Many speakers have made the point about Clause 64 in the context where the result would have been no different. I would ask in how many cases the following situation applies. A party is elected to government after a hard-fought election. It has set out very clearly in its manifesto exactly what legal changes will be brought about in various fields of law. It will invoke procedures which are already set out in statute to make those changes. Those proceedings will, of course, involve consultation. However, every thinking person knows that that is something entirely chimerical. There will be consultation, yes, but the consultation will make no difference to the determination and resolve of that new Government to bring about that change. If you say that that consultation does not really matter, what can you do? You do not challenge the ultimate right of that party to bring about that legislation, but you can challenge the right of that party to make a mockery of the procedures of law. That is exactly what is entailed here.
Consultation does not, of course, mean that you have to weigh in the balance the views that are tendered to you, but it does mean that you have to look carefully at what is said and give a reasonable period and a reasonable prospect for people to be able to make such representations. The idea that those count for nothing is, I suggest, utterly inimical and utterly contrary to our concept of the law as we have it.
Baroness Deech (CB): My Lords, I am not a practising lawyer, but I have experience of being judicially reviewed, and after much hard thought, I speak in support of the noble Lords, some of whom are learned, who have put their names to this amendment and similar ones. After much thought, I think that this is the wrong clause, and I think that the way in which it is drafted will open doors to as much costly litigation as it is intended to prevent.
I can well imagine the sort of thing that the Government had in mind in bringing this forward. For example, in my experience, a student would challenge a poor grade or a failing grade on the ground that some tiny bit of procedure had gone wrong, something had not been put up on the notice board at the right time or whatever, and one knew perfectly well that, no matter how many judges looked at it, this student would still, in the end, be a failing student or a student with a poor grade. I quite understand that. However, I do not believe that this is the way to tackle it. There are procedural problems that ought to be tackled first. There are too many opportunities to ask, and ask again, for leave to judicially review something, and then to appeal against it. There are very many bites at the cherry. Although one may know very well that in the end the judicial review will not succeed, for a year
or two an expensive dark shadow hangs over the body that might be judicially reviewed while lawyers are having to cope with the case.
Nevertheless, despite those drawbacks, I support this amendment. I call on the Government, instead, to look at procedural reform that would make the whole procedure quicker, cleaner and cheaper.
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Lord Beecham: My Lords, this has been, as ever, a very well informed and interesting debate, and it has been particularly beneficial to have the views of those who are not lawyers to consider. I suppose I must congratulate the Minister on this occasion on having at least two supporters from the government Benches, which is double the usual quotient, if not better than that. I simply say, however, to the noble and learned Lord, Lord Mackay, who makes a valid point about financial information, to which we will come later when we discuss a further group of amendments, that there are other arguments about finances. These include in particular, as we shall no doubt hear, the chilling effect on those who are not in a position of wealth or able to find large sums of money to meet the potential costs. That is an item very much to be weighed in the balance. As the noble and learned Lord himself pointed out to his noble friend Lord Horam, who has been in his time the noble friend to all three political parties and members of them and remains on friendly terms with members of those parties, in the planning field the landscape has changed in any event, perhaps in a timely fashion. I do not think the noble Lord’s concerns are particularly relevant to the day’s deliberations, but in any event all that is required effectively is for those making decisions to comply with the requirements of the law. That is ultimately what judicial review is all about.
I support the amendments in the names of the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Pannick and Lord Carlile, to which I have subscribed my name, and will speak to some amendments specifically in my name. I refer to Amendments 71B, 72D, 72E and 73A and 73C in this group. I will outline those briefly before turning to the substance of the argument. Amendments 71B, 72B and 73C would replace the words that we have heard something about this afternoon, “highly likely”, with the word “inevitable”, which is currently the position. That is to say, the outcome of the Bill for the applicant would not have been substantially different if the conduct complained of had not occurred. Instead of that being “highly likely”, that would become the “inevitable” position. That is a material restoration of the position as it now stands.
Amendments 72D and 73E would remove the obligation on the court—that is, both the High Court and the Upper Tribunal—to refuse to grant leave even if it believes that the outcome for the applicant would not have been substantially different if the behaviour complained of had not occurred. Amendments 72E and 73A would alter the definition of the conduct complained of for the purposes of determining whether such conduct would have made a difference to the outcome to mean any procedural defect rather than the conduct of the defendant; they would put it on more of a procedural basis.
As we have heard today, Clause 64 raises a new and significant barrier on the road to those seeking to hold the Government or other public bodies to account for a failure to observe the law. This self-serving change is one of a series deliberately designed to constrain judicial scrutiny and narrow judicial discretion. Its argument is partly based on a false claim that the number of judicial review cases has trebled whereas, as was made clear at Second Reading and, tellingly, repeated by the Constitution Committee in its second report on 4 July, after taking into account the transfer of immigration cases to the Upper Tribunal, the number has increased in 13 years by only 21%, or 366 cases.
Of those, only 0.4% have been conducted by campaigning organisations—that is to say, 50 cases in 13 years. Yet those campaigning organisations have attracted the obloquy of the Lord Chancellor, who, as we heard powerfully from the noble Lord, Lord Ramsbotham, in the debate on Part 2 of the Bill, has described organisations as being “left-wing”. Incidentally, those organisations that have brought judicial review comprise such extremist left-wing agitators as the Countryside Alliance, the Daily Mail, the Daily Telegraph and UKIP’s former treasurer. However, the Lord Chancellor has not confined himself to that observation. He spoke—or wrote, to be more precise—in the Daily Telegraph that judicial review is,
“exploited inappropriately by pressure groups with a political point”.
The Joint Committee on Human Rights, which I hardly need remind your Lordships is a cross-party—indeed, a cross-House—committee, with members from all Benches, including the Cross Benches, observed that:
“Such politically partisan reasons for restricting access to judicial review, in order to reduce the scope for it to be used by the Government’s political opponents, do not qualify as a legitimate aim”.
I think that most noble Lords who have spoken would concur with that fairly damning conclusion as, I suspect, many others would as well.
If the Government are concerned, as the Minister claimed to be at Second Reading, that “other more meritorious”—I pause to inquire whose definition of “merit” would be applicable—judicial reviews “can proceed more quickly” perhaps the Minister can tell us, in addition to those matters that have already been referred to by noble Lords, how many of the 25 recommendations made by the Bingham Centre for the Rule of Law in February the Government propose to adopt, or, if they have not yet reached a conclusion, at the very least what consideration has been given, and in what form, to those proposals.
Of course, as we have already heard, the amount that the noble Lord, Lord Horam, referred to, of a six-week period for raising an objection, has already been dealt with. A six-week period being imposed would in some cases present very serious difficulties, particularly with regard to the position of the non-availability of legal aid for pre-application work. However, of course, not all those cases are funded by legal aid in any event. I cannot speak of the Islington experience with the inside knowledge of my noble friend Lord Adonis or as acquired by the noble and learned Lord, but the fact that there is a disagreement about that on
a particular case does not make a case for the substantial change that the Government are embarking on.
The effect of this clause in lowering the threshold for refusing permission to proceed to one in which it is only “highly likely” that the claimant will not succeed is, in the words of the Joint Committee,
“highly likely to conflict with the requirements of the European Convention on Human Rights”,
and has drawn the vigorous condemnation of the senior judiciary. The amendments before us echo the recommendations of the committee, not least in the requirement that it would be inevitable that the claimant’s case would fail. The Government choose to ignore the difficulty of claimants effectively having to try the issue without the benefit of legal aid or advice, which, as I have said, is not available at the permission stage.
Moreover, the JCHR recommendations address the additional and fundamental issue of whether the application would make a substantial difference to the applicant if the conduct complained of had not occurred. The recommendation in the Bill personalises the claim when in the first place many such claims by definition—as we have heard, again, from other of your Lordships tonight—give rise to a public interest element that transcends the position of the applicant, whether that is the applicant for a television licence or other rather more intrinsically weighty matters. Secondly, of course, it ignores the fundamental imperative of the decision-making being lawful. As the Constitution Committee points out,
“lowering the threshold risks unlawful administrative action going unremedied”.
When the President of the Supreme Court says that,
“any interference in or restriction of judicial review has to be looked at very carefully”—
to which I add the obvious further obvious comment that this must be especially true when those proposing the interference are by the very nature of the process the potential respondents in many claims—your Lordships’ House is obliged to take heed.
I very much hope, even at this late stage, that the Government will review their position. If not, I envisage that on Report, those of us who have tabled amendments and spoken to them tonight will seek to test the opinion of the House about a fundamental, radical and wrong-headed change to our system, which we must use our best endeavours to halt if we cannot improve it.
Lord Faulks: My Lords, this has, correctly, been a lengthy debate, in which views have been expressed by a number of noble Lords with judicial and legal experience and—to the benefit of the debate—by noble Lords who have different but none the less valuable experience to contribute to the debate as a whole. Since this is our first opportunity to consider Part 4, it is wholly understandable that the comments made by certain noble Lords have ranged beyond the strict confines of the clause that we are considering, because the general thrust of the argument embraces more than one clause. I make clear that any points that arise in the subsequent groups should be taken again, and
that no noble Lord should feel any restriction by having mentioned them in this first group.
The development of judicial review has been contributed to, quite apart from this debate, by a number of those who have contributed to the debate. Although they have not said so, it is clear that there is a great deal of judicial pride in the fact that it has evolved and provided a valuable, and indeed fundamental, check on executive power, not just in this country but, as we have heard, in Northern Ireland. I do not resile from anything that I said at Second Reading about the importance which the Government attach to judicial review, nor indeed in the columns of the Times. I have not ventured into the Daily Mail or any of the other organs that the noble Lord, Lord Beecham, referred to, nor have I expressed any views about the particular political affiliations of any potential applicant, which are nothing to the point. The question is whether it is appropriate for any—and in particular these—reforms to take place.
Of course, it is tempting to suggest that judicial review is so perfect an object that it is beyond improvement. It is described by the noble and learned Lord, Lord Brown, as “a heresy” to consider any modification of the doctrine of judicial review. I agree with those who said clearly that any change to judicial review should be looked at very carefully indeed—quite so. That is precisely what this debate and subsequent debates enable us to do. However, I respectfully differ from the point that it is beyond Parliament’s competence to make some modest changes, and these are modest changes. That is appropriate if Parliament approves that these changes are made, bearing in mind, of course, that they should not encroach on the proper role that judges have established and which they perform so well. We must accept, as illustrations have shown in this debate, that there is the potential for abuse in judicial review. That is not to say that it does not have an extremely vital function, but we should be astute enough to ensure that the doctrine is sufficiently rigorous to remove or at least limit the possibilities for abuse.
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We suggest that our reforms will effect a modest rebalancing to ensure that meritorious claims—I will deal with the adjective “meritorious”, as invited—that are grounded on failures of public administration that affect people can proceed swiftly and effectively to their being determined. Time limits are now shorter than they once were but there is still the question of obtaining a permission hearing and then, if permission is given, the question of obtaining a full hearing. That may take some time. While I applaud all the attempts by the judiciary and court staff to speed things up, it is plainly the case that there are delays. Sometimes, as my noble friend Lord Horam so clearly pointed out, these delays can be the enemy of progress in infrastructure projects and the like, which I am sure that noble Lords on all sides of the House would not wish to impede, when in fact the grounds for purported judicial review are baseless.
Clause 64 is one part of our approach. It modifies how the High Court or the Upper Tribunal deal with judicial reviews where the matter complained of was highly unlikely to result in a substantially different
outcome for the applicant. The clause is designed for the most part to bite on errors in procedure that are highly unlikely to have changed the end result. For example, a public authority might have run a consultation to inform its decision on where to place a pedestrian crossing but failed to notify—when it should have—an individual who ought to have been notified that the consultation had begun, despite the public authority having let many others know. However, that person’s likely arguments have been raised by many other individuals, and the public authority made its decision having fully considered the arguments that were raised. In those circumstances, the court might conclude that the failure to notify that particular individual, unlawful though it was, was highly unlikely to have affected the outcome for the applicant, and it would be futile to quash the decision and require reconsultation since nothing new would be added.
Clause 64 would mean that the court, in the absence of other grounds of challenge, would not give permission or grant a remedy so that the original decision would stand. This clause will help to ensure that judicial review focuses on matters of importance, not on mere technicalities.
Lord Beecham: My Lords, would the case that the noble Lord has just outlined not be one in which the decision be “inevitable” rather than “highly likely”? Would the amendment that I have tabled not therefore meet that sort of case?
Lord Faulks: It might or might not be “inevitable”, but we suggest “highly likely” would ensure that it would not survive. “Inevitable” might leave room for the argument that it was highly likely but not inevitable. This makes sure that the position would be as we say that it should be.
Lord Davies of Stamford: I am grateful to the Minister for giving way. Does he accept that his remarks in his last few sentences do not really address what has come out of the debate on the subject? It is quite clear at present that the court would almost certainly not give judgment in such circumstances as he described; it would set aside the argument, not accept a judicial review and say that there was no reason to reopen the whole case. The court at present has that jurisdiction and has that opportunity if it wishes to use it. What the Government are trying to do with this clause is to remove any judicial discretion at all by the phrases “must not” or “may not”. The examples cited by the Minister stand in favour of the preservation of the existing law, not the changes in the way recommended or as enshrined in this Bill.
Lord Faulks: I think that is very much the same comment the noble Lord, Lord Beecham, made, although expressed in slightly different terms. As I will come on to explain, we suggest that the clause—if it is incorporated into the Act—would still give the judge discretion. We are simply making it clearer where the bar is placed.
At present the courts will find that there will be no difference where the end result was inevitably the same. Amendments 71B, 71C, 72B, 72C, 73C and 73D and the amendments consequential upon those would
go further in adding additional requirements concerning the public interest and the overriding objective. Those additional requirements do not apply at present as the law is understood by the Government.
The current threshold is already extremely high. In the Government’s view, this means that judicial reviews can be grounded on technicalities which would in practice have made no difference to the end result, or, ultimately, the applicant. That is why it comes up so rarely, and that is why we wish to modify the current approach. In the Government’s view, scarce court resources would be better applied to cases in which a difference to the outcome is more likely. But I reassure noble Lords that, as drafted, what Clause 64 does not do is make the exercise of this power in any way routine. This is because the clause applies the standard of “highly likely”. This will remain a high threshold, and when there is any significant doubt that there could have been a difference for the applicant, the threshold will simply not be met.
Concerns have been raised that in applying this approach of diligence, the courts will be dragged into the forbidden ground of a merits-based review, where they insert themselves into the decision-maker’s shoes. I respectfully disagree with this. I am sure that the courts will continue with the established way in which judicial reviews progress; namely that they consider the process which led to, and not the merits of, the decision, the legality of the process being the essence of the challenge. They will perform this exercise even in the examples postulated by the noble Lords, Lord Beecham and Lord Davies. It is inevitable that they will have to look at the facts there and then on the basis of the information. What we are suggesting is that a very low bar is raised slightly higher, but the exercise will be performed at the same stage.
Furthermore, there is an additional reason why this exercise should not create real difficulties for judges. Judges often have to make decisions on the basis of information available to them which is not complete. For example, in a civil claim where, let us say, a claimant is suing for negligence, the defendant may argue that the claim should be struck out on the basis that it discloses no cause of action. There the claimant’s case may be taken at its highest, and the argument proceeds that even if the claimant is right, the claim is not sound in law and must therefore be struck out, to which the answer often given by claimants is, “Well, my Lord, you haven’t heard the evidence. If you hear the evidence and get a clearer view of the matter, then our slightly adventurous case may be seen in a better light”. Sometimes that argument is persuasive, but very often judges are able to take the view that the position is sufficiently clear for it to be uneconomic and unnecessary to hear the case. This is the task they perform.
Nor do I think that the “highly likely” test should be beyond the agility of our very distinguished judges performing in the High Court, as the noble Lord, Lord Elystan-Morgan, emphasised. It is not the balance of probabilities, but the “highly likely” test is something I feel confident that they will be able to apply.
Amendments 72E and 73A probe the scope of Clause 64 in practice following the recent report of the
Joint Committee on Human Rights, to which the Government responded in July, over what types of flaw the clause will affect. In the Government’s view, the term “procedural defect” is too imprecise to be used in legislation. The grounds for judicial review are not defined in legislation; doing so in certain areas would be a significant step. “Procedural defect” has no accepted definition at present under case law, and it would be virtually impossible to arrive at one that would stand the test of time, given how judicial review evolves with each new decision. Furthermore, it would lead to the risk of satellite litigation, referred to by a number of noble Lords.
We have also heard concerns that the clause will cause administrators to act unlawfully, for sinister motives, safe in the knowledge that, if challenged, they will have a “get out of jail” card. No decision-maker is going to follow knowingly an unlawful process simply because they think that at some point in future they may be able to argue successfully that there would have been no difference to the outcome. This is particularly so, as I have already indicated to your Lordships’ House, because our reforms have maintained a very challenging threshold.
Lest it be thought that the Government have not listened and are ploughing on regardless of the views expressed by others, I say that the question of standing was one that was often considered controversial in the reform of judicial review, and the Government initially thought that there ought to be a real connection between the claim and the applicant. The applicant state is referred to by the noble Lord, Lord Pannick. I looked at the White Book as to the summary of the development of the sufficient interest test for standing, and it contained this comment:
“The courts have adopted an increasingly liberal approach to questions of standing over recent years”.
Quite so—but the advantage of having a fairly elastic rule on standing was acknowledged by the Government on the basis that sometimes it is important that these cases are brought forward. It is an indication that the Government are making appropriate responses to the concern that has been expressed.
Some have argued that this clause will add delay to the consideration of judicial reviews by potentially requiring fuller argument at the permission stage. That is in part, as I apprehend it, the basis for Amendments 72 and 73, which would remove the requirement for the High Court or Upper Tribunal to consider a no-difference argument when it is raised by the defendant in the response to the application for permission. The Government consider that it is entirely proper that, when a no-difference argument is made by a defendant, it should be considered by a court or tribunal. I accept that when this argument is raised it requires courts to look at the case and the issues with care, but they do that at the moment. I do not think that that would mean that judicial reviews would become overlong. On the argument being raised more often, I say that it should be put only by defendants sure or confident of their arguments and position; if made without a sound basis, I would expect the courts to look to costs, which would act as a sufficient deterrent. In due course, we will invite the Civil Procedure Rules Committee to
create a process that allows for oral arguments on this question at permission. While it would be wrong of me to pre-empt that committee, I am sure that it will be done in a way that makes the procedure straightforward and cost effective.
Amendments 72 and 73 would also remove the duty on the court to refuse permission when satisfied that it is highly likely that in the absence of the flaw complained of the outcome would not have been substantially different for the applicant. Those are, effectively, wrecking amendments. The Government’s view is that in those situations permission should not be granted.
Lord Pannick: Could the Minister clarify the Government’s position on the point that I understood was raised by the noble and learned Lord, Lord Mackay of Clashfern? As I understood him, the Minister suggested that even under Clause 64 the court could allow a judicial review claim to go forward and could grant a declaration of illegality, even if the outcome of the administrative process would have been the same for the claimant because the outcome of the litigation would be different. It would be a declaration. I see him nodding. For my part, I understand Clause 64 to refer to outcome as meaning the outcome of the administrative process. However, if I am wrong, could the Minister say so?
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Lord Faulks: I was going to come on to this, but it is a highly pertinent point. The position as I understand it is that a decision which has resulted in a declaration, whether it is called a declaration formally or not, whereby the validity of the argument is acknowledged, might give the applicant the satisfaction—and, if there is any significance, significance can be drawn from it—of knowing that there has been an unlawful act, or whatever the nature of the challenge is. But that would not necessitate a full-blown hearing to determine something that is evident on the papers but does not require there to be a full hearing some months later, for example. I am concerned about that point, and I shall consider it further in terms of the mechanism whereby the answer can be given without the need for expensive and cumbersome litigation. I appreciate the point.
Lord Marks of Henley-on-Thames: May I press my noble friend the Minister a little further on that? As I read the clause as drafted, the fact that the:
“High Court … must refuse to grant relief”,
encompasses a refusal to grant the declaration. For that reason, I was concerned by the intervention of the noble and learned Lord, Lord Mackay, as he expressed it on the point, because my noble friend the Minister’s final speech has dwelt on the question of whether the no-difference test is met. What he does not appear to allow for—and I shall be corrected if I am wrong—is, if the no-difference test is met, under this clause as drafted there is nothing that the court can do if this were implemented, because it must refuse to grant relief. That is how it seems to me, and to the noble Lord, Lord Pannick.
Lord Faulks: I do not think that I can expand much on my previous answer. If it makes no difference, it is
true that, as the clause says, no relief should be granted. What I said that I would consider is the question of when it would make no difference but there is some benefit of a declaration or some judgment which reflects the lawfulness, whereby there might be some scope for providing that that should be given in the course of determining the very issue that Clause 64 covers. I think that that is as far as I can go. I shall consider the argument.
Lord Davies of Stamford: The Minister seeks to make a distinction between the court’s ability to grant relief and its ability to proceed to make a declaration. That seems an interesting line of approach in the light of the debate that has taken place. Can I therefore put to him the suggestion that I put earlier to the noble and learned Lord, Lord Mackay? Would it not be helpful if the Government—in this case, the Minister—brought in a new amendment at Report that made it clear that, notwithstanding the restrictions that appear to be overwhelming in Clause 64, the court could nevertheless proceed to grant a declaration?
Lord Faulks: I am grateful to the noble Lord, but with very great respect I think that we are going over the same ground again. I hear the argument; I have said that I will consider it, but I want to consider it in a way that does not emasculate Clause 64, which is there effectively to prevent cases in which it would make no difference from proceeding to lengthen expensive litigation. But I acknowledge that there is a potential force in the argument made by the noble and learned Lord, Lord Woolf, and picked up by other noble Lords, including the noble Lord, Lord Davies, about the possible benefit of a declaration, whether it is in the form of a judgment reflecting the point that seeks to be established but does not involve the expense and time of having a full-blown hearing. I do not think that I can take the matter any further at this stage.
In the approach that we suggest to what is essentially a desire to get rid of technical objections, we wish to refer to Lord Denning’s reasoning—and I am glad that he was mentioned earlier as he gets insufficient citation in the courts nowadays. He held that the court,
“should not find a breach of natural justice unless there has been substantial prejudice to the applicant as a result of the mistake or error which has been made”.
That is a reference to a case in 1977—
Lord Woolf: Would the Minister be grateful for a copy of De Smith?
Lord Faulks: The case is George v Secretary of State for the Environment. I omitted one or two pages of my speech in order not to weary the Committee but I am most grateful for the offer of an autographed copy of De Smith.
I reiterate that, where there is any significant doubt over whether the flaw complained of was highly likely to have made a substantial difference, permission can be granted, and judges will continue to perform their established role. I remind the Committee of a significant judicial discretion which will remain under the clause. Crucially and properly, this discretion will extend to
whether it is highly likely that the procedural defect would have resulted in a different outcome for the applicant in any given case and whether any difference would have been substantial.
Amendments 72D and 73E are intended to replace the requirement to refuse to grant permission where it is highly likely that there would have been no substantial difference with an option to refuse permission. It is worth examining that. It postulates the position where the judge says, “I think it is highly likely that it would have made no difference at all, but still I should allow this to progress”. Similarly, Amendments 70, 70A and 71 are intended to replace the requirement to refuse to grant a remedy, including a financial remedy, where this is the case. The Government’s view is that these amendments would significantly weaken the utility of the clause in dealing with minor technicalities in a proportionate manner.
Under Clause 64 as currently drafted, the High Court and the Upper Tribunal will retain significant discretion over the application of this clause. Crucially and properly, this discretion will extend to whether it is highly likely that the procedural defect would have resulted in a different outcome for the applicant in any given case and whether any difference would have been substantial. Indeed, the term “highly likely” will, as I have said, be interpreted by the courts. Where the court comes to the conclusion that it is highly likely that the outcome would not have been substantially different, the Government’s view is that the court should not grant a remedy. I can see no merit in continuing a case where there is no real prospect of a difference in outcome and a remedy such as a quashing order would be futile.
In conclusion, I trust that I have reassured the Committee that the Government absolutely understand the importance of judicial review and do not wish inappropriately to interfere with the exercise of the discretion by the courts, nor substantially to disturb the approach that the courts have taken in this very important area of the law. In fact, I submit to your Lordships that Clause 64 is modest in ambition and beneficial in effect. I hope that, with that reassurance, the noble and learned Lord will withdraw the amendment and I urge the Committee to agree to Clause 64 standing part of the Bill.
Baroness Lister of Burtersett: The noble Lord has not responded to a very specific question from my noble friend Lord Beecham, which was: how many of the Bingham centre’s recommendations have the Government accepted? This is very relevant to the point made by the noble Lord, Lord Horam, about delay. He quoted the Joint Committee on Human Rights, making great play of the word “perennial”, but I think that he rather quoted out of context. Perhaps I may read what the Joint Committee said:
“We welcome the Bingham Centre Report as an important contribution to the debate about possible reform of judicial review, demonstrating that the perennial problem of reducing the cost and delay of judicial review proceedings can be addressed in ways which are compatible with effective access to justice”—
that is, it is saying that these reforms are not so compatible.
Lord Faulks: I am glad to have that intervention from the noble Baroness. In fact, it reminds me that I did not specifically answer a question that she raised in relation to Article 6 of the European Convention on Human Rights. I reassure her and indeed the Committee that the Government’s view is that the reform is compatible with Article 6. As the Committee will appreciate, the enshrined right of access to the court is not absolute. The Government’s view is that this is a proportionate approach to securing the legitimate aim of having judicial reviews based on minor technical defects determined more quickly with fewer resources.
I am unable to respond now on the Bingham centre but I will write to the noble Baroness and the Committee to inform them of the current position.
Lord Woolf: My Lords, I am grateful to the Minister for the careful way in which he has sought to reply to the issues raised. I also hope that I am not misinterpreting him when I detect that he is prepared to look again at the provisions in Clause 64 to see whether some of the points that have been made may be of substance.
Lord Faulks: I am sorry to interrupt but I do not want to raise expectations inappropriately. I think that the only area where I said that I would look again was in relation to the very valuable point made by a number of noble Lords, including the noble and learned Lord, about the possibility of a declaration at an earlier stage. Beyond that, I am afraid that I did not give any undertaking at all.
Lord Woolf: One has at least to be thankful for small mercies, even if, in your view, they do not go nearly far enough. I am certainly not indicating that in due course there will not be a Division in this House on the appropriateness of this clause.
What the noble Lord has not done in his reply is to deal with the question that has been asked very clearly and has been emphasised by the noble Lord, Lord Davies—that is, what are the powers of the courts now? The position as I understand it is that everything that the Government want to achieve through Clause 64 can be achieved by judges now. If in fact it is said that they cannot, why is it not left to the rule committee, which of course the noble Lord knows about? He knows that it consists of an expert body looking at how the law should be changed in order to obtain improvements. The noble Lord, Lord Hart, in his very helpful intervention, pointed out that significant improvements can be made in planning matters.
The noble and learned Lord, Lord Mackay, and the noble Lord, Lord Horam, mentioned the problems that exist in judicial review. I am certainly not suggesting that it would not be preferable if consideration were given to adopting improvements where they can be made. However, I still suggest that the best and only way to bring about real improvement is through the sort of process that, at the behest of the noble and learned Lord, Lord Mackay, I undertook in regard to civil procedure generally, including looking at judicial review. The fact is that you cannot do these things in the piecemeal way that the Government are seeking to
do in these clauses. If you do, the result will be that you inhibit judges’ ability to carry forward what they have done so far, not perfectly but to the best of their ability.
Perhaps I may give one more example in relation to declarations which the Minister might want to consider. There are cases of judicial review where a matter comes before the court and it is at that stage or during the course of the proceedings that it is accepted that a particular result should be produced. None the less—and I should add, so as to make Clause 64 relevant, despite the fact that the applicant will receive no benefit—it is still thought by the court that it is in the public interest not only to give a judgment but to grant a declaration. That can now happen.
There are also cases where the court now can be asked to make a future declaration in order to clarify the law. The declaration is a remedy which is emerging to its full extent in this jurisdiction, and there are cases where other steps can be taken that are in the interests of good administration, the interests of the rule of law and the interests of justice. I repeat: it is not that this cannot be done, but this is not the way to improve the system of judicial review.
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As the Committee will know, Lord Diplock was not only a Member of this House but a jurist of the highest calibre. He made the boast, of which the judiciary is very proud, that the improvements made in judicial review were the finest things to happen in his judicial lifetime with regard to protecting the rights of the citizen. Once we start legislating in the way of Clause 64, the intent of which is to prevent an exercise of discretion in this area, we fundamentally change judicial review. It is not just something superficial; we would be saying that the judges’ discretion should be curtailed. The Government must think about whether that will really benefit the application of this remedy in this situation. I suggest that it would lead to just the satellite litigation that the Minister wishes to avoid.
Those who have spoken in this debate have, in many cases, great practical experience of judicial review as it is. They see its shortcomings and are all in favour of tackling them; but, unfortunately, that will not be achieved by Clause 64 as it is drafted. I do not believe that the Minister thinks that adopting some of these amendments would undermine what the Government say they are trying to achieve with the provision. Perhaps I may leave the matter in this way: we reserve the right on Report to challenge this provision and to say that it should not be part of the Bill, or that it should be amended in the way proposed. At this stage, however, I will not divide the Committee.
Lord Beecham: I am not entirely clear about the Minister’s position in relation to the process. Assuming that the highly likely test—indeed, any test under the present arrangements—is retained, it would presumably need to be the subject of the application for permission. The Minister is nodding. Will the applicant not therefore have to make a case at that stage? That is presumably the whole point of applying for permission. In circumstances where legal aid is no longer available for
those who do not have the means, does that not place a heavy burden on an applicant in a way that the inevitable—that is the word he used—test would not do at that crucial stage?
Lord Faulks: An applicant now may fail at the permission stage if the outcome would be inevitable, given the putative departure from lawfulness on the part of the public authority. It is precisely the same calculation that an applicant has to make whether the test is inevitable or highly likely, that the result would be the same. Both are directed at whether there is essentially a technical departure with no real substance. As I said, the only difference is whether the matter is a very low or a slightly higher bar. The position is that all claimants in any form of litigation will have to consider the real merits of their case and decide whether it is worth pursuing.
The Deputy Chairman of Committees (Baroness Fookes): Would the mover of the amendment confirm that he is seeking leave to withdraw it?
Amendments 70A to 73E not moved.
Clause 65: Provision of information about financial resources
73F: Clause 65, page 66, line 9, leave out from “specified” to end of line 10 and insert “by the Secretary of State in regulations”
Lord Beecham: My Lords, the amendments in this group essentially stem from the third report of the Delegated Powers and Regulatory Reform Committee, published on 11 July. They deal with the Bill’s provisions in relation to the requirements on applicants for judicial review to disclose information about their financial resources or, critically, those of third parties—that is to say, someone who, under Clause 66(3), is identified by such information as,
“providing financial support for the purposes of the proceedings or”—
and in my submission, this is deeply worrying—
“likely or able to do so”.
In its report, which dealt with a number of other parts of the Bill, the committee looked in particular at the question of information about resources contained in Clauses 65, 66 and 68. It stated:
“Clause 66(2) provides that the High Court, the Upper Tribunal or the Court of Appeal must, when determining costs … have regard to information specified in subsection (2)”.
“Subsection (3) also requires the court to consider whether to order costs to be paid by a person who is not a party to the proceedings but who is identified in such information as someone who is (or who is likely, or is able) to provide financial support”.
The information about financing the proceedings will be provided in accordance with the existing legislation applying to the courts and the tribunals.
The committee goes on to say that the Senior Courts Act 1981 would be amended by Clause 65(1),
“to require an applicant to a court for leave to apply for judicial review to provide any information … as is specified in rules of court”.
That may include information of the kind mentioned in the subsection to which I referred—and, indeed, other subsections. Clause 65 goes on to specify that that also includes information about resources likely to be available to an applicant, which is understandable, and then deals with the position of body corporates and their members.
Of course, tribunal procedural rules are made under the Civil Procedure Act. They are made not by Ministers but by the rules committee. The problem with that is that they must be allowed by the Lord Chancellor and then are subject to parliamentary scrutiny by way of the negative procedure. Conventionally, it sounds as if the negative procedure would apply and we in this House are accustomed—perhaps too accustomed—to dealing with matters by way of the negative procedure.
Even assuming that that was satisfactory, it is not as simple as that, and I would argue that in a matter affecting judicial review, we should in any event be looking to the affirmative procedure and not the negative procedure. But even the negative procedure as laid down is not quite as open to the influence of the rules committee as one might think. The 1997 Act enables the Lord Chancellor to give notice to the rules committee that,
“he thinks it expedient for the rules to include provision that would achieve a purpose specified in the notice”.
Section 3A(2), the following subsection of the 1997 Act, states:
“The Committee must make such Rules as it considers necessary to achieve the specified purpose”.
In other words, the Lord Chancellor’s purpose has to be implemented by the rules committee. We are in a position where, ultimately, to use a commonplace metaphor, the shots are all the Lord Chancellor’s. He calls the shots via the rules committee. Therefore, there is no independent role for the rules committee. A negative procedure puts enormous powers in the hands of the Lord Chancellor.
I hope that later we will discuss the details of Clauses 65 to 68 and the potential difficulties that they occasion. Essentially, the point of these amendments is to look at the procedure which would be involved. The issue is one of effective parliamentary oversight over the group of tendentious changes that the Bill proposes in terms of JR. The Delegated Powers Committee declared that it found it,
“inappropriate that the nature of the information to be required under … the Senior Courts Act 1981 and … the Tribunals, Courts and Enforcement Act 2007, and under clauses 66”,
which we touched on with this amendment, “and 68(4)”, to which we will come later,
“is to be specified in rules of court subject only to the negative procedure. We consider that, in so far as such information cannot be specified in the Bill itself, it should be specified in a statutory instrument subject to the affirmative procedure”.
I hope that the Minister will give us satisfaction on that account because the proposals we will discuss are very far reaching.
6.45 pm
The notion that an applicant would have to disclose who is supporting an application has far-reaching implications, particularly with the use of the phrase “likely to support”—presumably in a financial way. How that could be judged at the outset strikes me as extremely difficult. What does it mean for any member of the kind of organisations to which I referred earlier—that large group of left-wing voluntary organisations—that might be thought to be backing judicial review in the eyes of the Lord Chancellor, if not the Minister? How might they be affected?
I suspect that most Members of your Lordships’ House are involved with a wide range of voluntary organisations. I declare my interests in the register: I am president of Age UK in Newcastle. I belong to many other organisations and I am sure that many of your Lordships are in exactly the same position. Are our means to be taken into account in the event that there is a challenge by one of those highly reputable organisations to a governmental decision? That would appear to be the thrust of the Bill’s proposals in that respect. Or are family members implicitly thought to be supporting an application by another family member? Are their means, potentially, to be taken into account? Ultimately, an order might be made against them. These serious questions remain to be answered. We may not have too much of an answer at this stage but we will need answers when we move on to consideration of those clauses.
There is a point in some of the concerns expressed about corporate involvement. The Lord Chancellor—for once, I almost do not blame him for something—has taken exception to the way in which the Richard III case was mounted. I have to declare an historical interest because at one time I was a member of the Richard III Society and I am very interested in Richard III. Although I was born in Leicester, I very much regret the decision that he should be interred there rather than in York, but that is another matter.
However, what appeared in that case was a bit of sleight of hand. In any event, I thought that the application was ludicrous, although I sympathised with its objectives. It appeared that a shell company effectively was set up with no assets. I can see some merit in looking at that kind of situation, but that is well beyond the normal run of cases which would be caught by the clauses that we will subsequently consider, and by the procedure outlined in Clause 65.
I hope that the Minister can give us some assurances about this. It is a matter of great concern substantively and procedurally to organisations outside. Even though, as I have pointed out, a very small minority of cases of judicial review are brought by such organisations, they tend to be matters of great public significance. To use a phrase which is becoming a bit of a cliché, there is a real danger of the chilling effect. It would be more chilling if the whole process was to be effected through secondary legislation at the behest of any Lord Chancellor on the basis that the rules committee has no option but to implement the Lord Chancellor’s wishes, which would be subject to the negative procedure, which, as we all know, is pretty nominal in both Houses—especially in the other place but frankly also here.
There is ample scope for the Government to react in a constructive way to the concerns of the committee. I hope that the Minister will give us some assurances in that respect, otherwise we certainly will have to return to that matter on Report, as we may have to after we have discussed further Clauses 66 to 68. I beg to move.
Lord Marks of Henley-on-Thames: My Lords, I have not proposed any amendments to Clause 65, but I fully support what the noble Lord, Lord Beecham, has said in seeking to implement the recommendations of the Delegated Powers and Regulatory Reform Committee, on which I sit, which recommended that rules of court that sought to implement the proposals of Clause 65 should be made by affirmative resolution.
On the general thrust of this clause, I regard it as entirely unjust for information to be required from any possible supporter of a judicial review application before the permission stage. It is that that Clause 65 would require. It would impose, in public law cases brought by the citizen to hold the Executive to account, a deterrent requirement that applies to no other English litigation. It has never been thought right to restrict access to the courts in this way, and I would suggest that it is particularly wrong to do so in public law cases.
I regret that I see this clause as no more than a threat. It seems to me to be calculated, whether intentionally or not, to have the effect of stifling applications for judicial review. Any supporter of such an application is to be subjected, before the application is brought, to a requirement to disclose all his financial resources, their nature and extent. That requirement is bound to be a significant deterrent to anyone with any means who is minded to support an application for judicial review. That so-called chilling effect I regard as reason enough for the Government to withdraw this clause.
I take as an example the relatively commonplace scenario of a group of residents in a village or a group of parents at a school who wish to challenge a decision of the local authority concerning services in their village or the closure of their school. Inevitably, some residents and some parents will be wealthier than others. The combined effect of Clauses 65 and 66 is likely to be to prevent the wealthier residents or parents from supporting the application for fear that they will be doomed to meet the lion’s share of any costs order made against the applicants if the judicial review application is not successful. That is likely to mean, in turn, that many meritorious applications for judicial review will not even reach the permission stage, let alone secure a determination, for want of financial support.
For that reason, Clause 65 is wrong in principle and, together with Clause 66, it represents a real fetter on the judicial review process. Clause 66 needs wholesale amendment, to which I will return in the next group. It is the case that the courts already have power to require information as to who is funding applications at the stage at which a costs application is made. That is the appropriate stage for that inquiry. Clause 66
needs amendment to see that that principle is preserved. But confining myself to Clause 65, I suggest that the idea that judicial applications should be choked off before the permission stage is entirely wrong.
Baroness Scotland of Asthal (Lab): My Lords—
Baroness Anelay of St Johns (Con): My Lords, I think that the noble Baroness, Lady Campbell of Surbiton, might wish to speak.
Baroness Campbell of Surbiton: My Lords, I wish to add my voice to that of the noble Lord, Lord Beecham. Under these provisions, judicial review claimants will have to provide information about the financing of their claim before it can proceed. The court must take that into account and, if someone has given financial support, it must consider whether to make a costs order against them.
I believe that this will hit the poorest claimants the hardest. If they cannot get legal aid, they will need third-party support to bring a claim, whether that be a family, a friend, charities or lawyers who work pro bono. But if their supporters know that they could be liable for costs, these sources will dry up. In fact, the proposals will potentially have a devastating effect on the most vulnerable members of our society, who after all, are the poorest—those who stand to lose the most if access to judicial review is severely curtailed.
I would like to bring to your Lordships’ attention two ground-breaking cases that I believe would never have taken place should this measure come into force. One is the Supreme Court’s ruling that three vulnerable individuals had been unlawfully deprived of their liberty under the Mental Capacity Act. They were poor and had little support, but there was just enough from charities, friends and families to take their case to court, and the Supreme Court ruled accordingly.
The other case was the decision that a blanket ban on manual lifting and handling deprived two severely disabled sisters of family life. This was deemed to be unlawful because of this case. I remember that case very well. I was working as chair of the Social Care Institute for Excellence. I was particularly concerned about the local authority blanket ban on lifting and handling, which potentially meant that many disabled people would have to go into residential care because carers were no longer physically able to lift and manually handle them when they were unable to use a hoist. This case not only gave the sisters the liberty to stay at home with their families but also affected thousands of other disabled people, who could potentially have been deprived of their liberty.
I know that these two cases would not have taken place without the support of charities, families and friends. If people feel that they are liable to costs in any way, even if there is a slight threat, they will not proceed, and these cases would not be heard and many of us would be deprived of the liberties that are so vital to our access to justice.
Baroness Anelay of St Johns: My Lords, it is unusual for the Chief Whip to intervene at this moment, just before the Minister responds to this debate. I do so with prior agreement in the usual channels that this
might be a convenient point for me to move formally, in a moment, that the House resume and that we take the Question for Short Debate in the name of the noble Baroness, Lady Whitaker. The procedure will then be that, as we return at the end of the QSD, I will make a short business statement in which I will explain why the Minister will then respond to this debate and we will then be able to proceed to the advertised business of the debate in the name of the noble Baroness, Lady Boothroyd.
I beg to move that the debate on Amendment 73F be adjourned.
House resumed. Committee to begin again not before 7.58 pm.
Architecture and the Built Environment
Question for Short Debate
6.59 pm
To ask Her Majesty’s Government what is their response to the Farrell Review of architecture and the built environment.
Baroness Whitaker (Lab): My Lords, I declare an interest as honorary fellow of the Royal Institute of British Architects and vice-chair of the All-Party Parliamentary Group on Design and Innovation. The United Kingdom is very lucky to have Sir Terry Farrell’s magisterial Review of Architecture and the Built Environment at the very moment when we have a crisis that requires a very large number of houses to be built fast; when we have pressure to question the tall towers of London; when our undoubted national talent in architecture is rarely matched by equal calibre in planning; and when our citizens, at local level, have the new responsibility of developing their own neighbourhood plans.
The intellectual cogency of Sir Terry’s review has impeccable authority not only because of his own distinction, but because of the breadth of its consultation among experts, representative organisations and lay people—and it has some very nice diagrams, intelligible even to the non-expert.
What problem was it set to address? Those of us who have been depressed by the meagre and dismal quality of some recent public housing and have feared a return to the disasters of the 1960s and 1970s might have thought that reason enough, but in his preface Sir Terry also talks about the increase of urbanisation, the onward march of digital technology and the challenge of sustainability. The Minister, Mr Ed Vaizey, who is much to be commended for having commissioned it, reflects in his foreword to the review on the,
“critical importance of architecture and design in all aspects of our lives”.
The profound impact of our built environment on the way we live our lives needs to be better understood.
In effect, we would be missing an extraordinary opportunity if we did not get the systems and culture that create good and sustainable place-making right for our time now, and we would do irreparable damage to the fabric of our communities if we missed that opportunity. Our systems and culture have not got it right, although there are examples of great achievement here and there. That is what this review sets out to tackle.
There is a large number of detailed conclusions and recommendations, which I hope all those responsible for planning decisions will study, but they fall into simple broad categories. Interestingly, education comes first. The recommendations travel from ensuring that children at school understand the importance of the built environment to equipping architects and all those involved in planning decisions with the skills to engage the public in making sound decisions—and to being better able to make them themselves. This leads naturally on to ensuring quality, including restoring the profession of planning to its rightful high place, making space for design in infrastructure decisions, and the role of industry and public procurement. There follows an imaginative section on the part played by our cultural heritage, and another on economic benefit.
Through all these sections, several cross-cutting themes run: there must be better understanding of what place-based planning and design is really about; better connectedness between all the institutional stakeholders; better public engagement through education and outreach; a sustainable and low-carbon future for our built environment; and a commitment to improving the everyday built environment—to “making the ordinary better”.
In Sir Terry’s conclusion, an overall built environment policy that can rest outside government is proposed, with an independent PLACE leadership council. PLACE is the acronym for its constituent parts—planning, landscape, architecture, conservation and engineering. There should be a government-appointed chief architect to sit alongside the current chief planner and the chief construction adviser on the council. So it has a broad sweep, based on a very detailed analysis, with clear recommendations. I strongly support all these.
In the time permitted, I just want to pick out a few of the more detailed proposals. From the education section, I was particularly taken by the idea that planning committee members and highway engineers, among others, should be trained in design literacy, with the dedicated commitment of the professionals concerned. For too long we have suffered cities and housing estates made fit for the motor car and thereby also made polluted, dangerous and ugly for people to walk in and children to play in. I am also a fan of proactive planning, as recommended in the review, and have long admired its results in the Netherlands and in Sweden, where there is some of the most varied and attractive public housing in Europe. This would really only work, again as the review says, if design reviews were more widely available, much more participative and not just for new applications, but, say, to revive a high street. The plea for government leadership in explicitly valuing the long-term benefit
of well designed places, as well as setting up new institutions to carry forward these values, is well made. What is the Minister’s response to this?
I had rather hoped for a bit of detail on space standards, so important in lifting the quality of public housing in the days of Parker Morris and honoured now only by the Mayor of London; and for post-occupancy reviews of new-build housing by the people who live there, but the frameworks proposed by the Farrell review could easily welcome such features.
In conclusion, to implement this review would transform those parts of the UK that most need it. It would harness our undoubted talents in building and design for the benefit of all of us, rather than the fortunate few. Many of us are proud to live in Britain because of its tolerance, humanity, the beauty of the landscape and our civic energy and conscience. Would it not be good if we were as proud of our built environment and the national well-being that that would create, so clear in some of our places, so lacking in others? What does the Minister say to the recommendations of the Farrell report?
7.07 pm
Lord Cormack (Con): My Lords, we are all very much in debt to Sir Terry, but we are also in debt to the noble Baroness, Lady Whitaker, for drawing this important report to our attention and securing this all too brief debate.
When I wake up in the morning at home in Lincoln, I look to the front, to one of the most glorious buildings in Europe. But if I go to the top bedroom and look down the hill, I see some of the worst excrescences of the 1960s and 1970s. Round the Brayford Pool, where the university has developed wonderfully, some of the buildings are, frankly, deeply disappointing. They are on the site of wonderful Victorian warehouses that would have made the most marvellous student accommodation.
I will talk very briefly about the heritage aspect of this important report. I remember over 40 years ago when I first became involved in the heritage movement those marvellous words of Sir John Betjeman, who galvanised people:
“Goodbye to old Bath! We who loved you are sorry.They’re carting you off by developer’s lorry”.
Of course, it was his stinging verse that helped to reverse that trend. We need to be conscious of the enormous value of our historic built environment. We do not want a repetition of the tearing down of the terraces of Liverpool, the rape of Worcester and Gloucester and the despoliation of the lower town in Lincoln 40 or 50 years ago.
What I hope we can take from this report, among other things, is the message that it is often still better to adopt and adapt than to tear down. There is a great deal to be said for trying to get life back into our cities. Where there is life, there is less crime. So much could be done to adapt and build over the shop, as it were. So much could be done to bring well designed new buildings side by side with adapted older buildings to give pulsating life to our towns and cities.
It is to this that Sir Terry’s report points us. He has sections on the economic benefit of heritage. He has
sections on the importance of our historic built environment. If in the few minutes that each of us has at our disposal tonight we could help to underline some of the messages of this seminal report, the noble Baroness will indeed have performed a signal service.
7.11 pm
Lord Sawyer (Lab): My Lords, I also thank my noble friend Lady Whitaker for securing this important debate, and Mr Ed Davey, and Sir Terry Farrell and his team for an excellent and ground-breaking report. If it was implemented, it could provide a real cultural change in the way in which we live, and approach our communities, towns and houses.
There are many big ideas in the report. One of the biggest is the embedding of design and place-making in our children’s education. If that was taken up and implemented, it would have an enormous impact on future generations. The concept of place institutions and urban rooms is another big idea. A national conversation between architects, planners, local councils and housing professionals, along with the communities, on a regular, systematic basis is an excellent idea, which will have enormous benefits if implemented.
There are many good ideas in the report, but I want to spend my time on the issue of implementation. That is very important. Without it, the report may as well not have been written, like many similar reports in the past. I understand that the Government will be expected to play their part. It will be interesting tonight to hear what the Minister has to say in that respect. I see in the conclusion the comments about Sir Terry keeping track on what is happening and having regular meetings with Ministers. Sadly, I think that that part of the conclusion is a big hole in the report. It is nowhere near enough.
In its conclusion the report needs a huge commitment from the profession, the big-name architects and others. They need to say that they will make this work. That is what we should be looking for. They need to say that they will fund a not-for-profit organisation—let us call it the “Centre of Place”. This will have the stamp and resources to fund and fulfil the mission of this report. It should be a 10-year-plan.
I expect the Government to take a role but I do not expect them to carry the full responsibility. I look to the profession. This report will not happen unless it lives its own prescription—in other words, from the bottom up. We have heard in these debates over the years names from the past, such as Howard Parker and Unwin Hollanby, who gave without asking for return, who changed the face of architecture and the built environment in our nation and I vote that Sir Terry Farrell’s name eventually goes on this list.
7.13 pm
Lord Tyler (LD): My Lords, I warmly endorse the case made by the noble Baroness, Lady Whitaker, and share her enthusiasm for this review. I am so supportive of the general thrust of the analysis and recommendations that I fear that I may be thought unduly critical in expressing a very sincere warning about one conclusion and the associated recommendations.
Conclusion 1B3 says that decision-makers should receive training in design literacy. What follows is full of good intentions but we all know what happens to good intentions. From my experience in the 1960s and 1970s, as the vice-chair of a planning committee, and when I was working for and with architects, and especially as a senior member of the RIBA staff, I am filled with alarm by this recommendation.
A little knowledge is a dangerous thing. Who is to undertake this training? It is an oddity that councillors, faced with the subjective advice of a fire safety officer or a highway engineer, will invariably bow to the superior judgment. Given careful guidance by an architect, drawing on long training, expertise and experience of three-dimensional design, that same committee will treat it as if it is the subjective result of personal taste.
We are all amateur architects. At an individual level we would never trust our teeth to a farrier or our appendix to a barber; but individual buildings and their impact on the built environment are daily left to the tender mercies of the unqualified. I simply do not understand how this recommendation can be made to work to the benefit of the environment and the wider community. Given that about 50% of the top-tier local authorities in the country do not even employ a chief officer architect today, what quality of training can we expect and what notice will the trainees take of it anyway?
In those circumstances we must look carefully at the pattern of employment of qualified architects. Since the 1980s the proportion of architects in the public sector has dropped from 63% to 11%. I am glad to say that unitary authorities have managed to reintegrate some of the skills that are necessary, but all too often, where there are two tiers, the planning profession is split and there are no architect-planners left. I return to my original warning and question. What training in design literacy will take place? That is surely no substitute for appropriately qualified architectural advice.
I am very strongly in support of this review, not least because it makes congratulatory reference to the “long life, loose fit, low energy” project that I headed at the RIBA all those years ago. I am bound to be in support. Yet I wonder whether it has touched on a really important issue and shied away from an appropriate response. While I am wholly supportive of the localism agenda, I must question whether local authorities which have no such architectural expertise at a senior officer level in house and not even a department on permanent call should continue to be allowed to exercise the full range of plan-making and development-control responsibilities.
7.16 pm
The Earl of Lytton (CB): My Lords, I am most grateful to the noble Baroness, Lady Whitaker, for giving us this opportunity, and of course to Sir Terry and his team for an excellent piece of work.
My interests as a chartered surveyor and my links with the parish and town council movement, and therefore with localism, are well known. I like the suggestion of working better with what we have rather than always trying to invent something new. That applies to the way in which central government, departments and local authorities run their affairs and in which the professions respond, as well as to the
philosophy of building reuse as opposed to endless redevelopment, referred to by the noble Lord, Lord Cormack.
A sense of place is as old as human settled habitation. Yet the report rightly points out how poorly we educate ourselves on the practical implications of this. It is not just about professions and procurers being ignorant of the principles of design, but also—to blow my own trumpet a bit—about being insufficiently apprised of concepts of valuation, in whole life economic and energy-accounting terms. Who can blame municipal planning officers or their councillors for not reflecting these when the process of training that I went through and regarded as holistic has now become modular and fragmented, with endless post-qualification accreditation now required? We risk incoherence and linguistic silos worthy of the Tower of Babel.
Modern buildings and layouts often have too little of that slack in design that made old mill buildings capable of being re-engineered into quality homes and wharfsides into modern business centres. I would like to comment particularly on the question posed in the review as to why good design is not better reflected in property valuation. I am a property valuer. The same question has often been asked about energy-efficient environments and was asked of the All-Party Parliamentary Group on Excellence in the Built Environment also. As a valuer I understand where location, design and market sentiment coincide. Values reflect these elements but not immediately or in prospect.
Property valuation, especially for secured lending purposes, is heavily regulated. It necessarily follows market evidence and extrapolates from that to arrive at opinions. As such, its basis is inherently dated. It is both extremely unwise and professionally improper to speculate forwards in valuation. There are heavy liabilities for getting it wrong, due partly to the stance of lenders and partly to the legal arts of allocating risks and responsibilities. So projects without evidence of future market effect frequently get a raw deal.
Tenants may not be as choosy as one might hope, and landlord investors may be more interested in returns and bank covenants than in build design, quality and cost of occupation, sad though that may be. It is in only the private owner-occupied sector that you find the maximum synergy, and even then not always. However, tenants and investors make markets, and if they do not value excellence in design and efficiency, it is difficult for valuers, who strive to interpret their actions, to do so—even if their estate agency colleagues can afford to be rather more bullish.
7.20 pm
Baroness Andrews (Lab):My Lords, it is a very important report, and I am very grateful to my noble friend for securing the debate and for introducing it so comprehensively.
The unifying and really big idea in the report, which has not been provided with such clarity or meaning before, is about what constitutes the elements of good places and good place-making. What makes the argument in the report compelling is not least that
it presents a view of planning which is potentially creative, humane, connective and dynamic—somewhat the opposite to the constrained and rather mean-spirited version that we have had in recent years, which is focused on development control, is seen to be burdensome and has been unfairly blamed for failure, notably to deal with housing supply. I suggest that those failures have their roots in the economic and social challenges which show up the clear failure of policy on place-making and regeneration as a whole.
I am inclined not just to welcome the report but to say, “Amen: at last a different vision. A prospect for the sort of change that so many people who care about this country and what it feels and looks like have wanted for a long time”. In particular, the report makes clear a positive and integrated version of place-making, in which you indeed need planning, landscape, architecture, conservation and engineering working together across disciplines. We have never needed such a powerful vision more urgently than we do now. As a country, we need to plan on a scale which has simply eluded us so far. We need to build new power stations, green energy sites, gas storage facilities, reservoirs, airports, railways and towns. That all requires of us an approach to spatial planning, integrated labour markets, environmental sensitivity and climate change. We need to plan for food, energy and climate security. At the same time, as the noble Lord, Lord Cormack, made so clear, we need to conserve and work with the character of what makes this country so beautiful and different: the spectacular heritage of the everyday and everywhere.
To do all that means accepting the second definition in the Farrell report: that place is character. It involves politics, life, advocacy, community and the environment—elements which bring together not just the professionals but the whole community. Fundamental to that is expanding and sharing knowledge and the need to learn the constituent elements of place-making from the primary school to, yes, the planning committee. I do not agree with the argument that the noble Lord, Lord Tyler, made. I think that there is a lot we can do to assist planning committees of elected officials to understand some of the basic criteria that go into making good decisions.
We also need to inspire a new and energetic generation of place-makers drawn widely from different disciplines who can be taught in different ways by different people—not least, to develop a national habit of design. I have reservations about detail and implementation. For example, although I applaud the observation that conservation and development are not either/or, I do not think that the answer lies in bringing English Heritage and the CABE-Design Council into a single organisation. They deal with different criteria, which are often contestable, of development.
I am concerned about a few missing realities, particularly the serious impact of the loss of specialist planners and architects and the continuing uncertainties in the planning system. I hope that we will have the opportunity to debate the report at greater length. I hope that the Minister will say tonight that it is irresistible and implementable.
7.23 pm
Lord Howarth of Newport (Lab): My Lords, in my three minutes, I shall touch on just two themes from this excellent and complex report. The first is well-being. It is some years since David Cameron said in a speech that,
“it’s time we focused not just on GDP but on GWB—general wellbeing”.
He understood that economic growth is not an end; it is a means to lives of well-being. That, of course, was understood by the pioneers of planning in this country—for example, those who were responsible for the garden cities movement which, after some hesitation, I think that the Government are again embracing.
Sir Terry Farrell and his distinguished panel want planning inspired by vision, not snagged in process; that is proactive rather than reactive; that is collaborative rather than adversarial. The National Planning Policy Framework touches on a crucial point when it speaks of,
“health, social and cultural wellbeing”,
but it fails to assert that the promotion of well-being should be the overarching objective of the planning system. I am proud to say, however, that the Norwich and Norfolk plan—that is where I live—declares that:
“All development will be expected to maintain or enhance the quality of life and the well being of communities”.
In that spirit, Farrell seeks to broaden design review into a more holistic place-shaping strategy. We need planners to work with health and well-being boards and other service providers. We need planners fully engaging with communities, and confidently and naturally integrating the heritage with the new. If we have planning with that kind of vision, instead of the crises of housing, floods and energy supply and the negativism and resentment about the planning system that we have at the moment, we would have a planning system of vision and ambition that worked towards creating cohesive and confident communities.
The second theme is education. Farrell wants decision-makers—for example, members of planning committees—to be trained in design literacy. I, too, say to the noble Lord, Lord Tyler, that that is a reasonable challenge. At the minimum, we want planners who know how to read a plan. Just as it is accepted that elected members need to be trained in certain legal and financial skills, so, surely, they ought to be in planning skills. I believe that could be done.
Farrell calls for a multidisciplinary common foundation year for the formation of all built environment professionals: planners, architects, landscapers, conservationists, developers, surveyors, engineers and builders. He wants more routes to qualification. That is surely an idea whose time has come. Ministers should endorse it and professional and academic leaders should get on with it. He wants the public to be better educated—of course, they will need to be if they are to rise to the challenge and opportunity of forming neighbourhood plans. He wants more architectural centres, urban rooms, events such as heritage open days, open house and architecture festivals. In schools, he wants teachers to be supported with some training and useful materials, so that we can gradually build an informed public with higher expectations.
We need to develop a culture that demands quality, so that, in the end, there will not be a market for rubbish, for the second-rate buildings that the big retailers and the volume housebuilders inflict on us. We also need to emancipate local government to make room again for civic pride and ambition and to allow councillors to have the power to take decisions in the interests of the well-being of their communities and not be overruled by an inspectorate.
We need leadership at every level and, indispensably, across government. So I await with excitement the response of the noble Lord, Lord Bates.
7.28 pm
The Earl of Clancarty (CB): My Lords, I thank the noble Baroness, Lady Whitaker, for the opportunity to participate in this debate. The report in question, as one led by an architecture practice, emphasises the immediate built environment, which to me feels refreshing. The report rightly stresses the significance of school education, a central aspect of which should be an awareness of the importance of, to cite the review,
“‘your home, your street, your neighbourhood, your town’ where the smallest part, your home and your street, collectively make an enormous contribution to the future of our planet”.
There are many contexts for the study of architecture. The distinction between public and private space is one crucial context not addressed in the report. The first place where the child experiences architecture in a meaningful way must be their home; a good topic, surely, for a child’s first learning about architecture
The reality is that architectural and planning decisions are being made every day around us. My young daughter was aghast when she went to our local playground only to find that many things, including her favourite climbing frame, had disappeared and been replaced by other equipment. She got used to the changes, but she did feel left out of the decision-making process—as, in the wider sense, do many adults about the planning process, and increasingly so, despite the coalition’s long-standing localism agenda. The right as a citizen to have a say in one’s architectural environment should be taught in schools. That should include at least one visit to the local council.
Architecture is clearly not only about history or about famous buildings, important though they are, although the national curriculum would have us learn first at key stage 2 who the so-called great architects are. If this report is to be taken seriously, then we should be looking carefully at the tone and content of the national curriculum.
The report stresses the importance of teaching. It states:
“Architecture, the built environment and an understanding of ‘place’ ... through many different subjects including art and design, geography, history and STEM subjects … rather than as a subject in its own right”.
That multifaceted approach fits with what architecture schools want.
A problem, however, with this approach is that art and design are under increasing threat, particularly in state schools, and less so in independent schools—as is teacher training in these subjects. This is well demonstrated in a new survey by the National Society for Education
in Art and Design, which also makes clear that these are things which the Government have in their power to rectify. If these trends continue, success will be made more difficult for some of the good ideas that this report contains, such as the local “urban rooms” that could be used for school outreach work.
I was taken with the idea that councillors should have training in design literacy. At a time when the public have less and less faith that the right planning decisions are being made, this can only be a good thing, although it would mean public money being spent on this, as well as in other areas—despite the plea for volunteering—if this report’s recommendations are to be followed through.
7.31 pm
Lord Hunt of Chesterton (Lab): My Lords, we welcome this report and the opportunity to review the built environment. It is more than the buildings, of course; it includes the air in the buildings, the air outside, the water and the landscape. I have always been interested in this. I was a city councillor, dealing not only with pollution and traffic but enabling people to choose the colour of their front door, which was very revolutionary in the early 1970s. It is 15 or 16 years since we had the report from the noble Lord, Lord Rogers. It was a very important report and helped to move London forward in its designs—for example, with the Olympic area in the east part of London.
There is unanimity of feeling about this report, and I would like to introduce a constitutional procedure and ask noble Lords to put up their hands if they want a Select Committee. I would want to put up mine, but I am sure I will not be allowed to do that by the chair. We have never had a Select Committee on this subject. Select Committees are extraordinarily powerful bodies—I have sat on a few myself. It would be the only way to have a genuine cross-cutting move.
There are a number of specific points in the report that are important, one of which is to have a chief architect. Currently, the government chief scientist is doing a tremendous study on cities and buildings. It would be tremendous if there were a chief architect for him to relate to. I have just been lecturing to 1,000 architects, engineers and scientists who are studying the indoor environment and its relation to the surroundings of buildings. There is progress in low-carbon buildings, with low-energy water cooling rather than noisy air conditioning. The important point was that there are many dangers in modern buildings in terms of viruses and microbes. There is the extraordinary statistic that 80% of office workers are dissatisfied with their buildings, according to statistics produced in the United States. One reason they are so dissatisfied is that engineers produce perfectly controlled environments and people want to control their own environments and have a good deal of randomness. I believe in randomness; I studied turbulence.
The other important point in this report is the notion of landscaping. Others have not focused on this so much. The greening of industrial areas, particularly in London but also in other parts of the UK, has
made them more beautiful and generated new life. In particular they have improved the health of communities with low incomes and multiple deprivation. Research shows that if you have patches of greenery through a large area there is a lower mortality rate, particularly associated with heatwaves.
The document also referred to public involvement. In a splendid book, which can be found in the Library, on London’s environment—it is the only city in the world that has a book on its environment—there was a review of what Labour did in London through computers and public engagements. There is a notion in the report of an urban room—a strange term, but it involves people in participation. We discussed in a recent Energy Bill that there should be information centres about climate change, energy, ventilation, and so on. I believe that we can bring the energy and architecture people together. We need to have that kind of urban consultation. That is an important part of the point that other noble Lords have been making.
7.35 pm
The Lord Bishop of Chester: My Lords, reference to the Tower of Babel earlier stimulated me to speak in the gap, and I believe that there is time to do so. Skyscrapers are quite ambiguous—they work in some places but not in others. Why does the Shard work but the Cheesegrater look completely out of place? Maybe that is just my own subjective judgment. Why do some cities that have no need of skyscrapers feel they want them? Some cities in Australia that have all the space they could possibly want still have an instinct to build skyscrapers. It indicates how important the environment is for us. We see no skyscrapers in Paris or Rome. The urban planners there do not allow them.
Buildings have a huge impact on us. We are very conscious in the church that we are responsible for nearly half the great listed buildings in the country. As the noble Lord, Lord Cormack, said, they have an impact on the spirit. Over the years I have had a lot to do with architects in connection with these buildings. I have always thought that the architectural profession in our country is to some extent the poor relation to other professions. A huge amount of work goes into training an architect, but they are not valued, as was mentioned earlier. There is a role for more proactive planning and involvement of architects but I would think it a danger if we thought that all the creativity will be decided in advance. We need a combination of planning and allowing initiative.
I sometimes think that in this country our whole planning regime is too constricted. We need only look at the modern housing that has been built in the last 20 years. I fear that we have the slums of the future. Houses are squashed together because of rules on density that were introduced. They are often on three floors so it is very difficult to put in stair lifts, and so forth. They have very small gardens. Is this really the environment in which people will want to live in the future? Buildings affect the spirit and a planning that involves architects who have a real sensitivity for space and place is important. Alongside that, we should ask people what environment they want to live in rather than decreeing it through some over-rigid planning regimes.
I read the summary of the report this afternoon. It is very important and I hope that the dignity of the architectural profession will be enhanced in the years to come.
7.38 pm
Lord Stevenson of Balmacara (Lab): My Lords, I congratulate my noble friend Lady Whitaker on securing this important debate. I want to put on record our thanks to her for her tireless commitment to design in the United Kingdom. I thank all speakers who helped to flesh out the report we are discussing today, and to reflect on some of the points made.
I am not sure what the Minister of State at the DCMS thought he was going to get when he commissioned Sir Terry Farrell for his review. As has been mentioned, it was done very quickly—in just under a year. It had a fantastic advisory group. The names of people who joined it are extensive and important. It had a very public and important engagement process with stakeholders, and with 60 recommendations it has brought together a huge number of issues that we need to seriously consider if we are to make progress in the areas that it touches. The results are very comprehensive and they will need some working through and thought before they are implemented, as I hope they will be. There is no doubt at all that this is an important report.
Another aspect that noble Lords have mentioned, and which is important to record, is that people have read the report and liked what they have read—so much so that there is quite a lot of enthusiasm across the trade press about it, and a lot of anticipation about where it might be taken. As the Minister said, he doubts whether a more thorough and wide-ranging exercise to seek out views and ideas has taken place in the sector for several generations. Having said that, it is a bit of pity that more has not been made of the preceding work done between the last Government, and in particular, as mentioned by my noble friend Lord Hunt of Chesterton, the excellent report Towards an Urban Renaissance, written by the urban taskforce, chaired by the noble Lord, Lord Rogers, which was published in 1999 but still bears reading today.
The report has five cross-cutting themes, which people have mentioned. They are important in the sense that they form a new appreciation of the training information required among the population as a whole, in the profession of architecture and planning and among those who have responsibilities for developing buildings, places and spaces. These recommendations, which take up a large proportion of what is there, are important. However, as others have mentioned, too, so is a commitment to making the ordinary better and improving the everyday built environment—an important theme, which we must not lose sight of—plus the requirement, as we must all have these days, to have a sustainable and low-carbon future.
Having said that those are the five main strands of it, it is important that the 60 recommendations, which are more detailed and specific in the traditional sense, are also looked at. Several noble Lords picked out some of them and I do not want to go through them in any detail but, importantly, the strong accent on heritage
and the way in which it can truly be a part of the sustainability of modern development was picked up by the noble Lord, Lord Cormack. My noble friend Lord Sawyer talked about the need to think creatively about the place discussions—a sense of trying to bring people together in new configurations so that we can look at places and spaces. That was picked up by my noble friend Lady Andrews and it is also very important. The noble Lord, Lord Tyler, brought up an interesting point about the way in which experience of architecture and its skills have leached out of our public departments. If what he says about the numbers is true, that is really quite shocking. Design literacy will be important but it will not substitute for the professional skills and training that go into architecture, even though the report says that that training might need to be done in a different way.
I was also struck by what my noble friend Lord Sawyer said about implementation; others also touched on this point. At the time the review was launched, the Minister said:
“Good design builds communities, creates quality of life, and makes places better for people to live, work and play in. I want to make sure we’re doing all we can to recognise the importance of architecture and reap the benefits of good design”.
You cannot throw out phrases such as:
“I want to make sure we’re doing all we can”,
without having a suggestion that you might have to follow through on that. It is the fate of many politicians to will the end but not the means. I hope that is not going to be the problem with this report. When he comes to reply, can the Minister confirm whether those aspirations still remain the Government’s intentions here? I say this because in the note accompanying the report, Mr Vaizey says:
“I hope this report is the beginning of a dialogue within the industry about how we can build on our successes and recognise the critical importance of architecture and design in all aspects of our lives”.
That sounds like damning with faint praise. Simply consigning a report to further industry debate is not going to deliver the promised future. This report deserves better than that and I hope that the Minister can reassure us.
7.43 pm
Lord Bates (Con): My Lords, I, too, congratulate the noble Baroness, Lady Whitaker, on securing this debate and for the inspiring way in which she introduced it to your Lordships’ House this evening. Her words about the importance of understanding better the impact of the built environment on our lives are something which we can all understand, particularly as we are having a debate in such a fine example of an architectural built environment, with heritage as well. I listened with care and interest to the commentary of your Lordships on the debate in response to the Farrell review. To respond initially to the points made in conclusion by the noble Lord, Lord Stevenson, in a sense every debate has to start somewhere. I think everybody is agreed that what Farrell has produced in this review is an excellent platform on which we can then start a continuing dialogue, which must also lead to implementation, as the noble Lord, Lord Sawyer, said.
Britain has some of the best architects in the world but that does not automatically mean that the standards of design in England are as good as they could be. That is why my honourable friend Ed Vaizey invited the renowned architect Sir Terry Farrell to undertake an independent, industry-led and funded review of the way that our built environment is designed and planned. Buildings are important: we spend about 20 hours a day inside them—on certain days, some of us spend even longer. Research shows that the quality of the built environment affects our well-being—a point made by the noble Lord, Lord Howarth. Good design helps build communities, create quality of life and make a place better for the people who live and work there.
I pay tribute to the work of the noble Baroness, Lady Andrews, during her time as chair of English Heritage and when she was a Minister at the DCLG. She spoke about the importance of our heritage. The future remit of English Heritage is being considered in the lead-up to the establishment of Historic England, its replacement body. Heritage was also touched upon by my noble friend Lord Cormack and, in an ecclesiastical setting, by the right reverend Prelate the Bishop of Chester; it is an essential part and a theme which runs through the National Planning Policy Framework document.
My honourable friend Ed Vaizey’s department, the Department for Culture, Media and Sport, is responsible or jointly responsible for policy on the creative industries, which include architecture, and much has been made of the value of that historic environment, including our built heritage, to national and international tourism. All those areas are critically interconnected. The beauty of our landscape clearly affects our tourism.
His officials also work closely with many other government departments whose policy responsibilities influence, or are influenced by, these themes, including the Department for Communities and Local Government, which is responsible for the National Planning Policy Framework, the Department of Energy and Climate Change, the Department for Environment, Food and Rural Affairs and the Department for Transport. Each department is responsible for national policy statements for significant infrastructure. The Department for Business, Innovation and Skills is jointly responsible for a construction strategy towards the industry in the UK and beyond. The Department for Education is also responsible for the Engaging Places initiative run by Open-City.
Lord Framlingham (Con): I want to say a very brief word on behalf of trees. Trees are, of course, not built but planted. However, they are still a very important part of the built environment, providing as they do beauty, shelter and shade. As well as all that, they manage to take in our carbon dioxide and give us back their oxygen, which is an incredible thing to do in terms of our battle against atmospheric pollution. Although this debate is about the built environment, which is very often softened and made bearable by our trees, I hope that in such a debate the role of trees in that environment will be given the highest possible priority. I hope that the Minister agrees with that.
Lord Bates: I certainly agree; and more importantly, I think that Sir Terry Farrell would agree too. I recognise the great interest that my noble friend Lord Framlingham, as a horticulturalist, and thanks to his time in forestry, takes in trees. They are a critical part of the environment, and we have talked about how the best design achieves a harmony between our built and natural environments.
Government has another interest in design as the public sector is a significant commissioner of new and refurbished buildings, and government is one of the largest single clients of the construction industry. Indeed, construction output contributes 7% of GDP, and even more if the whole life contribution through planning, design, construction, maintenance, decommissioning and reuse is taken into account. The sector is worth about £110 billion per annum and the public sector accounts for about 41% of that total. Thus the emphasis that government places on design is crucial and sends out a powerful signal to clients. My noble friend Lord Tyler talked about the ability of buildings to depress—as did my noble friend Lord Cormack in reference to one part of Lincoln—as well as to inspire. I know that the noble Lord, Lord Sawyer, will take great pride, as I do, in the great contribution of the Sage music theatre on Tyneside. It has lifted the spirits of an entire region.
The scope of Sir Terry Farrell’s task was huge so he decided early on to harness the knowledge and expertise of others. He gathered an advisory panel of leading figures from the architecture and design industry and took four broad themes. The first was education, the importance of which was referred to by the noble Earl, Lord Clancarty, who dealt with the importance of education and its wider application in architecture not only in terms of design and technology but in mathematics, history and across the piece. The second was design quality. My noble friend Lord Tyler referred to the dangers of the “armchair architect”. Those of us who are addicted to the series “Grand Designs” will enjoy that description of ourselves. The third and fourth are cultural heritage and the economic benefits. In preparing his final report Sir Terry chose to consider a fifth theme, namely the built heritage policy, another matter which has been referred to.
The response to Sir Terry’s call for evidence was extremely positive, producing a range of ideas from differing viewpoints throughout the UK. More than 200 responses were received, including responses from organisations representing more than 370,000 people. Workshops were attended by 192 leading figures from professions including education, planning, sustainability, architecture, landscape, urban design and policy-making. It has always been my honourable friend Ed Vaizey’s intention that this review should be the start of an ongoing dialogue within the architecture and planning industry about how it can build on its success. Sir Terry, his panel and others in the sector remain committed to this principle. The noble Lord, Lord Sawyer, said that it cannot be imposed from the top down by government but needs to be something that is embraced from the bottom up and raises standards across the board.
Sir Terry Farrell has proposed the preparation of a draft manifesto for a PLACE Alliance, perhaps basing it on the model of the Creative Industries Council, and of discussion papers on taking forward
recommendations on: proactive planning; digital engagement; urban rooms, which the noble Lord, Lord Hunt, referred to; education; future cities; heritage, and an international forum on architecture. I know that my honourable friend is committed to helping Sir Terry make the connections he needs within government to take specific things forward. For instance, he intends to discuss with the new Minister of State for Housing and Planning—which brings together the two positions in the new role now occupied by my colleague Brandon Lewis in the other place—the Farrell review recommendations on the appointment of a chief architect, a PLACE leadership council and design review panels for infrastructure projects. He will also liaise with UKTI on the Farrell review recommendation on the creation of a global built environment forum. It is a critical reminder of the economic value of architecture. As the noble Earl, Lord Lytton, said, we in this country have sometimes not been able fully to appreciate the value of good design. However, that is certainly not the case overseas. British architects are in demand around the world because of the high quality they bring.
As we have seen, the Farrell review has provided a catalyst for a serious discussion around architecture’s contribution and place within our society. Sir Terry has made some important recommendations and I echo Ed Vaizey’s call to the architecture and planning sector to embrace them. It is an excellent opportunity for the industry to continue its engagement and to shape the future of architecture in this country. It is well placed to do so. The Government also have a role and discussions are taking place on this, led by the Minister for Culture, with colleagues in other departments. There is an understanding, however, that it should continue to be led by the industry and the sector itself. I am sure that the suggestion of a Select Committee, perhaps an ad hoc Select Committee, has not been ignored by the Chairman of Committees. I encourage the noble Baroness to submit an application for wider consideration of that suggestion as part of this review. It should also look at how to champion and promote the best of our design at home and abroad. I look forward to seeing how this progresses and shapes our future.
Arrangement of Business
Announcement
7.54 pm
Baroness Anelay of St Johns (Con): My Lords, I am grateful to all noble Lords for being so timely in the way they concluded the Question for Short Debate and for the co-operation of the Opposition Front Bench, which will make it possible for the House to avoid adjourning during pleasure. We may now move seamlessly from the Question for Short Debate into the rest of the business for today. Before we resume our consideration of a short part of the Criminal Justice and Courts Bill, I thought that, with the leave of the House, it might be helpful if I make a brief statement regarding how we expect matters to proceed for the remainder of today.
As the Question for Short Debate in the name of the noble Baroness, Lady Whitaker, was scheduled as dinner break business, our procedures require us to return to the Criminal Justice and Courts Bill; that is to say, to go back into Committee after that break. I have discussed this with the noble Baroness, Lady Boothroyd, and explained the consequences, and she is content. There is, however, agreement in the usual channels that proceedings on the Bill should now be extremely brief, as the House will no doubt wish to come to the Motion in the name of the noble Baroness, Lady Boothroyd, as quickly as possible. That is why, just before the Question for Short Debate, most unusually, we adjourned consideration in Committee at almost the end of consideration of Amendment 73F. All that remains now, if no other noble Lord is to intervene—and I think it is the will of the House that they do not intervene—is for the Minister, my noble friend Lord Faulks, to respond to the noble Lord, Lord Beecham, on his lead amendment, and for the noble Lord, Lord Beecham, to address himself to the Minister’s remarks.
We would then, if that were achieved, resume the House. I have agreed with the noble Baroness, Lady Boothroyd, and with the usual channels that once the noble Baroness’s Motion is called and she has spoken to it, we might next expect to hear from one Member from each of the groups in this House, very much in the way that we normally do when tackling a debate where there may not be a speakers list—and this is one of those where there cannot be a speakers list. In order to assist an orderly transition into debate, we might expect to hear, first, from the Conservative Benches, from my noble friend Lord MacGregor; from the opposition Benches, from the noble Baroness, Lady Symons of Vernham Dean; from the Liberal Democrat Benches, from my noble friend Lord Tyler; from the Cross Benches, from the noble Lord, Lord Armstrong; and from the Bishops’ Benches if a Bishop wishes to participate. The expectation is that, after those opening speeches, we will continue to rotate around the House as we have on the previous, rare occasions when such matters have been subject to a debate without a speakers list. We have discussed this at some length and I know that the approach has the support of the noble Baroness, Lady Boothroyd, and of the usual channels, and I hope that it will be for the convenience of the House.
As I said, we adjourned consideration of the Bill at the stage when we were almost concluding Amendment 73F, so I shall shortly propose that the House do now resolve itself into a Committee on the Bill, after which we shall run through the procedural nicety, which I am sure will be very effective, of the Minister responding, and of the response from the noble Lord, Lord Beecham; and at that point we will resume the House, and the clerk will call on the noble Baroness, Lady Boothroyd, to move her Motion.
Criminal Justice and Courts Bill
Committee (4th Day) (Continued)
7.58 pm
Relevant documents: 2nd Report from the Constitution Committee, 3rd Report from the Delegated Powers Committee, 14th Report, Session 2013-14, from the Joint Committee on Human Rights
Debate on Amendment 73F resumed.
The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, briefly, this group contains amendments to the process for making secondary legislation concerning the provision and use of information about financial resources, the provision of information when seeking a costs capping order, and identifying which cases are “environmental” for the purposes of costs capping orders. As the noble Lord, Lord Beecham, said, these amendments are inspired by the third report of this House’s Delegated Powers and Regulatory Reform Committee, which was published earlier this month, on 11 July.
I hope that I may deal very briefly with these issues. That is not to say that they are not important, and we will deal with them by way of a detailed response when we consider later groups that raise the issues covered by the report. The Government are considering how to proceed with the recommendations in that recent report and will set out how they intend to do so in due course. As such, although I am very grateful to all noble Lords for their amendments, the Government are unable to accept them in advance of full consideration of the committee’s recommendations.
I should, however, take the Committee’s time to discuss the role of the Civil Procedure Rule Committee, which is composed of members of the judiciary, both senior and more junior, and eminent barristers, solicitors and lay representatives. The Delegated Powers and Regulatory Reform Committee’s report proceeds in part on the basis that the existing structure for the making of Civil Procedure Rules, created by the Civil Procedure Act 1997 and amended by the Constitutional Reform Act 2005 pursuant to the principles agreed with the senior judiciary and set out in the concordat on the judiciary-related functions of the Lord Chancellor, does not make the Civil Procedure Rule Committee immune from influence by the Secretary of State, given that he has the power to direct rules to be made to achieve a specified purpose.
I should like to refute any suggestion that the Lord Chancellor improperly interferes with the making of rules, or that the rule-making committees or officeholders in any way play a quiescent role in the making of procedural rules before the making of which they must consult with such persons as they think appropriate. Their experience and expertise is respected entirely and there should be no suggestion of the Government steamrolling or negating the influence of those committees or officeholders on the rules. However, as I have said, the Government are carefully considering the Delegated Powers and Regulatory Reform Committee’s report and intend to make clear their position ahead of Report. In light of that, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Beecham (Lab): I am grateful for the Minister’s assurances. I beg leave to withdraw the amendment.
Leader of the House of Lords
Motion to Regret
8.02 pm
That this House welcomes the appointment of Baroness Stowell of Beeston as Leader of the House of Lords, but regrets the decision of the Prime Minister to diminish the standing of the House by failing to make her a full member of the Cabinet; and requests that the Prime Minister reconsiders this decision.
Baroness Boothroyd (CB): My Lords, we live in dangerous times. The Prime Minister’s demotion of this House in his Cabinet reshuffle challenges its rights, its authority and its long established role and status in the constitution. It breaks the mould of British history. It strikes at the very roots of our bicameral Parliament. The place of this House in the Cabinet of every Prime Minister has never been challenged until now. I never thought I would witness such careless disregard for the way our constitution works. The Prime Minister’s exclusion of the noble Baroness, Lady Stowell, from full Cabinet status has rightly shocked all parts of the House. This Motion calls on him to correct his error without further prevarication.
When the blow fell, the events were somewhat blurred, but the facts are now clear. The fog has been penetrated by our Select Committee on the Constitution, whose report was published only last Thursday. The committee’s findings and conclusions make grim reading, but it is essential reading for every Member of this House. It strips bare the Prime Minister’s pretensions that all is well, that nothing serious has happened and that it will be put right at some time or other. Its report into the status of the Leader of this House and the status of the House itself after the reshuffle sets out exactly what has happened and the likely consequences. The committee states:
“The Leader may often have to give unpalatable advice to ministerial colleagues about the chances of their legislation passing the House, or the time it will take. The Leader may have to block proposals which would clearly not pass the House or would be contrary to its interests. The Leader has to express the House's misgivings to departments about their policies. The Leader has to ensure that questions and correspondence from peers are answered promptly and fully. In such matters the Leader needs authority. While some of that authority can come from tangible things like sitting at the Cabinet table and receiving Cabinet papers, some of it is intangible, such as having full Cabinet status on the same terms as senior ministers in the Commons. Having a member of the House of Lords in the full Cabinet sends an important signal to the rest of Government (ministers and the civil service), and to the House itself, about the status of the House of Lords. If the Leader is no longer a full member of the Cabinet there may be a risk that the views of the House are not fully listened to in the Cabinet”.
What a marvellous report it is.
I have witnessed attempts by successive Governments to ignore the views of Parliament, and I resisted them in both Houses. When the committee says there may be a risk, I can assure the House that there is no maybe about it; it is a dead certainty. That is how government and Whitehall work. The Select Committee’s warnings on the constitutional impact of what has happened
are vital. It reminds us that it is a core part of our constitution that Ministers are drawn from the legislature and that the legislature is bicameral. The committee says in two more lines, which I will quote:
“It sits very uneasily with those principles for one House of Parliament to be unrepresented in the full Cabinet”.
I believe the Prime Minister’s actions are absolutely diametrically opposed to those principles. They also shatter the Prime Minister’s pretence that his hands were tied by the Ministerial and Other Salaries Act 1975. Which section of that Act dictated that he promote the Minister for Overseas Development to the Cabinet and demote the Leader of the Lords? Why is the Minister for overseas aid made a Secretary of State with full Cabinet rank and pay while the salary of the Leader of this House and her status are downgraded? The Prime Minister needs reminding that the noble Baroness is responsible for all government business in this House and needs 18 Ministers and 10 Whips to report to and assist her in her duties.
I am beginning to understand why the lack of judgment and ill thought-out decisions coming from Downing Street give cause for concern. Did the Prime Minister really expect the Leader of this House to accept the offer to top up her pay by a subsidy from Conservative Party funds? It was a bizarre proposition. Bravely, the noble Baroness has shrugged off her demotion. I know, and we all know, she will serve the Government loyally, and she will serve this House to the best of her considerable ability. I wish her well. She has already made her mark by saying no to receiving money from outside interests.
The views expressed in last week’s Private Notice Question leave no doubt about the strength of feeling in this House. The noble Lord, Lord MacGregor, whom I hope to hear from later in this debate, has relayed the dismay of his colleagues on the Conservative Benches to the Prime Minister. The Prime Minister’s response, which I think all of us have seen, neither mitigates the offence he has caused nor justifies his action. The flattery in his letter of response is transparent. His excuses are spurious, and his promise to mend the damage depends on his returning to power next year.
The Prime Minister, I am afraid, pays scant attention to his responsibility towards this House. He fails to understand that we are a bicameral Parliament and, as such, that this House should be fully represented at the highest level of government. He has trampled on the constitution. He has discarded the principle of equal pay at the same time, quite frankly. His Cabinet has become the unicameral apex of power in a bicameral Parliament. It will not do. His shuffling this House out of its full status in the Cabinet must be reversed, and it must be done soon. I so move.
Lord MacGregor of Pulham Market (Con): My Lords, I wholly share the concern that the noble Baroness, Lady Boothroyd, has raised about the position and status of this House. It was because of that that I went to see the Prime Minister last Monday in my role as chairman of the Association of Conservative Peers, accompanied by my noble friend Lord Cope of Berkeley. I want to make it clear that it was on behalf of the ACP.
I do not share quite the attitude that the noble Baroness takes toward the Prime Minister. There is an issue to be resolved, but I do not think it is quite so fundamental, and I want to suggest how I think it can be resolved. I want to make three points. We had a very positive and constructive meeting with the Prime Minister. As the noble Baroness has said, in the light of our discussion he undertook to write to me, and his letter has been shared, I think, widely in this House and also with the leaders of the other parties.
Some of the points are referred to in the valuable report from the Select Committee on the Constitution of this House published just last week. I congratulate the chairman of the committee, my noble friend Lord Lang of Monkton, on the speed with which his committee worked to dissect and clarify the key issues. I think it is worth quoting in full and putting on the record in Hansard four points which the Prime Minister made to us. First, he said:
“I have the highest regard for the House of Lords and for the vital role it plays in the governance of our country”.
The noble Baroness has tended to dismiss that; I do not. I think he sincerely takes that view. He said, secondly:
“I completely share your view, and the view across the House of Lords, that the House should be properly represented in the Government at the highest level”.
“In particular, I agree that the Leader of the House of Lords should, as a general rule, always be a full member of the Cabinet; unfortunately it was not possible on this occasion, owing to the provisions of the Ministerial and Other Salaries Act 1975”.
Lord MacGregor of Pulham Market: Do not worry, I will return to that point. Finally—this is very important, and the noble Baroness well expressed this—
“In the meantime, I want to stress that Baroness Stowell, as Lord Hill’s successor, will in practice play exactly the same very important role that he and his predecessors did in the Government. She will sit at the same place around the Cabinet table, and will have the same full right to speak and contribute to the Cabinet’s business. I will continue to take Lords Business as the second item on the Cabinet’s agenda”.
The Prime Minister says that, as before:
“Baroness Stowell will attend the same internal Downing Street meetings which I hold, including my daily morning meeting”.
I have no doubt whatsoever about the Prime Minister’s sincerity in all of this. I would also add that our concerns on this are about principle and in no way reflect on the current Leader, my noble friend the Leader of the House. She has made a great impression on all parts of the House in her various ministerial posts so far. I am absolutely clear that she will use the powers and positions which the Prime Minister has so clearly outlined to the full extent, whenever it is necessary, on behalf of this House to do so. The concern is not about that; it has been perfectly clear, the noble Baroness made it very clear, and I share it entirely. It is not about the powers or the possibilities open to my noble friend, but about something else. Her role is in no way altered except that she is not a full member of the Cabinet. The concern—and here I agree very much with the noble Baroness—is about the status of the House.
Over my 40 years in Parliament this House has played an increasingly important role in scrutiny of legislation, Select Committee work and so on, making full use of the expertise and experience which exists here. I am deeply committed to that, and this House has played an increasingly important role. The concern is that not having any full member of the Cabinet from the Lords somehow symbolically downgrades the perceptions of our House and the status of the second Chamber. The Select Committee put that very well in the passage from its report which I was going to quote myself, but which I do not need to repeat because the noble Baroness read it out. I totally agree with all that, and the report puts it very well.
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My second point is to ask: how has this come about? We are now all much clearer about what the problem is—and it is a problem. The Prime Minister referred to the Ministerial and other Salaries Act 1975, an Act that was put on the statute book long ago. Much has changed since that time. Government has grown, more Secretaries of State have been appointed, we have a coalition—which may have had some impact on the numbers—and the change in the Lord Chancellor removed one automatic seat in the Cabinet from the House of Lords. Therefore much has changed. We now have the rather peculiar issue that relates to the Prime Minister’s decision to make William Hague Leader of the Commons.
Many are perhaps not aware that the last two Leaders of the Commons have not been full members of the Cabinet; I was Leader of the House at one point myself and was certainly a full member of the Cabinet, but they have not been. Understandably, the Prime Minister wanted William Hague to remain as First Secretary of State. That meant that the Prime Minister’s obvious wish to continue to have our Leader as a full member of the Cabinet has been blighted. It seems extraordinary to me that an Act passed so long ago in quite different circumstances is allowed to have that effect. Goodness me—we make much bigger changes to earlier legislation all the time. That leads me to my final point.
The Prime Minister said in his letter to me:
“I want to reassure you, and the whole House, that I see the current situation as a purely temporary one, which I will want to rectify at the earliest opportunity”.
That is a way through. As the Select Committee on the Constitution pointed out—although it guardedly did not call it a recommendation—a simple, short amendment to the 1975 Act could solve the problem, either by specifying that one of the 21 salaries for Cabinet Ministers must be paid to a Member of the House of Lords, or more sensibly, by a marginal increase in the 21 figure. Some will argue that that would look bad in public, because it would be extra expenditure for the Government and the House of Lords to meet. Frankly, that is a ridiculous argument, and I say so as a former Chief Secretary who is passionately in favour of the Government’s many endeavours to reduce the fiscal deficit. However, quite frankly, it is laughable to argue that an increase of £24,000, which this would involve, would be an addition to public expenditure.
I would have thought that this would appeal to all parties and to both Houses. Both would benefit. It does not favour one party—the Labour Government got into some difficulties over this issue and this constraint during their time. It is the best, speedy way out of this difficulty for the Prime Minister and for both Houses, and speaking entirely personally, I so recommend. This issue could be solved, and we could return to the position that there was with the noble Lord, Lord Hill, if that short amendment were made to the 1975 Act as swiftly as possible.
Baroness Symons of Vernham Dean (Lab): My Lords, I support the Motion so ably moved by the noble Baroness, Lady Boothroyd. I make clear at the outset that I very much support that part of the Motion that welcomes the noble Baroness, Lady Stowell of Beeston, to her new post and new responsibilities. Like so many noble Lords in this House, I am only sorry that she should have been appointed in such a way as to cause so much controversy and, frankly, so much dismay, about the terms on which she has been appointed.
As the noble Baroness, Lady Boothroyd, said, last week the Select Committee on the Constitution published a very clear and concise report on the status of the Leader of your Lordships’ House. As a description of the events around this issue, it sets out a series of decisions and amendments to those decisions that demonstrate the contradictions, the inconsistencies, and the major problems that the terms of this appointment have given rise to.
On 15 July the Prime Minister announced, on Twitter, that the noble Lady, Baroness Stowell, would be the new Leader of the House of Lords,
“and Chancellor of the Duchy of Lancaster”.
Indeed, she is on record in Hansard for that day as the Chancellor of the Duchy of Lancaster. However, the next day, on 16 July, the noble Baroness kissed hands on a different appointment—that of the Lord Privy Seal.
In this reshuffle, No. 10 and others around the Prime Minister were very keen to demonstrate his commitment to having women properly represented in the Government. Many of us welcomed that development. On the very day of her appointment, though, it emerged that the noble Baroness, Lady Stowell, would not be a full member of the Cabinet. Instead, she would be a Minister “attending Cabinet” and not paid a Cabinet Minister's salary. As we are all aware, the noble Lord, Lord Hill, her predecessor, was given the full status of a Cabinet Minister and the full salary that went with it. Clearly, this was an embarrassing setback to the ambition of enhancing women’s position as government Ministers.
In an attempt to mitigate this embarrassment, on the same day, 15 July, the Conservative Party announced that the difference between the salary of a Minister of State and that of a Cabinet Minister would be made up by the Conservative Party. I do not think I was alone in believing that this was not only entirely inappropriate but also unconstitutional for a Minister representing all parties in this House, including the Cross-Benchers. It was also totally inappropriate for a Minister who had accountability to the Crown rather
than to the Prime Minister, either as the Chancellor of the Duchy or as Lord Privy Seal, to receive part of their salary from any political party. A week later, that suggestion was withdrawn when on 22 July the Leader said that she would not accept the Conservative Party “top-up” because of her responsibilities to all parts of this House. It was a good, sound decision on her part.
Baroness Symons of Vernham Dean: The Prime Minister's letter of 22 July, which the noble Lord, Lord MacGregor has referred to, says that the Leader of the House of Lords should,
“as a general rule, always be a full member of the Cabinet”.
The word “always” cannot be qualified by the words “as a general rule”. Either the Leader of this House should always be a member of the Cabinet, as has been the case, or it is a matter for the Prime Minister's discretion. This Prime Minister has decided that the general rule did not apply but that his discretion did. I fear that in doing so he has set a precedent for future Prime Ministers.
In his letter to the noble Lord, Lord MacGregor, which the noble Lord kindly quoted to us earlier on, the Prime Minister says it was,
“not possible on this occasion”,
to make the noble Baroness Lady Stowell, a full member of the Cabinet,
“owing to the provisions of the Ministerial and Other Salaries Act 1975”.
That Act says there are 21 Cabinet salaries payable, plus the salary of the Lord Chancellor. Apart from the salary to the Lord Chancellor, the Prime Minister himself and the Chancellor of the Exchequer, the Prime Minister may appoint who he wishes to be a Cabinet member. He also has discretion over 19 salaries that could have been awarded to the noble Baroness, the Leader of the House as has been the case since the passing of that Act in 1975. So it was not the case, as the Prime Minister claimed and as quoted by the noble Lord, Lord MacGregor, that the award was,
“not possible on this occasion”;
it was because the Prime Minister chose not to make it. It was his judgment.
There are 21 Cabinet Ministers plus the Lord Chancellor—Ministers who receive a full Cabinet salary and status. There are also 11 Ministers “attending Cabinet”, not in the first rank but doing important jobs and no doubt happy to be around the Cabinet table. It is not, as the noble Lord, Lord MacGregor, said, evidence of highest regard that the noble Baroness is also round the table. Why is she not one of the 21—or 22, with the Lord Chancellor? Why is she one of the 11 second-rankers around that table?
The Companion to the House states that the Leader of the House is a member of the Cabinet. Moreover, and possibly more significantly, Erskine May also describes the Leader of this House as a member of the Cabinet. The Constitution Committee in its excellent report said that there were no examples of any Leader of this House who has not been a member of the Cabinet. Arguably, this calls into question the status of the Companion, the status of Erskine May and the
conventions between the two Houses. These are not trivial matters; these have been the rules that are the foundations on which we operate. If they can be altered by a Prime Minister without consultation and without any reference whatever to Parliament, what else can be changed? That opens up huge constitutional questions for us.
Frankly, none of us knows whether this decision was deliberate or whether it was one taken through sheer carelessness. Did the Prime Minister realise that in making the appointment in this way he was diminishing the status of your Lordships’ House and creating an unacceptable precedent, or was there a ghastly moment when he realised that he had one too many Ministers for the salaries available? We cannot know—or at least we cannot know until the diaries are published.
In my view, this Prime Minister has done well in not having many ministerial reshuffles, even if that is because of the limitations of government by coalition. Fewer reshuffles are almost certainly better for good governance. Just because this Prime Minister is inexperienced in reshuffles, though, others in government, including senior civil servants, are not. Between them all, they should not have got this so wrong—and they have got it wrong: wrong for the noble Baroness, Lady Stowell; wrong, even for their own purposes, for the reshuffle and the Government; wrong for this House, as one of the two Houses of Parliament; and wrong for the constitution, and the important and complicated relationship between the Executive and Parliament.
The Prime Minister would be a bigger and better Prime Minister if even now he reconsidered his decision. He should do so. A mistake is a mistake: the Prime Minister should correct it. It would be better for him to do so, better for the noble Baroness, better for the constitution and better for your Lordships’ House.
Lord Tyler (LD): My Lords, this is for me a very sad debate. We all recognise the very many talents that my noble friend will bring to the key role of Leader of our House, and we all respect the shining integrity with which she will perform her duties here. That makes it all the more disgraceful that she should have been put in this invidious position. The disreputable game of musical chairs 10 days ago does nothing to inspire confidence in the competence of the Prime Minister’s advisers. The circumstances are all too reminiscent of that infamous Friday afternoon when No. 10 thought that the Lord Chancellor could be abolished with a press release. Is there nobody there with any appreciation of the basics of our constitution, to which the noble Baroness has just referred? When will they ever learn?
The demotion is far from simply symbolic, but to my mind the worst feature of this whole charade was the reaction when the reduction in salary paid to her male predecessor was pointed out. How could anyone think that it was appropriate for the leadership of your Lordships’ House in any way to be remunerated from political party funds? Both the Leader of your Lordships’ House and the Leader of the other place occupy especially non-partisan positions as servants of the whole of their respective Houses, with an expectation that they will speak and act dispassionately on behalf of the whole House that they represent, even when their Cabinet colleagues are taking a more partisan
view. Having shadowed a number of Leaders of the Commons, I can confirm that, irrespective of party, they invariably see their role as quite distinct in this respect from that of other members of the Cabinet. In exactly which of his or her duties in the leadership of this House would the Leader be expected correctly to be identified as acting on behalf of one political party? It is a nonsense.
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My noble friend, as has been pointed out, has shown her sensitivity by refusing to let this absurdity happen, but the very fact that No. 10 failed to appreciate how totally inappropriate this suggestion was simply beggars belief. Could they not see that the perception would be that the Leader was somehow beholden to that party and therefore suspect, in the sense that “He who pays the piper calls the tune”? This has been recognised across the House and beyond. It would have been far more appropriate to have reduced the public-purse contribution to the salary of the Government’s Chief Whip in the other place because he has a partisan element to his role. As has been mentioned, my noble friend has indeed herself deflected this demeaning recommendation and, in so doing, has increased our confidence in her integrity, but it has also underlined the crass incompetence of those who made the original suggestion.
As a postscript, I suggest that it adds further insult to injury that the Prime Minister, presumably acting in his capacity as leader of the Conservative Party, saw fit to explain and excuse his decisions in a letter sent, in the first place, solely to the Association of Conservative Peers. Who advises him on these matters? Does he not, even now, realise that the status of our Leader—the Leader of your Lordships’ House—is of huge significance to every single Member of this House, regardless of party and group?
I do not know whether it is too late to correct this situation, but I think that your Lordships’ House is united in feeling that something must be done.
Lord Lang of Monkton (Con): My Lords—
Lord Armstrong of Ilminster (CB): My Lords—
Baroness Anelay of St Johns (Con): My Lords, perhaps I may clarify the situation. When I invited the noble Baroness, Lady Boothroyd, to open this debate, I made it clear that we expected to hear, first, from speakers from each of the four groups. Therefore, the noble Lord, Lord Armstrong, is absolutely correct that my anticipation was that he would speak at this point, which is why he rose to his feet, as I think the rest of the House expected. After him, if a right reverend Prelate wishes to speak, we might hear from him next, and then we will return to the Conservative Benches.
Lord Armstrong of Ilminster: My Lords, I am grateful to the Chief Whip for her intervention.
Despite the Ministerial and other Salaries Act, the present Cabinet consists of 22 members: the quad—the Prime Minister, the Chancellor of the Exchequer, the Chief Secretary and the Lord President of the Council—
and 18 Secretaries of State, but fortunately one of them is also Lord Chancellor, who is covered by a separate section of the Act. The Lord Privy Seal, the Chancellor of the Duchy of Lancaster, the Paymaster-General and the Parliamentary Secretary to the Treasury, all of whom are allowed to qualify as Cabinet members under the Act, are not members of the present Cabinet and so are not entitled to be remunerated as Cabinet Ministers; they are remunerated only as second-tier Ministers, along with Ministers in charge of departments who are not in the Cabinet, the Financial Secretary to the Treasury and Ministers of State. These four Ministers are, however, invited regularly to attend meetings of the Cabinet, along with seven other Ministers who are not members of the Cabinet. I think that makes 33 people sitting round the Cabinet table, which is a large number for a discussion at that level.
I turn to the case of the noble Baroness the Leader of the House. She is, as many of her predecessors have been, the Lord Privy Seal. Unlike any of her predecessors for the past 100 years or more, she is not a member of the Cabinet. We have a situation where there is no Member of the House of Lords in the Cabinet at all. During the whole of my time as a civil servant in the Government, there were at least two Members of the House of Lords in the Cabinet—the Leader of the House of Lords and the Lord Chancellor—and often more. We are told that the noble Baroness will attend all Cabinet meetings and will be able to represent the interests of the House as effectively as, or no less effectively than, her predecessor. She is not, however, a member of the Cabinet.
There seems to be no difference of view as to what the level of her remuneration should be. The Prime Minister generously intended that she should receive the same total remuneration as a Cabinet member but that was, in effect, to be in two parts: the salary of a second-tier Minister, paid out of public funds, and a top-up from Conservative Party funds to bring the total up to the equivalent of a Cabinet member’s salary.
Much has been said this evening about the need to recognise the importance of the House of Lords in the Cabinet by having a representative there. The Leader of the House has responsibilities beyond and separate from those she has as leader of the Conservative Party in this House. She has responsibilities to and for Members of the Liberal Democrat party, the Labour Party and, indeed, other parties, as well as independent Cross-Bench Members, who are Members of no party. She has responsibilities for the whole House, irrespective of parties. She also has responsibilities for the conduct and good order of the House of Lords, which are discharged in another place by the Speaker of the House of Commons, who is accepted as being above party.
The Leader of this House is the holder of a parliamentary public office which should be remunerated wholly out of public funds and ought not to receive any part of his or her remuneration out of party funds. We all respect and admire the noble Baroness, Lady Stowell, and I regret that this dispute and difference of opinion should circulate around her; she has done nothing to deserve it. She has accepted the force of the argument and has decided, extremely honourably in
my view, to forgo the top-up from Conservative Party funds and to be paid as a second-tier Minister—a Minister of State—out of public funds alone.
The Prime Minister has written a letter to the noble Lord, Lord MacGregor, in which he recognises that the Leader of the House ought to be in the Cabinet. He expresses regret about the present situation and promises to put it right at the earliest possible opportunity and certainly after the forthcoming general election, if he is still the Prime Minister. This is a profoundly unsatisfactory situation not just for the Leader of the House but for all of us in this House, for all who care about the place of the House of Lords in our constitutional arrangements and, seemingly, for the Prime Minister himself. The Leader of the House is now not only specifically declared by the Prime Minister not to be a member of the Cabinet but, by her own honourable self-sacrifice, she is also deprived of the level of remuneration that everyone, apparently including the Prime Minister, thinks she ought to receive. Not only is the House of Lords being treated with disdain, the noble Baroness is being treated shabbily and she ought not to have been put in this invidious position.
Your Lordships may agree that this simply is not good enough. The noble Baroness should be a member of the Cabinet and should receive a salary at the top tier as defined in a schedule to the Ministerial and other Salaries Act. If necessary, the Prime Minister should find another Minister now in the Cabinet who can be asked less inappropriately than the noble Baroness, to give up his or her membership of the Cabinet but be one of those who attends, to ensure that the Lord Privy Seal is able to take her rightful position as a member of the Cabinet. I do not say a full member of the Cabinet because I do not believe that that means anything very much.
It was wrong not to have the Lord Privy Seal in the Cabinet and it was wrong, and unmistakably an indication of an uneasy conscience, to try to make it up to the Lord Privy Seal by offering to top up her remuneration to the equivalent of a Cabinet salary by means of a supplement from Conservative Party funds. Two wrongs do not make a right. The Prime Minister should do the right thing without further ado by appointing the Lord Privy Seal to be a member of the Cabinet. That may mean asking someone else to stand down, but I believe that that would be less inappropriate.
The noble Lord, Lord MacGregor, referred to the possibility of amending the Act. I am not sufficiently expert to know whether that can be done for this purpose by delegated legislation or whether it would need new primary legislation. I remember, because I was around at the time, that the limits were introduced in the Act in order to reduce, or to keep a limit on, public expenditure. I suppose that that consideration is still relevant. If that course is not open to him, the Prime Minister should take the other course of making it possible for the Lord Privy Seal to be in the Cabinet. To paraphrase the old song: if you have a right thing, do it; do not dream it, do it now.
The Lord Bishop of Chester: My Lords, I want to associate these Benches fully with both sides of the Motion; first, the welcome to the noble Baroness in her role as Leader of the House and, secondly, the
regrets that have been expressed already in our debate. Rather than focus on the details, I shall make a few comments about the wider symbolic significance of these events. A healthy society distributes power. The banking crisis arose partly because power got too concentrated in certain institutions and in a certain section of the financial community. Government, if it is about nothing else, is about the exercise of power. We have to accept and acknowledge that, and not try to deny it. The exercise of power calls for clear leadership, which is right, too.
Today, I sense that leaders of political parties—this is not a party-political point—feel so oppressed into the exercise of power and the clear profile of their leadership that they can be drawn into decisions that are sometimes unwise, and which would have been much better had there been more consultation and more time to think about it. Am I the only one who has a certain regret that our party leaders all seem so young these days? Is there not a certain wisdom of age, which perhaps is something we should think about?
In our society, we tend to have power exercised by the Government and the rights of the individual. That is the dialectic which is played out in our society. It tends to squeeze out intermediate institutions, but democracy depends on institutions that are not themselves creatures of government. The House of Lords is one such institution in a bicameral system. It is very important that the proper authority—the proper place—of the House is maintained, because of that vital place in our democracy.
I say in parenthesis—and perhaps it is not a welcome thing this evening—that our failure to engage in a proper evolutionary process of reform of the House has encouraged some people to look down on the role of the House. However, as has been said, the actual role of the House, for example in scrutinising legislation, is more significant now than it has ever been, because so much legislation simply is not scrutinised in the primary Chamber. That makes the demotion of the Leader of the House from the Cabinet a very significant event, in my view, because of our role in scrutinising that which the Commons has not the time, energy or will to scrutinise.
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We live in a time when the Executive tend to dominate the legislature; when the Executive are seen rather cynically by many people in our country as exercising power in their own interest, or not in the interest of society as a whole. I would associate this with the progressively low turnouts at elections, which is something which we should be very concerned about in our democracy. People just cannot be bothered to vote, because they somehow think the power is not with them in the ballot box but with other people in government. Snap decisions, such as the way in which the role of the Lord Chancellor was changed—like the noble Lord, Lord Tyler, I think that this does have a very similar feel to that passage—simply encourage the sense of an overdominant Government. The salary arrangements are another example of that unwise snap decision having to be repented of.
My final point is that I have always been somebody who rather values the fact that we have an unwritten
constitution. However, I have gradually come to think that it would be better if certain aspects of how we do things were written down, so that the Government cannot simply ride roughshod over them. The fact that the
Companion
and
Erskine May
say one thing and the Prime Minister instantly can do something else should cause us quite serious thought about how our constitutional arrangements can be protected in the future.
Lord Lang of Monkton: My Lords, I begin by apologising to the noble Lord, Lord Armstrong, for my excessive enthusiasm to participate in your Lordships’ debate. I thank the noble Baroness, Lady Boothroyd, on behalf of the Select Committee on the Constitution, which I have the honour to chair, for quoting so effectively and powerfully from our report. I stand by everything that is in that report. I believe that it does its best to inform the House for the debate and I hope that the House will find it useful.
Regarding the Motion, however, I find I have a little difficulty because I agree with the first part, in which the noble Baroness congratulates my noble friend the Leader of the House, who I believe will be as formidable as she is fearless and will turn this event to good account in her negotiations with the Prime Minister and others in Cabinet. However, in the second part of the Motion, which criticises the Prime Minister’s decision, I think the noble Baroness underrates the extent to which my noble friend Lady Stowell is a prisoner of circumstances, deriving from some years ago. I will come back to that point shortly. That is not to underrate the serious nature of the diminished status under which your Lordships’ House now labours—in defiance, as the noble Baroness, Lady Symons, rightly said, of both Erskine May and the Companion to the Standing Orders.