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House of Lords

Monday, 22 April 2013.

2.30 pm

Prayers—read by the Lord Bishop of Exeter.

Introduction: The Lord Bishop of Truro

2.37 pm

Timothy Martin, Lord Bishop of Truro, was introduced and took the oath, supported by the Bishop of Exeter and the Bishop of Worcester, and signed an undertaking to abide by the Code of Conduct.

Iraq: Chilcot Inquiry


2.41 pm

Asked by Lord Dykes

To ask Her Majesty’s Government whether they will hold discussions with the administrators of the Chilcot inquiry into the Iraq war to ascertain a date for publication.

The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford): My Lords, the Government do not have any plans to hold such a discussion with the Iraq inquiry. Sir John Chilcot advised the Prime Minister last July that the inquiry would be in a position to begin the process of giving those subject to criticism in the report the opportunity to make representations by the middle of 2013, and that the inquiry would submit its report once that process had been completed.

Lord Dykes: With thanks for that Answer, can the Leader of the House reassure the House on a very important point—that high official circles in the UK and the US have not sought to interfere with the independent findings of the Chilcot inquiry, especially on the crucial decision to go to war together?

Lord Hill of Oareford: I can give that assurance. It is extremely important that this inquiry is independent; it was set up very deliberately to be independent and it must have that independence. It must consider the evidence that it has and reach its conclusions, which we will all be able to see in the fullness of time, but it must have a free hand to do that.

Lord Morris of Aberavon: My Lords, having been involved in the setting up of some public inquiries, I have noticed a tendency for them to be longer and longer. I understand the need to collect all the material evidence, and for all due processes to take place. In future, if any public inquiry is set up, should not a time limit be imposed and, furthermore, an extension granted only in exceptional circumstances?

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Lord Hill of Oareford: I understand that point. However, with some of these very big inquiries it is difficult to be absolutely clear at the outset about what a suitable length of time is. It is right that the Chilcot inquiry on Iraq has been able to follow the leads that it feels it needs to follow, and had the time to do that. On the more general point about inquiries, I am sure the noble and learned Lord will know that one of the post-legislative committees that this House will set up in the new Session will look at the operation of the Inquiries Act 2005 and ask exactly these kinds of questions about whether we can learn lessons about the conduct of these inquiries, whether they can be done more quickly, their cost and so on.

Baroness Williams of Crosby: My Lords, I was one of those in this House who was perhaps most extensively and intensively involved in the whole of the Iraq issue—the invasion of Iraq and the situations that arose from the post-victory occasions, including the involvement of many contractors in the building up or otherwise of Iraq after the war. While I fully take the points made by the Leader of the House into careful account, it is also the case that the lessons to be learnt from an inquiry—and the lessons to be learnt from this are probably among the most important of all—depend a little on the passage of time between the findings of that inquiry and the use of those lessons to affect policy. I ask him to bear in mind, as he considers this, the gap between the necessary and right attempt to give people the right to respond, but also the importance of the conclusions for the future work of this Government’s policy as well as the policy of the Opposition.

Lord Hill of Oareford: I agree with the points my noble friend makes. To be clear, the timing of this inquiry is set by the inquiry itself. The Government have not set a timetable and we are not seeking to rush it. It must take the time. However, I take the point that we need to learn the lessons and that it has to be within a reasonable timeframe.

Lord Foulkes of Cumnock: My Lords, could the Leader of the House tell the House how the Government will take account of the conclusions and recommendations of the Chilcot inquiry on Iraq in deciding their policy on Syria?

Lord Hill of Oareford: First, we need the report to be concluded. Then, as the Chilcot inquiry has made clear, there needs to be a process whereby those people who are mentioned in the report have the chance to comment on it. Then the report will be published. Then everyone in this House, as well as the Government, will be able to draw the conclusions from the Chilcot inquiry, wherever that takes us.

Lord Hurd of Westwell: Could my noble friend inject a little urgency into this process? The furthest we got from him today was that we would have the benefit of the report in the fullness of time. In our experience, the fullness of time is fairly full.

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Lord Hill of Oareford: We all know that certain formulations have a certain elasticity, and I take his point. The most recent pronouncement from the Chilcot inquiry itself is that it hopes to finish the report by the middle of this year. Then the process—the formal word is “Maxwellisation”—of giving individuals the chance to comment would follow. That is what the inquiry has said is its current expectation of the timetable to which it is working.

Lord Butler of Brockwell: My Lords, does the Leader of the House agree that the terms of reference of the Chilcot inquiry are so wide as to be almost infinite, and that the timing of the report’s publication depends not just on the handling of the representations but on the Government’s own clearance of what is to be included in the report? Will he undertake that that process will be done as quickly as the Government can manage?

Lord Hill of Oareford: I take both those points. On the Government’s co-operation with the declassification of documents as the process goes on, the Chilcot inquiry has said on the record that that process is working well. I know that the Government will co-operate as closely as they can to expedite that process of declassification as rapidly as possible.

Baroness Symons of Vernham Dean: My Lords, can the Leader of the House tell the House what is the period within which the people mentioned in the report have to respond to the report?

Lord Hill of Oareford: I am not able to give a precise timescale for that because that will, by definition, depend on what the findings of the report are, what the criticisms of individuals are and how long that process will need to take. However, I am sure that Sir John is as keen to publish his report, so that we can all see it, as everyone in this House is to get it done.

Female Genital Mutilation


2.49 pm

Asked by Baroness Cox

To ask Her Majesty’s Government what information they have on the number of instances of female genital mutilation carried out in the United Kingdom in the past 10 years.

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach): My Lords, the prevalence of female genital mutilation in the UK is difficult to establish because of the hidden nature of the crime. However, the Government are absolutely committed to tackling FGM and protecting the 20,000 girls who a 2007 study estimated were at high risk of being subjected to FGM in England and Wales each year.

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Baroness Cox: My Lords, I thank the Minister for his sympathetic reply. Is he aware that in 1983 I supported a Bill outlawing female genital mutilation in this country, which was strengthened by further legislation in 2003, but that according to research currently as many as 65,000 women living in this country have suffered FGM? It is feared that some may have undergone the procedure here and others sent abroad for the practice, but there has not been a single prosecution. Therefore, what effective provisions are being undertaken urgently to protect the estimated 30,000 girls currently at risk in this country?

Lord Taylor of Holbeach: I congratulate and thank the noble Baroness for her support in tackling this abhorrent form of abuse. The law alone cannot eliminate this practice, as I think noble Lords will agree, but it needs to be properly enforced, of course. The Government welcome the CPS action plan to address barriers to securing a prosecution. They have also funded some front-line organisations to encourage communities to abandon the practice themselves, issued multi-agency guidelines to support front-line professionals and published a statement opposing FGM.

Lord Walton of Detchant: My Lords, is the Minister aware that in the 1980s, when I was president of the General Medical Council, that council decreed that any doctor registered with the GMC who was found to have carried out the operation of female genital mutilation would be subject to the full disciplinary procedures of the GMC and would be accused of serious professional misconduct? Just as there have been no convictions, as far as I am aware there have been no references to the GMC of doctors accused of carrying out this procedure. How can that be explained?

Lord Taylor of Holbeach: It is difficult to explain except in terms of the very secretive nature of this crime and the unwillingness of victims to come forward. The noble Lord has rightly pointed to the key role that health and social services can play in providing support for communities in seeking to rid this country of this abuse.

Baroness Rendell of Babergh: My Lords, some months ago the Director of Public Prosecutions undertook to appoint a committee to produce a report on female genital mutilation, in all its aspects, in the United Kingdom and to publish it in the summer. May we know when that report is likely to appear because, as has been mentioned, there has never been a prosecution and the practice continues as it has done for about 25 years? Is it not time that we had this report so that we could look forward to something being done to put an end to this horrible practice?

Lord Taylor of Holbeach: I am sure that I reflect the sentiment of the whole House in thanking the noble Baroness for her interest in this matter and her engagement with it. The Government are not happy with a situation in which there have been no prosecutions. We are pleased that the Director of Public Prosecutions is engaging with that. We are working closely with the

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Crown Prosecution Service and we hope that the report of which the noble Baroness speaks will be made public and that we can build our strategy on it.

Baroness Trumpington: My Lords, this was the first work that I had to do when I held the office that the Minister holds today. When I tried to talk about this subject to the people involved, they said, “If you try to stop us, we’ll do it on the kitchen table”. Am I right in thinking that this kind of thought still exists among the people who wish to continue this horrible practice?

Lord Taylor of Holbeach: We know that there are some strong feelings on this issue. Indeed, yesterday there was a report of a campaigner being abused by people who disagreed with her. This is not an easy subject. It is a hearts and minds issue, so we have to influence these communities and encourage them to recognise that there is no religious or medical basis for this abuse of young people and it should stop. I can assure the House that the Government take it very seriously.

Baroness Gould of Potternewton: I am pleased to hear how seriously the Government take this issue. How much funding are they initiating in order to train teachers, nurses, health workers and carers to recognise when there is a possibility of FGM happening and when it has taken place? Also, how is that funding being distributed across the country? I declare an interest as the president of FORWARD.

Lord Taylor of Holbeach: I am very grateful to the noble Baroness for her involvement with FORWARD, which presented a key report that identified the 66,000 possible victims of this abuse. The amount of money spent is within individual department budgets, but there is a specific £50,000 budget dedicated to ensuring that this matter is fed across departments and that leaflets are produced. The Government are spending £35 million in countries where this practice is prevalent, in seeking to change the cultural background against which the abuse occurs.

Lord Chidgey: On that very point, my noble friend is possibly aware that, since 1997, DfID-supported anti-FGM education and empowerment programmes have led to some 5,500 communities in Senegal abandoning FGM. What discussions is the Minister’s department having with DfID to establish the impact of the success of those programmes on British African communities in the UK, particularly with regard to Somalia, where 98% of young girls are still mutilated, placing thousands of Somali girls in this country at risk?

Lord Taylor of Holbeach: My noble friend has identified Somalia as a particular area of concern. We are working very closely across all government departments. I think it is clear to noble Lords that the only way we can achieve progress is by using all the levers available to us: government departments; communities; and, through DfID, the overseas cultural base of this practice.

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NHS: ECMO Machines


2.58 pm

Asked by Baroness Gardner of Parkes

To ask Her Majesty’s Government whether extra-corporal membrane oxygenation (ECMO) machines that are capable of restoring heart functions some hours after an apparently fatal heart attack are in use in any NHS hospitals; and, if not, what consideration is being given to their installation.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, the equipment and facilities to undertake cardiac ECMO support are available in all five NHS adult cardiothoracic transplant centres in England and in the five national respiratory ECMO centres, three of which share a location. Provision of cardiac ECMO support is a complex intervention with significant risks attached to it. A cardiac ECMO service requires a fully trained team to be available around the clock and does not consist of simply purchasing the medical equipment.

Baroness Gardner of Parkes: That is very good news and I thank the Minister for it. It is desirable to have these facilities available. Does he agree that the group which would benefit most of all from this would be young people who die suddenly and unexpectedly, often in the sporting field? This is a much greater tragedy for families than the more usual cardiac attack at a later age. Should not more publicity be given so that people involved in those activities know that such facilities are available? You could get a young person by helicopter to one of those centres within the number of hours that your life would be prolonged for.

Earl Howe: My Lords, there is, I understand, no intervention capable of restoring heart function some hours after a heart attack. The only exception is not applicable to heart attacks but to people who have had circulatory arrest due to hypothermia—for example, people who have been buried in avalanches or immersed in very cold water. That area is currently being researched. It is only in a very limited number of circumstances that ECMO support can improve a patient’s chances of survival following cardiac arrest—usually in patients who suffer in-hospital cardiac arrest following surgery.

Lord Patel: My Lords, as the noble Earl indicated in his opening remarks, a typical facility required in the provision of a service such as ECMO for adults who suffer acute myocardial infarction would include a perfusionist, intensive care facilities, an intervention cardiologist, a cardiologist expert in cardiac failure, a cardiac surgeon, together with specialist nurses. Preliminary results of studies suggest that the survival rate might be less than 30%. Does the noble Earl agree that more research is needed before such a treatment can be made available routinely?

Earl Howe: I fully agree. The noble Lord is quite right. ECMO cannot be provided by just any ICU team. It is a highly specialised treatment with significant potential for serious complications, and considerable

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expertise is therefore required, including having a multidisciplinary team of the kind that he outlined. In general, capacity has much more to do with having suitably trained staff than with having the equipment itself.

Lord Hunt of Kings Heath: My Lords, I refer noble Lords to my health interests. On the question raised by the noble Lord, Lord Patel, about evidence, would the noble Earl consider referring this to NICE for its expert advice?

Earl Howe: I shall certainly take that idea away with me, but I think that there is broad consensus among the medical community that the key to success with ECMO is getting the patients connected to the equipment quickly. Although it is a moving scenario, all the evidence so far suggests that ECMO confers no benefit if some hours have elapsed since the cardiac arrest.

Baroness Jolly: My Lords, services that need ECMO machines would currently, in the new world, be commissioned by NHS England. Will my noble friend explain to the House what role, if any, the department now has in commissioning such services?

Earl Howe: My Lords, the department itself no longer has a role in commissioning highly specialised services. NHS England is implementing a single operating model for the commissioning of 143 specialised services. That replaces the previous arrangement whereby 10 regional organisations were responsible for commissioning specialised services and, to be frank, there were wide variations in the standard of those services. The new operating model represents a significant change to the previous system and should result in better outcomes.

Baroness Masham of Ilton: My Lords, is the Minister aware that Glenfield Hospital in Leicester, which has ECMO, saved many lives in the swine flu epidemic last year and does more than just hearts?

Earl Howe: I am fully aware of that. Glenfield has been leading the development of ECMO services. It is one of the biggest ECMO centres in Europe. It is currently the largest provider of children’s ECMO in the country, treating about 70 paediatric ECMO patients a year, and now provides an adult service.

Baroness Knight of Collingtree: My Lords, can my noble friend clear up a point of confusion that may have arisen about his first Answer to this Question? It was reported in the Times newspaper by the science editor that people could be brought back from the dead up to seven hours after their hearts had stopped. Is that a report on which we can lay much credence?

Earl Howe: My Lords, my advice is that in most cases of cardiac arrest that is not possible. Where there has been circulatory arrest in the particular conditions that I described, such as immersion in very cold water, the heart can in some circumstances be restarted, but I would not wish to excite noble Lords’ interest in this

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technique without proper evidence. I am afraid that the article, which I did see, raises people’s hopes perhaps unfairly.

Lord Bach: My Lords, can we take it from the answer that the Minister gave two questions ago and the praise that he rightly gave to Glenfield Hospital in Leicester that that ECMO unit will not be closed down?

Earl Howe: My Lords, as the noble Lord knows, that decision is interdependent with the decision around the Safe and Sustainable review of children’s cardiac services. Until that issue is determined, it is not possible for me to say what will happen to the children’s ECMO service at Glenfield.

UK Industry: Competitiveness


3.05 pm

Tabled by Lord Haskel

To ask Her Majesty’s Government what steps they are taking to improve the competitiveness of United Kingdom industry.

Lord Peston: My Lords, on behalf of my noble friend Lord Haskel, and at his request, I beg leave to ask the Question standing in his name on the Order Paper.

Lord Popat: My Lords, the UK economy is recovering from the most damaging financial crisis in generations. The Government are putting in place the right policies to deliver balanced and sustainable growth in the UK. That will take time. We are already seeing some progress. Between 2010 and 2012 the UK climbed from 12th to 8th in the World Economic Forum’s global competitiveness index.

Lord Peston: My Lords, noble Lords are stuck with me because my noble friend is in hospital and I hope that they will join me in wishing him a speedy recovery.

Noble Lords: Hear, hear!

Lord Peston: My Lords, given the massive size of the current account deficit—almost unprecedented—would it not be to the advantage of our country to improve the competitiveness of UK industry if the external value of sterling fell drastically?

Lord Popat: My Lords, the external value of sterling fell from 2007 to 2009 and led to modest growth in exports. The impact may have been negated somewhat due to global demand weakness, especially in the European Union, which is our largest export market. Evidence suggests that export growth is driven more by changes in foreign demand than by price competitiveness or other factors.

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Lord Bilimoria: My Lords, would the Minister agree that we are all very proud that a British university, Cambridge, has won more Nobel prizes than any other university in the world? However, would he also agree that that is in spite of this country underfunding research and development expenditure as a proportion of GDP? We spend less than both the EU and OECD averages. We spend half of what a country like South Korea spends. Do the Government not believe that we should be targeting to spend a proportion of GDP at least equivalent to the EU or OECD average to maintain our competitiveness? Otherwise, we are going to be penny wise and pound foolish.

Lord Popat: My Lords, this issue has been raised by the noble Lord in the past. Education is our fourth largest export earning. I agree with the noble Lord that we need to spend more money both on research at universities and on further investment in training provided by businesses. I will take the noble Lord’s point into account and will be happy to ask my colleague in the office to write to him to see what investment we are making in research at our universities.

Lord Forsyth of Drumlean: My Lords, could my noble friend explain why there has been a dramatic fall in the value of the pound and yet our export performance is pretty poor? What is the explanation for that and what can be done about it?

Lord Popat: My Lords, the value of the pound is determined by the international market. The fall in exports is mainly due to the current economic crisis, not just in the UK but in Europe as a whole. Half our exports are to the European Union and there are real issues in the European Union. The currency changes that take place quite often have a limited impact due to the very high import content in our exports. Hence any depreciation or the value of the pound going down will not have real impact on our exports.

Lord Barnett: My Lords, as competitiveness is not going to be helped in any way by the Chancellor changing his fiscal policy, despite the strongest advice from people he depended on until recently, such as the IMF, can we take it that he will now be totally dependent for improving anything at all on help from the new Governor of the Bank of England through increasing monetary policy, even though it may hurt current inflation?

Lord Popat: My Lords, the Chancellor has the right policies in place to reignite our economy, growth and competitiveness. We are supporting SME exports and have allocated a huge amount of money for infrastructure investment, including some for regional growth. We are encouraging the free flow of funds from the Bank and fiscal consolidation. With regard to the International Monetary Fund, we cannot recover or be competitive without addressing the huge debt that we have incurred over the past 10 years. Our most important priority is to see how we reduce our national debt.

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Lord Hamilton of Epsom: Does my noble friend accept that the key to competitiveness is competition, and that this therefore makes it extremely difficult to improve competitiveness in large nationalised monopolies such as health and education?

Lord Popat: My noble friend raises a very important issue. In both health and education, there is very much a monopoly. We use the private sector in areas where it can deliver real value for money for taxpayers.

Succession to the Crown Bill

Third Reading

3.12 pm

Clause 2 : Removal of disqualification arising from marriage to a Roman Catholic

Amendment 1

Moved by Lord Cormack

1: Clause 2, page 1, line 6, at beginning insert “Notwithstanding the continuing statutory requirement that no Roman Catholic can succeed to the throne,”

Lord Cormack: My Lords, this is the third time that I have raised this subject on the Floor of the House and I hope that my noble and learned friend will feel that this amendment is more modest and more acceptable than the two previous ones. The background is that the monarch in our country is also the Supreme Governor of the Church of England. Whether we use a modern or—as I personally prefer—a traditional liturgy on Sundays, and whenever we pray for the monarch, we pray for the Queen as the Supreme Governor. Because of the importance of this, and of establishment in our country, many of us feel that this Bill, to which we do not take exception in its main provisions, ought to have in it a recognition of this basic fact.

This modest amendment seeks to make explicit what is already implicit. When he replied to my amendment on Report, my noble and learned friend Lord Wallace of Tankerness—with whom I have had a number of discussions on this matter, for which I am extremely grateful—made quite plain that the monarch could not be a Roman Catholic, even though this Bill allows for successors to the Crown to marry Roman Catholics. This amendment does not in any sense cut across that and does not make any reference at all to the gender issue, which has been accepted throughout the House and in another place. What it very modestly seeks to do is to insert the following few words before Clause 2:

“Notwithstanding the continuing statutory requirement that no Roman Catholic can succeed to the throne”.

Then, of course, the clause continues, as in the Bill, stating that,

“a person is not disqualified from succeeding to the Crown or from possessing it as a result of marrying a person of the Roman Catholic faith”.

Therefore, there is absolutely no alteration to what is in the Bill. The amendment merely seeks to tackle what the right reverend Prelate the Bishop of Guildford said in his speech on Report about ambiguity. He gave an encouraging account of ecumenical relations and

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we were extremely grateful to him for that. Towards the conclusion of his speech, he also recognised that there was a continuing degree of ambiguity and expressed the hope that that could be tackled, either in the Bill, in an exchange of letters or in some other form.

3.15 pm

This modest amendment before your Lordships’ House this afternoon seeks to take up the challenge of clearing up the ambiguity issued by the right reverend Prelate the Bishop of Guildford. It also seeks to meet the points raised by other colleagues in different parts of the House, that we have within the Bill something that recognises the facts as they are. Effectively, all it seeks to do is to translate into legislative form many of the sentiments voiced by my noble and learned friend the Minister in his wind-up to the previous debate. For instance, he said:

“The important point is that the sovereign be a Protestant ... That is the position. The Act of Settlement also requires the sovereign to be in communion with the Church of England”.—[Official Report, 13/3/13; col. 286.]

That is it. As I said earlier, this amendment makes explicit what is implicit, and I do not think that it is such a change as to necessitate consultations with the other realms over which Her Majesty reigns. It is a recognition of the sovereign’s particular and important role within the established church and it is in that spirit that I move this amendment and hope that the Minister will be able to accept it. I beg to move.

The Lord Bishop of Guildford: My Lords, the noble Lord, Lord Cormack, has made generous and kind reference to my contribution on Report and I do not intend to labour and repeat the detailed comments that I made to the House on my understanding both of Roman Catholic canon law and realistic pastoral practice in the case of mixed marriages. I thought afterwards that here was a Church of England bishop getting up with the temerity to talk about what the Roman Catholic Church teaches and does. Therefore, I thought that I had better write to Archbishop Vincent Nichols and ask whether my contribution, as recorded in Hansard, was the case.

I have a letter in my hand from Marcus Stock, general secretary of the Catholic Bishops’ Conference of England and Wales, on behalf of the Archbishop. Speaking in that capacity, as well as in a Westminster capacity, Marcus Stock gives me full permission to share this letter with the noble and learned Lord the Minister. I have indeed done that; he may wish to make reference to it himself, and to earlier conversations with the Cabinet Office. That will presumably come out a little later.

I simply say that the exposition of what I understand to be Roman Catholic official teaching in canon law, and the pastoral and flexible practice in terms of the Roman Catholic rules over the upbringing of children in mixed marriages is completely confirmed in the letter that I have received. It was also his clear indication that this should be passed on to the Minister, which I have done. So I will not take up more of your Lordships’ time but say simply that what I said on Report is indeed the case in terms of Roman Catholic law and

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practice. I believe that should give some assurance with regard to the important matter raised by the noble Lord, Lord Cormack.

Lord Cormack: Of course, the right reverend Prelate and I have discussed this privately and in the company of others. Does he accept that the incorporation of this amendment into the Bill would in no way cast any different doubts or cause any problems with what he has just referred to?

The Lord Bishop of Guildford: I do not believe that that would be the case. Of course, it is up to your Lordships’ House to reach a decision on the amendment should the noble Lord, Lord Cormack, press it.

Lord Lea of Crondall: My Lords, is it not the case that when the right reverend Prelate the Bishop of Guildford made his statement previously, one or two of us asked whether that could somehow be put on the record in a more secure form? Is this not exactly the sort of way in which it could be put on record? Surely that sort of gloss, understanding or undertaking—however one wants to express it—by the Roman Catholic Church is worth more than an amendment, and I hope that the noble Lord, Lord Cormack, will perhaps consider that to be the case.

Lord Deben: My Lords, I hope that my noble friend Lord Cormack will think again about this amendment. It is a very difficult situation—we are where we are—but if you read the Act of Succession, you see words which none of us in this House would like to see applied today to Her Majesty’s Roman Catholic subjects, all of whom pray for Her Majesty every Sunday and every Mass. It is very difficult for us to take what is a piece of rampant discrimination. Frankly, for many of us, particularly the ex-Anglicans, the whole concept of a secular monarch being Supreme Governor of the Church of England is very odd, but we are where we are.

I merely ask my noble friend not to rub this in by adding yet more to it. Let us accept that both sides have come to what is an uneasy compromise in a world which thinks utterly differently. If you read the Act of Settlement, you have to wonder what the rest of the world must think about us tinkering with something that frankly ought not to be part of the constitution of the United Kingdom because it does not have anything to do with our view about equality and difference in a society such as ours. It is because of our history and we understand that and do not want to raise that, but please let us accept where the Government are.

I urge my noble friend not to press this. It is bad enough anyway. This merely makes it worse, and it would be helpful for my noble friend to recognise the degree of reticence on the Roman Catholic side on this issue, for many years and again now. Following the great wisdom that we have heard from the right reverend Prelate, this seems to be the moment to let it lie and to withdraw this amendment.

Lord Trefgarne: My Lords, I take a slightly different view from that of my noble friend Lord Deben and indeed have some sympathy with the amendment proposed by my noble friend Lord Cormack. As I see it, the Bill

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in its present form paves the way, possibly, for the heir to the Throne and hence the occupant of the Throne to be a Roman Catholic—although I know that there are other provisions that prevent that—and at the same time Supreme Governor of the Church of England. That seems to be an absurdity which has not been addressed by the Bill although it was pointed out in earlier stages.

I am happy to be told that I am entirely wrong in all this, that I have misunderstood that it will not happen and that there are ways and means of preventing it, in which case that is a good thing. That said, the position of the Roman Catholics as described by my noble friend is an important one, which likewise needs to be taken into account. I shall have a little bit more to say when we get to the Motion that the Bill do now pass, but for the mean time I address my remarks only to the amendment of my noble friend.

Lord Janvrin: I declare an interest as a former member of the Royal Household and I pay tribute to the desire of the noble Lord, Lord Cormack, to see this important point discussed in this House. What has just been said about making explicit what is implicit is important, but this amendment is not absolutely necessary. There are three reasons for that.

First, as has just been stated, we are where we are, clearly, with the Act of Settlement and the law of the land that the monarch must be in communion with the Church of England. Secondly, we have heard on several occasions that whereas there is legal certainty about where we stand in terms of the Church of England, the Catholic position on mixed marriages is more flexible and nuanced in its term that it is a pastoral matter. That is important. Thirdly, there is a precedent. There is a mixed marriage in the Royal Family where the children have been brought up as members of the Church of England.

My concern is that if we in the United Kingdom start introducing amendments that are not absolutely necessary, there may be desires in other realms to do the same and to start unravelling what is a most important piece of legislation that will strengthen the monarchy. I hope that in considering whether to go ahead with this amendment we can bear in mind that we must not allow a compromise across the realms to be undermined for the sake of something that is nice to have but not absolutely necessary.

Lord Fellowes: My Lords, in the light of the reassuring words of the right reverend Prelate the Bishop of Guildford, I wish to speak only for a moment on the subject of this amendment. I find very little fault with it. The fault that I do find is not in the amendment but in the effect it may have in reopening debate on others of the Queen’s realms. That may possibly give rise to other amendments that we would find less welcome. I have sympathy with the amendment and the motives behind it but I must say that I am not able to support it in this instance.

Lord Luce: My Lords, I am sure that the Minister will have concluded that raising the legislation with the other realms would create considerable complications.

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If I understood the noble Lord, Lord Cormack, aright, he was making it plain that the purpose of this amendment was to try to remove any misunderstandings that may still exist about the position of the Roman Catholic Church in connection with the children in line of succession arising from a mixed marriage.

In the debates that we have had over past few weeks, not least on Report, there has been considerable clarification. The Minister has said a lot more since the Second Reading and above all the right reverend Prelate the Bishop of Guildford has set out very clearly what he perceives to be the position of the Roman Catholic Church. The only thing that is missing is a clear endorsement of its position, as expressed by the right reverend Prelate, by representatives of the Archbishop of Westminster, or by the Archbishop himself. Given the remarkable progress that has been made in relations between the Church of England and the Roman Catholic Church it would be helpful to have that endorsement. I hope that the Minister can help us in that regard.

Lord Stevenson of Balmacara: My Lords, like several noble Lords who have just spoken, I take the view that this would insert into the Bill an unnecessary recital with no legal force. It would have the complication, as has been mentioned, of making it more complex and difficult to obtain agreement among all the 16 realms that need to agree to the proposals.

The intention of the noble Lord, Lord Cormack, is to seek further reassurance that despite the removal of the ban on Catholic marriages, no Catholic could ever succeed to the throne. He and others have made this point with some force throughout our debates. However, I wonder, as the noble Lord, Lord Deben, said, whether we are not pushing too hard on this point. Obviously the case has been made in an attempt to ensure that the Anglican supremacy is preserved. However, all that it serves to do is push our attention further toward the fact that the removal of the ban on Catholic marriages—obviously a welcome measure in itself—exposes the religious discriminations that remain. That is, no one who is a Catholic or who is not in communion with the Church of England can succeed to the throne.

It has been said that we are where we are, and I have some sympathy with that. However, we as a Parliament will need to return to some of these points in the not too distant future.

3.30 pm

The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, I understand that in tabling the amendment my noble friend Lord Cormack sought to put beyond doubt the requirement that the sovereign be a Protestant and in communion with the Church of England. I readily recognise the concerns expressed by my noble friend; at every stage of the Bill, he has clearly sought to find a means of addressing them. I readily acknowledge that this amendment is, to use his words, more modest than those that he moved in Committee and on Report. However, as has been indicated in our short debate, the Government believe that it is unnecessary as both the Bill of Rights and the

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Act of Settlement are unambiguous with regard to the requirement that the sovereign be a Protestant and in communion with the Church of England.

The Bill does not pave the way to change that. No one who is not in communion with the Church of England may ascend the throne. That rules out Roman Catholics as well as many other people. I have concerns that by attempting to reiterate this, and to single out the peculiar and particular prohibition on Roman Catholics, one risks causing offence. I am sure that that was not intended, but one does risk causing offence to many of Her Majesty’s loyal subjects when there is no good reason in law to do so. I do not believe that we should put into a Bill words that could cause unnecessary offence and reopen wounds. It has also been said that the amendment is unnecessary in law and could therefore lead to other jurisdictions that have responsibilities in this regard putting forward amendments and unpicking an agreement that has been very carefully constructed across the realms over a considerable time.

As the Supreme Governor of the Church of England, the sovereign must be both Protestant and in communion with the Church of England. For this reason, we are not removing the bar on Roman Catholics acceding to the throne, as set out in the Act of Settlement and Bill of Rights. Of course, we have heard expressed in a number of our debates the perceived problem of the heir to the throne marrying a person of another faith. That problem exists under present law; it is not one created by the Bill. Clause 2 merely provides parity of treatment between Roman Catholics and people of all other non-Protestant faiths.

Nevertheless, I have recognised and understand the profound concerns that have been expressed. As the House knows, following a commitment made in Committee, I met Monsignor Stock on behalf of Archbishop Nichols and the Catholic Bishops’ Conference of England and Wales to discuss this matter. As the right reverend Prelate the Bishop of Guildford indicated, Archbishop Nichols indicated that the wording had been discussed with the Cabinet Office. I have the specific consent of Monsignor Stock to say that he was speaking on behalf of Archbishop Nichols as president of the Catholic Bishops’ Conference of England and Wales, and can inform the House that the view taken by the Catholic Church in England and Wales is that in the instance of mixed marriages the approach of the Catholic Church is pastoral. It will always look to provide guidance that supports and strengthens the unity and indissolubility of the marriage. In this context the Catholic Church expects Catholic spouses to sincerely undertake to do all that they can to raise children in the Catholic Church. Where it has not been possible for the child of a mixed marriage to be brought up as a Catholic, the Catholic parent does not fall subject to the censure of canon law.

Lord Trefgarne: Would it be possible for a copy of this letter to be placed in the Library of the House?

Lord Wallace of Tankerness: My Lords, this was not a letter, it was a form of words that was agreed between Monsignor Stock and the Cabinet Office that

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I have placed on the record. There was a letter to me from the right reverend Prelate the Bishop of Guildford that enclosed a copy of a letter that indicated what I have just said. I do not believe that it is in my gift to say that it will be placed in the Library, but I reassure my noble friend that I have just used the words that were in that letter. I thank the right reverend Prelate the Bishop of Guildford for his contribution to our debates, both today and on Report, and for what he did following Report in engaging further with Monsignor Stock and the Catholic Bishops’ Conference of England and Wales. Indeed, on Report the right reverend Prelate, in a speech that I believe was very helpful to the House, concluded that the teaching of the Catholic Church on this matter,

“bears out the Government’s assurance that the Roman Catholic rules are not a block to the smooth functioning of the proposed succession rules”. —[

Official Report

, 13/3/13; col. 282.]

As I have stated both in Committee and on Report, we have a very clear signal that the overriding concern in Catholic pastoral guidance to couples in mixed marriages is the unity and indissolubility of the marriage. We have an equally clear signal from the Church of England, included in their briefing note to Members, that:

“The present prohibition … is not necessary to support the requirement that the Sovereign join in communion with the Church of England”.

Again, I recognise the concern with which my noble friend moved his amendment. I reiterate that the requirement that the sovereign be a Protestant remains as solidly placed in law as ever. In this context, I invite him to withdraw his amendment.

Lord Cormack: My Lords, I am grateful to those who have taken part in this brief but, I think, important debate. I listened with particular care to the speech of the right reverend Prelate and, of course, to what my noble and learned friend said. I believe that we have gone some distance in our three debates. We now have certain statements on the record that I believe are helpful to those of us who have concerns but are in no sense anti-Roman Catholic. My noble friend Lord Deben knows that when he left the Anglican Church to become a Roman Catholic, I honoured him for that decision. A similar decision was made by Miss Ann Widdecombe. I myself agonised at that time although in the end, instead of joining the Roman Catholic Church, I found myself elected to the General Synod to take the place that my noble friend had vacated.

I believe very much in the importance of our established church. However I may die, whether as an Anglican or as a Roman Catholic, I hope that the Church of England will continue as the established church of England. It is because of that, and because our constitution, as has often been said, is like a beautifully constructed watch, in that if you take one little piece out the whole thing will fall apart, that I have expressed my concern in three brief debates. The last thing I wish to do is to cause offence to anyone, particularly Roman Catholics, as I hold the Roman Catholic Church in high regard and always have. I very cheerfully pray, as we do frequently in Anglican churches, for the Pope. I would have liked to have seen something in the Bill that made explicit what is implicit, but I understand

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the points that have been made, particularly by the noble Lords, Lord Janvrin, Lord Fellowes and Lord Luce. Because I think that we have moved some distance, I will spare the House the exercise of going into the Division Lobbies.

On a final note, I hope that something can go into the Library of the House, as requested by my noble friend Lord Trefgarne. When I concluded my speech at the end of Report, I expressed the hope that at a fairly high level there could be an exchange of letters, and I hope that that is still possible.

I thank my noble and learned friend for the concern and sympathy with which he has listened to the arguments advanced. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 2

Moved by Lord James of Blackheath

2: The Schedule, page 3, line 28, at end insert—

“Union with Scotland Act 1706

6 In Article XXV, Section 2 of the Union with Scotland Act 1706, for “preserve the foresaid Settlement of the true Protestant Religion with the Government Worship Discipline right and Privileges of this Church as above established by the Laws of this Kingdom in Prosecution of the Claim of Right” substitute “preserve the declaration, uphold and maintain the rights and subject specified therein”.

Accession Declaration Act 1910

7 In the Schedule to the Accession Declaration Act 1910, for “according to the true intent of the enactments which secure the Protestant succession to the Throne of my Realm, uphold and maintain the said enactments to the best of my powers according to law” substitute “according to the true intention to the declaration, uphold and maintain the rights and subject specified therein”.”

Lord James of Blackheath: My Lords, this is in the nature of being a semi-probing amendment. I want to test the extent to which we have arrived collectively at answers to each of the four questions that I have developed through the currency of this Bill, and see whether my noble and learned friend the Minister can satisfy us, in his conclusions, that each of the tripwires and pitfalls that we have seen are now capable of being avoided. I come to this very much in the spirit of the finest executive I ever had the privilege of working with, who used to say, “Don’t give me people around me who know all the answers. I want the people who know all the questions”. It is in that spirit that I come, even though I stand here as somebody without any shred of qualification. I do not even have an 11-plus pass. Given that circumstance, it might be said that I have a right nerve to stand up here and ask these questions today in such an intensely legal affair but then, on the other hand, somebody has to.

In all this, I start by expressing my appreciation to my noble and learned friend the Minister for the considerable time, and the enormous patience and care, that he has given to answering each of the questions that I have raised directly with him. He has been absolutely splendid. My noble and learned friend will not be surprised to hear that while I have read

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every word he has written with great care, that is not the same as agreeing with every word I have read. It is clear that the principal point of difference between us is that he believes that I am relying on the entrenched status, as such, whereas it is the status and ordinary meaning of the statute law as it now stands, and as it relates to our duty and the Crown’s duty, that concerns me. I repeat: our duty and the Crown’s duty, which I do not believe are the same thing.

I was grateful to the Bill Office for agreeing to write to the Clerk of the House of Commonsto ask what basis of interpretation it had placed on the use of a delegation of the royal prerogative in addressing its own debate on this subject. If I understand the very complicated answer correctly, it is along the following lines. The Crown cannot delegate something that it does not posses; it can delegate only the authority that it has, in which case it can delegate the power to us to give an opinion as to whether we want a Bill to pass and say “Content”, but it cannot delegate to us the authority to give it assent. That is retained by the Crown in all cases.

However, the Crown has to adhere to that in strict accordance with the coronation and proclamation oaths which precede it. Those oaths, passed through the Declaration of Rights in 1689, relate to all the powers that the Crown rightly held before the revolution. It ensured that the Crown could no longer deny that it was bound by the statute law with explicit changes to the coronation oath, made by enacting the Coronation Oath Act 1688. The settlement has been said by Her Majesty, on the occasion of the 300th anniversary of that great document, to be the sure foundation of our constitution. I am sure that Her Majesty would take that same view without any amendment today. It will be interesting to see, when and if the Bill passes to her for Royal Assent, how she will interpret that obligation in the context of those oaths.

The vulnerability here would arise if the passage of the Bill was deemed to represent a precedent by which to justify far more draconian changes than could be permitted to the established laws of this land under the Bill of Rights and to the detriment of the rights and liberties of the subject. By relying on such a precedent, in theory it is possible to introduce arbitrary power with a Bill of no greater apparent significance than this, to reintroduce the use of judicial torture or repeal the principle of “no taxation without representation”. These are, clearly, highly undesirable outcomes.

If this Bill is enacted with the addition of the amendment that I have proposed, from the next accession and beyond we would have the satisfaction—albeit that there may be a vulnerability prior to that accession —of knowing that the fundamental rights and liberties of the subjects have been restored absolutely. As such, I commend my measure as an opportunity that we ought to take. It is like a deep third man, in cricketing terms, by sweeping up all the bits that might otherwise trickle through. I commend my measure as an opportunity that we ought to take to hope, and later ensure, that no precedent might arise from this to the detriment of the rights and liberties of the subject. If we pass the Bill we risk setting a precedent with the potential for the

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worst possible outcome in the fullness of time, not knowing what future Governments and future authorities might wish to be brought to bear.

3.45 pm

The Minister and I do not disagree on everything; he has quoted some words with which I wholly agree. They are:

“Parliament has also, for the time being at least, limited its own powers… It is possible that other qualifications may emerge in due course”.

This was with reference to the Europeans Communities Act and the Human Rights Act. It was also noted in the Countryside Alliance case. Others took the view that supremacy was no longer absolute in Jackson v the Attorney-General, with reference to the sovereignty of Parliament. There is definitely scope for divergence of opinion as to the legitimacy of the measure. If the Human Rights Act can affect the power of the law in force, it certainly cannot be said to be less significant than the Bill of Rights. There are duties emanating from the Bill of Rights and the Act of Settlement which require all in office not to breach their provisions. That is us, the Crown and its advisers.

There is an issue here that none of us noticed previously. There is no precedent for any Parliament ever proposing to a monarch a breach of a coronation oath without that Parliament resigning within the week. Is that seriously a risk this House would wish to take at present? I can see the looks of keen anticipation on the Benches opposite at that prospect but you cannot have governance and Parliament by accident, carelessness and oversight, which would be the case. We need to know what would happen.

The two instances in which Governments have been forced to resign in this case involved, first and most notably, a not insignificant Prime Minister called William Pitt the Younger in 1801. He had been in receipt of that enormous reorganisation document on the future order of battle and conduct of the British Army compiled by Sir John Moore, whose “corse to the ramparts” we bore in the poem. Sir John had written this far-reaching plan for the future of the British Army but had said, “This is ridiculous; we are wasting half the potential officer talent because we do not allow Catholics to be officers. Let them in”. Pitt said, “Great idea, let’s do it”. He went off to see the Crown, the Crown said, “Resign immediately”, and he did, despite the fact that there were 650,000 French troops on the shores at Calais waiting to invade under Napoleon.

Six years later, in 1807, almost the same thing happened again. This time it was a certain Sir Arthur Wellesley, the future Duke of Wellington, who with his usual forthright style had gone off to take the expeditionary force into Portugal. He had written to the Ministry of Defence and the War Office and said, “I am trying to fight a war against a Catholic army in a Catholic country and I have nothing but English schoolboys who are all well educated and stupid and all Protestants. I need some Catholic officers, please”. Lord Grenville, Prime Minister of the ministry of all the talents at the time, agreed, went back to the King and three days later he was out of power along with

22 Apr 2013 : Column 1226

the whole Government. Are this Government going to last the week? Do we want them to? Yes, we do; we want the orderly continuity. Has anybody considered this implication and what will happen?

Passing this Bill in its present form will represent a denial by this House of the words and intentions of the Bill of Rights and the Act of Settlement. This legal point is not reliant, in the words of my noble friend; the argument must therefore be that some statutes are of such constitutional significance that they cannot be amended or appealed. The solution I have proposed in this amendment was the Duke of Wellington’s eventual solution, by which he got Catholic officers, of which there are now a very large number, into the British Army. This was achieved as a means of providing a sort of stopgap whereby you could suspend the oath for a period and then re-establish it, and hope that nobody did anything to alter the law against the interests of the subject in the mean time.

I am deeply grateful to the Bill Office for helping me to write that. It has also added the excellent extra clause, which addresses a separate Scottish oath of allegiance at the Coronation, thereby removing the threat, of which I have previously talked, that the Bill in its present form shreds chapter 25 of the Act of Union and renders the referendum in Scotland unnecessary; they have gone already.

My concern is that the law commands us directly not to do these things, but entirely to uphold the Bill of Rights. That duty has not been and is not being repealed. If we set a precedent, and this is simply set aside and ridden over roughshod, we appear to be placing ourselves above and outside the scope of the present law. This is far and away beyond the intended scope of this simple and otherwise desirable Bill. If, however, your Lordships now resolve to be content with the Bill, I first ask noble Lords either to consider passing the amendment, which would be a solution to all four points, or to take their chances in passing it to the Crown and hoping that the Crown can do more correctly what we will have failed to do ourselves.

There can be no doubt as to the requirements and priority of the future protection of the rights and liberties of the people of this country. The alternative is that we get an answer from the Minister which writes into the record something to which future generations can look back with satisfaction and recognise as an absolute assurance that, in Her Majesty’s words, the Bill of Rights will remain “a sure thing”, and we can all benefit from it.

Lord Eden of Winton: My Lords, this is a bit of a minefield, so I tread with care and trepidation. I will make a very brief intervention, primarily to say to my noble friend how much I recognise the concerns he has expressed and the care with which he has followed these matters through. I know that he is extremely anxious, not only on his own behalf but on our collective behalf, that the legislation now going through the House is correct in so far as it seeks to affect the role and rights of the sovereign and sovereign succession and that it in no way undermines the position of any Member of your Lordships’ House, let alone that of any citizen outside the House.

22 Apr 2013 : Column 1227

I believe that the main answer to the questions that my noble friend raises rests in the sovereignty of Parliament. It is, as I perceive it, the right of Parliament to make alterations to legislation, even including the Bill of Rights. As I interpret it, the primary purpose of the Bill of Rights was to protect the interests and the rights of the people. The rights of the people are currently preserved in the powers and obligations of the Houses of Parliament and of the Government of the day. It is for us to make such amendments as we feel are necessary or desirable. In this particular case, a narrow amendment is being suggested which in a way underlines what was required of the sovereign at the time of the Bill of Rights; namely, that the heir to the Throne shall be a Protestant. There is nothing more to it than that. It therefore seems to me that we are exercising a traditional and constitutional right of Parliament to make amendments and alternations as we think proper. We are not in any way going against the obligations or commitments of the Crown. In carrying these matters forward, we shall be preserving the constitutional requirement in this country that the future monarch shall be a Protestant and a practising communicant member of the Church of England.

I do not think that the worries and anxieties my noble friend has expressed so profoundly are justified and, as he himself said, my noble and learned friend the Minister has given a great deal of care and attention to these issues and has written a letter of some considerable length to him that certainly satisfied me in the arguments put forward.

Lord Wallace of Tankerness: My Lords, I certainly understand that my noble friend Lord James of Blackheath has had serious, profound concerns about this Bill which he expressed even before Second Reading. I recognise the persistence and diligence with which he has continued to raise these issues. I am grateful for his kind comments and I think he would recognise that the comments and concerns he has raised have been given proper consideration.

It appears to me that my noble friend is concerned that, in allowing an heir to the Throne to marry a Catholic, this Bill would contravene the promises that each sovereign is required to make to maintain the established Protestant religion and in some way subvert the Bill of Rights or the Act of Settlement. It will come as no surprise to my noble friend that I disagree with his view, as I have made clear on a number of occasions in your Lordships’ House. Again, I want to make it quite clear that we are not amending the provisions of the Bill of Rights or the Act of Settlement which say that the sovereign has to be a Protestant.

My noble friend Lord Eden of Winton put his finger on the point. Indeed, I wrote at some length in my letter to my noble friend Lord James about the sovereignty of Parliament in the case of Jackson v Attorney-General in which the House of Lords considered the Parliament Act 1911. The late Lord Bingham said:

“The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in Parliament … Then, as now, the Crown in Parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wished”.

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With a former Lord Advocate, the noble and learned Lord, Lord Hardie, present, I had better say that there has been some question about that in some respects in Scotland following the dicta of Lord President Cooper in MacCormick v Lord Advocate. Nevertheless, Lord Bingham expressed that view very clearly in the Jackson case.

Given that the prohibition on the sovereign being a Catholic remains, we do not believe that there is any conflict between the Bill and the Accession Declaration or the promise made by the sovereign to preserve the Presbyterian Church in Scotland. I do not think I can really elaborate on it. My noble friend and I are going to have to agree to disagree because we believe that there is nothing in this Bill which subverts the Bill of Rights, the Act of Settlement or the oath which Her Majesty made on her accession. In the circumstances, I invite my noble friend to withdraw his amendment.

Lord James of Blackheath: I thank the Minister for his reply. I reassure him immediately that my concern here is not about the religion of the monarch. I gave up religion at the age of 19 when I was studying for ordination to the Church of England. I discovered that while the Catholics burnt people because they thought it released the soul to go to heaven quicker in order to plead for mercy, the Protestant church was allowing hanging, drawing and quartering on the forecourt of St Paul’s Cathedral—where we all walked last week—to be able to discharge the secular crime of treason under the guise of being a religious crime against the church. At that point my faith crumbled very rapidly and was never restored.

My concern here is not primarily those factors. It is that we are putting Her Majesty in a position where we are asking her to breach the coronation oath, which I would not do under any circumstances. I have provided a suggestion as to how we may circumvent that by borrowing an initiative of the Duke of Wellington from 120 years ago, but none the less we need to be sure that it would work and that is my concern. If the noble Lord will answer that, I will be happy to withdraw my amendment.

Amendment 2 withdrawn.

4 pm

Lord Wallace of Tankerness: My Lords, I indicated on Report that I would report to the House once the necessary steps in each realm had been completed and we were in a position to commence the legislation simultaneously. I reiterate that commitment. As it may be of interest to your Lordships, I can inform the House that since our debate on Report, Royal Assent was given to the Canadian Succession to the Throne Act on 27 March. We received confirmation from the Government of Antigua and Barbuda that, based on the nature of their constitution, they will not need to legislate to give the changes effect, and that the Council of Australian Governments agreed on 19 April, last Friday, to a process to change their laws.

As I have indicated on a number of occasions, the provisions in this Bill have been carefully worked out in agreement with the realms, and it is important that

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we now proceed to pass this Bill and show that we have been able to fulfil the task asked of us by the realm Prime Ministers in Perth in 2001. It is an important piece of legislation that has its roots in securing better equality, and certainly we await with great expectation the birth of a child to their Royal Highnesses the Duke and Duchess of Cambridge. We wish them every health, in particular the Duchess as she proceeds towards the birth of her child. In doing so, we know that if this Bill passes, and if the required processes take place in the other realms, that child, irrespective of whether it is a boy or a girl, will take its place in line to the throne ahead of any subsequent siblings. Therefore, I beg to move that this Bill do now pass.

Lord Trefgarne: My Lords, I do not intend to delay the passage of this Bill for more than a few moments. It is sad that this Bill has been driven through with such speed. Many of us would have preferred a Joint Select Committee, for example, to consider some of the important constitutional implications that it raises, and indeed changes. However, that has not been the case, and therefore that, for now at least, must be that. This Bill has also set running the hare of what happens to the hereditary peerage with regard to the succession arrangements for hereditary peers. I must tell your Lordships that those arrangements are, as I understand it, a great deal more complicated even than they are for the Crown. I dare say that if Bills come forward for that purpose they will delay the noble and learned Lord very much longer than this Bill has.

Bill passed.

Growth and Infrastructure Bill

Commons Reasons

4.03 pm

Lords Amendment 7: After Clause 4 insert the following new Clause—

“Development orders: development within the curtilage of a dwelling house

(1) Section 61 of the Town and Country Planning Act 1990 (development orders: supplementary provisions) is amended as follows.

(2) After subsection (3) insert—

“(4) Any development order or amendment to an existing development order made after 1 January 2013 that grants planning permission for development within the curtilage of a dwelling house shall not apply within the jurisdiction of a local planning authority if that authority has resolved that it shall not.””

Commons disagreement and reason

The Commons disagree to Lords Amendment No. 7 for the following Reason—

7A: Because it is not appropriate to give local authorities further powers to disapply planning permission granted by a development order.

Motion A

Moved by Baroness Hanham

That this House do not insist on its Amendment 7, to which the Commons have disagreed for their Reason 7A, but do propose the following amendments in lieu—

7B: Page 5, line 29, at end insert—

22 Apr 2013 : Column 1230

“(2B) Without prejudice to the generality of subsection (1), a development order may include provision for ensuring—

(a) that, before a person in reliance on planning permission granted by the order carries out development of land in England that is a dwelling house or is within the curtilage of a dwelling house—

(i) a written description, and a plan, of the proposed development are given to the local planning authority,

(ii) notice of the proposed development, and of the period during which representations about it may be made to the local planning authority, is served by the local planning authority on the owner or occupier of any adjoining premises, and

(iii) that period has ended, and

(b) that, where within that period an owner or occupier of any adjoining premises objects to the proposed development, it may be carried out in reliance on the permission only if the local planning authority consider that it would not have an unacceptable impact on the amenity of adjoining premises.

(2C) In subsection (2B) “adjoining premises” includes any land adjoining—

(c) the dwelling house concerned, or

(d) the boundary of its curtilage.””

7C: Page 5, line 31, leave out ““or (2A)”” and insert ““, (2A) or (2B)””

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham): My Lords, at Third Reading this House made an amendment to provide local authorities with further powers to disapply planning permission granted by a development order. As the House will be aware, the Commons noted the commitment made by the Secretary of State when discussing these issues to give further consideration to the concerns of both Houses, and it disagreed with this amendment.

Members of both Houses will have received from the Secretary of State a letter, which I forwarded to them, giving the result of his review of the situation, which has resulted in the amendment that we laid on Friday, and which we will now discuss. It may be helpful if I briefly outline again the thinking behind our proposal on extending the existing permitted development rights for homeowners wishing to extend their property. As I said at an earlier stage of the Bill’s consideration, these changes will make it easier for thousands of families to undertake improvements to their homes. In bringing forward these changes, we have looked across England and recognised that many people want to enlarge their homes. They want to do so not by much but sufficiently to create more living space, perhaps to care for elderly relatives or because of a growing family, and without the cost of having to relocate.

However, we have been clear from the outset that it is important to ensure that any impact on neighbours is acceptable. Concerns on this issue have been set out in this House by noble Lords in previous statements, by Members in the other place and in responses to our consultation. As I have said, the Secretary of State made a commitment in the other place that we would respond to these by bringing forward a revised approach.

I have tabled an amendment that delivers that commitment. This amendment makes it possible for the Government to put in place protections for neighbours where adjoining homeowners seek to use our proposed

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extension to their permitted development rights. We have reflected on the concerns raised by noble Lords. The noble Lord, Lord True, raised the issue of the rights of neighbours to protect the amenity of their homes eloquently on Report; the noble Lord, Lord Tope, expressed concerns that our proposals would set neighbour against neighbour; and, as the noble Lord, Lord McKenzie, put it, neighbours can impact dramatically on their neighbours’ quality of life. The amendment that we are proposing responds directly to this important issue.

In drafting our amendment, we have drawn on the principles outlined in the 2007 report Blueprint for a Green Economy from the Quality of Life Policy Group, which was chaired by the noble Lord, Lord Deben, in his previous life and Zac Goldsmith MP. Indeed, the noble Lord referred to this very report when arguing against the amendment that was made to the Bill at Third Reading. The Quality of Life report states that:

“Too much planning has become development control”.

It goes on to say that,

“the time and trouble that has been spent on dealing with planning applications for extensions and additions, porches and garages … cannot be seriously said to have been cost-effective”.

We agree with that, and with the report’s message that protecting neighbours’ amenity is important.

We are therefore introducing a light-touch neighbourhood consultation scheme. This recognises concerns that larger extensions could be built without offering neighbours any opportunity to express their views. Adjoining neighbours—not just the ones on either side but those who adjoin the rear of the property as well—will now be consulted where a homeowner wishes to use the new extended permitted development rights to build a good-sized extension. If neighbours think that the proposed extension will have an unacceptable impact on their amenity, they can ask the local planning authority to consider this—for example, if they think that it would totally overshadow their living space or that they would lose their privacy due to overlooking windows. Where neighbours raise concerns with the local authority, it will then consider the impact of the proposals on the amenity of those neighbours. It will make an objective decision on whether the development is acceptable or if the impact on neighbours’ amenity is such that it should not go ahead under permitted development rights.

We recognise that neighbours will have very different views on whether an extension impacts on their amenity, and that similar proposals on the same street may therefore have different outcomes. If a local authority is asked to consider the impacts of a proposal it will look at this on a case-specific basis. The outcome will not necessarily be the same as for other extensions in the street.

As the Secretary of State has made clear, local ward councillors will, in the usual way, have the opportunity to put forward their views on the desirability or otherwise of a proposed extension. The process for dealing with an indication that an extension is proposed will be that a homeowner wishing to build an extension will notify the local planning authority and provide plans and a written description of the proposal. The local authority will notify the adjoining neighbours—that is, the owners

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or occupiers of properties that share a boundary, including those at the rear. We will set out the details in secondary legislation but the intention is that neighbours will have 21 days in which to make an objection. If no neighbours object, the local authority will notify the home owner that they are able to proceed with the development. If any neighbour raises an objection, the local authority will then consider the case on the single issue of whether the impact of the proposed extension on the amenity of neighbours is acceptable.

It will be up to individual councils to decide how they handle the consideration of these proposals. We would expect it to work in the same way as for planning decisions: that is, for the council to decide whether the decisions are delegated to officers or made by a planning committee. If approval is not given, the home owner will be able to appeal against a refusal or may wish to submit a full planning application. The home owner will be able to appeal against a refusal of consent but, as with normal planning consents, neighbours will not be able to appeal against a grant of permission. This approval process will not be onerous and we do not expect that it will impose significant costs on local authorities, but we will discuss this and other implementation issues with the Local Government Association.

These proposals should remove the need for local authorities to feel that they have to resort to using Article 4 directions to remove the new permitted development rights. I assure noble Lords that we have listened very carefully to the concerns raised about the operation of Article 4, and we will work with the Local Government Association to update our Article 4 guidance as part of the review by the noble Lord, Lord Taylor of Goss Moor. This will make sure that the process is as clear and straightforward as possible.

The noble Lord, Lord True, clearly set out that he was concerned that our proposals took away,

“a neighbour’s right to have a say on a big and potentially overbearing extension shoved up outside their back door”.—[

Official Report

, 26/3/13; col. 982.]

As the Secretary of State made clear, we have listened to Parliament and responded directly to these concerns. The amendment gives local authorities a role where neighbours ask them to make a judgment while allowing home owners across the country equal opportunity to make use of the new permitted development rights. I look forward to hearing the views of the House. I hope that I have explained as clearly as I can how our amendment addresses the concerns raised about the impact of our proposals on neighbours and why, therefore, the House should agree with the other place that the amendment made here at Third Reading should not become part of the Bill. I beg to move.

Motion A1

Moved by Lord McKenzie of Luton

As an amendment to Motion A, leave out from “House” to end and insert “do insist on its Amendment 7”.

Lord McKenzie of Luton: My Lords, I should explain that we tabled this Motion, which insists on the position originally taken by your Lordships, as the clock was

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ticking on Friday without our then having sight of the government amendment. The Secretary of State, in announcing an uncharacteristic conversion to the spirit of consensus, gave neither us nor the Commons a clue as to what this revised approach to permitted development rights for home extensions might be. We have to continue to deliberate on these matters without the benefit of the results of the consultation on extended permitted development rights that concluded some four months ago. It is difficult to believe that they would not have some relevance to the matter in hand, yet still the information is withheld from us. However, I hope that the Minister might at least confirm one point for us this afternoon. The consultation included the proposal that changes to permitted development rights, including those relating to the curtilage of a dwelling house, should be in place only for three years and that developments would have to be completed within that three-year period. Does the consultation support that proposition?

We now have sight of the government amendment, and the benefit of correspondence from Ministers, and have to assess how far it addresses the concerns prompted by the amendment moved so comprehensively by the noble Lord, Lord True, an amendment that found favour around your Lordships’ House and that clearly had considerable support in the House of Commons. I do not propose to restate in depth the points made by the noble Lord, Lord True, and others with which we agreed, other than to say that the amendment reflects a demonstrably localist approach, scepticism that the extension of these particular permitted development rights would make a meaningful contribution to kick-starting growth, concerns that an unamended Article 4 direction process was not inevitably a secure or speedy route for local councils to override inappropriate centrally set permitted development rights, an acknowledgement that individuals can pursue planning permission in the absence of permitted development rights and, in the words of the noble Lord, Lord True, that the Government’s proposal,

“takes away a neighbour's right to have a say on a big and potentially overbearing extension shoved up outside their back door. What is more, it removes that vital process of moderation and conciliation that the local planning system provides in these matters”.—[

Official Report

, 26/3/13; col. 982.]

4.15 pm

We look to the Minister today to convince us that the government amendment addresses these points. The Government have clearly been forced to back away from their original position, and this is to be welcomed. Without quite a lot more detail, however, it is difficult to judge whether they have moved far enough. Giving neighbours an opportunity to object to proposals so that the local planning authority becomes engaged would address one of the concerns, but we need to understand how meaningful this would be.

What is the nature of the information to be provided to the local planning authority, and to what extent might it differ from that to be submitted for formal planning permission? How extensive would the local planning authority’s notice obligation be? Would it be only to properties that actually adjoin? I accept that this would include those at the rear of premises, but

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what about those that are not immediately adjacent but within line of sight of the extension? Will objections be entertained from those who have not been formally notified? Is there a broader question of the amenity of an area that should be taken into account?

Can we be provided with some examples of what “an unacceptable impact” actually means? How would the process work when the adjoining property is currently empty, empty for a three-week period, or currently owned by the same people as those who are seeking a development next door? What are the appeal rights? In her introduction, the noble Baroness said that there would be appeal rights where the home owner has been refused the opportunity to develop. Will it be 50% of the garden or 50% of the curtilage of the property on which development can occur? What is the process by which local planning authorities will take a view on the impact of the amenity of properties, and how will it encompass what the noble Lord, Lord True, referred to as,

“that vital process of moderation and conciliation”? —[Official Report, 26/3/13; col. 982]

Will it be ward councillors or the planning committee who will take the decision? What will the enforcement arrangements be if someone develops within permitted development rights but outwith the plan notified to the local planning authority? If the local planning authority considers that a proposal would have an unacceptable impact on amenity, this would presumably not preclude an application for planning consent. I think the noble Baroness confirmed that, although it might, of course, invite a negative response.

Will the process be applied to development undertaken by existing permitted development rights or just such future rights contemplated by the consultation documents? Will these rights change the Secretary of State’s approach to Article 4 directions? The proposed process imposes obligations on local planning authorities for which they will receive no fee income. Is it true, as reported, that No. 10 has said that local authorities will have to find the funding for this themselves? What are the estimated costs that are likely to arise across England?

How does the Minister respond to the briefing we received from the RTPI, which states:

“The Government’s proposal relies on a rigorous flow of information. If a house is not occupied for three weeks (perhaps during a long summer holiday), or the house is let and the tenant is not assiduous in forwarding notification, or if the post office makes errors, owners will miss out on an opportunity to object … No system is perfect, and when applications are made through the planning system, it is possible that an owner may miss an opportunity to object. Planning officers offer a second line of defence against what might be a serious loss of amenity to a property owner when then objectively assess applications against neighbour objections”?

The briefing goes on to say:

“There are currently two regimes: development that is permitted and development that needs planning permission. This division is reasonably well understood and has stood the test of time. The Government’s proposal adds a third regime, one reliant on prior notification. The RTPI believes that the Government should be seeking to make planning more effective, not more complicated”.

How does the Minister respond to that?

If we are not to remain committed to the amendment of the noble Lord, Lord True, we will need much reassurance and clarity on these points. I hope that the Minister can help us. I beg to move.

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Baroness Gardner of Parkes: My Lords, I noticed that many of the views expressed by the spokesman for the Opposition agreed with points that I think are important and on which I therefore wish briefly to comment. The most important thing of all—from my own experience I found this very unsatisfactory—is that you cannot rely on getting notification. In cases in the past 12 months where I have been the immediate neighbour, I have twice not received notification. Secondly, clever people always put in their applications on Christmas Eve or at some time when they know that no one is around. It is important in those circumstances that extra time is allowed for the consultation based on the number of working days, not just days. The unprincipled policy is used regularly by clever people, even under normal planning regulations. Those two matters are important.

On other issues, I have been satisfied by discussions with the Minister that the Government really are thinking about these matters. The sunset clause is good but, for notification, the system that has been in use for years should be continued whereby a notice is posted on a lamp post, a hedge or something like that, so that some friend or neighbour passing by would say, “Did you see that they are building something next door to you?”. Even if you are away on holiday, you can ask your friend to let you know. However, if you come back from a three-week holiday, which is not unusually long—particularly if you go to Australia; it is hardly worth going if it is any less than that—it is important to be sure that nothing underhand is going to be slipped through in your absence.

Lord Shipley: My Lords, I should declare my interest as a vice-president of the Local Government Association. I have had many concerns in recent months over the proposals on permitted development. However, I am grateful to the Minister for these proposals, albeit that they were revised at the last moment. They go a long way towards improving the proposals on permitted development.

It would have been wrong to deny neighbours the right to object to an extension that might impact on the amenity of their property, particularly given the significant increase proposed in the scope of permitted development. While I am conscious that some 90 % of current planning applications are approved and only 10% are turned down, clearly the increase in the proposed permitted development level will produce a higher proportion of applications that are going to be challenged by neighbours. I agree with quite a number of the points made by the noble Lord, Lord McKenzie, who has asked a set of questions about precisely what detail the Government propose.

The Minister wrote to Members of Parliament explaining what the Government were proposing to do. It would help our understanding of the Government’s amendment if the Minister could clarify some of these details. First, it is stated that home owners wishing to build extensions under the new powers would notify their local council with the details. It is spelt out in some detail in the amendment, but I hope it will be absolutely clear that there should be a covering letter that explains all the detail that a third party might be

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interested in reading, that there should be a copy of the plan of the architect’s design, and that all details of design and materials should be submitted at that stage. Because of costs, this is not just a matter of planning permissions: it also impacts on building control.

The council is then to inform the adjoining neighbours that a letter and application have been received by a home owner. What does the word “inform” mean? That information should include every single detail that is known about the application so that neighbours who might be affected can make a rational contribution to the application and their views can be properly considered.

The question of who is an adjoining neighbour is defined in this amendment as someone who abuts the curtilage of the property. I suggest that that does not go quite far enough. I think it should be anybody who can see the proposed development site from any point on their property, because it will impact on their amenity if they can see it. But if they are at the diagonal point—in other words, not immediately adjacent to the side or to the bottom of someone’s garden—they may well be able to see the proposed development. Those people should have a right to object as well.

I agree entirely with the suggestion that three weeks is not adequate, partly because there is a tendency for the three weeks to start at the date on which the letter is sent. It seems to me that 28 days would be a better period by which a neighbour should be able to respond.

On the question of objections being received from neighbours, I heard on a news broadcast at the weekend, but perhaps I misinterpreted it, that ward councillors would have a role in making the decision, in arbitrating. I understand that that is not what is being proposed, but I would appreciate the Minister’s confirmation of that fact, because in my view it should go to the council’s planning committee.

Statutory consultees should also have a right to be consulted. I am thinking particularly of parish councils, because they have an existing role and it is important that that role is clearly identified.

On the issue of the fee, I had thought that the planning system was supposed to be financially self-sufficient: that is, that the expenditure on the planning system and planning officers was to be funded from fees received. I am not certain that it is right that someone who has applied for planning permission should not pay a fee. There is a case for saying that if there are no objections to what is a very simple matter, and with the council operating as a post box only, it would be legitimate for there to be no fee. But if it is more complex than that and takes up significantly more of the planning officer’s time, this ought to be looked at again.

4.30 pm

On balance, I feel that the Government have gone far enough for the amendment to be supported today. However, I hope the Minister will confirm that, first, it is the development that should have happened within three years, as opposed to a notification having been received; and, secondly, that the period will be reviewed not at three years but prior to that, so that should any

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future Government seek to renew the extension of permitted development, the decision is made on a rational evidence base.

I welcome my noble friend’s confirmation that, in terms of devising the regulations, there will be significant discussions with councils and the Local Government Association as to how this new system will actually work. I hope very much to hear the assurances from the Minister and, assuming they are forthcoming, I shall be very happy to support the Government in the Lobbies this afternoon.

Lord Deben: I rise only because my noble friend, like my right honourable friend, has drawn into consultation the Quality of Life report, which I chaired. I declare an interest as a vice-president of the Royal Town Planning Institute and an honorary fellow of the Royal Institute of British Architects. I think it important to rise simply because I would not like the House to believe that what is here in the amendment was what the Quality of Life report actually recommended. The reason for saying that is not because I wish to undermine what the Government have done but because the Government have been less radical than we suggested they should be. We said that in most of these cases it is not a matter of planning but of neighbours. It is a matter of sorting out what is fair dos, based on the principle that we believe in the rights of property. I ought to be able to do whatever I like with my property but I cannot do that in a world as closely knit as we are without taking into account what my neighbours feel about it. We said that it was ridiculous to tie up the planning system of the local authority to do this.

What should happen is that you would have a duty to tell your neighbours what you intended to do, with a plan and the rest of it. They would then have a month—28 days—to tell the local authority that they did not like it. The local authority would then have the right to do three things. First, it would have the right to say, “Well, this is a load of old rubbish and we’re not going to take any notice of it”. That seems perfectly reasonable, as you have to have a judgment in the first instance as to whether people are merely being difficult. We all know there are some people who can be difficult in any circumstances about anything, and anybody on a local authority knows that better than I do. The second thing that the local authority could do would be to say, “We think that this is a serious planning matter”—in other words, it was not a matter of neighbours, but something very fundamental, and it would therefore call it in, in effect, for a planning decision.

However, it would most likely say that this was a matter of neighbours and that they were going to appoint an arbitrator. Local authorities would have a panel of arbitrators, who would be very ordinary people, whose only job would be to go and see what the fair deal or reasonable thing would be in the case. Having decided that perhaps a slightly smaller extension would be fairer as far as the neighbour was concerned, they would say, “We will agree to this, if this change is made”. Alternatively, they would say, “We agree to it entirely”. They would start from the assumption that

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they would want to agree to the development; in other words, there would be an assumption in favour of development, because that seems to be reasonable given the nature of property.

The Government have taken this up. It is a huge improvement on the previous suggestion and a generous way of moving forward. I think my noble friend Lord True will probably feel that it is not quite what he wanted but we have gone a long way. However, there are three bits to it which I hope that my noble friend will think again about. In no spirit am I complaining about what she is doing—I am very pleased about this—but there are three things. First, I think that 28 days was probably a better period, simply for the reason that it is helpful for people over holidays and the like. Secondly, I wonder whether she could look again at enabling the local authority, even if it were not in the statute, to decide that this kind of thing was done by an arbitrator, not through the planning committee. I wanted to remove from the planning department questions such as, “Can I have a car port? Can I build a room in the already present roof of my garage? Can I put up a bit of an extension which seems quite sensible as my neighbour has exactly the same?”. All those things are really neighbours’ issues, and, frankly, when you consider the time spent and the shortage of planning officers, it is much more sensibly done by having a sensible man or woman looking and saying, “That seems perfectly reasonable”.

Thirdly, I hope that my noble friend will look at the one series of protections that we specifically put in, which is that this would not apply in an area which had been designated as a conservation area. In that area there should be a wider consultation than merely with one’s neighbours. I say to the Minister that I entirely support that it should be one’s contiguous neighbours because frankly, if we are going to go out to everybody who could possibly see the house, we are in real trouble. The idea that I could say that I ought to be able to complain because if I stood on the top of my house with a telescope I could see this house is just nonsensical.

We are trying to have a proper balance, and I think this amendment achieves that. I hope that the Minister will look at those three things, not least because I believe that our original proposition was an easier, simpler and ultimately more radical concept. However, I am pleased that we have had not merely half but three quarters of the cake and thank her very much for that.

Lord Cormack: My Lords, I agree entirely with what my noble friend Lord Deben says about conservation areas. I would like to make one point and ask one question of my noble friend the Minister. Like others, I thank her for the movement that has been made. I enthusiastically supported the amendment of the noble Lord, Lord True, either on Report or Third Reading. It seems that the Government have moved between half and three-quarters of the way.

Does the Government’s movement, which we welcome, take into account the time that it takes to build an extension? We have talked about loss of views and all that sort of thing, which are the obvious points, but some extensions seem to take an unconscionable time

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to build and the disruption of neighbours’ lives during the building can be not just an aggravation, but in some cases a real health hazard. I would like my noble friend’s assurance that permission to extend does not extend indefinitely.

Lord Beecham: My Lords, I join others in welcoming the Government’s partial, if deathbed, conversion to doing something about these proposals. I certainly endorse many of the comments that have been made about the problems that remain apparently unresolved. I particularly join the noble Lord, Lord Deben, in strongly urging the Government to look again at the issue of conservation areas, unless it is capable of being clarified that the proposals will not apply to conservation areas.

I draw particular attention to the wording of Amendment 7B, where in the preamble it says to insert:

“Without prejudice to the generality of subsection (1), a development order may include provision for ensuring”,

the safeguards to which the Minister referred. Why is that “may”? Why is it not the case that the development order will include these provisions rather than there being an option? It seems to me that it would be all too easy to evade the consequences of the partial progress that the amendment produces if it remains an option simply not to provide that in the subsequent development order.

Lord Phillips of Sudbury: My Lords, very briefly, in my 26 years as legal eagle on the “Jimmy Young Show” on Radio 2, there was no issue more sensitive and more repeatedly brought up than neighbour disputes relating to the extension of premises. It causes immense angst among our fellow citizens. People have mentioned rights of view and rights of light; there is no right of view, of course, and rights of light are notoriously difficult to judge and adjudicate on. I am entirely in favour of my noble friend the Minister trying to ensure that what comes out in the wash—I am thinking particularly of the subsidiary legislation—leaves minimum room for aggravation and disagreement.

For example, can anything be done about defining,

“the curtilage of a dwelling house”,

and the boundary of this? Those sorts of details may not seem important to us here because, I suspect, most of us live in rather spacious houses with gardens, but in terraced accommodation par excellence these issues are of huge importance. I am delighted to hear that the notice period is going to be 28 days but, to be honest, it needs to be 56 because these things can move very slowly and it takes less sophisticated mortals a long time to find out how to deal with some of these matters.

Lord True: My Lords, in rising, I feel rather like the ancient prophetess who went to see King Tarquin with the Sibylline Books and saw six of them promptly burned, only to have them accepted at the last minute. Like her, I am grateful for that. I thank my noble friend Lord Tope, the noble Earl, Lord Lytton, and the noble Lord, Lord McKenzie, for their support for this proposal at an earlier stage.

Of course, I thank my noble friend the Minister for her amendment. Unlike some in this debate, she has always understood the practical, human issues that

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are involved in seeking to end the rights of objection to developments which, as some have pointed out in this debate, may take more than half of a neighbouring back garden. Crucially, these may also create precedents in local planning in relation to character and new lines of building, which may well affect the person next door but one, who, under the proposal before us, still has no right to a say.

Parliament has secured some movement and I think many householders will thank goodness for your Lordships’ House for the role it has played in securing that. My view has always been—and remains—that faced with potentially overbearing developments, neighbours should have the right to defend the value and amenity of a home. For most of our population, that home represents the focus of all their lifelong work and aspiration and the bulk of their family’s wealth. That is the fundamental point. With the help of colleagues in another place and many of your Lordships, people in the Local Government Association and the local government world, and so many other people—ordinary people—this has finally been vindicated. I am very grateful to the Government for laying an amendment to protect these rights.

The question is: what do we do now? The noble Lord, Lord McKenzie of Luton, to whom I pay tribute for his role in not only this but all our local government debates, says that we should insist on the amendment for which I secured your Lordships’ support at an earlier stage. It is true that the Government’s amendment was laid before the House at the last possible moment last Friday. I might agree with him that it would have been better if it had come sooner. I myself suggested a way forward in which both sides would withdraw their amendments so that more timely discussion might take place on an agreed draft regulation specific to this issue, which could be debated later in both Houses after proper consultation. I actually think that would have been a better and more orderly course in Whitehall terms, but that is not where we are.

4.45 pm

When I said last Friday that I would like time to reflect, seek clarification, consult others involved and consider the course of action that I might take today, I found that the Labour Party had decided, within no more than five minutes, to take over the amendment and put down a Motion to insist. I found that a little surprising and disappointing after all these months.

The localist approach in my amendment had much to commend it, but ultimately it was a device to bring this issue before Parliament and the nation. Thanks to the intransigence of others, your Lordships have ironically succeeded in doing that in a highly public way. Nothing is perfect, and my amendment certainly was and is not, and crucially it was not agreed to by Members of another place. We have to let it rest.

Like others, I greatly welcome the intervention of my right honourable friend Mr Pickles. His proposal unequivocally protects the rights of immediate neighbours, which is a good thing; I thank my noble friend for that. I must express some puzzlement that it was not left to that department to settle this question. It might

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have happened much sooner had it been. So I welcome this and hope that it can be considered in another place.

As others have said, if it does go to another place there remain serious issues to resolve. Here, like other noble friends, I will look to my noble friend on the Front Bench for the clearest possible assurances to this House and indeed through it to the other place that there will be full, meaningful and specific consultations on the details behind this proposal before final regulations are laid. After all, despite many requests made by your Lordships, Parliament has yet to see the results of the consultation on the original plan.

Not to add to the list too many things of which others have spoken, I agree with all the points that have been made. But will we be told how local authorities, parish councils or neighbourhood forums will be able to protect the character of local areas if the immediate neighbour or neighbours to a development do not object to a particular, ugly development for whatever reason—perhaps infirmity, absence or even complicity? While I take the point that nobody standing on a seat with a telescope should be involved, are there not others overlooking, whether in town or country or in the wider community, who in some instances also have an interest? Does building quality not matter?

I agreed with what Mr Boles said about building quality. Surely a local authority and a community have the right to have a say on that. Does flood risk matter? Is there to be no backstop procedure for local authorities to consider these issues? The wording of the amendment appears to allow for the amenity of neighbouring premises only. Will the Minister and her colleagues consult on how, as others have said, neighbours will be notified and how they will be protected if they do not hear of the development in what the briefing said would be 21 days? There has to be movement from that. For personal reasons I have been away from my house for 21 days in the last few weeks.

In the case of permitted development, as I understand this proposal, building could start immediately on conclusion of the notification period. Someone could come back and find that the builders have already moved in. Under the present system, construction has to await planning approval. We hear that local authorities will not be able to charge fees for these procedures. Does that apply only in cases that have no objection? Even then who, if not the applicant, is to bear the cost of considering drawings, giving notice and ensuring that notice is given with sufficient details as to the nature of construction in a proper way? Who will ensure that these things are done in a proper way if not a local authority?

These detailed matters cannot be resolved in primary legislation, and I and other noble Lords who have spoken are not asking that they should be. I thank my noble friends for the significant and considerable change that has been made, and ask them to engage with the local government associations, local councils and many other bodies that already making strong representations on the details behind these proposals since they were published. There is much work still to be done. Perhaps it is best done away from the glare of publicity, and

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after 15 minutes of fame I am happy to withdraw to the wings. However, this work must be done. Will my noble friend explain how and on what timescale consultation will take place before regulations are published?

I conclude by saying that I will always think that this episode represents a textbook case of how not to make policy. However, the Government’s agreement to protect neighbour rights is highly welcome and demonstrates the continuing important role of Parliament and of your Lordships’ House in holding the Executive to account, and the willingness of my noble friend on the Front Bench and colleagues in her department to listen to Parliament. In the light of this movement, I say to the noble Lord, Lord McKenzie, that I would not have pressed my amendment today, and I will not support him in the Lobbies if he presses his.

The Government’s amendment, however belatedly tabled, is a significant change that should be welcomed by noble Lords, even if the ecstasy with which they greet it will be measured by the seriousness of the commitments given to consultation on the details. Parliament has an unfettered right to express its view on secondary legislation. Like others in both Houses, I will reserve that right until the final details emerge. How much easier that will be if we talk to each other, consult with each other and listen to each other. I thank my noble friend for this concession and will not trouble your Lordships further.

The Earl of Lytton: My Lords, I will not detain the House for long. My interest as a practising chartered surveyor in matters to do with planning is well known. The concern about this area of the Bill is not to prevent development from taking place but to ensure that the community should have some input. There is a serious and objectively important issue here. It is that the density of development is a construct, particularly in urban and suburban areas, that needs constant review and monitoring. Filling up open space with development—perhaps “filling up” is a rather pejorative term, but noble Lords will get my drift—touches on and concerns that issue, and produces long-term, quantifiable effects on value, amenity and the general sense of space. That affects not only the public perception but individual neighbours. It is very easy for someone with a very short-term agenda who simply wishes to have further space for whatever reason to try to construct something that is less than worthy in the context of the locality. I pay tribute, as I have before, to the way in which local planning authorities have protected this construct, this facet, of our built environment. It is important that there should be oversight. Policies to protect amenity space, light and air should none the less still have house-room here.

There are a couple of issues that I hope the Minister will be able to clarify. Another qualitative consideration that risks being lost is to do with materials—things like colour, finish and texture. They risk being lost under the process of prior notification where the principle of development is enshrined in a permitted development context. I appreciate that design guidance

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in supplementary planning documents may overcome this if it is sufficiently up-to-date and all-encompassing, but it is not always.

It has been mentioned already that the local planning authority will receive no fee, whatever the length and breadth of its administrative role may be in dealing with something under a prior notification regime. I think that that is probably an injustice, other than in circumstances where, as the noble Lord, Lord True, and others have said, it is a straightforward in-and-out issue.

We have heard about the issue of too much planning and overconcentration. I believe that I made a comment earlier in the course of the Bill about the colour of people’s front doors or the design of their windows. We need to try to distinguish between removing the overconcentration on the particular and the wholesale removal of scrutiny, because the two are not the same.

Comment has been made on how the service of notice would work. That must wait for another day, but I would instinctively prefer 28 days rather than 21.

A further area, that has already been pointed out by the noble Lords, Lord McKenzie and Lord Shipley, is the question of definitions—back garden as opposed to side garden, curtilage as opposed to plot area, setting as opposed to something else—and the basis of identifying the proportion of the plot actually built upon if you want to get some sort of absolute measure. I remember a situation where I made an application for a tenant’s garage. It was turned down because, although it was in a rural road, the planning officer decided that it was offensive to the “streetscene”. Anyone walking up the “streetscene”, where they saw one house every half-mile, will realise what I mean when I say that I did not think that “streetscene” was a concept that applied to something that was stuck behind a hedge up above a high bank. This occurred because, needless to say, the building was not built with a frontage onto a highway, as you might normally expect, but was built end-on to the highway, so front and back gardens had a boundary with the highway. It is this sort of muddle that needs to be sorted out, because for every plot that is governed by the standard criteria of an urban street, there are other ones that are not so governed because they are corner plots or otherwise different and individual. We need to somehow disentangle that.

The noble Baroness, Lady Gardner of Parkes, asked what the sanction will be for not complying with a scheme as prior notified. Indeed, that is something that we need to be very careful about.

On the whole, though, I believe that the Minister and her honourable friend have gone some way to try to deal with this business through this halfway house of prior notification. Prior notification is not an unusual construct, despite what the RTPI may wish to say; it is commonplace in agricultural permitted development, so I do not have any particular worries with it as such. If the Minister is prepared to give some sort of undertaking that the detail of this will be subject to consultation, not least consultation via the processes through this House, then I will be inclined to take the side of the noble Lord, Lord True, and be prepared to

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draw a line under this—to take half a bun or two-thirds of a bun, even if it is not the whole bun that we wanted to start with.

Baroness Hanham: My Lords, I thank the noble Lords who have spoken, particularly my noble friend Lord True, for the tenor of this debate. I accept that there is not everything that everyone would want here, judging by the questions, but the House seems to accept that we have moved a long way since we started on the Bill.

I want to reiterate that the revised approach that we are taking responds in a targeted and direct way to the concerns that have been raised. As noble Lords have said, there are already existing permitted development rights that have operated effectively for a number of years. The change is that those permitted development rights are extended with regard to the size of buildings. This is not new, although I well understand the concerns that noble Lords have raised. Our revised approach will now ensure that under the new rights, in the case of larger extensions, any objection from immediate neighbours will be fully taken into account before permission is granted. I will come back to “immediate neighbours”.

5 pm

There has been a raft of questions and I will do my best to answer as many of them as I can. If I am deficient, noble Lords whose questions I have missed will let me know. First, I was asked how the decision is to be made by the local authority. Unlike permitted development at the moment, where they can just carry on, the process will be that somebody who wishes to build an extension will have to notify the local authority. Not only that, they will have to produce some plans and details of what that extension is going to do. That picks up the point about materials and design as well. Local authorities will know what they have, even if it is in outline. Where neighbours object, the decision will be made by councillors or by delegated responsibility. Local authorities will decide themselves whether this is appropriate for delegated power or whether they would want to hang onto it.

I was asked about ward councillors. I want to dispel any suggestion that local ward councillors will be taking a decision where an objection has been made—that would be way outside the normal procedures that any of us are accustomed to—but councillors will be notified when the council is notified of a development, so that they are aware that they may need to knock on someone’s door and say. “Are you going to object to this? Do you realise that there is such a proposal?”. The noble Lord, Lord Deben, suggested that this should be done by arbitration. As his report has clearly been closely studied by others and that proposal has not been put forward, I come to the inevitable conclusion that the decision has been that this stays within the planning system.

As I said, the person wishing to develop will have to notify the local authority but the objections can come only from an adjoining property. They must come from people who are on either side of the fence or at the bottom of the garden. There is no room within

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these proposals to take account of anyone else who is adjacent, diagonal, overlooking or whatever. This is confined to people who are adjoining. With that, it is clearly important that local councillors are involved and know what is going on. With regard to those who can object, it is from the adjoining properties, as I have said, but other people may put their comments in. They will not have the same impact but the local authority might need to take them into account.

On amenity and what should be included, amenity is a pretty well understood concept in planning and local authorities have a great deal of experience in applying it. It covers such things as light and privacy. This is going to be a light-touch process but will include a lot of the things that planning would deal with anyway. It might, for example, take into account the overbearing appearance of the property to the neighbours next door. There might be a significant loss of daylight to the garden or to the principal windows and habitable rooms or kitchens of neighbouring properties, or indeed a significant reduction in privacy for neighbours. These are all the sort of areas that would normally come within a planning process for their effect on the amenity of people nearby.

Why only adjoining neighbours? As I suggested, we need to protect the amenity of neighbours immediately affected and we think that the most significant impact of single-storey extensions—and these can only be single storeys—will be on adjoining properties. Neighbours further away are unlikely to suffer a loss of light or privacy and it is not a question, as noble Lords have suggested, of whether or not they can see it or like the look of it or whether, if they have a pair of binoculars, they could see into the garden. It is absolutely the people next door who are likely to be affected.

On the question of whether this impacts upon conservation areas, I say at once that it does not. These are outside conservation areas. I said at previous stages that none of this excludes the ability of local authorities to do Article 4 directions in advance, or indeed emergency Article 4 directions if they are really concerned about the proposal; that is still there. This is confined, particularly in urban areas, to quite small areas.

On the process of how this will be dealt with, the neighbours will be given a period of 21 days. I was asked by the noble Lord, Lord Deben, whether that could be extended to 28 days and by the noble Baroness, Lady Gardner, whether it could be 21 working days. We want to keep these processes as close to the current planning situation as we can, and noble Lords who have dealt with planning in their lives will know that it is a normal practice for 21 days to be given for any objections to be raised.

Another point that has been raised, which is germane because we have been asked so many detailed questions about this, is the consultation. I reassure noble Lords that all the matters raised here are important; it is our intention to discuss this matter very closely with the Local Government Association before we get to secondary legislation. Many of the points raised by noble Lords will be taken into account and ironed out there. I am looking forward to secondary legislation because I

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am sure we will have another go at this when we get there. The noble Lord, Lord Shipley, who made a number of pertinent points, asked whether local authorities would be required to put up a notice outside properties. Those of us who are familiar with planning know that this is always done. That point was well made; I accept it, and hope that it will be considered.

The length of this provision is three years; within three years the developments can be approved or take place. It is in effect a sunset clause but, as with all sunset clauses, could be extended if that were considered important.

It is important to try to deal with as many questions as I can. If the application is rejected by either the delegated authority or by a planning committee then the property owner making the application will be able to go to planning appeal, or they will be able to put in a full planning application to have all of the issues taken into consideration. As with other applications, any neighbours whose objection was unsuccessful will not be able to appeal.

The extent of these extensions is 50% of the curtilage of the property. The restriction is that no more than 50% of the property’s curtilage can be developed. For example, in the case of a terraced property in city areas, this would usually be broadly equivalent to 50% of the back garden but in larger houses it would clearly not be to that extent.

The noble Lord, Lord Shipley, asked me about the sort of information that will have to be given. I think that I have dealt with that. The householder will have to submit a plan of the development. The description of it will have to include the materials that are going to be used so that they can be taken into account, and the design.

Lord Cormack: My noble friend has not yet reached this point, but will this also include the time that will be taken to build the extension? The disruption factor is very real in people’s lives.

Baroness Hanham: The noble Lord has jumped in ahead of me: no. Planning permission currently has no timescale of how long it should take people to do a development once they start. Indeed, I am sure that many noble Lords have torn their hair out at something that seems to be going on for a very long time indeed. Of course, the district surveyor or building regulation enforcers might begin to get worried about why progress was not being made, but I do not think that we can expect to put details of that in legislation. That also goes for the question raised by my noble friend Lady Gardner about enforcement. There will be the normal enforcement procedures of local authorities, which they are able to implement when they have concerns that something is being or has been built outside what has been approved. The problems with enforcement are much the same with any planning development as with our new, light-touch proposals.

I hope that I have covered most of the points on which I wanted to pick up. The noble Lord, Lord McKenzie, in particular, gave us a very long list of things that he was concerned about. If I have not addressed something that anyone has a burning question

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about and they want to ask me quickly now, then I am happy to pick it up, but I think I have covered everything that time allows me to. I am grateful to all those who have spoken. I look forward to hearing, as I think that I have, that this has moved a long way, which has helped with this aspect of the Bill.

Lord McKenzie of Luton: My Lords, I start by thanking the Minister for dealing extensively with the queries that were raised and all other noble Lords who have spoken in this debate. There are two strands to it. Most noble Lords believe that sufficient progress has been made by the amendment to be able not to stick with the amendment of the noble Lord, Lord True, if that is where they originally were. The noble Lord, Lord Shipley, said that it had gone far enough to be supported. The noble Lord, Lord Deben, said that it was a huge improvement, even if it was not as radical as he would have wanted, based on the Quality of Life report. The noble Lord, Lord Cormack, was thankful for the movement. The noble Earl, Lord Lytton, believed that it had gone some way. The noble Lord, Lord True, himself, believed that there had been real progress. The other strand is how much still needs to be consulted on, and some of the details still need to be fleshed out, notwithstanding what we have heard today. The noble Lord, Lord Phillips of Sudbury, the “legal eagle”, said that there should be minimum room for discretion, effectively, because this generates a lot of angst among people.

The key issue seemed to be about the period. We heard 21 days but the noble Baroness, Lady Gardner, and several other noble Lords, did not believe that was sufficient. On fees, bearing in mind the state of local government finance, the lack of support from central government, given the imposition, is a real issue. I also believe there should be further discussion and movement on the limitation of these arrangements to the immediately adjoining properties.

As I hope I said at the start, we tabled our amendment because we had not seen what the Government were then proposing and wanted something against which to benchmark what did come forward. However, on the basis of what we have heard and this debate, I beg leave to withdraw the amendment.

Motion A1 withdrawn.

Motion A agreed.

5.15 pm

Lords Amendment 25: leave out Clause 27

Commons disagreement and reason

The Commons disagree to Lords Amendment No. 25 for the following Reason—

25A: Because the new status of employee shareholder should be made available.

Motion B

Moved by Viscount Younger of Leckie

That this House do not insist on its Amendment 25, to which the Commons have disagreed for their Reason 25A.

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The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie): My Lords, I am grateful for the full and wide-ranging debate that has taken place during our consideration of the Growth and Infrastructure Bill. Last week the other place disagreed with the amendment to remove the employee shareholder clause from this Bill. In today’s debate I will explain why the Government support the position of the other place to retain it in the Bill.

I intend to focus my initial remarks on the announcement made by my right honourable friend the Minister for Business and Enterprise who gave an important assurance about jobseeker’s allowance claims. I will also explain to the House why I believe it is important to support greater choice for companies and individuals with the creation of a new employment status.

Last week, my right honourable friend the Minister for Business and Enterprise announced in the other place that jobseeker’s allowance claimants will not be mandated to apply for employee shareholder jobs. This means that individuals receiving jobseeker’s allowance do not need to worry about their benefits being affected if they do not wish to apply for, or accept, an employee shareholder job. This is an important point. The Government will not compel jobseekers to apply for these jobs even if the job fits within their job search specification and we will leave it up to jobseekers themselves to choose whether to apply or not.

During the Third Reading debate on the Bill we discussed the guidance that will be made available for jobcentre staff to help them understand the new employment status. We have now updated the draft guidance for DWP jobcentre advisers. It now states explicitly that a jobseeker cannot be mandated to apply for an employee shareholder job. A copy of the draft guidance was placed in the Libraries of both Houses on 16 April.

We are debating a wholly voluntary new employment status. As I have said throughout the debates, we do not want people to be coerced into accepting these new contracts and it is worth us considering other protections that this clause provides. On Report in the other place the Government amended the clause to give strong protections for existing employees, enabling them to turn down an offer of an employee shareholder contract by their employer. First, we created a new unfair dismissal right that applies from day one of an employee’s contract. This means that if an employee turns down an offer to change their contract to an employee shareholder one and they are dismissed because they said no, this would be considered an unfair dismissal. Secondly, we created a new right not to be subjected to a detriment from day one of an employee’s contract. This means that if an employee turns down an offer to move to an employee shareholder contract and they then suffer a detriment, such as being passed over for promotion or for a pay rise for no good reason, they may be able to make a successful claim at an employment tribunal. These two protections allow employees to turn down an offer of an employee

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shareholder contract if it does not suit them and they can do this with the knowledge that the law protects their decision.

The clause has further protections. The shares, which must be worth at least £2,000 when given to the employee shareholder, must be fully paid up by the employer. This is an important point because if the company became insolvent and the shares were not fully paid up, the employee shareholder would otherwise be liable to pay any outstanding amount against the value of the share. It is important that we consider the context in which the new employment status fits. Employment law offers a choice of different employment contracts.

Lord Lea of Crondall: I am most grateful to the Minister for giving way at this stage. However, he has rattled through the circumstances in which someone could apply for a job: he says there is no compulsion and that there are options. I want to put a question absolutely clearly and directly. It arises from the guidance, which post-dates where we were last time in this House; in fact, it post-dates where the Commons were a week ago. The guidance refers to the circumstances where the vacancy is an “employee shareholder job vacancy”. Where, therefore, is the option for the jobseeker who does not want to be an employee shareholder? There is none. Is it not disingenuous to suggest that there is an option?

Viscount Younger of Leckie: I thank the noble Lord for his intervention. This currently remains an entirely voluntary procedure and jobseekers will not face a detriment if they are due to apply for a position.

Lord Lea of Crondall: I am sorry; it is very unusual to intervene twice. However, where is the option? The Minister has said that there is no coercion. Of course there is none in the sense of having a whip, but where is the option to get a job if it is solely an “employee shareholder job vacancy”?

Viscount Younger of Leckie: I am not sure I entirely understand where the noble Lord is coming from. If a jobseeker is seeking a job there are various options for him or her to look at in terms of roles, and the employee shareholder role will be treated equally alongside any other option. The only difference is that there will be absolutely no detriment to that individual if they apply for an employee shareholder role, and if they decide to turn it down. On the matter of guidance, I clarify that it remains in draft form. If this is an issue concerning the way that the guidance is written up, I am more than happy to listen to the noble Lord if he has any comments to make.

Lord Monks: My Lords, I am grateful to the Minister for giving way. Is he therefore confirming in that reply that it will be possible for an employer to advertise employee shareholder contracts only? Is that what the Minister is confirming?

Viscount Younger of Leckie: The answer is that if an employer wants to recruit an employee shareholder, he or she will decide how to advertise for that. They may decide not to advertise. They have a range of

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options which include advertising nationally. They may choose to send the advertisement into a jobcentre locally or to spread it nationally. That remains open just as it is if they want to recruit for any other position.

Lord Monks: My apologies for coming in again. What is voluntary about that for the jobseeker in those circumstances—the applicant for the job in an area of the country where there may not be many jobs and that is the only status available?

Viscount Younger of Leckie: It remains the case that an employee looking for a position can decide for himself or herself whether to accept an employee shareholder role. It is a separate status compared to other statuses. There is no difference in terms of them deciding themselves whether they want to accept or turn down that particular role.

Employers and individuals are free to agree to the type of contract that is suitable for the job. We are not moving away from this principle; rather, we are enhancing it by offering a further option which will be right for some, but as I have made clear in previous debates, not right for all. There are already three established employment statuses in the labour market, all of which have different rights associated with them. The employee status has wide-ranging rights, including unfair dismissal, statutory redundancy pay, TUPE, maternity leave and pay, and adoption leave and pay, to name a few. The worker status has none of these rights. However, both employees and workers have a right to the national minimum wage, paid annual leave, a right not to be discriminated against, and rest breaks.

There is a further option for people seeking work. They may wish to become self-employed. If someone chooses to be self-employed, they must accept that they have very limited employment rights, such as the right not to be discriminated against. This clause offers both employers and individuals a further option: employee shareholder. This is likely to be a long-term relationship. I would not expect anyone to enter into an employee shareholder contract without carefully considering the implications. This new employment status, with share ownership and favourable tax treatment, will provide small growing companies with a new option to attract high-calibre candidates.

Lord Myners: The Minister says that he does not expect employees to enter into such contracts without careful consideration, and he thinks that this will be a long-term commitment. However, the articles of association of most companies place restrictions on the sale of shares. Will the Government require that there be no restriction on the employee’s ability to sell their shares for the highest price they can achieve, as opposed to having to sell the shares back to the employer at whatever price the employer might justify as being fair in those circumstances? Otherwise I do not see how the employee can form a view on the value of the consideration that they are being offered in exchange for giving up valuable employment rights. Will the Minister give us a clear answer on that question? I feel that he did not offer an entirely clear answer to the previous question from my noble friend.

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Viscount Younger of Leckie: The noble Lord makes a good point. The matter of what types of shares and what shares are offered is very much left to the employee and the employer. That is a negotiation between the employer and the employee. The Government will not prescribe how that will come about because there are different types of shares, as the noble Lord will know only too well from his experience. It will very much depend on the type of company, the wishes of the individual who may be looking at an employee shareholder role, and the employer.

Lord Forsyth of Drumlean: I am most grateful to my noble friend. When he says that the valuation and the convertibility of the shares will be a matter of negotiation between the employer and the employee, it is hard to see what the employee’s negotiating position would be. At the very least, should not the employee be given independent legal advice as to the valuation and the nature of the transaction he is entering into, which, after all, applies under existing employment law for compromise agreements and things of that kind? If it is to be a negotiation, surely the employee has to be informed, and not all employees will be particularly financially literate or employment experts.

Viscount Younger of Leckie: The matter of advice is very much applicable to settlement or compromise agreements, as my noble friend has pointed out. This concerns entering into an employment agreement, and therefore we do not see this as being appropriate. On the issue my noble friend has raised concerning share valuation, as he well knows, there are established means through actuaries whereby shares are valued. That is done all the time and it is a straightforward process. Again, that is very much a matter between the employer and the employee.

Lord Myners: I think the Minister has confirmed—but perhaps he could avoid any doubt about this—that it would be possible for the employer simply to say, “You can sell these shares only to me and only at the valuation that I judge appropriate, and without any reference to arbitration or a third party”. If that truthfully is the case, this policy is shambolic.

Viscount Younger of Leckie: I disagree entirely with the noble Lord because the employee shareholder will decide for himself. If he does not like the terms of the shares being offered, he does not have to enter into this particular agreement. It is wholly voluntary. He may be well advised to get some advice. He may decide himself to get some advice. That is not an issue.

Lord Adonis: My Lords, could the noble Viscount explain to us how jobseekers, who may have no resources whatever, will be able to get the advice that he has just told the House they would be well advised to get because of the very complex nature of the agreements and shareholding options into which they will be obliged to enter?

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5.30 pm

Viscount Younger of Leckie: Yes, I can answer that. However, the issues may not be that complex. It depends entirely on the agreement between the employer and the employee shareholder who is considering the new job. As the noble Lord well knows, a variety of sources such as lawyers and accountants can give this sort of advice to a prospective employee shareholder.

Lord Adonis: How do these jobseekers pay for this advice? Does the noble Viscount have a special fund which will be available to them? I know that plenty of people offer this advice but I am not aware that many of them offer it for free.

Viscount Younger of Leckie: To clarify what I said to my noble friend Lord Forsyth a minute ago, legal advice is clearly available for settlement agreements and compromise agreements. However, we have made it clear that it is not available at this time for those entering into a new employment contract.

Lord Deben: I wonder whether I can help my noble friend. When my companies give shares to our employees, not in return for anything but because they have worked for us for some time and we want them to be involved in the companies, we still find it difficult to explain the terms of those things, even though the terms, whatever they are, are a plus rather than a minus. I wonder whether it is right to suggest that this would not be a difficult thing for people to understand. That worries me considerably. I am very pleased that the Government have moved on the big thing for me, which concerned making it impossible to continue to have jobseeker’s allowance. That for me is a crucial matter. However, I wonder whether my noble friend does not underestimate the difficulty of explaining to somebody even the simplest of share options and share sales.

Viscount Younger of Leckie: I very much note my noble friend’s point. He has experience in this field. I say again that some negotiations may become complicated, but the employer and the employee shareholder will go into this with their eyes open. On the other hand, it may be a very straightforward and simple process. Indeed, the employee shareholder who is looking at this new role may decide that he is entirely comfortable with what he has seen, heard and, indeed, read. I clarify again that this is very much a matter between the employer and the employee shareholder.

Lord Myners: My Lords—

Viscount Younger of Leckie: I hope that I may be allowed to move on.

Lord Myners: The Minister has just said that legal advice is available for settlement and compromise agreements but that it will not be available to an employee considering one of these contracts. Will he explain why legal advice would not be available? Will he then answer the question from my noble friend on

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the Front Bench on how a jobseeker seeking employment on the national minimum wage will be able to cope with the complexity of law and the articles of association and afford to take separate legal advice, which at a minimum would probably cost in the case of most lawyers the equivalent of close to a month’s wages on the national minimum wage?

Viscount Younger of Leckie: I can only reiterate that it entirely depends on the role on offer, the type of company and the type of employer as to how the discussions will go. An individual taking on a normal role, if I may put it that way—an employee role or a worker role—may find that sort of contract complicated, in which case they may have obtained their own advice and are still free to do so. This is a wholly different—

Lord Forsyth of Drumlean: I am most grateful to my noble friend for giving way and I shall try not to interrupt him again. However, can he explain to me why employment law as it stands requires employers entering into a compromise agreement to provide legal advice in order to make that agreement stand? They usually provide a reasonable amount of the cost of independent legal advice. If that is appropriate for a compromise agreement where people are surrendering certain of their rights, why should it not be appropriate where people are giving up their employment rights and entering into what may be a complicated and major financial decision, given the proposed levels of tax relief with capital gains relief of up to £50,000? What is the Government’s logic in saying that advice should be paid for by the employer in one case but not in this case?

Viscount Younger of Leckie: I know of many employee contracts—not those for an employee shareholder—where serious advice is required. However, the status of being an employee shareholder is wholly new. The individual concerned may well require advice but noble Lords are talking about the circumstances of entering the employment phase and the proposal we are discussing would set a new precedent. As we know, often very difficult discussions take place towards the end of the employment contract. That is where it has become the custom and practice for companies to pay fees. That is the difference. I hope that I may be allowed to move on.