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That links with my second point. Why preserve the Civil Justice Council, which I am in favour of, and the Family Justice Council, which I am also in favour of, but abandon the one council which is concerned with justice between the citizen and the state and which has a 50-year-plus track record of bringing about improvements in that area? Let us be clear: we are not talking here about great judicial reviews or developers seeking to get their plans past a planning refusal. We are talking about hundreds of thousands of social
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Lord Archer of Sandwell: Since the noble Lord was kind enough to tempt me to my feet, would he agree that many local tribunals and public bodies lead lonely lives, and that the great contribution of a central body is that it can collect and disseminate experience and best practice? If that were missing, everyone's performance would suffer.
Lord Newton of Braintree: I agree. It tempts me to extend my remarks a fraction further to a point I had omitted. The Ministry of Justice knows nothing-and, frankly, as far as I can judge, cares less-about large amounts of administrative justice that relates to local authorities, including, in education, school admissions and exclusion appeals. Many people may regard this as trivial but it also includes the whole area of decriminalised car parking. These are things that affect citizens. They have nothing to do with the Ministry of Justice but they amount to important areas of administrative justice.
I made the point in my earlier speech-I will not repeat it in extenso-that the terms of reference of the Civil Justice Council are, in effect, identical to those of Administrative Justice and Tribunals Council. I will make a few further points before I conclude. Notwithstanding the disappearance of the CJC from Schedule 7 to the Bill, the Government have already cut its secretariat and merged it with that of the Family Justice Council. In respect of the various procedure rule committees, including tribunals, all of which were in Schedule 7, the Government have already put all the secretariats into the same team. They argue that this makes better use of resources. It probably does. However, my amendments simply go with that flow. They create the possibility of what I regard as rational alternatives to abolition, but they do not prevent the Government going for abolition if that is what they continue to want to do. Even if I cannot claim a reward for good behaviour, I can claim a response to rationality, reasonableness and a powerful argument.
Lord Mackay of Clashfern: My noble friend bemoaned the fact that the judges had all fled, but the noble Lord, Lord Elystan-Morgan, is still there.
Lord Newton of Braintree: I apologise to both my noble and learned friend and the noble Lord, Lord Elystan-Morgan. I had in mind those who contributed to an earlier debate. If they all now chip in to support me, I shall give them brownie points as well. My noble and learned friend Lord Mackay might help, too. I beg to move.
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Lord Howe of Aberavon: I do not rise for brownie points, which I probably deserve in no circumstances whatever. I am rather alarmed that my contribution to this discussion, in support of what my noble friend said, is founded on my experience almost exactly half a century ago. I make no apology for that. It takes me back to the second half of the 1960s, when the electors of Bebington decided to give me four years leave from the other place, during which time I concentrated on my practice at the Bar. Two of the most important matters with which I was involved concerned the very issues that my noble friend has just talked about-issues affecting real people in the face of difficult circumstances.
For nine months I represented the colliery managers in the Aberfan tribunal inquiry, conducted by Lord Edmund-Davies and his expert wingmen. He did not consider the matter alone but with expertise to help him. Every one of those people whose actions were being criticised, or whose grievances were being represented, were represented by counsel before that administrative tribunal.
Not long after that, I was invited by Kenneth Robinson, who was then Minister for Health in the department presided over by Richard Crossman, to conduct an inquiry into alleged misconduct and mishaps at the Ely Hospital in Cardiff. That gave me some insight into the way in which administration in search of justice can get up to some very curious things. I had three advisers-one consultant psychiatrist, one hospital board member and one senior nurse. We set out by saying, "Please may we announce our existence to the public so that we can call for evidence?". "No, no", came the answer to that. However, we decided that we would not start our work without it, and were able to make that announcement and continue with our inquiry. We were not given any counsel to the tribunal, as such. There was no official solicitor to help us in an investigation, so I had to perform the task of being both chairman of the inquiry and interrogator and, therefore, quasi-prosecutor. It was not exactly comfortable.
At the end of our inquiry, which did not take very long, we produced a report and submitted it to the Welsh health authority for publication, as we thought. However, we were told that it would certainly not be published and we were asked whether we could make a rather different version of the report that we had first filed, confining it to facts and not judgments. Happily, I had a Cambridge acquaintance who was special adviser to Richard Crossman. Many in this House may remember him-Brian Abel-Smith. I was able to convey that strange news to where it mattered and we were then able to produce an alternative version to the one that we were compelled to produce in the first instance. Richard Crossman did not hesitate to publish the full version of that report. Anthony Howard, whose recent death we all mourned, in writing about Richard Crossman said that that publication was,
Certainly, I like to think that it was something that made a major contribution to the consequences of our inquiry, about which I make no boasts or gestures whatever. We were doing a job and were allowed to do it, but we had to wrestle at various stages to get the framework right.
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Since then, I have been involved in different ways in other comparable inquiries and have witnessed others. One in which I was involved most tenaciously for some time was that presided over by the noble and learned Lord, Lord Scott-Lord Justice Scott as he was then. Two other inquiries followed soon after that one. One was presided over by Lord Justice Phillips, now the noble and learned Lord, Lord Phillips, and the other by the noble and learned Lord, Lord Hutton. In those tribunals there were no wingmen, as I have put it, sitting on either side of the noble and learned Lords; they had to conduct the tribunals on their own. In the tribunal of the noble and learned Lord, Lord Scott, no representation was allowed on behalf of any of those people giving evidence to or being judged by the tribunal. That was notwithstanding my submissions as former Foreign Secretary on behalf of the many diplomats whose conduct was being scrutinised, or the interventions of the noble Baroness, Lady Symons, who was then in charge of the First Division Association.
As I say, I believe that Lord Justice Hutton had no legal representation, and certainly no wingmen, to help him. On the other hand, the noble and learned Lord, Lord Phillips, had the full range of expertise alongside him and full representation by lawyers throughout the case. I give those examples without wishing to criticise the principal actors in them as they illustrate the diversity of the different judgments that have to be made when deciding what kind of tribunal to set up, how to formulate it, what tasks to give it and so on. For that reason I was conscious throughout those proceedings of the opinions being offered-sometimes not soon enough-by the Administrative Justice and Tribunals Council. I subsequently wrote a piece in the Political Quarterly, from which I wish to quote. It states:
"A number of studies have now been done (or recommendations been made in individual reports) about the factors that have to be taken into account by the appointing minister (or other authority), as well as by the leader of an inquiry. And all these data have now been re-summarised and drawn together in one place within government. That will help, of course. But I am convinced that one thing more remains to be done. We need to ensure the continuous availability of a small corpus of people with experience of this work (not just in one department), who can be thoroughly consulted by those involved in shaping any fresh inquiry. For the necessary decisions often have to be taken under pressure and at speed. In such circumstances, paper-borne wisdom is no substitute for experience ... It is this practically tested know-how which has to be accessible whenever it is needed".
It is against that background that I intervene in the debate on this amendment because it seems to me that the council presided over for many years by my noble friend Lord Newton is an organisation which certainly deserves to survive in one form or another. It may be possible to change it or to shuffle it into different places but it has met a very important need and has accumulated wisdom over the years from diverse sources. The Government should proceed with the utmost caution in handling the future of this organisation. They should in particular pay attention to the submissions made by my noble friend Lord Newton of Braintree.
6 pm
Lord Borrie: I congratulate the noble Lord, Lord Newton of Braintree, on devising a way of trying to ensure some sort of future for the Administrative
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The Government narrowly won the vote on this issue in Committee but in seeking to defend the Ministry of Justice from the queries that some of us had raised the only answer they could provide was that the relevant tasks could be carried out by the Ministry of Justice. Of course, the Ministry of Justice has a great deal to contribute on policy and other areas of administrative justice but it cannot replicate the advice and role of independent people from outside the department who have a range of experience. That experience can be tapped individually by the department; indeed, I think that the ministerial representative said that. However, if this council disappears, you will not get a group coming together and discussing among themselves the important issues of administrative justice. They will merely be seen individually by an appropriate department civil servant and we may or may not hear the results of that discussion. Therefore, I again congratulate the noble Lord on bringing forward the amendment and hope that he will press it to a vote.
Baroness Scotland of Asthal: My Lords, since the noble and learned Lord, Lord Mackay, does not seem to be tempted by his noble friend's invitation I rise to respond on behalf of Her Majesty's loyal Opposition. Not surprisingly, we wholeheartedly support the amendment moved by the noble Lord, Lord Newton. I take this opportunity to commend the noble and learned Lord, Lord Howe, for his powerful intervention and for the work that he did in relation to the Ely inquiry. The House will know that that was seminal to the material changes regarding mental health which came after it.
I invite the noble Lord, Lord McNally, to consider carefully whether he cannot accept the amendments spoken to so ably by the noble Lord, Lord Newton. As we heard from the noble Viscount, Lord Eccles, in regard to the previous substantive debate that we had on the Youth Justice Board, this is enabling legislation. Notwithstanding the fact that the Administrative Justice and Tribunals Council can be abolished, there is nothing to stop Her Majesty's Government thinking again. They are not bound to abolish it. If they want to abolish it, they should think carefully about how it can still be merged, used or modified in regard to other bodies. I invite the noble Lord to think again about
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The noble Lord, Lord McNally, will know the position in relation to legal aid which was touched on by the noble Lord, Lord Newton. As the Administrative Justice and Tribunals Council has recently said in its response to the Ministry of Justice consultation document Proposals for the Reform of Legal Aid, some material difficulties arise in this regard. Your Lordships will know that in its response the council opposed the proposed cuts to legal aid for administrative justice. It gave the example that welfare benefits legal aid costss £28.3 million in 2009-10, representing less than 0.18 per cent of the £16 billion value of benefits that are unclaimed every year. The success rate of legally aided clients in these areas is more than 90 per cent. The council believes that the Government bear responsibility for causing many of the appeals in the administrative justice system through poor decision-making, poor communication, delay and overly complex or incomprehensible rules. Not only will the legal aid cuts affect individual claimants, they will contribute to increasing work and delays in courts and tribunals that are already under pressure. How will such a challenge to the department that is also responsible for legal aid be made, made independently, and by whom? The value of an independent critical eye will remain present. Therefore, merging, modifying or otherwise dealing with this issue remains of critical importance.
I understand what has been said previously about the utility of the council's work no longer being identified, but we have not had an answer to the question posed in Committee by the noble Lord, Lord Newton, and again now, regarding how the department responsible for all these administrative issues will deal with issues such as these. The difficulty will remain. The challenges are likely to be much more honed, because the issues that administrative justice touches upon in its remit, in terms of everyday lives, become increasingly broad. I invite the Minister to consider very seriously indeed merging the council with another body, modifying the constitution arrangements under Schedule 3, or modifying the funding or transferring the functions-but not to expunge them in their entirety.
The noble Lord will know that acceding to these amendments would not oblige the Government to do all or any of those things. They would be given the power and opportunity to do so if they, in their inimitable wisdom, decided, on mature reflection, that the same was necessary.
Lord Mackay of Clashfern: My Lords, in view of what has been said, perhaps I may take this opportunity to indicate that this amendment is eminently supportable and that I hope the Minister will respond positively to it. I felt that I did not want to make two speeches; I thought that I had made one already. Anyway, that is my position.
Lord McNally: My Lords, that convinces me only that the noble and learned Lord, Lord Mackay, can resist anything except temptation.
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The noble Baroness gave some reasons why the Government should give themselves time to think on these matters. She pointed out that this is only enabling legislation, but, as I said in the previous debate, it is better that we have some clarity in what we wish to do. We are aware that the proposed changes to legal aid will put pressure on parts of this sector of justice, and that is why a concerted effort has to be made to drive up the quality of original decision-making. It is the departments and public bodies that make the original decisions that have the primary responsibility to ensure the quality of decision-making. However, this work with the decision-makers will continue, so as to improve getting it right first time. To drive up standards, we will seek to spread lessons learnt among relevant decision-making bodies.
The noble Lord, Lord Borrie, gave the game away when he said that the amendment and the consequential amendments were a perfectly legitimate and ingenious way of asking the House to reconsider a decision it had already made in Committee. However, the department has never hidden the fact that one of the reasons for the decision was saving money. However, as in the recent debates, almost throughout the Bill, opponents to what the Government propose seem to put enormous emphasis on the benefits that arm's-length bodies can deliver and give no credit at all to the fact that one of the beauties of our system was that one check and balance on the delivery of policy was the direct line of responsibility running from Ministers in their departments through to the Floors of both Houses. We do not accept the idea that all these things have to be done by arm's-length bodies, nor do I accept that the Ministry of Justice knows nothing and cares less about the wider issues of administrative justice. It is unfair to keep on throwing these attacks on civil servants who, in my experience, show an extraordinary commitment in their areas of expertise and are extremely willing to speak truth to power.
6.15 pm
I appreciate that the noble Lord, Lord Newton, is passionate about retaining independent oversight of the administrative justice system and that this has motivated this group of amendments. I recently met the noble Lord, Lord Newton, and the noble and learned Lord, Lord Howe, and faithfully took back their messages to the Secretary of State for Justice. Although I acknowledge their experience and knowledge in this area, and I am also grateful for their recognition that the Government have to make tough decisions, their argument did not carry weight with the Secretary of State. I even gave the Secretary of State the advice of the noble and learned Lord that you abolish in haste and repent at leisure-advice that came from his experience with the Metrication Board in the early 1980s.
It is probably no surprise that I have to tell noble Lords that the amendments do not fit with the Government's decision to abolish the AJTC. I should, however, reiterate that our policy is the right one. The AJTC is relatively expensive for the job it does; the context in which it operates has changed enormously since the council and its predecessor, the Council on Tribunals, were founded; and this in turn makes the
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In the case of the Civil Justice Council, I have to say that it is a little odd in the context of this particular Bill that a non-government amendment is tabled to put a body back into the Bill, rather than to take it out. Although I understand why the noble Lord, Lord Newton, has done this, I do not agree that the Civil Justice Council should be in the Bill simply to preserve the functions of a body proposed for abolition. The Civil Justice Council was deemed to perform a function that should remain unchanged; the AJTC was not.
I should like to respond first to Amendment 26. It would enable a merger of the Administrative Justice and Tribunals Council and the Civil Justice Council, and replace them with a new body, or abolish one body, with the remaining one taking some or all of the other's functions. This amendment would not allow the Government to abolish the AJTC and to keep the Civil Justice Council as it is-which is our intention. A merger is not desirable. Putting civil justice and administrative justice together provides too wide a range for one body to cover, and the focus of each is different. Tribunals are distinctive in character from the courts, and we are keen to preserve that difference. There are not sufficient overlaps between the two areas to make the whole manageable.
There are further difficulties-in particular, the difference in jurisdiction. The Civil Justice Council covers England and Wales, but the AJTC's remit extends to Scotland. There are also differences between the ways in which the two bodies are set up. Appointed members of the AJTC are remunerated, whereas Civil Justice Council members are not. In addition, even if the policy was sound, the secretariat that supports the Civil Justice Council would not be in a position to take on additional work without an increase in resources. In addition, even if the increase were relatively modest, the resource could not be funded without jeopardising other areas of the ministry's work.
I turn now to the rationale for abolishing the AJTC. When we considered the reforms to arm's-length bodies we looked at all relevant factors including value for money. The AJTC costs about £1.3 million a year. This may not seem a large sum in the context of the ministry's overall budget, but the Civil Justice Council's budget is £312,000-for a body whose work directly supports the practical operation of the courts. I accept that the Civil Justice Council's functions are similar to those of the AJTC. When we looked at functions, we looked not only at statutory functions but at how the bodies worked in practice. Much of the Civil Justice Council's work, such as the production of advice on the technical aspects of civil costs and policy, and pre-action protocols, directly supports the courts. As noted, the cost of the Civil Justice Council is extremely modest. It has unpaid members and little in the way of secretarial support compared with the AJTC. Taking this into account, as well as the technical emphasis of its work, we concluded that the Civil Justice Council should remain.
The Government's policy takes account also of the changes that have taken place since the AJTC was set up. The most significant is the establishment of the
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Our policy is to reduce duplication of effort and resource, and I do not share the view of the noble Lord, Lord Newton, that we would be taking a retrograde step if we were to abolish the AJTC. I have faith that the Ministry of Justice can work effectively with other government departments, and with other administrations and bodies outside the remit of the Tribunals Service, to ensure oversight and to develop a coherent policy on administrative justice. I appreciate the concerns of the noble Lord about the responsibility for administrative justice policy being spread across several government departments. However, the Ministry of Justice is committed to enhancing its role in wider administrative justice issues and will work closely with the AJTC while it still exists, and with other government departments that have an interest in this area such as the Cabinet Office, which leads on ombudsman policy.
The Government resist Amendment 26, which would merge the two bodies. Amendments 30, 32, 37, 45 and 47 would allow orders to be brought forward to modify the constitutions, funding or functions of the AJTC and the Civil Justice Council. The Government oppose these amendments for the same reason. There is not sufficient reason for us to depart from our original view, endorsed by the House in Committee, that the AJTC should be abolished. It should also not be merged with a body that we wish to retain in its current form. I hope that, in the light of these explanations, the noble Lord will withdraw his amendment.
Lord Newton of Braintree: My Lords, a number of points have been made. If I attempted to answer them all, I would rerun both the speech I made a while back and the one I made four months ago. Perhaps I may emphasise three points. First, I am not arguing that we should go on with a body costing the sums that the Minister referred to and should instruct it exactly as we do at present.
Secondly, if my remarks were taken as in any way being rude to civil servants; that was not my intention. I have a high regard for them and have worked with many of them. However, they do not want to touch some quite important tribunals in the local authority field with a barge pole-and nor do they know much about them. These are important parts of the system of administrative justice, as are the ombudsmen.
Thirdly, I turn to the geographical points that were made. The AJTC covers not the whole of the United Kingdom but the whole of Great Britain. It has a separate Scottish committee. Since 2007, it has had a separate Welsh committee, voted for by the House. I cannot be certain what will emerge, but there is a strong possibility that Wales and Scotland will decide to maintain their committees while England gets rid of anything similar that it has. That would not make sense.
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I find myself in a position that I neither expected nor wanted. There has been a slight flavour in one or two conversations that I have had that those of us who are pushing these issues are simply trying to defend the work that we did over-in my case-10 years. Obviously, that is in my mind. However, if I test the opinion of the House, it will not be for reasons of amour propre but because it would be wrong to do what is proposed. We need to do more to protect the standards of administrative justice and, in particular, the interests of those relatively less well off and vulnerable people who are to a large extent the subjects and users of the system.
I am a bit disappointed that nobody from the Cross Benches joined in, but I am profoundly grateful to the noble and learned Lord, Lord Howe of Aberavon, for his consistent support; to the noble Lord, Lord Borrie, for his support once again; and ultimately to my noble and learned friend Lord Mackay, who at least made a friendly comment, although I am not sure where it will take him-I am very friendly towards him too, I might say.
My last comment is about the Minister's suggestion that the noble Lord, Lord Borrie, gave the game away by referring to the process that will be required to pass an order under Schedule 1, or indeed any other schedule. Much of the first part of the debate on the Bill was taken up with my noble friend Lord Taylor of Holbeach introducing safeguard after safeguard on consultation, the parliamentary process and amendability in certain respects to reassure people that this would not just be a stroke of the ministerial pen. If a game has been given away, frankly, it was by my noble friend Lord McNally, who said, "We don't want to prolong all this uncertainty, do we? We can't really have all this upset again by debating an order and possibly not passing it".
It does not stand up with what the Government have said and what is now enshrined in the clauses of the Bill-with all the consultation and the rest of it. I am not sure that my noble friends will thank me and I do not particularly want to do it, but I shall not feel happy with myself unless I test the opinion of the House.
6.29 pm
Contents 198; Not-Contents 191.
Aberdare, L.
Adonis, L.
Ahmed, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Armstrong of Hill Top, B.
Bach, L.
Bakewell, B.
Bannside, L.
Barnett, L.
Bassam of Brighton, L. [Teller]
Beecham, L.
Berkeley, L.
Best, L.
Bilston, L.
Blood, B.
Boothroyd, B.
Borrie, L.
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Bragg, L.
Broers, L.
Brooke of Alverthorpe, L.
Brookman, L.
Browne of Belmont, L.
Browne of Ladyton, L.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Collins of Highbury, L.
Corbett of Castle Vale, L.
Crawley, B.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L.
Davies of Stamford, L.
Dean of Thornton-le-Fylde, B.
Dear, L.
Deech, B.
Desai, L.
Dixon, L.
Donaghy, B.
Donoughue, L.
Drake, B.
D'Souza, B.
Dubs, L.
Eames, L.
Elder, L.
Elystan-Morgan, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Finlay of Llandaff, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Giddens, L.
Gilbert, L.
Golding, B.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Greengross, B.
Griffiths of Burry Port, L.
Grocott, L.
Harries of Pentregarth, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haskins, L.
Haworth, L.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howells of St Davids, B.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
King of Bow, B.
King of West Bromwich, L.
Kingsmill, B.
Kirkhill, L.
Knight of Weymouth, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Liddle, L.
Low of Dalston, L.
McAvoy, L.
McDonagh, B.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
Mackay of Clashfern, L.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mandelson, L.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Mitchell, L.
Morgan of Drefelin, B.
Morgan of Ely, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
Newton of Braintree, L.
Nye, B.
O'Loan, B.
O'Neill of Bengarve, B.
O'Neill of Clackmannan, L.
Paisley of St George's, B.
Palmer, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prashar, B.
Prescott, L.
Prosser, B.
Quin, B.
Ramsbotham, L.
Rea, L.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Saltoun of Abernethy, Ly.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Snape, L.
Soley, L.
Stevenson of Balmacara, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
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Touhig, L.
Triesman, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Walpole, L.
Walton of Detchant, L.
Warner, L.
Warnock, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wigley, L.
Wilkins, B.
Williams of Elvel, L.
Wills, L.
Winston, L.
Wood of Anfield, L.
Woolf, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.
Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Allan of Hallam, L.
Anelay of St Johns, B. [Teller]
Astor, V.
Astor of Hever, L.
Attlee, E.
Bates, L.
Benjamin, B.
Berridge, B.
Black of Brentwood, L.
Blencathra, L.
Boswell of Aynho, L.
Brinton, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browning, B.
Burnett, L.
Buscombe, B.
Byford, B.
Caithness, E.
Cathcart, E.
Chidgey, L.
Clement-Jones, L.
Colwyn, L.
Cormack, L.
Cotter, L.
Courtown, E.
Craigavon, V.
Cumberlege, B.
De Mauley, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Dykes, L.
Eaton, B.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Edmiston, L.
Empey, L.
Falkner of Margravine, B.
Faulks, L.
Fearn, L.
Feldman, L.
Feldman of Elstree, L.
Fookes, B.
Fowler, L.
Fraser of Carmyllie, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Geddes, L.
German, L.
Glendonbrook, L.
Gold, L.
Goodlad, L.
Grade of Yarmouth, L.
Greenway, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Harris of Richmond, B.
Henley, L.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howard of Lympne, L.
Howard of Rising, L.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussein-Ece, B.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
Jopling, L.
Kilclooney, L.
King of Bridgwater, L.
Kirkwood of Kirkhope, L.
Kramer, B.
Laming, L.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lexden, L.
Lingfield, L.
Linklater of Butterstone, B.
Loomba, L.
Lothian, M.
Luke, L.
Lyell, L.
Macdonald of River Glaven, L.
MacGregor of Pulham Market, L.
McNally, L.
Maddock, B.
Maginnis of Drumglass, L.
Mancroft, L.
Maples, L.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Mawhinney, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Montrose, D.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Naseby, L.
Neuberger, B.
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Newby, L.
Noakes, B.
Northbrook, L.
Norton of Louth, L.
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Oppenheim-Barnes, B.
Palmer of Childs Hill, L.
Patel, L.
Patten, L.
Perry of Southwark, B.
Phillips of Sudbury, L.
Plumb, L.
Popat, L.
Powell of Bayswater, L.
Randerson, B.
Rawlings, B.
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Redesdale, L.
Rennard, L.
Ripon and Leeds, Bp.
Risby, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Ryder of Wensum, L.
St John of Bletso, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharp of Guildford, B.
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Shipley, L.
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Slim, V.
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6.41 pm
Amendment 27 had been retabled as Amendment 34A.
Clause 3: Power to modify constitutional arrangements
29A: Clause 3, page 2, line 37, at end insert-
"( ) To the extent that this section may be applicable to Sianel Pedwar Cymru ("S4C"), only subsection (2)(a) to (c) and (g) and subsection (3)(a), (b) and (d) shall apply."
Lord Wigley: My Lords, I declare my interest in matters relating to S4C, as I did in Committee. I beg to move Amendment 29A in my name and to speak to the other amendments: in particular, Amendment 34B in the name of the noble Lord, Lord Roberts of Conwy, and Amendment 40 in the name of the noble Lord, Lord Roberts of Llandudno.
I shall not speak at length, as I spelt out the general arguments in relation to S4C in Committee. Our concerns expressed at that time remain. They were particularly
28 Mar 2011 : Column 1005
In many ways, the amendments are being taken tonight in the wrong order. Amendment 40 would remove S4C from Schedule 4 and, essentially, from the Bill. That is what most of us from Wales want. Amendment 34B would bring S4C into Schedule 3 -something which many of us regard with trepidation, because that gives the Minister the power to apply the provisions of Clause 3 to S4C; and the powers are extremely wide ranging. It would allow the Minister to modify the constitutional arrangements of S4C in how employees exercise its functions, the power to employ staff, how it runs its committees and how it is accountable to the Minister. All those seem little short of giving the Minister powers by order to micromanage S4C.
Amendment 29A is moved not only to get my retaliation in first but to cope with the unfortunate eventuality that the amendment of the noble Lord, Lord Roberts of Conwy, should be carried and that S4C becomes part of Schedule 3. Amendment 29A restricts the power given to the Minister to subsection (2)(a) to (c) and (g) and subsection (3)(a), (b) and (d). That would still allow the Minister to be involved with the appointment of the chairman-as he apparently is very much at the moment. It would allow changes to the body and to the offices. It would still allow the powers with regard to reports and accounts, which are perfectly normal requirements in the circumstances, but it cuts out the temptation to micromanage S4C.
I shall be very interested to hear the justification of the noble Lord, Lord Roberts of Conwy, for inserting S4C into Schedule 3. Clearly, the Government did not think that those powers were necessary-otherwise they would have put them in the Bill or tabled a government amendment at this stage-or are the Government leaving their dirty work to a trusted pair of hands, who has bailed them out on so many occasions in Wales over the years? As I said, I would rather that Amendment 34B were not moved at all, or, if it is, that it is defeated. Equally, I urge that Amendment 40, to which I have added my name, should be carried. If it is rejected by the Government, it should be taken to a vote.
6.45 pm
All the amendments deal with one simple matter. S4C should never have been in the Bill. The independence of S4C will be critically undermined, as it will be beholden to the BBC Trust for the bulk of its funding, which the Government, without prior consultation, have moved to the licence fee. He who pays the piper calls the tune. S4C will be at the mercy of the BBC Trust for its resources. Its independence will be further eroded by the Minister's indication that BBC staff will sit on S4C's management board-not just on the authority but on the management board. As such, the
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The Minister has kindly suggested that S4C can keep its logo. Well, thank you very much indeed, if that is all that independence means. I emphasise that S4C's independence is not philosophical or ephemeral; it is a hugely practical issue. S4C competes against BBC Wales for television rights for sporting and other events. How is it to do so if BBC staff are locked into its management? If it is not meant to compete, how can it be said to be independent in programme content?
I want S4C to be taken lock, stock and barrel out of the Bill. I urge noble Lords to support Amendment 40, to oppose Amendment 34B and to support Amendment 29A if Amendment 34B carries. If Amendment 29A carries, I humbly ask that the noble Lord, Lord Roberts of Conwy, not move his amendment, as the will of the House will clearly be on our side, not his. I beg to move.
Lord Roberts of Conwy: I speak to Amendment 34B. In the course of Committee debate on S4C, I suggested that the reorganisation of the S4C authority's governance might make it advisable to include S4C in Schedule 3, as a body whose constitutional arrangements might be modified by order.
I thought that there was tentative empathy with that view in government, and that that was why S4C was originally included in the now defunct Schedule 7, allowing for transfer to another schedule. I cannot see how the Government can fully implement the commitments given by Ministers to Parliament and others without modifying the structure of S4C. That is why I tabled Amendment 34B to include S4C in Schedule 3.
My noble friend Lord Crickhowell has added his name to the amendment. Unfortunately, he cannot be here this evening because he is taking his wife to hospital outside London, but he has left me with a note of apology to your Lordships. As he played a central role in the creation of S4C and, as a director of HTV, later worked to ensure its success, the House will understand his disappointment at his inability to be here. He has encouraged the Government to accept the amendment. He feels very strongly that the financial assurances given by the Government-given practical effect by the company's inclusion in Schedule 4 -combined, if my amendment is passed, with the ability to create an appropriate and effective management structure put in place after wide consultation inside and outside Parliament, is the best way to guarantee a strong future for Welsh language television.
He also thinks that to remove S4C from the Bill, with all the uncertainties that would be created by the need for primary legislation to replace the existing statute, would be a profound mistake.
I should perhaps add that S4C's current structure and composition are governed by Chapter VI and Schedule 6 to the Broadcasting Act 1990, as amended, and-particularly as to funding-by the Broadcasting Act 1996, which contains the requirement that the Secretary of State increase its funding annually by reference to the retail prices index. Most of us on all
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The Secretary of State, very cleverly, has at least agreed alternative funding arrangements for S4C, predominantly from his department for the first two years-2011-12 and 2012-13-and then from the licence moneys collected by the BBC Trust in the following two years. These new funding arrangements will be subject to an order under Schedule 4, where S4C also appears, and subject to public consultation and the special affirmative procedure as prescribed in Clauses 10 and 11, which are absolutely essential reading and make considerable changes in order-making as most of us have known it.
The new funding arrangements require the inclusion of S4C in Schedule 4, whereas an amendment in this group proposes the withdrawal of S4C from that schedule. If that amendment succeeds, as the noble Lord, Lord Wigley, suggested it should, the future funding of S4C will be left in limbo, on the edge of a black hole. However, my guess is that when the Bill finally becomes law, S4C will still be in that schedule. There is no satisfactory alternative to the funding arrangements proposed by the Government. We have not heard a single suggestion for alternative arrangements.
This would leave the Government with a number of organisational commitments to fulfil, and I am not at all certain that all those can be met by reliance on and within the terms of the existing broadcasting legislation from 1990 onwards. That is one of the main reasons why I should like to see S4C included in Schedule 3 -to help the Government meet their commitments. The nature of the commitment was spelt out by the DCMS in an exchange of letters between the Secretary of State, the chairman of the BBC Trust and the chairman of S4C towards the end of last year. I detailed these commitments in Committee. They are also contained in a concise form in a DCMS briefing document of 16 December which refers to,
with all that that entails by way of editorial and commissioning independence, accountability, distinctive brands and so on. It is not at all clear to me how all that can be achieved without an order under Schedule 3.
Another reason for S4C's inclusion in Schedule 3 is that the authority and the management board have not distinguished themselves in recent years. There has been a damaging divisiveness between them, which most of us who are of Wales know about. Possibly this is a result of the fact that S4C is a curious animal-not a quango but a corporate body, regulator and programme provider at the same time, as Sir Jon Shortridge, former Permanent Secretary at the Wales Office and the National Assembly, says in his report on the governance of S4C. The authority and the management also pursued what is to me still a puzzling policy of separateness from 2006 onwards, and possibly that
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The accountability function of the BBC Trust for the licence fee moneys it collects and will spend in part sustaining S4C as well as the World Service is a new ingredient in the melting pot. How I wish that that money could be diverted through DCMS, but I sense that that cannot or will not be done at this stage. Also new is the relationship between S4C broadcasting and devolved areas of government, especially relating to the Welsh language, culture and education. Clause 10, which refers to Welsh Ministers and their functions in these associated areas, is highly relevant in this context. The Welsh Ministers must be consulted when an order is proposed. All these matters, I maintain, should be reflected somehow in the constitution of S4C, which they are not at present. So S4C requires inclusion in Schedule 3.
A fresh constitutional order under Schedule 3 sorting out the membership of the authority and its composition, its duties and responsibilities and, possibly, the shape of the management board-although I respect what the noble Lord, Lord Wigley, says about the detail; we do not want too much detail, although certainly the management board should be somewhere included-would be a very helpful and salutary measure. The consultation and consequential procedure required under Clauses 10 and 11 would also enlighten the Welsh public-who have been much misled in this matter-over the couple of years ahead, as well as government, and enable all interested parties to have their say. It might add a new dimension, indeed, to devolution.
With a revitalised constitution, S4C would once again achieve the excellence it formerly enjoyed and provide a service which met the needs of Welsh-speaking viewers and the many, of all ages, keenly aspiring to learn the language of heaven. This is a challenge to the Secretary of State to rise to the occasion, as I am sure he will over the months ahead. For the moment, I hope that my noble friend on the Front Bench will spell out the Government's intentions once more and inspire trust in the Government and her department to provide a sound basis and proper framework for the future of S4C.
Perhaps I may say a brief word on later amendments, especially Amendment 40. Let me make it clear that I am trying to save S4C, as I did before its birth-as did the late Gwynfor Evans, who threatened to fast to death on this account. We were on the same side, which may come as a surprise to many young people today. Some extremists now say that the Government are intent on killing off S4C. There is not a shred of evidence to support that. S4C has never appeared in Schedule 1 alongside the bodies that may be abolished.
All that we are concerned about really is S4C's funding, which can be rearranged under Schedule 4. If S4C is withdrawn from that schedule, where does that leave its future funding? I would not like to rely on Clause 80 of the 1996 Act and its annual RPI increase. It has not been operated for the coming year, and it is not expected to work for the following year either. The withdrawal of S4C from Schedule 4 deprives the Government of the right to submit a draft funding order for consultation with interested parties, including
28 Mar 2011 : Column 1009
7 pm
Lord Morris of Aberavon: In the interests of brevity, I shall make just two points. There must be a meaningful and transparent financial arrangement between the BBC and S4C if S4C is not eventually to be swallowed up by the much larger BBC. Think of the tale of Jonah and the Whale. Mark Thompson says that he is the custodian of the licence fee. He does not own the licence fee. It is the licence fee payers' money. If it has to be funnelled through the BBC, if there is no top-slicing-and I suspect the Minister would lose that battle-I shall make one practical suggestion; we are all familiar with legislation stating that money cannot be spent without the consent of the Treasury. Let us borrow from that and say that any money that goes via the BBC to S4C must go with the consent and approval of the Secretary of State. I suspect that that will get over most of the accounting problem, and it will underline the Secretary of State's responsibility to ensure independence and financial independence for S4C.
My second point is about the appointment of the chair, which was referred to in the Minister's letter and which I raised at the meeting with him. I think he has fully taken the point on board. Both sides of the House will have some experience of appointments in Wales. I am proud of the appointments that I made when I was Secretary of State from Lady White to the Land Authority to Lord Gibson-Watt to the Forestry Commission. They were personal appointments. The Minister and his good intentions will be judged by the kind of person who is appointed to the chair of S4C. He or she must be a figure who is respected throughout Wales, with a proven track record in administration and who can stand up for S4C and Wales and not become a sort of BBC toy-boy or toy-girl. At every appointment, there will be a parade of those who have served and graced our quangos in Wales. I can assure the Minister that they are the same lot every time they come. They go round and round. I suggest that the Secretary of State is bold and considers someone with at least some experience outside Wales and a deep knowledge of Welsh and Welsh affairs. Our nation, knowing that person's track record, would have some confidence in his or her stewardship. The Minister might well have to reach out to find some such person. I know such a person is there. Please do not give us the old retreads from the old quangos who have not done particularly well in Wales.
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Lord Roberts of Llandudno: I shall speak to Amendment 40, which stands in my name. In so doing I remind folk, possibly those who do not have much experience of Wales, of how essential S4C is for Welsh-speaking people. If it were withdrawn it would be as though the BBC were withdrawn from the English-speaking people. Some 600,000 people speak Welsh, and the popular Welsh serial "Pobol y Cwm" attracts 500,000 viewers every week. It is no small fry; it is an important part of the life of so many people.
I shall not take very long, but I shall ask the Minister for assurances on a number of issues. The first is that funding will be guaranteed and ring-fenced for the entire period until 2016. That assurance would set my mind at rest. The BBC charter-at Article 47, I think-limits the way in which it can rechannel the fees, which may only go to some organisation within the remit of the BBC. It is not possible to do any top-slicing with the present charter. In December 2016, we shall have a new charter, so we will have an opportunity, if needed, to revise the BBC charter as far as Wales is concerned.
The second assurance I ask for is that the board of S4C will have a notable majority of people from within Wales and that in no way will the BBC try to have the majority of people on that board. I regret that the executive of the BBC will have any outside input at all, but if Parliament decrees that that is necessary, I ask for an assurance that there will be a majority of people of Wales who understand Wales.
The third assurance I request is that S4C will have total editorial and programming independence with 100 per cent Welsh input. If I can get that, it will be very helpful.
The fourth assurance is that any new governance structure for S4C will be enshrined in a dedicated agreement, a formal declaration, laid in Parliament. It will then become the law of the land. The relationship between S4C and the BBC will be seen as a partnership, and not that S4C is a subsidiary of the BBC. The current level of independent production companies will be retained. I have spoken to some in the past few days, and they are afraid that their input will be less and that they might, as one in Caernarfon already has, not be able to meet the challenges of the present time. We should also look again at the Welsh Assembly's role and responsibility in relation to S4C, especially after the referendum in Wales four weeks ago, following which the Assembly now has full control over topics and issues in 20 devolved areas. Possibly within a few years when the financial situation is better, S4C could become a matter that is devolved to the Welsh Assembly.
Finally, if we are not in Schedule 3, how will that affect our ability to change and to have our own governance? I should be very grateful for assurance from the Minister on that.
For me, the essentials are: secure funding over a long time; editorial independence; looking to a new charter, under which funding can be altered; and a total commitment to the Welsh language. I look forward very much to hearing what the Minister has to say on those matters.
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Lord Elystan-Morgan: My Lords, the noble Lord, Lord Roberts of Conwy, has, in a most endearing way, explained to the House how by the purest coincidence it so happened that many months into this Bill he had an idea in relation to Clause 3, which had not commended itself in any way to Her Majesty's Government, but which somehow or another now has been thoroughly and enthusiastically espoused by them. I will say no more about that matter.
However, I think that the submission is one which the House would accept. Clause 3(2) has nine paragraphs attached to it. The totality of the provisions would give a Minister massive, almost dictatorial, powers in relation to the reconstitution of any one of the bodies included in the Bill. If a Minister wishes to do so-I am sure that the noble Lord, Lord Taylor of Holbeach, would not wish to do so-he could exercise utterly emasculated consequences upon S4C. However, if he does not wish to do so, is there any reason why the very limited powers-indeed, in one or two cases they are almost cosmetic powers-referred to in the amendment of my noble friend Lord Wigley should not be accepted? It seems to me that there is an irrefutable logic in relation to that.
I shall speak briefly about the other matters. We have rehearsed these arguments time and again but I have the impression that it is very much the exercise of the rocking horse. There is a great deal of movement but not much forward progress. I speak now as a Welsh-speaking Welshman and as one who can well represent the views of the ordinary persons in Wales who regard the Welsh language as their own language, even though four-fifths of them do not speak it. The problem is that there is a huge chasmic gap between what Her Majesty's Government say and desire-I accept the total genuineness of the noble Lord, Lord Taylor, and his team in this matter-and what is legally possible.
Three areas of independence are crucial: financial independence, corporate independence and editorial independence. In a letter dated 25 March, which was sent to many of us, there is a guarantee with regard to editorial distinctiveness. It seems to me that there is a world of difference between distinctiveness and independence, a matter into which the noble Lord might wish to look. To me, distinctiveness is much narrower than independence.
As regards financial independence, it would be marvellous if there could be a direct transfer of a part of the fee. The Government would get a quid pro quo-or, one might say, an £80 million quid pro quo. There is a huge restraint on them in the way in which that fee can be spent. If that fee passes through the conduit of the BBC, of course the BBC becomes the accounting agent. But there is a way out. The noble Lord, Lord Roberts of Conwy, said that there was not. In June 2006, an agreement between the BBC and the Secretary of State was published and it has formal status. Following that, a few months later, in October 2006, the charter of the BBC was completed. It seemed therefore that there was every intention that the preceding agreement of June 2006 should in some way operate upon the charter. That agreement of June 2006 makes it clear that the Minister, in relation to the licence fee,
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The noble and learned Lord, Lord Morris of Aberavon, raised the corporate independence of S4C in this structure. If you have an informal relationship, all is well. There is already an informal relationship. The BBC is responsible for producing 10 hours per week of programmes in the Welsh language, which is no problem at all. But once a structure is set up, one corporation has to dominate over the other corporate bodies. There cannot be a situation whereby they are at arm's length and equal. That point has already been made by my noble friend Lord Wigley.
That is the situation. Well meaning guarantees are being given by the Government, but they are in no way bankable because of the technical, legal difficulties. The problem can be overcome only by tackling those difficulties in a specific way so that the undertaking given is realistic and bankable.
7.15 pm
Baroness Morgan of Ely: My Lords, I am extremely sorry that, despite the impassioned pleas by this House on the issue of withdrawing any reference to S4C from the Public Bodies Bill, the Government have ignored any suggestions to this end and are continuing their unrelenting pursuit of weakening this important channel in Wales. Let us remind ourselves that S4C was born after years of bitter struggle. One cannot deny that the channel is being weakened. It certainly had a massive impact on the language community and on life in Wales, not least the dramatic contribution of slowing the decrease in the number of people speaking Welsh to the point where for the first time in history we can see an increase.
We have moved from a position where S4C was established through statute with guaranteed long-term funding to a position where, under Schedule 4, it may see its funding cut so dramatically as to make it nigh on impossible to run the channel or, under Schedule 3, be modified at the drop of a hat without reference to anyone. One of my greatest concerns about the way in which the Government are handling this matter is the obvious ignorance of what they are dealing with.
The Secretary of State has suggested that the skills and expertise of the BBC will help to protect S4C's independence. He talks as if there is no current relationship with the BBC and suggests that it might be helpful to have the BBC on board as it is able to reach wide audiences and deal with niche programming. Anyone in Wales who has the faintest idea of how the channel works knows that some of the most popular programming on the channel is and has been delivered by the BBC since its inception. We all know this. Why do the Government not know it? We are confident that the skills and experience of the BBC could continue to make a valuable contribution to the channel but there is a massive difference between this and editorial independence, which is essential in order to retain pluralism in the media in Wales and which is already extremely restricted.
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At the very least, we need an idea of what the future governance structure will look like. What will the relationship be between the BBC trustees and the S4C board? Who will have the final word? Will there be permanent representatives of the BBC on the S4C board? Will S4C be granted total editorial control? Will the BBC have a veto on the board or will it be a minority voice? Will there be a reference to S4C in the new BBC charter? Are we supposed just to trust the Government that they will do this? What will they say? Where are the assurances? As the accounting body, the BBC would be responsible for funding. It simply would not be able just to hand over the cash and hope for the best. What does independence mean in these circumstances?
This morning, on the school run-I am sure that not many noble Lords are doing that these days-I ran into a cameraman who works on S4C programming now and again. He told me that a camera costs £60,000 and that he would not be investing now because he does not know what the future looks like. This kind of insecurity is already hitting investment and is having a damning effect on the media industry in Wales. The amendment suggested by the noble Lords, Lord Roberts and Lord Crickhowell, would leave S4C in an even more vulnerable situation than under the Government's initial suggestion, which dealt only with the financial situation. Including a reference to S4C in Schedule 3 would allow any future Government to modify profound constitutional arrangements without any accountability in future and at the stroke of a pen. I urge the Government to think again.
Lord Crickhowell: I hope that the House will forgive me for not having been present for the debate. I understand that my noble friend Lord Roberts of Conwy has explained that I had to take my wife to hospital as she is going to have a hip operation very early tomorrow morning.
Most noble Lords who know me will realise how anxious I have been to take part in this debate. I do not think that anyone can question my credentials as far as S4C is concerned. I was one of its creators. I wrote the Conservative election manifesto for Wales before the 1979 general election in which we committed ourselves to a form of Welsh language broadcasting. I engaged in the battles that followed and persuaded my right honourable friend Willie Whitelaw as he then was, later Lord Whitelaw, to change the way forward and to make sure that we sent out the Welsh language on a single channel. At the same time, I engaged with my noble friend Lord Roberts of Conwy on a major exercise to safeguard, strengthen and encourage the Welsh language in Wales. My actions were then followed up by my successor Secretaries of State, working with my noble friend, so I think that it is right to say that no political party has done more for the Welsh language than the Conservative Party. Therefore, when assurances about the future of the language are given by Ministers on behalf the Conservative Party they should be treated with respect.
After I had left the Welsh Office, I was for many years a director of HTV, eventually its chairman. During the early days, we helped to sell S4C's advertising and provided a considerable quantity of its programming;
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The Government have not only given long-term assurances that they are determined to secure the future of S4C but have set out a financial programme and budget for the next four years which I believe give S4C, with its reserves and with the management capability that I hope will be assisted in a number of ways in the future, a sound foundation on which to move forward during the next three or four years.
If we take S4C out of the Bill, we are left with the legislation as it is in a situation where it is quite clear that reductions in expenditure will have to be made. The existing Bill does not give S4C any safeguard. I imagine that there would have to be a new clause in a Finance Bill, but I cannot believe that it is beyond the capability of the Government to ensure that savings are made, as they are being made in every other public body-and, indeed, most private ones.
So I was not so concerned about the inclusion in the Bill of S4C in relation to financial arrangements, but, until very recently, I was concerned about the organisational and structural issues that have been raised with great eloquence by many noble Lords, including my noble friend Lord Roberts of Conwy. They have asked very reasonable questions about who will ultimately be responsible, who the accounting officers will be, and so on. Anyone who remembers my involvement in the tragic drama of the Cardiff Bay Opera House will understand why I perhaps more than anyone understand all too clearly the difficulty when you have one body providing finance and the other being responsible for managing a project. What happened then was that the Cardiff Bay Development Corporation, which was providing the finance, decided that it could second-guess the judgment of the trustees who had been set up with the job of organising and managing the project, and disaster followed.
I see the potential for that kind of disaster if we get wrong the structural organisation of S4C. That is why I very much welcomed the suggestion of my noble friend Lord Taylor of Holbeach, which led to my noble friend Lord Roberts of Conwy, supported by me, putting down an amendment to include S4C in Schedule 3. That will enable us, over the next three or four years, during the period when finance has been provided, to have the widespread consultation that people have very reasonably demanded both inside and outside Parliament. Under the revised structure of the Bill, the matter would then have to be approved by both Houses of Parliament. We would have the opportunity-towards the end of that four-year period, we would be into the next revision of the BBC charter-to work out a solution without rush and without taking S4C out into a black hole by removing it from the Bill, which would be a disastrous way forward. The proposal would provide a combination of finance and structural change and the ability to consult, which should and can enable us to provide a sound future for S4C.
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Sometimes people seem to imply that the structure that we now have is somehow sacred, despite the fact that some of the recent management failures by S4C might suggest that changes in structure would be a very good idea. But there is nothing sacred in the present structure. It is not the structure that was put in place in 1982. At that time, the finance was provided largely from the independent television companies. I think that it was my right honourable friend, as he then was, David Mellor, who introduced the changes that led to the present structure. I do not believe that the structure is what matters; what matters is the future of strong Welsh language television broadcasting. No one is more concerned to see that that continues than me. It is because I believe that we now have a way forward that can guarantee a strong future for Welsh language television broadcasting that I will vote against any amendment that takes S4C out of the Bill and will support the amendment moved by my noble friend Lord Roberts of Conwy.
7.30 pm
Lord Grade of Yarmouth: My Lords, I declare a past history of relationships with S4C through my involvement at Channel 4 and later at the BBC. While I cannot speak with the passion of a Welsh language speaker, of a Welsh inhabitant or of somebody of Welsh birth, I have always supported S4C whenever I have had the opportunity and have been involved. I am sure that the archives-because that, sadly, is where my support now sits-will demonstrate that I have always supported the ambitions of S4C and its contribution to the culture and life of these islands.
That said, I regret that I cannot support the amendment. I am listening to this debate as a broadcaster who has in various guises seen various free-to-air public service broadcasting bodies be picked up by the roots more often that the petunias in my garden, be pruned, re-examined, replanted and repotted, with attempts to kill them off and so on. I have been listening to the fear and worry in noble Lords' minds. However, from where I sit and from my experience, I can say that S4C occupies the most privileged position in British broadcasting that is possible to imagine, and the idea of introducing a greater level of accountability and transparency seems perfectly reasonable. Obviously, the devil lies in the detail and change creates uncertainties. However, I am sure that the uncertainties will be ironed out.
I am in some confusion surrounding the independence of S4C. I have heard a number of noble Lords express concerns about its future independence, but then I hear that the solution is to give the money to the Treasury to dole out or to give it to the DCMS-the Government of the day-to look after. I cannot imagine anything more likely to undermine the independence of a broadcaster than being in the hands of the Treasury and the DCMS. I am trying not to sound in any way antagonistic towards S4C, which I believe in passionately. I wish there were a Yiddish channel for the language that is dying out in my culture, but there is not. S4C is a very, very important part of Welsh sovereignty and identity and so on. It deserves to be protected and it deserves public money, but the price you pay today for that privileged position is greater accountability and transparency.
28 Mar 2011 : Column 1016
I am sure that the Government are hugely sensitive to the issues that surround broadcasting. I would be very comfortable if my future depended on the BBC Trust. It understands the independence of broadcasting and it exists to create an independent BBC. I can think of no greater guarantor of the independence of S4C than the BBC Trust. Therefore, with great regret, I cannot support the amendment and I commend the words of my noble friend Lord Crickhowell.
Baroness Gale: My Lords, I agree that this has been another great and passionate debate. There have been contributions from many noble Lords who are steeped in the language and culture of Wales and have great knowledge of S4C's history and of how it is run. I am sure that the Minister will have taken note of what has been said.
First, I thank the Minister for arranging a meeting with the Secretary of State, the right honourable Jeremy Hunt. It gave interested Peers the opportunity to discuss their concerns about the Government's proposals for S4C. I believe that all the Ministers and the Secretary of State were made aware of the very strong feelings that Welsh Peers have regarding this matter.
I am sure that over the past few days many noble Lords have, like me, received numerous e-mails from a range of people and organisations in Wales expressing their fears and concerns about the future of S4C. The people who wrote to me were not extremists; they were from organisations such as the National Eisteddfod of Wales, Merched y Wawr, Urdd Gobaith Cymru and a number of churches. I also received letters from a number of individuals, and everyone was very concerned about the Bill as it stands. It seems that very few people in Wales agree with the Government's proposals regarding the future of S4C, although they all recognise that there are problems which need to be addressed, as some noble Lords have mentioned. Of course, funding issues, too, have to be looked at.
In Committee, we mentioned that the four leaders in the Welsh Assembly made very sensible suggestions in their letter to the Prime Minister, calling for an independent inquiry commissioned by the Welsh Assembly and the Westminster Government. However, that suggestion seems to have been ignored-if there was a response, we are not sure what it was. The Minister, the noble Baroness, Lady Rawlings, said in Committee that it had not been practical to have in-depth discussions with all interested parties ahead of the announcement, and that the timetable reflected the Government's desire to put the UK finances in order. Later, she said:
"We have had lengthy dialogues with Cardiff to secure the future of S4C within the BBC partnership with DCMS funding".-[Official Report, 9/3/11; col. 1640.]
Can she say something about those discussions in Cardiff, as we are not sure how they went? Who took part, what was the outcome, and are the discussions continuing? I feel that if more discussions had taken place earlier, the general feeling that the Government have not been listening could have been dealt with.
In a letter to the noble Lord, Lord Wigley, Jeremy Hunt said that the Government are committed to the future of Welsh language programming and to S4C as a strong and sustainable Welsh TV service with editorial independence. He said that a change to the funding
28 Mar 2011 : Column 1017
Everyone who has spoken today has said that they support S4C and wish to see it continue. The one desire is to maintain a strong Welsh language television channel in Wales for the benefit of all who live in Wales and who value the language and culture. The people of Wales need some reassurance that that will happen. The amendments in this group would go some way towards achieving that, especially if S4C were to be removed from Schedule 4.
I hope that the Minister can give some assurance on the independence of, and funding for, S4C. I repeat that we would like to see S4C removed from Schedule 4. We look forward to the Minister's response, bearing in mind what has been said today and that the people of Wales will be listening to what she says. We support the amendment of the noble Lord, Lord Wigley.
Baroness Rawlings: My Lords, we have had another full and passionate debate today, and it is clear that this is an incredibly important issue. Once again, noble Lords on all sides of the House have demonstrated the depth of feeling and commitment that exist on this issue, and I know that the Government share that. I make it clear at the start that Her Majesty's coalition Government remain fully committed to Welsh language television broadcasting, as I said in Committee and in response to earlier questions. We recognise the immense value that it has to the culture, economy and people of Wales and the role that it plays in preserving and promoting the Welsh language. I would like your Lordships to be under no illusions about the Government's primary objective for S4C, which is to protect Welsh language television for the long term. I repeat that: it is to protect Welsh language television for the long term. I am afraid that we beg to differ with the views of the noble Baroness, Lady Morgan, which I hope to explain further in my response.
Since our last debate, in Committee on 9 March, I, along with the Secretary of State for Culture, Media and Sport, my noble friend Lord Taylor and the Minister for Wales, have met several noble Lords to discuss S4C and to listen to your Lordships' concerns as promised. We had a very helpful discussion and I am grateful to all noble Lords who attended for their insightful and constructive approach. Their views have been invaluable and I appreciate the frankness and sincerity of their contributions to the debate. It was clear that, while our views differed on some methods of reform, we fundamentally shared the view that S4C must be protected as an independent channel, secured for the long term.
I will take some time today to try to give specific assurances wherever I can to all of the concerns that have been raised. I make no apologies for speaking at length on this issue, for it is one that the Government
28 Mar 2011 : Column 1018
I will first talk about the funding of S4C, which so many noble Lords asked about. There has been almost universal acceptance that S4C, like any organisation in receipt of public money, must operate within the economic context in which we find ourselves. Cuts to the funding of S4C are inevitable and the existing, index-linked funding arrangement is simply untenable. The cut to S4C is exactly in line with the cut to the Department for Culture, Media and Sport. Quite simply, that represents the fairest solution. As well as the funding that S4C will receive from the Government and the BBC over the next four years, it will also receive around £20 million per year worth of programming from the BBC, which your Lordships will agree is not an insignificant sum.
A number of noble Lords asked for the funding for S4C to be secured for a longer period. I assure the noble and learned Lord, Lord Morris, that the Government have secured ring-fenced funding for S4C for the entire comprehensive spending review period up to March 2015. The noble and learned Lord asked for ring-fencing up to 2016, but we support it up to 2015, give or take a few months. That should be welcomed in the current fiscal climate and goes beyond the security given to many other bodies. Beyond the spending review period, the Government are committed to making certain that the new partnership arrangement will guarantee a level of funding that is sufficient to allow S4C to deliver its public service remit, as enshrined in legislation.
I reiterate the Government's commitment to have a full review of the scale, scope and funding of S4C before the end of the spending review period, once the new partnership has had time to bed in, as my noble friend Lord Grade said. The long-term performance of the channel should be determined by its success rather than by how much money it receives. That success will be defined following the review which will be shaped by the people of Wales.
7.45 pm
During our debate on 9 March, noble Lords suggested that initial decisions on S4C were taken without meaningful discussions with those in Wales who have a legitimate interest. We acknowledge that the Government moved fast on the decisions during the comprehensive spending review and were unable to consult with everyone. My noble friend Lord Roberts of Conwy stressed that Clause 10 now makes it a statutory requirement to consult before orders are brought forward, and that requirement specifies the need to consult Welsh Ministers on matters that relate to Wales. I assure your Lordships' House and my noble friend Lord Roberts that there will be a full public consultation on the governance
28 Mar 2011 : Column 1019
This is also what lies behind our support of Amendment 34B in the name of my noble friend Lord Roberts of Conwy to add S4C to Schedule 3. When the Bill was introduced, it was not clear that the powers in Clause 3 would be needed to facilitate the new partnership with the BBC. However, it is now clear that, to make this partnership work in practice, there will need to be some modest changes to the constitutional arrangements of S4C. I am pleased that my noble friend Lord Crickhowell is with us after all this evening, especially as he is so knowledgeable about and experienced with S4C. I am sure that we all wish Lady Crickhowell a swift recovery.
By using the powers in the Public Bodies Bill, we are guaranteeing that our proposals must be subject to consultation and we are making certain that any changes will be subject to the scrutiny process associated with orders under this Bill. This process, as noble Lords will be aware, stipulates that any order must be accompanied by an explanatory document setting out the findings of a consultation process, along with giving Parliament the option of an enhanced affirmative procedure, which builds in time for a Select Committee to consider the detail of the order. That represents a very real check on the Government's power, and it provides a safeguard that, in practice, prevents the Government from delivering policy that runs contrary to the views of Parliament.
In that respect, adding S4C to Schedule 3 makes the Government's intentions clear, guarantees that consultation will be carried out and secures the requisite scrutiny of the detail when the order is laid before Parliament, as desired by my noble friend Lord Roberts. The Government would also welcome continuing to work constructively with noble Lords as the partnership develops and as the Bill passes to the other place. This is a significant and sincere offer as I genuinely believe that the expertise in your Lordships' House will be positive for the future of S4C. My noble friend Lord Grade made all that very clear in his eloquent speech and I thank him for his support.
To answer the noble Baroness, Lady Gale, if S4C is not contained in Schedule 3, we may not be able to affect the whole of an agreement reached on a partnership between S4C and the BBC. Conversely, if S4C is in Schedule 3, the partnership can take place as agreed and documented as clearly as possible.
The Government cannot, however, accept Amendment 29A from the noble Lord, Lord Wigley, on the extent to which Clause 3 applies to S4C. I can understand the motivation behind the noble Lord's amendment and, in principle, the Government agree with the proposition that not all powers in Clause 3 should be used in relation to S4C. However, in practice, Amendment 29A could actually compromise the reform of S4C, the need for which has been stated a number of times during this debate. It is important that the new chairman of S4C is given full opportunity to assess the detail of what is being proposed and full
28 Mar 2011 : Column 1020
As regards the logo, I assure the noble Lord, Lord Wigley, and your Lordships' House that we have no intention of changing the name of S4C and we can say with some certainty that the whole of Clause 3(3) will not be used in relation to S4C. Conversely, the power in Clause 3(2)(f) to amend S4C's governing procedures and arrangements, excluded under Amendment 29A, are likely to be required to implement changes following the conclusion of discussions between S4C and the BBC.
Many noble Lords have asked whether the funding from the licence fee can be given straight to S4C without any accountability to the BBC. What we are trying to achieve is a partnership with the BBC, and such a move would undermine this. The Government are clear that the BBC Trust is the right organisation to make certain that licence fee funding achieves value for money. It is therefore right that the money, ring-fenced as it is, goes to S4C via the BBC. The proposals set out in the licence fee settlement letter make it clear that there must be a genuine partnership with S4C and the BBC, mutually agreed by both the BBC and S4C. This is a critical point. The letter also makes it clear that, within this partnership, S4C must remain an independent service with independent commissioning and scheduling, and with a distinct editorial voice. This cuts to the heart of the issue. The partnership with the BBC should not be misconstrued as a merger or a takeover. No-it is a partnership that will protect the very things that noble Lords on all sides of the House are seeking to protect by having this thoughtful and passionate debate.
I assure noble Lords that the editorial independence of S4C from government, the Welsh Assembly and the BBC is assured. I should also add that the BBC's current obligation to provide programming to S4C will remain, as will S4C's existing relationship with the independent production sector.
Amendment 40 would remove S4C from Schedule 4, which would prevent us keeping S4C safe. Breaking the link to RPI is important from a financial perspective, but creating a partnership with the BBC, and in turn securing S4C's funding via the licence fee goes, hand in hand with this, and we need to do it all to secure a strong future for Welsh language programming. If the Government were not able to use the Public Bodies Bill to change S4C's funding arrangements, S4C would not be able to rely on the security of licence-fee funding. As many noble Lords, including my noble friend Lord Crickhowell, said, S4C will benefit from this security, particularly as the Government are determined to break the link with RPI.
Amendment 41, tabled by the noble Lord, Lord Elystan-Morgan, would require any changes to S4C made under Clause 4 to be preceded by an amendment to the BBC charter. The Government agree with the
28 Mar 2011 : Column 1021
Several noble Lords, including the noble Baroness, Lady Morgan, have raised the issue of governance under the partnership, and I can confirm that the BBC will not have a majority on either the S4C board or the S4C executive. Furthermore, the BBC representatives need not necessarily be BBC Trust members but could be individuals nominated by the BBC Trust. I cannot guarantee, as some noble Lords have asked, that there will be no BBC appointees under this new partnership. But let us not forget that these terms will have been agreed during negotiations between S4C and the BBC. It will be S4C itself which will have negotiated the terms of this partnership. It was suggested that the payment of money by the BBC to another body would make that body a subsidiary of the BBC. This is absolutely not the case. Neither is there any intention of removing S4C as a statutory body, nor merging it with the BBC. S4C's current public service remit, as enshrined in legislation, will remain and the Secretary of State will continue to exercise powers of appointment over the chairman and the S4C authority. The relationship will be on the basis of a partnership and not of a BBC subsidiary.
Finally, I suggest again that protecting S4C as an independent service, with independent commissioning and scheduling, and with a distinct editorial voice is absolutely at the heart of this coalition Government. It is a challenging market and savings must be made, but we must be under no illusions. This Government will do whatever it takes to protect S4C for the long term. These changes have been proposed for the benefit of Welsh language television and saving S4C. This is the goal that we all share and so I would therefore ask the noble Lord to withdraw his amendment.
Lord Wigley: My Lords, the House has listened with considerable interest to the more substantial reply that we have had tonight, compared with the one we had in Committee. None the less, a number of issues remain unclear and some quite unsatisfactory. We still have not had the bankable commitments that my colleagues and I have sought on the ongoing financial independence. We all appreciate that RPI could not continue and in Committee we invited the Government to bring forward some alternative formulae-perhaps 2 per cent of the BBC licence fee-so that there was a sort of ongoing commitment, even though at a different level from that which obtains today. If there was a need for ongoing commitment when the previous legislation was passed, by what virtue is that ongoing commitment not needed in the present circumstances? People could argue that it is needed even more now.
28 Mar 2011 : Column 1022
If I understand correctly, we heard that money will be ring-fenced up to 2015-16 but that is a commitment in name which is not in any Bill. There is no mechanism for the safeguards and no assurances on where they will be enshrined. I do not know whether the Government will bring something forward for Third Reading on that; time will tell. Neither have we had any clarity on why the Government are so anxious to secure the provisions of Amendment 34B. It is a pig in a poke. Certainly, there may be things that need to be done but no limit is being given by the Government and no self-denying ordinance as to how far they will take it. The assurances we are given are that there will be consultation. I noted with much interest that consultation is to be based on Clause 10(1)(e), which says:
- "the Welsh Ministers, if the proposal relates to any matter, so far as applying in or as regards Wales, in relation to which the Welsh Ministers exercise functions".
Perhaps we should be reassured that Welsh Ministers will therefore be exercising functions with regard to S4C. That is the only interpretation we can have from what the Minister said, but perhaps she was inadvertently misleading the House where that was concerned.
Lord Wigley: No, if the Minister wants to intervene to correct me, I will by all means give way. But if she does not-no-I repeat that the provisions of Clause 10(1)(e) are in regard to those matters,
At present, they do not exercise functions with regard to S4C. If the consultation is based on that, presumably they will in future. That would be an interesting development.
I am afraid that the Minister has not answered what I regard as a critical point. It is the involvement of BBC nominees and people on the executive function of S4C, taking decisions in circumstances where S4C is adjudicating between various bidders for commissions -independent producers outside on one hand, and the BBC on the other, in competition with each other. If the BBC is to be involved in that mechanism, how on earth can that possibly be fair? Independence means independence, not having people sitting at the table where those decisions are being taken.
I am not sure what position the noble Lord, Lord Roberts of Llandudno, will take on Amendment 40. However, if there is no greater clarification on how those mechanisms are to be assured, I hope that if he does not move it tonight, he will certainly do so at Third Reading. As for my amendment, we have not had the assurances that we need with regard to it and I beg the House to support me in the Division Lobbies.
8.03 pm
Contents 162; Not-Contents 197.
28 Mar 2011 : Column 1023
Adebowale, L.
Adonis, L.
Ahmed, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bakewell, B.
Bannside, L.
Barnett, L.
Bassam of Brighton, L. [Teller]
Beecham, L.
Berkeley, L.
Bilston, L.
Birt, L.
Blood, B.
Borrie, L.
Boyd of Duncansby, L.
Brooke of Alverthorpe, L.
Brookman, L.
Browne of Belmont, L.
Browne of Ladyton, L.
Campbell-Savours, L.
Carter of Coles, L.
Clancarty, E.
Clark of Windermere, L.
Clinton-Davis, L.
Collins of Highbury, L.
Corbett of Castle Vale, L.
Craigavon, V.
Crawley, B.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donaghy, B.
Donoughue, L.
Drake, B.
Dubs, L.
Eames, L.
Elder, L.
Elystan-Morgan, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Finlay of Llandaff, B. [Teller]
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Freyberg, L.
Gale, B.
Giddens, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grantchester, L.
Grocott, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Hollick, L.
Howarth of Newport, L.
Howells of St Davids, B.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kennedy of Southwark, L.
King of Bow, B.
King of West Bromwich, L.
Kingsmill, B.
Kirkhill, L.
Knight of Weymouth, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Levy, L.
Liddle, L.
McAvoy, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mandelson, L.
Massey of Darwen, B.
Maxton, L.
Morgan of Drefelin, B.
Morgan of Ely, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Nye, B.
O'Loan, B.
O'Neill of Clackmannan, L.
Paisley of St George's, B.
Palmer, L.
Patel of Bradford, L.
Pitkeathley, B.
Prescott, L.
Prosser, B.
Quin, B.
Ramsbotham, L.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Rowe-Beddoe, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Snape, L.
Soley, L.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Thornton, B.
Tomlinson, L.
Touhig, L.
Triesman, L.
Tunnicliffe, L.
Turnberg, L.
28 Mar 2011 : Column 1024
Wall of New Barnet, B.
Walpole, L.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wigley, L.
Wilkins, B.
Williams of Elvel, L.
Wills, L.
Winston, L.
Wood of Anfield, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.
Aberdare, L.
Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Allan of Hallam, L.
Anelay of St Johns, B. [Teller]
Astor of Hever, L.
Attlee, E.
Ballyedmond, L.
Bates, L.
Berridge, B.
Bilimoria, L.
Black of Brentwood, L.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Boswell of Aynho, L.
Bottomley of Nettlestone, B.
Brinton, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browning, B.
Burnett, L.
Buscombe, B.
Byford, B.
Cathcart, E.
Chadlington, L.
Clement-Jones, L.
Colwyn, L.
Cormack, L.
Cotter, L.
Crickhowell, L.
Cumberlege, B.
De Mauley, L.
Deech, B.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Dykes, L.
Eaton, B.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Edmiston, L.
Empey, L.
Falkner of Margravine, B.
Faulks, L.
Fearn, L.
Feldman, L.
Feldman of Elstree, L.
Fink, L.
Fookes, B.
Fowler, L.
Fraser of Carmyllie, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Geddes, L.
German, L.
Glasgow, E.
Glendonbrook, L.
Gold, L.
Goodlad, L.
Goschen, V.
Grade of Yarmouth, L.
Greenway, L.
Hamilton of Epsom, L.
Hamwee, B.
Harries of Pentregarth, L.
Harris of Peckham, L.
Harris of Richmond, B.
Henley, L.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howard of Lympne, L.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Kakkar, L.
Kilclooney, L.
King of Bridgwater, L.
Kirkwood of Kirkhope, L.
Kramer, B.
Laird, L.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lexden, L.
Lindsay, E.
Lingfield, L.
Linklater of Butterstone, B.
Listowel, E.
Loomba, L.
Lucas, L.
Luke, L.
Lyell, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Maginnis of Drumglass, L.
Mancroft, L.
Maples, L.
Mar and Kellie, E.
Marland, L.
Marlesford, L.
Mawhinney, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Naseby, L.
Neuberger, B.
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Newby, L.
Newton of Braintree, L.
Noakes, B.
Northbrook, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Oppenheim-Barnes, B.
Palmer of Childs Hill, L.
Patel, L.
Patten, L.
Perry of Southwark, B.
Plumb, L.
Popat, L.
Randerson, B.
Rawlings, B.
Razzall, L.
Reay, L.
Risby, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rogan, L.
Ryder of Wensum, L.
St John of Fawsley, L.
Sassoon, L.
Seccombe, B.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharp of Guildford, B.
Shaw of Northstead, L.
Sheikh, L.
Shipley, L.
Shutt of Greetland, L. [Teller]
Slim, V.
Spicer, L.
Stedman-Scott, B.
Steel of Aikwood, L.
Stevens of Kirkwhelpington, L.
Stewartby, L.
Stoneham of Droxford, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Taverne, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tordoff, L.
Trefgarne, L.
Trenchard, V.
Trimble, L.
True, L.
Tugendhat, L.
Tyler, L.
Tyler of Enfield, B.
Verma, B.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Wasserman, L.
Wei, L.
Wheatcroft, B.
Wilcox, B.
Williamson of Horton, L.
Willis of Knaresborough, L.
Younger of Leckie, V.
8.15 pm
Schedule 3 : Power to modify constitutional arrangements: bodies and offices
Consideration on Report adjourned until not before 9.15 pm.
London Local Authorities and Transport for London (No. 2) Bill [HL]
Third Reading
8.15 pm
Lord Jenkin of Roding: My Lords, I beg to move Amendment 1 standing in my name and with it I hope we can discuss Amendment 2 and Amendment 3.
28 Mar 2011 : Column 1026
I ought to begin by declaring my interest. I am a joint president of London Councils along with my noble friend Lady Hamwee and the noble Lord, Lord Graham of Edmonton. London Councils is the representative body for the London borough councils, one of which, Westminster City Council, formally promotes this Private Bill jointly with Transport for London.
I am glad that at long last I can move the Third Reading of this Bill. It has been a very long wait. The Second Reading was on 20 February 2008. It is more than two years since the Select Committee completed its consideration of the Bill in March 2009. Before I can move to the contents of the Bill I ought just to explain why there has been this almost unparalleled delay with this Private Bill.
The Select Committee sat between 9 and 11 March and heard the petitions and representatives of the pedicab trade-I will deal with that later-and also the London Cycling Campaign. The committee decided that amendments should be made to the Bill and produced its special report which was published on 23 April 2009. At this point I express my warm thanks to the members of the committee, chaired by the noble Lord, Lord Faulkner of Worcester, whom I am glad to see in his place, and whose members included the late Lord Dahrendorf-that, too, gives one an indication of the passage of time. I thank them most warmly for their work.
After the committee reported, a new threat emerged to the Bill. A group of bodies representing the sporting interests voiced concerned about what are now Clauses 16 and 17. These would enable London authorities to recover the costs of cleaning streets and imposing traffic regulation measures at sporting and other events. The promoters became convinced that the sports bodies had very strong support among your Lordships and recognised that there was potentially a serious threat not just to Clauses 16 and 17 but to the whole Bill. Not surprisingly, therefore, they embarked on a process of negotiation with the sports bodies.
That process proved to be very long indeed. Without going into detail, I think that it is enough to say that agreement in principle was eventually reached about a year ago, last spring. However, soon after that the election was upon us, so the Bill had to wait until it could be revived in the new Session. Then, although the promoters believed that they had reached agreement with the sports bodies, a new point of dispute arose and conclusion of that was not finally agreed until the beginning of this year.
The Bill deals with seven distinct subjects. Because the Second Reading of the Bill was entirely formal and there was no debate on the Floor of the House, I think it right to take a few minutes of your Lordships' time to describe briefly the main points in the Bill. As originally drafted, Clauses 4 and 5 would have enabled London authorities to attach street lamps and signs to buildings without requiring the consent of the owner or occupier of the building. The provisions were intended to bring the rest of London in line with the City of London Corporation, which already enjoys these powers. The intention is to avoid cluttering up the streets with more and more street furniture. However, in response
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If there are any lingering concerns about the precise terms of the code, I suggest that they may properly be dealt with in another place. That leads me to make the point that, although the Bill has taken over three years in this House, it still has to go through the other place. The promoters have taken leading counsel's opinion on the compatibility of Part 2 with the European Convention on Human Rights, and she is satisfied that it is now compliant.
Clauses 6 and 7 deal with damage to the highways. I mention them briefly because they have been uncontroversial. They will enable the London authorities to recover the costs of repairs to the carriageway where damage is caused by construction traffic. They will also enable them to require a deposit in advance of the construction works commencing.
The main purpose of Part 3 is to decriminalise offences relating to builders' skips. One might express some surprise that builders' skips have to be dealt with on the Floor of the House, but the sort of offences that I am talking about are putting them out without a licence or not properly lighting or protecting them. Clause 9 enables a highway authority to require information about who the owner of the skip is in order to determine on whom penalty charge notices should be served. Clause 10 provides that the owner of the builders' skip will be liable to pay any such charge arising from a contravention. Representations may of course be made against the imposition and appeals may be made to an adjudicator, very much as with the existing parking regime.
Part 3 also alters the powers of the highway authority to place conditions on giving permission for placing a skip on the highway and will enable the authority to insist that the skip has, as an integral part, lights or a guard or system of guarding. That would enable the highway authority to fix an immobilisation device to a skip in cases where it has also served a penalty charge notice.
I understand that there may be some concerns about Clause 9(5), which provides for a defence of knowingly giving false information about the identity of the owner of a skip. There has to be some way of enforcing Clause 9, which enables the authorities to obtain from the skip company the name and address of the person on whom they can serve a penalty charge notice. If not, the authorities will end up in a position where the whole of Part 3 will be unenforceable. It would soon become clear if a skip company had given false details knowingly, but I would hope that the threat of appearing in court would deter them from doing that.
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I turn now to Clauses 16 and 17, which deal with the recovery of exceptional traffic management and waste clearance costs. These are the clauses that provoke the objections of the sports bodies to the Bill. Your Lordships will see that amendments have been tabled to remove both clauses from the Bill. The quid pro quo-not a surrender to the sports authorities-for that is that a memorandum of understanding has been signed with the Premier League and the Football League. I will explain that in a moment. The clauses as they stand would allow councils and Transport for London, as traffic authorities, to reclaim expenditure incurred in implementing traffic management measures, and allow the borough councils to recover expenditure incurred in complying with their duty to keep land and highways clear of litter, where the expenditure is reasonably incurred as the result of a sporting or other event.
The Department for Culture, Media and Sport expressed some objection at an early stage to what are now Clauses 16 and 17. Its objection was relayed to the Select Committee. Although there were no petitions against the provisions from the sporting parties, after the Select Committee had reported, significant opposition was expressed by them, including the Premier League and the Football League. Therefore, there were negotiations, which resulted in the memorandum of understanding being signed between the promoters and the Premier League and the Football League. The effect of that will be that London clubs that have a certain minimum average attendance will be required to enter into negotiations with the authorities, with the aim of reaching an agreement whereby the costs of the authorities would be recoverable as though Clauses 16 and 17 had been enacted. There are specified target dates for the completion of the agreements. No doubt, if agreements are not reached the promoters will have to consider coming back to this in future legislation to protect their interests.
Clause 18 deals with interference with barriers. It makes it an offence to open, close or otherwise interfere with a barrier erected to prevent the passage of vehicles, or any class of vehicle, into, out of or along a highway without lawful excuse. There has been no objection to that. Indeed, it is a very sensible measure.
Turning now to pedicabs, I cannot say the same for Clause 19. Those of your Lordships who have been in the West End recently will be familiar with what a pedicab is. The Bill, in Clause 19(8), defines them as cycles,
- "constructed or adapted ... to seat one or more passengers; and ... for the purpose of being made available with a driver in the course of a business for the purpose of carrying passengers".
That is a pedicab. The clause is solely about traffic management. It is not about the safety of the pedicabs themselves or the fitness or suitability of the riders. The clause would enable councils and Transport for London to identify the owner of a pedicab and to serve a penalty charge notice on the owner when a parking or moving traffic offence is committed. The clause goes on to say that it would operate only when either the councils or Transport for London have arrangements in place for a voluntary registration scheme for pedicab owners, or if a separate statutory licensing scheme had been enacted. Because such a
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There was an attempt some years ago, under the previous Bill, to set up such a scheme, but it was rejected by the Select Committee in another place on that occasion. A company that rejoices in the name of Bugbugs petitioned against the clause and appeared before the Select Committee. It owns pedicabs, which are hired out to riders for use in the West End. The Lords Select Committee did not accept the company's arguments and the promoters are expecting opposition to the provisions in another place, not just from the pedicab operators but from the taxi trade.
Part 5 enables London local authorities to provide and operate charging apparatus for electrically powered motor vehicles on highways and to permit third parties to do this. It sets out the procedures for this provision as well as creating an offence of the unlawful use of charging points. The number of electric vehicles has increased rapidly since the Bill was introduced. It is well known that the Government are very much in favour of encouraging their use and, indeed, the Mayor of London has made it a priority. There has been no opposition except from the Society of London Theatre, which was understandably concerned about points being placed directly outside theatres.
In conclusion, I hope that what I have said will persuade your Lordships to give this Bill a Third Reading and agree to the amendments that I propose. I beg to move.
8.30 pm
Lord St John of Fawsley: It is a great relief to support my noble friend on this issue, having voted for justice for young criminals, not without some experience of that matter. Since the Leader of the Opposition has made a habit of talking about himself, I will talk a little about myself, but not too much. The first social duty that I undertook was that of a prison visitor when I was my noble friend's age-18. I have been Minister for Higher Education and I was concerned about the welfare of young criminals. I was equally concerned about protecting the innocent victims of crime. That is why I was moved to pay a tribute to the police this afternoon. I will not go into all that again; I made my point and I am extremely glad that I did. However, it is wonderful that my noble friend shows such persistence. That is what you need in politics; you have to keep going and keep at it. I hope that my noble friend Lord Steel will take the same line with his Bill. He should get on with it, not give it up. In the end, if you persist you will get somewhere but if you give things up you will not. My noble friend deserves every support and congratulation on the way in which he has persevered with this Bill, as does the noble Lord opposite who played such a distinguished part in the committee.
I have an interest to declare as when I left government because of the unemployment figures my noble friend was instrumental in my securing my next appointment. I had the honour to be appointed chairman of the Royal Fine Art Commission, a post which I held for
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The Chairman of Committees (Lord Brabazon of Tara): My Lords, I wonder, as the person responsible for the conduct of Private Bills in this House, whether I may bring the House to order. We are dealing with three amendments moved or spoken to by the noble Lord, Lord Jenkin, at Third Reading. We are not dealing with the Second Reading of the Bill or with other issues, such as those that my noble friend Lord St John has just raised. We are considering three amendments that deal with the recovery of street cleansing expenditure-nothing else.
Lord St John of Fawsley: My noble friend the Chairman of Committees is quite right. I was following the bad example of the Leader of the Opposition. One should never talk about oneself. It is a subject that is of interest only to oneself and no one else. I merely wanted to congratulate my noble friend on his persistence in proceeding with the Bill. Here, I make just one point; it is very important that Select Committee reports are speedily implemented. I heard the Select Committee being attacked because of its report. I answered on the millions of pounds spent by the noble Lord, Lord Rodgers of Quarry Bank, on the urban nonsense of turning us all into Dutch flat dwellers in five words that are all that needs to be said on that issue-and I shall then sit down. Those words are: "English people love their gardens". That is it.
Lord Faulkner of Worcester: My Lords, perhaps I may take the House back to the amendment moved ably by the noble Lord, Lord Jenkin of Roding. I thank him for his kind words about my chairmanship of the Select Committee and other noble Lords who took part in those deliberations.
The issue we are discussing in Amendment 1 is whether it is correct to remove Clauses 16 and 17 -formerly Clauses 26 and 27-that deal with the recovery of costs arising from the holding of major sporting events. The Select Committee took a great deal of time to consider this issue. We received a report from the Department for Culture, Media and Sport, but, as the noble Lord, Lord Jenkin, said, there was no petition or evidence of any sort from the sporting bodies indicating that they were unhappy with what was proposed.
We took evidence from the Assistant Director for Public Protection and Safety of the London Borough of Hammersmith and Fulham. He stated:
"The large scale of events of the nature that we talked about cause littering over a widespread area, much of it in our residential streets, not just on the frontage of where the individual streets are. It requires additional street cleansing resources, much greater, over and above what we would normally put on the streets to deliver the cleansing that is required by our residents in the community to return the streets to a satisfactory standard after an event has taken place. The resources and costs specifically relate to the number of events, the scale of the event and the scheduling of when these events take place".
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We cross-examined Mr Austin and the witness from the DCMS. We heard from no witness or petitioner from sporting bodies. We had no knowledge that they were unhappy with what was being proposed. The committee, after considering the evidence very carefully, came to the conclusion that the promoters had made their case. In fact, they presented an exemplary case on the Bill as a whole; but, on this particular issue that required us to go against the advice of the DCMS, we concluded that it would be appropriate, in certain circumstances, for local authorities to recover from those organising large sporting and entertainment events additional costs for exceptional traffic management and waste clearance.
I am concerned to hear that the negotiations effectively took place after we had taken the evidence and considered the issue in detail in the committee. I put it to the House that the time for those deliberations was before the Select Committee considered these matters and that, if it was necessary for petitioners to come forward with objections, that was when those objections should be taken. It is not satisfactory, as a rule of procedure, for negotiations to take place subsequently, and for such pressure to be put on the promoters of the Bill that, in order to get it through, they must take out something which at the time was very important to them.
I do not wish to see the Bill delayed any further, but I am concerned at the way in which these amendments have been brought forward, and by the fact that it has been done not on the basis of our being able to cross-examine the people who do not like what is being proposed, but on the basis of a back-stairs deal.
Baroness Kramer: My Lords, I will speak very briefly. I congratulate the noble Lord, Lord Jenkin of Roding, on bringing forward a Bill that has taken so long to get to this stage. As a newcomer to the House, I find it astonishing that the time of this House has to be spent on issues such as the lighting and guarding of builders' skips. If ever there was an illustration of the need for the Localism Bill, and a more general grant of powers to assemblies and local authorities, this Bill is it.
I will set that aside and make a couple of comments on the provisions. My hope is that as the Bill proceeds to the other House, there will be an element of balance in the way that it is reviewed. For example, returning to the contentious issue of skips, I, like many others, have been in a situation as a resident where I have become frustrated with people who have clearly abused their right to have a skip in the street. On the other hand, I have also done repairs and changes to my home and know that the cost of a skip is an important part of the building budget-so no one would wish that to increase unnecessarily. I hope that that constant balance will remain in the thinking of the House.
I welcome the move to a memorandum of understanding between sports clubs and local authorities. This is a sensible way to proceed on these issues, which are better negotiated between the parties than set out in statute and regulation. It will be less costly and more flexible, with more capacity to adapt to the needs of situations, if we move to a negotiated arrangement
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I, too, as I read through the legislation, congratulate everyone on persisting with this through a change of government. I was in the other place when this started. It has taken nearly three years, which is extraordinary. I suggest that local councils and assemblies ought to have the qualifications to deal with these issues, and that this illustrates a matter that we can now pass to those authorities in future legislation.
8.45 pm
Lord Rosser: My Lords, I congratulate the noble Lord, Lord Jenkin of Roding, on the fortitude and tenacity he has shown on the Bill. I shall make only one or two points. As the noble Lord said, the Bill had its far-from-lengthy Second Reading-I think that it amounted to five lines in Hansard-more than three years ago, following which it was committed to a Select Committee. The committee reported in April 2009 and approved the Bill with a small number of amendments. It now stands as it was following the committee's consideration. As my noble friend Lord Faulkner of Worcester said, there were no petitions against the clauses that the noble Lord, Lord Jenkin of Roding, now seeks to remove. There was opposition to those clauses from the Department for Culture, Media and Sport. The question is: what has been going on behind the scenes over the past 23 months?
The noble Lord, Lord Jenkin of Roding, threw a little light on the issue, but we should be told more. Apparently, representations were made against these clauses by organisations and businesses in the sport and entertainment industries-organisations and businesses that did not petition the Select Committee which would then almost certainly have called them to give evidence in public so that everyone could have heard their arguments. These organisations and businesses have instead been lobbying in private. We have not been told that the Department for Culture, Media and Sport has single-handedly got the Bill changed in the face of the wishes of the promoters and the report of the Select Committee.
The Select Committee heard evidence from the London Borough of Hammersmith and Fulham which said that the additional cost of clearing up outside the ground after a Chelsea football match was an average of £1,000 a game. It gave evidence of the amount that Chelsea paid in business rates and contrasted it with organisations that paid much more but which did not generate the same traffic management and waste clearance costs. Chelsea is a club with a certain amount of money. At the end of January it spent more than £70 million on two new players. At a cost of £1,000 on average a game for the additional cost of clearing up outside the ground, £70 million would pay for that to be done for around the next 2,000 years.
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At a time when local government is having to tighten its belt, services are being cut and closed down and staff are receiving redundancy notices, why is it still felt appropriate, as the deletion of these clauses suggests, for local government and the council tax payer-of which I am one-to have to continue to pay the additional clearing up costs in the streets around a sporting and entertainment event that is put on for commercial gain? Surely organisations and businesses pay business rates just as individual householders pay council tax for the removal of waste from their own premises, not for the removal of waste that they have caused to be generated in the public streets outside as a result of the promotion of an event for that organisation's commercial gain. Clearly that was the view of the promoters of the Bill and of the Select Committee. So what has happened to cause the promoters to change their mind under pressure over these clauses being in the Bill, as revealed by the amendments proposed by the noble Lord, Lord Jenkin of Roding, at this late stage? Who has been making representations in private that they were not prepared to make publicly in front of the Select Committee? I hope that either the Minister or the noble Lord, Lord Jenkin of Roding, will enlighten your Lordships' House on that point.
We have no intention of seeking to stop the Bill. There is much that is non-controversial within it, which clearly the local authorities concerned wish to see implemented. However, a little more information about the lobbying that has-or has not-been going on in private over the past two years to achieve a change in a Bill with which the promoters and the Select Committee were happy, and against which there had been no petitions is surely not too much to ask from either the Minister when he responds, or perhaps more appropriately, from the noble Lord, Lord Jenkin of Roding, when he replies.
The noble Lord, Lord Jenkin of Roding, referred to understandings or to a memorandum of understanding. I hope he will say just how strong and meaningful are the understandings that have apparently been reached and in what circumstances local authorities' costs will be reimbursed, at what level and by whom. Are they written understandings? Are they legally binding? I hope the noble Lord will provide the answers because there must be some concern, subject to the noble Lord's response, that they will prove worthless and meaningless in the light of the removal of these clauses from the Bill.
Earl Attlee: My Lords, it is more than two years since Parliament last considered this private Bill, so it is the first time that it has been considered by the coalition Government. I am grateful to my noble friend Lord Jenkin of Roding for his explanation of the Bill. I should point out to the House that my noble friend is leading on the Bill-not me. The noble Lords, Lord Rosser and Lord Faulkner of Worcester, have made some points about procedure. I want to make it clear that it is not a matter for me but a matter for the Procedure Committee of your Lordships' House, as I am sure all noble Lords would agree. However, this is not the first time that the London local authorities and Transport for London have promoted a private Bill together. The Bill would confer a variety of powers
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The Bill's provisions would also enable the promoters to enforce sanctions against anybody giving traffic unauthorised access to gated roads and enforce moving traffic and parking contraventions against pedicab owners and operators where the owner or operator has entered into a voluntary registration scheme. Again, my noble friend has given a comprehensive explanation. The Bill would also put in place a comprehensive system to allow the installation and use of charging points for electric vehicles on the highway in locations across the capital.
I acknowledge the amendments that my noble friend Lord Jenkin has proposed and explained so well. Although I very much doubt that we will be voting on the Bill this evening, I should like on behalf of the Government to comment on a few points of note for the record. The Bill creates various new civil and criminal offences in relation to improper conduct when depositing a builder's skip on the highway; the unlawful opening of a gated road to unauthorised traffic; the improper use of a charging point for electric vehicles; and moving traffic and parking contraventions by pedicabs.
The Government are committed not to create new offences unless it is truly necessary to do so. My noble friend Lady Kramer made some pertinent points about that. As such, I should state now that before the Bill reaches its Committee stage in the other place, the promoters will need to have submitted to the Ministry of Justice their assessment of the impact of creating these offences. This will allow the Government to come to an informed view on whether their creation is appropriate. Other clauses have the potential to impose burdens on business, particularly the construction industry. I am referring to the clauses relating to the placement of skips on the highway and to recovering the cost of remedial work on the highway from a developer after a development has taken place.
The Government's position on increasing the burden on business is very clear and we will be considering whether, in our view, the Bill would create an unacceptable burden on business in order to make our views known before the Bill reaches Committee stage in the other place. The Government have already notified the promoters of some clauses which we feel could be improved or altered by some minor amendments, particularly with regard to the affixing of street furniture to buildings, where we would like the owner of the building which is to have street furniture affixed served a notice stating the exact date on which the work will begin and the terms of usage of electric vehicle charging points installed and operated using the powers conferred by the Bill.
We will be seeking to reach agreement on amendments with the promoters before Committee stage in the other place as it is then that the Bill can next be substantially amended. Aside from the specific points I have raised this evening, the Government are content that the Bill passes to the other place, where it can be further scrutinised to ensure that the points I have
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Lord Jenkin of Roding: My Lords, I am extremely grateful to all noble Lords who have taken part in this debate, and for the important comments that have been made. I was amused by my noble friend Lord St John of Fawsley, who congratulated me on my persistence. I have to say that that is wholly undeserved. I did not move Second Reading. The people who can be congratulated are the promoters, the London boroughs and Transport for London. I shall take his kind words about that and simply comment that at a very early stage in my career, someone said to me, exactly as my noble friend has said, "Patrick, if you want to achieve anything, keep pegging away". In my life I have tried to follow that nostrum. However, I am grateful to my noble friend.
I turn to my noble friend Lady Kramer. I have a lot of sympathy with her on her suggestion that much of this ought not to come to the Floor of the House in a Private Bill in this form. All I can say to her, in some comfort, is that before 1992 a great many more Private Bills came on to the Floor of the House. However, in that year the Transport and Works Act was passed and all the railway Bills, all the major road Bills and all the rest of it have now disappeared, and what is left are the occasional local authority measures, such as we have here and we had earlier in the previous Parliament from Manchester and others; and, of course, occasionally the universities need to have legislation to amend their statutes. However, I am sure that my noble friend on the Front Bench will have heard her plea for something on more general powers.
I have to say in relation to London-and I have lived in London almost the whole of my working life-that it has conditions and circumstances that are very different from any other city in the country, and I am not surprised that both the City of London and the London local authorities have felt the need from time to time to introduce legislation to deal with the problems which they face. My noble friend also welcomed the negotiated agreement-I will come to the remarks of the noble Lords, Lord Faulkner and Lord Rosser, in a moment. All I can say at this stage is that I was grateful for my noble friend Lady Kramer's support on that.
As for the deal done with the Football League and the Premier League, I understand the indignation that noble Lords may have felt that this was done outwith the consideration of the Select Committee. As the noble Lord, Lord Faulkner, said, the Select Committee examined the authorities from Hammersmith and Fulham. It heard the evidence and felt that the promoters had made a good case for their clauses, and here we are with an agreement having been reached outside the committee. Whether or not it was a smoke-filled room, I do not know; but, nevertheless, it was reached without the full scrutiny that it would have had if it had gone before the Select Committee. I have some sympathy with that point. I asked a number of questions myself
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So what have we got? As I explained in my opening speech, after very prolonged discussions a memorandum of understanding has been reached. In each case the club that falls within the definition, which has a reasonably substantial attendance at its events, has to enter into agreement with the local authority to cover the costs that would have been covered by these two clauses. If someone says to me, "An agreement to agree is not worth the paper that it is written on", I would have to say that I was brought up in my legal studies entirely to accept that. However, there rests behind this the fact-and the sporting authorities are in no doubt about this at all-that if they do not reach agreements of the sort envisaged in this memorandum of understanding within a clear time limit which is spelt out here, then future legislation will be brought forward to reinstate these clauses.
Lord Faulkner of Worcester: Does the noble Lord agree that it would have been courteous to this House if the detail of that memorandum of understanding had been made available to your Lordships before we had this debate today? Can he at least give an assurance that it will be published and will be considered in proper detail when the Bill reaches another place so that it can at last be given proper scrutiny?
9 pm
Lord Jenkin of Roding: I have much sympathy with that. I do not think an agreement of this kind could be disclosed to Parliament without the agreement of both parties. I will draw the attention of the promoters to what the noble Lord has said and see whether they can secure the agreement of the sporting bodies that this should be made public before the Bill goes to a Select Committee in another place.
Lord Rosser: Can the noble Lord tell the House how long ago this memorandum of understanding was signed?
Lord Jenkin of Roding: It was reached in the early part of this year. The original agreement had been left before the election. As often happens when negotiations are dragged out over a long period, new objections were made, and it was not until the beginning of this year that finally there was an agreement. Part of the agreement was that the clauses be removed and replaced by that memorandum of understanding. Nobody is in any doubt that if the sporting clubs do not negotiate agreements with the local authorities in good faith, the promoters will bring back the clauses in some form. Having heard the noble Lord, Lord Faulkner, they should be in no doubt that a Committee would take a fairly clear view on the merits of those clauses.
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The noble Lord, Lord Rosser, is entitled to his complaints. This has been a very long drawn out matter. One can argue about whether the promoters ought to have given in to the clubs. They clearly thought that the whole Bill might eventually fall on this basis, not just what were then Clauses 26 and 27. They will read in Hansard the criticisms that have been made, and I hope that the lesson will be learnt and this will not happen in this form again. I feel particularly sorry for the Select Committee which spent a good deal of time on this Bill only to find that its decisions had been subverted by this memorandum of understanding. I think I have gone on long enough, unless there are any points that I have missed out.
Clause 16 : Recovery of exceptional traffic management and waste clearance costs
Clause 17 : Recovery of costs: appeals
Bill passed and sent to the Commons.
9.03 pm
Public Bodies Bill [HL]
Main Bill Page
Copy of the Bill
Explanatory Notes
Amendments
Suplementary Amendments
Report (2nd Day) (Continued)
9.15 pm
Lord Judd: My Lords, in the absence of the noble Lord, Lord Greaves, I rise to move Amendment 31 and to speak to Amendment 34. In doing that, I should also like to say a few words about the government amendments. When I arrived at the House today, there was a message from the noble Lord, Lord Greaves, asking me to move the amendment and saying that he was "confined to barracks". I thought, "My goodness, the Whips are getting tough on the other side". But, in fact, I am sorry to say that the noble Lord is unwell
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After the profound issues of law and legal institutions that we have been having today, this issue might seem a bit ephemeral. However, I do not believe that it is ephemeral because it is central to the quality of our society and those things that make Britain a place worth living in. Before I speak to Amendments 31 and 34, I should like to put on record how much many of us appreciate the moves made by the Government in their amendments to remove some of the anxieties which were surrounding the future of the parks. No one could be in any doubt that we have Ministers, whatever our profound differences on all sorts of things, who are committed to the national parks. Indeed, I was very impressed when I took the chair at a meeting on Thursday to hear the Parliamentary Under-Secretary of State speak so positively about the parks. From that standpoint, I should like to express real gratitude that the Government have moved. In a sense, that makes my remarks on Amendments 31 and 34 sad in that I wish they were not necessary.
The amendments would remove national park authorities and the Broads Authority from Schedule 3, the schedule relating to constitutional arrangements. As has been the case on a number of other parts of this Bill, it is not clear why the wide scope of Clause 3 is necessary in the light of powers that are already available to Ministers and the absence, as I understand it, of radical proposals in the local responses to the Defra review of governance of national park authorities and the Broads Authority.
It has been suggested that the list of constitutional arrangements in Clause 3 could be tightened in relation to its application to national park authorities and the Broads Authority. However, the Government have indicated that they are not ready to do that because of the way in which the clause is set up. Clause 3(1) gives Ministers the powers to change constitutional arrangements and subsection (2) says that that includes X, Y and Z and so on. But it is not a definition of the power itself. So the Government could still make a constitutional change even if it was not listed in the examples.
It might be helpful if I put three specific questions, which I hope are constructive, to the Minister. First, why is it considered necessary to include national park authorities and the Broads Authority in Schedule 3 at all, given the powers that Ministers already have in relation to amending the membership of these bodies-for example, those introduced by the Natural Environment and Rural Communities Act 2006? Secondly, will the Minister indicate which proposals emanating from the Defra review of governance of national parks are likely to require legislative changes, particularly any proposals which relate to the composition of membership of authorities and which would anyway be covered by Section 61 of the NERC Act? Thirdly, can Ministers provide a definitive list of the constitutional arrangements of national park authorities and the Broads Authority that they consider will be covered by Clause 3? Which of these do they consider will need amending in the
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If greater flexibility is still deemed necessary by the Government, surely it would be better for the Bill to contain a dedicated clause relating to national park authorities and the Broads Authority which amended the relevant sections of the National Parks and Access to the Countryside Act 1949 and the Norfolk and Suffolk Broads Act 1988? It could specify what constitutional arrangements Ministers would have the power to amend by order. As it is, I hope that Ministers, with whom we have worked so well on this Bill, will agree that Clause 3 as it stands is unacceptably open-ended. I believe that it is time to reflect. I hope that the Government, as they have so readily done on some other issues, will move to meet these points. I beg to move.
Baroness Miller of Chilthorne Domer: I support the noble Lord, Lord Judd, in the questions that he put. I remember, when the NERC Act was going through, the lengthy debates that we had on how many representatives of the national interest should sit on national park authorities, what role councillors from the principal local authorities should have if, for example, they lived outside the park and so on. Many of the issues are worthy of deep consideration and consultation. It seems unfortunate-I know that it is just how the timing has worked out-that we will have to agree or disagree with the drafting here, before the consultation is completed. Up until now, the governance of national parks has evolved in a way that has carried support. My fear is that if it changes and becomes the subject of ministerial decree that consensus will be lost. I am very concerned, and I am very glad that the noble Lord, Lord Judd, put his questions.
Lord Marlesford: I support totally what was said by the noble Lord, Lord Judd, and by my noble friend. There are very few things which I mind so much about as the national parks; I have been very much involved in them for a long time. The national parks, along with the planning legislation of the same period of 1948-49 were one of the two great achievements of the Attlee Government-the other being the creation of the National Health Service. Let us remember that we created our national parks only some 50 years after the Americans created theirs in, I think, 1898.
I am afraid that it would be absolutely unacceptable for the Executive, whichever Government were in power, to make crucial changes to the organisation and administration of the national parks without specific parliamentary approval in each case. Of course, one is not saying that there should not be any changes at any stage, but I am afraid that my suspicion of Executives is such that I would never agree to something as crucial as changing the national parks without specific parliamentary approval.
It is quite interesting that the national parks and the Broads Authority are mentioned separately, and I am sure that all noble Lords know why that is. The national parks were formed under the 1949 Act and, as the noble Lord, Lord Judd, has pointed out, the Broads Authority was formed in 1988. I was very
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I am not saying that I would necessarily die in a ditch for that to continue. The crucial thing is that the national parks, including the broads and the parks created since the 1949 Act, should continue to have the complete protection at the pinnacle of our hierarchy of designation of countryside areas. Of course, they are obviously followed by heritage coasts and areas of outstanding natural beauty and so on, but they are so precious to this country that we need a lot of reassurance regarding exactly what powers the Government are seeking and reassurance that those powers will not be exercised without reference to Parliament in each case.
Lord Cameron of Dillington: I very much support the amendment. The noble Lord, Lord Judd, referred to the quality of our national parks. We all consider them to be an essential characteristic of this nation, and the benefits that they bring to our urban and rural societies are huge. To my mind, their quality depends very much on the maintenance of the very delicate balance between local and national interests, which have been thrashed out over the years since 1949. Here, the Government are giving themselves-and, more importantly, their successors-powers to modify the constitution of national parks authorities without having to revert to Parliament. As the noble Lord, Lord Judd, said, those are open-ended, and that must be wrong. This Government may not have any malicious intent vis-à-vis the national parks but there is no sunset clause and I look forward to hearing the answers to the questions put by the noble Lord, Lord Judd.
Lord Maclennan of Rogart: My Lords, I rise briefly in view of the fact that the principal questions to which I wish to have an answer have been posed by the noble Lord, Lord Judd. My noble friend Lord Greaves, whose recurrent illness is distressing and to whom we all send good wishes, was very anxious to know why the Government were proposing to include the Broads and the national parks authorities in Schedule 3, as the Government already have powers to make modifications. This seems to be an omnibus arrangement and it is not necessary if the Government are in a position to act in any event.
Can it also be indicated what particular powers the Government have in mind to alter under Schedule 3 provisions? It does not seem that there is any need to do so. These bodies are responsive to both national and local interests, opinion and governance, and the balance seems to be set quite well. Therefore, if we could hear a little more, it would be of great assistance.
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9.30 pm
Baroness Quin: I, too, support my noble friend Lord Judd in his amendment. I was very struck by the support that, even in a very brief debate, he received throughout the Chamber with the comments of the noble Baroness, Lady Miller, the noble Lord, Lord Marlesford, who, we know, is strongly committed to the national parks, and the noble Lords, Lord Cameron and Lord Maclennan. The Government can be in no doubt about the strength of support for the national parks that clearly exists on all sides of the House.
As my noble friend told us previously, he is a vice president of the Campaign for National Parks. I am not involved in quite the same way, but I would like to thank the campaign for the briefing and information that it is always ready to send to Members of your Lordships' House.
I also thank the Government for clearly responding to some of the concerns expressed the last time that we debated this in Committee. In particular, they removed the national parks and Broads authorities from Schedules 5 and 6 to the Bill relating to the power to modify, transfer or delegate functions. Because of that, it is not surprising that the debate has focused on the continuing mention of these authorities in Schedule 3. I agree with the comments and concerns that have been expressed about this.
Obviously, mention was made of the consultation that has taken place and to which the Minister referred when we dealt with this in Committee. In Committee, he said that he and his colleagues were currently considering the responses to that consultation and were committed to announcing the outcome by the end of March. Well, the end of March is this week. Perhaps this evening the Minister might have something to say about the outcome of that consultation. At the time, he was thinking that we would probably get to this part of Report after Easter. None the less, given the interest and concern about this, we would like to know the preliminary findings of the consultation exercise.
In speaking this evening I want to reinforce the questions asked by my noble friend. The key one is why it is still felt necessary to include these organisations in Schedule 3 given the powers that Ministers already have under other legislation. Are there elements of the changes that the Government want to make that cannot be done via the legislation that already exists? We need an answer to that specific point in relation to national parks-it has been pointed out to me that perhaps the Broads legislation is somewhat different in this respect. What is not available to Ministers under the 1996 Act and other legislation mentioned by my noble friend that is already on the statute book?
We would like a list of the constitutional arrangements that the Minister feels are best dealt with in this Bill and cannot be dealt with by some other legislative instrument. Without information of that kind, what is being proposed still seems too wide, too open-ended and too vague. We are not in a clear position to judge what is in the Government's mind.
As we were reminded today, the 11th report of the Delegated Powers and Regulatory Reform Committee
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Given that concern and the importance to our country of the national parks and the Broads, we should get some answers to the questions that were well raised by my noble friend and others who took part in this evening's debate.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Henley): My Lords, I will respond to Amendments 31 and 34 in the name of the noble Lord, Lord Greaves. I would like to say to the noble Lord, Lord Judd, that there has been no element of his legs having been broken or anything like that. Sadly, my noble friend Lord Greaves is ill. He is not here, so we wish him well and look forward to seeing him back in due course.
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