Previous Section Back to Table of Contents Lords Hansard Home Page

The noble Lord, Lord Stephen, went into more detail than he did on the previous occasion about the thought processes that informed the minds of those

26 Mar 2012 : Column 1213

who were at the heart of the Labour and Liberal Democrat Scottish Executive that introduced the concept of differential fees and subsequently increased the cap on them. I listened carefully to the noble Lord and, because I have another source of confirmation, I absolutely do not doubt that legal advice informed that decision. However, in the end, whatever the legal advice was about the interaction between European law, domestic UK law and the plans and priorities of the Scottish Government, they were political decisions. These priorities are political decisions. The Scottish Executive then and the Scottish Government now could readjust their spending and say that this is a priority. For example, they could be persuaded by the arguments put forward by my noble friend Lord McFall and say, "In the interests of Scotland in the United Kingdom, we should invest more in the higher education of our young people. If we are to compete in the world, we need to compete with the kind of education that young people around the world are getting in the areas of engineering, science or whatever". These are political policy decisions and we need to take responsibility for them.

As I say, in Committee we had the benefit of the history of this policy. We know that differential fees have existed since 2001, that they were revised in 2006 and again by the current Scottish Government in 2011. Those of us who received the briefing note from Universities Scotland will have read its take on this history. It sets out why there was a significant change at the point when the rest of the UK decided to substantially increase student fees and the effect that that had on the thinking of the Scottish Government and the universities. What interests me on listening to the noble Lord, Lord Sutherland, in particular, and reading the briefing note, is that no one really wants to take positive ownership of the consequences that young people across the United Kingdom live with if they are from England, Wales or Northern Ireland and want to be educated in Scotland at the higher education level. Nobody seems to be happy with them.

Paragraph 3 on page 2 of the Universities Scotland briefing paper states that it should also make clear that the Scottish Government Cabinet Secretary for Education has made plain that this is not his preferred way forward but, in line with universities-it speaks for universities but it appears that it is not the only group to speak for them-he believes it to be necessary given the scale of change in the rest of the UK. So it may be a bit like the way in which the noble Lord, Lord Forsyth, is briefed about the fact that we cannot seem to get the Scotland Bill down for a day in which we start and end at the time we are supposed to. Everybody blames each other and no one seems to take ownership of the situation.

What seems absolutely certain, however, is that we have allowed the differential fee to persist for over 10 years.

Lord Steel of Aikwood: It has got worse.

Lord Browne of Ladyton: That is the point: it has got worse. It has got worse now after 11 years and the answer appears to be that we will impose a solution by amending the Scotland Bill because we have the Scotland

26 Mar 2012 : Column 1214

Bill before us. The noble Lord, Lord Forsyth, shakes his head. I am sure that is not what he intends but that is what we are doing. From what I can gather having listened carefully to what noble Lords have contributed, those who were involved in decision-making and those who have been party to the process, we are doing this without any attempt to try to get what a number of noble Lords, including the noble Lord, Lord Sutherland, the noble Lord, Lord Empey, and others, have called for, which is a discussion across the United Kingdom to see if we can resolve this issue. Everyone's briefing appears to be that we have been put into this position because of the activities of others and these are the consequences.

Lord Forsyth of Drumlean: The noble Lord, Lord Stephen, made an important point in his speech which I do not think is appreciated. We have been using the term fees but there are two issues here: one is fees and the other is the teaching grant. The fees have been of the order of £1,800 per head; the teaching grant has been £5,800. I understand the noble Lord's problem in that he feels that his colleagues may have played a part, but when the noble Lord, Lord Stephen, and his Labour colleagues decided on this, the issue was the fees of £1,800. The £5,800 per place taken by rest of UK students has been paid every year up until now. It is only next year that that money is being taken away. That is the £28 million that the noble Lord, Lord Sutherland, is discussing.

The Scottish Government have changed the position and the numbers are very much larger. They have used opportunistically the position where students are going to have to pay high fees in England to turn the rest of the UK students into a cash cow for the universities. That is where the change has occurred and why my noble friend Lord Steel says it has got much worse.

Lord Browne of Ladyton: I appreciate that it has got much worse but the catalyst was a similar action by the coalition Government in that in England they transferred the burden from the public purse to the student. It was a similar action. This is not the place to debate whether student fees in a particular place are right. In the context of devolution, the debate is about whether it is appropriate for your Lordships' House to impose on the Scottish Parliament an obligation, or a restriction, on a power that they have been exercising in a particular way for the best part of 10 years, when no attempt has been made to have a serious cross-UK discussion about the situation to see whether it can be resolved.

Lord Foulkes of Cumnock: I am not going to argue that ultimately this Parliament can decide anything it wishes in relation to any part of the United Kingdom. I certainly would not argue that because I respect devolution and was a great advocate for it. Could my noble friend deal with the point raised by the noble Lord, Lord Selkirk of Douglas, about discrimination. Discrimination is still a matter for the United Kingdom Parliament-it is a reserved area-and is it not overwhelmingly an issue of discrimination that has been raised today?

Lord Browne of Ladyton: I am happy to deal with that point, but I will deal with it directly by responding to my noble friend on this issue. My noble friend was a

26 Mar 2012 : Column 1215

Member of the Scottish Parliament for four years, during all of which time the Executive of that Parliament had the differential fee. I am not aware of my noble friend at any stage during his time in that Parliament raising this issue as one of discrimination against students from England, Wales and Northern Ireland or suggesting that something should be done-where the power lay, and where it was created.

Lord Foulkes of Cumnock: I shall answer my noble friend's question and I hope that he will answer mine. It never came up specifically as an issue. My noble friend needs to take account of the point raised by the noble Lord, Lord Steel, that we are talking about an issue entirely different in scale. As the noble Lord, Lord O'Neill of Clackmannan, said in relation to the National Gallery of Scotland-can you imagine that gallery saying, "Are you Scottish? You can come in free". If the gallery had then asked an English person to pay £1, they might have said, "Okay, it's only £1". But imagine that they were asked for £10, £20 or £30-that is the kind of scale that we are talking about. It would be entirely wrong, and this is the same principle. It is discrimination.

Lord Browne of Ladyton: It is discrimination, but I do not think that a little discrimination is any better than a lot of discrimination. The fact of the matter is that there has been discrimination for 10 years, and we have established in this debate that no serious attempt has been made across the United Kingdom to deal with it.

I will deal directly with the point raised by the noble Lord, Lord Selkirk. There is an argument, and I am attracted by it, that we reserved to this Parliament the right to deal with issues of discrimination and that, as a matter of law, we can deal with it here. I am not learned enough in the law in this area to know whether that is so, but as a matter of law, in terms of devolution, we can deal with anything; we are the sovereign Parliament. We do not need to rely on the reserved area to claim our right to deal with it-we can deal with anything.

This is politics and we are doing this in the context of probably the greatest challenge that the union of the United Kingdom has faced in any of our lifetimes. Those of us who believe in this union are trying to manage a difficult political situation in which all of the parties represented in the Scottish Parliament have their DNA in this discrimination to some extent. I exclude the noble Lord, Lord Pearson, from that. We now decide in an entirely opportunistic way-encouraged, as the noble Lord, Lord Forsyth, points out, by the nature and the scale of the discrimination-to deal with it by imposing these conditions.

And when do we do it? We do it at a time when a Government Minister can come to the Dispatch Box and say that they have just negotiated a legislative consent motion to deliver this Scotland Bill, which is the policy of all our parties after weeks if not months of negotiation. We are just at the point where we can do something that can ensure that all the negotiations and discussions are wasted. We are back to square one again, back into confrontation and back into giving those who lead the Scottish Government the script

26 Mar 2012 : Column 1216

that they want: that the unelected House of Lords has told the people of Scotland what they can do. They will say, "They give us devolution with one hand and then take it away. They let us use it for 10 years and then, when we use it in a way that they don't like, they take it away. That is exactly why we need to be independent of these people". This is bad politics in my view.

There is a way forward. We should accept all of our responsibilities for the situation that has been created by the actions and the interactions of the Government at the UK level with the history that was left to the nationalists when they became the Scottish Government and the challenge that they faced in terms of university funding. We should sit down together and try to resolve the situation-not in the interests of whether we have the right to impose this but in the interests of the young people whom we want to live, work and be educated together for the benefit of the United Kingdom. That seems a much more sensible way of dealing with the situation, rather than trooping through the Lobbies tonight and making a point which will be to the detriment of the issue that most of us feel passionately about-the preservation of the union.

8.45 pm

The other point is that, because we have the benefit not only of the briefing of Universities Scotland but the benefit of the contributions to this debate from the noble Lords, Lord Sutherland and Lord Vallance, we are not in a position, other than by assertion, to say what the consequences of our decision, should we choose to support the noble Lord, Lord Forsyth, in his Division, will be on the students who are expecting to go to Scottish universities this year or on the funding and future of those universities. There seems to be enough doubt about that that we have to be very careful that the combination of these two amendments, which the noble Lord, Lord Forsyth, has ingeniously put together, will resolve this and not cause the problems that four pages of briefing from Universities Scotland tell us about. I may not be in a position to make the arguments as to which is right, but there is enough doubt in my mind that I am not prepared to change the status quo, because I am persuaded by an argument that, emotionally, I think is right.

Finally, I say to my noble friend Lord Foulkes, whom I respect enormously, that this is not a free vote as far as we are concerned. We support the maintenance of the status quo. I am happy to support a call for both the Government of the United Kingdom and the Scottish Government to try to resolve this, but this is not a free vote. This is a whipped vote, as far as our party is concerned.

Lord Foulkes of Cumnock: I wonder if my noble friend could explain why I got a text saying, "Whip off".

Lord Browne of Ladyton: My noble friend is an experienced Member of this House and has been a Member of other parliaments. I understand this position, and I think that he should understand the position, too. The Opposition Benches are voting against this amendment. He is not obliged to vote.

26 Mar 2012 : Column 1217

Lord Wallace of Tankerness: My Lords, once again, as we did in Committee, we have had a passionate debate. As I think the noble Lord, Lord Browne, said in his closing comments, it has been a debate where clearly there is a strong emotional sense that what happens at the moment is not right. I want to salute my noble friend Lord Forsyth for the tenacity with which he has pursued this issue. I indicated in Committee that I certainly would reflect on the strong views expressed then. As I said, my officials and I have engaged with the Department for Business, Innovation and Skills, and indeed with Universities Scotland. These are discussions to see if we could identify some way to resolve this problem rather than just accept an anomaly that we must live with, as my noble friend Lord Vallance said.

Lord Gilbert: My Lords, I realise that it is normal to intervene towards the end of a Minister's remarks, but I think on this occasion it is rather more helpful to intervene at the beginning. What I would like to know is: when are we going to have the dinner break?

Lord Wallace of Tankerness: I probably share the noble Lord's feelings on this. For that reason, I think it is only right that I do proper justice to the many comments that have been made; but I will try to do so as concisely as possible so that we can proceed. I accept and I have heard again the strictures that have been made about the timing.

As was expressed very clearly by the noble Lord, Lord Empey, today we are debating an issue caused by the fact that higher education is devolved across the United Kingdom.

This UK Parliament is responsible for higher education in England, in Scotland the Scottish Government are responsible, in Wales the Welsh Assembly has responsibility and in Northern Ireland the Northern Ireland Executive has responsibility. All four countries in the UK have chosen to fund higher education in different ways. Because of EU law, and my noble friends Lord Stephen and Lady Brinton have both explained the limitations of what is permitted under EU law, non-UK EU students in universities in the UK are entitled to the same financial support regarding tuition fees as local students. We recognise, and perhaps this is common ground, that our challenge is to ensure access to university education and to ensure the quality of that education.

A point that I should make at the beginning, and I will deal with this in a little more detail as I proceed, is that English students attending Scottish universities should be no worse off than English students attending English universities as a result of the present arrangements. The latest figures from UCAS at 21 February this year, compared with the same date a year earlier, show that as a proportion of the total number of applicants so far, prospective English students have not been put off from applying to Scottish universities. In both years, 5 per cent of the total population of applicants have applied to a Scottish university. That is a circumstance where the English students are aware that they would be no worse off if they choose to attend a university in Scotland than if they went to a university in another part of the UK.

26 Mar 2012 : Column 1218

I do not want to open this up into a wider debate on tuition fees but the noble Lord, Lord Browne, indicated that part of the Scottish Government's response to the UK Government deciding that, to ensure the long-term sustainability of higher education, tuition fees were to be increased was that the Scottish Government had decided to fund undergraduate tuition fees for Scottish students and directly fund Scottish universities, which are therefore able to charge students from the rest of the UK up to £9,000 a year. This means that attending university in Scotland, as I have said, should be no more expensive per year for an English student than for an English student attending a university in England. Indeed, as university courses in Scotland are typically four years long, many Scottish universities have committed to charging students from the rest of the UK a maximum of £27,000 for a four-year course-the same as the maximum fee that students would pay for a three-year course in England.

The fee, however, is only one part of the equation of student finance. The universities of Edinburgh and St Andrews, which have not capped for a four-year course, have both committed to providing generous bursaries to students from the rest of the UK. Little has been said in today's debates about that aspect of student finance. Edinburgh University is offering bursaries of up to £7,000 a year to the least well-off English students, which they can use either to reduce their fees or to help them with their living costs. St Andrews University will be topping up support for all English students who qualify for a maintenance grant so that they will receive no less than £7,500 a year in total government and bursary support.

That is why I do not recognise what the noble Lord, Lord O'Neill, said about only the very rich paying up-front fees. It is not a question of up-front fees; for English students in England or Scotland, the loans that cover the fees do not start to be repaid until they are earning at least £21,000 a year.

Lord O'Neill of Clackmannan: How many students are likely to benefit from these awards? The noble Lord, Lord Sutherland, has already made the point about the generosity of the Edinburgh settlement, but what we have not heard today is how many students will be eligible to apply and therefore benefit from such a generous scheme, which I freely acknowledge it is.

Lord Wallace of Tankerness: My Lords, I cannot give the full figures at the moment but the position is that all Scottish universities have announced their proposed fees for the rest of the United Kingdom, and the average per annum is £6,841. Work undertaken by Universities Scotland and accepted by NUS Scotland shows that this drops to an estimated £6,270 fee after means-tested bursary support is accounted for. In England, the average per-annum fee is £8,470, dropping to £7,815 when fee waivers, bursaries and student support are taken into account. Over the totality, the average in Scotland is certainly less. Universities Scotland has indicated that the average fee paid by students in receipt of means-tested bursaries-an estimated 4,281 students based on current populations-would be £4,262. Many will pay significantly less than this, with around

26 Mar 2012 : Column 1219

25 per cent of all English students studying in Scotland expected to benefit. That is an indication of the average. When one takes bursaries and fee waivers into account for English students studying in Scotland, it would be less than would be the case for English students studying in England.

Lord O'Neill of Clackmannan: I am grateful to the Minister for the breadth of his answer. But he did not actually answer the question I wanted: the number of students. It is 25 per cent of how many? I realise that it is a considerable improvement and a generous offer, but we still need to know what the numbers are. We know that three times as many students coming to Scotland will not be getting any of these generous endowments, but the other 75 per cent do not need them.

Lord Wallace of Tankerness: My Lords, I am afraid that I do not have the figures for each university institution. One does not really know until the applications are in and turned into acceptances. However, I hope that I have indicated that the average will be less in Scotland, taking into account bursaries. It is also important to point out that the United Kingdom Government provide support to English students. Some may say that it is more generous than the support provided to Scottish students by the Scottish Government in terms of living support. In that situation, English students are entitled to a loan for the full cost of their tuition fees, regardless of where in the United Kingdom they study. This loan is not repayable until students have left university and are earning over £21,000, and even then, at only 9 per cent of earnings over £21,000.

To help with living costs, English students are also entitled to a maintenance loan of up to £5,500 and a grant of up to £3,250. All students are entitled to a loan of at least £3,575 regardless of their household income; and English students will receive a larger amount of maintenance grant compared to Scottish students with the same household income. So if one accepts my noble friend's amendment in terms of fees, the concern would be that you can equalise fees, but would still have a considerable disparity in student finance and funding. That is because of the more generous arrangements that the United Kingdom Government have made for English students as compared with the arrangements the Scottish Government have made for Scottish students.

My noble friend Lord Forsyth said that students from England would be burdened by substantial debts because they came to a Scottish university. However, the truth is that they would have no greater debt-and arguably a lesser debt-coming to a Scottish university than they would if they went to one in England. That is a relevant point. The noble Lord, Lord Sutherland, acknowledged the fact that bursaries had been made available.

We have tried to look at the possible outcomes of my noble friend's amendment and we have identified three. First, Scottish universities could begin charging tuition fees to European Union students. We believe that this would be a breach of European Union law and could place the United Kingdom, as a member state, in danger of infraction proceedings. Secondly,

26 Mar 2012 : Column 1220

Scottish universities could charge Scottish students and therefore also EU students, tuition fees. Thirdly, Scottish universities could stop charging tuition fees to students from the rest of the United Kingdom.

Lord Forsyth of Drumlean: That's it. That is the one.

Lord Wallace of Tankerness: My noble friend has indicated which one of the three he favours. I do not think that anyone has actually suggested that we breach European Union law, although the noble Lord, Lord Empey, said that at the heart of that is where the problem lies. If one accepts a devolution settlement across the United Kingdom, it will produce different outcomes in different places.

9 pm

Lord Pearson of Rannoch: Is the noble and learned Lord aware that there is no way, under European treaties, that a country can be forced to pay a European Union fine?

Lord Wallace of Tankerness: My Lords, I am not going to embark on a lengthy debate on the pros and cons of the European Union. As the noble Lord, Lord Empey, said-as did many noble Lords who have contributed to this debate-the problem is that if a student comes from Scunthorpe they are charged a fee; if they come from Bratislava they are not. I am certainly prepared to look at whether that European Union problem can be addressed, but I do not to wish to raise any expectation or hope that it can be. It is a piece of legislation that is very firmly in the European Union rules and directives. The Scottish Government have indicated they want to examine it and I am sure we would be prepared to examine it along with them, but I say that without offering a hope that it is likely to be changed.

My noble friend clearly indicated that his preference would be for Scottish universities not to charge students from any part of the United Kingdom. It is our view that that would not be financially sustainable. My noble friend suggested that it would be £24 million in the first year, but of course as one year succeeded another that would be a cumulative amount. The United Kingdom Government have come to the decision that in order to guarantee the long-term financial stability of universities, it is necessary to require students to make a greater contribution to the cost of their higher education. It would be unreasonable and unrealistic to expect the Scottish Government to fund free higher education for students from all parts of the United Kingdom, and in the long term it would be damaging to Scottish universities and their ability to compete with other universities in the UK and worldwide, which potentially have much greater financial resources available to them.

Lord Empey: As I said earlier, the issue for me is not the minutiae of the individual operation of devolution in each region-even though we are on the Scotland Bill and the amendment specifically applies to Scotland-it is that there is a difference in treatment between a non-UK EU citizen and a UK EU citizen. Will the

26 Mar 2012 : Column 1221

Minister give the House an undertaking that he will speak to his ministerial colleagues and perhaps come back to us at a later stage? The issue of how many bursaries we are getting and so on is missing the point. We are not here to examine the entrails of higher education funding in the regions; we are trying to deal with the feeling in the House that we do not like this idea of UK students being treated in this way as opposed to EU students, when UK students are UK students. That is the issue.

Lord Wallace of Tankerness: My Lords, I hope that I represented what the noble Lord said, that that is the point, and that is why there is such concern. It is a point that my noble friend Lord Stephen made with regard to the strong misgivings that the Scottish Executive had back in 2000 in having to go down this course. It had to acknowledge that if we went down this course of free tuition fees for Scottish-domiciled students attending Scottish universities, the consequence would be that students from European Union countries attending Scottish universities would have to be treated on the same basis. In Committee, I said that I was then a Member of the Scottish Government and that although it was not something we particularly wanted to do, it was a consequence that we had to accept, however reluctantly, if we wished to bring in a policy of free tuition for Scottish-domiciled students.

I indicated that I am more than willing to look at whether there is a way of resolving this at a European Union level but I do not wish to mislead the noble Lord or the House into believing that there is a realistic prospect of that happening, certainly before Third Reading. It is something that is so deep within the relevant directive that it would be a significant mountain to climb-although I know my noble friend Lord Forsyth is quite good at climbing significant mountains.

Lord Forsyth of Drumlean: But not in Europe.

Lord Wallace of Tankerness: But not in Europe.

Lord Empey: I was not expecting to resolve it at an EU level. I am asking whether we can try to resolve it at a UK level. It is in the UK that this differential has arisen.

Lord Wallace of Tankerness: My Lords, I apologise if I misunderstood the point. I think that the noble Lord, Lord Browne, also made the point about some sort of pan-UK discussion on this. I will ensure that that proposal is taken up by the Department for Business, Innovation and Skills. We will certainly relay it to the department, which will undoubtedly be in contact on an official level on a number of issues with those who deal with higher education in the devolved Administrations. Again, however, I should flag up the scale of the challenge of making progress if there is even one Administration who want free tuition and say that they will not change that until the rocks "melt with the sun"-I think that that was the quote. It is a reasonable request that that pan-UK discussion should take place.

26 Mar 2012 : Column 1222

Lord Wills: My Lords, as an Englishman, I was not going to contribute to this debate. However, having listened to it all, and listened to the Minister's response, I wonder if he could give the House an indication of whether he understands the damage that this situation is doing to the union. Does he understand that that is perhaps the most fundamental challenge at stake here?

Lord Wallace of Tankerness: My Lords, I understand that there is a serious issue here. As the noble Lord, Lord Browne, indicated, if we end up telling the Scottish Parliament what to do-my noble friend Lord Forsyth says that that is not what his amendment says but I think that, de facto, that is what it would lead to-that would be a serious position for the union, and it would undermine the whole devolution settlement. That is why I find this a difficult issue.

I think that my noble friend has, as the noble Lord said, totally underestimated the number of students who would seek to apply to Scottish universities. It only stands to reason that if you can get free tuition at the St Andrews university but would have to pay £9,000 at Durham, you are more likely to apply to St Andrews. The notion of quotas has never been particularly welcomed.

Lord Sutherland of Houndwood: I wonder whether the Minister remembers when this argument was last put forward. On that occasion we were, perhaps unusually, on opposite sides of the argument. I was recommending a form of care for the elderly, wrongly categorised as free, and one of the counterarguments was that there would be a-they did not use the word then-tsunami of pensioners crossing the border to Scotland. I think that it would have been more of a steady trickle which grew. It did not happen, although it was claimed that it would.

Lord Wallace of Tankerness: My Lords, it is too easy to dismiss the possibility of it happening. It is probably much easier for a student to choose which university he or she would wish to attend than for a pensioner completely to up sticks and settle in a different part of the United Kingdom. I think, with respect, that the noble Lord is not comparing like with like. However, I do recall that when tuition fees were first significantly increased by the then United Kingdom Government, around 2003 or 2004, the then Scottish Government had to respond to it. There were very clear signs that if the Scottish Parliament did not respond to it-and my noble friend Lord Stephen has indicated that it happened again in 2006-there would be an increase.

I should like to make it clear to the noble Lord, Lord Morgan, that I strongly believe that part of the richness of university education-one of its great pluses-is that it includes people from all different backgrounds. Universities in Scotland would certainly take the view that it is important that there should continue to be students not just from other parts of the United Kingdom but from other parts of the European Union and from around the world. That adds to the richness of a university education. They seek to achieve a manageable flow of students from the rest of the United Kingdom which would ensure the long-term stability of universities in Scotland.

26 Mar 2012 : Column 1223

Lord Sewel: I thank the Minister for giving way. I put it to him that the noble Lord, Lord Empey, has spoken for virtually the whole House in explaining the deep bitterness that people feel about the EU anomaly. In discussions with the First Minister, has the Minister or any of his colleagues pointed out to the First Minister that if he was successful in achieving his primary political policy objective, which is independence, then all these arguments would fall away? There would be the opportunity for English domiciled students to go to Scotland and there would be no way in which a Scottish Parliament would be able to impose a differential fee. Has the Minister pointed that out to the First Minister?

Lord Wallace of Tankerness: I have not pointed it out personally but, frankly, it is not the best argument for the case that the noble Lord has been prosecuting. He certainly does not wish to see an independent Scotland; neither does my noble friend Lord Forsyth or anyone who has spoken in this debate. The argument that this will all be the consequence of an independent Scotland is perhaps one argument for why we should resist an independent Scotland.

Lord Sewel: I just hoped that there was at least the glimmer and possibility of consistency.

Lord Wallace of Tankerness: My Lords, I am not sure that I follow that. What about the consistency of Mr Salmond's position? I have to answer for a number of things in your Lordships' House but, fortunately, I do not have to answer for Mr Salmond.

I agree with the comment that the noble Lord, Lord Empey, has encapsulated what the problem is. There are differential solutions around the United Kingdom-Northern Ireland charges £9,000-so simply to adopt this amendment would not solve the problem across the country. I do not believe that the Bill is the right place to address this. I have indicated that we are prepared to look at the European Union dimension and that we are more than willing to engage with the different Administrations. I just do not want to suggest to your Lordships' House that this matter can be resolved easily; it would be wrong to suggest that. Even if one does not accept the word "tsunami", the consequences, which could include a complete disruption of the Scottish higher education system, are sufficiently uncertain for it not to be a risk that we can take. Even allowing for one year's grace, the problems would still arise in subsequent years. Therefore, I urge my noble friend to withdraw his amendment.

Lord Forsyth of Drumlean: My Lords, I am most grateful to everyone who has spoken in a very interesting debate. Given the lateness of the hour, I am sure noble Lords do not want me to respond to all the points or to repeat any of the arguments. I am very impressed by the argument from the Labour Party's Front Bench that if something has been going on for 10 years, you should keep it. That seems a very conservative point of view to me.

In all the arguments about the practicalities and difficulties, all of which can be addressed and overcome, the overriding issue here is one of fairness. Why did I

26 Mar 2012 : Column 1224

table this amendment? I spent a week at St Andrews. I went there nearly 40 years ago and I have to say that the students now are much harder working and much more focused than they were in my day. They are absolutely outraged by what is happening to them. Those students have a much tougher time ahead of them than any of us in this House had when we left university. We owe it to them to address this problem.

I was not sure whether I would have to press this matter to a vote tonight. However, I have to say to my noble and learned friend that we debated this in Committee, when I urged him to raise it with the Prime Minister and his colleagues. Perhaps this was said in confidence and I should not repeat it, but one of his ministerial colleagues in the Scottish Office called me today to say, "How can we help you with the Scotland Bill?". I said, "You can help me by accepting my amendment, or at least giving some commitment. What is your position on student fees?". He said, "We're waiting to see what the strength of opinion is". On that basis, I beg leave to test the opinion of the House.

9.13 pm

Division on Amendment 1A

Contents 72; Not-Contents 151.

Amendment 1A disagreed.

Division No. 2


Aberdare, L.
Adams of Craigielea, B.
Armstrong of Ilminster, L.
Baker of Dorking, L.
Bew, L.
Bilston, L.
Browne of Belmont, L.
Caithness, E.
Campbell-Savours, L.
Carter of Coles, L.
Corston, B.
Crickhowell, L.
Dean of Thornton-le-Fylde, B.
Deech, B.
Donoughue, L.
Dundee, E.
Elder, L.
Empey, L.
Evans of Parkside, L.
Finlay of Llandaff, B.
Flight, L.
Forsyth of Drumlean, L.
Foulkes of Cumnock, L. [Teller]
Fraser of Carmyllie, L.
Gordon of Strathblane, L.
Hodgson of Astley Abbotts, L.
Hollins, B.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hunt of Chesterton, L.
Jay of Ewelme, L.
Jordan, L.
Judd, L.
King of Bridgwater, L.
Lang of Monkton, L.
Liddell of Coatdyke, B.
Low of Dalston, L.
Lyell, L. [Teller]
McFall of Alcluith, L.
MacGregor of Pulham Market, L.
MacKenzie of Culkein, L.
Mancroft, L.
Maples, L.
Marlesford, L.
Masham of Ilton, B.
Maxton, L.
Morgan, L.
Noakes, B.
O'Neill of Bengarve, B.
O'Neill of Clackmannan, L.
Palmer, L.
Pearson of Rannoch, L.
Prescott, L.
Prosser, B.
Puttnam, L.
Rea, L.
Richard, L.
Risby, L.
Roberts of Conwy, L.
Rogan, L.
Rowe-Beddoe, L.
St John of Bletso, L.
Saltoun of Abernethy, Ly.
Selborne, E.
Selsdon, L.
Soley, L.

26 Mar 2012 : Column 1225

Stoddart of Swindon, L.
Sutherland of Houndwood, L.
Trenchard, V.
Tugendhat, L.
Ullswater, V.
Wills, L.


Addington, L.
Alderdice, L.
Anelay of St Johns, B. [Teller]
Astor of Hever, L.
Attlee, E.
Barker, B.
Bates, L.
Beecham, L.
Berkeley, L.
Berridge, B.
Black of Brentwood, L.
Boswell of Aynho, L.
Boyd of Duncansby, L.
Brinton, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browne of Ladyton, L.
Burnett, L.
Butler-Sloss, B.
Cameron of Lochbroom, L.
Cathcart, E.
Chester, Bp.
Chidgey, L.
Colwyn, L.
Cope of Berkeley, L.
Cormack, L.
Cotter, L.
De Mauley, L.
Dholakia, L.
Dykes, L.
Eaton, B.
Falkner of Margravine, B.
Fookes, B.
Framlingham, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
German, L.
Gold, L.
Goodlad, L.
Grantchester, L.
Grey-Thompson, B.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Peckham, L.
Harris of Richmond, B.
Henley, L.
Heyhoe Flint, B.
Hill of Oareford, L.
Hooper, B.
Howe, E.
Howell of Guildford, L.
Hunt of Kings Heath, L.
Hunt of Wirral, L.
Hussain, L.
Hussein-Ece, B.
Jenkin of Roding, L.
Jolly, B.
Kennedy of Southwark, L.
Kirkham, L.
Kirkhill, L.
Kirkwood of Kirkhope, L.
Knight of Weymouth, L.
Kramer, B.
Lee of Trafford, L.
Lexden, L.
Liddle, L.
Lindsay, E.
Lingfield, L.
Linklater of Butterstone, B.
Loomba, L.
McAvoy, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Mawson, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Montrose, D.
Morris of Bolton, B.
Newby, L.
Northover, B.
Norton of Louth, L.
Palmer of Childs Hill, L.
Parekh, L.
Patel, L.
Perry of Southwark, B.
Randerson, B.
Rawlings, B.
Rennard, L.
Roberts of Llandudno, L.
Royall of Blaisdon, B.
Sassoon, L.
Seccombe, B.
Selkirk of Douglas, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharples, B.
Sheikh, L.
Shephard of Northwold, B.
Sherlock, B.
Shipley, L.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Simon, V.
Skelmersdale, L.
Smith of Basildon, B.
Smith of Clifton, L.
Stedman-Scott, B.
Steel of Aikwood, L.
Stephen, L.
Stevenson of Balmacara, L.
Stewartby, L.
Stone of Blackheath, L.
Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
Strasburger, L.
Taylor of Goss Moor, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Winchester, B.
Tunnicliffe, L.
Tyler, L.
Tyler of Enfield, B.
Vallance of Tummel, L.
Verma, B.
Wade of Chorlton, L.
Waldegrave of North Hill, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.

26 Mar 2012 : Column 1226

Warsi, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Wei, L.
Wigley, L.
Wilcox, B.
Wilson of Tillyorn, L.
Young of Norwood Green, L.
Young of Old Scone, B.
Younger of Leckie, V.
9.24 pm

Baroness Rawlings: My Lords, I beg to move that further consideration on Report be now adjourned. In doing so, may I tell the House that we shall not be having the Statement and suggest that Report should begin again not earlier than 10.25 pm?

Lord Steel of Aikwood: My Lords, I would like to protest at what is being proposed. It is quite ridiculous that on a Bill of this importance we should be asked to come back. We now have the debate of the noble Baroness, Lady Deech, which will take us to nearly 10.30 pm. It cannot seriously be proposed that we should continue from 10.30 pm until we get to Amendment 26, as it says on the Order Paper, from 10.30 pm. I gave notice that I was going to object when this Motion was moved. I gave notice several hours ago that we wanted to hear from the Government about what they proposed to do with the rest of Report.

Baroness Anelay of St Johns: My Lords, something has clearly gone wrong in the transmission because I was not aware that my noble friend was going to make that comment. I know that all those taking part in debate on the Scotland Bill consider it important, as does the rest of the House that may be listening to it. It is a usual channels agreement that the Bill will be concluded by the end of Wednesday evening. We discussed this earlier and that commitment remains. There will be a discussion later among the usual channels about what progress should be made tonight. I am aware that we have just taken two hours on one amendment. That was an amendment very dear to the hearts of those who took part in it, but the overall time allocated to Report was agreed and the intention is to keep to the agreement that Report should be concluded at the end of the Wednesday sitting. As I say, we will shortly be discussing in the usual channels what the last amendment to be considered tonight shall be.

Lord Foulkes of Cumnock: My Lords, this Bill has been treated abominably at all stages. On one occasion all of us sat around all day-afternoon and evening-while the welfare Bill went on and on and on. We were led to believe by the government Chief Whip that the Scotland Bill would be taken that day. Then we were told summarily: "You can go, off you go", as if it was of little concern that the Bill was being dealt with in such a way. It is outrageous. We were then told that we would have the day's debate today. When did we start? Not until the evening, after a very substantial, albeit important, debate. I am not saying that the debates that took place earlier were not important-but so is the Scotland Bill. It is outrageous that we should be dealt with in such a way.

Baroness Anelay of St Johns: My Lords, the noble Lord is good at perorations. I will simply keep to the facts. I had intended that the Scotland Bill should

26 Mar 2012 : Column 1227

start today, as first business. The Opposition decided that they wished to have the other debates before it. The House therefore had those debates. I agree that the Scotland Bill was very much disaccommodated by this. It might be convenient if the House were able to listen to me. I know that the noble Lord, Lord Foulkes, likes interventions, but I wish to conclude what I am saying, which is that it was very difficult on the first day for those waiting for the Scotland Bill because of the time taken by the Welfare Reform Bill. I object to the implication-the clear indication, in fact-that I cared nothing for the Scotland Bill that day. I did care, and we found another date for the Scotland Bill. It is the view of the usual channels that we should continue with this. If the noble Lord, Lord Foulkes, wishes to say more he can, but it is a courtesy in this House to let one Member finish speaking before the next gets up.

Lord Foulkes of Cumnock: The government Chief Whip says that I like interventions. It was I who was speaking and she who intervened. This is the way that we have been treated all the way through the Bill. Over the weekend, I found out that we were going to have an extra week of recess. In that week we could have carried out proper consideration of the Bill. As was pointed out earlier, we did not have the proper time between Committee and Report. We are being treated abominably and it is absolutely disgraceful. The government Chief Whip should realise that it is not the Opposition's responsibility to programme business in this House; it is the Government's responsibility and it is her responsibility, and she should take the blame as well as the credit.

Baroness Deech: My Lords, I suggest that the valuable time of the House would be better used by allowing me to have my dinner break debate and then using such time as is left at noble Lords' discretion.

Lord Forsyth of Drumlean: My Lords, I certainly do not want to impose on the patience of the noble Baroness, Lady Deech. I must say to my noble friend the Chief Whip that her treatment of Members of this House is becoming very difficult to defend. I watch noble Lords' facial expressions. We were promised a full day on Report after Committee finished in the middle of last week. We had to struggle to table amendments. We were promised a full day today and a full day on Wednesday.

The next amendment, Amendment 2, is mine, which I am expected to speak to at 10.20 pm. If we are to get to Amendment 26, we will be here until the early hours of the morning. There is plenty of time on Wednesday to debate these matters, which are serious matters and deserve to be properly debated. It is true that we had a long debate on the previous set of amendments, but that was because many Members who had not been following our proceedings came in to speak because it affects their interests all over the United Kingdom. My noble friend is treating us very harshly indeed, and I do not believe that that is the best way to get the Government's business on to the statute book.

Motion agreed.

Consideration on Report adjourned.

26 Mar 2012 : Column 1228

Terezin Declaration: Holocaust Era Assets

Question for Short Debate

9.31 pm

Asked by Baroness Deech

Baroness Deech: My Lords, I start with a quote from Bazyler:

"Holocaust restitution is not about money. It is about victims. It is about individuals who have waited for over 60 years for something. Of course, it is not about perfect justice, but it is about waiting for some recognition to validate the misdeeds that have been perpetrated. . . Holocaust restitution is not only about the victims. It is also about those who victimized. It is about satisfying the need for a moral accounting regarding the horrific events of the second world war and some of the communist depradations thereafter".

The trauma of human loss was so great that no discussion of material loss occurred for decades after the war. Only the Germans made reparations for about 50 years from 1945, to their credit. With the end of the Cold War and the collapse of communist regimes, not only did walls fall, but doors were opened to memories, to archives, to litigation and legislation, to honest property titles supported by law, to negotiation and to the facing up to the unresolved issues of the past. There is unfinished business, and sadly those most affected, the survivors, are now in their 90s, and for decades have been frustrated in their relatively modest aims. I feel a personal responsibility for them and for those for whom it is too late, and I declare an interest as a descendant of those from whom property was taken, although I am uncertain about title and the possibilities of claim because I have no way to ascertain ownership and sale.

There has been a series of conferences on restitution, culminating in the conference that resulted in the Terezin declaration, the 2009 Prague conference on holocaust era assets. Adopted by 47 countries, including the UK, the declaration called for participating states to meet the social and medical needs of the half a million survivors, of whom half are on the poverty line; it called for the restitution of wrongful property seizures, forced sales and sales under duress in the Nazi period; it called for the identification and restitution of cultural property seized by the Nazis; and it called for open access to archival material, the preservation of memorials and for measures to combat anti-Semitism.

In 2010, there was a follow-up conference, which produced guidelines relating to best practice in property restitution, the most intractable problem. Solution would remove the cloud that hangs over the title to many properties in eastern Europe. The guidelines apply to communal and personal property and state that the compensation process should be accessible, simple, expeditious, avoid residency and other onerous requirements, and be of low cost. States should open their archives to assist in the proof of title, which should not be too onerous, while respecting the occupancy

26 Mar 2012 : Column 1229

rights of those who are current residents in good faith. Poland, which attended the Terezin conference, did not sign up to the guidelines.

The achievements in this field, even before Terezin, are considerable. There have been settlements of the issues relating to dormant bank accounts in Switzerland, and to unclaimed insurance benefits. There have been payments to former slave labourers, and there has been some restoration of communal religious property. The Czech Government have established the European Shoah Legacy Institute in Prague to supervise follow-up.

Some countries which had formerly neglected the topic have enacted, or are in the process of enacting, legislation for the return of or compensation for stolen property-they are Turkey, Latvia, Hungary, and Lithuania. The UK, to its great credit, enacted the Holocaust (Stolen Art) Restitution Act 2009, and the significant contribution of the noble Lord, Lord Janner, in taking this forward must be recognised. The checking of the provenance of artworks which might have changed hands in the Nazi period is now routine. The UK has also appointed the first envoy for post-Holocaust issues, the distinguished diplomat Sir Andrew Burns. In addition, the Wiener Library in London hosts, from 2011, the International Tracing Service, a digital record of 17.5 million people of the Holocaust. All those involved are deeply grateful to the UK for this move.

The Government of Israel were previously reluctant to get involved, and many of the survivors there felt that to accept any tainted money, as they saw it, was immoral. But they have now set up a database of half a million pieces of stolen property called Project Heart. The list was compiled from European archives, and the plan is to move to legal and public action to stimulate the co-operation of countries that have not done the right thing so far.

However, problems remain. Too many states only allow claims for property taken in too narrow a time band, require current citizenship, or place impossible evidentiary burdens on claimants, when of course they must know that those who were killed or fled did not preserve title deeds. The pursuit of legal action inside a foreign country is prohibitively difficult, and the European Court of Human Rights too slow.

The worst offender, however, is Poland. It remains the only major country in the former Soviet bloc and now in Europe that has no law providing for restitution or compensation for private property stolen during the Holocaust. Poland was home to 3.3 million Jews before the war, of whom 90 per cent were destroyed, leaving behind their homes. On 13 occasions there has been Polish draft legislation, the most recent abandoned this year. Restitution had been made a condition of Polish entry to the EU, but was dropped at the last minute due to the country's economic conditions. However, Poland is now one of the few European countries to have avoided the recession, and had a 4.3 per cent growth in GDP last year. This year Poland also abrogated the mechanism to facilitate the return of communal property seized by Nazi and communist decrees, before the work was finished.

26 Mar 2012 : Column 1230

We call on the UK Government to persuade Poland to participate in the 2012 conference on this topic, to disregard communist nationalisation of property seized by the Nazis, to assist in the creation and operation of a restitution mechanism, and to support the USA in its approaches to Poland.

The model restitution programme is that of Austria, which in 1938 forced Jewish property sales and forced Jews out of the professions. In 2001 Austria established a General Settlement Fund to resolve all remaining issues. The Austrian Government set up a three-person claims committee to receive claims, using relaxed standards of proof-for example, the 1938 property records, witness statements and birth certificates. The Austrians put $210 million into the fund, with extra for insurance claims. Claimants no longer had to take legal action at their own cost. The committee dealt with 20,000 claims relating to 240,000 individuals before closing its work. This model should be promoted by the UK Government for all outstanding eastern European issues. Archives need to be opened and an office has to help the elderly claimants with their research. I trust that this will be the UK's programme when it attends the conference this year.

Sharansky said that the Holocaust was not only genocide but the greatest theft in history. Justice is in sight if the UK will use its good offices to ensure the implementation of the Terezin declaration.

9.40 pm

Lord Boswell of Aynho: My Lords, I am delighted that the noble Baroness, Lady Deech, has so eloquently introduced this short debate on the restitution of property in claims arising from the Holocaust. The House will probably be aware that I have no direct interest in this matter, having neither Jewish faith nor heritage, but partly because of that position of disinterest I have involved myself over the years in a number of issues concerning anti-Semitism. Sadly, because of the diffuse nature of that discourse, one suspects that issues of that old evil tend to return, even in cases where, as the noble Baroness has reminded us, it is not simply Jewish property but other property that has been looted.

It could be argued that the wicked legacy of Nazism is not just the Holocaust, with the slaughter of 6 million Jews and other minorities who were not acceptable to the Hitler Government. It is of course never easy, and perhaps may not be tasteful, to put in the same frame crimes against people and crimes against property, but the Nazi era saw not jut mass slaughter but also mass confiscation. It is never possible to restore lives which have been lost or lives which have been spoiled for ever by the suffering that has been endured. However, it is possible to make some amends, however inadequate, for property which has been looted.

Since the fall of the Berlin Wall and as direct memories and survivors of the Holocaust have passed from the scene, we are beginning to take an interest, or renew and intensify our interest, in these property issues. We know now that there is looted property in many countries-whether documented or not and whether under the control of the official authorities or other communities-which could in principle still be restored

26 Mar 2012 : Column 1231

to the families of those from whom it was taken, whether they are Jewish or gentile. It is our duty in the modern world, if we claim to be based on liberal and modern values, to discharge this commitment.

Of course, survivors may be poor and they and often their families of that generation are bound to be frail, but, frankly, there is not very much time for our courts and bureaucracies to make acts of restitution in accordance with, for example, the Council of Europe resolution which bears directly on this for all member states. The noble Baroness reminded the House that in 2009 Britain signed the Terezin declaration, which reflected this new interest, passion and sense of urgency in getting the matter dealt with. Britain has acted on it and so, too, have other states which are in one sense perhaps more intimately concerned with this matter. Austria, for example, has set a standard of good practice. Others, frankly, have been more dilatory. I joined the noble Baroness and others recently in making representations to the Polish ambassador. We had a constructive, but not wholly satisfactory, discussion. I believe that that country-which did, of course, attend the Terezin conference-needs to do more than simply rely on individuals pursuing their own cases through the courts, elderly as many of them are. In a country with, sadly, so many property claims-by no means all of them arising from Jewish backgrounds-they need to provide for the systematic availability of their archives and for an office to pursue collective claims and, if possible, bring them to a conclusion.

We, in turn, as co-signatories to the Terezin declaration, need to undertake our own obligations. This is a matter of closure; it is a matter by which we can at least slightly mitigate one of the most disastrous chapters in history.

9.46 pm

Lord Wills: My Lords, I congratulate the noble Baroness, Lady Deech, on securing this debate on a subject that summons up the pain and tragedy endured by so many millions in Europe for so many years in the last century. The Terezin declaration by 46 European countries was an important step in healing wounds that remained from those terrible years. I speak as someone whose father lost close family in the Holocaust in Austria and in what was then Czechoslovakia. Nothing can undo the evil that was done, but restitution does at least recognise that evil was done. As the noble Baroness, Lady Deech, and the noble Lord, Lord Boswell, said, it is not so much the material recovery of property that matters as the recognition of-the bearing of witness to-the fact that such evil was done. Without it, it is difficult to see how there can be any closing of the books or any defining atonement.

Of course, the restitution of assets is not the only way for such recognition to take place. The German artist Gunter Demnig, for example, created the idea of Stolpersteine: small memorials positioned in places associated with victims of Nazism. There are now hundreds of them in Germany, Austria, the Czech Republic, Hungary and other European countries commemorating not just Jewish victims but Romany, homosexual and Christian victims of the Nazis, and many others as well.

26 Mar 2012 : Column 1232

Notwithstanding that, the restitution of assets has a crucial part to play in this process-and not just for the victims of the Nazis. The people of central and eastern Europe suffered not only from their tyranny but also from that of the communists. This country has a special relationship with Poland, which lies at the centre of this debate tonight; 35,000 Polish service personnel fought gallantly alongside us in the Second World War. More recently, thousands of Polish men and women have come to work in our service and manufacturing industries, making a significant contribution to economic growth in this country. It is regrettable that Poland appears to be the only post-communist European nation without legislation on the restitution of assets stolen by the Nazis and expropriated by the communists.

I am sure that everyone in your Lordships' House understands the suffering that Poland endured in the 20th century and how complex and difficult these issues are. Of course, we all recognise the economic problems with which Poland is struggling, along with every other country in Europe. However, when the Terezin declaration was made, all the signatories recognised such difficulties and other signatories have made progress with implementation despite experiencing problems similar to those in Poland. We must hope that Poland, too, can now finally make some real progress on this matter.

Her Majesty's Government showed the importance that they attach to these issues when nearly two years ago they appointed Sir Andrew Burns as the first envoy for post-Holocaust issues. I would be grateful if the Minister could update the House on the work that Sir Andrew has been doing since then. I would also be grateful if the Minister could set out what steps Her Majesty's Government are taking to encourage the implementation of the Terezin declaration by all signatories before the 70th anniversary of the end of World War Two in 2015. I understand that the Minister, as he has on previous occasions when this subject has come up in your Lordships' House, may well choose to withhold substantive comment until after the review conference on the declaration that is to be held later this year, but perhaps he could undertake now to report back to your Lordships' House on the outcome of that conference and set out what further steps Her Majesty's Government may think will then be necessary to ensure that all the signatories to the Terezin declaration implement its provisions by 2015.

Baroness Anelay of St Johns: My Lords, before my noble friend Lord Palmer rises to speak, since this is a self-regulating House and we may sometimes adopt different procedures, I can say that a great deal of understanding has broken out over the procedure to be adopted on the Scotland Bill. The usual channels have had a brief meeting and we have discussed these matters with the relevant Back-Benchers of both the Opposition and the Conservative Party who have a great interest in the amendments that they have tabled to the Bill. There is an understanding between the usual channels and interested Back-Bench Peers that we will conclude the whole of the Report stage of the Scotland Bill on Wednesday, and there is an agreement that that can be done without the need to return to the

26 Mar 2012 : Column 1233

Bill tonight. This may be of assistance to noble Lords and to the staff of the House. I apologise to my noble friend Lord Palmer.

9.52 pm

Lord Palmer of Childs Hill: My Lords, I will not take that as an invitation to speak for longer than I had originally intended. I want to make the important point that the restitution of wrongfully seized property is in no way a recompense for imprisonment, loss of life or genocide. Like other noble Lords, I thank the noble Baroness, Lady Deech, for tabling this debate and for summarising all that has happened and what it is hoped will happen.

Poland is the only major European country that has no law for the restitution of private property stolen during the Holocaust. Poland was part of the Terezin conference, although it did not sign the declaration. Before the war, there were 3 million Jews in Poland and afterwards only 300,000 were left. My late mother was one of the lucky ones. She and her brother sought sanctuary in Britain, coming here between the two great wars. My mother married a Geordie and was saved by the welcome that she received in this country. However, her mother, my maternal grandmother, and my aunt were never heard of again after 1944. They were part of that tragedy.

The family had been bakers in the town of Szrensk, which is between Warsaw and Gdansk, and I imagine that assets of some sort would have been lost by my family. Like the noble Baroness, Lady Deech, I have no records whatever. To me, that is all ancient history. I along with many others have made my way in this country, which many people here sadly take for granted. I do not look for monetary restitution. In fact, when I look back at those wars, I think more of my late father's British war service, attached to the Eighth Army, and of my uncle, who was killed while serving with the Middlesex Regiment. However, there are those who rightly believe that they need and are entitled to restitution. Many survivors and their offspring live in straitened circumstances.

There are approximately 90,000 surviving claimants to property in Poland. The majority are non-Jewish, as has been mentioned by my noble friend Lord Boswell and the noble Baroness, Lady Deech. In some cases the confiscators were the Nazis, while in others they were the communists. Listening to other noble Lords, I thought that it might be useful to give one example. It is that of the Polish resistance fighter Jan Karski, who was on the run from the Gestapo. He was sheltered for months on a country estate owned by the Sawa family. Karski was eventually smuggled out of occupied Poland. Sadly, the Sawa family did not get out of the country and Karski later learnt that the entire family had been arrested by the Nazis, tortured and executed. The point of relevance to this debate is that the property of that non-Jewish family was added to the vast horde of loot stolen by the Nazis and never returned.

As the noble Baroness, Lady Deech, mentioned, there are at least 13 occasions when Poland has drafted legislation and then stuck it back on the shelf.

26 Mar 2012 : Column 1234

The European Parliament, the Organisation for Security and Co-operation in Europe and the US Senate and Congress have all called on Poland to resolve the claims. Now it must be our turn in the UK to urge the Polish Government to ease the onerous conditions imposed on potential claimants who have to go to law, to give them access to records, to allow them to set up a modest central fund to resolve claims for religious and communal property and, lastly, to participate in the 2012 conference on Holocaust-era assets.

9.55 pm

Lord Gold: My Lords, I, too, thank the noble Baroness, Lady Deech, for bringing forward this dinner break debate, although I would have preferred it if we had not been running to Spanish dinner times. The Terezin conference was the last of a series of conferences convened to consider the issue of restitution following seizure by Nazi Germany of so much property in Europe. Forty-three countries drafted non-binding guidelines relating to best practice in property restitution. These guidelines provided the basis for international, intergovernment negotiations. Governments were required to act swiftly to enact laws to create new restitution rules and regulations to assist claimants to retrieve property or obtain compensation.

In the case of heirless property where the family members had been wiped out, states were requested to create solutions for restitution and compensation. They were charged with creating special funds to promote welfare for needy survivors, as well as to create memorials and commemorations of the Holocaust. The guidelines promoted the idea that resolving issues of restitution and title to property is no longer the sole interest of any one signatory country. All signatory nations are called upon to create procedures for restitution and to consult with each other-effectively to move things along and solve problems.

And so we come to Poland. As noble Lords have heard this evening, Poland is the only post-communist European country without restitution or compensation legislation. Poland has had a go-indeed, several goes-at drafting legislation, but it has come to nothing. Poland's latest attempt at passing a law was earlier this year, when it was proposed that all restitution claims would go through the Polish courts, where claimants would have to prove land ownership in property registries burned down during the Second World War, or to procure testimony from witnesses who were no longer alive. What is more, claimants had to put up a guarantee of 3 per cent of the property value being claimed, which would be forfeited in the event that the claim was rejected. Not surprisingly, the proposed law received much criticism, and so far nothing has been done.

As the noble Baroness, Lady Deech, said, last year's excuse was an economic one. The economic climate was not conducive, we were told, to a restitutionary law being enacted. Bearing in mind, as we have heard, that Poland's economic growth exceeded 4 per cent, the excuse no longer hangs together. Where do we go from here? As I said, the Terezin declaration calls for countries to work together to secure restitution or compensation. As the noble Lord, Lord Palmer, said, a lot of pressure has been put on Europe by the Council of Europe, the European Parliament and the

26 Mar 2012 : Column 1235

US Senate and Congress. Indeed, restitution was to have been a condition of Poland's entry to the EU, but that went by the wayside. More must be done, and if all European countries and the USA were to join together and put pressure on Poland, I am sure that progress could be made.

The noble Lord, Lord Wallace of Saltaire, in answer to the Question asked by the noble Baroness, Lady Deech, on 5 December last year, said that the Government took,

and would,

I venture to suggest that growth of 4.3 per cent-if only we had that here-allows for restitution. I would ask the Minister once again to remind Poland, this time a bit more loudly, of its duty. If he can encourage some of our friends on both sides of the Atlantic to join in this noble cause, perhaps at last we will make some progress.

On joining the EU, Poland signed the European Convention on Human Rights, which holds that:

"No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law".

No such law applied when the Nazis seized this property, and it is time for Poland to recognise this. Poland has a moral obligation, and we would like to see it deliver on that morality.

10.01 pm

Viscount Hanworth: The enormity of the Holocaust places it in a category of its own, and a recognition of this is embodied in the Terezin agreement. The stated objectives of the Terezin accord have been pursued by the signatories with varying degrees of alacrity. The signatory that has faced the greatest practical task in identifying the victims and their inheritors and in making consequential actions is Poland. It was acknowledged by Nigel Ross, the principal British delegate to the conference, that although Poland had to a large extent dealt with the matter of communal restitution, it had made no real progress in the matter of personal restitution. It is undeniable that there have also been acts of bad faith. There are now very few survivors who have had a direct experience of the Holocaust, so the issue here is the restitution of properties to inheritors of Holocaust victims. Surely the reason why so little has been forthcoming from the Poles in that respect is that they fear that by making such restitutions they will encourage a much greater number of claims from other parties. There was a considerable displacement of Germans from Poland at the end of the war and they and their descendants must surely be encouraged to make claims, if other claims were allowed.

There are many more recent cases to contend with that have arisen from the post-war communist period. In a fragile post-communist era, the Poles have preferred to let sleeping dogs lie, instead of addressing the abuses of the previous era. One such abuse has left an erstwhile dictator in control of a vast estate that was expropriated under his regime. I am reasonably familiar

26 Mar 2012 : Column 1236

with Poland, and, in particular, with the city of Lodz, which I have visited on three occasions and to which I will return in May. The city was a textile manufacturing town that was built mainly in the 40 years from 1840 to 1880. During that period, it accumulated a mixed population of Poles, Germans, Russians and Jews. I first visited Lodz in the 1980s; in the Polish winter, it was a dank and grizzled place. No one thought of showing me its former splendours. The stucco of its architectural adornments had, in main, become unstuck. The city was undifferentiated in its misery and decay.

On my last visit, two years ago, I was astonished to see the city renewed. It had become self-conscious in its beauty. The huge textile manufacturing complex of Israel Posnansky, referred to simply as Manufaktura, has been restored to its former glory as a huge shopping centre and leisure complex. Its four-storey workshops have become hotels, museums and art galleries. The population of the city is becoming increasingly heterogeneous, comprising Poles, Germans, Baltic people and Russians. One former element that is missing is a Jewish population. The city is still derelict in some quarters, indeed it is increasingly so. One such area, which is adjacent to Manufaktura, once housed a predominantly Jewish population. The buildings are in decay because the rights to the properties are undecided. Perhaps if the intentions were fulfilled, the Terezin declaration would serve to establish the rights of ownership of the descendants of those who vacated these properties under duress. However, the properties have surely lost their value. Calculated at present values and diminished by at least two rounds of death duties, they would amount to a paltry inheritance.

I should hesitate to make recommendations regarding other people's inheritance, but I do have a suggestion to offer. A statute of limitations should be negotiated, with certain strong provisos. It should be agreed that the titles to the properties in question should revert to the municipality. The provisos are that this should happen only if the municipality would undertake the restoration of the properties, and a prominent acknowledgement should be made of their provenance and of the generosity of those who have relinquished their entitlements.

10.05 pm

Baroness Royall of Blaisdon: My Lords, I, too, thank the noble Baroness, Lady Deech, for securing this evening's debate. I have learnt much, and I have been touched by the personal stories that we have heard. In particular, I pay tribute to the noble Baroness for her long-standing dedication to the cause of encouraging all nations to recognise their obligations to pay reparations for objects looted during one of the darkest periods of the world's history.

Restitution is indeed about victims and the need for moral accounting. No matter how many times one hears the horrific statistics relating to the Holocaust, it is deeply shocking, and I trust that that sense of horror and shock will continue. As the noble Lord, Lord Boswell, said, crimes against property cannot equate to crimes against humanity; but even inadequate amends for property that has been looted ensures, in

26 Mar 2012 : Column 1237

part, that moral accounting. My noble friend Lord Wills spoke of the sense of healing and the bearing of witness that evil has been done.

During the Holocaust, property was stolen, homes were looted, valuables and paintings were pillaged, wedding rings were melted down and, as we know, even the gold teeth of Holocaust victims were removed and transformed into gold use. It has been estimated that by the end of the war the Germans had looted in the region of £550 million.

Like all noble Lords who have spoken, my party, when in government, fully supported Holocaust asset restitution, and we continue to see the issue of restitution as morally important as well as legally and culturally vital to honour. That is why, following the 1998 Washington conference on Holocaust-era assets and the endorsement of the Washington declaration on Nazi-confiscated art, the Labour Government established the Spoliation Advisory Panel. This small panel of experts makes an important contribution and reaches carefully considered conclusions to claims for restitution, and its work is rightly appreciated for being fair. The panel by no means always finds in favour of the claimants. Labour in government issued a consultation paper, Restitution of Objects Spoliated in the Nazi-Era, that concluded in favour of removing statutory restrictions on the return of assets. My Government facilitated legislation to enable the de-accession of cultural items from museums, and we signed the UK up to the Terezin declaration that we are discussing this evening.

From these Benches we endorse the Terezin principles and strongly encourage the Government to use diplomatic efforts to encourage other states to sign up to and honour what the declaration called for. As we have heard in today's debate, there is particular concern that Poland has yet to become a signatory to Terezin. I believe that Poland has a moral duty to sign up to the declaration and to honour it. As we have heard, poor survivors of the genocide need and deserve restitution.

It is important that efforts to secure just and fair solutions regarding cultural property such as those outlined in the Terezin declaration are sustained. This evening's debate will encourage the Government to keep up the pressure. My party favours a power of permission, not compulsion. We feel that there is a moral imperative behind restitution but acknowledge difficulties in forcing current trustees to return looted goods. In acknowledging the need for permissive legislation to facilitate restitution, my Government gave our full support to the Holocaust (Return of Cultural Objects) Bill, a Private Member's Bill, in 2009; and, like the noble Baroness, I, too, pay tribute to my noble friend Lord Janner for what he did in securing that legislation. As a result of the legislation, the boards of trustees of the British Museum, the British Library, the Natural History Museum, the Tate galleries and many more may transfer an object from their collections if so advised.

The Terezin declaration goes further than calling for the restitution of cultural objects and wrongfully seized personal property. It calls for Holocaust education, remembrance and the preservation of memorials. We

26 Mar 2012 : Column 1238

fought hard for multilateral support to educate, research and remember such a terrible event, and signed the Stockholm declaration in 2000. The first Holocaust Memorial Day took place soon afterwards in 2001. Our support has never wavered, and neither has the support of Members of this House.

It is important that measures are taken to remember, restore and respect, and I welcome the opportunity in this House to do just that today. I urge the Government to do whatever they can to ensure that Poland signs up to the Terezin declaration.

10.10 pm

Lord Wallace of Saltaire: My Lords, I thank the noble Baroness very much for this debate and the opportunity to discuss this delicate and deeply emotional subject. I thank her for her kind words about the efforts that the British Government have been making and continue to make in this area.

The 46 states that signed the Terezin declaration in 2009 made a landmark moral commitment to address some of the injustices related to the Holocaust, including the wrongful seizure of property from families and individuals across our continent, particularly in the eastern part. The declaration set out the principles and measures for the signatories to implement not just in the field of immovable property, which we are focusing on today, but also looted art, Judaica, social welfare for Holocaust survivors, open archives and Holocaust remembrance and research. The guidelines on best practice for property restitution that were adopted by individual signatories were intended to be turned into law and practice.

Like many noble Lords gathered in the House today, the Government are frustrated with the lack of real progress since that declaration was signed. The Government, the noble Baroness and indeed the noble Lord, Lord Janner, played a significant role in the original discussions, and we will again be one of the main actors in the review conference later this year to move its implementation forward. The review conference can provide much needed renewed momentum for property and art restitution across Europe. We are actively involved in preparatory meetings, pressing for practical and meaningful outcomes at the conference. We have suggested case studies from those states that have made good progress and practical seminars with lawyers and financing experts, designed to help member states tackle some of the commonly raised issues.

In researching this speech, I was fascinated and moved by the history of the recovery by the noble Baroness, Lady Deech, of some of her family silver. One gets a sense of the importance of history, identity and continuity that that can provide, and the difficulty of being able to re-establish it. It is a wonderful story and I recommend to others that they look into it. Some of the family silver had been hurriedly given to a Polish neighbour who had buried it in their garden, and who discovered only when he read the story of the noble Baroness's search for the remains of her family property that there was a link and he could at last find someone to whom he could restore it.

We are all conscious of the complexities and, I should say, the agonies of Polish history. Two summers

26 Mar 2012 : Column 1239

ago I read Timothy Snyder's book Bloodlands on what happened to all the peoples between Germany and Russia-all the many Jews who lived in that area but also Ukrainians, Poles, Belarusians and others. I note that the family of the wife of Norman Davies, who assisted in the recovery and return of the noble Baroness's silver, lost their property in what is now Ukraine and were forced to move into other vacant property in what is now Poland-everyone has been forced to push west, of course-that for all they knew might well have been confiscated from Jewish Poles.

The status of Polish property records compared with the Austrian ones, which the noble Baroness rightly holds up as a model, are rather less good than they should be, for fairly obvious reasons-the amount of destruction that Poland suffered during the war. The Polish archives are gradually being digitised but there is still a long way to go. In many parts of Poland, with the boundaries having been shifted so sharply, the layers of claims to ownership are extremely complex and contested.

I also recommend the memoir written by the current Polish Foreign Minister, Radoslaw Sikorski, about his family's attempt to buy and restore a house in western Poland. As they began to restore it, there were occasions when others came and looked at it and expressed an interest in re-establishing their property ownership-quite often people from Germany or elsewhere. We all understand that Poland has enormous difficulty in establishing who owned what and when; and the years of Nazi, then communist, ownership have made this extremely difficult.

We are focusing on Poland, but Ukraine, whether or not you regard it as a post-communist country, is another case in point. It failed to attend the conference or sign the declaration, as did Russia. Without naming names, it is fair to say that other states that signed up to the declaration have a patchy record in implementing it.

Several Peers touched on the question of what restitution is intended to restore. The noble Baroness said that Holocaust restitution was not about money but victims. The noble Baroness, Lady Royall, said that we were talking about moral accounting. As some noble Lords may know, the Austrian central fund has restored a small percentage of the estimated value of the property. In the Polish case, part of our concern we have is that the Polish Government are extremely worried about how large the bill would be once the claims were presented-not only by Jewish former owners but by the much larger number of Polish former owners, many of them no longer living in Poland.

I note from a story in the Jewish Chronicle in summer 2009 that the estimate of the total value of property lost in Poland during the war was around £15.5 billion. It is thought that 80 per cent of it came not from Jews but from Poles who lost land. As the noble Viscount, Lord Hanworth, suggested, it is quite clear that such large sums simply could not be restored. There is a conversation to be had with the Polish

26 Mar 2012 : Column 1240

Government about levels of financial restitution, as well as about moral closure, which is what we are all most interested in.

I was asked what activities Sir Andrew Burns, the UK Government's special representative, is currently engaged in. I found him extremely helpful on several occasions in briefing me on this. He is actively involved in working with the other parties to the Terezin declaration to ensure that this November's review conference produces some concrete deliverables. He will participate in two preparatory meetings in Prague before November's conference, and co-hosted a meeting with his American opposite number in London two weeks ago to discuss the November review conference. He is also active in recruiting a new director for the International Tracing Service, which the noble Baroness spoke about, and will lead the British delegation to the 2012 review conference, which will also include members of NGOs and other UK experts.

The noble Lord, Lord Gold, asked whether Poland still had a programme for the restitution of communal property. It does not have legislation for the restitution of private immovable property, but the draft legislation on private property has not been passed because of the EU's public debt rule. Again, the issue is how far the Polish Government, under their somewhat constrained circumstances, are willing to take on substantial financial obligations to people who, largely, live outside Poland under their somewhat constrained circumstances. The forecast for economic growth in 2012 is 2.5 per cent, after last year's satisfactory growth of 4 per cent. If Poland adopted the draft legislation on private property, it would breach current EU rules on financial discipline.

We very much welcome this debate, and we clearly need to continue working on this issue. We will be doing our utmost actively to make sure that the November review conference is a great success. I certainly commit, on behalf of the Government, to report back in the most suitable fashion on the developments at the review conference.

Perhaps I might add briefly that Lodz has often been described to me as the Polish Bradford, that it is very much the same sort of city. When I heard that the city was still derelict in some places, I was thinking about some parts of Bradford, in which I was delivering leaflets on Saturday, which need a little bit of restoration still. All of us who know Poland know there are some very beautiful parts that have escaped the rigours of the war. Warsaw, where I am going on Friday, did not escape the rigours of the war and was largely destroyed. Of course, part of the emotional intensity of this on both sides is that the Poles feel that they suffered a great deal in the war and that the rest of the world does not always understand how much they suffered.

I thank everyone for their participation in this debate and the noble Baroness, Lady Deech, for the vigour with which she continues to pursue this set of issues. Her Majesty's Government remain actively engaged in this and we will be taking a very active part in November's review conference.

House adjourned at 10.21 pm.

Next Section Back to Table of Contents Lords Hansard Home Page