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Tuesday, 12 July 2011.
2.30 pm
Prayers-read by the Lord Bishop of Chester.
Human Rights: Kashmir
Question
2.35 pm
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, we recognise that there are human rights concerns in both Indian and Pakistan-administered Kashmir and we followed the widely reported violent unrest in lndian-administered Kashmir last year. Indian Prime Minister Singh has since said that human rights abuses by security forces in Kashmir would not be tolerated. We are following the work of the three interlocutors appointed to help resolve the situation in Indian-administered Kashmir.
Lord Hussain: I thank my noble friend for his response. Is he aware of the Amnesty International report, A Lawless Law, which gives horrific accounts of human rights abuses committed by the Indian forces in Kashmir? Draconian laws such as the Public Safety Act allow the authorities to arrest and detain people for up to two years, and in some cases up to 20 years. According to the report, some 16,000 people have been arrested under the Public Safety Act in Kashmir so far. Will the Minister or the Foreign Secretary raise the human rights abuses in Kashmir with their Indian counterparts at their next meeting?
Lord Howell of Guildford: We are of course aware of the Amnesty International report. As with human rights questions in any part of the world, we are concerned, as would be all responsible citizens and responsible countries. Our high commission officials have visited Kashmir and discussed the issue with human rights groups but I have to emphasise that it is not for the United Kingdom to prescribe solutions to these matters. That is for the Indian-administered authorities to deal with and it is for India and Pakistan together to find a lasting solution to the overarching issue of the Kashmir situation.
Lord Ahmed: My Lords, is the Minister aware that a US-based international people's tribunal on human rights and justice in Indian-administered Kashmir uncovered hundreds of mass graves and thousands of unidentified graves? Will Her Majesty's Government support Amnesty International in its call for an independent and impartial inquiry into these mass
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Lord Howell of Guildford: We take the view that the three investigators appointed to help resolve the situation and look into these details must proceed with their work. We will clearly follow this very carefully and closely but it is a matter for investigation by the three appointees. That is what is now occurring.
Lord Hylton: My Lords, will the Government with our Commonwealth friends encourage as a background to the Kashmir dispute the maximum possible détente between Pakistan and India, for example, over land crossings and exchanges of all kinds between the two countries?
Lord Howell of Guildford: That is of course something that we want to see but I repeat that it is really not for the UK to prescribe on the situation or to prescribe solutions. It is for India and Pakistan to find a lasting solution. Any support, help and encouragement from outside that the United Kingdom, or any other country, can give, we will certainly be ready to offer, but that lasting solution must come from the two countries concerned.
Lord Tomlinson: My Lords, the Minister has expressed his concern for breaches of human rights wherever they occur. Will he once again turn to the problems of the European Court of Human Rights, which has a backlog of more than 100,000 cases, and take the opportunity of the British presidency of the Committee of Ministers to do something about this appalling neglect of the symbol of human rights in Europe?
Lord Howell of Guildford: The noble Lord has boldly and bravely raised this question a number of times. It is one that I am ready to call to the attention of my colleagues and it has been noted. There is clearly a backlog problem; there may be other problems as well. Those are a matter for close concern.
Lord Naseby: Will my noble friend confirm that Her Majesty's Government will resist the temptation to put pressure on the three who have been appointed to investigate and give them sufficient time, without external pressure, to come up with their findings?
Lord Howell of Guildford: Yes.
Baroness Falkner of Margravine: My Lords, does my noble friend accept that the rule of law is completely within the ambit of the Commonwealth Ministerial Action Group, alongside democracy, and while Her Majesty's Government may not have the leverage they seek through bilateral talks, they are able to address the issue through the forthcoming Commonwealth Heads of Government Meeting? Will my noble friend therefore seek to do so as he has great interest in the Commonwealth and leverage within it?
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Lord Howell of Guildford: The precise agenda will be governed by CMAG collectively and by our Australian hosts at the Commonwealth Heads of Government Meeting, but all aspects of human rights abuse around the world are the concern of the Commonwealth, particularly those occurring in Commonwealth member countries. While I cannot guarantee that these matters will come to the fore, they are certainly something that we would like to see, along with all human rights issues, examined in an understanding way, recognising the sensitivities of particular situations such as this one, which is very sensitive indeed.
Baroness Tonge: My Lords, the noble Lord will, I am sure, remember that many decades ago the people of Kashmir on both sides of the line of control were promised a referendum on self-determination. Can he tell us what has happened to that and whether any progress has been made?
Lord Howell of Guildford: I do not think that there has been progress. This is again a matter for the Indian and Pakistani authorities. My understanding is that, at the moment, there is no progress on that front. If I am wrong about that I will write to my noble friend.
Employment: Market and Coastal Towns
Question
2.43 pm
Asked By Lord Knight of Weymouth
To ask Her Majesty's Government what action they are taking to increase employment in market and coastal towns in England.
Lord De Mauley: The Government are committed to increasing employment in all areas of the country, and national policy initiatives to boost growth and jobs apply, of course, to market and coastal towns. The rural economy growth review and the seaside resorts action plan are examples of current initiatives in support of that commitment, which will benefit market and coastal communities.
Lord Knight of Weymouth: My Lords, I thank the noble Lord for that reply. Our market and coastal towns are the economic and service hub for many of us in rural England. Yet without the economies of scale and transport links of cities, our market towns too often become victims of market failure in employment, retail and housing. The protections in planning are now being weakened in the Localism Bill; and the regional development agencies, and with them the market and coastal towns initiative, are being abolished in the Public Bodies Bill. How will the local enterprise partnerships fill that gap when there is market failure in market towns, given that attracting inward investment is not in their remit? What about the many rural areas not covered by the LEPs?
Lord De Mauley: My Lords, the noble Lord asks a number of questions. At this stage, let me say that our national policy initiatives to boost growth and jobs,
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Baroness Trumpington: My Lords, would the Minister agree that the south-east corner of Kent has been and is a deprived area? Dover is frankly a disgrace as the place of entry to this country. My name is "of Sandwich", so my heart is very close to that place, which will suffer tremendously with the closure of Pfizer. What are the Government going to do to help that part of the world, which for a very long time has been a deprived area from the point of view of trade?
Lord De Mauley: My noble friend makes a very strong point. The Government are committed to helping to rebalance the economy by supporting programmes to promote long-term private sector-led jobs and growth, including in the area that she mentioned.
The Earl of Courtown: Would my noble friend agree with me that SMEs are the backbone of economies in market towns and coastal resorts? Would it not be advantageous if the Government could put further pressure on the banks so they release funding for further expansion in these businesses?
Lord De Mauley: My Lords, I certainly agree with my noble friend that funding is a key point, and the Government are doing what they can to nudge the banks in that direction.
Lord Beecham: My Lords, in the light of last week's announcement that the Homes and Communities Agency will take over the majority of the regional development agency assets-those, at any rate, that have not been sold off in the current fire sale-will the Minister indicate whether there have been any discussions with that agency, and whether any guidance has been given on the need to ensure that some of those assets at least are deployed in the interests of coastal and market towns?
Lord De Mauley: My Lords, I agree with the noble Lord's point about the need for affordable housing, for instance. The Government are well aware of the need for affordable housing in rural, and indeed coastal, communities, and are looking to address this by returning decision-making powers to local councils, giving them greater control over the allocation and tenure of social housing.
Baroness Sharp of Guildford: My Lords, my noble friend the Minister mentioned local enterprise partnerships and local colleges and the importance of the skills agenda. Is he aware that in many cases local colleges are being excluded from local enterprise partnerships?
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Lord De Mauley: My Lords, I am not, and I will follow that up with my colleagues.
Baroness Farrington of Ribbleton: My Lords, would the Minister care to comment on the savage cuts in local authority spending for areas such as Blackpool in the north, where the reduction in public expenditure is far greater than the Government have made either in the south of England or in Civil Service and government spending?
Lord De Mauley: My Lords, I know that the noble Baroness takes this issue very seriously. The Government are especially aware of some of the northern coastal towns-she mentioned one. A question was asked earlier about local enterprise partnerships. They now cover all northern coastal towns. As locally owned and genuine business civic partnerships, they are taking the strategic lead for economic growth and creating the right conditions for private sector growth along the coast, supported by budget measures to help small and medium-sized enterprises.
Lord Brookman: My Lords, I feel a bit frustrated by this Question, which is about coastal towns in England. Many of us are from the regions of the United Kingdom. Job creation is essential not only in coastal towns in England, as listed in the Question, but all over the country. Does the Minister agree?
Lord De Mauley: Yes, my Lords, and perhaps the noble Lord would like to take this up with his noble friend who asked the initial Question.
Lord Roberts of Llandudno: My Lords, I am so glad that the noble Lord opposite has mentioned the United Kingdom. I am sure that the Question about England, although it may not embrace Wales, includes Wales. However, is it not true that the demise of many of our town centres, and of employment in the centres of market towns, is because of out-of-town shopping malls and large-scale shopping centres? What are the Government doing to regulate this move out of town, which is making the centres of our market and coastal towns most uninviting places?
Lord De Mauley: My Lords, my noble friend makes an important point. Town centres are key to sustainable growth and local prosperity and are at the heart of neighbourhoods, giving communities easier access to shops and services. However, we must be clear that town- centre planning policy is not pro or anti supermarkets, and planning cannot seek to restrict lawful competition between retailers.
Coroners' Inquests
Question
2.50 pm
Asked By Baroness Miller of Chilthorne Domer
To ask Her Majesty's Government how, under the arrangements which they have announced in lieu of a chief coroner post, they will ensure that inquests are not subject to unreasonable delays.
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Baroness Northover: My Lords, the new arrangements announced on 14 June will allow the Government to take forward most of the provisions in Part 1 of the Coroners and Justice Act 2009, including those intended to reduce delays in the inquest process.
Baroness Miller of Chilthorne Domer: I thank my noble friend for her Answer. Does she agree that one of the worst things for bereaved, grieving families is to have to wait one, two or even three years for the inquest, and that that has an added cost to the NHS in all the stress and grief that those families naturally experience? Could my noble friend tell me why the Written Statement of 14 June to which she referred was silent on who would pick up the responsibility for overseeing what delays happen and why, and on what the criteria are for assessing what is an unreasonable delay?
Baroness Northover: The noble Baroness is absolutely right that this is a very difficult process for any family to go through, and anything that we can do to expedite inquests while holding them thoroughly is of key importance and should help the families. Section 16 of the Coroners and Justice Act 2009, which was introduced in response to the noble Baroness's amendments, did place a duty on a senior coroner, when an investigation has not been completed within a year, to pass that information through and for there to be a register of that. As she knows, the plan is that the functions under that office will be transferred to the Lord Chancellor. This area will indeed be addressed. With the spotlight on military inquests and with the delays that used to occur, it is notable that things have improved enormously, so there is a lot to be said for getting things out into the open.
Baroness Thornton: My Lords, my noble friend Lord Bach and I have been campaigning together on this issue, and I won the toss to explain how disturbed we are on these Benches. The Royal British Legion, which has campaigned tirelessly about the inadequacies of the coroners' service, has been in touch with me about this matter. It is bitterly disappointed with the proposals outlined by the Secretary of State on 14 June, where he says that he intends to persist with the abolition of the office of chief coroner. Given the overwhelming support for the chief coroner across this House, led by the noble Baroness, Lady Finlay, during the passage of the Public Bodies Bill, and indeed the overwhelming support from all parties for the reforms to the Coroners and Justice Act 2009, why are the Government persistently denying bereaved Armed Forces families a reformed, effective and well led coronial system that would provide them with the respect and support they need when they are at their most vulnerable and are grieving?
Baroness Northover: As I have just mentioned, military inquests have improved over the past couple of years or so, and that is very welcome. The noble Baroness refers to the position of chief coroner and to the actions of the noble Baroness, Lady Finlay, in defending it. It was clear that there was great concern about this in your Lordships' House. Many of the provisions in
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Baroness Northover: If you look around Europe at the moment you can understand why it is important that the Government take our economic situation seriously. We have transferred all the key responsibilities here to the Lord Chancellor and the Lord Chief Justice. I am sure that noble Lords will all hold us to account if that does not work.
Baroness Finlay of Llandaff: Could the Government explain why the Statement, which I did not see before it went out and I did not know the contents of, did not contain a transparent costing to justify the abolition of the chief coroner? Why does the Statement contain the line,
- "neither the judge nor any other individual will be responsible for the leadership, culture or behaviour of coroners",-[Official Report, 14/6/11; col. WS 62.]
which makes it clear that the key recommendations of reviews by Dame Janet Smith, Luce and others that highlighted the reforms essential to the coroners system have effectively been abandoned?
Baroness Northover: I dispute what the noble Baroness says. The costings were done in 2009 and they stand. The problem about the proposals that came forward afterwards was that they talked about deferred costs, and we could not go down that route. I remind the noble Baroness, who would know this only too well, that the chief coroner was not going to be a panacea. The chief coroner could do what he or she could to persuade; they did not have statutory rights to interfere with coroners, who are independent judicial officers. They did not have that right any more than is currently the case. We all wish to improve the coroners' system. There is a lot to be said for turning the spotlight on practices in different areas, as has happened with military inquests, and seeking to drive up standards that way.
Lord Brooke of Alverthorpe: My Lords, will the Minister explain why Governments get themselves into such a pickle? The idea that the amount spent on this is likely to disturb the economy of the country is ludicrous. The public can see that we spend millions on pointless referenda yet, on an issue that affects the whole country and for which there is widespread support right across the party front, the Government dig in unnecessarily. Can the Minister not take this back to her civil servants, make them see some sense and get what the public want in this area?
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Baroness Northover: As my noble friend who is absent today often says, "To govern is to choose". We all know the dire situation that the country is in but no one is suggesting that they short sell in Britain, unlike in Italy and Greece. That is worth bearing in mind when looking at this question. The Ministry of Justice, like all other areas in Whitehall, had to take its share of the cuts. It has had to make a 25 per cent cut in its budget. It was decided that, since most of these tasks could be transferred over and that was cost-neutral, that was what should be done. I point out again that, this having been addressed for military inquests, there have been the kind of improvements that noble Lords wish to see.
BSkyB
Question
2.58 pm
Asked By Baroness Symons of Vernham Dean
To ask Her Majesty's Government whether they will suspend consideration of News Corporation's bid for BSkyB until the conclusion of the police investigation into the involvement of News of the World journalists and those currently in positions of authority in News International in phone hacking.
Baroness Rawlings: My Lords, on 25 January the Culture Secretary said that he was minded to refer News Corporation's proposed merger with BSkyB to the Competition Commission in the absence of any specific undertakings in lieu. News Corporation duly offered undertakings, on which the Culture Secretary has consulted. Yesterday, News Corporation withdrew these undertakings. The Secretary of State has therefore decided to refer the proposed merger to the Competition Commission. The commission can take up to eight months to report back.
Baroness Symons of Vernham Dean: My Lords, I thank the noble Baroness for that response, and should say that I have given her specific prior notice of my supplementary question, which is as follows. Every day we have fresh revelations of the appalling behaviour of News International, and today was no exception. The real question that the British public want to ask, and the question that I want to put specifically to the Minister, is: how and by whom will the test of whether News Corporation is a fit and proper company to own BSkyB be applied as part of the process of consideration of its bid?
Baroness Rawlings: My Lords, I am grateful to the noble Baroness for the prior notice of this question. She is absolutely right; it is important to realise that the fit and proper person test is not triggered simply by the proposed merger. Ofcom has an ongoing statutory duty to make certain that the holders of broadcasting licences are and remain fit and proper persons. This is a matter for Ofcom, which is taking its responsibility in this area very seriously and is already in touch with the relevant authorities. The Government have no role in its decisions. No doubt the Competition Commission
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Lord Marks of Henley-on-Thames: My Lords, are the Government entirely satisfied that their hands are now tied to the issue of media plurality, despite News Corporation's failure to disclose its own nefarious activities? If so, does Section 67 of the Enterprise Act need urgent amendment? Might a way forward be to encourage Ofcom-there is no reason why it should not be so encouraged-to consider the fair and proper person test for continuing to hold a broadcasting licence under the Broadcasting Act 1990 as soon as the current investigations are sufficiently complete for it to form a view, and to delay a final decision on the acquisition until then?
Baroness Rawlings: My Lords, my noble friend makes some important points. I am sure that the Government will look at several amendments. The Secretary of State has returned this matter to the Competition Commission, and the review can take between 24 and 32 weeks, depending on the complexity of the case. The Competition Commission, confusingly for some, does not deal with actual competition. The European Union decided on 21 December 2010 that there was no competition problem. The Competition Commission's decision, as my noble friend Lord Marks rightly says, will be based purely on plurality.
Lord Lloyd of Berwick: I am still puzzled by the timing of yesterday's Statement. Were the undertakings offered by News International ever accepted by the Office of Fair Trading? If not, what was there to stop the Secretary of State at any time since 25 January referring the matter to the commission? Why did he wait until after the undertakings had been withdrawn to do so?
Baroness Rawlings: Because there were so many letters to him, the Secretary of State extended the period of consultation until Friday 8 March. He will be looking at all the answers. He is still looking at the answers. There will be quite a long delay. He does not know how long, but he does not want to be pushed into any quick decision because this is a very serious matter which everyone is quite rightly upset about.
The Lord Bishop of Chester: My Lords, there seems to be a difficulty in this matter, because if the Competition Commission has to report within this relatively short time span, the prospect of the police investigation being finished in that time is zero, especially if we are to reach the conclusion of whatever prosecutions take place. Indeed, the judicial inquiry cannot do its work until after that process is completed, so it would be difficult for the inquiry by the Competition Commission to reach a balanced and wise conclusion because so much of the matter has to run on beyond that time. How will Ofcom take a view until the judicial matters are completed?
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Baroness Rawlings: My Lords, the right reverend Prelate makes an extremely good point. At the moment there are six inquiries, including a police investigation and several others on which it is not possible to comment, that of the Home Affairs Select Committee and the two inquiries that the Prime Minister has announced. All those will have to be gone through. There is a timescale. As I said, the Competition Commission review will take between 24 and 32 weeks. Ofcom will then take a decision and make a recommendation to the Secretary of State, who will make the final decision.
Baroness McIntosh of Hudnall: My Lords-
Lord Phillips of Sudbury: My Lords-
Baroness Anelay of St Johns: My Lords, I regret that we have reached 30 minutes.
Arrangement of Business
Announcement
3.06 pm
Baroness Anelay of St Johns: My Lords, our first business today is the Second Reading of a fast-track Bill, the Police (Detention and Bail) Bill. I understand that none of those down to speak at Second Reading propose to table amendments to the Bill. With the agreement of each of those speaking and with the agreement of the usual channels, I therefore propose that the remaining stages of the Bill be taken formally immediately after Second Reading, unless any noble Lord objects now or during the Second Reading debate. We will therefore proceed with the Second Reading and the remaining stages of the Police (Detention and Bail) Bill, followed by a further day in Committee of the whole House on the Localism Bill. As we have seen from the Annunciators, at a convenient point after 5.30 pm, my noble friend Lord Howe will repeat as a Statement an Urgent Question from the other place on the future of Southern Cross care homes. That will be followed immediately by my noble friend Lord Marland repeating a Statement on electricity market reform. We will end the day, I hope, with the notification of Royal Assent on the Police (Detention and Bail) Bill.
Lord Campbell-Savours: Might I ask the noble Baroness whether the usual channels have agreed to a debate on BSkyB? Could we have a Statement on that?
Baroness Anelay of St Johns: My Lords, since I have made a business statement, the noble Lord, Lord Campbell-Savours, is of course in order to ask a question on a different matter. I assure him that productive discussions are going ahead within the usual channels on just that matter.
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Police (Detention and Bail) Bill
Second Reading
3.08 pm
The Minister of State, Home Office (Baroness Browning): My Lords, I am sure noble Lords are aware of the circumstances in which this Bill comes to us from the other place. However, I will summarise the position in an effort to assist the House in its unavoidably brief examination of the Bill.
Since the Police and Criminal Evidence Act 1984, known almost universally as PACE, came into force in January 1986, it has placed an upper limit of 96 hours on the period of pre-charge detention for a person arrested on suspicion of having committed a non-terrorist offence, provided that detention past 36 hours is authorised by a magistrates' court. That period of detention could be interrupted by one or more periods of bail, and detention time would run up to the time limit only when the person was in police detention; the clock would be paused during any period or periods of bail.
That understanding of the limits on detention was shattered last month when the High Court, sitting in Manchester, issued its written judgment in the Hookway case. The court held that, as a matter of statutory construction, the maximum period of 96 hours runs from the time that a person's detention is first authorised and is not paused by a person's release on bail. Once the police service had the opportunity to consider that judgment, alongside advice from some of the most eminent members of the Bar, it advised my right honourable friend the Home Secretary that the judgment posed major operational difficulties for it and that the judgment needed to be reversed at the first available opportunity.
Let me make it clear to the House that we had to wait until we had the written judgment, so that we could understand its scope, and had also tested with ACPO whether it could continue to protect the public, including victims and witnesses, within the detention and bail framework as redefined by the ruling. ACPO's very clear advice on 30 June was that any mitigating action it might take could endure only in the short term. That is why my right honourable friend the Minister for Policing and Criminal Justice made an Oral Statement in the other place that very same day, setting out the issue and promising urgent legislation to give certainty to all those involved in the process of pre-charge detention and bail.
That urgent legislation is of course the Bill before us today.
Lord Clinton-Davis: My Lords, have there been any discussions with the Bar Council and the Law Society concerning this matter?
Baroness Browning: My Lords, there have certainly been exchanges of correspondence with the Law Society. I am not sure whether that included the Bar Council, but the Law Society is certainly aware and has exchanged correspondence.
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The Bill has only two clauses and a single effect: to return the law to where it was commonly understood to have been for the previous 25 years. I cannot emphasise strongly enough that all we are doing here is restoring the status quo ante. The Government are quite clear that the Bill in no way widens police powers. So that there is no doubt, it may assist the House if I say a little more about Clause 1, which contains the substantive provisions.
Subsection (1) of Clause 1 has the effect of making clear that all time limits and time periods in Part 4 of PACE are to be read as including time actually spent in detention and excluding time spent on bail. Those limits and periods include initial time limits under Section 41 of PACE, superintendents' extensions under Section 42 and warrants of further detention under Sections 43 and 44.
Subsection (2) of Clause 1 amends Section 34(7) of PACE. That section provides that when a person returns to detention from bail, whether that return is previously arranged or is as a result of being arrested for breaching bail, the person is to be treated as having been arrested for the original offence and the remaining detention period will have deducted from it the time previously spent in detention. The amendment in subsection (2) makes clear that those calculations also exclude the time spent on bail.
Subsection (3) of Clause 1, as part of the Government's wish to return the law to its previous position, gives the Bill retrospective effect. I realise that that may be a matter of concern to some of your Lordships as a matter of principle-I will come on to that. As your Lordships will have seen from the Explanatory Notes that accompany the Bill, the Government have considered very carefully the issue of retrospective effect. We have come to the firm conclusion that, if the Bill is to fulfil its objective of returning the law to the position that was commonly understood before the judgment of the High Court in Hookway, it must be expressed as always having had effect. That is because, as the many lawyers in your Lordships' House will be aware, the Hookway judgment also had retrospective effect. If the Bill were not to apply to the past as well as the future, there would be very real questions as to the legality of many past detentions, both before and since the Hookway judgment.
Lord Thomas of Gresford: My Lords, I wonder whether the noble Minister would help me. She says that we would be going back to detentions in the past, but she referred earlier to restoring the status quo. Well, the status quo of Mr Justice McCombe is right: it was an illegal situation, where people were detained illegally.
Baroness Browning: I can understand why my noble friend makes that point, but the purpose of this Bill is to restore the legislation that comes out of PACE to the understanding that has been exercised for the last 25 years as to the conditions that apply to detention and bail. My point about the need for the Bill to be retrospective is that we are seeking not to add new elements to the Bill but to restore what we believe was Parliament's intention in passing it, and what certainly has been the understanding for the past 25 years of
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I would also point to the conclusions of Liberty on this issue, in paragraph 8 of a widely circulated briefing that it prepared on the Bill. Liberty commented:
"We do not believe that the proposals are retrospective in their nature as they do not seek retrospectively to create a criminal offence, sanction or other burden. They would not in our view ... fall foul of Article 7 of the European Convention on Human Rights or the common law rule against retrospective penalties".
I am also aware that the Constitution Committee of your Lordships' House has commented that it is,
- "concerned that asking Parliament to legislate in these highly unusual circumstances raises difficult issues of constitutional principle as regards both the separation of powers and the rule of law".
While the Government are always attentive to the observations of the Committee, as I indicated in a letter to the Committee yesterday we do not see that the decision to legislate in advance of the outcome of the appeal to the Supreme Court raises any constitutional issues. The sovereignty of Parliament means that it is entirely open to Parliament to legislate at any time in response to a judgment of the superior courts.
I am also aware that, since the Hookway judgment, there has been some commentary from within the legal community-particularly from those acting on behalf of those suspected of an offence-which has sought to express concerns that the Hookway judgment is some sort of warning to the police that the courts will not put up with the way that they use pre-charge bail. We will take account of the wider issues of the way the police use bail, but in this particular case, nothing in the terms of the written judgment indicates that Mr Justice McCombe had any underlying concerns in relation to the operation of police bail; he seems to have reached his judgment purely on the basis of his interpretation of the statute.
Following a lot of discussion and some correspondence -indeed, I have had discussions with noble Lords in the House-I am aware of the concerns that have been expressed, including by Liberty, Justice, the Law Society and others, about excessive duration of police bail in some cases and about unduly onerous conditions attached to the bail. As my right honourable friend the Minister for Policing and Justice indicated in the other place, we are not able in this Bill to deal with any wider issues about the Police and Criminal Evidence Act. Moreover, it would be wrong to make changes to police bail in haste and without proper examination of the issues and consultation with the police, the Crown Prosecution Service, the legal profession and others. However, we will reflect carefully on the debates on the Bill, both in this House and in the other place. In relation to these concerns, it is our intention in autumn this year to consult on matters relating to bail more generally and to the conditions that apply to them.
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I also point out, for those who may be concerned about this point, that anyone who is on pre-charge bail can challenge the conditions of their bail in their local magistrates' court. That is an important safeguard against any perceived abuse by the police of their powers to bail those under investigation.
I hope the House will be reassured that we are most certainly listening to people and intend to consult on those wider issues that have come to the forefront as a result of the legislation before us, but the urgent nature of this fast-track legislation means that there will be limited time today for debate on those wider issues. We will of course consider any observations that noble Lords make in that area in the course of our deliberations today and will come back to those at another time. The issue before us today is to correct the situation and restore to the police the powers required to protect the public properly. The Government believe that the Bill does that and no more. The other place agreed unanimously to the Bill when it considered it last Thursday. I beg to move.
3.21 pm
Lord Hunt of Kings Heath: My Lords, we on this side of the House support the legislation, which is needed to overturn the High Court ruling in the circumstances described by the noble Baroness. It is clear that the judgment causes serious problems for policing operations, for ongoing investigations, potentially for the delivery of justice and, most seriously of all, for the protection of victims and witnesses.
As the noble Baroness so lucidly explained, it had previously been assumed that releasing a suspect on bail effectively paused the detention clock. It was thought that the clock could then be restarted when the suspect answered police bail and was redetained, even if that point was later than 96 hours after the relevant time. The recent High Court ruling is that that is not the case under the precise wording of the Police and Criminal Evidence Act 1984. Instead, the maximum 96-hour period specified in that Act runs immediately from the relevant time and cannot, as has been common police practice, be suspended by releasing a suspect on bail and be restarted later beyond the 96 hours by redetaining the suspect. The detention clock continues to run even while the suspect is on bail.
Understandably, Parliament has always been concerned to ensure that emergency legislation should be brought only on the basis of very serious considerations, and is never to be done lightly but with a clear understanding of the risks involved. However, Parliament needs to balance that with the risk to the public and to justice if we do not legislate immediately. The situation apparently means that the police are unable to recall people from police bail if they have been bailed for more than four days unless the police have new evidence that allows them to rearrest. The situation also raises serious issues about the application of bail conditions, particularly in domestic violence cases, as those conditions can include important protection for the victim. Such conditions could include someone being prohibited from going to his ex-wife's workplace, the family home or the children's school. Some bail conditions
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We therefore support rapid action but, unfortunately, rapid action has not entirely characterised the response of the Home Secretary. I noticed that, in her introductory remarks, the noble Baroness emphasised the written judgment. She will know that the oral judgment was given on 19 May and her officials were informed soon after that-certainly before the end of May. The Home Secretary has said that she had to wait for the written judgment, but that has not meant that the Home Office had to suspend any action and judgment of what advice should be given to Ministers until the written judgment was received.
It is now seven weeks from the original judgment, three weeks since the written judgment was put in place, and two weeks, apparently, since Ministers were informed. The gap alone between Home Office officials being informed of the written judgment, the written judgment being published and Ministers being told has put Ministers in a difficult position. Our first concern is about the initial delay before the Home Office received the written judgment. More work should have been done between the oral judgment and the written judgment, and once the written judgment arrived, advice should have been given very quickly to the Home Secretary and the Minister for Policing and Criminal Justice about the risks in this case.
Lord Clinton-Davis: It is common practice for solicitors to note the judgment beforehand, so it is not necessary to await the written judgment as it unfolds.
Lord Hunt of Kings Heath: My Lords, that is a very telling intervention from my noble friend. Surely that is the case. All I would say to the Minister is that I hope lessons will be learned from this matter.
Changing the law retrospectively is in general undesirable and creates great uncertainty. It threatens natural justice if people end up breaking up a law they did not know existed. In this case, my understanding is that the Government are seeking simply to restore the law to what we in Parliament thought it was, to what it had been intended by Parliament at the time to be and to what the police, the CPS and others have followed in good faith for many years.
I noted the intervention of the noble Lord, Lord Thomas of Gresford. Like the Minister, I also noted the comments of Liberty, which are worth emphasising. Liberty does not believe that the Government are seeking retrospectively to create a criminal offence, sanction or other burden, so it would not fall foul of Article 7 of the European Convention on Human Rights.
Lord Thomas of Gresford: Is the noble Lord saying that he can envisage what Parliament meant many years ago, when a High Court judge has determined through the language used what was meant? If anybody disagrees with his interpretation, surely the appeal for which leave has been given should be pursued.
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Lord Hunt of Kings Heath: My Lords, of course we shall have to see the outcome of the appeal. I do not know whether the noble Lord has read Michael Zander's piece on this, which refers back to the debates in Parliament 25 years ago. From my reading of the amendment moved by Clare Short for the Labour Opposition at the time and of the response given by the then Home Secretary-the noble Lord, Lord Hurd-it is apparent that Parliament's view was pretty clear. In that case, I must endorse the interpretation given by the Minister.
The case for rapid action is clear and that is why we are not proposing amendments today. Equally, the case has raised some important points, both of principle and of detail, which I would be grateful if the noble Baroness would respond to. Some of the commentary since this case came to light has expressed concerns about the possibility of the use of endless police bail. There appear to be cases where people have been left on police bail, including with conditions, long after another suspect has confessed to the offence, or where investigations have run dry but action was not taken to end the bail arrangements. I welcome the Minister's offer of an opportunity for a wider debate about the appropriateness and proportionality of different lengths of police bail and what safeguards are required.
There are also issues around the fact that the original 1984 legislation has been amended many times. It would be helpful if the Minister could say in the review whether she intends to look at the legislative context in which police bail is enacted, and whether she thinks that it might warrant a review of legislation as well as practice in the fullness of time.
It is also noticeable that in some of the comments that have been made, including those from Liberty, a proposal has been made that Parliament should consider a statutory time limit to restrict the total duration of police bail to no more than six months. I would be grateful if the noble Baroness would say whether that is also a matter that will be considered in the welcome review that she has announced this afternoon.
We have also benefited from the advice of your Lordships' Select Committee on the Constitution, which drew to the attention of the House one feature of the Bill which the Select Committee felt touches on an issue of constitutional principle. Essentially, the High Court judgment that the Bill seeks to reverse is itself under appeal to the Supreme Court. The noble Lord, Lord Thomas of Gresford, referred to that point. The Select Committee says:
"We are concerned that asking Parliament to legislate in these highly unusual circumstances raises difficult issues of constitutional principle as regards both the separation of powers and the rule of law. We have noted the constitutionally important distinction between legislative and adjudicative functions before. We are concerned that, in the understandable rush to rectify a problem which the police have identified as being serious and urgent, insufficient time has been allowed for Parliament fully to consider the constitutional implications of what it is being asked to do".
I know that the noble Baroness has responded very rapidly-and it is very welcome that she has done so-by saying that the Government see no constitutional impropriety in the present decision to legislate in advance of the outcome of the appeal to the Supreme Court. She went on to say that it is common ground that the
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In supporting this Bill and the actions that she has announced today, I would ask that there be an element of public involvement and input into the review that she has announced. I would also suggest to her, through the usual channels, that it would be opportune if, perhaps in the autumn, we could have an opportunity to debate these matters in this House, possibly as part of an input into the review that she has promised.
3.33 pm
Baroness Hamwee: My Lords, I do not want to detain the House by repeating in detail what has already been said. There was a slightly longer speakers list earlier, and it made me wonder how many Silks it took to give a Bill a Second Reading. It also made me note that perhaps as instructing solicitor I should be saying to some of my noble friends that I was briefing them to be as succinct as I know they can be, but in making that suggestion I do not want to pick on my noble friend who is left on the speakers list. It has been agreed that we will dispense with further steps and take them formally, so there will be no refreshers.
I thank the Minister also for her introduction, and I particularly welcome the prospect of consultation. I entirely agree with her that it would not be appropriate to proceed on a wider basis at this stage without a written judgment as distinct from notes taken by people other than the judge, so I welcome this way of going about matters.
I do not think that bail conditions and maximum periods are appropriate in emergency legislation. There are real issues here, but they are difficult and warrant a more measured approach. My initial instinct was that there might be a sunset clause, but again I do not think it would be appropriate for what, in non-technical language, is not a new issue. I hope that the timing of the consultation and wider debate, as the noble Lord has just suggested, will be such that if legislation is necessary-we cannot prejudge that without having the consultation-it might be able to piggyback on other Bills now before your Lordships. We know of the problems in bringing forward fresh legislation.
I am grateful to the Minister and her officials for the time spent briefing noble Lords before today's debate. I understand that if it is not possible to reach the point of making a charge or deciding not to charge within 96 consecutive hours, the police are trying to look at what is new evidence. I am not making any allegations, but it is clear to me that this could well be open to abuse, so again on that basis I welcome the Bill. My noble friend has picked up the use of "status quo" and I have made a note to say that it is not the status quo; it is what everybody thought was the status quo. My A-level Latin many years ago is not adequate to put the whole lot in Latin, but I do not think the use of "status quo" is quite right. Similarly, on terminology, this Bill is not so much akin to retrospection as akin to rectification, and I support it.
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3.36 pm
Lord Pannick: My Lords, when the three political parties, Justice, Liberty and, of course, the House of Commons all agree that this Bill deserves support, I am not going to express a dissenting opinion. But I am going to express concerns about the constitutional issues raised by the way in which the Government have proceeded. Parliament is being asked to enact emergency legislation to overturn a decision of the High Court. High Court judges, no doubt regrettably, occasionally make decisions that are perceived to be of enormous detriment to the public interest. But in all previous cases where this happened, an appeal was brought in the hope and expectation that the Appellate Committee of your Lordships' House, now the Supreme Court, would overturn the High Court judgment, and only if that legal remedy failed was emergency legislation brought forward.
There are good reasons why emergency legislation is contemplated only if the appeal process has been exhausted. First, if the appeal succeeds, the problem disappears and Parliament does not need to become involved. Secondly, if the appeal fails, the judgment of the Supreme Court provides a much more informed basis on which Ministers and Parliament can address all aspects of the issue. Thirdly, and not least, surely constitutional propriety requires that the law should be interpreted by judges, not by Parliament. I understand that to be the point of the interventions made by the noble Lord, Lord Thomas of Gresford. It is all very well to have Members of the House confidently asserting, as they did last week, that Mr Justice McCombe's judgment was wrong and that the Bill merely returns the legal position to what it was. It is all very well to have the noble Baroness stating today that the Bill returns the law, as she put it, to the status quo ante, but I subscribe to the apparently old fashioned view that it is for the Supreme Court to determine what was the legal status quo. Indeed, this case is even more surprising, because we are engaged in this exercise notwithstanding the fact that there is an appeal; it is pending in the Supreme Court, listed to be heard on 25 July. I shall come back to the timetable in just a moment.
The Minister said this afternoon that the decision to legislate in advance of the outcome of that appeal raises no constitutional issue, because Parliament, of course, is sovereign and competent to legislate at any time. She made the same point in her very speedy response to the report of the Constitution Committee, of which I am a member. I am sure that all members of that committee will be extremely grateful to the Minister for the urgency and speed with which she addressed the issues that we raised; but is it really the Government's position that no constitutional issue about the respective roles of the judiciary and Parliament is raised when emergency legislation is introduced to overturn a decision of a lower court which is pending appeal to the Supreme Court and when the emergency legislation is being brought forward on the basis that it simply restores the previous position, which has therefore, it is implicitly suggested, been misunderstood by the High Court judge?
Of course, I understand that we cannot now wait for 25 July, because the Supreme Court may, on 25 July or very soon thereafter, dismiss the appeal and by then
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The Supreme Court granted permission to appeal and expedited the case so that it will be heard on 25 July, but I have made inquiries of the Supreme Court and been told that neither the Greater Manchester Police nor anyone else asked the Supreme Court to hear the appeal earlier than 25 July because of the urgency and the need for Parliament to consider emergency legislation if the appeal was not to be heard earlier than 25 July. I am also told by the Supreme Court that, if it had been asked, it would of course have considered trying to hear the case more speedily because of the need to do so. That is what should have happened in this case. As soon as the importance of the issues was understood and the possible need for emergency legislation was recognised, an application should have been made to the Supreme Court for it to hear the case last week or at the beginning of this week on the grounds that, if the appeal failed, then and only then would the Government need, or possibly need, to bring before Parliament emergency legislation. There would then have been time to consider the matter before the Summer Recess and after the appeal if it were unsuccessful.
As noble Lords will know, the Attorney-General may intervene in any court proceedings to protect the public interest. The Secretary of State does not appear to have asked the Attorney-General to apply to the Supreme Court to hear the case more urgently. If such a request was made, it certainly was not acted upon. I should emphasise that, although the Supreme Court has very helpfully given me the information that I have recounted to noble Lords-I am very grateful to Jenny Rowe, the chief executive, for that-the views that I express on these matters are mine alone.
My concern is that this Bill is a most unfortunate constitutional anomaly. Parliament should not normally be asked to consider emergency legislation to overturn a High Court judgment when there is a pending appeal on the very issue which is before the highest court in the land. That should not happen unless every effort has been made to persuade the Supreme Court to hear an even more urgent appeal.
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There is simply no precedent that I am aware of, and understandably so, for what we are doing today-reversing a judgment of the High Court with retrospective effect on the basis that we are satisfied that we are restoring a status quo, even though a Supreme Court hearing is pending and no application has been made for it to hear the matter more speedily.
I have four questions for the Minister. First, is she aware of any previous occasion when emergency legislation has been brought forward to repeal the effect of a High Court decision without first appealing to the Appellate Committee, now the Supreme Court, and asking that court to hear the matter with considerable expedition? Secondly, can she explain why, before coming to Parliament, the Secretary of State apparently did not ask the Attorney-General to apply to the Supreme Court to hear this appeal with considerable expedition so that it could it take place early in July and so that, if it were dismissed, we would still have time if necessary to consider emergency legislation? Thirdly, what steps has the Secretary of State now taken to ensure that all police authorities-indeed, all other public authorities-know that if the High Court gives a judgment on a matter of public interest which causes general concern it is vital that it is communicated to central government without delay so that steps can urgently be taken, if appropriate, to ensure that an appeal is heard with great expedition? I ask that question-I do not attribute blame-because there appears to have been considerable delays in this case in communicating concerns from Greater Manchester through to Whitehall.
My fourth and final question is this: what is going to happen if the Supreme Court hears this appeal on 25 July and if the appeal succeeds? Will the Government then bring forward in the autumn a short Bill-even shorter than this one-to repeal this emergency legislation as entirely unnecessary and to remove from the statute book a most unfortunate constitutional anomaly?
3.51 pm
Lord Thomas of Gresford: My Lords, it is a great pleasure to follow the noble Lord, Lord Pannick, and I agree with everything he said. It may be that the answer to his final question is that Royal Assent should not be given to this Bill until we have the judgment of the Supreme Court, and then there could be no necessity for it to be repealed.
When the noble Lord was speaking I was reminded of the story of the acorn falling on the head of Chicken Licken, who informed Henny Penny, Goosey Lucy, Turkey Lurkey and others that the sky was falling in. Finally, they all told Foxy Loxy, who listened to their panic-stricken warnings and then ate the lot of them. Much emergency legislation is introduced like the fabled acorn. The Hookway case merely declared that the relevant legislation did not allow the police to save up unexpired periods of authorised detention and to use them to detain and question suspects pre-charge at any date in the future-and this is the important point-even though no fresh evidence had been obtained.
If this is what Parliament meant in passing the legislation, as Mr Justice McCombe has held in his complex judgment, which required to be in writing
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The problem that arises in this case is that a suspect can be detained again at a later date-six months, or even more, later-and questioned when no further investigation has taken place. He is simply being questioned on what was in the past. If Mr Justice McCombe's interpretation of the statutory provisions of what Parliament meant-which is what his judgment is and not what the noble Lord, Lord Hunt, thinks from reading an article in a magazine-is correct, then Manchester Police should continue with its appeal, for which, as your Lordships have learnt, it has obtained leave through a certificate that it is a matter of public importance.
The noble Lord, Lord Hunt, did not continue entirely with the Constitution Committee's point, which the noble Lord, Lord Pannick, has also made, that Parliament would then have the benefit of a considered judgment from the Supreme Court to assist its deliberations if the appeal were allowed to go ahead. We would then know what the Supreme Court thinks about Mr Justice McCombe's interpretation.
This simple Bill ensures that lazy and possibly oppressive policing can continue but it raises a much more important question: has the practice of indefinitely extending police bail become a genuine abuse? There is no statutory limit when a person is given bail pre-charge and invited to come back at a later date. In Committee on the Criminal Justice Bill of 2003, my noble friend Lord Dholakia moved an amendment to insert a provision that police bail should not extend more than 28 days, as had been recommended at that time by the Home Affairs Select Committee. He said that his amendment would limit the pre-charge period and that:
"The CPS will of course progress the case as fast as possible. However, we have concerns about the unlimited bail periods. Set deadlines go some way to ensure that matters are reviewed and less likely to drag on unnecessarily".
The then Attorney-General, the noble and learned Lord, Lord Goldsmith, responded that pilots that had been carried out suggested,
- "that in most cases a five-week period should be sufficient to enable charges to be brought".-[Official Report, 14/7/03; col. 683-84.]
He thought extending police bail for about five weeks was appropriate. Consequently, on 29 October 2003, I moved an amendment on Report for a limit of 35 days -five times seven, taking the Attorney-General at his word. He said in response that he did not wish to have a statutory limit but that it would be better for guidance
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I am indebted to Mr Roger Windsor who has pursued this topic with freedom of information inquiries which reveal that in 2008, in three police areas alone out of 43-West Mercia, Sussex and Surrey-358 individuals spent more than nine months on police bail to which conditions were attached. I have supplied his findings to the Minister. I am also indebted to Mr Csoka QC of Lincoln Chambers in Manchester and Mr Joseph Kotrie-Monson for their views, which I have similarly passed on.
Not only are there no time limits in relation to how long the police can keep a suspect on police bail when no new evidence has emerged but there is no mechanism whereby the degree to which the police are acting with due expedition-or, worse, with bad faith-can be independently scrutinised. One wonders whether the cuts in funding for the police and CPS could be translated into restrictions on the liberty of those who have not been charged with any offence. The conditions that can be imposed on those bailed can include reporting, curfews, travel and residency restrictions. It is my own personal experience and that of others that conditional bail can last for months or even years with no sign of any activity by the police or the CPS. In other words, people can be given bail at the police station and are welcome to walk out of there subject to the restrictions but those can continue indefinitely without any possibility of seeing whether the police are carrying out their functions expeditiously.
When the Police and Criminal Evidence Act was enacted the police could bail only without conditions-there was merely a requirement to surrender on a future date. In 1995, after 10 years of PACE, the police were given the power to impose conditions. The use of those powers has now reached epidemic proportions. It is the experience of defence lawyers that conditional bail is used punitively against suspects who the police believe are criminals but against whom there is no or no sufficient evidence. The police can extrajudicially, by the grant of bail subject to conditions, curtail their liberty for an indefinite period. Additionally, those arrested for public order offences at political demonstrations are often bailed for inordinate periods with a condition; for example, not to enter Westminster or not to attend further demonstrations. Often no charges are ever brought. They have been subjected to a form of control order which is effectively outside the rule of law. This happened in 2009 with protesters planning a protest at the E.ON power station in Nottingham and the arrest, detention and bailing of protesters during the occupation of Fortnum & Mason on 26 March this year.
The simple solution is to bring in a legal framework which imposes time limits on pre-charge bail and gives a right to appeal. Defendants who are remanded in custody have the protection of custody time limits. Extensions of custody time limits-normally six months -can be granted only if there is a good and sufficient cause and the prosecution has acted with due expedition. It is a frequent case in court that the prosecution goes along and explains how its inquiries are going and why
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Such a system would protect not only the rights of a suspect but also the victim: a rape victim, for example, has the anxiety of waiting months to see whether a charge is to be brought. Time limits will prevent inefficiency, poor staffing or indecision from creating a culture of delay.
Unhappily, the acorn at the moment is too small and this Bill is too light to carry the burden of extensive amendments to deal with these problems. I am grateful to Mr Justice McCombe for leading Parliament to investigate this area and I am extremely grateful to the Minister for indicating that an urgent review will be carried out in the autumn into what is potentially a very considerable abuse of the system, which certainly Parliament never meant when it passed the legislation in 1985 or when it was considered at any later date.
Lord Hunt of Kings Heath: My Lords, that was not the point I was making. The noble Lord asked me where I referred to the supposition in relation to putting it back to where Parliament thought it would be. I quoted from an article, which in turn quoted quite clearly from Hansardofthe debates at the time. But that was not the point I was arguing.
Lord Thomas of Gresford: I am grateful to the noble Lord for his explanation. I have made all the points that I wished to make. I look forward to the review. I look forward to participating in a parliamentary debate on that review and we can see whether this abuse, which I believe does exist, can be cured.
4.03 pm
Lord Condon: My Lords, I declare my usual registered interest as a former commissioner of police. I support this Bill for all the reasons that have been set out so comprehensively by the Minister. Since 1986 it has been widely recognised by the police, prosecutors, defence lawyers and the courts that time spent on bail does not count towards the maximum period of detention without charge.
The judgment on 19 May in the case of Greater Manchester Police and Paul Hookway has caused serious problems for police operations. More importantly, it has caused very serious problems for the protection of witnesses and victims because of the doubt cast over bail restrictions, particularly in cases of domestic violence, stabbing, and intimidation on estates and in inner cities. Real concerns are being played out hourly, every day since this decision was made.
The police service is trying to manage the investigation of more than 80,000 people who are currently on police bail. I spoke yesterday eveningto Assistant Commissioner Lynne Owens of the Metropolitan Police, who has been tasked with managing the challenge of the impact of the court decision until Parliament
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It is 44 years since I joined the police service. I can think of no other court decision of this nature that has placed in jeopardy the accepted police procedure for dealing with prisoners, and no case that has had the impact of the scale or magnitude of this case. In London alone, 14,000 people are on bail, including 170 people suspected of murder and other grave offences. Given the position that the service is in at the moment, all those cases are incredibly difficult to manage, and I fear that police officers in custody suites up and down the country are being forced to take decisions whereby they do things that either stretch the credulity of the law or detain suspects longer than really necessary, putting witnesses and victims in jeopardy.
I accept all the concerns that have been quite properly raised by all the noble Lords who have spoken today, including concerns about the constitutional impact of this sort of legislation; concerns from the noble Lord, Lord Thomas of Gresford, about the whole operation of bail and police use of it; concerns about the absence of a sunset clause; and concerns about the chronology of actions by the Government and the Home Office in response to this decision. However, we are where we are. The police service needs the certainty and immediacy of the restoration of the law to the accepted position prior to the court decision on 19 May. I believe that the Bill before your Lordships' House will do that and no more; it does not extend police powers in any way, nor does the police service seek any extension of powers.
I accept that there are many other issues relating to bail that need to be discussed and thought through in a measured way, but today is clearly not the day for that measured debate. I am pleased that the Minister has reassured your Lordships' House that that debate will take place, but for today I hope your Lordships will accept that the police service has been left in a parlous state because of this decision. I hope that your Lordships will accept the necessity for the legislation and will support it today.
4.07 pm
The Lord Bishop of Chester: I shall add a footnote primarily to the speech made by the noble Lord, Lord Thomas of Gresford, just to give an example of the problems that arise simply as a consequence of police bail without conditions. I know of a clergyman who was arrested and then bailed and told that the police would probably not get back to him for a year. In this particular case, the clergyman was retired. Because of the particular nature of the potential allegation, he clearly could not exercise a ministry in retirement. He was told that it would be most likely a year before the police came back to him at all. That could well have been a serving minister. In many situations, I would have no alternative but to suspend a person in those circumstances for what could be a very long period, so even in the case of police bail without conditions, there are potentially very serious consequences, and in our media-sensitive age these consequences tend to be magnified.
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I hope the Minister will say a little more about the review that she has promised, and assure us that it will be published and accompanied by a full set of facts and figures showing how the use of police bail has changed in recent years so that we can see the trends in this area. That said, I of course understand the need for the legislation, notwithstanding the constitutional issues so clearly stated by the noble Lord, Lord Pannick. However, the wider issues surrounding police bail now need urgent attention.
4.10 pm
Lord Clinton-Davis: My Lords, I apologise to the House for intervening at this stage, but I went to the Government Whips Office yesterday, and I thought that I had put my name down. It has disputed that, but the Government are very wisely allowing me to speak.
The noble Lord, Lord Pannick, has eloquently raised some pertinent issues underlying the matters that we have to consider today, and I hope the Minister will be able to reply to those points. The noble Lord argued effectively that the Supreme Court should have had an opportunity to consider these matters, and I was very surprised to hear that no one asked the Supreme Court to meet more speedily. I note that the noble Lord spoke without any intervention from the Minister. I presume, therefore, that what he said is borne out. I will listen with great patience to what the Minister has to say.
Despite the questions that have been raised, and despite my own criticisms of the Bill, I remain in support of the Bill's intentions and urgency. As we have heard, the Bill aims to re-enact the law as we have almost unanimously thought it was; and I, as a lawyer, join that number. I am always somewhat suspicious of emergency legislation because I believe that it puts a particular duty on Parliament to scrutinise it and its future in practice with extreme care. Whether or not there is a sunset clause, which I would support, it is incumbent on us to examine the Bill, or the Act as it unfolds in future. I hope the Government will respond positively to the suggested early consideration of these legislative provisions. If, in the future, there is a clear need for emergency legislation, does the Minister agree that the relevant departments-in this case, the Home Office, Ministers and civil servants-need to anticipate the problems and how they are going to react to them somewhat more effectively and speedily than has been illustrated here?
Mr Gareth Johnson, a Conservative in the other place, made a significant point about bail and the attitude adopted by the police, about which there is still a significant question mark. He argued that the police should not view the Bill as a green light to keep suspects on bail for an inordinate period before any decision on charging is made. I hope that the Minister can assure the House about this point, since the Law Society has also drawn attention to this matter. Whether or not we have a sunset clause, it is incumbent on us to examine this Bill with care. I hope that the Minister-who is in no way to blame for this parlous situation-will be able to reply to these points.
I refer to another important issue. In my view, it is essential with questions of this nature that the Bar Council and the Law Society are consulted forthwith.
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4.15 pm
Lord Dear: My Lords, I support the Bill. I had not expected to be able to attend your Lordships' House today but my diary changed, and I am grateful to the House for allowing me to speak in the gap. I shall be brief.
I, too, declare an interest in that I served in a senior rank in the police service in England for many years. The noble Lords, Lord Pannick and Lord Thomas of Gresford, kicked the Minister's shins fairly resoundingly with regard to timing and wasting time. I think that we are all concerned about that point. The noble Lord, Lord Thomas, went on to lay it on pretty thick, if I may say so, regarding what he termed lazy and oppressive police conduct in setting bail. I will come back to that in a moment. I would hope that what he outlined is the exception rather than the rule, but I am concerned on those points.
The real point of the debate today is that we are where we are and the police have a substantial problem, as my noble friend Lord Condon has outlined. The provisions of PACE, as they were understood, are still being exercised on hundreds of occasions every single day. They are part of the necessary working practice of any charge room, sometimes called a "charge suite". Without certainty in this area, that part of the work of the police will grind very slowly-perhaps even to a complete stop.
I am not particularly concerned about retrospection in this extant case. We are trying to put the legislation back to what was generally assumed, rather than bringing in a new set of circumstances that would then impede someone ab initio.
I am concerned that the Minister has, rightly, found it necessary to talk about the review that will look at excessive and onerous conditions of bail that are being set and have been set in the past-a point made by the noble Lord, Lord Thomas-and overdue duration. That has caused me concern for some time, and the review is timely and important. I look forward to a debate, probably in the autumn or shortly after Christmas, on that very point.
On the point that we are considering today, which is putting the world back to what it was assumed to be prior to 19 May, the Bill has my full support.
4.18 pm
Lord Rosser: My Lords, this has been an interesting and thoughtful debate, particularly for those of us who are not qualified lawyers. As the Minister has said, until the recent Hookway case it had been widely accepted, not least by the police and the courts, that, while there is a maximum time of 96 hours for which an individual could be detained without charge, time spent on bail did not count towards that maximum
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The written judgment of the judge in the High Court was received on 17 June, and appears to have resulted in a shortage of people sharing the view in his oral judgment that the consequences of his ruling,
- "are not as severe as might be feared in impeding police investigations in the vast majority of cases".
The effect of this Bill is to restore the position to what it had been understood to be by all concerned in relation to bail not counting towards the maximum period of detention without charge, prior to the decision by the judge on 19 May. We support the Bill. We cannot await the Supreme Court hearing on 25 July before determining whether legislation is needed as potentially witnesses and victims of crime and not least victims of domestic violence are at risk of harm if the period of time for which suspects can be bailed without charge, with appropriate conditions attached on which action can be taken if they are breached, is now severely limited.
The statement by the noble Lord, Lord Pannick, that the Supreme Court was not asked to hear the case earlier than the 25 July is very interesting indeed. I know the courts can move rapidly. In the 1970s there was an instance of the Court of Appeal sitting on a Sunday, just two days after the decision by the National Industrial Relations Court which led to the appeal. It would not appear that there is quite the same sense of urgency in relation to this case, maybe because of insurmountable problems or maybe because the appropriate question was not asked, despite its potentially devastating and immediate implications.
The High Court has now said that an interpretation of an Act of Parliament that has been universally accepted and applied by all concerned for the last 25 years, including the courts, is incorrect and that, as a result, powers in relation to bail without charge beyond 96 hours are effectively withdrawn and, even more significantly, with almost immediate effect. The situation that has now arisen, as the noble Lord, Lord Condon, has stated, is causing serious problems for policing and for the conduct of investigations as well as the delivery of justice. It also puts at risk the well-being and safety of victims and witnesses.
If the courts have now decided to interpret a law differently from the way in which it has been interpreted for the past 25 years, there must surely be a less disruptive and potentially less dangerous way of effecting that change.
This brings me to the Government's actions in this case. The original decision by the district judge was made in early April this year, over three months ago. The single judge in the High Court gave his oral ruling on 19 May, which upheld that of the district judge. Bearing in mind the potential significance of the High Court ruling, why was no application made for the hearing to be before three judges, as I understand could have been the case, rather than allowing the decision to be made by a single judge?
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Clearly, at that hearing on 19 May this case was recognised to be of real significance. Counsel representing the appellants made it clear to the court that the consequences of Mr Justice McCombe's decision would be profound and likely to have a negative impact upon the criminal justice process. Regrettably the learned judge does not appear to have accepted that view.
Can the Minister tell us when officials of the Home Office became aware of the substance of the learned judge's oral judgment and what steps if any they took to prepare for or challenge the consequences of his judgment? The Minister has asserted today that nothing could be done before the receipt of the written judgment. Like my noble friend Lord Hunt of Kings Heath, I find that surprising. Surely, as an interested party it was incumbent upon the Home Office to consider the consequences of the judgment immediately-whether it might be appropriate for it or the Crown Prosecution Service to intervene, and to further consider whether to apply for a stay to the judge, or ask the Supreme Court to hear the case as a matter of urgency. There was a strong issue of public interest at stake and I ask the Minister if any attempt was made to invite the Attorney-General to intervene on behalf of the public interest. I hope the Minister will be able to address these points in her reply.
While I appreciate that the effect of this Bill is to restore the situation to what everyone thought it was prior to 19 May, and by making it retrospective ensure that potentially a large number of people were not able to make a claim for damages for detention on the basis that they had been treated contrary to the law in the light of the judge's decision, there is now a need to review and consider again the provisions in respect of bail.
Claims have been made that people have been bailed for excessive periods of time without charge, since there is no time limit on how long people can be bailed in these circumstances. It has been suggested that the lack of a time limit is not an incentive for the police to be as expeditious as they might. Whether there is any substance to these points, I do not know. However, the whole question of bail now needs to be reviewed, including, presumably, in light of the Human Rights Act, which was not in play 25 years ago. I hope the Minister will confirm what she said in her opening speech-namely, that this is what the Government intend to do and, therefore, that the Bill we are considering today may well prove to have a sunset clause. Will the Minister confirm that, if needed following the review, new legislation will be brought forward?
It is important that certainty of the understanding of the law in respect of bail without charge for the 25 years prior to 19 May is restored as a first step. On this side we shall support the Bill and, with it, this fast-track legislation.
4.25 pm
Baroness Browning: My Lords, this has been a constructive debate. I welcome the support for the Bill from the opposition Front Bench. I am particularly grateful to the noble Lord, Lord Hunt of Kings Heath, for his remarks in his opening speech. He raised some issues that I shall touch on since they were also picked up by other Members of your Lordships' House.
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I shall reiterate something about the scope of the review of bail. This was raised not only by the noble Lord, Lord Hunt, but by the noble Lords, Lord Thomas of Gresford, Lord Clinton-Davis and Lord Dear, and the right reverend Prelate the Bishop of Chester. When we look at pre-charge bail later this year, it will be to consider the issues raised today, including the overall time limit. However, we will need to ground that review in evidence. At the moment, much of what we have heard is anecdotal. Therefore, any and all input to that review in advance of its terms of reference being drawn up will be welcome. I can tell your Lordships' House and the wider community today that, further to the point raised by the noble Lord, Lord Hunt, about members of the public, there is a wide community of interest in this whole area. We would welcome, even before the autumn, any written submissions that will help us to set the terms of reference for that review, which will be wide and far-reaching. I hope it is of help to the House to know that.
I was asked about what legislation might follow. I say to the noble Lord, Lord Rosser, that it is a bit premature for me to identify any legislation that may come from the review. There might well be something, but until we see the terms of reference, have gathered that information and can see how to take the matter forward, it would be premature for me to say today what legislation might be needed.
A lot has been said about the Home Office and timeframe involved by several noble Lords, including the noble Lords, Lord Hunt of Kings Heath and Lord Pannick. I hope the House will bear with me but it might be helpful, since a lot of attention has been paid to this, if I read out for the record of the House the situation as regards the timeline. To set that in context, the wider consequences of the ruling could not be considered until the judge issued his written ruling, setting out the reasons for his decision. That judgment was issued on Friday 17 June. Most importantly, even at that stage, its wider consequences were not readily apparent. The judge himself reiterated his belief that the consequences would not be as severe as might be feared in impeding police investigations in the vast majority of cases. It was only as the complex ruling was examined early the following week by ACPO, the CPS and Home Office officials that the full consequences became apparent. However, I will, for the record of the House, read out the points in this whole process and those at which the Home Office-both officials and Ministers-was involved.
Lord Pannick: Can the noble Baroness explain why the Home Office was unable to understand the implications and importance of this decision on 17 June, when Professor Michael Zander was able to publish an article on this subject on 18 June and must, therefore, have understood the implications some time before that?
Baroness Browning: If the noble Lord will bear with me, I shall begin at the beginning and work my way through the timeline. Because we have had such a short debate, it is very important to put this on the record so that noble Lords have the full information. I will read it slowly because a lot of dates are involved.
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On 5 April 2011, the district judge refused the Greater Manchester Police's application for an extension to a warrant of further detention in the Hookway case. On 19 May, in a judicial review, Mr Justice McCombe, sitting alone at the Divisional Court in Manchester, upheld the district judge's ruling in an oral judgment. I should point out that he sat alone because an early hearing was requested, but only one judge was available to sit; so the request was made-a point referred to by the noble Lord, Lord Rosser. On 25 May, the Greater Manchester Police sought initial views from Ann Whyte QC, who stated that the judgment may relate only to specific cases or warrants of further detention. Yet again, the legal advice was that this might have quite a discrete interpretation in terms of its wider implementation. The following day, 26 May, the Greater Manchester Police invited Home Office officials to become an interested party in an effort to seek leave to appeal to the Supreme Court and forwarded papers for consideration. The written judgment was not of course available at that point-26 May.
As I am reading this, I realise that it is all right for me-I have a piece of paper in front of me. For the purposes of clarity, when I have read this into the record I will also place it in the Library of the House.
On 17 June, the Greater Manchester Police, as we have heard, received the written judgment from the High Court and forwarded a copy to the Home Office on that day. That was a Friday. On Monday 20 June, the Greater Manchester Police and Home Office officials studied the written judgment, and the broad scope of the problems presented by the judgment first started to become apparent. Until that point, there had been some consideration-not only because of the QC's opinion but because of the wording of the judge in his oral judgment-that this matter was not going to be as far reaching as it has subsequently proved.
It was on 20 June that the GMP and Home Office officials started to consider the written judgment. The next day, 21 June, the GMP invited ACPO representatives and the Home Office officials to meet to discuss the implications. Home Office officials agreed with ACPO to convene an urgent meeting to discuss the implications, which took place the following day. ACPO, the CPS and the Home Office officials met at the CPS's headquarters. The full magnitude of potential difficulties then became quite apparent. The following day-we are talking about one day following the other-ACPO alerted the CPS chief executive, and ACPO issued notification of judgment to all chief constables. On 24 June, the ACPO lead met with the CPS director-general, and Home Office Ministers were informed at that point. ACPO commissioned advice from Clare Montgomery QC, and ACPO issued interim guidance to all chief constables. That was a Friday.
The following Monday, 27 June, Clare Montgomery QC's advice was received in conference by ACPO, the CPS and Home Office officials. ACPO issued further guidance to all chief constables. ACPO commissioned forces to provide real-life examples of the impact of the ruling to support the case for urgent legislation. On 29 June, ACPO commissioned further legal advice from Steven Kovats QC. The following day, ACPO received that advice from the barrister and presented
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"It was only when ACPO received the written judgment on 17 June, and a number of senior people were able to spend some significant time considering the issue, that the seriousness of this became apparent. As the ACPO lead on this issue, I was not going to advise Ministers that the police service needed, in exceptional circumstances, fast-track legislation until I had satisfied myself first that the legislation was necessary and that the police service could not operate effectively in light of this judgment, beyond the very short term".
I hope that that is helpful to the House and I am sorry if it is lengthy and detailed.
Lord Thomas of Gresford: My Lords, perhaps I may assist my noble friend a little further. Neither the district judge nor Mr Hookway was represented at the hearing before Mr Justice McCombe, and there was a single counsel appearing for the Manchester police. It was clearly very low-key at that point; the respondents to this application were not even there.
Baroness Browning: My Lords, I am grateful to my noble friend for adding that information.
I hope that I have been able to allay some fears that the timeframe needed was a result of the Home Office-or, for that matter, anyone else-being dilatory. Had the judge's and the initial QC's advice not both indicated that this was not likely to be as far reaching as it subsequently turned out to be, I might accept some of the criticisms. However, the Government have acted as quickly as possible in the circumstances.
I understand that the GMP did ask the Supreme Court for an early hearing. I gather that it was initially given a date in the autumn and, when pressed, the date was brought forward to July. I will soon come on to some of the points that were made by the noble Lord, Lord Pannick.
I hope that I have satisfied noble Lords about the timeframe and the Government's intentions with the wider issues that have been spoken to by noble Lords, including particularly my noble friend Lord Thomas of Gresford and the noble Lord, Lord Clinton-Davis, about the need for consultation and a fresh look at bail and its conditions. I can assure the noble Lord, Lord Clinton-Davis, that the Law Society and the Bar Council will, of course, be invited to take part in the consultation. We will make sure that all partners in this matter are fully engaged in the consultation, because I know that they will have a lot to contribute to this.
I am also very grateful to my noble friend Lady Hamwee, who, as ever, brings a very measured response to these matters. We have also heard from the noble Lords, Lord Condon and Lord Dear, who have had many years of experience in policing in this country. I was rather struck by the fact that the noble Lord, Lord Condon, in pointing out the operational difficulties that the police currently have to manage, said that no other court decision has had the scale and magnitude regarding operational policing as the one that is before the House tonight. I say to the noble Lord, Lord Dear,
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When the Association of Chief Police Officers presented us with clear evidence of the adverse impact of this judgment on the ability of the police to investigate offences and protect the public by enforcing bail conditions, we had a duty to act as a Government, and I believe we have quickly done so. From the debate, it was evident that your Lordships accept the need for fast-tracking this legislation, for the most part. If anything, this is one of those occasions when, notwithstanding the issues that noble Lords have raised, the House has acted and come together to make some progress and help resolve a very urgent problem.
The House would rightly have been sceptical had we sought to introduce a fast-track Bill on the back of an oral judgment, given that the judge in the Hookway case said at the time that the consequences would not be,
We now know that assessment of the operational ramifications of the judgment to be misconceived but, as I explained, that became apparent only after the written judgment on 17 June.
Professor Michael Zander QC has been cited around the House. I understand that Michael Zander is someone whom noble Lords feel confident in citing because of his reputation in the field. I do not want to let go the opportunity to cite him myself. He said:
"The Home Office has been criticized for being a bit slow off the mark. But measured from the date when it received the transcript of the judgment, it dealt with the problem in a little over three weeks-which, as these things go, is not bad going".
We have all prayed in aid Professor Zander; he sounds a pretty good sort of chap to me. I have not met him, but his judgment is clearly respected on all sides of the House.
Lord Goodhart: I have known Professor Zander for 58 years, and my view of him is very high.
Baroness Browning: My Lords, I do not doubt that for one moment. I shall cite him as often as possible on behalf of the Home Office.
I turn to the noble Lord, Lord Pannick, who talked about there being no precedent for the fast-track legislation in front of us. There is a precedent for this. A High Court judgment in July 2002 in the case of Hwez and Khadir held that the practice of granting temporary release, subject to restrictions, to people detained under the Immigration Acts was unlawful. The Government legislated to overturn that judgment in Section 67 of the Nationality, Immigration and Asylum Act 2002. Subsection (3) provides:
"This section shall be treated as always having had effect".
The purpose was to avoid a situation where people subject to immigration controls who do not have leave to remain but who cannot lawfully be detained were
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As a member of the Constitution Committee, the noble Lord, Lord Pannick, has raised issues that replicate some of those that the Constitution Committee raised. I notice that the Constitution Committee may return to the issue after the Bill is enacted and the Supreme Court has heard the appeal by Greater Manchester Police. We will, naturally, consider carefully any further report that comes forward from the committee.
The noble Lord also asked what steps are now taken to ensure that police and public authorities report judgments to central government as soon as possible. There is an assumption there that the Greater Manchester Police should have acted quicker in alerting the Home Office to that judgment. As I pointed out in explaining the timeframe, we were aware and officials were engaged, but under a set of circumstances that was perhaps not quite clear to the House under the legal advice at the time. I do not disagree with the principle of what the noble Lord said. Timeliness is very important; lessons can always be learnt. We need to look forward to see things coming over the hill and not just wait to see what happens, when it is too late. That is my understanding of his question. I hope that I have satisfied him by outlining the timeline, but the general principle of what he asked, which is about the timeliness of information-sharing between agencies and authorities, is important, especially in issues as serious as this. I take his point; I know that, in the Home Office, we will endeavour to ensure that it is not overlooked.
On the question of the Supreme Court, although Mr Justice McCombe gave his judgment orally in May and certified the point of law, it was not possible for police counsel to prepare the appeal papers until the written judgment available on 17 June. As I have explained, an early hearing was requested but 25 July was allocated by the Supreme Court. An early date having been allocated, neither the GMP nor the Home Office believed that there was any prospect of an even earlier date being allocated.
The noble Lord also asked why the Secretary of State did not ask the Attorney-General to hear the case earlier in the public interest. The Secretary of State was made aware that the GMP was appealing to the Supreme Court for an expedited hearing. Subsequently the police also requested that the court stay the effect of the Hookway judgment. The court gave an expedited hearing date of 25 July, which, as I have said, is earlier than the original date. The Home Secretary felt there was no reason to think that government intervention would make that hearing even earlier. That is the case and I do not think that I can add any more to that. Clearly the Home Secretary did not feel it appropriate to approach the Attorney-General because a concession had already been given with the date agreed for the hearing.
Lord Pannick: The noble Baroness is being very patient indeed. We do not have a Committee stage on this Bill, so I hope she will excuse me if I press her slightly on this. Does she agree in principle that it is
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Baroness Browning: I certainly do not disagree with the noble Lord on the general principle, and I will take his point back with me.
Lord Clinton-Davis: What I do not understand from what the noble Baroness has said is whether counsel even asked the Supreme Court for an earlier date. All we have heard is that it would have fallen on deaf ears, but we do not know. Why did counsel not ask for that?
Baroness Browning: Counsel did ask for that. The original date was in October or November. Counsel went back and asked for an earlier date, and that was why it was brought forward to July.
Lord Clinton-Davis: If the Supreme Court had understood that Parliament would not be sitting at that particular time, should they not have been made aware that Parliament was going to rise on 20 July?
Baroness Browning: I do know whether or not the Supreme Court, in bringing forward the date to July, was made aware of the date on which Parliament was sitting. The Home Office was clearly actively involved in these things, but of course the GMP was approaching the court, not the Home Office. I cannot specifically answer the particular point raised by the noble Lord, but I will endeavour to find out for him.
I can only reiterate the point that I made in my opening remarks. I know that this is a matter for the Constitution Committee, but we really do not believe that we are undermining the constitutional separation of powers by asking Parliament to legislate to reverse the effect of a High Court decision in advance of the issue having been decided by the Supreme Court. As has already been pointed out, had we waited we would have been in recess when that determination was made. The House will not return until September. We have already heard about the urgency of the need to take action in this matter, particularly from the noble Lords, Lord Condon and Lord Dear; nor has the point been lost on us in our discussions with ACPO that these are really serious matters.
The daily problem of the management of bail and offenders and the impact on victims of crime have rightly been pointed out by the opposition Front Bench, particularly in certain circumstances; the noble Lord, Lord Rosser, raised the question of domestic violence and people going back into the same area where they have previously committed a crime. These are very serious operational matters for the police to have to contend with.
Picking up on points raised around the House, I hope this is something we shall deal with when we have the consultation on bail and bail conditions. The police are between a rock and a hard place at the moment in trying to manage this. They are doing
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It remains to be seen whether Greater Manchester Police proceed with their appeal once this Bill is enacted-although I understand that it is their current intention to do so-and if so, what view the Supreme Court will take. The Constitution Committee may well want to consider this legislation in the light of that judgment, whatever it may be, and may well return to this later in the year. We will of course study that and carefully consider any report on the broader issue.
Members have touched on the matter of a sunset clause, although I noted that this has not been pressed particularly hard, and I am grateful for noble Lords' understanding of it. Given that the Bill does no more than restore the law on the calculation of the detention clock to the position that it was commonly understood to be in 25 years prior to the Hookway judgment, we see no case for a sunset clause in this instance. Indeed, this is one of those instances in which a sunset clause could well have an adverse effect, in that it would perpetuate the very uncertainty about the proper interpretation of part 4 of PACE, which we are seeking to address in passing this Bill.
Finally, let me respond to the point raised by my noble friend Lord Thomas, and touched on by other noble Lords, on the wider issues involving bail and the consultation that we are going to put in place. No hard evidence has been received, but sufficient concern has been expressed from so many quarters that we need to get this right. Examination cannot be rushed; there needs to be an ordinary process, including consultation with the police, the CPS, and legal practitioners. Noble Lords have indicated that there is an understanding in the House that we could not include that in the Bill before the House today. I welcome support from all sides of the House for the Bill.
Police (Detention and Bail) Bill
Bill Main Page
Copy of the Bill
Explanatory Notes
Committee and Remaining Stages
4.55 pm
That the Bill be committed to a Committee of the whole House.
House resumed. Bill reported without amendment. Report and Third Reading agreed without debate. Bill passed.
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Localism Bill
Bill Main Page
Copy of the Bill Vol 1
Copy of the Bill Vol 2
Explanatory Notes
Amendments
Copy of the Report (15th)
Copy of the report (16th)
Committee (7th Day)
4.56 pm
Clause 95 : Duty to co-operate in relation to planning of sustainable development
Lord Greaves: My Lords, we now move on to an important clause of the Bill, which provides the "Duty to co-operate in relation to planning of sustainable development". The duty applies to,
- "a local planning authority, ... a county council in England ... or ... a body, or other person, that is ... of a prescribed description".
I should say that, as well as moving Amendment 147FJ, I shall speak to a number of other amendments in my name in this group. They all refer to Clause 95, which will insert new Section 33A into the Planning and Compulsory Purchase Act 2004.
Amendment 147FJ would add "a marine plan authority" to the list of bodies that are under a duty to co-operate. I understand that through regulations the Government intend to give this duty to the Marine Management Organisation, which is the marine plan authority for a great deal of the British seas-essentially, the inshore and offshore seas of England. The term "marine plan authority" is used in the Marine and Coastal Access Act 2009, so it seems sensible to use the same wording here. Subsection (3) of new Section 33A, inserted by Clause 95, lists the activities to which the duty to co-operate applies, which include,
It is therefore sensible to add "a marine plan authority" to the list of authorities that are under a duty to co-operate.
Amendment 147FK probes what is meant by the third group of bodies to which the duty applies-
Presumably if the Government wish to prescribe people, they must have an idea of who it is they wish to prescribe by description. I want to probe the Government on who they think these bodies will be, at least in the short run.
Amendment 147GA refers to local enterprise partnerships. As we know, these are new bodies which over the past year have sprung into life in most places, although not quite everywhere yet. They are to be responsible for co-operation between local planning authorities and local businesses in the absence of regional planning bodies. The regional planning structure is being dismantled and local enterprise partnerships are taking its place. People have different views on how successful they will be, but that is not the point of the amendment. It suggests that, first, the partnerships
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If we are going to put LEPs in the Bill, they need to be defined. I am not sure that the Government have officially defined them, so I suggest a definition in the words,
- "a partnership of local authorities and businesses in an area, that has been approved of by the Secretary of State".
That seems a reasonable description of what they are.
The next three amendments refer to the "activities", as the Bill calls them, to which the duty of co-operation applies. These are the "preparation" of development plan documents, of other local development documents -of course, quite a few of the documents that go in the local plan are not classified as development plan documents as such-and of marine plans. The Bill suggests that the duty of co-operation should apply to the "preparation" of these documents; I have tabled amendments to add the words "and implementation" after "preparation" in every case. Surely the duty of and need for co-operation do not end with the publication of a plan but continue, given that people have to continue to co-operate in a constructive and sensible way in order to carry out what the plan is putting forward. Otherwise, those parts of the plan that require co-operation across boundaries-which presumably will be required, because what is the point of co-operating on producing the plan otherwise?-will be more difficult to achieve.
Amendment 147HE suggests that the duty to co-operate should apply to the preparation and implementation of documents which are not planning documents under planning laws, but which,
We have only got to begin to think that there will presumably still be co-operation-perhaps across the LEP areas or county areas or other ad hoc areas-on producing housing documents, which may be more or less strategic housing plans. For example, housing authorities in east Lancashire and across Lancashire will continue to meet, work together and co-operate in this way. It seems sensible that, when this is happening, the duty of co-operation should apply to them. Leisure and tourism facilities, for example, very often require planning and a lot of work across local authority areas or across much larger areas than local authorities, particularly where there are relatively small districts.
I shall miss out one or two of my amendments in the interest of getting on. Amendment 147HM would add to the list of what is a "strategic matter" under subsection (4) of new section 33A. My proposed new subsection (4)(c) would add,
My proposed new subsection (4)(d) would add,
- "development or use of land that is necessary in order to meet the needs of a planning area but cannot be accommodated within that planning area".
Those are the provisions that I wish to add to the Bill.
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In the first of those proposed new paragraphs, the reference to "potential strategic importance" is important, because there may well be development proposals put forward for land which is of potential strategic importance, but the particular proposals being put forward cannot, by their nature, be considered to be strategic. They may just be ordinary planning applications, but the land itself ought, perhaps, to be reserved for more strategic purposes and therefore the co-operation should extend to the consideration of development proposals which, although not strategic in themselves, might involve land which is potentially strategic. That should, at the very least, be discussed and considered.
My second proposed new paragraph would apply where the needs of a local planning authority could not reasonably be met within the authority's area but could perhaps be met within that of a neighbouring authority. This is certainly the case in small districts which might, for example, be having great difficulty finding new industrial land whereas a district next door might have quite a lot. Planning in those circumstances should take place jointly-it may be for housing, an industrial or commercial development, leisure facilities or even a shopping centre. Such development needs to be looked at across an economic area. If the LEPs are supposed to represent economic areas-it is arguable whether all of them do-it is across those economic areas that such developments and facilities ought to be considered. Natural economic areas may well be larger than the planning areas and in many cases they will be.
The Bill sets out definitions, including the meaning of "planning area". Amendment 147HN would define "planning documents", which are not defined in the Bill. The amendment would remedy this omission. The amendment provides that "planning documents" would mean all,
- "documents that set out policies ... relating to the development and use of land, the English inshore region or the English offshore region",
under a number of enactments. The list of those enactments in the amendment may not be complete, but the principle of setting them out is sensible.
Amendment 147HQ would strengthen the duty imposed on all the persons and bodies that have to co-operate. The duty to co-operate was strengthened in the House of Commons before the Bill came here, but there is quite a considerable body of opinion that it needs strengthening even further. New Section 33A(6) states:
"The engagement required of a person ... includes, in particular ... considering whether to consult on and prepare, and enter into and publish, agreements on joint approaches to the undertaking of activities within subsection (3)"-
which relates to the preparation of development plan documents et cetera. The amendment would strengthen the provision so that the paragraph would read,
In other words, the duty would be not just to consider whether to bother consulting but to actually get on and do it.
Amendment 147JA would place a similar duty on local planning authorities to get on with it, rather than just "consider" producing joint planning documents
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Amendment 147N takes us back to statutory guidance and regulations. This may be getting fairly tedious, but there is a great deal in the Bill which is probably not necessary. Here again, we have the Secretary of State bossing people in great detail on how to co-operate. People know how to co-operate. They may not always do it, but if they are under a duty to do so, they will probably get on with it.
The alternative way of dealing with these matters is in Amendment 147P, which suggests that the Secretary of State can intervene, but only if he receives a complaint that one of the bodies that must co-operate is not doing so. This is a better approach. Instead of laying down in great detail how people should do things, in a very rigid, top-down and bossy way, it would provide a fall-back power whereby, if co-operation was not taking place and was clearly not working, the Secretary of State could intervene. This would provide an incentive to change behaviour. It is a failsafe, but it is a better way of doing it. Above all, it leaves open the opportunity for people in an area to co-operate in a way that is most appropriate for that area, providing a lot of innovation and best practice. If authorities simply have to do it in exactly the way the Secretary of State sets out in great detail, innovation and best practice will never take place.
Amendment 147R seeks to amend the Marine and Coastal Access Act 2009 to include a duty to co-operate in that Act. If it is necessary to amend the Planning and Compulsory Purchase Act 2004 for terrestrial planning to include a duty to co-operate in that Act, then surely it is necessary and sensible to do the same in the Marine and Coastal Access Act in relation to marine planning. When the Marine Management Organisation is preparing a marine plan, under this amendment it must have regard to the duty to co-operate set out in the new Section 33A of the Planning and Compulsory Purchase Act 2004. When a person is carrying out an independent investigation into a marine plan under the Marine and Coastal Access Act, the person must determine whether the MMO complied with that new section of that Act.
In many ways these are technical amendments but they will substantially improve, strengthen and make much clearer this part of the Bill. I beg to move.
Baroness Andrews: My Lords, the noble Lord, as usual, has been very assiduous in his amendments. I am grateful to him for tabling, in particular, Amendment 147FK. I declare an interest as chair of English Heritage.
The noble Lord asked the Minister what would be included in the list of bodies referred to in proposed new Section 33A(1)(c). We think it might be bodies such as English Heritage. The Bill raises a serious issue. Obviously, we all understand the need for local authorities to be obliged to assist each other in agreeing cross-border planning strategies, but it is not clear why the loss of the regional spatial strategies gives rise to the need for national bodies such as English Heritage to be obliged to provide advice and information.
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Of course, English Heritage and many other bodies-but particularly English Heritage-give advice and assistance to local authorities in the planning system. It is one of our core responsibilities with which we are rightly charged but, as a national body which, like others, may be subject to this duty, we are now concerned that a responsibility may have been written into the law which would oblige English Heritage to advise and assist the 433 local authorities in England in a manner-this is very important-that would commit incalculable and open-ended resources. Clearly this is not what the Government intend but it is what the present clause, as we understand it, threatens to do. It would make us liable, without condition, to be dragged to every council table in the land.
As chair of English Heritage, I am concerned about how this might unbalance the priorities already set by Parliament and the Government. I suspect that the Minister will also be concerned about this possibility. Like the noble Lord, Lord Greaves, I ask the Minister for clarity on how this new burden will be met and qualified and whether he can explain what need this new obligation is now fulfilling. Indeed, what are the bodies not doing now that they should be doing?
I apologise in advance to the Minister because I may not be able to stay for the winding up of this debate, but I shall certainly read Hansard tomorrow with interest.
Lord Cotter: My Lords, in speaking to my Amendment 147H to this section of Bill, I want to emphasise the importance of local businesses in the community. I do not need to say much about the struggle that many local businesses have now, and have had for quite some time, to cope with trading conditions and other matters as this is highlighted, both nationally and locally, on an increasingly frequent basis. In this particular amendment, I am supported by the Federation of Small Businesses and many other business organisations and businesses generally.
Noble Lords will note that my amendment refers to local businesses and to the Government's introduction of local enterprise partnerships, as referred to by my noble friend Lord Greaves a moment ago. Local enterprise partnerships are intended to sustain and invigorate businesses and the business community at local level. LEPs, as they are known, are there to fulfil that role but a key part of an LEP's role is to ensure that small businesses have a voice. On this aspect, it is concerning that small businesses are not adequately represented on LEPs everywhere in the country. My information comes from the FSB, to which I referred, the Association of Convenience Stores and also work that I have done directly contacting businesses all throughout regions in the country. The feedback I get is somewhat patchy. Small businesses have a reasonable role in some areas and not much at all in others. I wish to highlight that strongly this afternoon. I hope that the Government will take it on board increasingly as time goes on.
Looking also at the wider aspect, on regional planning we previously had RDAs but, with the different situation we face and organisation now in place, there is a need in the Bill for clarity on how a new, sub-national approach will work. We are looking for a duty recognising the importance of business input into strategic planning
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My amendment looks for more explicit elucidation of the role of LEPs within the Bill, with a formal recognition of them. There will therefore be greater clarity and a strengthening of their position and standing.
Lord Cameron of Dillington: My Lords, I speak to my Amendment 147M. At Second Reading, I expressed my concerns about the proposed duty to co-operate as a replacement for regional strategies. As I then said, I am not particularly enamoured with the whole idea of regions. Particularly in the south-west, where I come from, the region was far too large to be of any real relevance to people on the ground and their lives.
As I am sure we all recognise, we need some form of supralocal planning framework to deal with a whole range of issues for which it cannot and should not be left to each and every local planning authority to come up with the answer all on their own. These issues include areas such as flood defence, where water management in the upstream can impact on flooding and water quality in downstream communities. Equally, unless cross-boundary issues are addressed, pure localism could lead to fragmentation of landscapes and ecosystems. The recent national environment White Paper introduced the concept of nature improvement areas, ecological networks and local nature partnerships to rival or possibly complement local enterprise partnerships. All of these are likely to be transboundary concepts in their application.
Some form of supralocal planning is also needed for a strategic approach to renewable energy. While it is important that all local authorities work towards their own solutions for producing 15 or even 20 per cent of their energy requirements from renewable resources-many of which can be built as small, local ventures-each local authority will have different constraints and opportunities for taking different routes towards whatever technology is most suitable for their area. It will be important for everyone to see the bigger picture.
Supralocal planning will be about more than just the larger sub-regional infrastructure projects; more than just where to site bad-neighbour developments such as waste disposal facilities or even large housing developments. I am not so worried about local authorities co-operating-they always have co-operated and they always will. I do not see any real need for compulsion or threats. What they need, in my view, is a framework which sets out what they need to co-operate on-as I have already explained, this is probably wider than many councillors might assume. They need a framework that sets out who should be involved and most importantly, who should lead; the outputs and outcomes; and furthermore, having co-operated, how the results should be incorporated into local plans and local transport plans and the application of the community infrastructure levy. In that context I refer to my twin amendment on this subject under the CIL clauses, Amendment 148ZZBA, to which I speak in my current remarks.
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These amendments require unitary or upper-tier authorities to prepare strategic infrastructure assessments in consultation with planning authorities and other strategic infrastructure providers, including local enterprise partnerships and local nature partnerships. I believe we need to specify these assessments as a necessary result of the duty to co-operate. It is only in this way that the duty would have a clear output that would harness the expertise and capacity of unitary and upper-tier authorities in matching investment with growth and provide a consistent framework to inform sub-regional and local plans.
I want to pause for a minute on the words "consistent framework" because I believe they are vital for any country that wishes to remain progressive. I spoke at Second Reading on the dangers of uncertainty within the planning system as a result of this Bill for everyone from businesses, through service providers to environmentalists. They all need some form of consistent framework within which to work, plan and to risk their money through investment. We cannot expect businessmen to invest and house builders to build or, for that matter, environmentalists and landscape aficionados to protect what matters if they are all working in a fog of uncertainty. If each development case has to start from scratch, only delays and increased frustration will result. I believe my amendments give clarity as to where the leadership should lie, so efforts can focus immediately on getting on with the work of strategic planning rather than risking delays because no prime mover is identified in the legislation. Obviously, it is platitudinous to say that delays are the enemy of progress but I do not believe that we can afford delays in the current economic climate. Rather, we need a coherent sense of purpose with a simple reference document as a guide for local plans and new neighbourhood plans. I believe my amendments achieve that.
Lord Whitty: My Lords, scattered among this vast group of amendments are four amendments of mine. The Committee will be relieved that I do not need to speak for very long on them since one of them, Amendment 147R on the marine planning side, has already been spoken to by the noble Lord, Lord Greaves, and I endorse everything he said. The other three relate to the area to which the noble Lord, Lord Cameron of Dillington, has just spoken. Amendments 148G, 148J and 148K try to sharpen up the requirement to co-operate. Much like the noble Lord, Lord Cameron, I have particular issues in mind where clearly a development, as distinct from a very high-level strategic approach, will be of interest to more than one local authority and may well be of interest to local and national authorities. I declare an interest, for example, in relation to climate change adaptation as I am a member of the Environment Agency Board. Clearly, flood arrangements need to apply to the whole catchment area, wherever the political boundaries may fall, and there may be an involvement in that of national bodies such as the Environment Agency or Natural England. On climate change mitigation, major renewable energy projects may well involve more than one authority, either because of the location of the plant itself and its connections, whether it is a wind turbine or a biogas plant or whatever, or because there are visual effects thereof which impinge on other local authority areas.
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I would hope that the requirement for local authorities to co-operate will be pinned down a little more than is currently the case. My proposals to amend the new section proposed in Clause 95 would give a general subsection (1) duty to co-operate, and a clearer purpose to that, making a specific reference to sustainable development. They would also ensure that the requirement in proposed new subsection (6) to consider a "joint approach", very much along the lines of the joint framework to which the noble Lord, Lord Cameron, referred, and "joint local development documents", became a compulsory requirement.
I know that some local authorities are not particularly keen on those provisions being in that form in the Bill and say that they will co-operate the whole time. Regrettably, that has not always been the case in relation to flood defence provisions or to renewable energy projects, when different local authorities may have reached different conclusions coming from different angles. So it is important that the Bill itself puts a requirement so that, as far as possible-and this is mildly framed-they reach a consistent and compatible approach to these matters. This needs to be seen in the wider context of sustainable development, which the Committee debated the other night, when I was unfortunately not able to be here. If we tighten this up a little bit, there will be an extra nudge to local authorities to co-operate and take a more coherent and sensible approach to planning and projects within their areas. I therefore commend these amendments and hope that the Government can at least take the spirit of them on board.
Lord Beecham: My Lords, I listened with great care to the remarks of my noble friend Lady Andrews, who is no longer in her place, because I have an interest- I think that the appropriate adjective would be an historic interest-in the subject that she raised, the position of English Heritage. I served as a commissioner of English Heritage for four years, having been appointed by the noble Lord, Lord Jenkin, and removed by Mr Nicholas Ridley in due course, no doubt for good reasons. My noble friend certainly has a point about not encumbering some organisations with heavy statutory responsibilities.
On the other hand, some agencies need to be involved from the outset in the kind of strategic approach adumbrated in the Bill, and in rather broader terms in the amendment moved by the noble Lord, Lord Greaves. I have in mind, for example, the Highways Agency, which in my experience is not one of the more co-operative government agencies when it comes to its dealings with local government, or the Environment Agency or the Homes and Communities Agency. They have a better track record but, as the noble Lord, Lord Cameron, pointed out implicitly in his reference to environmental matters, they clearly have a key role to play in the development of a joint approach.
I join in inviting the Minister, in replying, to indicate the kind of bodies, though not necessarily adumbrating all of them, that might be included in proposed new Section 33A(1)(c) of the Planning and Compulsory Purchase Act 2004 under,
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It would be helpful to have an indication, though not necessarily on the face of the Bill, as obviously we may need to add or change the description over time.
I also take on board the point about local enterprise partnerships made by the noble Lord, Lord Cotter, when speaking to his amendments. It is not clear to me that they have much power in any event, as presently constituted, but they should certainly be involved in consultations. Whether it is useful to have a duty to co-operate on bodies that may not have the power to do very much is perhaps arguable, but the point is worth exploring, and perhaps the Minister could enlarge a little on the role envisaged for local enterprise partnerships generally and in relation to the position under the Bill, if not today then as a matter for further consideration.
5.30 pm
I applaud the noble Lord, Lord Greaves, for most of his amendments, which seem to open up the duty to co-operate in a constructive way. As a former chairman of the Local Government Association, I wish I could subscribe to the view that local authorities co-operate as a matter of course; it is not necessarily the case, as one or two noble Lords have mentioned. It is essential that there is something to make the duty to co-operate actually stick. I cited at Second Reading, I believe, the instance of the district council of Stevenage and its inability to secure land for housing because it is a very tightly constrained built-up authority from an adjoining authority. There was simply no way in which it could break through in the present situation. Where regional spatial strategies have gone, there is no mechanism to compel that degree of co-operation. The noble Lord, Lord McKenzie, may refer to a case closer to his heart and locality, and I am sure other noble Lords could equally cite examples of that kind.
Of course, this is not simply a question of housing. Other issues require co-operation across boundaries that may not readily be secured. The question arises: how is development to be secured? What powers need to be vested in the Secretary of State or some other body to adjudicate where authorities may have had long discussions, with or without their other partners, and nevertheless failed to reach an agreement? It cannot simply be left to that. Amendment 147P, which the noble Lord, Lord Greaves, has introduced, may offer a way forward, provided that at the end of the day a decision can emerge from some source.
Finally, I refer to the definition, again in Clause 95(1), of what constitutes a planning authority. I am not sure whether, for example, the new body in Greater Manchester-the Greater Manchester Combined Authority-would qualify in those terms as a planning authority. It might, but there may well be examples in future of authorities combining for some purposes, and it would be helpful if there were some flexibility to ensure that such bodies could be brought within the ambit of the clause. We should consider whether the clause needs to be redrafted at this stage or whether it can be left to new Clause 33A(1)(c), which refers to,
in other words, that one deals with these on a case-by-case basis. That would be a suitable alternative.
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Nevertheless, new structures may emerge at the sub-regional level, to which the noble Lord, Lord Cameron, has referred. They may need a specific reference either in the Bill or subsequently. We need to acknowledge them, extend to them the duty to co-operate, and make it enforceable or in some way justiciable. I hope the Minister will take the sense that many noble Lords have spoken. The Bill is reasonable but it would be improved by most of the amendments that the noble Lord, Lord Greaves, and other noble Lords have tabled on the duty.
Lord Lucas: I will get around to addressing my amendments in a moment. First, I want to say how much I agree with the noble Lord, Lord Beecham, and my noble friend Lord Greaves that there seems to be some need in this section for an ability to knock heads together. My brother first got involved in local politics when, in the local village, there was an ancient wall with a fast-growing young sycamore next to it. At the same moment, the owner of the wall was served with a notice to repair the wall where the tree was knocking it down and a tree preservation order on the tree. I will leave it to noble Lords to guess which party was in control of the district council at the time. It is hard enough to get a council to co-operate with itself, let alone two councils, particularly in the example that the noble Lord, Lord Beecham, gave of Stevenage, where what is being asked of one council it really does not want to give and the residents do not want it to give. In those circumstances, some higher ability to make the process happen is important.
I have two questions to ask my noble friend on the Front Bench. First, I do not expect him to answer immediately, but how on earth are we going to finish this Bill in the time allotted? Looking at the time that we will take discussing neighbourhood planning, all the bits on housing and all the other bits, how can we accomplish all that is to come in in effect two and a bit days? It just does not seem possible. It must have consequences for how late the House sits. It may well have consequences for what days the House sits on. Thursday appears to be available if we stretch things a bit. I do not know, but it no longer seems possible to fit it into the time that we are supposed to be fitting it into, and I would like the Government to come clean with us as to how we are going to solve this conundrum. My noble friend might come back after the Statement with a long cape and a top hat and pull the proverbial rabbit out of it. Short of that, a plain answer from him via my noble friend the Chief Whip will be much appreciated.
Lastly, I hope my noble friend will not be troubled by my two amendments. Their purpose is to draw attention to the question of how, under this Bill, you have to pick a particular place to install a facility if you want to establish a network. It does not matter much where. It will affect only one local authority, but there is a choice of several local authorities into which it could go. Two examples come to mind. One is a rail head for the transfer of freight from road to rail and vice versa. You can probably put that in quite a number of places on the network, but how are you going to decide where to put it? For a pure road transport network, given current regulations, you need to develop
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Lord McKenzie of Luton: My Lords, we have Amendments 147FKA, 147HZA, 147HCA and 147HF in this group, which I will speak to in a moment. I will start with the question put by the noble Lord, Lord Lucas: how are we going to finish this Bill in time? I am sure the official answer will be that it depends on the usual channels and that it is not up to the Minister. However, given what we have to do, I reiterate the noble Lord's point, which I know is shared by other noble Lords.
Our amendments are concerned with the duty to co-operate. We acknowledge that government amendments in the other place have improved the provisions, which have benefited from the input of the TCPI in particular. Notwithstanding this, we do not see the end result as providing a proper substitute for effective strategic planning for England. Many planning issues play out on a scale beyond local authority boundaries-the noble Lord, Lord Cameron of Dillington, and my noble friend Lord Whitty talked about housing, climate, biodiversity and key infrastructure issues, and the noble Lord, Lord Lucas, made a point about networks. I would say, without seeking to bring them back, whatever the difficulties with regional spatial strategies, they did provide a route to resolving these issues strategically. Is not the fundamental difficulty that the duty to co-operate will not deal with the hard issues that local authorities fall out over, particularly housing? My noble friend Lord Beecham instanced such a situation. This is an issue because there is at best a weak incentive for local planning authorities and others to comply with the duty, which is why I support the attempt of the noble Lord, Lord Greaves, in Amendment 147P to get a quasi-appeal process embedded in the arrangements.
Compliance with the duty is tested when the Planning Inspectorate takes a view on whether the local development plan is sound. It is therefore judged in retrospect. Will the Minister say more about how it is all to work? Take housing, for example. One local authority may have a need for housing that it cannot accommodate within its boundaries but which it believes could be provided in a neighbouring authority. That is not a unique situation; it is certainly one that we face locally in Luton. There might be genuine engagement around the issue but a difference of view about whether the needs should be met. The local authority with capacity might choose to accommodate the housing need of another adjoining local planning authority, or it might wish to use the capacity for a form of development that would not particularly help the restricted authority.
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Is the independent examination required by Section 20 of the 2004 Act going to take a view on whether the outcome of the engagement is fair, reasonable or the most appropriate, or is it simply going to take a view on whether there has been an engagement but no meeting of minds, with the duty nevertheless satisfied? Is it not the case that there will be no mechanism in law that can require one local authority to take housing pressures generated by a neighbour? I accept the point that has been made that in many cases local authorities readily co-operate and these issues will not arise in practice, but that is not the case universally. There are real issues that the Government have to answer regarding the duty to co-operate.
We know that there is no spatial boundary and no clear relationship with LEPs, a point that has been raised by a couple of noble Lords. There is no list of key issues that co-operation should include, no key plan or outcome of the suggested co-operation. Our approach will be to support all the amendments that address these shortcomings wholly or in part, and I believe that that is the thrust of pretty much every amendment in this group, particularly those promulgated by the noble Lord, Lord Greaves.
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