economic and Social Committee—and I would even say the Committee of Regions—are bodies that were set up at particular times. They are there for consultation, they can give their opinion, but, other than that, they have no ability to influence what goes on. I think that that is a major lesson. In my view, they should be abolished because of that.
I think the yellow card system is a good one, but we have seen, perhaps because it is in its infancy, the difficulty of getting it to work. The green card system that the committee has described is very positive and could be set up, I am sure, without a treaty change in terms of having an institutional agreement, which happens a lot within European institutions. Certainly my experience when I had the honour to chair the EU External Affairs Sub-Committee, when I went to one of the newly established Defence and Security Conferences that happen every six months in the capital of the presidency at that time, was very mixed. It was to a degree a talking shop. Some of the nations felt that it should be able to give recommendations and vote, which it could do on certain issues. Others felt that we should keep well away from that area. It was very limited in what it was able to do.
As far as the commission is concerned—we have, of course, 28 commissioners from 28 member states—I wonder whether each commissioner should be allocated not their own nationality but a country, an EU member state with which they particularly liaise. That may be a way in which accountability to national Parliaments could work. It is particularly important in the second-pillar areas, justice and home affairs and foreign affairs, where there is not exclusive European Union competency.
For instance, the High Representative issued an annual report on the External Affairs Committee’s success or otherwise during the year. That would have been something that we wanted to talk to the external affairs service about, and I am sure that other national Parliaments would have wanted to as well. Clearly the external affairs High Representative is not someone who can go around to 28 member states, but there are other ways of doing that. I think also—and I do not think the report gets fully into this—that with regard to the President of the Council, Donald Tusk, there is a need for direct parliamentary accountability to a degree.
Here in Westminster I agree entirely that there should be pre-Council scrutiny. I think our own sub-committees should scrutinise legislation openly. We have closed sessions at the moment; I do not understand that. They should be open. We should show the transparency in this House that we are asking for elsewhere. There should be greater liaison between House of Commons committees and the House of Lords. The EU Committee has tried to bring together MEPs, MPs and Members of this House in a triumvirate of discussions. That has been of limited success, but I think it should work hard on that.
I think that the biggest gap, though—and the report emphasises this—is in the area of economic and monetary affairs. That does not affect the United Kingdom quite as much as others, but there is definitely a deficit there. In other reports that I have read, there has been almost an opt-out by national parliamentarians to get involved with those issues at a European level—except for the Republic of Ireland. That is quite strange, because it is an area that clearly needs to be filled in terms of democratic accountability. I was interested in Graham Bishop’s evidence in the report that it was only the ECON committee that had any chance of calling the ECB to account. I think that that is absolutely correct.
I very much welcome this report. I am very pleased that the Minister replying, my noble friend Lord Wallace of Saltaire, has a long history in European issues. I look forward to his reply to the many questions that there will be. Certainly, democratic accountability is wanting. The European Parliament is an excellent institution that needs to improve itself. This is an area that we need to make work as it is supposed to by making the improvements suggested by this report.
My Lords, I count myself very much a new boy on the European Union Committee of your Lordships’ House, although I have served on sub-committees, which do such valuable work in monitoring what goes on. It was particularly instructive for me to serve under the chairmanship of the noble Lord, Lord Boswell, on this particular report on the relationship with the European Parliament.
We are all very familiar—much too familiar, as the noble Lord, Lord Boswell, said—with the general disenchantment in this country with political institutions. It is true that the disenchantment with European Union institutions goes even deeper than that. It is striking to compare that with the atmosphere in Scotland during the referendum earlier this year. There was enormous enthusiasm, voter turnout of 85% and deep, long discussions for weeks before the referendum took place. This was completely different from the attitude towards the overall national institutions and, indeed, towards Europe.
It may be that absence makes the heart grows fonder, but in political terms we see no evidence that political distance from the institution to which you belong makes the heart grow any fonder at all—rather, the contrary. That is why, surely, the role of national parliaments in the European Union is so important and why the recommendations of this report can be so useful in dealing with the problem.
National parliaments, after all, if seen to be taking an active role in European Union affairs and not just holding our own Ministers to account—which I think we do very well—can make people feel that their own views and their own interests are being properly brought to bear on European institutions. It does not solve the whole problem of mistrust of European institutions, but it can and it should help. I am sure that other noble Lords are much more capable and experienced than I am to deal with the detailed recommendations of the report. I should like to touch in general terms on two aspects. One of them is the relationship with the Commission; the other is the relationship with the European Parliament.
When the committee visited Brussels to hold talks, I was struck by how responsive and how willing to discuss matters some commissioners and some of the very well informed officials there were. That was not true of all commissioners, or of all officials, but it was quite marked how much it helped to go and talk to the people there. The use of the reasoned opinion—the so-called yellow card procedure—has already been dealt with in detail by the noble Baroness, Lady Quin, but one cannot help but be struck by this institution’s being a very good way of involving national parliaments. Very seldom is it possible for the national parliaments to get together and produce enough votes to convince the Commission that it needs to think again. On that one recent occasion to which the noble Baroness, Lady Quin, referred, what did that particular bit of the Commission do but simply, brusquely brush it aside and pay no attention whatever to what was said? That cannot be right and one hopes that it will never be repeated.
Fortunately, it seems that the new Commission is more conscious of the need to be responsive to the views of national parliaments. Let us hope that the new Commission will also be more flexible in the ways that could broaden the grounds for objection by national parliaments; for instance, the idea of a test of proportionality—the sledgehammer-to-nut type problem. Although that is not covered by the treaties, it should surely be possible, with the right will, to find informal ways in which that, too, could be taken into account by the Commission. Of course, attempting reforms on small matters such as this would not possibly justify treaty change, but if there is the will, then on a number of these things one gets the impression that it should be possible to find informal ways in which they could be carried forward.
It is right that we should press for a greater role for national parliaments, but it is right, too, that we should not just talk about the greater legitimacy that it would give to European institutions if our national Parliaments were involved, but also recognise the legitimacy of the European Parliament and take account of that, particularly since the Lisbon treaty.
I shall just make one point on the question of having greater contact with our own MEPs. This falls by the wayside all too often, as the noble Baroness, Lady Quin, said, often because of timetabling issues, with MEPs rushing back to their enormous constituencies when there is no time for them to stop here in Westminster. It would be helpful if we could have greater contact with our own MEPs, here in Westminster if possible, but otherwise with us going to Brussels, or to Strasbourg if the Strasbourg institution is still operating. That would be a great advantage.
In all these things, we need to somehow get through the problem that the European institutions look like some huge and impenetrable bureaucratic machine, and the further away we are from it the more impenetrable it seems. If we can enhance the amount of personal contact that we have with our MEPs, commissioners and people who work in the Commission, I am sure that this would help. In many ways, it could be much more effective than reams of official papers.
It is encouraging that the Government took a generally positive attitude towards the recommendations of the committee, and encouraging that the new Commission seems responsive to the idea of greater involvement by national parliaments. However, much needs to be done to increase the role played by national parliaments, and we will need all these favourable winds to see the necessary and practical recommendations in the committee’s report put into practice.
My Lords, I am delighted to have been a member of the committee that produced this report. I join others in congratulating the noble Lord, Lord Boswell, on the way in which he chaired the committee and brought it to a successful conclusion. The report deals with two subjects crucial to the future of the European Union. One is its insufficient democratic roots and the other is the lack of an EU-wide demos. Just as we on our committee have drawn from ideas and practices of other parliaments—the noble Lord, Lord Boswell, rightly paid tribute to the Dutch and the Danes—so I hope that other parliaments will look at the ideas that we have put forward and draw on them.
My reference to insufficient democratic roots and the lack of an EU-wide demos does not mean that I fail to recognise the enormous progress made by the European Parliament in recent years. I will not pretend that I am happy with all that it does or has done, but that its power and influence in European Union affairs and over both the Council and the Commission has increased very considerably cannot be denied. The recent initiative of Spitzenkandidaten is an example of that. None the less, the European Parliament’s debates, decisions and personalities still fail to resonate within the member states. We see that in terms of electoral turnout and media coverage. For the vast majority of people throughout the European Union, the fulcrum of political debate and decision remains their national parliaments. Therefore, if we are to strengthen the European Union’s democratic accountability and framework and create an EU-wide demos, national parliaments must be more closely involved in European Union affairs.
The European Parliament and national parliaments must not be seen as opposing or even as rival forces; rather, they should be seen as complementary forms of democratic legitimacy, each with its own role in the European Union framework. In large, decentralised and democratic countries such as the United States and Germany, one of the two Houses in their bicameral legislatures represents the component states. This is the principle, suitably adapted for a vast Union of 28 sovereign states, with more than 500 million inhabitants, that I wish to see carried forward in the European Union. The specific proposals in this report go some way towards doing that and I fully support them. However, in addition, I should like to make three additional points of my own.
My first point is directed to the Commission. I recognise the practical problems of responding to the demands of 28 parliaments, many of which have two Chambers. I welcome the responsibility for inter-institutional relations accorded to Mr Frans Timmermans in his role as first vice-president, but he is a very busy man and he has a great many responsibilities. This particular responsibility does not feature very high on the list. I noticed that when I looked at the website. Therefore, more is needed.
Many years ago, in the late 1970s, when I was a member of the Jenkins Commission, Mr Jenkins signalled a change in the relationship between the Commission and the European Parliament and the enhanced role of the latter by appointing a commissioner for European affairs, the senior commissioner at that time, Lorenzo Natali, an Italian vice-president. These days, there are not enough proper jobs to go around for 28 commissioners. In those days, some of us had three or four directorates-general, while some people now have less than one directorate-general. So I do not hesitate to suggest setting up a new body in the Commission to provide work for a commissioner. I think that the Commission should consider setting up a department for parliamentary affairs with a commissioner responsible for dealing with both national parliaments and the European Parliament as his main responsibility. By dealing with both the national parliaments and the European Parliament, it would emphasise the fact that these are two complementary forms of democratic legitimacy and not rival forms. Were there to be such a body within the European Commission, it would facilitate the Commission’s dealings with the national parliaments and make it less difficult for national parliaments to make their voice and opinion heard in Brussels. That is my first suggestion.
My second suggestion is to Her Majesty's Government, or at least to the Conservative element in it—the element that I support. I am delighted that the Government have explicitly welcomed the committee’s suggestion for greater co-operation between national parliaments and the European Union Parliament and also welcomed a greater engagement between the national parliaments. However, I wonder whether the Government—or the Conservative element in it—have fully thought through the likely consequences of such a development. As we all know, parliaments work through political parties, so this closer co-operation and engagement will be conducted by and through political parties, which in turn is likely to enhance the existing links between parties in the European Parliament and parties in the national parliaments and to foster new combinations of parties. That in turn will strengthen the influence of the big political families, left, right and centre. This will, I am afraid, leave those parties, such as the Conservative Party, which are not part of a big political family, at a very considerable disadvantage. I strongly recommend to the Conservative element in the Government that it should seek to end this self-imposed isolation. In doing so, it would be able significantly to increase its influence and, perhaps, avoid débâcles of the sort that occurred not so long ago over the appointment of the Commission President.
In this respect, I would draw a parallel with what happened over enlargement. As noble Lords will recall, the United Kingdom, under Conservative as well as Labour Governments, was one of the strongest advocates of bringing into the European Union the countries of central and eastern Europe. Somehow, it did not seem to foresee what this would mean in terms of free movement of labour, and it is now faced with the consequences. I would not like a similar lack of foresight to lead to a disadvantage for my party in terms of the European Parliament and the greater engagement of national parliaments.
My third point is addressed to the House of Commons. At present, EU matters are largely seen as the preserve of the admirable European Scrutiny Committee, under its very energetic chairman. However, just as national parliaments can reinforce the European Parliament in promoting democratic accountability and strengthening the democratic framework of the European Union, so other Commons committees could reinforce the role of the European Scrutiny Committee. I should like to see the subject-specific committees in the House of Commons become more engaged in considering the impact of existing EU legislation, and possible changes to it, whether by addition, amendment, or the return of powers to the member states. I should also like to see the subject-specific committees in the House of Commons do much more to hold British Ministers to account for what they do and say and advocate in the various Councils of Ministers. I should like to see this done both before Ministers go to Brussels and when they return. In that way, a very considerable strengthening in democratic accountability would occur.
I strongly support the proposals in the report, but I should also like consideration to be given to the three that I have added.
My Lords, the noble Lord, Lord Teverson, has already made the important point that bringing national parliaments closer to the institutions of the EU, and particularly to the Commission, so as to improve familiarity of national parliaments with the issues and to enhance the influence of national parliaments on decisions being taken in Brussels is a cause that unites all three major parties in our democracy. It unites Eurosceptics and Europhiles. All those categories are well represented here this evening. Not surprisingly, UKIP is not represented here. Their representatives do not turn up much when they get elected to the European Parliament: they have the worst record for attendance there, a quite disgraceful one. They have not turned up tonight and they have demonstrated once again that they belong to a party that is very interested in demagogy, but not in doing an honest day’s work or even an honest evening’s work on European policy.
I congratulate the noble Lord, Lord Boswell, on this report, which he has produced with his colleagues. I also commend him on the great energy and engagement that he has brought to his considerable responsibilities and the robustness with which he is prepared to talk—we had an example of that earlier this evening—both to our own Government here and to the European Commission, or to anybody else who might be relevant when that is required, in order to make clear the strong, serious position of this House and its committees on European-related subjects.
I agree with an enormous amount of what has been said this evening. I agree very much with the noble Lord, Lord Tugendhat, on the latter part of his remarks, about the desirability of involving the departmental Select Committees in the scrutiny work much more systematically than happens now. I take this opportunity to add to the proposals made in this very interesting document with tuppenny-ha’penny-worth of my own suggestions, and I will make three proposals.
We are really confronting three broad issues this evening. One is how to bring national parliaments closer to the Commission and to have more influence with the Commission. There I disagree with the noble Lord, Lord Tugendhat, to whom I always listen not just with great respect but with great interest. He suggested that it would be a good idea to appoint a Commissioner responsible for relations with national parliaments and with the European Parliament. That would have unfortunate and counterproductive consequences: such a Commissioner would act as an insulating barrier between the two. It would be rather like dealing with the director of public affairs of a company instead of the chief executive. If you want to influence anything that a company does, that is not a sensible way forward. It is important to have much greater direct contact. I also disagree with the committee’s report in one respect—desirable as it would be—which is the proposal in paragraph 54:
“The Commission which will be appointed in 2014 should make a commitment that its Commissioners and senior officials will be willing to meet committees of national parliaments as a core part of their duties”.
That is very desirable, but idealistic and unrealistic as well. If a Commissioner spent half a day of his time with each of 28 different national parliaments or their representatives or their scrutiny committees, then he would be spending 14 working days—something like two and half weeks of his time—on that subject. That is not likely to happen. We have situations when we are able, in Select Committees of the House of Commons and in European sub-committees here, to meet Commissioners or senior officials of the Commission; I have been a beneficiary of that myself in various roles over time. However, sadly, I do not think it is realistic to expect that there should be some kind of statutory—or if not statutory, at least formal—commitment of the kind suggested in this document.
A much more promising proposal is that it should be a general rule that—and this can be agreed with the courts without any kind of constitutional change; it could be a rule decided by the Commission itself—once or possibly twice a year, every Commissioner would invite to a seminar in Brussels the departmental or specialised committees covering his particular responsibilities. They are called Select Committees in the House of Commons, but a lot of continental parliaments call them commissions. That would be an opportunity for the Commissioner to make a direct presentation to them of his agenda, and have perhaps some working groups getting into the detail of these proposals or other proposals that the national parliaments might want to advance, and to have some serious discussions from both sides, bringing the two bodies directly together without any kind of intermediary organisation or individual. I would be grateful if that proposal could be considered by our own committee. I myself sit on the Economic and Financial Affairs Sub-Committee of the European Union Committee.
The second thing that needs to be done is to bring national parliaments more closely together in the context of European scrutiny. Quite clearly, no national parliament is going to have much effect if it is isolated. If we want a yellow card—or not necessarily a yellow card, but some influence—it is necessary to combine with others, as is a normal rule in any sensible and functioning democracy. There is not much opportunity for that. The COSAC works well, but it brings together just the chairmen of scrutiny committees: that is a very narrow group of people. There should be an occasion once a year for, let us say, a two-day conference, bringing together those responsible for scrutiny in the national parliaments from all 28 member states. At the conference, it should be possible to have some detailed working sessions on particularly important or controversial issues, or on matters where there is a question of a yellow-card procedure being initiated—or having been initiated—by one or more parliaments. That would be an opportunity for anybody wanting a yellow card to make a case for that, and attempt to get other national parliaments to second that initiative. Human contact is absolutely indispensible; I have never believed in any context—in ordinary commercial marketing, advocacy or anything else—that electronics or digital communications can replace human contact. It is very important to be able to look at people in the face, hear the emphasis they put in their communications with you and make an assessment as to how reliable or serious they are and how much they have gone into the question that they are talking about. It is therefore central that there should be more human contact between the parliamentarians involved. That is the spirit in which I make these two proposals.
My third proposal relates to an area that has already been mentioned several times in this debate, and we are very conscious of it. We are not very good at scrutiny. As the noble Lord, Lord Teverson, said, the fundamental role of national parliaments as far as the EU is concerned is to make sure that we properly control our Ministers when they go to the Council of Ministers, because they go there as our delegates. In actual fact, with the exception of Denmark, no member state has really succeeded in making a reality of this theory, that democratic legitimacy stems directly from the national parliaments, because the Council of Ministers—one of the two legislative bodies in the European Union—is directly responsible to national parliaments. If we are going to make a reality of that, we need to change immediately the way we do business here. In my view, we need to make sure that we talk to Ministers before they go to the Council of Ministers. We should not take a decision to lift the scrutiny reserve merely on the basis of an Explanatory Memorandum and then, perhaps a month or two later, have an opportunity to talk to the Minister in retrospect about why he or she did or did not do whatever it was that is of concern to us. It is essential that Ministers appear before the relevant scrutiny committee or better still—here I agree totally with the noble Lord, Lord Tugendhat—the relevant departmental Select Committee before they go to the Council of Ministers meeting, so that they are forced to disclose their brief and agenda, hear the comments of parliamentarians, take them into account, and, if they wish to disagree with them, to do so openly and to try to persuade them or not, as the case may be. It is up to Parliament to decide whether or not to lift the scrutiny reserve when it has heard what the Minister has to say.
Those are three suggestions. They are not modest suggestions because they are quite far reaching, but I hope that they will make a modest contribution to the debate.
My Lords, I welcome this very constructive and instructive report from your Lordships’ EU Select Committee, and particularly the comments of my noble friend Lord Tugendhat and of the noble Lord, Lord Davies, opposite. We will probably have cross-party agreement on many of the recommendations and the additional comments that have been made.
I do not propose to make any additional recommendations but have one or two interests to declare: a formal one that ought to be noted and a slightly less formal one. My formal interest is that for three years I was the principal investigator for an ESRC-funded project on national parliaments and the European Union. My department in Cambridge received money to study very similar topics to those that your Lordships’ Select Committee looked at. The slightly more trivial interest is that, on the basis of that, I was asked to give oral evidence to the Select Committee and sent in written evidence, so I appear as a small footnote in the report. However, I am one of the very few people speaking this evening who is not a member of the Select Committee or one of its sub-committees. Not being part of the committee process here in many ways puts me very much on the back foot but also raises the issue of who becomes involved in decision-making and scrutiny. One of the recommendations is very much about mainstreaming European policy. I and my colleagues from the OPAL project told the Select Committee and the scrutiny committee in the other place that mainstreaming is important. The Dutch Parliament has done it and it has worked very effectively. The report suggests that that is important here—to get more people involved.
We see that the usual suspects are here to talk about Europe, but it is worse in the other place. The Members who are willing to talk about, or engage with, Europe are usually sceptic. They have a particular interest in Europe, but not one that is necessarily informed or engaged. They think that if they stand up and opine about Europe in a way that grabs the headlines, that will be effective with my electorate. That rather misses the point. If you simply make grandiose statements which do not relate to the detail of Europe, you do your constituents a disservice. There is a real problem with the way that some chambers of national parliaments engage with the European Union. It is a particular problem in the other place in the United Kingdom, but it reflects a wider problem among national parliamentarians.
Noble Lords have the luxury of being very unusual. By dint of not having constituents and not having to go home every weekend to talk to constituents and focus on detailed constituency casework, there is the opportunity to take more time to scrutinise legislation. There is also the opportunity to do many of the things that have been mentioned this evening and which were recommended in the Select Committee report—to engage with colleagues in other parliaments. If you are expected to be here during the week and back in your constituency at the weekend, when do you go to Brussels, Berlin or Paris to talk to your opposite numbers? That is extremely difficult. We at this end of the building have the opportunity to talk to our colleagues, but we definitely need to find ways to engage more with other parliaments. Interparliamentary co-operation is vital.
One thing that is worth bearing in mind, but which very few national parliamentarians have been willing to bear in mind, is that for decades national parliaments have lost power under the European integration process. There has been a degree of deparliamentarisation. In most elected chambers, nobody wanted to talk about it. Who is willing to say, “Actually, we are less important than we used to be. The European Parliament has gained powers and has oversight but is also a democratic body representing the citizens of Europe”? That is not a terribly popular thing to say. If you are out trying to get votes in a domestic election, reminding people of the role of the European Parliament and of your own denuded role might not be the best way. Therefore, for many reasons, national parliaments have not been willing to talk about shifts in powers or the increased role of the European Parliament. In any case, the role of the European Parliament and giving it more powers does not in itself deal with some of the questions of deparliamentarisation. It does not bring Europe closer to citizens. The Lisbon treaty was supposed to do that by re-empowering national parliaments.
Here again, we have a slight difficulty of language. Many members of national parliaments would ask, “What do you mean by saying that the Lisbon treaty has given us new powers or given us powers back”? They are very reluctant to accept that powers have shifted and, in some cases, suggest that the Lisbon treaty and the yellow card was little more than a sop. There are questions about whether national parliaments feel that they have powers and are willing and able to use them. That issue is hugely important. We do not necessarily need treaty change; we need national parliaments to use the powers that they have. That was made very clear in the appendix to the report, where other members of COSAC said that they needed not more powers but for national parliaments to step up to the plate and say, “There are things we can do. We can, and should, hold Ministers to account, but we are not very good at doing it”.
It is not just about Westminster. Indeed, your Lordships’ House is one of the Chambers that is deemed to be a paragon in many ways and which scrutinises European legislation very well, but holding Ministers to account is something which nobody but the Danish Folketing does particularly well. However, this is not about giving more powers but using the powers that we have in more imaginative ways and using them collaboratively and collectively.
As the noble Baroness, Lady Quin, suggested, the roles of the European Parliament and of national parliaments are not part of a zero-sum game, they are about working together and ensuring that legislation at the European level is dealt with effectively. Each has different roles but we work through those roles most effectively if we co-operate, co-ordinate, exchange information, share ideas and stop the sort of turf wars that we saw at the start of the interparliamentary co-operation on common, foreign and security policy and prior to the deliberations of the Article 13 committee. It is important that parliaments co-operate vertically—national parliaments with the European Parliament—and horizontally with other national parliaments. As noble Lords have suggested, we need to do that on the basis of personal co-operation, interparty co-operation and within our parties in the other place and your Lordships’ House and our party families in the European Parliament, but also through working across parties at transnational level.
I can only say that I warmly endorse the recommendation of my noble friend Lord Tugendhat. I am not sure it is appropriate that I do so, but if the Conservative Party was part of the European People’s Party it would be able to engage more effectively in the work of the European Parliament and that would only be of benefit to the United Kingdom. Co-operation, co-ordination and exchange of information among personnel, parties and parliaments is one way in which national parliaments can become much more effective. Many of the recommendations in the Select Committee’s report would ensure that those things come about.
My Lords, it is customary in these debates to applaud their timeliness. I am afraid, unfortunately, that this debate is not timely. It is behind time by quite a long way. It should not have taken the Government three months, as opposed to the regulation two months, to reply to the report, although clearly the imminence of a parliamentary recess has acted as a magnetic pull. It should not have taken this House nine months to organise a debate on a report that can legitimately be described as one of the most significant and potentially consequential to be issued in recent years. It owed much to the skill and persuasiveness of the noble Lord, Lord Boswell, whose admirable introduction to the debate we have just heard and whose leadership I particularly appreciated when I served on the committee as this report was being prepared.
The noble Lord, Lord Boswell, set out some of the main recommendations of our report, which represent a wide-ranging menu of reforms to the role of national parliaments in holding their Governments to account and in shaping EU legislation. Those are the two broad thrusts of the role of national parliaments and there is no need to repeat what he said. The noble Lord, Lord Davies, suggested that asking the new Commission to take it as part of its duty to deal with national parliaments was nugatory and impossible to fulfil. In fact, with video conferencing and other such techniques, it is possible to do that with reasonable economy of time.
In the previous Commission, there were still commissioners who would openly say, in a quite aggressive way, that they had no responsibility at all to national parliaments: their sole responsibility was towards the European Parliament. That is not a correct interpretation of the Lisbon treaty, which gives them a distinct role. People who held those views would say: “National parliaments, you look after your own Governments; you do not have any control or influence over the Commission”. We have to break down those barriers. The recommendation, which was contained in the report and which I suspect the new Commission, with Vice-President Timmermans, is going to honour very considerably, was worth making.
I am grateful to the noble Lord for giving way. I am sure that he will recall that I said that if you can get this particular proposal, which was made in the report, so much the better. I personally thought that it was slightly unrealistic. However, my proposal of a rule that each commissioner should meet on a regular basis, at least once a year, with the members of the departmental select committees or commissions in the national parliaments on his subject of responsibility, would directly address the point just made by the noble Lord. It is important that commissioners should formally recognise a role for national parliaments and make sure that they take them seriously.
If I may say so, that is an addition to but not a substitute for the recommendation we made. It is important, when one of the sub-committees of your Lordships’ House is preparing a report on a particular issue, that it takes evidence from the commissioner responsible at that time, not just once a year. It is normally possible to do this and co-operation is pretty good, on the whole. However, there have been occasions when it has not been and we suggested that it should never be that way again.
Suffice it to say that we did not need to go back to first principles when we started to write this report, because the Lisbon treaty settled once and for all that national parliaments have a role to play in shaping European legislation. They have a collective role to play through such procedures as the yellow card. We did not really have to argue that case: we just took it from there.
However, the evidence we took established that that role—which has existed since the Lisbon treaty came into force in 2009—was not being exercised very effectively, so far, and that reforms were needed if it was to be so exercised. That is not some British Eurosceptic fad; it is the view of many other national parliaments which we consulted when we were compiling our report. In the years to come, strengthening the role of national Parliaments needs to be one part of any positive reform agenda worthy of the name. I notice that both the Government, in their response to our report, and the European Council itself, in the strategic agenda for the next five years, refer to the need for that role to be developed.
I do not intend to dwell long on the Government's response to our report, which was broadly very satisfactory and supportive. However, one point requires comment. The noble Baroness, Lady Quin, referred to it and I shall do likewise, but i