Lords Chamber

 House of Lords

Monday, 9 March 2009.

14:30:00

Prayers—read by the Lord Bishop of Rochester.

Sports Clubs

Question

14:37:00

Asked By

Baroness Billingham
To ask Her Majesty’s Government what action they are taking to encourage and assist local sports clubs to improve their facilities.

Lord Davies of Oldham
My Lords, the Government are making significant amounts of capital funding available through Sport England and national governing bodies to assist local community sports clubs to improve their facilities. In addition, we have been working with Sport England and others to develop guidance on the operation of the planning system to help sports clubs wanting to improve their facilities to navigate through the planning system. We are looking at what more can be done; for example, we are also hoping to review planning policy guidance note 17 Planning for Open Space, Sport and Recreation this summer.

Baroness Billingham
My Lords, I thank the Minister for that positive and helpful reply. Sports clubs up and down the country will certainly welcome it. They have been seeking for many years to upgrade their facilities by simple initiatives such as putting in floodlights or better playing surfaces. They will certainly be heartened by the Minister’s reply. Who is going to be involved in the appraisals and negotiations about enabling planning procedures to be improved and what is the timetable? This is a crisis; clubs are closing. When are the Government hoping to get these planning guidelines into place?

Lord Davies of Oldham
My Lords, I am grateful to my noble friend who does sterling work in this area. She is right to press the Government on planning approvals. We are all aware that sports clubs with only voluntary assistance often have great difficulty in coping with the formalities of planning permission. We are hoping to get the guidance ready for the summer. It takes a few months. We have got full consultation in order to get all the parties involved, and we are optimistic that we will be able to present to sports clubs in the summer a clear strategy for dealing with planning permission.

Lord Harrison
My Lords, the greatest fall-off in participation in sports by young people is when they leave school or college. What more can our Government do to strengthen the links between sports clubs, which should properly receive these young people, and universities and schools where they have so enjoyed sport? Young people sometimes lack direction as to where they can continue sports into their 20s and 30s and beyond.

Lord Davies of Oldham
My Lords, that is a question to which the Government have paid critical attention in recent years. The drop-out rate when children leave school is responsible for the deterioration in sporting activity among younger adults, which leads to attendant health problems and obesity issues that are linked to these matters. We have been concerned to link sports clubs more closely with schools. This is also critical to sport clubs, because they get the next generation of participants from young people. We have been concerned in a whole range of sports to get a link between sport and school so that these relationships can be established. A very clear illustration of this, which has universal approval, is Chance to shine in cricket. It takes into schools qualified sports coaches from the clubs.

Lord Addington
My Lords, does the Minister agree that the millennium target of getting a million more people into sports will be delivered almost totally by amateur sports clubs, which are thus a vehicle for government policy? What are we doing to ensure that they have lower running costs—for instance, by helping with utility bills—and are we going to ensure that they receive assistance for such things as coaching costs in the future?

Lord Davies of Oldham
My Lords, the noble Lord will be aware of the amount of support that the Government have given to sports clubs for their facilities, particularly in rugby. Indeed, the Rugby Football Union has been very concerned about the link with schools. The noble Lord is quite right to emphasise that a great deal needs to be done. There is no doubt that the crucial link is the drop-out rate. The government strategy of encouraging sport in school and links with the sports clubs and of support for the sports clubs is directed at countering that.

Lord Brookman
My Lords—

Baroness Carnegy of Lour
My Lords, it has never struck me that sports clubs were particularly daft. What exactly are the Government going to do that will make such a difference to a sports club’s application for planning consent?

Lord Davies of Oldham
My Lords, no one suggests for a moment that sports clubs are daft. In fact, we all salute the enormous voluntary contributions that are made to almost every sports club in the land. However, there is a fairly limited amount of professional support for sports clubs and, as the noble Baroness will know, negotiating one’s way through existing planning laws and planning permission with a local authority can often be quite a challenge. We are seeking to simplify that and to give guidance and support to sports clubs so that they know how to make planning applications that are more likely to get approval. I cite one obvious example. It is not necessarily easy for sports clubs to erect floodlights. They may need floodlights so that sports can be available in the later darker hours in the evening, but floodlights have an impact on the locality and local authorities obviously have some concern about that.

Lord Brookman
My Lords—

Baroness Massey of Darwen
My Lords, the Minister mentioned drop-out rates. Is he aware that girls are liable to drop out of sport more readily than boys, and if so, can he say whether any specific initiatives are being directed to encourage girls to stay in sport?

Lord Davies of Oldham
My Lords, we hope that the greater emphasis on sport in schools, which is directed at boys and girls, will reap benefits. My noble friend is absolutely right that the drop-out rate for girls occasions particular concern. Part of the general strategy is to emphasise that we want sport to be part of the school curriculum, that we want expertise from local clubs to be available to young people who are developing their sporting abilities, and that we want those young people to look to the clubs in their neighbourhood as the necessary locale to which they go after they leave school so that we can reduce the present unacceptable drop-out rate, particularly among girls.

Lord Howard of Rising
My Lords, I must declare an interest as chairman of the National Playing Fields Association. Does the Minister regret the number of playing fields that have been sold by the educational establishment since 1997?

Lord Davies of Oldham
My Lords, the choice of date has a certain salience to it. Since 1997, no playing field has been sold except on the condition that its facilities are replaced—frequently they are enhanced by the sporting provision that takes its place—which was notoriously lacking between other dates I can think of, such as 1979 and 1997.

EU: Middle East Peace Process

Question

14:45:00

Asked By

Lord Dykes
To ask Her Majesty’s Government whether they support the objective of the Czech presidency of the European Union that President Obama’s visit to Europe in April should include talks with European Union Ministers on the Middle East peace process.

Lord Davies of Oldham
My Lords, we believe that the United States is integral in helping to resolve the Middle East peace process. The European Council issued a declaration in December confirming that the Middle East peace process remains a priority in 2009 and the importance of the US in taking this forward. We welcome the United States’ prioritisation of peace in the Middle East and any opportunities for discussion between the European Union Ministers and the United States Administration on this issue.

Lord Dykes
My Lords, does the Minister agree that the European Union has given solid support to Israel in recent years, repeatedly insisting on preconditions with Hamas while not stopping the settlement expansion that Israel still is carrying on? Is it not high time for Israel to return that support by negotiating a proper deal for a full Palestinian state, which, on all understanding and from what we gather from the press and public statements, President Obama, the Secretary of State, Senator Mitchell, the chief of staff and the entire Middle Eastern team of the President so urgently now desire?

Lord Davies of Oldham
My Lords, we all recognise the strength of that pressure and the importance now accorded to this issue by the United States, as evidenced by the speech made by Hillary Clinton to the conference on 2 March. At that conference on future developments, it was clear that the European Union and others, including the UK, were very concerned to produce support for reconstruction in Gaza, but we also recognise the wider context in which this reconstruction has to be viewed. The noble Lord is right that we look forward to progress with the new Israeli Government, once they have been formed, towards a more effective relationship between Palestine and Israel.

Lord Wright of Richmond
My Lords, does the Minister agree that President Obama’s forthcoming visit, nevertheless—

The Lord Bishop of Rochester
My Lords, I thank the noble Lord for giving way. Where does the greatest resistance to a two-stage solution of the conflict lie? Is it with the Israelis or among the Palestinians?

Lord Davies of Oldham
My Lords, I do not think that the issue is about apportioning responsibility for the difficulties of the past. It is to see how we can be constructive with regard to the future. I am sure that the right reverend Prelate will take delight, as will the whole House, in the more progressive, constructive position which is now being taken up by the international community, and the increase in demands on the Palestinians and the new Israeli Government to recognise their responsibilities for a lasting peace in the Middle East. Clearly, what has been continuing in recent years has led to untold disasters, such as that we have witnessed in recent months.

Lord Wright of Richmond
My Lords, at the risk of repeating myself, does the Minister agree that President Obama’s forthcoming visit presents European Ministers with a welcome opportunity to try to convince him that the continued expansion of Israeli settlements in the West Bank and reports of the further destruction of Palestinian homes and settlement in East Jerusalem are far worse than unhelpful, to quote his Secretary of State? They present a fatal possibility of killing the peace process with dire implications for the future security of Israel and for the future creation of an independent Palestinian state.

Lord Davies of Oldham
My Lords, the House is always eager to hear the noble Lord on these issues and the constructive approach he adopts. It is clear that the European Union is eager for progress. Noble Lords will recognise the great opportunities that will exist during the G20 summit and the President’s subsequent visits to Europe for pressure to be brought to bear on the world’s outstanding difficult issues, of which this is one of the more obviously calamitous. We expect the United States to find that any constructive initiative and stance that it proposes to take on the issues identified by the noble Lord are those that the European Union is likely to raise with the President.

Lord Anderson of Swansea
My Lords, is it not reassuring that, contrary to predictions and the presidency of the Bush Administration, the Obama Administration have given priority to the peace process from the start? Is the Minister confident that the European Union will respond accordingly, in action and not words—for example, in naval and border patrols—to prevent arms smuggling into the Gaza strip and generally to provide potential support for any eventual settlement?

Lord Davies of Oldham
My Lords, it is important that Europe is constructive in these circumstances and seizes the opportunity to align itself with what my noble friend has identified as a difference of perspective between President Obama’s Administration and that of their predecessor, and recognise that it has its role to play. However, others have their role to play. We should also recognise the importance of the recent conference chaired by Egypt and the importance of the Arab world’s role with regard to a long-lasting solution to these issues.

Archaeology

Question

14:52:00

Asked By

The Earl of Glasgow
To ask Her Majesty’s Government what steps they are taking to secure the future of professional archaeology in the United Kingdom, and in particular to mitigate the effect on archaeologists of the recent contraction in the building industry.

Lord Davies of Oldham
My Lords, English Heritage and DCMS attended a sector-led seminar on this issue on 16 February. The Government support the development of workplace training and continuous professional development opportunities, including the new national vocational qualification and involvement with apprenticeships. Such initiatives, including those funded by English Heritage and the Heritage Lottery Fund, help to support skills development in the short term and build capacity in the workplace for the longer term.

The Earl of Glasgow
My Lords, I thank the Minister for that Answer, but it does not resolve the question of the huge number of professional archaeologists who are becoming unemployed. Of the 6,500 professional archaeologists in work last year, approximately one-fifth have lost their jobs in the past six months. Some archaeological practices are likely to cease trading altogether. Is the Minister fully aware of how damaging this increasing loss is likely to be to the future of Britain’s heritage? Can the country afford to risk losing so many highly educated, though underpaid, professionals to other better paid professions during this recession? Will the Government encourage, and, if necessary, assist, local authority planning departments to keep their professional archaeologists employed during this downturn in the building industry, when their services are less needed? After all, we are not talking about large sums of money.

Lord Davies of Oldham
My Lords, the noble Earl emphasised an important factor in his penultimate point—that we need to protect the skills base of this highly skilled sector during the downturn. He will know how that is closely related to the construction industry’s problems; its reduction in activity means that work for architects is greatly reduced. We are concerned to preserve, as far as possible, the levels of this country’s skills base through this difficult time. It means that architecture and many other skills will need government investment and support. He is right that the public sector can play its part. Certainly, local authorities have a role with regard to the employment of people with these specific skills. However, he will also be aware of the pressures on the wider economy which are giving rise to concern.

Lord Howarth of Newport
My Lords, will my noble friend assure the House that the Government will do all they can to ensure that the archaeology sector is not weakened in the recession? Will he confirm that the forthcoming planning policy statement on heritage and archaeology will not diminish existing protections for archaeology, particularly in respect of the duties that local planning authorities may lay upon developers, and that the Government look to local authorities not to reduce the capacity of their historic environment services?

Lord Davies of Oldham
My Lords, the Government are not concerned to do anything other than to enhance as far as we are able our heritage, of which buildings play such an important part. We recognise that both public authorities and those organisations which receive public funds play a critical role in this area. This is clearly a difficult time, but it is clear right across government, industry and the economy that if we lose skilled people at this time and set them at naught, the progress of recovery will be that much slower and that Britain will have greater difficulties in competing with the wider world unless we enhance the skills base. That is why, at the end of last year, the Government emphasised the amount of resources that they were putting into enhancing and protecting the skills base in this country, of which architecture is such a significant part.

Noble Lords
Archaeology.

Baroness Hooper
My Lords, does the Minister not agree that the needs of marine archaeologists are frequently left out in considerations of training and careers? If he cannot reassure us that marine archaeologists have special mention in the English Heritage project to which he has referred, can he reassure us that, in the debate on the marine Bill which takes place later today in your Lordships' House, their needs will be taken into account?

Lord Davies of Oldham
My Lords, the noble Baroness has only to wait for the third amendment this afternoon to see that we shall be discussing these issues with some intensity. I therefore hope that I am able to give her that reassurance.

I apologise to noble Lords for my slight slip in saying “architecture”. I was on a visit for the Lord Speaker on Friday and a student raised with me the intense difficulties that he was facing despite having potentially very high A-level scores. He wanted to study architecture, so I had architecture as well as archaeology in my mind, hence the slight slip.

The Lord Bishop of Rochester
My Lords, are the Government continuing to promote the valuable work of British archaeologists abroad, especially in the Holy Land and the Middle East generally?

Lord Davies of Oldham
My Lords, the right reverend Prelate is right that that needs some emphasis, particularly as we have all been concerned that war and strife in the Middle East and further afield present real dangers to the archaeological inheritance. We are all too well aware of the risks and problems that war has brought, which is all the more reason that we have a level of expertise such that we can contribute to ensuring that we protect that irreplaceable inheritance.

Lord Walpole
My Lords, now that rescue archaeology, which is what has really being happening during the past 20 years, is not quite so necessary, do we not have an opportunity to do some good academic archaeology in the near future and pay for people to do it?

Lord Davies of Oldham
My Lords, opportunities may exist, because there is no doubt that some people’s difficulties can be others’ opportunities. However, I have no doubt that if I were too positive in my response to the noble Lord, while sharing his sentiments, the university sector would be at pains to emphasise to me its difficulties in expanding opportunity in this area.

Lord Redesdale
My Lords, given that most of the money for archaeology has come from the development sector and that a great deal of archaeological knowledge now resides in the private sector in the units, those lay-offs mean that we are losing an enormous amount of specialist knowledge such as in, say, Roman Samian ware, on which there is only one expert in the country. If someone loses his job, that knowledge is lost to the country. Will the Minister take that into account especially when thinking about the establishment of historic record centres?

Lord Davies of Oldham
My Lords, the noble Lord is very knowledgeable in this area, and I take his representation very seriously. We will look at that matter.

Pensioners: Savings

Question

15:00:00

Asked By

Baroness Seccombe
To ask Her Majesty’s Government what action they have taken to alleviate pensioner poverty arising from the fall in savings income and interest rates.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord McKenzie of Luton)
My Lords, tackling pensioner poverty remains a key priority, and we are committed to supporting pensioners during these difficult times. We will continue to build on the substantial progress we have made in lifting 900,000 pensioners out of relative poverty since 1998-99 on an after-housing-cost basis. In 2008-09, we provided extra help to pensioners through one-off boosts to the Christmas bonus and winter fuel payments and we are spending over £13 billion more on pensioners than if 1997 policies had continued.

Baroness Seccombe
My Lords, I thank the Minister for his Answer, which was probably predictable. I declare an obvious interest as I am a pensioner. Interest rates have plummeted but does the Minister think that it is right and fair that savers, most of whom are elderly and rely on investment income, are subsidising those who took on outsize mortgages?

Lord McKenzie of Luton
My Lords, I am not sure that that is an appropriate way to look at the issue. The Government keep all savings incentives under review and we should be clear about the extent of the issue, which is that 42 per cent of pensioners receive less than £1 a week or no income from investments. Around 70 per cent of pensioner benefit units receive less than £10 a week from investments. It is estimated that an 80 per cent reduction in investment income, which is roughly what has happened, would reduce pensioners’ net income before housing costs by 3 per cent on average but less than 1 per cent on the basis of a median analysis. It is an issue but it is not of the scale that some suggest.

Baroness Greengross
My Lords, is there any way in which the noble Lord could try to speed up the introduction of uprating state pension in line with earnings so that it is earlier than intended? That would help a lot of poorer pensioners among us who are suffering, as the noble Baroness suggested, because their savings are not giving them any return on their income.

Lord McKenzie of Luton
My Lords, the uprating of the pension from this April is 5 per cent, which is RPI. That, of course, is currently in excess of earnings. The ongoing uprating of pension was laid down in the Pensions Act 2007, which was to uprate in 2012 subject to affordability, and in any event by the end of the next Parliament. That remains the Government’s position.

Lord Campbell-Savours
My Lords, is there not an argument for switching some of the tax subsidy from SIPPs to ISAs? Would not more people on lower incomes benefit?

Lord McKenzie of Luton
My Lords, the Government’s approach to savings looks at incentives right across the life cycle, so we see ISAs as a key way, apart from pensions, to incentivise savings for working-age people. There are gateway proposals to help people on lower incomes to get into a savings culture, and child trust funds to help young people start off life with a little nest-egg and get involved in savings later on, we hope. Substantial tax reliefs are already available for pension savings, which is the right balance, particularly at the current time when we need to do all that we can to make sure that people see the benefit of savings generally and, in particular, the benefit of savings through pension arrangements.

Lord Fearn
My Lords, will any pressure be brought upon the banks in which the Government have taken a stake to increase pensioners’ income by increasing the interest rate? By that, I mean all pensioners rather than a few. It is all right to talk about fuel poverty, but this is about no one particular thing; it is about what they have saved up for their whole lives.

Lord McKenzie of Luton
My Lords, it should not be part of the process of engaging with the banks in which the Government have substantial interests to direct a particular interest-rate policy toward pensioners rather than addressing general market issues. There are, obviously, much more substantial issues for the banking sector, in getting money flowing into the economy and making sure that depositors feel and know that their deposits are safe.

Lord Skelmersdale
My Lords, some three weeks ago, on a Starred Question from the noble Baroness, Lady Greengross, I put to the Minister the Conservatives’ commitments to abolish income tax on savings for basic-rate taxpayers and to raise the pensioner’s personal allowance by £2,000. The Minister gave me a rather throwaway answer, saying, “Well, my Lords, we will have to cost it”. What work have the Government put in hand to achieve that costing?

Lord McKenzie of Luton
My Lords, I am grateful for the opportunity of a supplementary question on that matter. From April 2010, 60 per cent of pensioners over the age of 65 will pay no income tax. The Conservative policy would, therefore, presumably be skewed toward helping the better-off. I understand that the proposed funding for the arrangements is something like £5 billion, cut from public expenditure; in particular, that £2,000 increase in the personal allowance would cost around £1.3 billion.

Lord Higgins
My Lords, is it not completely wrong that neither this House nor the other place has had any opportunity to debate the unprecedented Statement last week by the Chancellor of the Exchequer, on authorising the Bank of England to issue something like £150 billion of new money? That will seriously affect interest rates. Also, have the Government estimated the extent to which that action will further reduce the few remaining final-salary schemes as a result of its effect on their balance sheets?

Lord McKenzie of Luton
My Lords, this supplementary seems some way from the original Question, but I will try to help the noble Lord. Quantitative easing is about trying to get money flowing back into the economy. As for the specific impact on pensions, it is likely to have an impact on gilt prices—in the short term, at least—and, therefore, on gilt yields  and the liability value in DB pension schemes. We maintain the position, however, that pension savings need to be looked at over the longer term; that is the right sort of judgment.

Arrangement of Business

Announcement

15:08:00

Lord Bassam of Brighton
My Lords, with the leave of the House we will have two Statements repeated today. Immediately after the Second Reading of the Northern Ireland Bill, my noble friend the Leader of the House will repeat a Statement on Northern Ireland, followed by my noble friend Lord Myners, who will repeat a Statement entitled “Banking: Asset Protection Scheme”. We will then resume proceedings on the Marine and Coastal Access Bill.

Business of the House

Motion on Standing Orders

15:08:00

Moved By

Baroness Royall of Blaisdon
That, in the event of the Consolidated Fund (No. 2) Bill being brought from the Commons, Standing Order 41 (Arrangement of the Order Paper) be dispensed with on Thursday 12 March to allow the Bill to be taken before the Motion in the name of Baroness Gould of Potternewton and that Standing Order 47 (No two stages of a Bill to be taken on one day) be dispensed with to allow it to be taken through its remaining stages that day.

Motion agreed.

Health and Social Care Act 2008 (Registration of Regulated Activities) Regulations 2009

Motion to Approve

15:09:00

Moved By

Baroness Morgan of Drefelin
That the draft regulations laid before the House on 12 January be approved.

Relevant Document: 3rd Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 4 March.

Motion agreed.

European Parliamentary Elections (Franchise of Relevant Citizens of the Union) (Amendment) Regulations 2009

Representation of the People (Amendment) Regulations 2009

Motions to Approve

15:09:00

Moved By

Lord Davies of Oldham
That the draft regulations laid before the House on 26 and 28 January be approved.

Relevant Document: 5th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 4 March.

Motions agreed.

Northern Ireland Bill

Second Reading

15:09:00

Moved By

Baroness Royall of Blaisdon
That this Bill be read a second time.

Baroness Royall of Blaisdon
My Lords, before I move on to the substance of the legislation before the House today, I wish to mention the tragic events of the weekend. The attack on Massereene Army base in Antrim, which resulted in the cold and deliberate murder of two people and serious injuries to four more, including two civilians, was a shocking reminder of Northern Ireland’s dark past. Following the completion of this Second Reading debate, we will have an opportunity to debate the contents of a Statement that my right honourable friend the Secretary of State will make shortly in another place. For the time being, I am sure that the House will join me in expressing its condolences to the victims and their families, as well as to all those affected by this callous attack.

For many years, the political history of Northern Ireland was one of division. Attacks of the type that we have seen at the weekend, while no less callous and cold-blooded, were unfortunately all too common during the dark days of Northern Ireland. In recent years, however, thanks to the Belfast agreement in 1998 and the St Andrews agreement of 2006, the political environment of Northern Ireland has been transformed, with the development of firm foundations for a shared future in devolved government. Whenever such significant developments take place over a short period of time, there will always be those who wish to reverse that progress, and this is certainly true in Northern Ireland.

A small minority of people is determined to halt the political progress and drag Northern Ireland back to the climate of fear and uncertainty that dominated the political landscape for years, but it will not succeed. That small minority has no community support, as the revulsion towards the weekend’s murders from both sides of the community and all points on the political spectrum demonstrates. The people of Northern Ireland are set on a political path and set against the type of criminality that has dominated our news programmes over the weekend. That is why it is important that we are not deterred from that political path, which has been carefully constructed over the past 12 years. The mindless actions of a tiny minority must not be allowed to place that progress and that new future at risk. We must press ahead with the political process and the process set out by the First and Deputy First Ministers in their statement of 18 November. The legislation before the House today represents the next stage in that process.

During the past 12 years, this House has seen many pieces of Northern Ireland legislation, most of it significant and some of it historic, but all of it helping  to build the political process that has seen Northern Ireland move away from that past and towards a new, shared future in which locally elected politicians take decisions for the people of Northern Ireland. This legislation is certainly significant but it is also historic, because for the first time the parties in Northern Ireland have come together to decide on the way forward without intervention by the UK or Irish Government.

The agreement announced by the First and Deputy First Ministers on 18 November last year set out a process whose completion would see the transfer of policing and justice responsibilities to the Northern Ireland Assembly. Subsequently, the work of the Assembly and Executive Review Committee, which is made up of the four largest parties in the Assembly, considered the modalities for devolution and made a series of recommendations in relation to the shape of a new department with responsibility for policing and justice functions. This report was accepted by the Assembly after a cross-community vote on 20 January and, subsequently, the First and Deputy First Ministers indicated that they wished the Government to introduce legislation giving effect to those elements of the agreement that required primary legislation. That is the effect of this Bill.

The Bill ensures that the necessary framework is in place to enable the continuation of the process set out by the First and Deputy First Ministers in November. It is made in Northern Ireland by the democratically elected representatives of the people of Northern Ireland. It will be for these elected representatives to decide when the time is right for devolution to take place. That is right and proper. It is for us to ensure that they can do so by fulfilling a commitment made to ensure that the Assembly has the necessary tools to move forward in a timeframe determined by the Assembly.

The Bill does not impose devolution. The process by which policing and justice will be devolved has already been set out by Parliament in Section 4 of the Northern Ireland Act 1998—the triple lock. It will initially require a motion requesting devolution to be tabled by the First and Deputy First Ministers acting jointly; that motion will then need to be approved by the Assembly on a cross-community vote. A series of orders giving effect to devolution would then be introduced in Parliament, which will have an opportunity to debate these orders and approve them if it so wishes.

I turn to the detail of the Bill before the House. Clause 1 gives effect to Schedule 1, which provides for a new departmental model. This model was set out in the statement by the First and Deputy First Ministers in November last year and in the report of the Assembly and Executive Review Committee, which was approved by the Assembly in January. As such, we would anticipate it being the model used to set up the first department of justice. However, the legislation does not require it to be. It simply adds this model to the menu of options provided by the Northern Ireland Act 1998. It therefore increases to eight the number of options that the Assembly can choose from when it legislates to set up a new Northern Ireland department with responsibility for policing and justice functions. The model itself consists of a single minister, nominated by any Member of the Assembly, elected by a cross-community vote in the Assembly and removed in the same way. Under this model, the justice Minister would not count towards the parties’ allocation of seats on the Executive under the d’Hondt formula.

Both the agreement announced by the First and Deputy First Ministers and the Assembly and Executive Review Committee explicitly stated that this model should be subject to a sunset clause that would bring the arrangements to an end by May 2012. The Bill provides for the department to be automatically dissolved on 1 May 2012 unless the Assembly has agreed to continue the arrangements or agreed alternative arrangements.

I know that in another place concerns were raised about the mechanism provided in the Bill for the removal of the justice Minister. It may be helpful if I deal with some of those concerns now, although there will of course be a further opportunity to debate the detail of the provisions in Committee. In the models already provided for in the 1998 Act, there is a symmetry between the methods of appointment and removal. For example, under the d’Hondt system, the party’s nominating officer appoints and has the power to remove. The Bill provides for the justice Minister to be appointed by a cross-community vote and, similarly, to be removed by a cross-community vote, reflecting the same principle of symmetry.

However, the most important point for noble Lords to consider in relation to this issue is that the methods of appointment and removal were explicitly recommended by the Assembly committee report that was approved by the Assembly. At a time when we are continuing to try to build confidence among the people of Northern Ireland, which will enable us to move towards the devolution of policing and justice, it is vital that we are able to provide as stable a system as possible for the justice Minister. I recognise that there are those, including some in this Chamber, who consider this method of removal as evidence of a lack of stability for the justice Minister, but to them I say that surely the best method of providing a stable framework for the future administration of justice is to provide the framework that the people who will be operating within it feel is sustainable. That is the framework set out by the First and Deputy First Ministers, recommended by the Assembly and Executive Review Committee and endorsed by the Assembly in the cross-community vote that approved that report. It is a framework that I believe the First and Deputy First Ministers are committed to making work. We saw a clear illustration of this when the Bill was debated in another place last week. The right honourable Member for Belfast East, speaking as the First Minister, was categorical in his assertion:

“Neither the First nor the Deputy First Minister will wish to do anything other than give full support to a Justice Minister, especially a Justice Minister who will have been appointed by a more democratic method than any other Minister in the Executive and who will therefore be harder to dismiss”.
 

He went on to say:

“If there were any difficulty in the process, of course the prospective Justice Minister could talk to the First and Deputy First Ministers about what lay ahead to ensure a clear understanding of the nature of any potential removal from the job”.—[Official Report, Commons, 4/3/09; cols. 940-41.]
 

To my mind, this makes it clear that the fears of some noble Lords relating to both the ease with which a justice Minister could be dismissed and the desire to do so are unfounded. The Government believe that the framework, set out by the democratically elected representatives of the people of Northern Ireland, should be provided to those representatives as an option for use in setting up the new justice department.

Given the careful consideration that was given to this model both by the First and Deputy First Ministers and by the Assembly and Executive Review Committee, and given the belief among the elected representatives of the people of Northern Ireland that this is a model that they can make work, I hope that noble Lords will see the reasons for the Government providing for this model in the Bill and see fit to support these provisions in the later passage of this legislation.

Clause 2 and Schedules 2 to 6 deal with the arrangements for judicial appointments and removals following the devolution of policing and justice. We will have a further opportunity to debate these provisions in greater detail in Committee on Wednesday but, broadly speaking, the Bill provides for functions relating to judicial appointments and removals to be exercised by the Judicial Appointments Commission and, in some cases, by the Lord Chief Justice and the Northern Ireland Judicial Appointments Ombudsman as opposed to the First and Deputy First Ministers, as had previously been envisaged. In particular cases, important roles also remain for the Prime Minister and the Lord Chancellor.

The agreement between the First and Deputy First Ministers last November stated that these arrangements would be temporary and that permanent arrangements would need to be put in place by May 2012. Schedule 6 provides for this by placing a requirement on an Assembly committee to review the arrangements put in place by the Bill and to make recommendations before 1 May 2012. It also places a freeze on any new appointments to the Judicial Appointments Commission from 1 May 2012, unless and until the Assembly has agreed the future arrangements for judicial appointments and removals. While this freeze will not prevent judicial appointments from being made, it will result in a significant incentive for the Assembly to agree a way forward.

Clause 3 makes two technical amendments to the post-devolution framework in Northern Ireland. The first such amendment is to provide for the current function of the Attorney-General of Northern Ireland in relation to providing guidance on the disclosure of juror information to be split between the Advocate-General for Northern Ireland and the devolved Attorney-General for Northern Ireland after devolution. The Advocate-General will retain responsibility for issuing guidance in respect of national security and terrorism-related cases, while the devolved Attorney-General will be responsible for all other cases. The division of responsibility reflects the split of the current Attorney-General’s functions that was agreed by Parliament in the Justice (Northern Ireland) Act 2002.

The second amendment, made by Clause 3(2), provides that the office of the Director of Public Prosecutions for Northern Ireland will be a corporation sole. Noble Lords may not be aware that corporation sole is a legal status, meaning that the Public Prosecution Service is able to hold property in its own right rather than having it vested in a department on its behalf.

During the Committee debate in another place, issues were raised in relation to the lines of accountability of both the Director of Public Prosecutions and the Attorney-General. These are not affected by the Bill, which does not alter the relationships between the Public Prosecution Service, the Attorney-General and the Assembly as already provided for by the Justice (Northern Ireland) Act 2002. However, I recognise that there are concerns regarding this issue and it may help if I set out the reasons why the Government believe that the existing arrangements, as provided for by Parliament in the 2002 Act, are right and proper given the particular circumstances of Northern Ireland.

Your Lordships will recall the significance of the criminal justice review of March 2000 which led to the 2002 legislation. This review was the most important and far-reaching survey of criminal justice in Northern Ireland in over 30 years and flowed from a specific commitment in the Belfast/Good Friday agreement. The review and subsequent legislation enshrined the principle of prosecutorial independence in Northern Ireland. The review states that,

“in the particular circumstances of Northern Ireland, we believe that this independence should be further strengthened, by ensuring that the relationship between the Attorney General and the head of the prosecution service, while containing elements of oversight, is consultative and not supervisory. In other words, there should be no power for the Attorney General to direct the prosecutor, whether in individual cases or on policy matters”.

I can understand that some noble Lords may question whether a review that took place nine years ago remains relevant today given the progress that Northern Ireland has seen in that period. The approach taken by the review reflected the particular circumstances of Northern Ireland. However far the politics have come in Northern Ireland, it is clear that the circumstances there are still significantly different from those in England and Wales. The need for confidence from all sections of the community in all the justice system remains of crucial importance, particularly at the point when the Assembly takes on responsibility for that system for the first time since 1972. The Government firmly believe that this fact warrants a different approach being taken in Northern Ireland.

The 2002 Act, which gave legislative effect to the criminal justice review, was drafted to provide for the appropriate lines of accountability in the post-devolution world. The fact that the process of getting to that post-devolution world has taken longer than most of us anticipated at the time reinforces the need to ensure that these arrangements, designed to create community confidence in the prosecutorial system, are allowed to continue to bolster those levels of confidence to the point where responsibilities are devolved. The fact that the First and Deputy First Ministers have not proposed that those arrangements should be changed is an indication, in the Government’s view, that the time has not yet come to change them. If, at some point in the future after we have devolved policing and justice, the Assembly concludes that Northern Ireland has come sufficiently far from the circumstances that obtained at the time of the criminal justice review, the Assembly will have the opportunity to change the arrangements in the 2002 Act. I do not think that it would be helpful for this House to seek to impose change at this stage in advance of the elected representatives of Northern Ireland coming to the conclusion themselves that the time was right.

It is still important that the DPP can be held accountable by the Assembly. That is right and proper and is provided for in the 2002 Act. While the Assembly will not be able to inquire into individual cases—that would be trespassing too far on the principle of prosecutorial independence—its justice committee would be able to summon the DPP to give evidence on all matters relating to the financial and administrative running of the service. In addition, there is provision in the 2002 Act for the Assembly to provide an opportunity in its Standing Orders for the Attorney-General to speak and answer questions in the Assembly itself, as well as in Assembly committees, although he will not be able to vote. Given the consultative relationship between the Attorney-General and the DPP, this means that the Attorney can also answer questions relating to prosecution matters, including prosecution policy and systems, although he will not be able to answer questions relating to individual cases.

Another important recommendation of the criminal justice review was that the Attorney-General for Northern Ireland should not be a political figure. The 2002 Act provides for the appointment to be made by the First and Deputy First Ministers. They have already indicated the person whom they would like to appoint, to widespread approval. There has been some suggestion—we will have an opportunity in Committee to debate amendments to this effect tabled by the noble Lord, Lord Kingsland—that the Attorney should be appointed by the Lord Chief Justice rather than by the First and Deputy First Ministers and that the Attorney should have a more active prosecutorial role. The Government believe that this would be a departure from the principle of separation of powers, which is a fundamental tenet of the UK’s constitution. The distinction between the prosecutorial system, which brings cases on behalf of the Crown, and the judiciary, which tries those cases impartially and independently, would be frustrated if we moved to a position where the head of the judiciary appointed the head of the prosecution service. In addition, given the Attorney-General’s role as a source of legal advice to the Executive, it is important that the post is filled by someone who has the confidence of both the First Minister and the Deputy First Minister. The arrangements set out in the 2002 Act, reflecting, as they do, the recommendations of the independent criminal justice review, are, in the Government’s view, the right framework in which to place Northern Ireland’s devolved institutions on the right footing when they take on responsibility for policing and justice.

Clause 4 extends the scope of the order-making power in Section 86 of the Northern Ireland Act 1998 to enable the possibility of executive functions being devolved, even if the legislative competence for the matter remains reserved. Ultimately, this will allow Parliament greater flexibility to ensure that responsibility for certain functions sits at the most appropriate level, while reserving legislative competence for Westminster. Parliament will have control over the use to which the power is put. All orders made using this power are subject to the affirmative procedure and we will have an opportunity to debate them fully when the time comes.

The murderous attack over the weekend has brought into sharper focus the continuing threat that Northern Ireland faces from a small minority of people who are determined to disrupt the progress made in recent years. The shock and revulsion that have been abundantly clear in all parts of Northern Ireland demonstrate how far we have come in recent years. The greatest memorial to the weekend’s victims is to continue with the political process and to show that this minority will not be allowed to drag the people of Northern Ireland, who are united in their commitment to political progress, back to a time when violence dominated the politics of the Province. The progress made by the Northern Ireland Executive must be allowed to continue and this Bill represents the Government’s support for that progress, giving effect, as it does, to the agreement of the First and Deputy First Ministers and the Assembly and Executive Review Committee.

Before I close my remarks, I shall address a concern that I know is shared by a number of noble Lords about the time allocated to consider this legislation in this House. That concern is recognised by the Government. However, it is not for the sake of the Government that we have sought to push this Bill through Parliament on a reduced timeframe; it has not been done for the simple sake of expediency. The Belfast agreement of 1998 set out the Government’s support for the principle of the devolution of policing and justice. That support was augmented by the St Andrews agreement, which set out the Government’s belief that the implementation of that agreement should be sufficient to build the community confidence necessary for the Assembly to request the transfer of policing and justice powers by May 2008. The Government gave a commitment that they would do all that they could to facilitate progress and to ensure that the necessary enabling legislation would be in place to ensure that, when the Assembly felt ready to request the transfer of responsibilities, that transfer could take place expeditiously. That commitment stands, which is why it is important that we do all that we can to ensure that we expedite the path of this Bill.

Of course, your Lordships will know that, in making this comment, I do not discount the vital importance of ensuring that Parliament has the opportunity to scrutinise carefully the legislation before it. I recognise that that opportunity has been curtailed in this case, although I hope that the briefings given by my right honourable friend the Secretary of State for Northern Ireland and his officials have been of assistance to noble Lords and have helped that process of consideration, even given the reduced timeframe in which the process has taken place. However, the Government believe that it is correct that the people of Northern Ireland, through their Assembly, should be able to move forward with the devolution of policing and justice at a pace determined by them. While a final decision on when devolution should take place has not yet been reached, should the process of building community confidence continue apace, there is no reason why that decision should not be taken soon.

I know that all of us in this Chamber today have the interests of Northern Ireland at heart. We have spent much time over the years debating how best to provide for Northern Ireland and, more recently, celebrating the fact that devolution has been restored and that its elected representatives can, once more, take responsibility for the issues that matter to the people of Northern Ireland. This Bill gives effect to the wishes of the representatives of those people. It is for that reason that, notwithstanding the understandable frustration that many of your Lordships feel about the limited time available to consider the Bill, I am confident that no one here would want this House to become the stumbling block to progress in Northern Ireland. We have a duty to scrutinise the Bill carefully, but we also have a duty to do what is right in the interests of Northern Ireland. In that spirit, I commend this Bill to the House. I beg to move.

15:32:00

Lord Glentoran
My Lords, before I address the Bill, I should like to associate my party with the opening remarks of the noble Baroness the Lord President in relation to the awful happenings on Saturday. Although it is not much use, let the families and friends of the dead and seriously wounded know that our thoughts and hearts are with them today. There is a Statement later on that happening and anything political that comes from it, so I do not propose to dwell on it at this moment.

What I am about to say is not in any way concerned with the noble Baroness the Lord President and the noble and learned Baroness the Attorney-General. From our side, and certainly from my point of view, this has been the worst handled Northern Ireland Bill that in the 10 years that I have been doing this job I have ever been associated with. We are rushing a complex and hugely important Bill, which is vital to the constitution, and which invokes parts of something like six Northern Ireland Acts that need to be read and understood even to start to understand this Bill. The Bill had something like six hours, including the programme Motion debate, in the other place. If you read Hansard, there is only one conclusion that you can come to. I dare not use the language that I would use outside the House, but it was not a very good conclusion.

I thank the noble Baroness the Lord President and the noble and learned Baroness the Attorney-General for the huge assistance they gave to me, to my party and eventually to all your Lordships in getting out briefings and laying on meetings to help us understand what this Bill is about, what it is doing, why it is needed, where it is coming from and where it is hoping to go to. I do not understand why we had to rush it all through. It will not be rushed through once it leaves here but the Secretary of State is the Secretary of State and we have to live with him while he is there.

There are a number of areas of the Bill about which we are not happy. Thanks to the support of my noble friend Lord Kingsland, the Government now fully understand our worries. We just need to make sure that they stay up front. If it passes through this House, the Bill will go back to the Northern Ireland Assembly. One of the things that concerns me—made even more worrying after Saturday night—is the state of the structure and organisation of criminal justice and policing in Northern Ireland. I believe that the criminal justice system, the judiciary and so on are in good shape. I have been assured of that by the Attorney-General, who is the Attorney-General for Northern Ireland. I know that she has had an interest in Northern Ireland for many years. However, I am seriously concerned about the police and the security forces as a whole.

The Northern Ireland Assembly, if it pursues one of these options and asks for devolution, will be inheriting a police force with a chief constable who is retiring—or being moved—a deputy chief constable who is heading for retirement and an overdraft or debt in the police budget of more than £50 million. Furthermore, the Government have required the police service to save £350 million over the next three years and that overtime is reduced by 51 per cent. Considering the security situation in Northern Ireland as of today and last week and indeed for some time—it was quite some time before the chief constable shouted for help—that is not a good state in which to hand over something as important to a community as its policing. I want to know whether the Government plan to ensure that when it comes to devolving the police and criminal justice system, they are devolving a top-rate, on-top-of-the-job well-funded organisation.

We recognise that the Bill does not itself deliver the devolution of criminal justice and policing. The Bill merely creates an eighth model of how justice powers could be devolved if and when the Assembly feels able to agree. That is a matter, rightly, for the MLAs in Northern Ireland to decide. However, powers should be transferred from this Parliament only when three criteria have been met. First, all parties represented in the Executive should be committed to pursuing their objectives by exclusively peaceful and democratic means. Having heard and read some of the comments of Sinn Fein politicians near the top of the police board as well as Adams and company, I do not believe that they support the PSNI other than cynically because it suits them to use it to pursue their own political agenda, which is not the political agenda of all the people of Northern Ireland.

Secondly, all parties should fully support in word and deed the criminal justice system, including the police and courts. Thirdly, such a transfer of power should command support across the community, as expressed through Northern Ireland’s political representatives.

We have always made it clear that any devolution of policing and justice powers must preserve the operational independence of the chief constable and his officers. If power had been devolved and the chief constable had asked for support from the SRR, I wonder whether the Assembly would have been able to give it to him or would he still have the power even to ask for it?

In terms of how the Bill is presented, we are not happy that the Director of Public Prosecutions for Northern Ireland is independent of a parent department within the Northern Ireland departmental system. I understand the arguments that I have been given by the Attorney-General and I understand why we are where we are but the fact that the Attorney-General for Northern Ireland will be appointed by the First Minister and Deputy First Minister means that he cannot be independent of politics. Northern Ireland being what it is, things soon swings into, “Your turn, my turn”.

We were also unhappy about the supervision and support of the DPP. There has been no criticism whatever from me or my party of how the DPP has operated in any way; it has been superb. However, we feel that it needs supervision. The DPP needs support and, at times, some management; in the rest of this kingdom, the DPPs have both support and management.

We have tabled a number of amendments, which will be considered later. However, we in my party have discussed this Bill at length—for a considerably longer time than it spent in another place—and we have done so with Ministers and the noble Baronesses on the Front Bench. We believe that in the situation that Northern Ireland finds itself in and where we are, we should let the Bill go through. We also support whatever is required to keep criminal justice and policing on the road.

15:43:00

Lord Smith of Clifton
My Lords, I thank the Lord President for introducing this Bill. I associate these Benches with the condolences that have been expressed over the killings of the two soldiers and the best wishes for the full recovery of others who were wounded at the Massereene barracks in Antrim on Saturday last.

These atrocities serve to support the arguments I shall adopt regarding the need to strengthen the position of the proposed Minister of Justice. The Bill before us today is the latest in a series of attempts by the Government and the Executive in Northern Ireland to get the mechanics right when devolving policing and justice matters to the Assembly. It provides yet another model for a department of policing and justice to add to those introduced by the Northern Ireland (Miscellaneous Provisions) Act 2006 and the Justice and Security (Northern Ireland) Act 2007.

As has been said, the Bill does not give details of what powers will be devolved to the Assembly, nor does it tell us when this is likely to happen. In that regard, therefore, the Government cannot claim that this is “emergency” legislation that should be rushed through this House and the other place in a matter of days. The Lord President’s explanation is less than satisfactory. When the Bill was debated in the House of Commons, there was a great deal of anger that it had been rushed through so quickly. It may be urgent, but surely not so urgent that adequate time cannot be provided between the discussions on the Bill in both Houses. This is a complex piece of legislation, as the noble Lord, Lord Glentoran, emphasised when he referred to previous Northern Ireland Acts that subsequently were amended many times. We, too, are grateful to officials for providing a copy of the consolidated legislation, and for their assistance with our queries on the Bill. Nevertheless, more time for consideration of the Bill would have been welcome, as would notice of the meeting that took place today at 1 pm with the Attorney-General and the Lord President. I became aware of that on the train coming down, and could not attend.

The Liberal Democrats are a devolutionist party. For many years, we have supported and promoted the principle of devolving policing and justice powers to the Assembly. We want a local Minister to take responsibility for local aspects of the criminal justice system. That would be a major step in the normalisation process in Northern Ireland and could be regarded as the final piece in the jigsaw puzzle of the peace process. Several measures have already been put in place to provide greater transparency and accountability in operational matters; now they need to be entrenched in an Executive Minister who has been elected by local people.

However, we must not underestimate the challenges that face Northern Ireland in the areas of policing and justice. The noble Lord, Lord Glentoran, mentioned some of them, including, crucially, the financial matters that must be clarified, particularly in relation to the number of police officers, given the current threat by dissident Republicans—a threat described by the chief constable as being at the highest level for a decade. The atrocities at the Massereene barracks at the weekend fully validate Sir Hugh Orde's grave assessment of the current security situation. We must also address the increasing financial pressures on the prison estate, with a growing prison population and tougher sentences, and the matter of legal aid. Nevertheless, we believe that these issues should be decided at a local level by a local Minister. In so far as the Bill helps the Assembly to achieve that aim, we support it.

Our difficulty, of which the noble Baroness is well aware and to which she has alluded, lies with Schedule 1 to the Bill, and in particular with the provision dealing with the removal of a Minister from office. The schedule proposes that a Minister of Justice can be removed simply by a cross-community vote in the Assembly. The Secretary of State may argue that this is the procedure for the removal of any other Assembly Minister. However, that would be to ignore the political implications of this part of the Bill.

We have warned Ministers previously not to look upon policing in Northern Ireland as being in any way comparable to other ministries there. Northern Ireland policing has a different dimension. There are special arrangements, including human rights compliance and structures for oversight and accountability. The fact that we are debating yet another model for a Ministry of Justice in Northern Ireland, in addition to the various other models that are on the statute book, emphasises that this is not just “any other Ministry”.

The model in effect implies that, for something as important as policing in Northern Ireland, there must be special arrangements. We must create an entirely new department, outside the 10 departments that already exist in the Assembly, to accommodate such weighty functions. The model suggests that, although we have looked at how such a Ministry should be structured, we have not yet got it right. This is too important to be anything less than as optimal as can be contrived. To state simply that the Minister who is in charge of one of the most contentious and critical departments can be dismissed in the same way as other members of the Executive ignores the special circumstances that surround this portfolio.

Policing and justice functions are different in Northern Ireland. Indeed, they are so different that the parties that currently compose the Executive believe that they should look outside themselves to find a person who can fulfil the role of Minister of Justice. It is not the function of the Bill or of this House to appoint the first Minister of Justice. That responsibility lies with politicians in the Assembly. However, it has been rumoured—indeed this was discussed in the other place—that the First and Deputy First Minister are looking to the Alliance Party to fill such a role. To place an Alliance Minister in a position where he or she can be so easily removed from this office is completely unacceptable. There is no equivalence between a Minister who has to retain only the confidence of his party nominating officer and a Minister elected by the Assembly as a whole, as the Justice Minister will be. The words of the First Minister, Peter Robinson, speaking in the other place last week, were welcome, but unless his intentions are enshrined in legislation they cannot provide, unfortunately, the necessary comfort that is required. We do not doubt his sincerity when he stated, as the Lord President has already quoted:

“Neither the First nor the Deputy First Minister will wish to do anything other than give full support to a Justice Minister”.—[Official Report, Commons, 4/3/09; col. 940.]
 

We also did not doubt the sincerity of the former Prime Minister, Tony Blair, when he pledged to the people of Northern Ireland in May 1998 that paramilitary prisoners would be kept in prison unless and until violence was given up for good. Indeed, I was present when he made that pledge at the Coleraine campus of the University of Ulster, being the vice-chancellor of the university at that time. However, despite the sincerity of the then Prime Minister, as the statement was not enshrined in the Northern Ireland Act 1998, we all saw that it was impossible to insist that the promise was kept. As it turned out, it was not, and prisoners were released without the pre-condition of arms being decommissioned.

Similarly, as the recent Constitution Committee report on the surveillance society highlighted, Mr Charles Clarke, when Minister of State in the Home Office, categorically stated that anti-terrorism laws would not be used for other purposes. In fact, as the committee noted, such laws have been used by local authorities as well as by central government for other purposes. Ministerial assurances have to be discounted in the light of the experience of these examples; they have been debased so that now little confidence can be placed on them.

It is also worth remembering that, in a cross-community vote, the vote of a member of the Alliance Party is worth less than that of a member of the DUP, Sinn Fein, the SDLP or the UUP. The vote of an Alliance Party member does not count in the stage which requires 50 per cent of unionists voting and 50 per cent of nationalists voting, as they are neither unionist nor nationalist. Is it right that they could be removed from such a fundamental position by a mechanism that does not even treat them as equal to other parties in the Executive? No other party would accept such an onerous task under such disadvantageous circumstances. We cannot expect Alliance to do so either. Accordingly, when we come to discuss the Bill in Committee, we shall move amendments to rectify this provision.

15:52:00

Lord Morrow
My Lords, it is right and proper that I should preface my remarks by referring to the dreadful atrocity which happened in Northern Ireland on Saturday evening. I am, of course, referring to the murder of two soldiers in Massereene barracks in County Antrim. I find it extremely difficult to use the proper words on such an occasion. I am very conscious that whatever words I might use, they will fall far short of what should be said. I am sure that every Member of the House is utterly revolted and repulsed about what happened on Saturday evening in Northern Ireland. To the two young soldiers’ families, I extend my sincere and heartfelt sympathy. Our thoughts and prayers are with them. To those who were seriously injured, we trust that they will make a speedy recovery. They did not deserve this by any standards. It is most sickening and downright appalling.

Some may recall that when I spoke in the House just over a week ago, I said that Northern Ireland had come a long way. However, I sounded a note of caution and said that it had much further to go before we could have confidence that normality had returned. Sadly, this murderous attack confirmed our very worst fears. However, none of us could have anticipated the horrific callousness and ruthlessness of what happened on Saturday evening.

Just last week, the PSNI chief constable, Sir Hugh Orde, was severely criticised after making it known that he was forced to return the Special Reconnaissance Regiment to the Province due to the possibility of an attack. Sadly, his worst fears were confirmed. It is a tragedy that there were politicians within Northern Ireland who denounced the chief constable for his actions. I trust that today, on reflection, they will see the folly of their words as two young soldiers lie dead and others seriously injured, including civilians.

Turning to the issue before the House today, in general, my noble friend Lord Browne and I will be supporting the principles of the Bill. Its introduction represents significant advancement and will, I hope, grow the confidence of communities in Northern Ireland in seeing policing and justice matters devolved, eventually, to the Northern Ireland Assembly. I should say that that is in keeping with the St Andrews agreement. My party is acutely aware of the sensitivities around the devolution of policing and justice to the Northern Ireland Assembly. I wish to state emphatically that the unionist community, in particular, would not accept Sinn Fein being in charge of policing and justice. Of course, the nub of the requirement is that whoever holds the position has support across the community as a whole. As events in Northern Ireland progress, we are hopeful that that will eventually arrive. It should be said that events such as what happened on Saturday evening do not enhance the prospects for early devolution of policing and justice and the restoration of the confidence of the community.

It is ironic, however, that unionists in the past fought to have policing and justice powers. This goes right back to the setting up of Stormont and the days of Carson and Craigavon. They were particularly strong and insisted that the Stormont Parliament had them. It is also a reality that another unionist prime minister refused to continue with devolution when those powers were taken away, stating that a Parliament without them was not worth having. My party has always made that clear; indeed, we fought elections and sought and got a mandate on such issues. We made three commitments. One was that we support the principle of devolution of policing and justice functions. We always said it could happen only when there is sufficient confidence within the community. Furthermore, we do not believe there would be support for the devolution of such powers to a Sinn Fein Minister in the foreseeable future. It may be important that policing and justice are devolved to Northern Ireland, but what is more important is that, when that day eventually comes, we get them right, rather than getting them soon. The requirements for the devolution of policing and justice are threefold: that it is done in the right way, at the right time and under the right circumstances.

In conclusion, I would like to draw the attention of the House to what the Bill is not about. This is important. The Bill will not devolve policing and justice. There is a triple lock before that can happen, which has already been referred to. I draw the attention of the House to this because it is vital, in particular to those of us from the unionist community. Parliament has already set out arrangements for that—I refer to my notes because I want these important points on the record—in Section 4 of the 1998 Act. They depend on the triple lock, whereby a Motion requesting devolution needs to be tabled in the Assembly by the First and Deputy First Ministers acting jointly. After that, the Motion would need to be approved by a cross-community vote in the Assembly. The Secretary of State would then bring transfer-matter orders before Parliament in Westminster for approval and debate. The Bill—this is significant and very important—will not impose devolution on the majority if it later chooses not to exercise that power. I believe that the House is looking for an assurance today from the Minister that there will be no attempt whatever to impose the devolution of policing and justice on the Northern Ireland Assembly.

16:00:00

Lord Maginnis of Drumglass
My Lords, it is with a heavy heart that I begin by referring to the brutal murder by IRA rebels of two of our soldiers and to the injuries of four others, including a local pizza delivery lad and a migrant worker. There has been so much evil and so much similar bloodshed over the past 40 years, what can one say to the families of those left behind? I feel so much for them, and for all those others whose old wounds have been opened yet again.

Since I participated in the formulation of the Belfast agreement almost 11 years ago, my party and I have paid a heavy price politically. Yet we are still proud that all those difficult decisions that we made were made openly and honestly and had, until now, given our community a chance to bring tit-for-tat politically motivated killings to an end. Subsequently, the same selfishness that has brought this great nation to its knees economically has continued to pervade our fragile peace, as people secretly and in ignorance tinker around with what those years of tragic experience helped us to create out of the mayhem.

In the circumstances, it is ironic and tragic that we come here today to be asked to build on the selfishness and deceit that began at St Andrews and has been compounded by what are now referred to as the two major parties in Northern Ireland. Those parties are working out of little more than electoral self-interest and in cahoots with the Secretary of State for Northern Ireland, whose briefing, which was conveyed to Members of this House last week, was so flawed, misleading and bereft of substance as to be offensive.

We are led to believe by the Secretary of State that the Bill, which has been rushed in its entirety through another place in a single sitting and is to be dealt with in your Lordships’ House in a mere two sittings, is not really about any precipitate movement towards the devolution of policing and justice in Northern Ireland; it is simply a means of providing another option in that process for our devolved Assembly.

The Secretary of State for Northern Ireland said in his briefing that the Bill was to reflect agreement between the First Minister and the Deputy First Minister on 18 November 2008 and as taken through the Assembly with cross-community endorsement on 20 January this year after consideration of a report by the Assembly and Executive Review Committee. He went on:

“In that sense, the Bill not only enjoys confidence, but has ‘Made in Northern Ireland’ stamped firmly on it”.—[Official Report, Commons, 4/3/09; col. 856.]
 

Let me share the real facts with noble Lords. I do not know, nor I suspect does anyone else, exactly what deal was conjured up between Peter Robinson and Martin McGuinness during and subsequent to the irresponsible and disgraceful 150-day moratorium of the Assembly Executive, but I do know that when the letter conveying the Robinson/McGuinness deal to the Assembly and Executive Review Committee was placed before the Executive “to be noted”, at least two Executive members voted against it. For absolute clarity, it is worth adding that there has not been any formal discussion on the devolution of policing and justice, or the methodology to be employed, at the Executive. It is exclusively a deal between Sinn Fein and the DUP in which the Secretary of State for Northern Ireland is complicit, but of which others know virtually nothing.

I am further aware that there was not a unanimous report from the Assembly and Executive Review Committee. At least three review committee members voted against the report. It is a fact that only 51 out of 108 Assembly Members voted in favour—47 per cent of Ulster Unionists and the SDLP voted against and others abstained. Therefore, was the report “made in Northern Ireland”? My answer is hardly so.

I am, for better or for worse, a committed devolutionist who believes that progress must be built on a firm foundation. That is an objective I share with my party and, I believe, with the SDLP. It is also worth noting that the SDLP voted against the substantive motion last Wednesday in another place, whereas the DUP appears to have voted according to its secret arrangement with Sinn Fein. But my opposition to the precipitate action of the Government in this matter has less to do with politics than with practicalities. It is time to look at the situation with which a still tetchy and suspicious community would have to deal and I ask noble Lords not to be misled by talk of a process that can trundle up to 1 May 2012. It is, I am convinced, part of a deal between the Secretary of State’s office and Sinn Fein that matters can be decided in the five weeks between the European election on 5 June and this House going into recess for the summer. Is it not a tactic of this Government to use the recess as a cover for unpleasantness? That is why we are being rushed here today. We can be assured that there is no other justification and I only hope that my words of opposition will frustrate such an irresponsible intention.

What even suggests that the timing for devolution of policing and justice is feasible? We have a chief constable who has just this week concealed from his police board the fact that he sought to mobilise a special intelligence resource because the threat from dissident republicans is so great. I have no problem with such measures and I expect the same level of security as in any other part of the United Kingdom. But I do not expect a conspiracy between the chief constable and the Secretary of State that gives the very people who threaten us publicity, sympathy, status and a raison d’etre. From our brief interaction with the Secretary of State for Northern Ireland last Monday, it is clear that he knows nothing of the psychology of anti-terrorist warfare.

If even the police board cannot be trusted with this level of information, why is it there? Of greater relevance, why, if that is their attitude, would the chief constable and the Secretary of State consider devolving total responsibility to the Assembly? It is time for this House to have straight answers to those questions, and I have sympathy with the Lord President in so far as the Secretary of State for Northern Ireland has dropped her in the unenviable situation of having to justify his inadequacy.

We are being asked to make provision for policing, obviously with the acquiescence of our chief constable, who recently told an All-Party Parliamentary Group on Northern Ireland that I attended how he had such an efficient force that he did not need to know what was happening on a day-to-day basis. For nearly three years he has publicised the threat from dissident republicans like a recruiting sergeant but, by admission, cannot and does not keep a record of their capture and convictions. Can you imagine? This was the chief constable who told us that he had so little police resources that the PSNI might have to cease recruiting; who admitted that he was short of more than 400 detectives; who told us publicly that the PSNI was no longer investigating the £26 million theft from the Northern Bank, the brutal McCartney murder or the Omagh bomb; and who, with the Office of the Director of Public Prosecutions, has not succeeded in any of those three trials. We are being asked to prepare to devolve that sort of poisoned chalice.

It is worth noting that, since the DUP/Sinn Fein secret deal in November, almost every question that I have asked about policing has been deemed an “operational matter”, not worthy of a proper answer. On 29 January, in a follow-up Question, I asked how the source of Semtex explosives used by the dissident IRA could be deemed “an operational intelligence matter” and who decided to classify it so, when the information I sought was already known by the police, the Provisional IRA and by dissident IRA activists. I was told that it was the view of the Secretary of State for Northern Ireland that this was an operational matter. Who so advised him? Is it not a contradiction for the chief constable to publicly analyse day after day, week after week, dissident IRA capability without making any apparent inroads against them, while, arbitrarily, the Secretary of State decides that parliamentarians should be kept in the dark?

I know a little about anti-terrorist operations, yet neither the Secretary of State nor the chief constable would ever think it worth asking me to meet them, but I bet that they meet Sinn Fein the moment it crooks its little finger. Therefore, how could I or anyone accede to the terms of this Bill brought before us today under such duplicitous and ill contrived circumstances?

16:12:00

Lord Mayhew of Twysden
My Lords, it is a privilege to follow the noble Lord, Lord Maginnis, who has devoted his entire public life, in uniform and in politics, to countering sectarianism in Northern Ireland and to furthering an honourable peace there. His speech today will repay careful reading. He will forgive me if I do not propose to follow it today.

Until last Saturday night, 12 years had passed since the most recent murder of a soldier in Northern Ireland. There was some reassurance, so many of us felt, to be had from the fact that that at least was the case. That soldier was young Lance Bombardier Restorick, of the Royal Artillery, murdered by the IRA using a high velocity point 5 bore sniper’s rifle in a carefully planned attack—as carefully planned, I would guess, as last Saturday night’s attack. The calm and constructive courage shown thereafter by his parents remain an especially poignant memory.

Today, I reckon that, for all of us, our discussion of this Bill is overshadowed by the murder of two more soldiers in County Antrim and the wounding of others already referred to, including civilians, by the so-called Real IRA. I say so-called because, to my mind, they are not real Irish people or real republicans, and certainly they are not a real army. There could scarcely exist a more stark contrast between, on the one hand, the motives and methods of the perpetrators of this crime and, on the other, the motives and methods of those leaders whose political agreement has led to the formulation of this Bill. On the one side is the violent and murderous rejection of a future for Northern Ireland based on consent and the rule of law; on the other, the rejection of a future in which the past would be endlessly and hopelessly reproduced. There is infinitesimal support, if any at all, for the first, yet there is overwhelming support for the second. As this Bill comes forward, the response to the disgusting crimes of two days ago should be one of steadiness and calm judgment, as well, of course, as one of firm resolve.

That said, my first reaction to this Bill, which I support in general for the reasons that have been given, was one of sympathy with the parliamentary draftsman. It bears all the marks of ministerial instructions of the “hurry, hurry, go faster” type. When these necessitate the copious and piecemeal amendment of complete Acts that have themselves been similarly amended, perhaps more than once, then, for the draftsman, Pelion is indeed piled upon Ossa.

For the same reason, my second reaction—it was second only by a short head—was one of sympathy with all who have to construe and implement the result. The Bill is user-hostile. Its clauses are beguilingly few in number, a mere five, but the devil is in the schedules, which take up 28 pages. Examples of their thicket-like quality abound—I take this instance from page 7, lines 33 to 37:

“After paragraph 12 insert … ‘13 … Paragraphs 3(10), 3D(14), 7(10), 11(10) and (11) and 11E(10) of this Schedule shall have effect subject to paragraphs 2 and 3 of Schedule 12A (as those paragraphs are modified at any time by virtue of paragraph 12 of this Schedule)’.”.
 

I feel that this daunting quality is not the fault of the draftsman; it is the inevitable consequence of the haste with which the Government have required this work to be done; haste which was matched by the time within which they required Parliament to pass this Bill. The timetable simply is not long enough to allow this House at least to do its proper job of scrutiny and revision, valuably though the Bill team has endeavoured with Ministers to help some of us understand the Bill’s provisions and their effect. The Government might well take to heart the reaction of the Select Committee on the Constitution in this House, which reported only a few days ago and whose findings I shall leave to its chairman, my noble friend Lord Goodlad, to relate.

Ministers say that the justification for this haste is the need to keep up the momentum of the devolution process, that momentum will be lost unless, by the summer Recess, the Assembly will have been able to decide what use if any to make of the additional devolution model which the Bill is designed to offer it and what course to take in the light of that decision. They point out that it was only on 18 November last year that the First and Deputy First Ministers reached the highly significant agreement which could be fulfilled only by detailed legislation.

I do not think that that justification stands up. Momentum is not an end in itself. When dealing with a topic as sensitive and controversial as the devolution of policing and criminal justice in Northern Ireland, which has a highly litigious as well as a still-divided society, it would be wiser for the Government to get their legislative tackle reliably in order even at the cost of a couple of extra months. Like patriotism, momentum is not enough, and I add my protest to those that have been made both here and in the other place.

We are nevertheless where we are, however reluctantly. Having served in my time as both the Attorney-General for Northern Ireland and then Secretary of State, I am driven to focus on the Bill’s provisions for the relationship between the Attorney-General for Northern Ireland and the DPP for Northern Ireland.

For my part, I have always been a convinced upholder of the merits of the structure that operates in this country. The Attorney-General has a statutory duty to superintend the DPP, whom she appoints, and over whom she has a power of direction—a power that I believe not to have been exercised in modern times but which remains available. That arrangement has been on the statute book since the 1880s and continues to work very well. The prime reason for my support for it has lain in the fact that Parliament will on occasion want to examine a particular prosecuting decision or event, and that rightly it will consider itself entitled to a degree of fair accountability. Similarly, it may be right—I have personal experience of this—for the Attorney-General to go before the House of Commons, or the House of Lords, and explain why a particular action has taken place, why it has occurred and to set the record straight.

Parliament will not be satisfied with the attendance of a mere messenger; it will require to hear from the person with whom ultimate responsibility lies. That person should accordingly be a Member of one House or the other and have the right of audience. Merely being questioned as a witness, which will be possible under the Bill’s arrangements, is not the same, nor is it enough. Given the general acceptance of the fundamentally important convention that the Attorney-General acts quasi-judicially, this has always seemed to be the best practicable arrangement. I believe that it served equally well in Northern Ireland under direct rule.

Devolution in Northern Ireland inevitably can be expected to bring to the fore suspicions and assertions of political bias in prosecutorial decisions. Such is the invasive character of the prosecuting arm of the state that it is highly important to protect the DPP as far as practicable from these suspicions and from the attacks that will foreseeably be based on them. These suspicions can expect to be further fed if the Attorney-General for Northern Ireland is appointed politically by the First Minister and Deputy First Minister jointly, as is provided for by the 2002 Act.

The criminal justice review, to which that Act gave effect, took the view that the atmosphere in Northern Ireland was so highly charged that the DPP should be made wholly independent of ministerial supervision. At that difficult time for Northern Ireland I agreed with that, albeit reluctantly given my strong support for what works so well in England and Wales, and which I continue to believe is the ideal. Accountability remains of huge importance, as does public confidence in the system. Since 2002 we have seen the passage of seven years, which has been a generally positive period in which significant political progress towards devolution and peace has been made. In these differing circumstances today, I am inclined to believe that if the Attorney-General were to be appointed by the Judicial Appointments Commission, or rather recommended by the commission and appointed thereafter as a matter of convention by the Lord Chief Justice, and supervision were restored, suspicions of bias would be significantly abated. Accordingly, if my noble friends were to move such an amendment, I could see the point of that and would think it entirely justifiable. It comes down to a question of judgment concerning the atmosphere in Northern Ireland today. Either way, I shall be content to support the Bill which does not deliver devolution of criminal justice and policing but usefully offers further paving along the way.

16:24:00

Baroness O'Neill of Bengarve
My Lords, at the end of last week we perhaps expected to have this debate in an atmosphere where we felt that things were moving forward in Northern Ireland. Like other noble Lords, I have been saddened, disappointed and outraged by the events last Saturday at Massereene barracks. Despite the warnings by the chief constable, no one could have anticipated them. In that circumstance, this Bill could have expected a favourable wind. After all, on the surface it comes with cross-community support and cross-party support here. I broadly support it, and others have given very good reasons for supporting it.

However, the wind is also blowing from a different quarter, and the reason is the outrage expressed by several noble Lords—and with great eloquence in another place— about the way in which this measure has been brought forward. This is a constitutional Bill; it is not a piece of small, secondary legislation, but constitutional legislation for a situation that is still complex and intricate. It is not merely that the other place was offered spectacularly little time to debate it, but that none of us—despite the great assistance received from officials—was given the time needed to see how the various pieces of legislation referred to will interact. I am sure that others have spent the weekend with cold or hot towels, according to preference, getting their minds around how these provisions interact. I want to return to the question: why the haste? In some ways, that lies close to the surface at this point.

In the other place, two distinct reasons were given for the haste. It is always a bit worrying when two reasons that pull in quite different ways are given for the same policy. One reason is that there was no parliamentary time, but that does not stand up to the evidence. We know that it has been many weeks, indeed months, since the First Minister and the Deputy First Minister reached agreement; it has been nearly two months since the Assembly came to an agreement, and there has, presumably, been liaison and contact between the Secretary of State and what was going on in Northern Ireland. Nevertheless, we find the plea made that, in this rather lighter parliamentary Session, there was no time to do otherwise. That point was made not just on one occasion, but again and again.

Beside that, a quite different reason was given for this unseemly haste by the Secretary of State and expanded on by the previous Secretary of State, the right honourable Peter Hain: that this is a matter of keeping the momentum. That metaphor comes, I think, from bicycle riding; most of us, if we lose our speed aboard a bicycle, tend to fall off. That metaphor of momentum may have had its place in negotiations among parties reluctant to reach agreement; however, on this occasion, it has none. We are not in a situation of negotiation among highly divided parties which have to be cajoled and goaded toward agreement. This is a parliamentary process and a constitutional Bill. I do not see why momentum provides a reason for haste. On the contrary, the assumption that momentum is at stake here has served us ill. It has meant that a great deal of the discussion in the other place, and here today, has been devoted to the way in which the Bill has been brought forward and the lack of time for its consideration—and then we come to the complexities.

There is a suspicion, voiced by the noble Lord, Lord Maginnis, on which I have no opinion of my own. Yet the House deserves to hear that suspicion laid to rest or confirmed. In that spirit, I shall say very little more. If the Minister could tell us the central reason for this process being used for a constitutional measure, it would put many of us in a position to make a clearer judgment about the substance of the Bill. I do not think that many of us would find it difficult to support a Bill whose central provision is to take the Minister of Justice out of the d’Hondt process. There are ancillary questions to be raised and scrutiny to be done, but could the Minister tell the House what led to this unseemly haste? I should be greatly relieved if she could honestly tell the House that it was a muddle.

16:30:00

Lord Browne of Belmont
My Lords, I thank the Lord President for bringing the Northern Ireland Bill before the House this afternoon. Perhaps not on the face of it substantial, it is nevertheless very significant for the structural management of policing and justice in Northern Ireland.

Before I proceed, I, too, offer my sincere condolences to the families of the serving soldiers who were murdered in the service of our country at Massereene barracks in Antrim on Saturday. I extend my sympathy to the families of the soldiers and civilians who were injured and I very much hope that they will make a full and speedy recovery. Saturday's tragic events will make all of us strive all the more energetically to ensure that the peace process continues and develops. This Bill is an important element of that process and nothing should be allowed to deter the people of Northern Ireland from striving towards a shared future of peace and harmony.

Without wishing to be churlish, I draw attention to my party's concern and frustration at the legislative timetable of this Bill in the other place. Unlike with other Bills pertaining to Northern Ireland, there is no deadline, crisis or stalemate which justifies the accelerated passage that this Bill is receiving. Indeed, there is a genuine concern that without an appropriate period of scrutiny, this Bill and, perhaps more importantly, the schedules attached, may pass with certain flaws that could otherwise have been detected and amended in the usual manner. That said, noble Lords should be aware that my party is, in principle, supportive of the devolution of policing and justice powers to Northern Ireland. Indeed, during the passage of several Northern Ireland Bills within this place, I expressed the hope that sufficient public confidence would eventually exist in Northern Ireland to allow the early devolution of significant powers to the locally accountable legislative Assembly.

The devolution of policing and justice is not an aspirational desire. These matters are an essential cog of government, without which the long-term devolution project in Northern Ireland could be called into question. Indeed, it was only a short time after the Northern Ireland Parliament lost this legislative competence that devolved government in Northern Ireland came to an end with the prorogation of the Stormont Parliament in 1972. For this reason, I support the passage of this Bill as a tentative first step, which permits the Assembly to request the devolution of policing and justice powers when it is satisfied that there is sufficient confidence within the community and that the political maturity exists to deal which such functions.

To date, considerable progress has been made towards achieving these goals. Before devolution could be restored in Northern Ireland, my party insisted that support for the courts, the police and the rule of law should be an essential prerequisite for the appointment of any individual to an executive office. While some thought that such a request might be a barrier to progress, my party held firmly to the position that this was a normal requirement in any democratic society—and, fortunately, this view prevailed.

I am confident that continued cross-community cooperation will gradually increase public confidence which should, eventually, permit the devolution of policing and justice. The principle of devolving these powers is an objective on which both unionists and nationalists can unite, and the passing of the Bill will allow the next stage in the process of developing public confidence to begin. For that reason, I support the Bill.

16:35:00

Viscount Brookeborough
My Lords, first, I express my deepest sympathy to the families of the murdered soldiers and to the soldiers and civilians injured in the horrific, cowardly incident in Antrim on Saturday night. I must admit that, like many others, I thought and hoped that this sort of thing was behind us. I would point out that in the Province, at home, we have been well aware of the increased threat over the last few months from dissidents of the Real and Continuity IRA. However, I should tell your Lordships that, at ground level, many of the personalities serve either movement. They separate at leadership level, but it is well known that they wish to be closer. Therefore, we should not differentiate so much between them; they are simply all terrorists.

Secondly, the increased known threat did not include this incident in Antrim, which came out of the blue. So the threat continues to be as severe as it was on Friday, even if the perpetrators go to ground, or, even better, if they are brought to justice. I thank the noble Baroness, Lady Royall, for her introduction of this Bill to complete the devolution of Northern Ireland and the peace process, but, again, I would ask why it is so rushed. It seems to be lacking in professionalism to have pushed it through like this. I realise that the Bill produces only a model for the basis of the devolution of policing and justice. However, this may be our only chance to comment on it in your Lordships’ House. I also accept that it is largely a done deal between the DUP and Sinn Fein, both having accepted it.

However, I would like to make a few observations on the issue as a whole. The Government must ensure that these powers of policing and justice are devolved into a stable and democratic political environment. It is important to note that matters of national security are not devolved and I would like to address this for a moment. I would also like the Minister, in her reply, to clarify national security issues, reiterate where they stand in a devolved situation and make it absolutely clear. A lot of the rows over the last few days, prior to this incident, were based on a misunderstanding in some quarters and Sinn Fein playing a different game. Over the last while, Sinn Fein has been active in showing its support for policing, law and order and the courts. This is very welcome.

However, when the chief constable, due to the threats to national security, called in support from the Reconnaissance Regiment, we saw an outraged hysterical attack on him and the Government, and this has done absolutely nothing for community relations in Northern Ireland. Sinn Fein is acutely aware of that and yet it did it and continues to argue it. Therefore, we have a right to ask if Sinn Fein support for law and order is unconditional or conditional and tactical. I hope that it is not the latter, but I fear that it is not being honest in this respect. It may well argue that the current threat is not to national security. I beg to differ and, quite clearly, the Government differ as well; hence, the support being given to the chief constable.

We have known for a long time that the dissidents have links outside the UK and Ireland. Indeed, there has been al-Qaeda activity in Northern Ireland but no incidents. The Antrim incident gives them more credibility in international terrorist circles and it is of national security importance. Although it was a really ghastly, terrible, murderous incident, in terms of terrorism, the dissidents have been after something to give them credibility, both internationally and at home. It is not only international; there are a large number of ex-provisional-type people who are sitting on the fence, waiting to see if the dissidents could do anything credible. Well, now we see that, for a start, they have weapons that were meant to have been decommissioned; not only the weapons, but the Semtex that was used recently. This is really quite bad news for us all.

Sinn Fein’s attitude does not show unconditional support for policing and law and order. I think that I did not hear Gerry Adams or the Deputy First Minister referring to the Antrim shooting as “murder”, and they spoke for a fairly long time on radio and television. I think that the latter actually referred to it as “restarting a war”. This was not condemnation with the strength that we would have all liked to have seen.

In addition, the dissidents are far from being unknown new recruits, as I think Gerry Adams would have liked us to believe when he spoke on the television, in their 20s and teens. Some of them may be; however, the murderers on Saturday night were cool, experienced veterans, as are most of the known groups and the leadership thereof. It is no good anyone hiding behind the idea that these are raw recruits going out on a simple test. That was not so. Until a few years ago, they were colleagues of the senior staff and leaders of Sinn Fein while on active service in the provisionals. The only way that Gerry Adams can distance himself from them, pretending that he does not know who they are, is by saying that they are teenaged recruits. I am sorry, but that is a farce.

Many of us in Northern Ireland wonder why Sinn Fein has not put more pressure on its erstwhile colleagues to stop their terrorist activities—or even expose them to the police, the very force that it now says that it wants to support. Sinn Fein’s attitudes and actions in the past week have done more to undermine community cohesion than anything for quite some time, while the situation had been getting better.

I have two quick points about the devolving of justice. We must ensure that the legislation is as workable and manageable as possible, but I see that there are deficiencies in our law as it stands and we are asking other people to operate it. First, many people are disappointed that we do not yet have the admissibility of radio and telephonic intercept evidence in courts. I know that the Minister will not necessarily reply to that; we have been through it a large number of times, but I want to make the point.

Secondly, another issue has had a bearing on these recent events, so noble Lords will excuse me for mentioning it. Section 3 of the Criminal Procedure and Investigations Act 1996 deals with primary disclosures by the prosecutor:

“The prosecutor must … disclose to the accused any prosecution material which has not previously been disclosed to the accused and which in the prosecutor’s opinion might undermine the case for the prosecution against the accused”.
 

However, on the defence side, compulsory disclosure by the accused only has to give a defence statement, setting it out “in general terms”.

For an example of how that is perhaps affecting us at this minute, in the Omagh bomb case, low-copy DNA evidence was discredited due to the evidence of two expert witnesses. One of them had an undisclosed criminal record from Scotland. The second had a court ruling made against his role as an expert witness in the US in 1995, which said that he was unqualified and incompetent to perform any DNA testing in any criminal case. As a result of their misleading the court, three other cases against accused dissident terrorists were dropped at that time. They were all significant, and may be involved in today’s terrorist activity—I would have said almost certainly. Do the Government recognise this inadequacy in the disclosure by the accused in the Criminal Procedure and Investigations Act 1996 and does the Minister agree that its lack of effectiveness may have contributed to the incident on Saturday night?

Finally, I support the intentions of this Bill but I seriously question the integrity of Sinn Fein’s so-stated support for policing and law and order. I am not sure how its sincerity and maturity, if there is any, can ever be validated.

16:45:00

Lord Goodlad
My Lords, I, too, echo the Lord President, as have other Lords, in expressing revulsion at the cowardly attack at Massereene barracks at the weekend, condolences to the relatives of those who died and hope for the early recovery of those who were wounded. The thoughts of us all are with them. Having seen the effect of such acts of violence over the years on opinion not only in Ireland and Great Britain but also in countries to which large numbers of Irish people have migrated, I share the view that these acts are not only evil and contemptible in themselves but wholly counterproductive from everybody’s point of view.

I turn to the Bill before us; the work of Parliament must go on. Your Lordships’ Constitution Committee published a report on 5 March, to which reference has been made, drawing attention to the constitutional implications of the Bill. The Bill has two aims which are of constitutional significance. First, it seeks to provide an interim framework for a Northern Ireland department and a Minister responsible for police and justice ahead of devolution of those functions. Secondly, the Bill contains interim provisions for judicial appointments and removals, and requires the Northern Ireland Assembly to carry out reviews of both sets of arrangements by 1 May 2012. All this has been foreseen for some considerable time.

The present Session of Parliament, unprecedentedly for many years, is not short of legislative time. Your Lordships’ committee expressed the view in a number of previous reports that, as a matter of general principle, Bills which deal with issues of constitutional significance should be published in draft and subject to pre-legislative scrutiny. The Northern Ireland Bill seeks to legislate on matters of constitutional significance. It amends the Northern Ireland Act 1998—a piece of legislation described by the Appellate Committee of your Lordships’ House as “in effect a constitution” for that part of the United Kingdom. In addition to the devolution framework, the Bill deals with judicial appointments and removals, and the role of Ministers in that process.

When the Lord Chancellor gave evidence to the Constitution Committee on 28 January this year, he was asked whether there should be a constitutional convention that any Bill which carries constitutional change of any significance should automatically be subject to pre-legislative scrutiny. Jack Straw told the committee that,

“that will be the rule unless there is some emergency, which I do not anticipate, which would mean that you would have to rush the whole thing through”.

In the present case there has been no opportunity for pre-legislative scrutiny of the draft Bill by the United Kingdom Parliament. Moreover, the Bill has had a very expedited passage in the House of Commons.

Many Bills relating to the Northern Ireland peace process and devolution settlement have similarly been introduced to Parliament on an emergency basis, with Parliament being called on to give legislative effect to negotiations. Your Lordships’ committee is currently engaged on an inquiry into “emergency legislation”, broadly defined to include all Bills that receive a fast-track passage through Parliament. As part of this inquiry, your Lordships’ committee is considering the reasons for and the constitutional implications of the practice in recent years of routinely giving Bills relating to Northern Ireland’s constitutional matters expedited consideration by Parliament. We shall report to the House in due course.

The committee understands the political requirements for progress on the process of devolution of policing and justice functions to Northern Ireland, but it is not clear that there is an emergency situation that in and of itself justifies the departure from the principle that Bills of constitutional significance should be subject to pre-legislative scrutiny in the United Kingdom Parliament. Nor is it obvious that circumstances exist that justify this Bill being put on a fast-track legislative process in the House of Commons and the House of Lords. The Bill is in effect amending the constitution of the United Kingdom, and such changes should be made only after careful deliberation.

The Bill also makes proposals for the Prime Minister’s future role in judicial appointments in Northern Ireland, which are analysed in the committee’s report and which I shall not delay your Lordships by reciting. In March 2008, the draft Constitutional Renewal Bill proposed removing the Prime Minister from the process of appointments to the United Kingdom Supreme Court. In the new constitutional settlement that has emerged from the Constitutional Reform Act 2005, if a Minister in the United Kingdom Government is to be made responsible for judicially related matters, that Minister should surely be the Lord Chancellor. The constitutional role of the Lord Chancellor in relation to the rule of law is expressly recognised by Section 1 of the 2005 Act. Under Section 3, he has a statutory duty to defend the independence of the judiciary, distinguishing him from other Ministers whose duty is to uphold that independence. Under Section 17, his distinctive oath of office requires him to respect the rule of law and defend judicial independence.

While the committee accepts that there is a need for Ministers to be involved in both the appointment of and any steps to remove a member of the senior judiciary in Northern Ireland, we question whether the Prime Minister, rather than the Lord Chancellor, should have a role in these processes. I would expect this matter to be re-examined at further stages of the Bill.

I am grateful for the Secretary of State’s letter in response to the committee’s report, which I received today. It will be studied carefully by the committee before we return to further consideration of the Bill on Wednesday. Personally, I was not impressed by references to future unamendable Orders in Council and a so-called purdah period for the European elections, precluding more lengthy consideration of the Bill in the United Kingdom Parliament. The committee will also study carefully what the Lord President says before we return to further proceedings on Wednesday.

16:52:00

Lord Bew
My Lords, like other noble Lords, I begin by expressing my sorrow and grief at the attack at Massereene barracks on Saturday night. We thought that we had seen an end to that type of event in Northern Ireland, and it is shocking to see its return. Like other noble Lords, I express my sympathy to the families who have been affected so cruelly.

I also thank the Lord President, the noble Baroness, Lady Royall, for the way in which she has offered a great deal of consultation and help to noble Lords in coming to decisions about this legislation. The legislation has been rushed, and I have been very grateful indeed for the way in which she has attempted to mitigate the effect of that haste. Like other noble Lords, I think that we have all benefited from those discussions.

This is a Bill like no other. It comes with the support of the Government, but in a sense that is almost not the important thing. It comes with the support of the First Minister and the Deputy First Minister of the Northern Ireland Assembly. It is the basis on which normal business in the Assembly was resumed this autumn and the stand-off that had been inhibiting the work of that Assembly came to an end. It is therefore very difficult indeed for this House to treat it in any other way but with great respect. One might almost say that that which Peter Robinson and Martin McGuinness put together let no man put asunder.

The Bill also has its roots in the negotiations going back to 2003 that affect the Northern Ireland peace process. From that time onwards, for good or for ill, the concept of the devolution of policing and justice was intimately related to commitments given by the Provisional IRA on the decommissioning of its weapons. Whether it was wise for that issue to be introduced in that way is entirely another point. We are now stuck with this five or six years later.

We must bear these realities in mind, therefore, when we discuss this legislation. None the less, some observations are appropriate and made even more pressing by the events of the weekend and, indeed, the political arguments in Northern Ireland that pre-dated the murders at Massereene. As the Government rightly say, this Bill is designed not to bring in devolution but to provide parliamentary sanction for a new model that the Deputy First Minister and the First Minister have agreed they might be able to employ to bring about the devolution of policing and justice. It is therefore related to that project and with respect to the project of the devolution of policing and justice as a principle that I wish to make a few observations.

The noble Lord, Lord Morrow, is correct to say that for unionists this has been a long-held and cherished ambition. The problem is that it may be one of many unwise features of unionist political thought in the 20th century. It may be one of the less fortunate, less attractive or less intelligent aspects of thinking about politics that characterises Ulster Unionism. It is certainly the case that throughout the 1970s and 1980s and well into the 1990s, British Governments of both parties conventionally regarded the concept of devolution of policing and justice with special fear, concern and nervousness—quite rightly in my opinion.

I wish to burden the House with an anecdote. In 1998 it was my wont to wander in and out of television studios in advocacy of the Good Friday agreement. After one such debate in which, as the noble Baroness, Lady Royall, has pointed out, the fact that the agreement of 1998 makes provision in principle for the devolution of policing and justice had come up, I had said during the debate that this was a matter for a long time in the future. I received a call as I left the television studios congratulating me on saying this. The call was from the office of the then Secretary of State, Dr Marjorie Mowlam, and the person at the other end of the line said to me, “Not for 20 years”.

It is not 20 years since 1998—we have moved remarkably quickly on this issue. Let me remind the House that in 1998 the assumption of my caller and of the Good Friday agreement was that the decommissioning of illegal weaponry would be completed by 2000. In actual fact, what was supposed to take two years took at least seven. We must realise that, even though it is quite right for the Government to say that they had a busy time with the St Andrews agreement and that devolution would occur by 2008 and it has not done so, we are still, in broad terms, moving remarkably quickly across some very difficult and fraught terrain.

The row over the weekend does not encourage the view that Northern Ireland is mature enough yet for the devolution of policing and justice. I know it is argued that the immaturity of current debate will disappear once the responsibility is devolved. However, very deep divisions have emerged. They emerged over the chief constable’s decision to employ special forces even before the murders. The debate that has occurred since the murders does not encourage us to think that there is yet the kind of political culture in place which could operate effectively any devolution of policing and justice.

The House has been much concerned about the issue of haste. Many noble Lords have commented that the haste has been indecent and have asked why. There is a very simple answer. The perception in the Government was that the president of Sinn Fein needed something that could be presented as a political victory or a political gain with the European elections just around the corner. I am not sure that we are close to the devolution of policing and justice but at least this is something the Government could offer—the fact that it had been pressed through these Houses so quickly. The very indignation expressed in both Houses is almost a part of the package.

Let me expand on that point. We are coming to the end of a style of dealing with the peace process. The assumption of government has been that at all times we must allow Sinn Fein to believe that there is further progress along the line which can be delivered and something more that can be presented. At no point do we present a closed door; the assumption is that this is dangerous. It is, by the way, not an unreasonable assumption of government. It is part of the reason why we have had so much success up to this point.

The trouble is that we are now running out of rope; we are running out of things that can be offered in the process. We may have reached the point where we have to speak truth unto power—in this case, the power being the president of Sinn Fein. Two things must occur here: we must be fair and we must recognise and take seriously the nature of Irish republican political philosophy. We cannot afford to disregard this as casually as we sometimes do and make it into something that in our own minds we would prefer that it was.

Over the weekend, there was a very concerning turn in the debate. It occurred in relation to Sinn Fein mercifully saying that it supported the police apprehending the murderers at the weekend. None the less, Sinn Fein leaders were heard to say, about securocrats and the role of our intelligence services, that they were, as it were, as bad as the dissidents, that the two fed off each other, that they needed each other, that the two groups were locked into a conflict—that they were morally on the same level—but that some process was at stake: a process by which parts of the British establishment did not accept the Good Friday agreement. During my time in this House—if this House may be considered to be part of the British establishment—I have never heard one person express anything other than support for the Good Friday agreement. Some have expressed their concerns about the moral costs of that process but I have not heard in this particular sanctum one word uttered in a serious attempt to revise it or reverse it. That is what I mean by speaking truth unto power. We should send that message to Sinn Fein. We should not be prepared to allow our intelligence services to be dismissed as securocrats. I know that it is fashionable to be immensely neurotic about the security state at present but we should say clearly that there is a major problem in Northern Ireland—the murders on Saturday night are proof of that—and that we support the work of our intelligence services in trying to prevent similar outbreaks.

That is why I support the noble Viscount, Lord Brookeborough, who asked the Minister to define national security as it applies to Northern Ireland. This is a central question in relation to the devolution of policing and justice: it is one of the most difficult matters. We hear, rightly or wrongly, that 15 per cent of our security and intelligence services’ activities at the moment are directed towards the dissident republican threat. That is a remarkably high percentage, given the scale of the other threats that the United Kingdom currently faces. It is therefore vital that when the new arrangements come in, it should be clear what the place of national security concerns and of our intelligence services are with respect to the other institutions, including the devolved institutions of policing and justice in Northern Ireland. I therefore fully support the request of the noble Viscount for clarification on that.

Finally, in the other place, some concerns about the Bill were dismissed on the ground that the Northern Ireland Assembly had already discussed them. We must respect the political realities of this process—we have, in effect, to support the Bill—but we do not have to accept the Northern Ireland Assembly as some type of intellectual gold standard before which we bow. If the Northern Ireland Assembly dismissed the matter, that does not mean that we should not discuss it. That is why I am particularly grateful to the noble and learned Lord, Lord Mayhew, who raised issues about the future role of the DPP and the Attorney-General under this new dispensation. It is perfectly true that the Northern Ireland Assembly was not much troubled by that question but it is the sort of thing that we should discuss in Committee.

17:04:00

Baroness Harris of Richmond
My Lords, each and every Member of this House has made stark reference to the appalling events of Saturday night at Massereene barracks in Antrim. The people of Northern Ireland had hoped that murders such as these were a thing of the past. It is shocking that the perpetrators feel that they can derail the peace process by killing and maiming innocent people. We call on anyone who has any knowledge of who is responsible for this outrage—they are members of a proscribed organisation—to give information immediately to the police, so that the perpetrators can be brought to justice. I echo all noble Lords who have spoken of their anger and who have offered their deep sympathy to the families and friends of the two soldiers who were murdered and to the soldiers and civilians who were wounded, some seriously. We, too, thank the noble Baroness the Lord President and the officials in the Bill team who have attempted to explain this legislation.

Opening the Second Reading debate in the other place, the Secretary of State said:

“The Bill will provide an essential stepping stone to the completion of devolution, and it is a tribute to those in Northern Ireland whose political leadership and commitment has turned the peace process into an enduring political process. That political progress has been and continues to be significant, and it is essential that the momentum is maintained”.—[Official Report, Commons, 4/3/09; col. 886.]
 

I agree with those sentiments entirely. However, the speed with which we have been forced to consider this important and highly complex legislation, which the noble Lord, Lord Glentoran, condemned, has been admirably referred to by many noble Lords, especially by my noble friend Lord Smith of Clifton, and also, graphically, by the noble and learned Lord, Lord Mayhew of Twysden, and the noble Lord, Lord Goodlad, who reminded us of the Constitution Committee’s report that considered this Bill. The noble Lord, Lord Goodlad, felt that the Bill could in no way be considered to be emergency legislation. The noble Baroness, Lady O’Neill, pointed out that we could have had ample time since November to consider these measures, and that momentum provided no reason for haste.

On 18 November 2008, the Secretary of State welcomed the agreement between the First Minister and Deputy First Minister that set out an agreed process for devolving policing and justice in the Northern Ireland Assembly. He said:

“The Bill does not provide for when devolution will happen, nor does it provide for what is to devolve—both of these still require further consideration by the parties and ultimately by Parliament”.
 

The noble Lord, Lord Morrow, who unfortunately is not in his seat, reminded us of this.

How many more times must we come together to consider further legislation along this path? This is the eighth piece of legislation covering the move towards devolution of policing and justice in Northern Ireland. Will the Minister guarantee that when there is further legislation to consider, it will not be presented to this House in a rushed and inappropriate way?

When I spoke in the debates on the humble Address following the gracious Speech presented by Her Majesty to Parliament in December, I anticipated a Bill of this kind. I spoke of the challenges that would face a Minister of Justice in Northern Ireland, and those challenges have not changed. They were spoken of again today, as my noble friend has reminded us. I also spoke of the positive effect that such a transfer of power would have. While a number of measures have been put in place already to provide for greater transparency and accountability in operational matters in Northern Ireland, and better performance in criminal justice and policing, the formal devolution to the Assembly will create the cross-community ownership of resourcing and policy matters. There will be enhanced opportunities for joined-up government.

On resourcing, in his Second Reading speech in another place, again on 4 March, the Northern Ireland First Minister and Member of Parliament for Belfast East said:

“confidence is about more than who will operate these structures; it is also about the funding of policing and justice”.

He added:

“There is no sense in Northern Ireland’s Assembly having responsibility for policing and justice if it does not have the resources to do the job. It is therefore vital that the Government divvy up in this regard”.—[Official Report, Commons, 4/3/09; col. 912.]
 

After the appalling circumstances of Saturday night, now is probably the right time for the Government to answer that question.

For as many years as I have been involved in policing and asked questions in this House about the adequacy of resourcing the Police Service of Northern Ireland, I have been assured that the chief constable has all the resources he needs. Clearly, that now needs to be looked at again in the light of this recent atrocity. The noble Lord, Lord Glentoran, referred to the imminent retirement of the chief constable and the debt or lack of £50 million in the policing budget. He felt that that was unacceptable and extremely worrying. The noble Lord, Lord Maginnis of Drumglass, also commented strongly on the lack of resources, to which the chief constable has referred.

We do not get soldiers murdered in England and Wales and they should not be murdered in Northern Ireland, so will the Minister assure the chief constable that he will receive whatever extra resources he needs to ensure that these people are caught? Will he also clarify the national security issues referred to by the noble Viscount, Lord Brookeborough, and the noble Lord, Lord Bew, who also referred to the dangers in security in Northern Ireland? The Northern Ireland First Minister seeks assurance on funding generally and so do I.

Criminal justice matters do not reside within a neat silo. There are some obvious opportunities for any future Minister in working with other departments. Today, my noble friend has restated the commitment on these Benches to the principle of the devolution of justice and policing matters to the Assembly. I therefore share my noble friend's regret that Schedule 1 to the Bill causes us such great difficulties, for the reasons he has set out.

Given the context of policing in Northern Ireland, it is desperately important that we get this legislation right. I urge the noble Baroness to consider seriously the amendments which we will bring forward in Committee as a genuine attempt to provide proper safeguards for such a vital department.

17:12:00

Lord Kingsland
My Lords, I echo the remarks made by all noble Lords about the murders on Saturday night, which were as merciless as they were cowardly.

Listening to all noble Lords, I have been very powerfully struck by the degree of unanimity around the House on devolution. Every single contributor has, directly or by implication, spoken of the desire to reinforce the durability of devolution and the debate has taken place in that spirit. The noble Lord, Lord Bew, helped us all when he said that we should not be timid about suggesting amendments to the Bill because, if we believe that the Bill will be improved by them, we have a duty to bring them forward.

The Bill is an amendment to the UK constitution and we sit in—I was about to say the most important Parliament in the United Kingdom—the Parliament which is sovereign in the United Kingdom. It is extremely important to keep at the front of our minds our duties towards the constitution; and to ensure that any amendments are responsible and improve the way in which our nation is governed. That is why I valued enormously the contribution by my noble friend Lord Goodlad.

In their speeches, many noble Lords also regretted the fact that this is emergency legislation. Of course, most Northern Ireland legislation that has come before your Lordships' House in recent years has been emergency legislation; and the reason for that is not hard to discern. The reason is that such legislation, typically, follows negotiated deals between the principal political parties; and there is a fear in the Government that, if it is not swiftly enshrined in statute, the deal will disappear almost before our eyes. So I understand the dilemma the Government face; but the interests of enduring devolution in Northern Ireland are not best served by this conduct. We have to take the risk that certain elements of deals will fall by the wayside for the greater benefit of getting the best devolution settlement we can for the UK constitution. That is not just a matter for those in Northern Ireland; it is a matter for us all.

I have two examples of what I have just said. The first is the situation of High Court judges in Northern Ireland. One of the unsatisfactory results of the devolution negotiations is that, once it takes place, there will be two sorts of High Court judges in the United Kingdom: those for England, Wales and Scotland and those appointed in Northern Ireland before devolution, all of whom can be dismissed only by a vote by both Houses of Parliament; and High Court judges in Northern Ireland appointed after devolution, who will not enjoy that protection.

However, I am pleased to see that, in the Bill, the Government have improved the situation in one important way for that class of High Court judges with respect to Sections 5 and 7 of the 2002 Act. Under those sections, the First and Deputy First Ministers of Northern Ireland have a crucial role to play in whether appointment or dismissal takes place. I am thankful that, in this Bill, the Government have replaced those parties by the Lord Chief Justice of Northern Ireland. I regard that as exceedingly beneficial, and I congratulate the Government on making that change.

As the noble Baroness the Lord President and the noble and learned Baroness the Attorney-General are aware, I am much less happy about the relationship between the Attorney-General for Northern Ireland and the DPP in Northern Ireland, as envisaged following devolution. Under Section 42 of the 2002 Act:

“The functions of the Director shall be exercised by him independently of any other person”.
 

The problem about that section is that the DPP will not have the protection of a superintending Attorney-General, as the DPP has in England and Scotland. The result is that if the DPP is accused of political bias in instituting, or refusing to institute, a prosecution, as he inevitably will be from time to time, he will not be able to have his position defended in the Assembly in Northern Ireland by the Northern Ireland Attorney-General; and the DPP himself will have no right to go to the Assembly and defend himself.

The reason for this—one can see how he came to be placed in this position—is that, under the devolution arrangements, the Attorney-General in Northern Ireland is a purely political figure; he is selected solely by the First Minister and the Deputy First Minister. That selection is not even endorsed by the Assembly. So he does not have the quasi-judicial role, above and beyond politics, which the noble and learned Baroness, Lady Scotland, has, in the United Kingdom jurisdiction. That is why we have tabled our amendment on the Attorney-General.

The amendment seeks to give the Attorney-General for Northern Ireland a quasi-judicial role by appointing him in exactly the same way in which a High Court judge is appointed post-devolution. From that procedure, which would endow him with quasi-judicial powers, flows the second part of our amendment, which would give him superintendence powers over the Northern Ireland DPP, thereby providing that party with the necessary constitutional protection.

The Lord President very kindly applied herself to the amendment and made three points which I particularly want to question. First, she said that the arrangements in the 2002 Act were really a function of the circumstances of the time: that is to say, the Judicial Review, completed in 2000 and published in 2002. Will she be kind enough to explain what she thought the circumstances of the time were, and why, having done that, she thinks that they necessitated the arrangement that appeared in the 2002 Act? My noble and learned friend Lord Mayhew addressed that point, with his characteristic acuity, and observed, at the end of this phase of his remarks, that 2002 was now, and certainly in Northern Ireland political terms, a long way away. As he put it, characteristically modestly, it could well be said that the circumstances had changed to allow us, now, to give the kind of protection which the DPP needs in the circumstances of devolution in which he will operate.

The Lord President’s second observation was that the Attorney-General should not be a political figure. However, with great respect, the Attorney-General will be a political figure in Northern Ireland because of the way in which he is chosen. The situation is exacerbated by the fact that it is the Attorney-General, as a political figure, who chooses the DPP, thereby compounding—I use the following word metaphorically—the felony.

Thirdly, the Lord President observed that the solution that we were adopting and advancing breached the separation of powers, because the Lord Chief Justice of Northern Ireland would have a veto over the appointment of the Attorney-General by the Appointments Commission. With great respect, that observation was misconceived. What greater breach of the separation of powers could there be than a political Attorney-General appointing a DPP who had quasi-judicial prosecutorial powers in the jurisdiction?

Having proposed and defended our amendment, I should say that, although I will speak to it again on Wednesday I do not propose to put it to a vote; partly because I hope that the Government will be so convinced by the power of the argument that they will amend the Bill, and partly because, perhaps more importantly in the present circumstances, we know that the first and second Ministers have already agreed on an Attorney-General for Northern Ireland through the political process. A few days ago, the noble and learned Baroness, Lady Scotland, was kind enough to talk to me about this matter and I can see that voting could produce a difficult situation during a time which has been made even more sensitive by the tragedies of Saturday night. For that reason, too, I do not propose to put my amendment to the vote but—some of your Lordships may be disappointed to hear—I will say a few more words in Committee.

17:25:00

Baroness Royall of Blaisdon
My Lords, I am grateful to all noble Lords who have participated in this Second Reading debate. It is always interesting to hear the insightful and constructive contributions of noble Lords in relation to Northern Ireland. Many of these issues are of extreme importance and we, the Government, as well as Members in this House, can learn greatly from that expertise and vast experience.

In my opening comments I referred to the reduced timeframe in which this Government have had to consider the legislation. It is clear that all noble Lords are concerned and feel extremely strongly about this issue. But, as I stated at the beginning of this debate, the reduced timetable is not for the convenience of the Government but simply to ensure that the necessary legislative framework is in place to allow the Assembly to progress with the devolution of policing and justice at a pace determined by themselves. This is complex legislation and more time for scrutiny would be welcome.

However, we have to ensure that the momentum is upheld. I note the views expressed by the noble Baroness, Lady O’Neill, that momentum does not necessarily mean haste. I also agree with her that it is regrettable that, for all the obvious reasons, we have spent too much time this afternoon discussing the time allowed  rather than scrutinising much more important elements of the Bill. However, I must stress that the timetable has not been dictated by any deal, either before or behind closed doors. There is no deal. The speed with which we are dealing with this legislation does not have anything to do with the European elections. Nor, I must stress, is it a carrot to Sinn Fein.

The Northern Ireland Bill is intended to give legislative effect to a political agreement between the Northern Ireland First and Deputy First Ministers and the recommendations of a committee of the Northern Ireland Assembly, which the Assembly have debated and endorsed. It faithfully reflects these agreements and recommendations, which, in response to the noble and learned Lord, Lord Mayhew, may have something to do with the drafting of the Bill. The recommendations are aimed at paving the way for the future devolution of policing and justice. The Government have to be ready to move forward the parts of the process that are within our gift as quickly as possible. It is crucial that it is not the UK Government or Westminster who are seen to be preventing progress on this issue, but that the political process continues at the pace set by Northern Ireland’s elected representatives. To leave open the possibility of completing the remaining legislative steps in the devolution process during the period between now and the Summer Recess—that is not to say that that timescale will necessarily be used—it is necessary for the Northern Ireland Bill to receive Royal Assent by mid-March. It would not have been possible to publish the Bill in draft or to make it subject to pre-legislative scrutiny and to meet this timetable, although I hear and respect the views of the noble Lord, Lord Goodlad. However, it is fair to say that many elements of the Bill—for example, those dealing with the new departmental model—have been debated in detail by the Assembly.

The noble Lord, Lord Glentoran, suggested that the PSNI is not satisfactorily funded and, therefore, is not up to the job. The noble Baroness, Lady Harris, asked for my assurance that the necessary funding would be made available. The Government have full confidence in Sir Hugh Orde, and in the Police Service of Northern Ireland, to rise to whatever challenge is before them. On devolution, we are committed to transferring the funding required to enable all aspects of policing and justice to operate effectively. It is not in the Government’s interests to do anything differently.

My right honourable friend the Prime Minister has asked Jeremy Heywood to chair a group looking in detail at the funding situation for policing and justice in Northern Ireland. The group brings together interests from Whitehall and the devolved Administration in Northern Ireland to ensure that concerns about policing and justice budgets are properly addressed in the lead-up to devolution. I am confident that, at the point of devolution, we will be handing over a police service that is top rate, on top of the job, and properly funded.

The noble Lord, Lord Glentoran, asked whether, if devolved, the chief constable could ask for support from the SRR. National security remains an accepted matter, and, post-devolution, the chief constable will  continue to be able to ask for specialist support from the military, as he sees fit, in the same way as other police services across the UK.

The noble Viscount, Lord Brookeborough, and the noble Lord, Lord Bew, also raised the question of national security. I cannot define the term “national security”. It has never been defined in UK statute. However, I am informed that national security is generally understood to relate to the safety and security of the state and its people. I refer noble Lords to paragraph 17 of Schedule 2 to the Northern Ireland Act, which relates to security in Northern Ireland. I ask noble Lords to note that national security is not devolved in Scotland, where policing and justice are already devolved, and it will not be devolved in Northern Ireland.

The noble Lord, Lord Glentoran, expressed concern, as did the noble Viscount, about whether Sinn Fein supports the police. Sinn Fein’s indication that it would give support to the police was a key factor in securing a return to a devolved Government in May 2007. The Government believe that this support is genuine. Indeed, over the past few days, we have seen Sinn Fein politicians speak out about the weekend’s atrocities and urge the public to provide any information that they might have to the PSNI to assist their inquiries. I am sure that the House will endorse that same point made by the noble Baroness—that if anyone has any information relating to the atrocities, they must contact the PSNI. These people have to be brought to book.

Viscount Brookeborough
My Lords, would the Minister therefore tell us whether Sinn Fein’s remarks about the chief constable needing extra support were an indication of its support for the police?

Baroness Royall of Blaisdon
My Lords, I interpret it as being supportive of the police, but I will have to read that carefully and may well come back to the noble Viscount.

The noble Lord, Lord Glentoran, asked if we met some criteria, which he stipulated. We have seen politics in Northern Ireland develop a position where all parties support peaceful democratic means and the criminal justice system. In relation to community support for devolution, that is one criteria set down by the First Minister and the Deputy First Minister in their November statement. It will be for the Northern Ireland Assembly to decide when the necessary confidence exists.

The noble Lord, Lord Smith of Clifton, has great concerns about the Justice Minister and that he or she should not be dismissed by a simple cross-community vote. The noble Lord is right to suggest that the justice portfolio is special, which is why we have provided for a series of alternative models for the structure of a justice department. However, I do not agree that he is right to dismiss the cross-community vote as simple, as if it is a basic norm. It is not. It is a special arrangement put in place by the Belfast agreement which said that, as a safeguard, key decisions in the Assembly would be taken on a cross-community basis. It is not a routine measure, but a safeguard.

The noble Lord suggested that it would be unfair for members of the Alliance Party to be voted out by a system that did not count their votes as equal to those of designated unionists or nationalists. That is to misunderstand the origins of the cross-community vote. It was to ensure that, unlike in the past, it would no longer be possible for one side of the community to impose measures on the other side, against their wishes. It was a safeguard designed to meet the particular circumstances of Northern Ireland which derived from its history. It is not a routine tool but designated for special circumstances, such as the appointment and removal of a Justice Minister.

This Bill is not the place to unpick the safeguards of the Belfast agreement. If the current definitions of cross-community support were acceptable in 1998, at a time when trust was in its most embryonic state, the Government believe that it remains right to have that test today.

The noble Lord, Lord Morrow, was right last week to sound a note of caution about devolution, in view of the atrocities at the weekend. However, we cannot and must not allow the evil actions of a few to derail the peace process, which is so strongly supported and desired by the vast majority of the population and its elected representatives. I am grateful to the noble Lord for clearly explaining what the Bill does not do. It is right that the Government will not and must not impose the devolution of policing and justice. This can happen only when a Motion for the transfer of powers has been moved by the First and Deputy First Ministers and approved by the Assembly on a cross-community basis. It will then be brought to this House in the form of orders.

Various noble Lords have asked me to ensure that adequate time is given to the debating of those orders. Adequate time will be given to the debating of those orders, and I will do my utmost to ensure that the orders are available well before the debate that takes place in this House so that noble Lords have an opportunity to consider them.

I hear and respect the views articulated by the noble Lord, Lord Maginnis, but do not agree with many of them. The noble Lord referred to the lack of discussions in Northern Ireland relating to the devolution of policing and justice under the votes in the Executive and the Assembly. The votes were taken, and the majority view was that the report from the Executive, which followed up the agreement between the First Minister and the Deputy First Minister, was acceptable and should be followed. That is democracy.

This Government, as I said earlier, are not complicit in any deal and are not working to any timetable. As I mentioned, the elected representatives of Northern Ireland, are driving the timetable here, not this Government.

In relation to the chief constable, as I said earlier, the Government have complete confidence in Hugh Orde. I know that his focus, and that of his officers, is on the safety of the people of Northern Ireland and their having great confidence in the PSNI.

Lord Maginnis of Drumglass
My Lords, it strikes me that law-abiding people cannot have confidence where a chief constable and his constabulary suggest that they will not continue with investigations into  what until recently was Britain’s largest bank robbery, and perhaps still is, and where the murder of Mr McCartney and the Omagh bomb are to be put on the back burner. What faction within Northern Ireland are they put aside in order to please?

Baroness Royall of Blaisdon
My Lords, I think with respect that the noble Lord misunderstands the chief constable’s statements on these issues. There is a world of difference between suggesting, as does the noble Lord, that the police have abandoned the investigations and explaining, as did the chief constable, that the police have followed all their existing leads as far as they can and that taking their investigations further requires new evidence. The police remain as committed as ever to bringing the perpetrators to justice and I know that noble Lords would support me in asking, as I did earlier, that anyone with information, relating not just to the atrocities this weekend but to the previous serious attacks, should bring it forward to the police precisely so that they can continue with their investigations and the perpetrators can be brought to justice. The noble Lord suggested earlier that he has not had the opportunity to discuss some of these issues with the Secretary of State, but, as he knows, I am happy and willing to facilitate such a meeting.

I am grateful for the views expressed by the noble and learned Lord, Lord Mayhew, and his general support. I shall read his views carefully, especially those in relation to the Attorney-General, because he is an esteemed former Attorney-General. I completely agree that the response to this weekend’s atrocities must be calm and well judged, and that we must be resolute.

I entirely endorse the desire of the noble Lord, Lord Browne, to ensure that there will be confidence in future to allow the early devolution of policing and justice to the locally accountable legislative assembly. This must not be a mere aspiration; we have to make it a reality.

The noble Viscount, Lord Brookeborough, raised a series of issues, a couple of which I have dealt with. I should stress that the orders that I mentioned earlier will of course be affirmative. The noble Viscount suggested that the weapons used should have been decommissioned. The source of those weapons is an intelligence matter, and it is the long-standing practice of successive Governments not to comment on such matters. However, more generally, the IMC has made it clear that small quantities of weapons were held back by local groups in defiance of the instructions of their leadership. The noble Viscount raised the use of intercept evidence and its disclosure to the defence. He may be aware that the law in Northern Ireland is the same as that in England and Wales in both these areas. My right honourable friend the Home Secretary has established a programme to look at the intercept-as-evidence issue following receipt of the Chilcot report last summer. That work will reach its conclusion in the coming months. On disclosure, there is an important principle of ensuring a fair trial. However, if there were clear evidence of a problem, I am sure that this is an area which would be considered further. The noble Viscount asked also about the disparity between prosecution and defence disclosure under the 1996 Act. The arrangements for prosecution and defence disclosure, which are the same in Northern Ireland as in England and Wales, were amended recently by the Criminal Justice Act 2003. I note the noble Viscount’s comments on ensuring a level playing field in relation to disclosure in the context of an overall right to a fair trial. The disclosure provisions of the Criminal Procedure and Investigations Act 1996 are kept under review, and I shall of course convey the noble Viscount’s concerns. On the disclosure arrangements for the Omagh trial, the conduct of individual trials is a matter for the independent presiding judge, which includes applications of the disclosure arrangements. As I mentioned, the legislative basis for disclosure was reviewed as recently as 2003.

The noble Lord, Lord Goodlad, rightly brought to our attention the report of his excellent committee. I shall respond more fully to the report in Committee if I may. I also very much look forward to giving evidence to his committee as it looks into emergency legislation. The report asks about the role of the Prime Minister in relation to senior judicial appointments. The Northern Ireland Bill will essentially remove the post-devolution roles of the First Minister and Deputy First Minister in these processes, which were set in the Justice (Northern Ireland) Act 2002. The legislation under which appointments and removals are currently governed, the Judicature (Northern Ireland) Act 1978 and the 2002 Act, already provide significant roles for the Prime Minister. The Northern Ireland Bill does not substantively change the role of the Prime Minister as set out in the 1978 and 2002 Acts.

The noble Lord, Lord Bew, raised many interesting issues. He is right that it is natural that all parties here and in Northern Ireland approach devolution issues nervously. It is therefore quite extraordinary, as he said, that we have moved so far forward and so fast. I must read his contribution with care. I think that I have dealt with many of the issues raised by the noble Baroness, Lady Harris.

The noble Lord, Lord Kingsland, is absolutely right that we have to ensure the best possible deal for devolution and to get it right: it is our duty to get it right. These are constitutional issues and we must have confidence that we are acting correctly. I am grateful for the noble Lord’s support for the changes in relation to the Lord Chief Justice.

With regard to the perceived politicisation of the appointment of the Attorney-General, it is clear that the appointee must be an excellent lawyer with the ability to put the law first. The First Minister and Deputy First Minister will of course be from different parties, so we can be confident that the person in question will be independent, of excellent reputation and not political.

The Justice (Northern Ireland) Act 2002 on the relationship between the Director of Public Prosecutions and the Attorney-General provides that it should be consultative. That was seen by the criminal justice review as the best way of ensuring visible independence of prosecutorial decisions. As a matter of law, a statutory duty of consultation requires meaningful consultations. It ensures that a wide range of matters will be discussed, including the code of practice for prosecutors. The Attorney-General, under Assembly standing orders, will be able to speak in the Assembly and answer questions. The DPP will also be answerable to the Assembly for financial and administrative matters, but of course the DPP can consult the Attorney-General who himself will be able to answer questions in the Assembly.

We look forward to discussing and debating these issues further when amendments tabled by noble Lords are before us. I am extremely grateful to the noble and learned Lord for informing us that he will not be pressing his amendments to a Division. I thank noble Lords for their considered contributions to today’s debate. I welcome the concern expressed because it is right and it is our duty to be honest, but I also welcome the active interest that noble Lords continue to take not only in this specific issue but in Northern Ireland in general.

I apologise for the fact that not all noble Lords were aware of the meeting that took place earlier today. There will be a meeting on Wednesday and I shall strive to ensure that all noble Lords are informed accordingly.

Bill read a second time and committed to a Committee of the Whole House.

Northern Ireland: Massereene Army     Base

Statement

17:51:00

Baroness Royall of Blaisdon
My Lords, with the leave of the House, I shall repeat a Statement made in another place by my right honourable friend the Secretary of State for Northern Ireland. The Statement is as follows.

“Mr Speaker, with permission I should like to make a Statement about the horrific attack last Saturday at Massereene army base in Antrim. The focus for this sickening crime was civilians and young soldiers of the 38 Engineer Regiment, part of 19 Light Brigade.

The House will know that Operation Banner—the deployment of troops in Northern Ireland—was brought to an end in July 2007 and that 38 Engineer Regiment is part of the Northern Ireland garrison. These men and women are part of the new arrangements in which soldiers are based in Northern Ireland for deployment anywhere throughout the world. They are not about a garrison to replace Operation Banner.

These soldiers were in the process of being deployed for active service in Afghanistan, to support international efforts, to stabilise and to bring peace to that region. At the time of the attack, most of their colleagues had already left for this deployment. A small number remained, awaiting their deployment to begin within hours. While waiting, a small number of soldiers decided to order food from Domino’s Pizza in Antrim. At about 9.40 pm, the delivery arrived in two separate cars. The soldiers came out of the main gate of the barracks. The cars delivering the pizzas were parked fewer than 10 yards away. As they did so, two masked gunmen opened fire.

The initial volley of shots was followed by a second. The attackers clearly were intent to kill the soldiers and the civilians. They continued firing at the men even when injured; even when some had fallen to the ground. The firing lasted for more than 30 seconds. More than 60 shots were fired. Neither the soldiers nor the civilians had a chance against the premeditated attempt at mass murder. Two of the soldiers were killed. The families were informed yesterday and this morning the MoD released their names.

Sapper Patrick Azimkar and Sapper Mark Quinsey were held in the highest regard by everyone in their regiment. Patrick Azimkar was just 21. He was looking forward to facing the challenges of his first operational tour in southern Helmand. Mark Quinsey, who was 23, was equally looking forward to the operational challenges that he would face in Afghanistan. Two more soldiers were seriously injured. The attack was just as barbaric on the civilians from the pizza company. Both were injured—one extremely seriously. There can be no doubt that those responsible were intent to take the lives of all of these men. Before commenting further, I know that the House will want to join me in expressing our deepest condolences to the families of those who were murdered and to send our sympathy to the injured and all those families, who too are victims of this act of terrible violence which has rightly been described as evil.

Immediately after the attack, fellow soldiers from 38 Engineer Regiment went to the aid of their friends. They tended the wounded and cared for the dying. I had the honour of meeting some of these young men and women yesterday morning. Today my right honourable friend the Prime Minister flew to Northern Ireland and with him I met this group of outstanding young soldiers. I put on the record the admiration that we all have for these young men and women. They are the greatest credit to our country and I know that I speak for the whole House in saying how proud we are of them.

It is now the job of the PSNI to conduct the investigation to bring to justice those who murdered and injured these soldiers and civilians. A major investigation is now under way. This morning both the Prime Minister and I had further briefings with the chief constable Sir Hugh Orde, our intelligence advisers and Brigadier George Norton, Command 38 (Irish) Brigade and NI Garrison.

The House will wish to know that everything that can be done is being done. It is too early for me to report on the progress of the criminal investigation. However, I should tell the House that yesterday evening the so-called Real IRA claimed responsibility for this act of extreme brutality. Whatever self-styled name these murderers choose to use, the House will correctly recognise them as barbaric criminals who are prepared to carry out an act of pre-meditated mass murder—callously murdering innocent people going about their daily business. They are simply brutal and cowardly killers.

The numbers of people who make up these criminal groups are relatively few. However, they are no less dangerous for their small numbers. We know that they have no community support whatever, but their guns are able to murder. The police have asked for everyone in the community who has information to come forward. They should do so as a matter of urgency. Anyone in the Antrim area or beyond on Saturday who may have seen anything suspicious in the vicinity of Domino’s Pizza or on the Randalstown Road, close to Massereene Barracks, should contact the PSNI.

The House will want to know that all political leaders and political parties in Northern Ireland have condemned this evil act. They are all united not only in their condemnation and their expressions of condolence to the families but in their demand that anyone who can help should come forward. They join in these expressions with my right honourable friend the Prime Minister and all the party leaders in this House. It is only right for me to record the expressions of support and sympathy that we immediately received from the Taoiseach and President McAleese. Indeed, messages of support and condolence have come from the United States, including from Secretary of State Hillary Clinton, and President Obama last night made his position very clear, condemning in the strongest terms the attack and making clear his support for the people of Northern Ireland who have chosen a future of peace, reconciliation and prosperity.

It may be helpful if I provide the House with further information about the current levels of security threat in Northern Ireland. As the House will know, both the chief constable and I have made public our view that the level of threat posed by dissident republicans has recently been higher than at any time in the past six years. Since 2008 they have mounted 18 attacks: 15 during 2008; and three so far this year. The House will be aware that last week the Security Service raised the level of threat from Irish-related terrorism from substantial to severe in Northern Ireland. This was a carefully calibrated decision, based on the overall assessment of the past nine months. This period includes the attempted murder of police officers, the savage attacks on those dropping their children at school and the failed car bomb in Castlewellan on 27 January 2009.

There was some uncertainty last week about the wisdom of raising the threat level. I believe that this was the right decision and entirely justified. Policing in Northern Ireland enjoys the highest levels of confidence from the public. In my judgment it is absolutely essential that the chief constable has operational independence. Of course he is accountable to the Policing Board under the Patten arrangements. He will, if he sees fit, enjoy the same rights as any other chief constable in the UK to request further technical back-up if so needed. That would be the case in, say, dealing with a threat from al-Qaeda and international terrorism; so, too, for any terrorist threat.

Indeed, we made that clear at the end of Operation Banner. In a Statement to this House on 31 July 2007, my right honourable friend the Minister of State for Defence, Bob Ainsworth, said that after 1 August the vast majority of military support in Northern Ireland would be broadly comparable to the assistance that is currently provided in Great Britain, tailored for the particular circumstances in Northern Ireland. He also  made it clear that the provision of explosive ordnance disposal—the kind used to deal with the car bomb in Castlewellan—would continue.

Whatever concerns honourable Members may have expressed last week—and it may be appropriate to comment on the serious distortions and misleading reports in some of the media at that time—I hope that they will now feel reassured about the role of any technical support being used to tackle the current threat. As the chief constable has repeatedly said, this is not about the return of troops to the streets but about protecting the public proportionately and protecting those who provide that protection, such as police officers and those who work to protect the international community or on international theatre operations.

It has been 12 years since the death of a soldier in Northern Ireland. This has been a very dark few days for Northern Ireland, but it is a temporary darkness at the end of a tunnel of considerable light. The peace process and political progress, as part of shared power, have transformed Northern Ireland. The perpetrators of this attack believe that they can stall that progress and, in stalling it, instil seeds of self-destruction. Indeed, they have clearly chosen to act in this evil way only because the politics of a shared future is working. The determination and resolve of all political leaders in the face of this brutal act is working proof of a unity of purpose.

We are all united in our resolve that the criminals will not succeed. Our confidence will be stronger, our resolve even greater, and while the House will understandably be sombre as a result of this murderous attack, the greatest memorial to Patrick Azimkar and Mark Quinsey and their families will be in our determination to unite behind the peace process and political progress in Northern Ireland. Let us make sure that those responsible for this attack are not given any opportunity to stall or prevent the progress of Northern Ireland. Let us join together; let this House send an unequivocal message. The men of violence will not succeed. These criminals will not succeed—not now, not ever”.

My Lords, that concludes the Statement.

18:02:00

Viscount Bridgeman
My Lords, I join the noble Baroness the Lord President and other noble Lords in sending our deepest sympathies to the families and friends of Sapper Patrick Azimkar and Sapper Mark Quinsey, and to those injured in this most cowardly of attacks. The murdered men were about to travel to Afghanistan to serve their country and to support the Afghan people. The awful events of the weekend remind us, once again, of the bravery of all those who serve in the Armed Forces, the PSNI and the security services. We also thank the emergency services and medical staff; we are, indeed, all indebted to them.

The Independent Monitoring Commission review confirmed our concerns about the dissident threat. We have raised those concerns here and in another place. The attack follows a succession of near misses on police. The chief constable of the PSNI has been consistent and increasingly public about the threat posed by dissident republican groups. That must tell us how seriously he viewed the severity of the situation. I confirm our firm support for the operational independence of the chief constable. Like every other chief constable in the United Kingdom, he must have the right to enlist the help of specialists. Can the noble Baroness confirm that the decision of the chief constable to call in reconnaissance experts would not have been affected had criminal justice and policing been devolved?

The aim of these attacks is to try to disrupt normal policing, forcing police into barracks and armoured vehicles away from the public. We must not allow that objective to succeed but, rather, we must ensure that a balance be struck between the need to increase protection for officers and to ensure that the police are visible and known to their communities.

The Government raised the threat level from substantial to severe last week. Was that change due to specific intelligence received or a response to the general security situation? Were civilian guards briefed on the current threat level and individual establishments chased up to ensure that it was understood and that appropriate measures had been taken to account for it? Given the understandable and desirable pursuit of normalisation, which we on these Benches strongly support, will the Government conduct an immediate review of the security arrangements at police stations and military installations? Lastly, in this context, what are the implications for defence installations in the rest of the United Kingdom?

The attackers showed a chilling ruthlessness in shooting their victims a second time, on the ground. Do the Government not agree that such cold brutality suggests that these were experienced terrorists? The crime scene will reveal valuable ballistic and forensic evidence. The experience from previous investigations shows that speed is of the essence. Will the noble Baroness confirm that these murders will receive top priority and that the most competent and experienced officers will be in charge of the investigation?

I confirm that the position of the Official Opposition is to support the Government’s efforts to bring these criminals to justice. We believe that they have no support in the wider community. The support for the police investigation from all political parties is welcome. The key to defeating terrorism in Northern Ireland lies with all parts of the community. I endorse the Secretary of State’s appeal yesterday for anyone with information on these criminal acts to come forward; even the smallest piece of information could be vital and might help to bring this investigation to a swift conclusion.

Thanks to the peace process, which was begun by the previous Government and continued by this one, Northern Ireland has been transformed. An unrepresentative minority of dissidents are determined to undo the good work of the past 15 years. It is incumbent on us all to respond to this shocking attack by going about our business normally, but with increased vigilance; the good work of recent years must continue. Terrorism in any form must never succeed.

18:06:00

Lord Smith of Clifton
My Lords, I thank the noble Baroness for repeating the Statement. We on these Benches agree wholeheartedly with the sentiments expressed by the Secretary of State. We must first extend our sincere sympathy to the families of Sappers Mark Quinsey and Patrick Azimkar, the two soldiers who were killed on Saturday night. Those two young men were doing their duty and serving the whole community, before proceeding to Afghanistan. Our condolences go to their families, friends and colleagues—some of whom are still in Antrim, some already in Afghanistan. We also send our thoughts and sympathies to the families of those injured in the attack and continue to have in our thoughts the staff of Antrim Area Hospital, who continue to care for the wounded. We are indebted to all of them.

We utterly condemn this outrageous atrocity. As we saw and heard from the people of Antrim in the media this morning, this attack has been roundly condemned and received no justification or support from any quarter. These brutal murders serve no cause, nor have they resulted in anything but suffering for the families involved. We add our voice to those who have appealed for anyone with any information about this shocking attack to report it to the police, and to co-operate with the police investigation. We also reinforce our support for the chief constable, Sir Hugh Orde, and his PSNI officers who have been subject to several—thankfully, so far, unsuccessful—attacks in recent months.

Under no circumstances—I echo what has already been said—should these atrocities disrupt the continuing peace process in Northern Ireland and the move towards full devolution. I have two questions for the noble Baroness. First, will she confirm that any additional resources that are needed for this investigation will be given to the PSNI? Secondly, does she agree that the people of Antrim have sent a great message to those who carried out this barbaric act? By coming together in a quite remarkable and quiet dignity, they have shown that nothing will set the peace process back and that there is no appetite from the people of Northern Ireland to go back to the violence of the past.

18:09:00

Baroness Royall of Blaisdon
My Lords, I am grateful to both the noble Viscount and the noble Lord for their strong support of the Statement. I wholeheartedly endorse the thanks that the noble Viscount, Lord Bridgeman, gave to the emergency and medical staff.

We all endorse the statement that the operational independence of the chief constable is absolutely necessary and will and must continue. I confirm that the chief constable, post-devolution, will be able to request further technical back-up, if needed. He will enjoy the same rights as any other chief constable in the United Kingdom.

On the change in threat, I confirm that the decision was taken on the basis of the past nine months. There was no prior intelligence about this attack. As for security at bases, it is the practice that after any incident there should be a reassessment of the security arrangements. And yes, absolutely top priority will be given to these investigations, with the most experienced personnel.

The noble Lord, Lord Smith of Clifton, is right that these atrocities must not disrupt and derail the current peace process. Like the noble Lord, I watched the television yesterday and saw quite extraordinary scenes of people of all faiths gathered outside the barracks. That is a clear statement of the determination of the people of Northern Ireland not to go back but to move forward and to have confidence in the police process.

18:11:00

Lord Maginnis of Drumglass
My Lords, I have already had the opportunity this afternoon to express my sympathy, and I do so again with those families who have suffered. With every ounce of sincerity that I can muster, I appeal from these Benches that there should be no retaliation in Northern Ireland for the dreadful execution that occurred at Massereene barracks. It is important to us all. It would be an insult to the families of those who have lost loved ones if any retaliation took place.

On the issue of intelligence, I have had 12 responses to Parliamentary Questions in the past three or four months; 50 per cent of these have been non-answers in so far as I have been told that this is an operational intelligence matter. Particularly in the light of the Prime Minister’s unequivocal statement that these killers will be brought to justice, I should like to know the state of intelligence in Northern Ireland at the moment. We have had the chief constable for months tell us about the dangers. We have had the recent warning. We have had an unequivocal statement by the Prime Minister. Yet one Parliamentary Answer that I got seems to contradict it all, saying:

“The PSNI is also unable to provide information on charges relating specifically to dissident republican attacks as they are not attributed to individual dissident groupings. The Public Prosecution Service does not record what organisation a suspect is believed to represent in its conviction statistics”.—[Official Report, 26/11/08; col. WA318.]
 

Is there not a contradiction? Are we not having a cover-up? Is there intelligence and, if so, why is it not acted on? Is there no intelligence and is that why we find ourselves with this guessing game, which was not at the weekend successful?

Baroness Royall of Blaisdon
My Lords, I am delighted in many ways that the noble Lord speaks of the need for us in this House to take a very firm view on the need to ensure that there is no retaliation in response to these atrocities. I wholeheartedly endorse the clear and proper statement from the noble Lord and am grateful to him for expressing those views.

I sign off the Parliamentary Questions on Northern Ireland, so I know the noble Lord’s concerns. Of course, it would not be appropriate for me from this Dispatch Box to make comments on the security level or any other aspects of security. If later on today or at some time tomorrow we could have a short conversation, perhaps we could find some way forward. However, I must reiterate that there is no cover-up—absolutely no cover-up; it is just that security issues have to be dealt with in a very responsible and secure way.

Lord Cope of Berkeley
My Lords, I add my voice to the condolences that have been offered all round the House. We all heard yesterday and read in the papers this morning the statements made by the various Northern Ireland parties following these appalling murders, some of them in sharp contrast to what might have been said by individuals on similar occasions in the past, and all the more welcome for that. Does the Lord President agree that the sincerity of those statements will be judged by the actions that follow, and particularly by the speed with which any information that comes to anyone’s attention about who might have perpetrated these murders is given to the police to enable prosecutions to follow as quickly as possible?

Baroness Royall of Blaisdon
Yes, my Lords, the many comments and statements that have been made are a testament to the way in which we have moved forward and the speed at which we have moved forward. I also agree that the sincerity of statements will be judged by actions, and we look forward to those who know the people involved in these atrocities going to the PSNI. I wholeheartedly agree that the statements made are extremely important, and are tangible proof that the peace process has worked, is working and will work.

Lord Kilclooney
My Lords, I express my sympathy to the families of the two soldiers who were tragically killed and wish to let the families know that we in Northern Ireland admire very much what their sons were doing and how much we abhor what has happened. There is widespread distaste at what occurred at the weekend across the whole of Northern Ireland, in both communities. However, one has to say that there seems to have been a lack of security at Massereene barracks. We should not hesitate to say that. There had been a severe warning, and what kind of security existed at the barracks at that time must be fully investigated.

On the same day, 30 young policemen were killed in Baghdad. So often it is the same pattern: they were congregating or queuing up outside the entrance to a police station in Baghdad. That seems to occur so regularly in Iraq. The trouble is that in a situation in which there is a serious threat from the Real IRA, you should not be meeting or congregating outside barracks or police stations.

An incident such as this gives a resolve to politicians from all parties to ensure that the Belfast agreement proceeds successfully in Northern Ireland. However, at the same time, there is an adverse effect that must be a warning. People are concerned and become more divided when instances such as this happen. The one message that I got in Northern Ireland today, mainly from the unionist community, was that they were told that the Provisional IRA had done away with all its firearms and explosives. This new Real IRA has Semtex—and now we see that it has automatic weapons. Was that Semtex and were those automatic weapons owned previously by the Provisional IRA, or has the Real IRA imported into Northern Ireland new explosives and new automatic weapons?

Baroness Royall of Blaisdon
My Lords, we all share the distaste which has been expressed by the noble Lord and his admiration for those young men and the way in which they chose to be part of the British Army serving our country. Security at all Army bases was increased in the week before the atrocity as a response to the increased threat levels. In addition, following any such attack, the security at all barracks is looked into again, and I am confident that that is taking place now. As to whether the Semtex was a new source or whether these were missiles or guns which had been in use in the past, I do not know. If I can, I will come back to the noble Lord in writing. I will seek what information I can and put a copy of that letter in the Library. But whether I will be able to provide that information, I am not entirely sure.

Lord Elystan-Morgan
My Lords, I make an obvious point. From this tragedy, there is one ameliorating feature: the two communities of Northern Ireland are probably closer together now than they have been at any time over the past 40 years. In relation to a matter which has already been alluded to, tangentially, in the Statement, will the Minister confirm that the Government of the Republic of Ireland will relentlessly pursue the authors of this murderous episode?

Baroness Royall of Blaisdon
My Lords, the noble Lord is right that the communities in Northern Ireland are closer now than they have been for many years. The resolve shown by the two communities yesterday shows us that this closeness will continue and that they will not allow themselves to be drawn apart as they were in the past. In relation to the pursuit of the perpetrators, we do not know where they come from, but I am confident that there will be proper co-operation, if necessary, with the police in the south as well as with the PSNI. I am sure that the two forces will work very closely together if it is found that the perpetrators either came from or escaped to the south.

Lord Gilbert
My Lords, your Lordships will, I hope, have noticed the many supportive comments which have come in the past day or so from the United States Congress. Can my noble friend assure us that the people who made those comments will receive the gratitude in writing of her Majesty’s Government for taking the position that they have?

The only other small point I make is that I am always distressed when I see that the media use the expression that people claimed responsibility for a disgusting act. In my language, you claim responsibility for something that is creditworthy and you admit responsibility for something that is disgusting. I hope that our Government will, in future, use that sort of language. There was a slip in the Statement that my noble friend made. Also—and I hesitate to take issue with my long-time friend, the noble Lord, Lord Maginnis—these were not executions, they were murders.

Baroness Royall of Blaisdon
My Lords, I am sure that the Government will express their gratitude to those people in the United States whom I quoted earlier—the Secretary of State and President Obama. Language is always important. I was repeating the Statement that was made in the other place, but I will certainly draw attention to the issues that have been raised. I completely understand where my noble friend is coming from. Claiming something and admitting it are very different things.

I take this opportunity to respond to an earlier question from the noble Lord, Lord Kilclooney. The Government have no reason to doubt the IMC and IICD reports regarding PIRA decommissioning. The IMC made it clear in 2006 that small quantities of PIRA weapons were held back by local groups in defiance of leadership instructions.

Lord Hylton
My Lords, this latest outbreak of violence has been universally condemned. I was therefore very glad to hear that its investigation will receive top priority. However, the Statement reveals that there has been approximately one such attack per month since last year by republican splinter groups. Can the noble Baroness confirm that those past incidents will receive the same kind of priority in their investigation, particularly compared with the time and effort that has been invested in so-called historic inquiries?

No one today has so far mentioned the civilian guards who are apparently looking after military establishments. Can the noble Baroness say whether these people are all armed? What are their instructions on the use of force and, particularly, the use of weapons?

Baroness Royall of Blaisdon
I am confident that investigations into the attacks mentioned in the Statement are already receiving priority. These attacks have, to some extent, been successful, but I draw your Lordships’ attention to many attacks which have not happened, precisely because of the excellent policing of the PSNI in Northern Ireland. Too often we forget that fact.

In relation to the guards who were guarding the barracks, I understand that it is normal practice. Barracks are often guarded by security personnel rather than by soldiers. As to what their instructions were or whether or not they were armed, I do not know, but I will come back to the noble Lord in writing.

Banking: Asset Protection Scheme

Statement

18:28:00

The Financial Services Secretary to the Treasury (Lord Myners)
My Lords, with the leave of the House, I will now repeat a Statement made in another place by my right honourable friend the Financial Secretary to the Treasury on the asset protection scheme and the agreement, in principle, reached on Saturday between the Treasury and Lloyds Banking Group. The Statement is as follows:

“Mr Speaker, the Chancellor is travelling to Brussels, ahead of the meeting of the European Community Finance Ministers tomorrow, to discuss the G20 Finance Ministers’ meeting this weekend. He has therefore asked me to make this Statement.

The asset protection scheme was announced in January. In his Statement on 26 February, my right honourable friend gave details of the participation of the RBS Group, and he mentioned the negotiations under way with Lloyds. The approach we adopted with Lloyds is similar to that with RBS. Discussion involved a large amount of complex detail and it was important to take time to reach a satisfactory conclusion. An agreement, in principle, has now been reached which helps ensure financial stability, safeguards the interests of the taxpayer and supports the real economy by increasing lending.

Under the asset protection scheme, the Government will provide protection against certain credit losses on particular assets in exchange for a fee. A first loss, similar to the excess in insurance policies, remains with the institution. Lloyds will meet all of this. The protection provided by the Government will cover 90 per cent of the remaining loss. The other 10 per cent will remain with the institutions as an incentive to manage the assets prudently. The Government will accept applications to the scheme from other eligible institutions until 31 March.

Lloyds announced on Saturday its intention to place £260 billion of assets in the scheme, on which it has already taken impairments of some £10 billion, and through the first loss mechanism it will retain a further exposure of £25 billion. Any losses beyond this will be borne 90 per cent by the Treasury and 10 per cent by Lloyds. The protection will cover a range of assets, including mortgages, unsecured personal loans, corporate and commercial loans and Treasury assets.

Lloyds will pay a fee of £15.6 billion in new non-voting B shares. These will count as core tier 1 capital. The Treasury has also agreed to replace its existing £4 billion of preference shares. Current shareholders will be able to purchase these ordinary shares as part of an open offer. The Treasury will take up its pro-rata share of the open offer, so maintaining its minimum voting share at 43.5 per cent, and will subscribe for any additional shares not taken up by existing shareholders. If no other shareholders take up their entitlements, the Treasury’s ownership of ordinary shares will increase to 65 per cent. Taking into account B shares paid as a fee, its economic ownership will reach up to 77 per cent.

As my right honourable friend set out, the asset protection scheme is a key step to put banks on a stronger footing, insuring their balance sheets and boosting lending to businesses and individuals. As part of this deal, in return for access to the asset protection scheme, Lloyds has agreed to increase its lending by an additional £14 billion over the next 12 months: £3 billion for homebuyers and £11 billion for business lending. It has made a similar commitment for 2010. Consistent with RBS, Lloyds will also be required to present a detailed implementation plan to the Government and to report monthly on compliance with the lending agreements. The Government will publish an annual report on these arrangements, which will be made available to Parliament. The agreements are binding and will be reflected in the performance-related pay of bank staff involved.

Another condition for Lloyds—as for any bank participating in the scheme—is a requirement to develop a sustainable long-term remuneration policy. This means reviewing policies and implementing new policies consistent with the FSA’s new code of remuneration practice. We have agreed that no discretionary bonuses will be paid in 2009, except to junior staff earning on average £20,000, and that there will be no annual free award of shares at all.

At the heart of the current financial and economic problems around the world is a crisis of confidence about bank assets. Lack of confidence is having profound effects on UK companies and individuals who are not able to secure business loans or mortgages. The critical obstacle to expanding lending is uncertainty about the value of banks’ balance sheets, so we are acting now to enable the banks to clean up their balance sheets, making them more able to lend to individuals and businesses. Transformation will not happen overnight, but this is the essential starting point, and it must go hand in hand with broader reform of banking supervision and regulation.

Action must be taken, not only here but by Governments across the world. The alternative is a failure of the banking system, here and elsewhere, which would make the recession longer and more painful, and put more jobs at risk. Getting the banks to lend again is essential to our economic recovery and to our fight against the global recession.

The Government are clear that British banks are best owned and managed commercially, and not by the Government. The future of the UK as a financial centre, and the future of our economy and thousands of jobs, depends on being able to run banks commercially. All countries are having to deal with the same problem: how to isolate assets which are damaging confidence in the banking sector and preventing banks from lending more. Over the coming weeks, we will continue to discuss with other countries, including the US and the European Union, how best to co-ordinate our approach to the common challenges we face.

As part of our presidency of the G20, the Chancellor recently wrote to Finance Ministers setting out a set of shared principles for dealing with asset protection and insurance. It is essential to restore confidence in the banks, allow them to clean up and rebuild, and get lending going again. The economic recovery and thousands of jobs depend on it”.

That concludes the Statement.

18:35:00

Lord Howard of Rising
My Lords, I thank the Minister for introducing the Statement to the House, although, to my mind, it poses more questions than it answers. I declare that I have banking arrangements with Lloyds bank.

The Statement said:

“The Treasury has also agreed to replace its existing £4 billion of preference shares”.
 

It does not say what with. It goes on to say:

“Current shareholders will be able to purchase these ordinary shares as part of an open offer”.
 

What shares, and what open offer? Are there to be two offers, one to the Treasury and another to shareholders, or is there to be one offer only? If it is to the shareholders, they had probably better watch out. They are a pretty sad collection, who have had their savings almost completely wiped out through the merger with HBOS—a merger brokered by the Prime Minister which has proved to be as disastrous as his sale of gold. I know that it was not opposed by my party, but that was on the assumption that the Government would have taken appropriate steps to ensure that they knew what they were doing with the step that they were promoting.

The Statement says that the Government will not be interfering in the running of the bank. How can that be reconciled with specifying lending levels and dictating salary particulars? Lloyds is to lend £14 billion in the next year and another £14 billion the following year. What will happen if it fails to meet these targets? Will it be forced into making loans that it might otherwise not make, or which it deems to be imprudent? Is another banking bubble being created? We are where we are today because of inappropriate and imprudent lending. Pressure on banks must inevitably mean pressure to make marginal loans.

If bonuses are to be forbidden in the current year, will this result in constructive dismissal for some senior executives? If so, have they had to be compensated with higher basic salaries, which are, after all, the other side of the remuneration package? Or have all the senior executives voluntarily surrendered any bonuses to which they may have been entitled? Mr Daniels of Lloyds bank said that he was not able to do proper and due diligence before Lloyds bank purchased HBOS. Can the Minister say whether there has been a proper look at the enlarged bank before committing so much more money on this occasion?

Each time that a new injection is made to the banking sector, fresh assurances are given. How many more times will fresh capital, fresh guarantees or other forms of financing be needed? Perhaps the Minister could tell us. Where the Government are a shareholder, are they capable of permitting a good commercial decision if it is a bad political decision? Or will the difficulty of doing this make it impossible for the Government to leave banks to be run on a commercial basis, as they have said that they will?

18:39:00

Lord Newby
My Lords, this is another depressing announcement and another step in the creeping nationalisation of the banks, yet the Government seem to want to pretend that that is not what is happening. The Statement says:

“The Government are clear that British banks are best owned and managed commercially and not by the Government”.
 

The truth is that both RBS and now Lloyds Banking Group are effectively owned by the Government. The big issue with which we are still grappling—and the Government certainly are—is what this means in terms of the management of the bank and whether, having put such huge amounts of public money into it, the bank will now be run in the public interest.

The Government have said they are not going to be involved in the running of the bank. We might be less concerned about this, given that they have set out some general principles, if Mr Daniels had not described taxpayers’ shareholding as just another name on the share register. For the British public, that attitude is not acceptable. Does the Minister believe that Mr Daniels, if that is his view, is the right person to continue in his position at the bank? Can the Minister also tell us what the consequences of today’s announcement are in terms of the composition of the board of the bank? Will additional government directors now be appointed?

What happened to the October agreement on lending and what were the consequences of that in terms of any increased lending over the past few months? The Government say that Lloyds has agreed to increase its lending by an additional £14 billion over the next 12 months. What is not clear to me is what that is additional to. Is it additional to the amount of lending that Lloyds was undertaking a year ago or additional to some unspecified level of lending that the board agreed but of which we are ignorant? Given the high amount of government involvement, additional expenditure and commitment to the bank, we need greater clarity on what this alleged additional expenditure is going to consist of.

Remuneration is clearly going to be looked at by the Government. A number of issues will no doubt arise about existing members of staff. Will Sir James Crosby still be entitled to his pay-off and pension pot and will the same apply to Mr Cummings, whose disastrous commercial property loans helped destroy HBOS but who still has a £6 million pension pot? The Government say there will not be bonuses to the extent previously planned. Can the Minister confirm that £80 million is still being planned as bonuses for the coming year? We accept that the bank’s staff may be unhappy to have their bonuses removed, even low-paid bonuses; that may not be good for morale, which is the reason given for retaining bonuses. But can the Minister accept that the decisions that the Government have had to make in respect of the banks are bad for the morale of the British public when it sees billions of pounds going into institutions which would otherwise be bust? Given his long-standing commercial experience and understanding, can the Minister tell us whether any other company in this circumstance would still be offering bonuses to staff for any reason whatsoever?

Finally, can the Minister accept—I am sure that he does—that private shareholders feel deeply aggrieved about what has happened to them and are unclear about the options which were explored by the Government when the merger between Lloyds TSB and HBOS went ahead? The Government have published part of their evidence in respect of this to the Office of Fair Trading. That evidence explains that they were looking at alternatives to the merger at that point but not why they rejected them. Can the Minster explain that now?

18:44:00

Lord Myners
My Lords, in answer to the first question asked by the noble Lord, Lord Howard of Rising, about whether there are one or two offers of shares, there is one conversion from preference shares to ordinary shares and one offer to existing shareholders of Lloyds Banking Group. If existing shareholders take up their shares and the Government take up only their pro-rata ownership, the Government’s ownership shareholding will be maintained but private shareholders will also maintain their shareholding. If private shareholders do not take up the shares consequent on the conversion, the Government’s shareholding will increase.

The Government are not involved in the day-to-day running of the banks. They do not intend to be and should not be. The noble Lord, Lord Howard of Rising, asked about the lending conditions and whether these were not evidence of the fact that the Government were engaging in the management of the banks. It is necessary to see those lending conditions—on which I will say more in a moment in response to a question from the noble Lord, Lord Newby—as being an integral part of the transaction, the exchange of value. The Government are providing additional support for Lloyds Banking Group in exchange for Lloyds Banking Group entering into lending commitments. Lloyds believes that it can meet those commitments in accordance with its existing credit criteria. There would be no sense at all in the Government encouraging banks to lend irresponsibly.

No one is being constructively dismissed from Lloyds Banking Group by virtue of the decision on bonuses. A number of members of the board of Lloyds Banking Group have voluntarily surrendered their rights and entitlement in respect of bonuses, and for that I commend them. They set an example which others should have followed.

The noble Lord, Lord Howard of Rising, mentioned questions concerning due diligence and the observations made by Mr Eric Daniels to the Treasury Select Committee that he had insufficient time to carry out due diligence on behalf of Lloyds TSB before proposing the acquisition of HBOS. The Treasury has carried out considerable due diligence on the loans which Lloyds is putting into the asset protection scheme but there is still a great deal more work to be done. That is why these asset protection agreements will not be completed until early summer.

The noble Lord, Lord Howard of Rising, asked whether I believe that the board of Lloyds and Government will be able to make the distinction between a good commercial decision and a bad political one. The fact that the Government wish to keep the Royal Bank of Scotland and Lloyds Banking Group in the listed company sector, accountable and responsible to all shareholders, is clear evidence of the fact that we recognise that these banks must be run in a commercial manner, accountable to all shareholders rather than treating one shareholder as being more influential than another. That also answers the first of the points made by the noble Lord, Lord Newby, about these two banks being nationalised. They are not nationalised; they are public companies in which the Government are a large shareholder, but only temporarily.

The noble Lord, Lord Newby, asked whether Mr Eric Daniels was the right person to continue in his position at the bank. I would encourage noble Lords to take account of the excellent record of Lloyds TSB under the leadership of Mr Eric Daniels when seeking to form a view on his competence as the chief executive of a banking group. His capacity to manage in an effective way the day-to-day affairs of a major bank was very evident in the way he performed those duties at Lloyds TSB. However, it must obviously be a matter for shareholders whether they regard Mr Daniels and his colleagues as the right people to be leading the enlarged group.

In making that observation, I also draw attention to the fact that some 80 per cent of the assets that Lloyds Banking Group is placing into the asset protection programme come from the old HBOS business as opposed to the Lloyds business, which provides some further verification of the skills of the Lloyds banking team. Noble Lords will no doubt be aware that the senior management of the new Lloyds Banking Group is drawn almost solely from previous employees of Lloyds TSB, with very few of those senior positions being held by former executives of HBOS. Lloyds Banking Group is able to make these lending commitments, which are in addition to the loans that it had already intended to extend—they truly are additional loans—in the light of the fact that it now has, at a 14 per cent level, one of the strongest core tier one capital ratios of any bank in the world. In the steps that we have taken with the Royal Bank of Scotland and Lloyds Banking Group, we have put the capital levels to levels that compare very favourably with those in many other jurisdictions.

Questions were also asked by the noble Lord, Lord Newby, about the pensions and other entitlements of Sir James Crosby and Mr Peter Cummings. Noble Lords will no doubt be aware that the executives of UK Financial Investments, the body that holds these shares on behalf of the Treasury, has asked Sir Victor Blank and Sir Philip Hampton, respectively chairmen of Lloyds Banking Group and Royal Bank of Scotland, to carry out investigations into the conduct of directors in the Royal Bank of Scotland and in HBOS. Those investigations are being carried out with the support of external legal advisers, and no doubt reports will be made back to those boards. I emphasise to noble Lords that the decisions taken will be for the boards of the new RBS and the new Lloyds Banking Group, rather than for individual shareholders.

There was a final question from the noble Lord, Lord Newby, as to the circumstances in which a loss-making group can pay bonuses. The answer lies in good schemes that attempt to localise performance objectives and tie them up within an overall corporate objective. For example, you can have a branch that has performed exceedingly well. You can have a counter clerk who, through her performance, engagement with customers and helpfulness has achieved individual performance goals. Many of these schemes attempt to ensure that there can be that localised identification of an exceptional contribution by an individual, notwithstanding that the group as a whole may not achieve its targets. From my experience, we had similar challenges at Marks and Spencer during a difficult time, and this is not an easy issue to get right. I believe that is why the directors of Lloyds Banking Group, if they were here rather than me, would explain that they are attempting to pay modest bonuses, notwithstanding the very large losses that the newly combined group has reported.

18:54:00

Lord Barnett
My Lords, I strongly, in principle, support what the Government are doing. Indeed, I have not heard a serious alternative, although we have had lots of questions. My noble friend talked of other eligible institutions that could be brought into the scheme. Would that include large insurance companies that possibly had substantial toxic assets? From what he was saying about the further due diligence that I am delighted to hear the Treasury is doing before the deal is completed, the deal will not be completed for Lloyds to be included in the scheme until that due diligence is completed in the summer, as he put it.

I have another question. As the Treasury is effectively underwriting the rights issue and the share price that will be in that rights issue, does that mean that the Treasury has approved a particular price in advance of the due diligence that it is now doing?

Lord Myners
My Lords, to answer my noble friend’s first question, the asset protection scheme is open to eligible institutions, which are defined for the time being as UK-authorised deposit-takers with a minimum of £25 billion of eligible assets. It is a scheme that is designed for banks; it is not designed for organisations whose primary activity is in another line of business.

The agreements reached with the boards of the Royal Bank of Scotland and the Lloyds Banking Group are sufficiently detailed for those boards and the Treasury to enter into commitments, while recognising that much further work needs to be done to be assured that we understand the toxicity of the assets and to ensure that we are putting a sufficiently strong and robust ring fence around the most at-risk assets. The structure of the scheme is designed to ensure that the first loss arising from the normal course of business will continue to be held by the shareholders of the banks, whereas extreme loss, or high-stress loss, will fall into the asset protection scheme in respect of 90 per cent of that loss.

Finally, my noble friend asked whether we are underwriting. We are not underwriting a public offer in the sense that we have already committed £4 billion of equity to the Lloyds Banking Group, which is currently held in the form of preference shares. Those are tier one capital, but not core tier one. By converting them to ordinary shares, they become core tier one, and it is those shares on which we are offering a claw-back facility to the other shareholders of Lloyds Banking Group. If those shareholders do not take up those shares, the Government will continue to have a £4 billion exposure, albeit now in the form of ordinary shares rather than preference shares.

Lord Tugendhat
My Lords, given that we are where we are, I support the measures that the Minister has just announced; but given that we are where we are, does he not think, at least with hindsight, that to promote or, at the very least, to allow the deal to go through that has led to the HBOS contamination of the previously relatively healthy Lloyds TSB was a great mistake?

Lord Myners
My Lords, the noble Lord, Lord Tugendhat, brings to his question considerable knowledge and experience in banking, but I fear that he is incorrect in suggesting that the Government promoted the merger of Lloyds TSB and HBOS. The merger was promoted by the board of directors of Lloyds TSB, agreed by the directors of HBOS and agreed with alacrity and a very huge majority by the shareholders of both banks. The Government subserviated the interests of competition to the need for financial stability in the context of enabling the merger to take place but did not in any circumstances promote such a transaction.

Lord Clinton-Davis
My Lords, the Minister referred in his Statement to the broader reform of banking supervision and regulation. May I ask him for further and better particulars about that? What does he have in mind about banking supervision? Surely it will take place immediately. Is that right? Is Parliament to be consulted about the regulations? When will they be made, if at all?

Lord Myners
My Lords, my noble friend is absolutely correct to draw the distinction between regulation and supervision. I have spoken in the past at this Dispatch Box about the inadequacies of supervision. Boards clearly failed in their supervision, management and direction of these major banking institutions and they were enabled in that failure by institutional shareholders who inadequately engaged with them and in many cases approved the strategies which proved to be seriously value-destructive. Sir David Walker is carrying out a review of the governance of banks and I will be making a speech on this subject at the National Association of Pension Funds in Edinburgh later this week. I wish I could share what I am going to say but, as I have not decided what to say, I cannot do that. No doubt some junior Treasury official will give me some words which I will either use or not use, depending on whether I find them appealing. I will try to maintain my own freedom of thought, despite the oppressive powers of the Civil Service to constrain a Minister from expressing his views on anything. I say that in the knowledge that they cannot get to me when I am standing at the Dispatch Box.

There are areas where supervision, government and engagement need to improve. The noble Lord, Lord Turner, will on 18 March be producing his report on regulation. I believe that will produce a number of important themes around capitalisation, macro-prudential regulation, liquidity management and the responsibility of directors. There is also a global context which we need to pursue as part of the G20 and revisiting the role of the Financial Stablity Forum and the IMF. There is much work to be done, therefore, and no doubt this House will be informed as progress is made.

Lord James of Blackheath
My Lords, I should first of all declare that I am in possession of a pension from Lloyds Bank. Before the House thinks it has discovered a new scandal, I should hasten to add it is only £32 per month and I did not have the benefit of the intercession of the noble Lord, Lord Myners, in its negotiation.

I am concerned about the constant use of the word “toxic”, which is misleading and extremely dangerous in this context. “Toxic” implies that it is beyond recovery; it is a death process that is going to go to the fulfilment of complete death, which is not how we should regard this. The Minister and I have shared the experience of what was once the R&R, the reconstruction and renewal programme of Lloyd’s of London. You could have said that every syndicate in Lloyd’s was toxic but most of them survived that process and came to a very big fulfilment. The only way to approach the so-called toxic fund is to regard it as another reconstruction and renewal fund. For that purpose there is one thing the Minister could do which would bring huge benefit to the process. I have already written to the Minister on this subject and I should like to raise it again, particularly as he has already made reference to Sir David Walker, who was the author of this idea at its first manifestation some 30 years ago.

Lord McIntosh of Haringey
Question?

Lord James of Blackheath
My Lords, a question is coming. I should like the Minister to give urgent consideration to the restitution of London Rules, which would provide an easy and rapid solution to the problem. The businesses in this toxic fund are not sole-banked with Lloyds Bank or the Royal Bank of Scotland. They are often syndicated among many other banks and you have to prevent the virus from spreading to the destruction of the banks around them. If the Minister brings in the principle of London Rules, he will have the means of regulating the multi-bank process now and giving an enormous advantage to the rescue process. Will the Minister give urgent consideration to bringing back London Rules?

Lord Myners
My Lords, first, let me apologise. I did use the word “toxic” and it probably is an incorrect word. I have no difficulty in saying sorry. The issue around these assets is partly to do with the fact that they are poisonous, in that correct definition of toxic, but also that they are currently suffering from illiquidity. One of the virtues of the type of scheme that we have offered the banks is that it provides an opportunity for time and patience to see values recover. As the noble Lord, Lord James of Blackheath, knows, the London Rules worked rather well in a different environment. I am not sure they would work as well now in an environment in which loans are so widely distributed and where the lenders are based all over the world and the asset is now often in the hands of a hedge fund rather than in the hands of a bank. The London Rules operated in a previous environment in which most lending was domestic and mostly under the supervision of the Bank of England.

I first came to work in the City in 1972 or 1973 during the secondary banking crisis. The London Rules worked then but I do not think they would work as well now. That said, talks are going on at the moment which seek to promote codes and practices which are very similar to those which we associate with the London Rules.

Lord Brooke of Sutton Mandeville
My Lords, pursuant to the earlier question of the noble Lord, Lord Newby, about transparency, does the Minister participate in signing off the Statement which is going to be made first in another place and repeated by himself here? If he does, does he apply to it the test of whether the Statement contains the information that he would want if he was in opposition in your Lordships’ House as against being in government?

Lord Myners
My Lords, I am entirely satisfied with the completeness of the Statement made by my colleague in the other place.

Marine and Coastal Access Bill [HL]

Committee (7th Day)

19:08:00

Clause 114 : Grounds for designation of MCZs

Amendment A123 had been retabled as Amendment A135A.

Amendment A124 not moved.

Amendment A125

Moved by

A125: Clause 114, page 68, line 21, leave out “it thinks that”

Lord Taylor of Holbeach
These amendments represent a heavy-duty grouping but we are keen to ensure we concentrate the debate around the main issues. While I seek to move Amendment A125, I will speak to the others, or should I say address the issue they have in common. At first sight, the amendments might appear to delete thought from the process. Deleting “it thinks that” or “the appropriate authority thinks”, or “the MMO thinks” might suggest we are seeking to induce an absence of thought into the Bill. This is not the idea, however. On the contrary, my amendments in this group seek to explore in a little more depth the management of the designation process and the basis on which the assessments in this part will be made. There is a certain amount of judgment to be exercised in the designation and implementation of marine conservation zones.

As I am sure the next group of amendments will show, there is a great deal of disagreement about the relative importance of the many factors that could or should be taken into account. It is clear from conversations with Defra and the relevant stakeholders that Natural England and the Joint Nature Conservation Committee have already been tasked with and funded for the organisation of consultation panels. That appointment follows the existing practice of designating and managing existing conservation sites such as SSSIs. Some questions, however, have been raised about whether this is the best way forward. At this Dispatch Box, we have referred to many occasions on which the MMO’s areas of responsibilities have been restricted or removed. My noble friend Lord Cathcart has been keeping a list, which I believe is nearly into double figures. I am afraid that we are rather inclined to view the provisions as yet another addition to that list.

We fully appreciate the point that the statutory conservation bodies represent a wealth of experience and expertise in conservation matters and that it would be counterproductive to separate them into marine and terrestrial-based organisations. However, our understanding of the MMO from discussions on the earlier part of the Bill was that it should be an umbrella organisation with the links and responsibility to coordinate between and rely on more specialised bodies in a relevant area when necessary.

Why, therefore, is the MMO being completely isolated from any involvement in the designation of zones that will impact enormously on its responsibilities to draw up and implement marine plans, and on its ability to issue licences? Does the Minister feel that the MMO could play a very useful role not only in maintaining an impartial role in negotiating between conflicting interests and ensuring that all relevant voices are heard but also in contributing its knowledge and experience to the designation process directly?

Naturally, we have received some very strong representations from the conservation bodies that they would prefer to keep control of the process of designation. They have some concerns that, if control of the process is given to a body that does not have conservation as its sole focus, the end result will be too watered down to be effective. However, the MMO has a responsibility to contribute to sustainable development and will, we hope, have an even stronger duty in this area by the time that the Bill leaves your Lordships’ House. It is also subject to scrutiny by Parliament and directions and guidance by Defra. What grounds are there for thinking that it would be an ineffective champion of an effective and manageable conservation network?

There is, of course, a further safeguard in this Bill that the zones are to be designated by the Secretary of State, based on recommendations. The current thinking is that any unfeasibility in the conservation objectives can be caught and amended here. If a planned development clashes with a proposed zone, it appears to be the expectation that the Secretary of State will spot the conflict and will ensure that the necessary adjustments, either to the relevant plan or the zone, are made.

This seems to be a very inefficient way of proceeding. Why not build in at a much earlier stage an appreciation of where difficulties are likely to develop? Alternative sites for either the development or the zone could then be considered and a more optimal solution found. I prefer a system that resolves conflicts of interest early and locally. Much greater reassurance would also then be given to stakeholders that their views would be heard at an earlier stage, eliminating the current incentive to postpone the resolution of conflict until a later stage to keep to targets, with all the usual reviews, readjustments and appeals that such a policy tends to produce. I beg to move.

19:15:00

Lord Greenway
In voicing my support for the amendments, I make it clear to the Committee that I have long been associated with the yachting fraternity and I will move amendments proposed by the British Marine Federation, which looks after the industrial side of the boating industry. While I would normally also speak for the Royal Yachting Association, the Opposition Front Bench will do so in Committee, with my full support.

The Minister of State, Department of Energy and Climate Change & Department for Environment, Food and Rural Affairs (Lord Hunt of Kings Heath)
This is a good way to start today’s sitting. I fully recognise the point that the noble Lord, Lord Taylor, raised about the importance of being sure about the way in which the appropriate authority should seek to designate marine conservation zones and the way in which the MMO carries out public consultation in relation to by-laws. I fully accept that, in moving the amendment, the noble Lord raised a number of interesting points about the role of Ministers—the hierarchy of decision-making, if you like—and the role of the MMO in providing appropriate advice. Clause 114 makes it clear that the appropriate authority for designating marine conservation zones will be the Secretary of State, Welsh Ministers or Scottish Ministers for the Scottish offshore region, in the last respect acting with the consent of the Secretary of State because the function was executively devolved, as we have previously discussed.

The idea is that the appropriate authority—in other words, the relevant Ministers—will want to act on advice and recommendations from the statutory nature conservation authorities and other marine bodies with expertise, such as the Marine Management Organisation. I say to the noble Lord, Lord Taylor, that I regard the role of the MMO in this regard to be important and would not, I hope, be added to the list of the noble Earl, Lord Cathcart. We are only too well aware of the importance of the MMO.

The noble Lord, Lord Taylor, said that some take the view that the designation of sites should be placed on statutory nature conservation bodies. I make it clear that the Government do not have that intention. We believe that the duty to create a network of sites must lie with the Secretary of State. The various international conventions and European directives will place requirements on the UK to provide a network. Surely it is Ministers who ultimately must make the decisions and be held accountable for them.

Lord Tyler
I am listening with interest to the noble Lord. Am I right in thinking that Ministers have executive responsibility for the designation of areas of outstanding natural beauty in the terrestrial planning field precisely because Ministers need to be accountable for such designation? Is that the comparison that he would make? Is that the precedent that he would make? I have some sympathy with that argument; that is why we did not support the amendments tabled by the Conservative Front Bench; we believe that designation is an executive decision rather than an advisory one.

Lord Hunt of Kings Heath
I am not going so far as to say that the precedent is drawn from the noble Lord’s example; I do not have the experience to do so. I am clear that it should be a ministerial decision but Ministers can then be held accountable to Parliament. The role of the various other bodies that have been mentioned so far must be to provide the necessary advice.

Baroness Young of Old Scone
When it comes to the designation of sites of special scientific interest in the terrestrial environment, the statutory nature conservation body Natural England decides on the designation—it is not a ministerial decision. So there are examples of situations where Ministers do not take every decision.

Lord Hunt of Kings Heath
That is why I did not want to fall into any traps. I am not saying that the noble Lord, Lord Tyler, was setting a trap for me, but I did not want to endorse the example that he gave, because we can all look to different examples to support our arguments. Our view, which informs the Bill’s provisions, is that, given the nature and importance of these matters, they are for Ministers to decide. Later on in our debate we will be talking about the hierarchy of decision-making. The debate is about information and how it comes to the Ministers who make decisions.

The effect of Amendment A125 would be to require the appropriate authority to be sure that it is desirable to designate a site, rather than enabling it to do so when it thinks that it is desirable. That would impose an objective test, as opposed to the current test in the Bill, which is based on expert judgment and which gives more discretion to the designating authority. The reason for having discretion is that otherwise, the bar for designation might be raised too high. In earlier debates, we were taken to task over marine nature reserves. Only two have been established since 1981. Arguably, one reason is that very high hurdles were set for such designation.

The purpose of Part 5 of the Bill is to provide the tools to protect areas so that they can recover their diversity and thereby enrich our seas. Some areas may represent a significant proportion of our network of sites. In those cases, it may not be realistic to require the appropriate authority to be sure that designation will contribute to conservation. We want the appropriate authority to be able to designate a site when it has good reason for thinking that the site should be designated.

Amendments A142 and A144 concern consultation over the designation of sites. The provisions in Clause 116 have been designed to ensure, so far as reasonably practicable, that every interested person is consulted before a designation order is made. Clearly, public consultation requires a degree of judgment by the appropriate authority, because in practice it cannot always be certain that it has consulted in the best way. My department follows best practice on public consultation, and my department will be carrying out this consultation. It is important that the wording of the Bill enables the Secretary of State to reflect this objective.

On rare occasions, an area may need urgent protection through immediate designation. Clause 116(10) and (11) therefore allow designation to take place on an interim basis without public consultation. Amendment A147 might restrict the power to designate urgently, so that it could be exercised only where there was definitely an urgent need. Paradoxically, this could weaken the protection of vulnerable and threatened sites, because the appropriate authority could act only when it was sure that the designation was urgently required. We have heard much in previous debates about the need to reflect the precautionary principle. One risk of the amendment is that it might leave the Secretary of State with too strict a test to operate to secure the urgent protection needed for an environment when information is incomplete.

Clearly, the Secretary of State will not act lightly. He will need to take advice on the site from nature conservation bodies and from the MMO, and be clear in his mind that there is an urgent need to protect it. By the time enough evidence for certainty is produced, the features of the site might already have been damaged  or destroyed. That is the reason that we want to allow the appropriate authority—in this case, the Secretary of State—to exercise some judgment.

Amendments A187 to A192, and Amendments A194, A195 and A197, remove the words “the MMO thinks” from Clauses 126 to 129, which relate to the making of by-laws, emergency by-laws and interim by-laws. These words acknowledge that the MMO will need to exercise its expert judgment in deciding how best to publish them. The aim is to ensure, as far as is reasonably possible, that the details come to the attention of all interested parties. There may be different opinions on how best to achieve that, and we think it right for the Bill to reflect this. I assure the House that the MMO will operate best practice on consultation and on publication of its intentions; that the guidance that the Secretary of State issues to the MMO will be clear about this; and that the MMO must then do what it thinks is best.

I hope that, in responding to these amendments, I have explained why the Bill is worded to allow certain subjective judgments, either by the Secretary of State or by the MMO. It does not give the appropriate authorities and the MMO complete freedom. They will need to act reasonably, and can be legally challenged through judicial review if they fail to carry out their functions in a reasonable way. That is sufficient protection against any arbitrary decision-making. I hope that I have made it clear to the noble Lord, Lord Taylor, that the MMO will have a valuable role in this process; and also that, as far as concerns decisions by the authority, it is right that Ministers should take them.

Lord Taylor of Holbeach
I thank the Minister for his reply. In the broadest terms, we agree with him. We certainly agree that ultimate political accountability should lie with the Secretary of State.

As I said when introducing the amendments, the essential reasoning behind them was to beef up the role of the MMO. The Minister has accepted that the MMO has an important task. What he said implies that the MMO will be central to the designation process. I am not seeking to exclude from the process statutory bodies with conservation experience: without their expertise, the MMO could not function at all. The MMO is the key link between the marine policy statement, marine plans and marine licensing. The designation of conservation zones comes into that process, and it is very important that there is a continuity of decision-making that involves the MMO.

I am grateful to the Minister for addressing these issues. I do not think that we are a million miles apart on this matter. I beg leave to withdraw the amendment.

Amendment A125 withdrawn.

Amendment A126 not moved.

Amendment A127

Moved by

A127: Clause 114, page 68, line 23, at beginning insert “existing”

Lord Taylor of Holbeach
These amendments follow on from our previous debate. They are intended to give noble Lords an opportunity to discuss the different weight that certain factors will have when designation of marine conservation zones is considered. I speak to Amendment A127, but I will address the other amendments, which, as with the last group, form a platform for a debate on a key issue.

19:30:00

In the main, they focus around Clause 114(7), which ensures that the appropriate authority has the power to consider the social and economic consequences of any designation. We consider that reasonable. Indeed, we have added our names to the amendment tabled by the noble Lord, Lord Greenway, to make certain that those consequences are considered. Surely it would be completely counterproductive to seek to deny the Secretary of State the power to consider all consequences of a designation when choosing whether to implement the recommendations. The subsection places no obligation on the appropriate authority to decide in favour of the social and economic consequences, just to be aware of them. As I have argued on the previous group, our preference would be to have social and economic factors regarded rather earlier in the designation process to try to minimise future disagreements. To proceed with MCZs with no regard at all to other legitimate users of the sea would appear to be analogous to sticking one's head in the sand. Conservation bodies may not like some of the other users of the sea, but ignoring their claims on its resources entirely is not the most constructive way forward.

Instead we have tabled an amendment which we hope will reassure the conservation bodies that there is genuine commitment to establishing a meaningful conservation network, which we certainly hold, but accepting that there will be disagreements. Our Amendment A140A expresses the Sandford principle, which is already at work in the designation of national parks. In the event of an irreconcilable conflict between conservation objectives and other factors, the conservation objectives would win out. We feel that that places an appropriate level of legislative support for the critical importance of the marine conservation zones.

An alternative approach would be our Amendment A140B, under which social and economic factors would be taken into account when two sites of equal conservation value were being considered. More of our amendments in this group highlight some of the factors which might be considered other than purely conservation objectives, such as climate change and energy security. We have debated this topic a few times before, but I felt it would be useful to highlight briefly the wide range of social and economic factors that should be considered. Addressing climate change by promoting renewable energy is, of course, a matter of conservation as well as economics. It is a good example of why the factors that should be regarded should be widened rather than narrowed.

Finally, the remaining amendments in this group address consultation. The Bill enables the Government to proceed, as we have mentioned, with the statutory conservation bodies in control of the consultation and recommendation procedure and as sole statutory providers of advice to public authorities on the ongoing management of zones. Our amendment would open up the possibilities for consultation a little wider, ensuring the conservation body’s primary role at the designation stage, but enabling the participation of other interested bodies as well. I beg to move.

Baroness Young of Old Scone
I speak to my Amendment A135A and I want to touch on Amendments A136 and A140A tabled by the noble Lord, Lord Taylor. He and I will probably cancel each other out tonight as we are taking different views on considering socio-economic factors in the designation of marine conservation zones. I entirely understand where he is coming from, but I would like to try to persuade him that he is wrong. I have tried this once privately and failed, so I shall now try publicly.

Clearly, having a network of marine conservation zones which protect the areas of the highest importance for conservation is an absolutely central part of this Bill. It is one of the elements of the Bill for which we have argued for many years. If this were to be a weak part of the Bill, it would take the heart out of it because it originally started as a conservation Bill and has only recently become a Bill on which everything else has been hung.

I want to look at the history of creating marine protection areas in the UK. The Minister referred to this, so he knew he was going to get it in the neck on this argument and we may as well carry on. Under the Wildlife and Countryside Act 1981 the designation of marine nature reserves was dismal—that is the only word to use. In more than 25 years, only three small sites have been designated. The big problem was that, at the time, there was huge pressure against designation from socio-economic interests. The noble Lord, Lord Taylor, would say that that was the time to face up to them, to get them out into the open and to take a balanced view, but in reality all that happened over the 25 years was that it was almost impossible to get a designation through.

My second point is how we overcome what, in the case of the Wildlife and Countryside Act provisions, was virtually a veto by socio-economic interests. How do we ensure that we do not end up with a network of sites where no one can envisage some socio-economic requirement which would mean that they can be selected? In the process to be adopted for designation of MCZs, there will be a strong regional role and a strong consultative role. The risk is that the poor Minister, in making a decision, will be heavily lobbied by socio-economic interests of all kinds and he will be put in the position that Ministers were in for 25 years under the previous rules where he will find it impossible to move ahead.

Scotland will stand out like a shining beacon in all this. Under the Scottish provisions, its conservation zones will be designated entirely on scientific conservation criteria. We are already seeing a difference between the four countries. On the terrestrial environment, not only is there not a requirement to take socio-economic conditions into account at the time of designation of sites of special scientific interest, but in the case of European sites, for special areas of conservation and special protection areas under the Natura 2000 series, it has been tested in law that socio-economic conditions may not be taken into account in selecting those sites. The process is: let us identify and designate those sites which are really important for nature conservation and, when we know the nature of proposed management activities or planning and development activities, it will be possible for the planning authority and, ultimately, the Minister to do the balancing act between socio-economic conditions and the importance of the site and so make decisions about the management of the site or the development and planning proposal which has come forward. Alas, if the Minister does that at a point of abstraction, when people are saying, “This may be important in a socio-economic way for the future; we might want to put a wind farm here; we might want to put a tidal barrage here; there might be aggregate extraction here; or this may be an important fishing area”, the Minister will have so many reasons for not designating that he will find it jolly difficult to designate.

Marine conservation zones have been heavily misunderstood because they are not areas where no development is planned or no economic activity can be permitted. There will be many economic activities which are perfectly combinable with the conservation interest of a particular site, depending on what that conservation interest is, but the appropriate time for that balancing decision to be made is when one knows what economic development is being proposed. There is a huge signalling role in designation. Having already signalled to people that, whereas in the marine environment in general socio-economic requirements may well be incredibly important, in this bit, most of the time if they are in conflict we will want the conservation of natural features to win out. That signalling activity is very important to make sure that people exercise ingenuity in looking at where they can direct their socio-economic development away from the most important sites for nature conservation, the places that are irreparable, the jewels in the crown, which is what SSSIs are in the terrestrial environment.

I was trying to think of a good example. Noble Lords may remember the Salisbury bypass, which I am glad to say I campaigned against and which was never built. It ran perilously close to damaging Salisbury Cathedral. It went through the water meadows and could well have had an impact on the cathedral. If we had not had a designation for that cathedral and we had been operating the system that would exist in the marine environment, the Minister would have been saying, “I wonder if we should protect the cathedral because, actually, the road is jolly important too”. I do not think that any noble Lord would ever suggest that some of the wonderful heritage treasures that are subject to the highest level of protection would ever be traded away for socio-economic purposes. They are designated simply on their heritage value, not on whether they are in an area that could get a bit crunchy in terms of planning and development.

My belief is that the marine conservation zones—and I refuse to believe that we will have a huge number of them—that will make up this important network ought to be designated on their scientific evidence-based conservation value alone. That is why I tabled Amendment A135A and which is why—I think I have probably said enough—I would not support Amendment A136, tabled by the noble Lord, Lord Taylor, which says that account must be taken of socio-economic reasons. Although I approve of the Sandford principle in some circumstances, Amendment A140A, which is a Sandford bastardisation—if that is not an unparliamentary word—seems to insert it at the wrong time. It is saying that we might not designate something because of socio-economic conditions but, if there is a bit of a push and a shove, perhaps the environmental objectives should prevail. If that is the intention of that clause, designating on the basis of choosing those sites that are most important for conservation would have a similar net outcome, so perhaps I could persuade the noble Lord, Lord Taylor, that Amendment A135A is better than Amendment A140A.

Lord Tyler
I am very glad to follow the noble Baroness, Lady Young of Old Scone, because, as she knows, I have a great deal of sympathy with her approach. We have a genuine dilemma here; there are several options before us, but the whole designation of MCZs will be so critical to the success of the Bill that there will be huge disappointment if we do not get this right. We have looked very hard at the various options, and we accept that Clause 114(7) is critical to this discussion. The options before us are simply to take it out, which is the noble Baroness’s suggestion, to strengthen it—the purport of Amendment A136—or to modify it quite dramatically by attempting a Sandford solution under Amendment A140A. Simply omitting the subsection will probably not be a successful solution to this problem, for the precise reason the noble Baroness indicated, because we are signalling an important aspect of the Bill. Simply taking the subsection out will not mean that the appropriate authorities ignore the economic and social consequences; they simply will not know how to rate them. Similarly, it would be going to the opposite extreme and quite ridiculous to strengthen this commitment to economic and social consequences by inflating from “may” to “must”. I cannot support that. That is going in the wrong direction altogether.

19:45:00

We are left with the other option, Amendment A140A, which attempts some sort of gradation, some sort of instruction to the appropriate authorities about how to take into account the prime objective of the zone designation process, which is in subsection (1), and put in as a secondary consideration, very firmly, the economic and social consequences. Whether that is bastardising Sandford or not, I think the noble Baroness would agree that it is an attempt to do just that. I congratulate the noble Lord, Lord Taylor of Holbeach, because he has attempted to do what many of us have wanted to do from the outset, which is to make sure that there is a sequence of priority and that that priority is firmly stated in subsection (1).

Until the noble Baroness spoke, I was not aware of the Scottish comparison. It is important to us because if it is true that scientific conservation criteria will be the sole criteria north of the border, without any reference to economic and social considerations and consequences, that must be an important indicator for us now. However, simply removing them from the Bill by taking out subsection (7) altogether seems pretty drastic. I shall listen with great care to the Minister. At the moment, I believe that trying to find a Sandford order of priority, as in Amendment A140A, is the best solution to the important choice we have before us.

Lord Greenway
Amendment A136 is tabled in my name, although the noble Lord, Lord Taylor, spoke to it in passing so there is no need for me to repeat what he said. It has been shot down by heavy flak from my noble friend Lady Young and the Liberal Democrat Front Bench. As for the Sandford principle, we must remember that the Bill will stand for quite a long time before we have another marine Bill, and with power supplies probably becoming scarcer as time goes on, there could well be situations where the Secretary of State will have to give precedence to power generation sources. It would inhibit the Government somewhat at the moment to write the Sandford principle into the Bill.

Lord Eden of Winton
I have great sympathy with the approach taken by my noble friend Lord Taylor of Holbeach and I understand his objective in doing so. One of the worries and anxieties that I have had derived from the original Explanatory Memorandum issued by the Government that stated in relation to subsection (7):

“Where an area contains features that are rare, threatened or declining, or forms a biodiversity hotspot, greater weight is likely to be attached to ecological considerations. Where there is a choice of alternative areas which are equally suitable on ecological grounds, socio-economic factors could be more significant in deciding which areas may be designated as an MCZ”.
 

I think that my noble friend put this the other way around to ensure that the interests of marine life triumph over the socio-economic factors. None the less, there is the potential here for considerable conflict, and my worry as the Bill goes on—and that worry increases—is that the Government’s position is being progressively weakened. It seems to me that, somewhere behind the scenes, powerful voices representing other interests are coming to bear on this legislation to reduce the original objective which I thought the Government had set themselves in bringing the Bill forward.

When this whole subject was being considered and marine reserves were being canvassed on and discussed in 2001, eminent marine experts considering marine reserves concluded that those reserves resulted in,

“long-lasting and often rapid increases in the abundance, diversity and productivity of marine organisms”,

and that,

“full protection is critical to achieve the full range of benefits”.

I stress that last point: full protection is critical to achieve the full range of benefits. That is what persuades me to support the noble Baroness, Lady Young of Old Scone.

The Bill says that,

“the appropriate authority may have regard to any economic or social consequences of doing so”.

My noble friend has strengthened that a little further, which is a wrong step to take. I have sympathy with the views that he has expressed from the official opposition Front Bench, but the right approach is that of the noble Baroness, Lady Young. Why is it not possible for the marine environment and areas of high protection to be given the same treatment that is given on land through the medium of SSSIs? SSSIs completely exclude other activities that might damage the purpose and objective behind the creation of the SSSI. There is no question of these other factors being brought to bear. Representations can of course be made, just as they could be made in the case of areas of high protection in the marine environment. I am sure that the IPC would ensure that its voice and the interests that it will represent will be sufficiently strongly heard. In fact, an almost parallel power is given to the IPC in the representation that it has from the Marine Management Organisation membership within its own ranks to ensure that its voice is fully taken into account. I do not see why it is necessary to import socio-economic factors at this stage when we are trying to protect the marine environment.

There is a view that you can parcel up an area of the sea and allow within that area a variety of different activities that could include dredging and turbines for power generation, for example, and that somehow marine life will go on and accept these things and take them in its stride. Surely we have learnt enough already to know that that is not the case and that we need to emphasise as strongly as we can the need to protect marine life: marine flora and fauna. If that is not spelt out strongly enough, the Bill will be weakened, and, when it becomes an Act, many other voices will be heard and many other representations will be made and its whole objective will have been lost. I hope that, somehow or another, the Government will go back to their original concept and seek to give full power to the MMO to establish marine conservation zones and areas of the highest possible protection within those zones to ensure that our marine life has the opportunity to replenish and recover from centuries of depredation by mankind.

Lord Judd
I am very glad that the noble Lord, Lord Eden, has said what he has just said. I have a great deal of sympathy for the case which the noble Baroness, Lady Young, argued very moderately. When we are debating issues of this kind—I am sorry if I have said this before, but I feel it very powerfully—I always feel that the observation that we live in an age that knows the price of everything but the value of very little becomes appropriate.

My experience of dealing with environmental matters of this kind—in another setting, I sit in a meeting almost every month to consider planning applications in very special parts of our countryside and the rest—tells me that what the noble Lord has just said is very true; the forces of rationalisation for the economic case are always powerfully there, and we need very special provision in our legislation to protect what is special and what could too easily be eroded. I therefore congratulate the noble Baroness on having tabled her amendment, because what she said and what the amendment proposes, together with what the noble Lord has just said, will help to strengthen the resolve of my noble friends, who I believe are on the right side of the argument on this issue.

Another point always worries me in this kind of deliberation. The noble Lord, Lord Taylor, and the noble Earl, Lord Cathcart, are decent civilised men—none of us in this Committee would argue otherwise—but I am always intrigued by what doors we are opening to the future. There will not always be people who share our values in places of responsibility. We could move into an age when we have some pretty soulless charlatans at the helm, and we might inadvertently have opened the door to the destruction of what we all take very seriously: the protection of the very special elements of our heritage. When we consider legislation of this kind, I always think someone should think about that. Even long ago, in my days in the Government, it seemed to me that every Cabinet needed a special Cabinet Minister whose job was, in every debate, to say, “Well, that is all very well, but I am speaking for the next generation and the generation after that. And, excuse me, these are the possible implications for them”. We need to button up these things as tightly as we can, so that we do not inadvertently open the door to the erosion of what we hold dear.

What the noble Baroness has said is very important and I am glad that she is getting support from all sides of the Committee. I hope that the Minister will take what she said in the spirit in which she argued it and will determine that we will not open ourselves up to quite sinister dangers.

20:00:00

Baroness Miller of Chilthorne Domer
I agree with the sentiments expressed in this debate, particularly those of the noble Baroness, Lady Young of Old Scone. Her amendment starts to make amends for the weakness we still have in this Bill. It begins in the Long Title, which does not describe anything to do with nature conservation. It is a very functional description of activities at sea and so on. Nor do we have the purpose of the designation of the MCZs. Unless the Government spell out that purpose in some way, we will continue to have to have this sort of debate and the balance to be struck by the MMO simply will be that much more difficult.

Perhaps there are some misunderstandings of the fact that sometimes it will be completely reasonable to have no other uses in the MCZ. Some of the highly protected zones simply should exist—on our previous Committee day, I think the noble Lord, Lord Taylor of Holbeach, called it a pristine environment—as of right for everything that lives in the sea. That is why I am surprised to see his Amendment A139, which refers to the impact that designation may have on legitimate uses of the sea. Apart from pirates, we probably do not have many illegitimate uses of the sea. It implies that there is a gradation. The most legitimate use of the sea is probably that of the creatures which originally lived there and have to live there still. I hope that the noble Lord will come down on that side. Given the fact that we do not have a spelt-out purpose for Clause 114, I hope that the Government will look favourably on the noble Baroness’s amendment, which seems to be gaining consensus.

Baroness Carnegy of Lour
On a point of clarity, perhaps the Minister will tell us how this will look in Scotland. The noble Baroness, Lady Young, reminded us that, under the Scottish marine Bill, the inshore waters conservation zones will take account only of conservation issues. Presumably, when Scottish Ministers are considering inshore waters, they will develop the habit of thinking purely about conservation, and when they consider offshore waters, they and the Secretary of State for Scotland, who they will have to consult, will consider economic issues as well. Have the Government faced up to the fact that two different qualifications will apply from the point of view of Scotland? Do they realise that in Scotland the Administration in the Scots Parliament are making a great point of just talking about “our Scottish waters”? They completely ignore the differentiation when they are talking about it. There will be a curious situation which people will find rather hard to understand. Has this been discussed with Scottish Ministers? Have the Government realised the two different aspirations that they will be expected to have in the two parts of the sea?

Lord Livsey of Talgarth
I cannot resist speaking on Amendment A135A, which I agree wholly with the noble Baroness is absolutely crucial as to which way this Bill will go. In particular, I cannot think through this matter without thinking that it may be a recipe for conflict. The situation, for example, in the Severn estuary and the possibility of a large barrage, or not as the case may be, at present is being considered and is extremely complex. Let us put aside for a minute the generation of electricity and look at the area as a matter of conservation need. Unquestionably, it would be designated a special MCZ for special preservation. The number of SSSIs and the number of protection zones already in place, and the designation by the European Community as a special area, bring forward a very complex situation legally in that area.

If one looks at the economic and social consequences of producing a big barrage in the Severn estuary, clearly there will be economic benefits and a complex situation socially. Undoubtedly, it will bring south Wales and the west of England much closer together. One has to come down on one side of the argument or the other. The Conservative amendment to insert the word “must” will make it much more abrasive and make it difficult to protect a special conservation area of this kind. The Bill must give more powers to the MMO. I agree entirely with the noble Lord, Lord Eden, on that. He made his points extremely well in this respect. There is a case for removing subsection (7) of Clause 114 because if it is left as it is the steamrollers will move in.

The Earl of Selborne
Perhaps I may inject a note of caution to those who rightly are determined to make sure that this Bill is strengthened in its resolve towards conservation. In removing Clause 114(7), under Amendment A135A, I wonder whether quite the wrong impression will not be given, which gives conservation sometimes a bad name. Clause 114 says that,

“the appropriate authority may have regard to any economic and social consequences”.

That does not seem to be an unreasonable statement. It does not mean that conservation issues have to be overridden. To suggest that the fundamentalist approach that conservation, and only conservation, in these circumstances should be considered seems a dangerous statement to make. I think that perhaps I will simply not support the amendment proposed by the noble Baroness, Lady Young, but nor will I perhaps support my Front Bench in changing the word “may” to “must”.

Baroness Young of Old Scone
I wonder whether I could try again to clarify the provision that I was aiming for, which is not fundamentalist. The aim would be for sites to be designated on the basis of their conservation interest according to scientific evidence. That does not mean that there would be an absolute requirement for that conservation interest to be predominant in subsequent decisions. It would be open to people, through the normal processes of decision-making about development and socio-economic development and planning, to take the view that the economic proposition is more important than the nature conservation interest.

My worry was that if socio-economic issues were taken into account at the time of designation, the poor Minister would be bombarded with every possible socio-economic argument and it would be difficult for him to see his way through to protecting what, by abstract criteria, would be the optimum range of protected sites. However, that does not mean that by simply designating on the basis of their nature conservation interest, you have to be stuck in a straitjacket of protecting that nature conservation interest irrespective of any other consideration. That is the case when a planning application on an SSSI goes ahead, as a result of a planning process conducted by the local authority, which ultimately goes to planning appeal for the Secretary of State to make a decision.

Lord Taylor of Holbeach
Does the noble Baroness agree that bringing in the socio-economic consequences in the original designation process avoids the risk to a conservation zone at a later date? She appeared to advocate a formula for an assault on marine conservation zones, post their designation, for socio-economic purposes. I do not follow her logic. If marine conservation zones are meant to be properly established and protected, we need a process that takes all factors into account and makes them much easier to defend against future assaults.

Lord Judd
Before the noble Lord spoke, the noble Earl made a severe comment about the noble Baroness. I had the privilege of serving for several years under his chairmanship of committees, and there are few people in this House—I say this genuinely—for whom I have a greater admiration. However, because I admire him, I have to tell him that he is living in cloud-cuckoo-land. Would that the world were populated by people such as the noble Earl or those of the quality speaking for the Opposition on the Front Bench. But the world is not populated by such people. When the going gets going on these issues, it is ruthless. There are some real tykes out there who have no sense of the deeper issues to which we are committed; they are just out to make money. Let us call a spade a spade. They are ruthless. Unless there are firm safeguards in place, before we know where we are, everything will have been eroded and we will end up with a lovely urban development scheme right around our coastline. Of course I am exaggerating, but it seems that there is a danger in that direction. From that standpoint, there come times in our history when it is necessary to be tough and uncompromising.

The noble Baroness has done a great service to the House in reminding us of what we should be about. I am not asking my noble friends to accept her amendment simply as it stands but I am asking them to take seriously her concern—one that I share deeply—about the realities with which we may be dealing in the future and the need to stand firm.

Baroness Miller of Chilthorne Domer
We have such a blueprint for how to do this with SSSIs on land, which, after all, we have never designated other than because they are sites of special scientific interest. Yet it is in the way that they are managed afterwards that they succeed or fail. It will be similar for MCZs. The fact that they should be designated because they have some features that are worth protecting, as decided by the scientists, is surely unarguable. To continue with the land analogy, you could have a SSSI that was grazed, with a number of farming activities and recreation for the public, which might be closed some of the year—all the arguments that we heard during the passage of the CROW Act. Nevertheless, it is an SSSI and is designated as one. That is the model that we should be following, which is exactly what the amendment proposes.

20:15:00

Lord Howarth of Newport
The noble Baroness, Lady Young of Old Scone, is surely right to make her case as she has on the analogy of protection of SSSIs—as the noble Baroness, Lady Miller, has just underscored—but also on the analogy of our well established system of heritage protection, where the principle of the designation of heritage assets is made simply and solely on the basis of the historic or architectural importance of those assets. We then establish their value, which becomes a subsequent factor under consideration in the planning process. In the end, democracy is about the reconciliation of conflicting interests, but we need to establish securely what those interests are so that we can proceed to wider judgments about which interests the Government, on behalf of society, think should prevail. The approach of the noble Baroness, Lady Young, is right in principle and clear in practice. Moreover, it is based on very well tried and tested principles that are long established in planning law.

Lord Greenway
There is a danger that several noble Lords are speaking about sites that need maximum protection. That is all well and good, and we all agree with that. However, there will be a range of different sites. In those where less protection is needed, socio-economic interests will need to be taken into account.

Baroness Byford
I hesitate to enter this debate as it has clearly shown the difficulties that we face with this Bill. I cannot support the amendment of the noble Baroness, Lady Young, to delete subsection (7) from Clause 114. I have worked alongside her for many years and nobody is keener. Along with the many noble Lords who have spoken, I hope that I am a great conservationist as well. However, it would be unwise to delete that provision and have no regard for economic and social consequences.

I hesitate to say it, but over these past 12 or 15 years, those who are interested in pure conservation and have strong feelings about it have become very articulate, and I have no doubt that they will fight their corner with the Minister or whoever gives approval. They are not the underdog in this. The noble Lord, Lord Judd, was perhaps suggesting that they might be overridden, but I think that they are very robust people who rightly take a great interest in nature conservation. I do not fall into the camp which says they will not have their voice heard. On some of the other Bills that we have taken through this Chamber—the noble Baroness, Lady Miller of Chilthorne Domer, mentioned the CROW Act—I have been inundated with lobbying, and very vocal those representations were, too. It is not as though those people do not love nature or wish to conserve it—I ask noble Lords not to think that I am not one of them. But—and it is a big “but”—there needs to be a balance. Removing subsection (7) from Clause 114 would tip the balance too far the other way.

In some of the conservation zones, there may be no difficulty or conflict for the person taking the decision. In some areas, conservation may come up as a priority; in others, socio-economic factors will obviously override it. That balance will have to be struck whatever we do. If we removed subsection (7), I would be very concerned about it. I hope that people do not think that I am not keen on conservation, because I am, but if we remove subsection (7) we run the risk of creating a slightly unbalanced view in this part of the Bill.

Lord Hunt of Kings Heath
This has been a very interesting debate. I recall this as one of the central parts of our debate at Second Reading those many months ago, and understandably so. We have heard differing views expressed around the Chamber. It is always tempting in that situation to say that it shows that the Government have got the balance right. I shall certainly not resist that temptation, but I clearly accept that this is in a sense one of the most important debates that we shall have on the Bill. It goes to the heart of marine conservation zones, our marine environment and what it is for, and our intent to protect it. However, it also recognises that important socio-economic matters need to be taken into account when we consider the marine environment. In a sense, Clause 114 seeks to encapsulate that balance. The noble Lord, Lord Taylor, thinks that we have not got it right. He would like to see Part 7 moved up and become a factor in the work that is taken forward to consider in the first place whether a particular part of the sea should be conceived as a marine conservation zone. I shall say in a minute why we think it is rather better to do it in the way in which the Bill is constructed.

However, I want first to respond to the noble Lord, Lord Eden, who made an eloquent speech. He recognised the potential for conflict. I think that we have always understood that there are inherent tensions in the management of the marine environment. The Bill to an extent understands and seeks to reflect them, albeit within the overall intent to ensure that we do everything we can to protect the marine environment. The noble Lord said that the Government’s position has weakened. I am not aware of that. This Bill has of course had contributions from very many government departments; it represents the Government’s view and their commitment to protect the marine environment, but it also, as I said earlier, reflects the Government’s view that there are important socio-economic activities that take place within the marine environment, and may do so in the future, which have to be taken into account.

I very much enjoyed the contributions of my noble friend Lord Judd. I understand entirely what he meant when he said that we need around the decision-making table the presence of people who can say, “Well, it’s all very well for today, but what about future generations?”. Of course, the protection of our marine environment is very important for the future but so, too, are socio-economic issues. They are important and at the very least ought to be taken into account when the decisions are made.

I agree with the noble Baroness, Lady Byford—

Lord Judd
I am sure that my noble friend would agree that we have to keep in mind that the force of his economic and social arguments for the future well-being of society is for a decent society worth living in, of which environmental elements are a central part.

Lord Hunt of Kings Heath
My noble friend Lord Judd seemed to have an image of a network of marine motorways. He did not suggest that we should put our Titans there—he and I have debated Titan establishments in previous debates. That is not how I see it. Of course, it is about our future. All noble Lords who have taken part in the debate are concerned about the environment and understand the need for conservation. But we cannot ignore the fact that other activities that are also important to the future take place in the marine environment.

The noble Baroness, Lady Young, suggested that having received proposals and then having to look at Part 7, Ministers would be swamped by business interests that would make it very difficult for them to make a decision on designation. I do not underestimate the challenge of the decision-making that will fall on Ministers. That is surely why we believe that it is they who must make those decisions. We would hardly be bringing this legislation before the House were Ministers not determined to ensure that we do the right thing by the marine environment and that we designate zones and networks.

I agree with the noble Baroness, Lady Byford, that I do not see conservation bodies as being some sort of mild supplicants or underdogs in this process. I have seen the power of these organisations during the ever-lengthening debates on this Bill in your Lordships’ House. Ministers will make proper balanced decisions, and the way in which the Bill is set out allows them to do that.

Clearly, we want to provide more protection for some areas of our sea. We want to build consensus as far as possible among those with an interest in the sea, and it is important to make that point. Although there will be tensions we should not think that all the users of the sea and those interested in conservation will always be at war with each other. Surely we want to do everything we can to ensure that there is consensus and that conservation needs are fully considered. We also need to take into account the impact on people’s lives and livelihoods of designating marine conservation zones. I am going back to the wording, which I am glad to say is consistent with the wording in the Explanatory Notes to which the noble Lord, Lord Eden, referred.

Of course, there will be cases when the need for conservation will carry the greatest weight, but we should take decisions in the knowledge of what the impacts are likely to be. That is why in implementing the Bill, Ministers will expect an impact assessment to accompany each proposal for designation. There will be cases when there will be other options, when the conservation constraints are fewer, and it will be sensible to take account of socio-economic considerations in deciding where a site or group of sites should be designated.

For example, we might be considering a large area of representative habitat of which a small proportion is geologically suitable for wind-farm development. In that situation it might be appropriate to exclude that area from the proposed marine conservation zone area, particularly if it makes no difference in conservation terms. This part of the Bill is constructed so that we start with the case for conservation. I must admit that I disagree with the noble Baroness, Lady Miller; maybe we shall come on to debate this in future.

20:30:00

Clause 114 seems quite clear to me about the objective, because it clearly sets out how,

“The appropriate authority may make”,

a designation order—because,

“it is desirable … for the purpose of conserving”—

and goes on to name those areas. I refer again to Clause 119, on the,

“Creation of network of conservation sites”,

which sets out the condition. I realise that we have not set out a general objective, if the Committee likes, in drafting but it is quite clear from those two clauses what this is all about and what we seek to do.

Baroness Miller of Chilthorne Domer
I thank the Minister for spelling out how he sees it. I agree that the clause says what it is doing, but it does not say why. I simply said that it would be stronger if it were quite clear on the purpose of designating the MCZs. As the debate on the socio-economic angles and so on has shown, that purpose can tend to get lost in all of the arguments that must be balanced. That balance would actually be helped by having a clear purpose at the beginning, against which the arguments could be weighed.

Baroness Hamwee
Perhaps I may follow my noble friend. I have listened with interest to this debate, having been able to come back to this Bill after something of a gap. Clause 114 starts, as the Minister says, with a reference to the desirability of conserving; that is what is in the authority’s mind. It has to think about it in order to take the decision on taking further steps. However, at that point we depart from the list in Clause 114(1).

Lord Hunt of Kings Heath
I am grateful to both noble Baronesses for those contributions, but I am quite clear on the designation of MCZs and I think I just read it differently from them. It is quite clear to me what this is all about, and from reading the Bill,

“it is … for the purpose of conserving … marine flora or fauna … marine habitats or types of marine habitat … features of geological or geomorphological interest”,

et cetera. No doubt we can debate that; I think a later amendment goes into it in more detail. My point is that a clear process is described here, about the grounds under which an appropriate authority may make an order. We think it better that that authority goes through the proper process of considering that and then, in coming to a view on whether it is desirable to designate an area as a marine conservation zone, it may have regard to any economic or social consequence for so doing.

In other words, it is much better that the rigorous process is gone through in order to come to a view on designating a particular MCZ; at that point, “the appropriate authority” must, at least, “have regard to” the socio-economic impact. It is probably better to do it that way, in a sense, than to say right up front that that impact needs to be considered alongside conservation issues. I realise that there is room for argument here, but that is why we have constructed the Bill as we have.

This has been an interesting debate, but very few of the Committee have spoken to the detail of the amendments in the group. Unless I am pressed, I intend to conclude my remarks at this stage. However, if it would be helpful, I should be happy to write to noble Lords with detailed responses on those amendments unless noble Lords wished me to go through them.

Lord Tyler
I was going to suggest that the Minister might like to respond to the particular point about the Sandford principle, under Amendment A140. There is a general view that as that has been a constant thread during previous discussions in Committee, we should seek to find some way in which to incorporate it in the Bill. Perhaps the Minister would like to address that amendment.

Lord Hunt of Kings Heath
While I am very grateful to the noble Lord, Lord Tyler, on that, I must pray in aid the noble Lord, Lord Greenway, on that point, because I thought that he responded to it very well. The problem of adopting the principle in Amendments A140 and A140A is that, as I understand it—and I am happy to look at this further between Committee and Report—it implies that conservation objectives should always outweigh socio-economic considerations. From all that I have said, I do not believe that I can go down that route. There must be some discretion to be able to take account of socio-economic considerations. There may be some cases in which the socio-economic—

Baroness Young of Old Scone
I shall make one last attempt. The process of designation happens at a single point in time. It will happen once and then the site will be designated for many years, one assumes. At that point, the Minister will be expected to take into account socio-economic issues as they currently exist, whatever the propositions are to use the site for extraction, fishing, power generation, or whatever. The designation will last for however long. I do not know how old the SSSIs are, but they may be 30 or 40 years old, and there are economic propositions coming up that we could not have had any inkling of at the time of designation.

If you take the socio-economic conditions into account at designation time, you will be forced to try to project forward and anticipate the economic needs that are unthought-of at the time of designation. That is why it is quite dangerous to take socio-economic conditions into account at the point of designation. Yes, it can be done at the point of deciding what kind of management is going to be permitted and, yes, it can be done whenever a planning application comes up. It is perfectly possible for the Minister to make such balanced decisions in that regard—but the point of designation is absolutely the wrong time for socio-economic conditions to be taken into account. That is why to some extent either my amendment or something close to it needs to be brought in, along with amendments later in the Bill that make it clear that MCZs are not no-go zones.

Lord Hunt of Kings Heath
I fully understand what the noble Baroness means about MCZs not being no-go zones. I agree with her on that, but I do not agree with her on her general point—that because you cannot at any one point project years ahead, or at least it is very difficult to do so, this should not be a consideration. One should not see designation as a once-and-for-all decision, as it can be amended under Clause 118. So there is some flexibility there.

At the end of the day, I suspect that the House will not agree on this issue. At some stage, I am sure that it will be tested. I wanted to conclude by assuring noble Lords that including subsection (7) is not an attempt to undermine the essential protection of the marine environment. It is not an underhand way in which to ensure that commercial operators will get the upper hand at the expense of conservation. We would not be bringing this Bill before your Lordships if we did not believe in the importance of protecting the marine environment. But we cannot ignore the socio-economic impact that these matters inevitably bring to the fore, nor the economic importance of the sea. We attempt here to get a decent balance. I am not sure we are going to agree on this matter, but I wanted to assure noble Lords of the Government’s good intent.

Lord Taylor of Holbeach
I am very grateful for the Minister’s response to what has been a really good debate and one in which the argument has been genuine. I hope the good intent of all participants in the debate can be taken as granted. I suspect that some of the problems come from the fact that there is considerable variation—and we are a little uncertain about how it is going to work—of the degree of protection that might exist, both between different zones and within zones. The construction of a marine conservation zone and how it actually functions is not something which the Bill can possibly describe. So we are almost dependent on debate to try to find our way towards it. The noble Lord, Lord Greenway, mentioned this and the Minister has explained that marine conservation zones may not be absolutist. The noble Baroness, Lady Miller, reminded me that it was my use of the word “pristine” which was meant to describe the most highly protected marine conservation zone, or an area within a marine conservation zone. I hope I am right in seeing marine conservation zones in this way because it is going to be the most efficient way of setting them up.

The noble Lord, Lord Tyler, mentioned his concerns about the economic and social consequences, but none the less accepted that they were an important part of this issue. The whole House can accept that they will not go away. My noble friend Lady Byford said that she understood the need for balance on this issue. My own position is that I am not here as an advocate for the socio-economic consequences. I am here in order to try and make sure that we articulate the case for balance, which I think is the Minister’s position. Governance requires that advocacy of interest should be in the public interest and not in a cause. I am just as much against marine conservation zones being designated to a socio-economic agenda as I would be to them being solely designated on the conservation agenda. I am seeking to find a way whereby marine conservation zones can be considered durable and sustainable so that they are worthy of the investment made in them by those who believe in marine conservation. Socio-economic activities do exist in the sea and how they can be part of marine conservation is, surely, what the whole of this Bill is about.

I am very grateful for the support that my amendment has had in parts. I note the criticism and I believe it has shown how seriously the House is taking the Bill and this particular element of the Bill which lies at the heart of its purpose. In the nature of these things, I beg leave to withdraw the amendment.

Amendment A127 withdrawn.

Amendments A128 and A129 not moved.

20:45:00

Amendment A130

Moved by

A130: Clause 114, page 68, line 25, at end insert—
 “( ) seascape”

Baroness Hooper
In general, the approach and aim of the amendment that I and Members of the Committee of all sides have tabled is to conserve and enhance the marine environment by raising awareness of the importance of heritage, historic and archaeological considerations. Both Ministers who have answered two previous debates on these issues gave some comfort and useful explanation in support of the principle. For that, of course, we are duly grateful. So far, however, they have not been prepared to agree that this should be made clear in the Bill.

I therefore move Amendment A130, which would add “seascape” to Clause 114 as a separate ground for designation. By “seascape”, I mean an area of sea, coastline and land, the character of which results from the actions and interactions of land with sea by natural or human factors. This definition is based on the definition of “landscape” set out in the European Landscape Convention, to which the United Kingdom is a signatory. It is intended to reflect the fact that the convention embraces the seas as well as land. Adoption of our amendment would contribute to the fulfilment of the Government’s obligations under the convention, which is in itself an important point.

The amendment would ensure that, by broadening the purposes for which marine conservation zones are designated, our nationally important seascapes can be formally recognised. In so doing, we would ensure that the full breadth of the marine environment is protected within a truly sustainable framework contained in the marine plans in the Bill. The Bill relates to one, albeit important, dimension of the marine environment, about which we have just now heard a considerable amount: nature conservation.

However, the important point is that seascapes are not defined simply by the view. They embrace not only the natural world as expressed in terms of biodiversity and physical features, but also the human world in terms of historic and cultural heritage, opportunities for recreation and enjoyment, scenic resources—another way of saying “views”—and connections and associations between them. Amendment A131, spoken to on a previous Committee day by the noble Lord, Lord Tyler, also sought to do this, but perhaps in a slightly wider way. In support of the Government’s obligations under the European Landscape Convention, English Heritage has been undertaking a programme of historic seascape characterisation, the results of which should help the Government in reaching their conclusions.

The issue for coastal protected landscapes is that there is no means of recognising seascapes in statute. The current system of planning and management of coastal protected landscapes does not embrace the marine environment. There is an artificial divide between land and sea, with no recognition of the continuum between them that is so important for our coastal protected landscapes. The statutory management plans and development plans for these areas stop at the mean low-water mark, rendering them useless for planning and managing the special qualities derived from the marine environment. This is why we want to try to do something about it.

The Bill provides an opportunity to address the issue, but it does not provide a mechanism for designating seascapes, notwithstanding the indication in the marine Bill consultation of 2006 that a mechanism was under consideration that could protect, inter alia, important seascapes and views. This possibility was not followed through in the White Paper of 2007; however, it was indicated that important seascapes and views from land would be considered in the marine planning process, and that the United Kingdom’s marine policy statement could include objectives describing the importance of seascapes and views and how we wish to treat them. More detailed plans would allow us to consider seascapes and views in the context of the priorities for specific areas. While in some ways it will be important for the conservation of seascapes and views from land to be addressed in the marine plan process, the absence of any mechanism for defining our nationally important seascapes, including the seaward extent of our coastal-protected landscapes, is a fundamental weakness of the marine planning system proposed in the Bill that could so easily be put right if our amendment were accepted.

I suspect that the Government will deploy the argument that the marine planning statement and the marine plans will be the way that seascapes can be dealt with. I accept that this is one way of doing so and will welcome any statements from the Minister which make this clear. There remains the concern that there is no mechanism to designate nationally important seascapes without amending the Bill. Can the Minister explain why, during the consultation on the Bill in 2006, Defra seemed to think that seascapes could be dealt with by marine conservation zones—then called marine protected areas—and on what basis this was dropped? Also, how will the national importance of particular seascapes be expressed in the marine policy statement or in marine plans without any form of designation process?

I am troubled by the Government’s attitude to our amendments on these issues. There seems to be an assumption that it is not necessary to take advantage of this Bill to protect not only natural flora and fauna but also our marine heritage. Goodness knows it has taken long enough to reach these heritage amendments because of the extent of debate on other aspects of the Bill, suggesting it is not regarded as perfect as it stands in many respects. The noble Lord, Lord Greenway, said earlier that it will be a long time before we have another opportunity of a marine Bill and that is why we want to take full advantage of this one to do as much as possible to get our marine heritage protected. As the noble Baroness, Lady Miller of Chilthorne Domer reminded us, conservation issues are not mentioned in the long title and heritage issues are in the same boat.

There is considerable concern in your Lordships’ House on this issue and many organisations worry about the outcome of our deliberations. I will mention some because it is a distinguished group—the Campaign for National Parks, the Campaign to Protect Rural England, the Campaign for the Protection of Rural Wales, the English National Park Authorities Association, Europarc Atlantic Isles, the National Association for Areas of Outstanding Natural Beauty, the National Trust, the Welsh Association of National Parks Authorities and English Heritage.

The noble Lord, Lord Chorley, had hoped to be here to support the amendment, and he asked me to say that it has his full support but, unfortunately, he had to leave. There are many others who wish to speak in support of the amendment, so I should allow them to have their say. I beg to move.

Lord Howarth of Newport
I am extremely glad to follow the noble Baroness, Lady Hooper, who has so persuasively and powerfully moved the amendment, to which I have added my name. I owe a quick apology to the noble Lord, Lord Tyler, who gave us an extremely useful introduction to this issue when he spoke to what was in a different incarnation Amendment 106CA all that time ago; it was actually only last week. I was not cited on his amendment at that point, which I anticipated being grouped with this one at a later stage.

The noble Baroness, Lady Hooper—I regard her as a friend—has just given noble Lords a list of organisations that support her amendment. That is a very formidable body of expert opinion, which speaks on behalf of a very formidable body of public opinion. I hope that the Minister will take this issue with a corresponding seriousness.

The amendment adds “seascape” to an already bruised and battered Clause 114. It is not easy to arrive at a satisfactory definition of “seascape”. It is not straightforward, but it is not impossible. The noble Baroness gave a very useful definition, but she will not mind my saying that it is neither elegant nor precise. Noble Lords should not worry too much. It derives from the European Landscape Convention, and if it sounds like what it is—a translation of bureaucratic Eurospeak—I hope that noble Lords will not allow that to put them off, because it deals with an extremely important reality. As the noble Baroness suggested, to ensure that there is definition and rigour in our terminology and that we pin down this important reality, English Heritage has for some years been engaged in a programme called England’s Historic Seascapes, extending the methodology of historic landscape characterisation into the marine zone. The programme has addressed the challenges involved in compiling a GIS database to present an area-based view of the historic character of England’s coastal and marine zones.

The need for an informed understanding of the interacting cultural and natural factors bearing on any given area is as vital for the future management of marine zones as it is on land. I make the point, which the Minister must regard as valuable, that this work that English Heritage has been doing for some years has been funded by Defra through the Aggregates Levy Sustainability Fund. Pilot studies were made and have been evaluated, and the upshot is that English Heritage now has established a robust method for historic seascape characterisation. I understand that, thanks to the prospect of further ALSF funding which has been committed, by 2011 some 75 per cent of England’s seas and adjacent waters will have been studied using this method. As the noble Baroness said, it makes no sense whatsoever to persist with an artificial divide between land and sea in our policy for planning management and development control.

Consider how many areas of outstanding natural beauty, how many national parks and, of course, how many heritage coasts adjoin the sea and draw much of their special character from that relationship. One example is the Isles of Scilly, which the noble Lord, Lord Tyler, mentioned in a previous speech. I would add the north Norfolk coast, the Gower peninsula, the Pembrokeshire Coast National Park—areas which I personally know and love. The relationship between the sea and the land is crucial in all the aspects the noble Baroness mentioned. Yet, as she said, at present our statutory management and development plans stop at the mean low-water mark.

In the 2007 report on the inquiry into the proposed South Downs national park, the inspector recommended that consideration be given to statutory provisions that would allow marine areas beyond the mean low-water mark to be part of a national park. It is curious that the Bill omits to deal with this issue. As the noble Baroness reminded us, in the marine Bill consultation in 2006 the Government indicated that a mechanism was under consideration that could protect important seascapes and views. The White Paper in 2007 was a little more blurred but not discouraging. So what has happened? Why has this been left out of the Bill? This amendment is intended at the very least to jog the Government’s memory. In so doing I remind the Minister that the power already exists in Scotland to create coastal and marine national parks. We need equally for England statutory power to designate our finest and most important seascapes, including the marine dimension of nationally protected landscapes on the coast.

21:00:00

Baroness Miller of Chilthorne Domer
I was pleased to put my name to this amendment. I support what the two previous speakers have said. The noble Baroness, Lady Hooper, spoke of the interaction between sea and land. When we are legislating we should bear in mind that that legislation should be meaningful to the general population. Looking at this clause and what it designates, it refers to geological and geomorphological features, which are important, but seascapes, as described by the noble Baroness and the noble Lord, Lord Howarth, are what make it real to people. It is no coincidence that the BBC series “Coast”, which is now a long-running series on another channel as well, is so incredibly popular. It is no coincidence that, when the National Trust has had an appeal to buy bits of coast, hundreds of thousands of people have given some money. The area between land and sea is very special to them.

It is a gap in the Bill that it can refer to geology and geomorphology but not bring things together to refer to seascape. The noble Lord, Lord Howarth, mentioned the AONBs, the national parks and so on. Many of the AONBs got their designation primarily because of the seascape—primarily because of that interaction which is so exciting. I am lucky enough to live in one in north Devon and enjoy it every weekend. It never fails to excite, even if you walk only a very short part of the coast path. The Government are so right in having the ambition to bring the coast path to the whole country, as they are aiming to do with the Bill. What a shame it would be if it did that without recognising the important part that seascapes play.

Lord Judd
I warmly congratulate the noble Baroness, Lady Hooper, on introducing the amendment. I urge my noble friends to take it seriously in their response. I am sure they will. I should declare an interest as vice-president of the Council of National Parks. I remind my noble friends that one of the great achievements of the Labour Government after the Second World War was to introduce the national parks and put them into legislation. Central to that was a concern with landscape. The Bill is immensely important. It is a very good Bill, which I have warmly welcomed—any deliberations that we have had have simply been about how to improve it even further. It is an historic Bill. It would be very sad, when we are passing such an excellent Bill that has so much to be said for it, if we missed this opportunity of recognising seascapes.

We talk a great deal these days about what it is to be British and about Britishness. The great thing about Britain is that it is a group of islands. Characteristic of that group of islands—its reality—is the interplay between land and sea. We have a tremendous opportunity to get that reality—that creative, imaginative reality; that wonderful dimension, which is unique in some ways to the United Kingdom—into the heart of the Bill. I hope that my noble friends will take seriously the arguments that have been put forward so well and I look forward to their response.

Lord Livsey of Talgarth
I support the noble Baroness, Lady Hooper, who introduced this important amendment. I happen to have Pembrokeshire blood in my veins. The creation of the Pembrokeshire Coast National Park, to which the noble Lord, Lord Howarth, referred, was a great achievement. Its coastal path is about 180 miles long and is breathtaking in many respects. Some of my family originate from the small hamlet Amroth, from which you can see Tenby and the tremendous seascape at the start of the Pembrokeshire coast path. From there, around Stackpole Rocks, the whole of the Pembrokeshire coast is a magnificent thing. Even Milford Haven, despite its oil terminal and so on, retains a bit of a wild factor. Somehow or other that development has lived with the national park—sometimes precariously, particularly when gas is mentioned. That has been a way of achieving recognition of a seascape, and it is a wonderful heritage for future generations.

Lord Greenway
I have enormous sympathy with this amendment, although it contains a number of difficulties. We can all immediately think of half a dozen wonderful seascapes that should be preserved. Anyone who lives near the sea would feel that their view of the sea is of a seascape that should be preserved. The Government and other noble Lords will be aware that the proposed offshore wind farm site off the Jurassic Coast in Dorset has been moved nearer Poole. I am not certain whether that will please the rich residents of Sandbanks. From another point of view, it could be argued that the seascape from the Isle of Wight looking down over the Needles is particularly wonderful. How will that stand if a wind farm appears in the distance?

Lord Tyler
As the noble Baroness, Lady Hooper, and the noble Lord, Lord Howarth, said, we had a preliminary skirmish on some of these issues in a previous group, in which my Amendment A131 appeared—perhaps it was slightly peculiarly allocated. We did not use the word “seascape” because we were having some difficulty with it but very much the same sort of issues were raised.

I reinforce the point made by my noble friend Lady Miller. Many issues in this Bill will be of concern to a comparatively small minority. The major issues of conservation, fishing and so on are important but to a comparatively small minority. As the noble Lord, Lord Judd, said, we are now talking about issues that are of considerable importance to a huge number of our population. Some people think of the heritage of Britain in terms of us as a maritime nation—the interrelation between the land and the sea and the communities around our coastline; they are incredibly important to a huge number of people. It would be very sad if we thought of that as a less important issue than the scientific preservation of species in the marine environment. It is important to our nation that we recognise the significance of what the noble Baroness has inserted in this amendment—the seascape. It is not an easy word to define, but we all know what we are talking about. I strongly support the amendment.

Lord Taylor of Holbeach
I fully support my noble friend’s amendment and hope that the Minister will give serious consideration to it, and indeed welcome it. There have been few debates that have matched the poetry of the contributions of various Members. Even the noble Lord, Lord Greenway, waxed poetic about the view of Poole from the Isle of Wight, although he was less enthusiastic about the amendment.

The amendment would add greatly to the appeal and prestige of the Bill. My noble friend rightly raises a feature of the marine environment that gives enormous pleasure to a large number of people, as well as encompassing unique and valuable natural landscapes and features.

We have already discussed the difficulty of defining precisely where the UK marine area starts and the land stops. This is also a problem for conservation bodies based on land. Many features in need of protection straddle both land and sea, where current legislation does not extend. As the Minister has reminded us throughout our work in Committee, the Bill presents a rare opportunity to provide protection for our marine seascapes that will complement the existing territorial provisions. I hope that the Minister will listen carefully to my noble friend’s points, and reassure us that these features will be included in the Bill.

Lord Davies of Oldham
I am grateful to all noble Lords who have spoken to the amendment, and to the noble Baroness for moving it. I have noted the passion with which arguments have been advanced, and do not for one moment underestimate the importance of the issue. I note in passing that several noble Lords confessed to having problems with the definition of “seascape”. The proposal is to introduce the term into the Bill, but it is difficult to define and the noble Baroness’s gallant attempt did not meet with the complete approval of one of her keenest supporters on these issues, my noble friend Lord Howarth. I could almost feel him recoiling from the elegance of the language.

Lord Howarth of Newport
I assure my noble friend that I fully support the definition put forward by the noble Baroness, Lady Hooper. It is a serious point: the language was chosen because it draws precisely on the European Landscape Convention, which the Government have signed. It will not do for the Government now to say, “It is a bit vague, and not a perfect definition”. It is a sufficient working definition, and the Government have by implication committed themselves to its endorsement.

Lord Davies of Oldham
It is a working definition, but that does not mean that it fits into the Bill in the way that the noble Lord has indicated. The concept was a good deal vaguer than that, and the definition lacked elegance. I hear what my noble friend says when he insists that he supports the principle: I do not for one moment suggest otherwise. I was just sharing with him a slight hesitation about the inelegance of the language. That is because it was designed for another role, not for the purposes of definition in the Bill. The landscape quality objectives—as expressed in the language of Europe—were to be implemented through the Council of Europe.

21:15:00

This Bill is more precise than the rather vague exhortations contained in that definition. Yet when all noble Lords, who have thought seriously and with great passion about this matter, come to the definition which will fit within the Bill—I listened carefully to every speech—I heard no answer. Inevitably in its prescriptions, the Bill has aspects of clear definition. How could it be otherwise when the Bill is premised on the assumption of serious scientific evidence? That is the basis of this conservation measure. Most of the time, noble Lords, speaking with great passion, are equally assertive about the precision and scientific basis of the conservation measure which this represents. Therefore, they should not be surprised if, from the Dispatch Box, I am somewhat reluctant to take on board an amendment which introduces one concept called “seascapes”, when it is not entirely clear how we would define that in legislation and we certainly do not have an amendment which does that. We could enjoin on the Government the concept, “Let them find a definition”. Of course, in general terms, we accept the principle put forward with regard to the Council of Europe, but we too have difficulties with this.

I present the other problem. I listened very closely to what my noble friend Lord Judd said—it always pays to listen carefully to my noble friend. I heard what he said about the national parks. I think the noble Baroness, Lady Miller, reinforced the point, as did the noble Baroness, Lady Hooper. When has it been suggested that the national parks, created as my noble friend said by a most reforming and radical Government after the Second World War, have been under threat because they do not have a definition of “seascape” from their perspective? It does not exist in legislation and I am not sure that noble Lords have proven the case for it to exist in this legislation. A great deal of thought is needed before the Government can be persuaded on this point.

National parks have not been threatened. The noble Lord, Lord Livsey, took me on a little tour round the Pembrokeshire Coast National Park. I walk round the coastal pathway of Cornwall; I have been to Snowdonia; I have been to areas where the national parks are contiguous with other land; I have even been to an area which I do not think is a national park, but my noble friend Lord Howarth is quite keen on it; namely, the Norfolk and East Anglian coastline. Has anyone suggested that any of those areas is under threat—that it cannot protect its interests or cannot protect its areas of outstanding natural beauty because it does not have a definition of “seascape”?

Baroness Miller of Chilthorne Domer
Perhaps I may give the Minister an example. We are talking about seascapes as a reason to designate an MCZ. Let us suppose that seascape is under threat because there is a lot of dredging of aggregates and the sand on the beach starts to shift. The Minister talks of East Anglia where he knows the speed with which the sand can shift at places such as Woodhenge and along the whole East Anglian coast. That seascape can be altered by natural events, but also by manmade activity. The manmade activity in that case is very likely to alter the seascape. That is one example. I could give the Minister about 50 more but I shall not detain the Committee. We are talking about designating the MCZ in order to protect the seascape, which would do a lot more than protecting a geological feature, for example, which is less under threat, although the Government have correctly seen fit to put that in the Bill.

Lord Davies of Oldham
I hear what the noble Baroness says. She is obliged to say that the shifting of the sand might in any case be natural and nothing to do with manmade constructs, but she is also forced to recognise that if there is a question of manmade constructs with regard to the shifting of the sand, they would be for other objectives, even for preserving the land on which people would need to stand to enjoy the seascape. In those terms, if the noble Baroness will forgive me, we come back to the issues that the noble Earl, Lord Selborne, introduced in the previous amendment; namely, the wide considerations that we have to take into account with regard to the Bill. It may be necessary to include such socio-economic factors and aspects in the Bill. They were ably defended by my noble friend during the debate on the previous amendment. I merely want to indicate that due regard has to be given to the fact that there are considerations beyond the aesthetic concept of a seascape. I would be the last person to suggest that there are not very important aesthetic qualities to the views that we all experience and enjoy, but that is a little different from talking the language of conservation, which the Bill is about.

I want to emphasise that the national parks and other conservation organisations on land are strong enough bodies to make sure that the perspectives that people enjoy are defended. The noble Lord, Lord Tyler, emphasised that a large number of people enjoy these perspectives and views and value the national parks. Anyone or any authority concerned with the Bill has to have regard to the interests of the national parks in those terms. We would not dream of producing a Bill that set the position of national parks at anything except important.

Lord Livsey of Talgarth
Does the Minister accept that the Pembrokeshire Coast National Park was designated because of its seascape?

Lord Davies of Oldham
The noble Lord will recognise that I am arguing that national parks are bodies with such a proud record of defending our heritage, the beauties of our landscape, the views to sea and—it goes without saying as far as the national parks are concerned—the views from the sea to land that it would be absurd for it to be contended that they need this defence in the Bill, which is primarily directed towards other objectives in conservation, or that their interests would not be taken into account. It is obvious that we cannot develop the policy without having due regard to the land authorities that are contiguous with the sea. I am merely saying that in areas of outstanding natural beauty and in the parks, it is not conceivable that a proposal could come forward for a conservation zone that did not take into account the interests of the national park.

My noble friend was right, as he usually is on these matters, when he said that these issues were mentioned in earlier marine Bill documents, especially the marine planning and marine nature conservation sectors when we dealt with the White Paper a few years ago. They may not be mentioned in the Marine and Coastal Access Bill, but the Bill derives from the White Paper, and they will be part of the Marine Management Organisation when it starts to develop its marine plans. I want to give the Committee every assurance that it is not conceivable that the Marine Management Organisation could do its job properly without them.

Lord Tyler
I am following the Minister as best I can, but he seems to be advancing two quite different arguments. First, he says that it is impossible to define the seascape, and he has poured a lot of cold water on the definitions that some of us have attempted; but now, if I understand what he has been saying in the past few minutes, he is giving the Committee an assurance that the MMO and the authorities will, in the designation process, take full account of the particular considerations that we have all been arguing are important. He cannot have it both ways. Now I have given him an opportunity to read all the interesting notes that have been coming from the Box, I hope that he will be able to give us a more substantial answer.

Lord Davies of Oldham
My answer has been substantial, logical and coherent with regard to a number of issues that have been raised in this debate. First, the defences for areas of outstanding natural beauty and the position of the national parks are not inadequate. Secondly, it is extremely difficult to specify seascapes in legislation. The noble Lord, I notice, has not taken on that particular challenge. I will give him time. After all, there will be other stages to the Bill: that is, if we ever get to Report. One sometimes wonders in which month in 2009 we will get to Report, but we will eventually get there, so we will have another chance to rethink this matter.

I emphasise that the Bill is primarily a conservation measure that is based on very clear aspects of scientific evidence. The problem with the seascape—in no way, shape or form is the aesthetic any less important than the scientific—is simply that its definition belongs in a different Bill. That is not the objective or purpose of this Bill.

I emphasise that the Government are concerned about the protection of areas of marine beauty, the messages about which have come through loud and clear this evening. We had an earlier debate on these issues, which the noble Baroness, Lady Hooper, presented with her usual clarity and force. The debate was substantial. The concepts will be included in the high-level marine objectives that underpin the development of the marine policy statement. The statement has to set out all the policies on the marine environment, and the plans will address the interests and concerns of all those who are connected with the sea. However, that is different from putting alongside the precise, scientifically based concepts of the Bill a concept that is much more difficult to define and which is not scientific but aesthetic. Within that framework, I do not have the slightest quarrel with the objectives of the amendments. Far from it; I enthusiastically endorse them. I have no reservations about them whatever, and I speak on behalf of the Government. I am saying merely that they do not fit into the clause because the clause is based on an objective that is different from the objective that noble Lords are introducing at the moment.

I realise that this is difficult, because I am saying no to those who are arguing most benignly for something that everyone in the Committee values and wishes to see protected and enhanced. However, I am also defending the necessary integrity of this legislation, and noble Lords will have to make a great deal more progress on seascapes before the Government think that the case has been made for adding this concept to the clause.

21:30:00

Lord Judd
I hope my noble friend will accept that some of us earnestly hope that the noble Baroness will bring this proposition back on Report. My noble friend is a very accomplished parliamentarian. He is a parliamentary craftsman who loves the art of assembling the arguments to demolish a proposition. He will forgive me as an old friend for saying that sometimes he gets a little carried away by it. Sometimes his best friends, of whom I want to regard myself as one, want to say to him, “Come off it”. My noble friend knows perfectly well what a seascape is. He knows that in our literature, poetry and history, seascape has been a central and living concept. He goes on and on about the precise scientific measurements of other elements of conservation. Is he really saying that as a nation we have given up on spirituality, imagination and vision? Why can we not encompass these dimensions of our life in this Bill? They are of so much importance to so many people.

I hope that the noble Baroness will come back with this proposition on Report and that, in the mean time, my noble friend will use his, in some ways, unequalled parliamentary skills in getting to work with the draftsmen and his officials to say that this is something so wonderful in our heritage that we have to find a way of recognising it and putting it in the Bill.

Baroness Miller of Chilthorne Domer
It should be quite easy for Defra as the sponsoring department to come up with something. After all, it has produced a fine, complete document on coastal zone management, which has plenty about the concept of seascape in it. I am sure that it is well up to helping, if that is necessary and if the noble Baroness, Lady Hooper, would welcome it, to define this further. I am sure that it has been giving considerable thought to this matter.

Lord Davies of Oldham
I am grateful to the noble Baroness, but I am even more grateful to my noble friend for his admonishment. I will merely note that in his factual, accurate and dispassionate description, he suggested that I should introduce an element of spirituality into this Bill, which presses me a little far. I want to emphasise that there is no way in which the development of the work of the Marine Management Organisation can occur without it taking into account exactly the concerns that have been expressed in this debate. Nor would the Government want it any other way. We share with all Members of the Committee exactly the propositions so accurately defined by my noble friend, which I was humbly seeking not to repudiate but to demonstrate government support for. I am seeking to identify that this amendment fits ill with this clause and the basis of the premise of the scientific approach which we need to conserve. Therefore, as ever with amendments, the Government can be expected to accept amendments only when the case has been made, and the case has not been made.

Lord Howarth of Newport
What is the Government’s view of the status of the commitment to the European Landscape Convention, which embraces seascapes? Does that constitute a material planning factor? Is it justiceable? In what sense does it matter and count? How does that separate commitment, which the Minister insists should not be part of this legislation, sit alongside it and in relation to it?

Lord Davies of Oldham
I have to say to my noble friend that it sits alongside rather than being integral. It is not expected that a measure concerned with aspects of marine conservation and the evidential base on which we have to do that work, as advocated by my noble friend, will fit within that framework. However, I will not convince noble Lords from this Dispatch Box tonight. I can read the signs. I am only too well aware, as my noble friend Lord Judd indicated, that I have not taken him very far. He is not alone; most Members of the Committee are sceptical about the Government’s arguments. Therefore I will write to noble Lords about our commitment, as far as concerns seascapes, in relation to Europe. Despite the awkwardness of the definition, I will write on that point and make sure that noble Lords are well informed about that dimension before we reach Report stage. On that basis, I hope that the noble Baroness will feel that she can safely withdraw her amendment and keep her ammunition for another day.

Baroness Hooper
I am grateful to noble Lords for their warm support of this amendment. Short as it was, one tiny word has engendered a great deal of comment. I am sorry about the difficulties over the definition. I made a stab at it and was not trying to suggest that it was perfect. The fact that no definition of “seascape” exists does not mean that someone should not invent one. There have been many occasions when definitions have not existed and parliamentary draftsmen have succeeded in producing ones with which I was not at all happy.

The Minister said that he accepted the principle of the amendment and from that I suppose I must draw a crumb of comfort. However, the suggestion that the amendment does not fit into this clause was certainly grasping at a straw when the noble Lord was running out of other arguments. When we come to the coastal access provisions, it will become clear that the benefit of seascapes is what the coastal access provisions are about.

While I am on that subject, it was suggested at Second Reading that this was two Bills in one—the coastal access provisions had been added to what had been a separate consideration of the marine environment. I suggested that maybe it should become three Bills in one and that if we were successful in adding the amendments relating to our historic heritage and its protection, that would be the result.

The noble Lord, Lord Judd, said that this is an immensely important Bill. It is and therefore it is also important that we cover as much ground as possible and ensure that our marine heritage is protected. I will read Hansard, await the letter promised by the Minister and certainly return to the subject to please the noble Lord, Lord Judd. In the mean time, I beg leave to withdraw the amendment.

Amendment A130 withdrawn.

Amendments A131 to A134 not moved.

Amendment A135

Moved by

A135: Clause 114, page 68, line 32, leave out subsection (4) and insert—
 “(4) The reference in subsection (1) includes, in particular, a reference to conserving any species, marine habitats or types of habitat or features of geological or geomorphological importance that are rare or threatened because of—
 (a) the limited number of individuals of that species, or limited occurrence of those habitats or features of geological or geomorphological importance;(b) the limited number of locations in which that species or those habitats or features of geological or geomorphological importance are present;(c) the vulnerability of that species or those habitats or features of geological or geomorphological importance to specific human activities.”

Lord Taylor of Holbeach
My amendments in this group probe the drafting of subsection (4) a little further and emphasise the important role that credible science must play in the designation of the MCZs. The alternative version of subsection (4) that I have proposed in Amendment A135 highlights the ambiguity of defining vulnerability by counting the number of individuals in a species or locations where they flourish. Does the Minister intend these numbers to refer to a limited number in the UK marine area or in the world as a whole? A species might have relatively few individuals present in the UK marine area merely because it is on the edge of that species’ natural range. What scale is a location considered to have? If there are numerous examples of a certain type of marine fauna occurring all around the UK, but it is relatively rare in the rest of the world, will we seek to conserve its numbers yet further in our waters?

Vulnerability can indeed be completely separate from numbers. There may be a large presence of a species which is not particularly rare but is particularly vulnerable to a type of disturbance; for example, starfish or worms, which are particularly affected by large-scale excavation of the seabed.

Why are marine habitats and geological features excluded from being classified as rare? A particular type of habitat that supports an unusual diversity of species that might not be individually threatened is surely as worthy of protection as a depleted species.

I am sure that these questions will be answered with common sense, but ambiguity of this kind and the difficulty of finding precise definitions make it that much more important that decisions are based on sound science criteria. We have had a similar debate already on the decisions of the MMO. The same concerns are just as applicable, if not more so, here.

In making decisions about designation, the appropriate authorities are likely to find themselves besieged with representations from more or less impartial stakeholders, more or less informed public pressure groups and more or less benign political pressures. It is critical for the success of the ecological network that those do not lead to unscientific, if more popular, decisions. I beg to move.

Baroness Byford
I shall not detain the Committee except to express support for my noble friend’s amendments, particularly his Amendment A137, which would include sound science among the criteria.

Lord Hunt of Kings Heath
I am grateful to the noble Lord, Lord Taylor, for raising two very important points. First, he was very clear that we need to be sure that we understand what is meant in this part of the Bill and I very much agree with him. I think noble Lords are sometimes disappointed by the Government’s response to amendments when we say that we understand why the amendments are proposed but that we worry that they will leave the Bill less clear. I also echo the noble Lord’s point about the need for decisions to be very firmly based on the science that becomes available. He then asked a number of interesting questions about what we meant by “limited number”.

On Amendment A135, we believe that by providing site-based protection for fauna or flora through designation of marine conservation zones, we shall protect their habitats when necessary. We think that the diversity of habitat is dealt with by subsection (5). On features of geological and geomorphological importance, our intention is to protect sites which are of interest. This mirrors the approach on land, where features of interest can be notified as sites of special scientific interest. The wording is deliberate. Whether something is of interest can be easily determined, but whether it is important is probably a matter of opinion and may well be hotly debated. More than that, we do not wish to lose features that are undoubtedly interesting but whose importance perhaps we do not yet appreciate. We think it best to retain the breadth of the current draft.

21:45:00

In relation to limited numbers the noble Lord raised an interesting question. I take it that in general it relates to the UK. It is entirely a proper matter to be taken into account. It indicates that there has to be some flexibility, but I would resist being pressed into finding a definition of what we mean by limited. We need to leave it to common sense. Amendment A135 would include a reference to vulnerability to human activities. I hope that I can reassure noble Lords that the concept of a species being threatened already captures its vulnerability.

In deciding on the objectives of a marine conservation zone and restrictions placed on it, the appropriate authority must take into account first and foremost sound scientific evidence. I know that the noble Lord, Lord Taylor, in proposing Amendment A137, is keen to ensure that by inserting the words “sound scientific criteria” alongside “economic or social consequences” they will be considerations that may be taken into account. Undoubtedly the Government want to take account of the best available scientific evidence in making designations. Scientific considerations will underpin the whole process of site selection and designation from start to finish. The regional projects that are currently being established to advise on site selection will draw on scientific information from all available sources, including data from industry and sea users. The regional groups will also receive advice and guidance from a national scientific panel of independent and recognised experts who will soon be appointed.

I hope that I can reassure the noble Lord that our firm intention is to make available the best possible use of scientific data. I do not see how the provisions in Clause 114 could be carried out unless the best scientific evidence that had been made available was fully taken into account. We fully take account of the concerns raised by the noble Lord today.

Lord Taylor of Holbeach
I thank the Minister for his response and for the way in which he has dealt with these amendments. As he rightly says, they are a matter for resolution by common sense. However, there are interesting issues of principle on the whole business of population protection when numbers come in. Many things that are quite plentiful may still need to be preserved to maintain the ecology of a particular climate. I speak as a land-based individual with an interest in horticulture and botany. The noble Lord knows my business interests. In analogies with land-based natural environments, plenteousness does not necessarily mean that such populations are not valuable and not in need of protection. This is a much more complex matter than can possibly be legislated for. By seeking to put science into the Bill I wanted to try to make sure that decisions were as objective as possible. I sought to emphasise the great complexity of arguments that have to be considered in terms of individual species. I beg leave to withdraw the amendment.

Amendment A135 withdrawn.

Amendments A135A to A140B not moved.

Clause 114 agreed.

Clause 115: Further provision as to orders designating MCZs

Amendment A141

Moved by

A141: Clause 115, page 69, line 31, at end insert “, and
 (c) must make provision for the marking of the designation on charts, GPS systems and, where necessary, on the surface of the sea.”

Baroness Miller of Chilthorne Domer
This amendment adds to the list of things about which orders must be made when designating marine conservation zones, and suggests that there must be some,

“provision for the marking of”,

marine conservation zones,

“on charts, GPS systems and, where necessary, on the surface of the sea”.

That is important inshore, where some heavy use of marine conservation zones may be allowed and, more particularly, where the licensing of such zones has been highly restricted so that almost nothing is allowable. If I take as a model the existing zone around Lundy—one of the very few examples that we have—you are not even allowed to drop your anchor there.

If there is to be a series of marine conservation zones all around the coast, which shipping will have to observe, which divers should observe and which both commercial and recreational interests must have knowledge of then they will, at the least, have to know where they are because they will be expected to abide by the zone rules. They have to be able to see what is where—for example, where they can drop anchor and where they may not even be allowed to go. They might have to observe other sorts of limitations; some boats, for example, still empty their dirty water into the sea. I should hope that would not be possible, particularly within the special conservation zones where the ecosystems are deemed to be vulnerable to such things. There are all sorts of reasons for having them clearly marked.

The Minister will know, as he kindly organised it, that I met with his Bill team, who explained to me that there would be difficulty in marking these zones on the charts because the chart-producing companies—I presume that means the Hydrographic Office, but there may be others—are not in public ownership. Having mulled it over, that does not seem a good reason to me for not marking them. I believe it absolutely essential for both commercial and recreational interests that some form of marking takes place, at least on paper and GPS, while in certain areas—particularly in high-use areas—it may be necessary to put buoys, for example, on the surface of the sea.

It is commonly understood that where a buoy is off a headland, for example, it is saying, “Do not go inside this buoy; you have to stay to its seaward side”. That is common knowledge for all sea users, and it would be quite easy to develop a similar system for MCZs.  What would be unforgivable would be to introduce them very quietly or invisibly, so that nobody really knew where they were. I beg to move.

Earl Cathcart
The noble Baroness, Lady Miller, has advanced an excellent amendment here. I am very pleased to be speaking to it, as I did not think that I would be contributing to this Committee.

Clause 113 enables the appropriate authority to designate marine conservation zones. The discussions around MCZs have raised many issues during this Committee. We have not always been in agreement about the best way to designate the zones, but across the House the clear intention is to make sure the zones are drawn up in the best way to maximise their potential to fulfil the requirements of this Bill. However, we have not yet addressed how people who use the marine environment, for work or recreation, will know when they are entering or leaving MCZs.

I absolutely agree with the noble Baroness that it is of vital importance that these zones are marked in an obvious manner which is easily accessible to those who use the marine environment. The rules and regulations surrounding MCZs will mean very little if they are not adhered to because of general ignorance about the precise location of the zones themselves. The Joint Committee reported that it, too, was unclear about how the MCZs would be marked and identified. Without this clarity, it will make successful enforcement very difficult. The boundaries will need to be clearly marked and the type of conservation objective for each zone clearly identifiable. What are the Government's plans in this regard? Does the Minister think that charts, GPS systems and marking on the surface of the sea will be the most effective way of marking the zones, or does he have another cunning plan? If so, could he tell the Committee?

Lord Greenway
I support this amendment—indeed, I have raised the subject of marking the conservation zones on a number of occasions, including only last Thursday. I also raised it in the joint scrutiny committee.

There are problems associated with this, because of the different degrees of conservation in the various zones. I certainly think that the highly protected zones should be marked not only on charts with notices to mariners and, possibly, by buoys—although then it becomes a question of who is responsible for laying the buoys, whether it is Trinity House, a local authority or a harbour authority. There are problems, too, with the innocent passage of shipping and yachts, even in some highly protected zones. It may be quite possible for a small ship or yacht to transit that zone, even if it is not allowed to anchor. Charts at the moment carry certain areas where there is no anchoring—where there are submarine cables or naval exercise areas, for example. It is important that the whole idea of marking the zones is thought about very carefully, and I support the amendment.

Lord Davies of Oldham
I agree with the noble Lord’s last point—that these issues will have to be considered very carefully. The issue is whether the amendment is necessary for that careful consideration to be carried out.

Clause 121 already gives public authorities such as the United Kingdom Hydrographic Office a duty to further the conservation objectives of sites in carrying out their functions. When there is a need to mark sites on charts, they will therefore be under a duty to take whatever steps are appropriate, provided that it is compatible with their functions. So we respond to the amendment by saying that of course the concept behind it is important but we think that the Bill already provides adequately.

What primarily appears on navigational charts is, of course, driven by safety criteria, as the noble Lord, Lord Greenway, would have emphasised if he had spoken at greater length. Chart compilers are, frequently, in possession of a large amount of information from which they choose those features they judge to be critical for safety. The art of producing a good chart is to avoid cluttering it with information which is not essential to the navigator’s task. I am sure the Committee recognises the significance of that point. We delight in the fact that Admiralty charts have a worldwide reputation, precisely because they are well judged with respect to what is necessary and what is not.

22:00:00

Therefore, the Bill does not need to contain specific powers for the marking of sites, but they will be marked on Admiralty charts where it is necessary and appropriate. As an example, the existing marine nature reservation around Lundy, which the noble Baroness, Lady Miller, mentioned, is currently charted. A text note refers mariners to Admiralty sailing directions where they can find out more information on Lundy. The noble Baroness questioned whether there were other suppliers; there are indeed. GPS systems are produced by a number of commercial suppliers using data provided by the Hydrographic Office or unofficial providers. They should continue to have commercial discretion to display whatever information they think is relevant to their customers, because the customers will soon find out and the worthwhile quality of what has been provided will become general knowledge. The point is that people are more likely to be interested in knowing where restrictions apply which directly affect them than in knowing the location and boundary of the marine conservation zones. They are going to be interested in those matters which affect the pursuit on the sea which they are following. Some say sites may be designated which will require no restriction on mariners at all. It is therefore difficult to see that mariners would be particularly interested in knowing where those sites were, if there is nothing within the site which affects the navigation they are involved in.

It is also important to remember that by-laws might apply to only part of any marine conservation zone, or might extend beyond the boundaries of the zone where it is necessary to protect features within the site. This subject is not easy. The noble Lord, Lord Greenway, indicated that there are difficulties with regard to these concepts, and I am reflecting that point.

With regard to the physical marking of sites, I am informed that the laying and maintenance of buoys in the open sea is very far from straightforward. Therefore, Natural England has hardly, if ever, used its existing powers in relation to marine nature reserves and European marine sites. If an NCZ needs to be marked, we would expect the MMO to take the action—with the agreement of Trinity House, which has overall responsibility in these terms—but we would not need to specify a particular power or duty in the Bill to achieve this.

I am not disagreeing with the noble Baroness’s intent in exploring this point in relation to her amendment. She sought the reassurance that I hope that I have given from the Dispatch Box—that this has been considered very carefully. There are a whole range of quite difficult issues with regard to the designation, but we have the powers and the structure which will guarantee that, where it is necessary for the sites to be charted and even, in some circumstances, where features need to be marked, the powers exist. I hope, therefore, that the noble Baroness will feel confident enough to be able to withdraw her amendment.

Baroness Miller of Chilthorne Domer
I thank the noble Lord, Lord Greenway, and the noble Earl, Lord Cathcart, for their support for the amendment. I recognise that it is a tricky subject. Of course, it cuts both ways. It may be marking where the restrictions are but, at the same time, it may be marking where the zones are, because they are areas where the public would go to observe some of the natural history of which we have spoken, some of the really interesting things that they can see. It is not just about marking restrictions, but about marking interesting things.

I will read carefully what the Minister has said. I am almost convinced that this does not need to be in the Bill, but would like to double check that before Report. In the mean time, I beg leave to withdraw the amendment.

Amendment A141 withdrawn.

Clause 115 agreed.

House resumed.

House adjourned at 10.05 pm.