28 Feb 2013 : Column 1155

House of Lords

Thursday, 28 February 2013.

11 am

Prayers—read by the Lord Bishop of Liverpool.

Royal Assent

11.06 am

The following Acts were given Royal Assent:

HGV Road User Levy Act,

Mental Health (Discrimination) Act,

European Union (Approvals) Act,

Scrap Metal Dealers Act,

Prisons (Property) Act,

Canterbury City Council Act,

Leeds City Council Act,

Nottingham City Council Act,

Reading Borough Council Act.

Personal Statement

11.07 am

Baroness Butler-Sloss: My Lords, I wish to make a Personal Statement. On 10 December 2012, during a Report stage debate on the Crime and Courts Bill, I intervened to answer a suggestion that judges did not need protection, as reported at col. 865 of the Official Report. I had not prepared what I was going to say. I referred to death threats that I had received as a judge from dissatisfied litigants. Most unfortunately, in referring to the people who had made such threats against me, I included the unwarranted suggestion that the organisation Fathers 4 Justice was among those who had made such threats. It was not true that Fathers 4 Justice had made any death threats against me.

It was also unfortunate that two West Country newspapers reported what I had said in this House. I did not speak to either newspaper. Fathers 4 Justice got in touch with me by e-mail and I immediately withdrew the allegations and apologised unreservedly to them. I offered to write to the newspapers but Fathers 4 Justice asked for a public apology. The most convenient way to do so seemed to be by a Personal Statement to this House.

I reiterate that I withdraw any allegations of death threats against me by Fathers 4 Justice and apologise unreservedly to them.



11.08 am

Asked By Baroness Cox

To ask Her Majesty’s Government what assessment they have made of the current situation in Burma, with reference to the Kachin, Shan and Rohingya ethnic national peoples.

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The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, we welcome the direction of reforms in Burma but continue to raise concerns over human rights and ethnic reconciliation. In Kachin state we are encouraged by the recent reduction in fighting and agreement by both sides to pursue political dialogue. We continue to monitor the ceasefire and humanitarian situation in Shan state. In Rakhine state we continue to press the Burmese Government to improve coordination of humanitarian assistance, to ensure security and accountability and to address the issue of Rohingya citizenship.

Baroness Cox: My Lords, in thanking the Minister for that comprehensive reply, may I highlight the seriousness of the situation? I have just returned from Kachin state where a 17-year ceasefire was broken by the Burmese army. Fighting continues with widespread violations of human rights, including torture, killings, rape and an aerial bombardment causing 75,000 civilians to flee to camps or hide in the jungle. In Shan state, a military offensive caused hundreds of thousands of civilians to flee their homes, and the Rohingya people have been reduced to conditions of severe destitution and massive displacement.

Therefore, can the Minister give an assurance that Her Majesty’s Government, while welcoming recent reforms, will press the Burmese Government to protect and promote the rights of all ethnic national peoples?

Baroness Warsi: The noble Baroness, as always, comes to these Questions with the most up-to-date information that could possibly be obtained, and I thank her for the enormous work that she does in Burma, as well as in many other places around the world. Our policy is one of constructive engagement on human rights, and ethnic reconciliation is a central part of that. I can assure the noble Baroness and the House that we take the humanitarian challenges in Burma extremely seriously. Indeed, the Minister with responsibility for Burma, Hugo Swire, when he visited that country, travelled to Rakhine state with a view to making representations to the regional governments as well. It is a matter on which we continue to press the Burmese Government and on which our ambassador there is hugely engaged.

Baroness Kinnock of Holyhead: My Lords, when the EU common position on Burma is reviewed, as it will be in April, what position will the Government take on the EU sanctions that were suspended on the specific understanding that there would be progress on human rights and democratic reform in Burma? Is it not the case that in many respects human rights violations have significantly increased, especially with the Rohingya and Kachin, as the noble Baroness, Lady Cox, has said? Is it not the case that the Government should therefore support the reintroduction of some of the measures that were suspended, and resist efforts to lift sanctions completely unless and until there is significant progress on these issues?

Baroness Warsi: As the noble Baroness will be aware, the sanctions were suspended in April last year, and it was made clear at that stage that they would be

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lifted only if the Burmese Government was measured positively against the benchmarks set by the Council conclusions of earlier that year. Those benchmarks are that there should be free and fair elections, and that there needed to be progress on political prisoners and ethnic reconciliations. These matters will be discussed again in April this year but, as the noble Baroness is aware, for those sanctions to remain suspended or not to be lifted requires unanimity at the EU level. We in the United Kingdom will be pressing for those measures, those benchmarks, to be tested against the Burmese record.

Baroness Buscombe: My Lords, can the Government explain what they are doing to resolve the plight of the Rohingya?

Baroness Warsi: My noble friend raises an important question. The Rohingya have been described as some of the most wretched people because of the way in which they have been abused over many years. They are left in a situation where real questions are being raised by the Burmese Government about their citizenship. The Minister responsible for Burma, Hugo Swire, visited Rakhine and met leaders of the Rohingya community. Last week, I was in Bangladesh and became the first British Minister to visit the Rohingya refugee camp at Cox’s Bazar, in Bangladesh. We are looking at the problem from both sides of the border. Ultimately, however, the issue of citizenship of the Rohingya people is what needs to resolved. There is a history of these people being in Burma for the past 200 years. They now need to be recognised.

Baroness Berridge: My Lords, it has been a great pleasure to see the developing relationship of the UK Government, particularly the Prime Minister, not only with the Burmese Government but with Aung San Suu Kyi, who is incredibly influential in this situation. Will the Minister outline what representations the UK Government have made to Aung San Suu Kyi about the growing concern among nations that are being looked to for aid about the treatment of groups of people who have a different religions background and, particularly in relation to the Rohingya people, those who are of a different racial group from the majority population?

Baroness Warsi: I simply repeat what I said earlier. On every occasion, whether it is the Prime Minister, the Foreign Secretary, Hugo Swire or, indeed, Francis Maude, who was there only last year, we have taken the opportunity to raise the issue of minority groups. All communities must deserve rights as Burma moves forward on its democratic journey.

Lord Alton of Liverpool: My Lords, would the Minister confirm that since 2012, around 5,000 Rohingya Muslim people have been murdered and that many thousands have disappeared? As she has rightly described, they are living in a system of 21st century apartheid, their citizenship rights having been formally stripped from the constitution. Will she urge the government authorities in Burma to revisit this question and inquire

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of the UN special rapporteur on religious liberty whether he would be willing to make a visit to the Rohingya people in Arakan state?

Baroness Warsi: The noble Lord makes an important point. I will be meeting the UN special rapporteur on religious freedom in the next two months. This is certainly a matter that I can raise with him. Ethnic reconciliation is a central part of all discussions that we have with the Burmese Government.

Baroness Falkner of Margravine: My Lords, going back to Kachin and the conflict there, does the Minister accept that the use of fighter jets to bomb civilian populations is a significant escalation by the Burmese army? While we welcome attempts at a ceasefire again, will the Government urge both the Chinese and Burmese Governments to, first, allow the UNHCR to look at the refugee situation and give humanitarian assistance and, secondly, press for an overall peace settlement for all three ethnic groups? This is a long overdue matter and the civil war has been going on for 60 years. It is time now for a comprehensive peace, rather than just ceasefires that break down.

Baroness Warsi: We are, of course, concerned about the acts of the Burmese Government in Kachin. I can assure my noble friend that we have played our part: we have had experts who were involved in peacebuilding in Northern Ireland visit Burma on a number of occasions to assist with the peacebuilding in Kachin. We are also one of the three members of the peace donor support group, which also assists with peacebuilding. Moreover, we allocated a further £1.5 million in December of last year, bringing our total spending on humanitarian aid in Kachin to £3.5 million. We will continue to press them, and of course, the Chinese Government.

Dyslexia: Apprenticeships


11.17 am

Asked By Lord Addington

To ask Her Majesty’s Government what progress has been made in ensuring that all dyslexics have access to the assistance recommended by Ofqual when taking apprenticeship qualifications.

Baroness Garden of Frognal: My Lords, a guide entitled Access Arrangements, Reasonable Adjustments and Special Considerationis published each year by the Joint Council for Qualifications. The guidance was updated this year to include improved examples of how arrangements can support the needs of dyslexic learners. Awarding organisations are responsible for defining suitable arrangements and assessment centres are responsible for their operation. Awarding organisations and centres have complaints procedures to address any specific problems as they arise.

Lord Addington: I thank my noble friend for that Answer. Does she accept that these arrangements—or at least the principle behind them—have been in place

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ever since I first asked about this subject? Does she also accept that when dyslexics have failed a written test, a procedure that requires a written complaint may not be the best one available for someone who is dyslexic or comes from a dyslexic family? Will the Government undertake to make sure that there is a vigorous enforcement process here and that things such as online testing papers which are not compatible with voice recognition technology, and ways of taking exams which are not taught during the classroom process, are not acceptable in the future?

Baroness Garden of Frognal: I pay tribute to my noble friend for his tireless championing of those who suffer from dyslexia. I stress that the process for any complaint is to exhaust the centre’s procedures first—and that would be a face-to-face meeting, not necessarily a written procedure—and then go to the awarding organisation. If that does not work, complaints can be raised with Ofqual. However, Ofqual has been proactive in this respect and is in active discussion with the British Dyslexia Association to try to get a sense of the scale of the problems. So far it has come up with the problem in software compatibility to which my noble friend referred, and it is working with awarding organisations to try to address that.

Lord Martin of Springburn: May I put it to the Minister that it is often the case that young men and women who have difficulty in passing written exams can go on with encouragement to become excellent journeymen and journeywomen? I hope that the Government’s apprenticeship scheme recognises the fact that not everyone can be academic and so clever in terms of reading and writing.

Baroness Garden of Frognal: The noble Lord makes a very important point. It is absolutely right that people who are practically very skilled often find that making an assessment in a written paper poses much more of a problem for them. On apprenticeships, there has been a change to functional skills that focus on applying knowledge rather than having to pass written tests, and these are widely available as part of the apprenticeship programme. The noble Lord makes a very valid point about the value of people whose skills do not lie in writing.

Baroness Brinton: My Lords, I think that it is accepted that it is essential to have the intervention of a trainer in cases where dyslexia is identified in the workplace to provide an individualised training and support plan that will give people real inclusion in the workforce. That important one-to-one interaction is the most efficient means of providing essential support and assessments. What assessment do the Government make of the number of qualified trainers available to support dyslexic apprentices in the workplace?

Baroness Garden of Frognal: My noble friend is absolutely right that one to one is often the most effective way of enabling people to reach their potential in that area. We are working with different schemes. The recent diversity in apprenticeships pilots highlighted

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the importance of one-to-one interactions and extra support. The National Apprenticeship Service is beginning to implement actions as a result of those pilots.

Baroness O’Cathain: My Lords, perhaps I could ask my noble friend whether any trainers are available for people in this House, either as Members or working for the House. The spectrum of dyslexia is more serious in some cases than others. The Foreign and Commonwealth Office employs trainers for the people who work there. I am sure that the Minister will not have a reply to this, but it would be very useful for us to know, because sometimes things happen in this House that are of great benefit to many people that are never communicated to them.

Baroness Garden of Frognal: My noble friend makes a very important point. As she surmised, I do not have a direct answer. I feel that it would be for the House authorities and other people to look into that, but we heard what she said and will try to take forward some ideas.

Baroness Jones of Whitchurch: My Lords, does this issue not raise a more general point about the direction of the Government, who in the exam system are moving away from an appraisal system throughout the period of learning to just a three-hour exam at the end of the process? Does the Minister agree that that will discriminate against people who have special educational needs in all sorts of forms, who would be much better assessed and appraised over a period of time than in one three-hour exam at the end of the process?

Baroness Garden of Frognal: The noble Baroness takes us rather wide of the Question, which is on apprenticeships. All the issues surrounding final assessments and examinations in schools are under discussion at the moment. On apprenticeships, there has always been a stress on practical application and seeing what people can do rather than what they can write down. Ongoing assessment and testing are part of an apprenticeship scheme all the way through.

Medical Research: International Rare Diseases Research Consortium


11.22 am

Asked By Lord Avebury

To ask Her Majesty’s Government what support, if any, they are providing for the International Rare Diseases Research Consortium.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, the UK is a global leader in rare diseases research. The Government are pleased to be engaged with activities marking Rare Disease Day today. The Department of Health supports the International Rare Diseases Research Consortium. The National Institute for Health Research is a member of the consortium and has actively engaged with the work of the consortium from the outset. The

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Government are committed to providing faster diagnosis and better treatments for people with a rare disease. We recognise the importance of international collaboration in rare diseases research, and of its translation, in achieving this goal.

Lord Avebury: My Lords, I declare an interest as a sufferer from myelofibrosis, which is one of the 6,000-plus rare diseases that have been identified which affect 3.5 million people in the UK. May I ask my noble friend to comment on how the £100 million genome sequencing project is expected to contribute to the understanding of rare diseases? Secondly, will the rare diseases stakeholder forum that he announced yesterday consider the value to both patients and the NHS of care co-ordinators, which was emphasised by the NGO Rare Disease UK?

Earl Howe: My Lords, we have just announced the establishment of a rare diseases stakeholder forum. As my noble friend rightly mentions, it will be established shortly to bring together a wide range of stakeholders, including organisations representing those with rare diseases, to ensure that the patient voice is part of the discussion that we must have leading up the publication of the UK plan for rare diseases. The 100,000 genomes initiative, which my Department is funding, is about pump-priming—the sequencing of the genomes of 100,000 NHS patients—with the purpose of translating genomics into the NHS. This capacity will be allocated specifically to cancer, rare diseases and infectious diseases. The service design work will be completed by June and we aim to put contracts in place by April next year.

Lord Walton of Detchant: My Lords, does the Minister accept that recent research in genomic medicine has led to the progressive introduction of orphan and ultra-orphan drugs, some of which are capable of reversing partially or completely the genetic effect of many such rare diseases—not least, for example, muscular dystrophy? However, these drugs are extremely expensive and are therefore likely to be commercially unsuccessful because they help only a relatively small number of patients. Now that the Government have abolished the Advisory Group for National Specialised Services, can the Minister assure the House that, when responsibility for providing those drugs on the NHS falls to the national Commissioning Board on the advice of NICE from April this year, those rare diseases and their drugs will be given appropriate priority?

Earl Howe: My Lords, yes I can give that assurance. As the noble Lord will know, we laid regulations specifying those specialised and highly specialised conditions which the NHS Commissioning Board will be responsible for commissioning. I can also reassure him that the focus on research into rare conditions will not be lost. Indeed, I am sure that he will be aware that the National Institute for Health Research has recently specifically invited submission of research proposals into interventions for very rare diseases. The call encouraged multidisciplinary research proposals as well as study designs and approaches to recruitment of patients.

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Lord Hunt of Kings Heath: My Lords, I declare my interests in the Register in the health service. Following on from the previous question, I understand that the commissioning costs of rare diseases will be met nationally by the NHS Commissioning Board. However, when patients require regular medication, which would presumably be prescribed by their GP, will funding responsibility fall on local clinical commissioning groups? If so, will they be given specified resources to fund what are often very expensive treatments?

Earl Howe: My Lords, the funding for expensive treatments will be very much the responsibility of the Commissioning Board. However, of course the noble Lord is right, because a patient with a rare disease will need to be treated along a pathway of care, some of which will be specialised and some of which will be more routine. It is therefore important that we build into our UK plan for rare diseases an awareness of that pathway so that this is a seamless process. The commissioning must be joined up between the board, clinical commissioning groups and, indeed, local authorities that provide social care.

Lord Cotter: My Lords, I thank my noble friend the Minister for his interest in rare conditions. I declare an interest as my wife, like many others, has suffered from birth from arthrogryposis, a neuromuscular condition. She received a correct diagnosis only at the age of 52 years. Even now, in her 70s, she is struggling to receive appropriate treatment. Would the Minister consider seriously Rare Disease UK’s recommendation for designated care co-ordinators to oversee the situation to ensure consistent treatment and to provide single oversight to help patients and to avoid wasting resources and duplication within the NHS?

Earl Howe: I am grateful to my noble friend and I extend my sympathies to his wife. Unfortunately, with many very rare diseases, it often takes a great deal of time for a fully fledged diagnosis to be arrived at. I welcome the suggestion put forward by Rare Disease UK for co-ordinators and we will certainly look at that idea positively. I can tell him that the imperative to look at rare developmental disorders in children is the focus of a project that the NIHR and the Wellcome Trust are funding through the Sanger Institute in Cambridge. Scientists are analysing the genomes of 12,000 children with developmental disorders who could not be diagnosed following routine genetic evaluation. We are hopeful that that will produce some interesting results.

Lord Patel: My Lords, I declare an interest in that my university is involved in finding treatments for some rare diseases. An international collaboration has set the ambitious goal of finding treatments for 200 rare diseases by 2020. One of the important research areas has already been mentioned, which is the sequencing of the genome of patients with rare diseases. The other area, which alludes to the question asked by the noble Lord about the care of those patients, is that of finding new diagnostics so that we can diagnose those diseases early. What are we doing through the NIHR or through biomedical research centres to encourage the development of new diagnostics for those diseases?

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Earl Howe: My Lords, most of the NIHR biomedical research centres are conducting research on rare diseases, including on diagnostic biomarkers, and I have a rather long list of projects which the NIHR is funding. The diagnosis of a rare disease, as the noble Lord rightly mentioned, is often key to ensuring early intervention and the correct treatment. I can tell him that my department is directing considerable resources towards that, and I would be happy to write to him with the details.

NHS: West London Hospitals


11.32 am

Asked By Lord Dubs

To ask Her Majesty’s Government what are their plans for the future of hospitals in west London, especially accident and emergency departments.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, the reconfiguration of front-line health services is a matter for the local NHS. Any decisions regarding changes to services are taken locally and are subject to the four tests for service change. On 19 February, the NHS North West London Joint Committee of Primary Care Trusts decided to proceed with a “Shaping a Healthier Future” service reconfiguration programme in north-west London.

Lord Dubs: My Lords, will the Minister confirm that A&E waiting times are increasing in the areas covered by the four hospitals even before the closures have taken place? There is enormous local concern about a plan to, as it were, reduce services in a series of hospitals more savagely than anything else in the history of the NHS. In particular, the plan includes the proposed demolition of Charing Cross Hospital and its replacement by a handful of beds. Is it not the case that the Minister or the Secretary of State has the final decision and that it is quite possible for the Secretary of State to say, “No, I do not accept this. Think again.”?

Earl Howe: My Lords, we believe very firmly as a general principle that the reconfiguration of services works best when there is a partnership approach between the NHS, local government and the public. That is why we are strengthening local partnership arrangements through the health and well-being boards. To answer the noble Lord’s question, it is entirely possible for a reconfiguration decision to be referred upwards to the Secretary of State by the overview and scrutiny committee of a local authority, and in that event it is customary practice for the Secretary of State to receive independent advice from the independent reconfiguration panel. However, we have not reached that stage yet. We have agreement locally as to what these arrangements should look like and I think that we should wait to see how the plans develop.

Baroness Hussein-Ece: My Lords, is my noble friend aware that the Whittington Hospital, which serves a densely populated area of Islington and of Haringey, where there is no other hospital, suddenly announced

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in January without any proper consultation its major plans for reconfiguration, including changes to buildings and services? Those plans include the downgrading of the A&E department of the hospital, where I have spent many an unhappy hour with my children and other family members but receiving an excellent service, to an emergency care service. Does he think that it is appropriate to do this without proper consultation and explaining the plans to local people?

Earl Howe: My Lords, I cannot comment specifically on that particular set of proposals. However, I can say that we made it very clear nearly three years ago that reconfiguration proposals, wherever they arise, should be underpinned, as should the arising decisions, by four reconfiguration tests. Local plans must demonstrate support from GP commissioners; a strengthening in public and patient engagement, which is the issue raised primarily by my noble friend; clarity on the clinical evidence base for whatever is proposed; and support for patient choice. We expect that where proposals of this kind arise, those four tests need to be met.

Lord Hunt of Kings Heath: My Lords, again I declare my interest in health. On that, I am puzzled because of what has happened in the case of Lewisham A&E where the clinical commissioning group itself is clearly absolutely opposed to the downgrading of that A&E service. Why has the Secretary of State determined to go ahead with those changes?

Earl Howe: Five out of the six clinical commissioning groups involved in that area were supportive of the changes. It is true that Lewisham CCG was not. However, the four tests were looked at and it was clearly determined by the trust’s special administrator that those tests had been met.

Baroness Wilkins: My Lords, will the Minister recognise that parking needs of both visitors and patients need to be fully taken into account when making this sort of decision? I declare an interest as being an only-too-frequent visitor to Charing Cross A&E over the last year. It would have been impossible to get to Chelsea and Westminster hospital where the parking is appalling, both for myself and for my visitors.

Earl Howe: I agree with the noble Baroness that this is most certainly a factor. In the case of north-west London, an independent equalities impact assessment was undertaken to check how the proposed options would affect all strata of local population under the Equality Act in particular. The assessment found that the impact on travel times by car, and indeed by blue light ambulance, would be minimal under all three of the options that were being looked at. The point that I am making is that in any context, it is important to factor in the effect on travel for all patients likely to be affected.

Lord Dubs: My Lords, I am shocked that the use of the word “reconfiguration” by the Government has brought into the English language an alternative to “cuts”. Will the Minister not accept that what is being

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proposed in the four hospitals in the north-west London region are savage cuts which will damage services for local people? That is the bottom line.

Earl Howe: No, I do not accept that at all. A reconfiguration is about modernising the delivery of care and facilities to improve patient outcomes, develop services that are closer to home and, most importantly, save lives. It is not about saving money.

Baroness Masham of Ilton: My Lords, does the Minister agree that the downgrading of anything is very depressing, worst of all for patients when they want upgrading?

Earl Howe: My Lords, I think that often when plans are explained to patients, they realise that the word “downgrading” is inappropriate. For example, in north-west London, there has been a lot of unnecessary worry about urgent care centres as substitutes for A&E units. The majority of people who attend A&E can very well be treated in an urgent care centre on the same site, and patients who dial 999 will be taken by ambulance straight to the appropriate hospital. Therefore, I think there is, in some senses, a false debate going on here.

House of Lords: Membership

Motion to Agree

11.39 am

Moved By Lord Steel of Aikwood

That, notwithstanding the normal practice of the House, this House resolves that no introductions of new Peers shall take place until the recommendation in paragraph 67 of the First Report of the Leader’s Group on Members Leaving the House, chaired by Lord Hunt of Wirral (HL Paper 83, Session 2010–12), has been followed.

Lord Steel of Aikwood: My Lords, I want to make it clear at the beginning that it is my intention to accept the amendment in the name of the noble Lord, Lord Hunt of Kings Heath. I have listened carefully to Members in all parts of the House and I think it would be more constructive to have a debate on the three issues set out in that amendment than to have a rather arid discussion about the royal prerogative and introductions into the House. I hope, therefore, that in a short debate we can concentrate on the three issues that are raised in what I hope will become the amended Motion.

Of course, the three issues are the same as those set out in the Bill that we sent to the House of Commons in September of last year. I want to make it clear that it is no longer my Bill and I hope that we will hear no more references to the “Steel Bill”. I will read out what it says:

“A Bill to make provision for Peers to cease to be Members of the House of Lords by way of retirement or in the event of non-attendance or criminal conviction”.

Fortunately, my name has disappeared from the Bill. It is no longer my Bill; it is our Bill. It is a Bill that we approved unanimously back in September. It is due

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to appear again in the Commons tomorrow, when Eleanor Laing will again present it, but it will as usual be blocked by the government Whips. Frankly, we are so near the end of this Session that there is no realistic chance of the Bill passing.

I want to remind the House that on 6 February, in a Question raised by our former Lord Speaker, the noble Baroness, Lady Hayman, the noble Lord, Lord Hill, said to me:

“He, I am sure, can use his powers of persuasion with colleagues in his own party, including the Deputy Prime Minister. I know that he will try and we will then see how we get on”.—[Official Report, 6/2/13; col. 261.]

Armed with that wonderful quotation, I indeed sought to have a meeting with the Deputy Prime Minister. This proved rather difficult. We were about to go into recess; he was in Africa. I was in Kenya and Uganda throughout the Recess and one of my colleagues, who has a rather warped sense of humour, suggested, “You and Nick should have some Ugandan discussions”—as though we do not have problems enough.

Noble Lords: Oh!

Lord Steel of Aikwood: We ended up having quite a lengthy and amicable telephone call on the subject on Monday evening. But I am afraid I have to report to the House that I failed in my powers of persuasion. The nearest concession that I got from the Deputy Prime Minister was that he would have further discussion with our Leader, the noble Lord, Lord Hill, and I understand that that is going to happen. I hope very much that his powers of persuasion will prove more effective than mine. I intend to pass the ball back to him. I hope that if the House approves the amended Motion today, that will strengthen his hand in the arguments with his colleagues in the Government.

I want to draw the attention of the House to a Written Answer that appeared in Hansard, perhaps significantly, on Thursday 14 February, which was of course the day that we rose for the Recess, so very few Members will have seen this when it was published on the Friday. It was a Question asked by the noble Lord, Lord Ashcroft:

“To ask Her Majesty’s Government whether they intend to offer support to the House of Lords (Cessation of Membership) Bill [HL] in the current parliamentary Session”.

The Written Answer is as follows:

“The Government do not intend to offer support to the Bill. In the absence of full reform, it is the Government’s view that there is no easy set of smaller reforms to the House of Lords. In a modern democracy it is important that those who pass legislation should be chosen by those to whom the legislation applies. So reform measures must include introducing elected Members to the House of Lords.

Also, the three core measures of the Bill would not deal with the size of the House of Lords. Provision for retirement is an extension of the non-statutory voluntary retirement scheme, already in place. Only two noble Lords have taken advantage of this so far. Members would only be required to attend once every session to sustain their membership and only future criminals would be removed from the House of Lords”.—[Official Report, 14/2/13; col. WA 176.]

We should analyse that extraordinary Written Answer. The first point is that, of course, the question of fundamental reform of the Lords will come back again, presumably at the next election and in the next Parliament.

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11.45 am

None of us knows which party or parties will form the next Government, but it will take years before we get fundamental reform. In the mean time we should consider what we do with the present House in its unreformed condition. This is purely a housekeeping measure intended to improve the workings of the House. It is not, in any sense, a reform measure.

We also have to bear in mind that it was in the coalition agreement that the balance of the House should be altered to reflect the views of the electorate at the previous election. I think I am right in saying that this was an agreement made in the time of the previous Government as well. All three parties agreed that this should be done. If that is the case, we will get into a position where we could have leapfrogging of increases after every election. If there is to be an interim strategy of that kind as part of public policy, there needs to be an exit strategy as well. That is why we are pressing for these three changes.

As for the assertion that a retirement scheme is already in place, which only two Members have taken up, it is not a retirement scheme at all. It is simply an extension of leave of absence and those two Members who think they have retired will find that they get in the post a Writ of Summons for the next Session in two or three months’ time. The Chairman of Committees and his committee are trying to reduce the amount of postage and costs to the House—as they told us by sending us mail on only the second day. Yet here we are sending out mail to people who think they have retired.

Lord Hughes of Woodside: On a point of clarification, is it not the case that next Session we will not get a Writ of Summons? That comes only after the end of this Parliament.

Lord Steel of Aikwood: If that is right, I accept the correction, but the basic principle is correct. Members have not retired; they have simply got leave of absence. That is the point I make. It is technically correct to say that the Bill does not reduce the numbers in the House, but that is not a valid point. What it does is to give this House the statutory authority that the original report, by the noble Lord, Lord Hunt of Wirral, said we needed to devise a scheme of retirement. All sorts of schemes have been put about. If these were not times of austerity, we could have had a retirement or resettlement grant, or the opposite—a cut in the allowances paid to Members who have served over a certain number of years or reached a certain age. We could leave it to each of the parties and groups in the House to come to some arrangement. We could even have an age cut-off in our Standing Orders. All these are possibilities, but there is no point in debating them because we do not have the power to do any of them

All we ask of the Government is to let us have the statutory authority to bring to an end the present law, which says that, whether you like it or not, you are a Member of this House for life and that this the present situation. As for the sentence that only future criminals would be removed from the House of Lords, what does that mean? Are the Government seriously suggesting

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that the Bill should contain retrospective legislation? It simply does not make sense. This Written Answer was in the name of my noble friend Lord Wallace of Saltaire. He is not just my noble friend in a technical sense, he is a very old personal friend, going back to the time before either of us was anywhere near the Palace of Westminster. I know that he is a highly intelligent man. He could not possibly have written this stuff. These phrases and assertions appear time and again in the briefing given to the Deputy Prime Minister when he appeared before the Commons Constitutional Affairs Committee and in letters that he wrote to me and to others.

Somewhere in the machinery of Whitehall, these arguments are being put about, which are unsustainable. The House should reassert what it said back in September and say bluntly to the Government, the House of Commons and the public that we are keen to see this modest housekeeping change so that we reduce our numbers and our costs; and say to the Leader of the House that we wish him all the best in trying to get these measures through to the Government. I beg to move.

Amendment to the Motion

Moved by Lord Hunt of Kings Heath

To move, as an amendment to the above motion, to leave out from “that” in line 1 to the end and insert “this House affirms the recommendation in paragraph 67 of the First Report of the Leader’s Group on Members Leaving the House, chaired by Lord Hunt of Wirral (HL Paper 83, Session 2010-12), that “restraint should be exercised by all concerned in the recommendation of new appointments to the House”; and calls on Her Majesty’s Government to support proposals, in line with legislation passed by this House, to.

(a) allow members of the House to retire permanently from the House;

(b) provide for the exclusion from the House of any member who does not attend the House during a Session save where that member has leave of absence in respect of the Session in accordance with Standing Orders of the House, or where a Session is less than six months long; and

(c) provide that a member who is convicted of a serious offence and sentenced to a term of imprisonment of more than one year shall not attend the sittings of the House.”.

Lord Hunt of Kings Heath: My Lords, in moving my amendment to the Motion of the noble Lord, Lord Steel, I mean no criticism of the noble Lord. Indeed, I—and, I am sure, all Members of the House—are grateful to him for his determination to bring this matter back to your Lordships time after time.

The substantive point, surely, of what the noble Lord has said is that we have a pressing issue today concerning the size of the House, appointments and recruitment. We need to deal with this matter now, rather than let many more years go by before we engage, as the noble Lord has said, in sensible housekeeping.

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The failure of Mr Clegg’s substantive Bill on reform surely means, as the noble Lord has said, that it will be a matter of years before a substantive proposal for reform could be put into practice. Indeed, if one took the proposals of the current coalition Government and those of the previous Government, it would be 2020 even if a substantive Bill were presented and passed after the next election—both of those being subject to some uncertainty given the history of Lords reform over 100 years.

We need to make progress on incremental, sensible changes to your Lordships’ House. I detect a real consensus for some progress to be made today. We are already experiencing considerable tensions as a result of our size. We have had the proposals from the Chairman of Committees, speaking for the Privileges Committee, on reforming the system of Oral Questions because of the problem of the number of Peers wishing to ask them. Often noble Lords are not even able to get into the Chamber for Question Time, which is surely much of the focus of our daily activity.

It is disturbing that there are rumours around this place that the Government intend to appoint dozens more new Peers in the next few days or weeks. I am sure that the noble Lord the Leader of the House will point to the coalition agreement. The noble Lord, Lord Steel, has also referred to it. We were certainly not party to any such agreement before the last election. I am mindful of the paper from Meg Russell, the distinguished academic from UCL, who wrote in April 2011 that the objective of a House of Lords membership that is proportional to general election vote share is unrealistic. She said then that it would require the appointment of, at a minimum, 269 new Peers, and that this would have disastrous consequences for the operation of the Chamber, would be unpopular with the public and would be a foolish and unsustainable course to pursue. It if were continued as a principle at every subsequent general election, the size of the House would spiral ever upwards unless some mechanism for removing Members were also adopted.

I understand that there clearly is a need for fresh blood to be introduced into your Lordships’ House from time to time. I certainly also understand that if the coalition Government were finding that their core legislative proposals were not able to get through your Lordships’ House, their case for making more appointments would be stronger. However, that is not the case. The coalition is winning most of the votes that take place. My understanding is that, in this Parliament so far, the Opposition have won about 22% of the votes. That compares to the Opposition winning about 30% of the votes against the previous Government. Even from the Government’s point of view, it is difficult to see the argument that they need a huge number of new Members because of difficulties in the process of getting their legislation through.

Lord Dykes: Is the idea of large numbers coming in even not more reprehensible when a very high incidence of those would be financial donors from the business community, which is tantamount to giving bribes to political parties to become Members of this House?

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Lord Hunt of Kings Heath: My Lords, that is certainly a point of view. However, I am hoping today that the House might adopt a rather consensual view because I sense that, whether we come from one of the parties or from the non-aligned or Cross Benches, there is a genuine concern about the need to sort out issues to do with the size of the House and retirements and appointments. I will therefore desist from responding to the noble Lord’s intervention.

The Leader of the House enjoys enormous respect here and rightfully so. I ask him to take note of this debate, put aside further large-scale appointments to the House, and work with others in the House to suggest a sensible way forward that deals with the issues raised by the noble Lord, Lord Steel. The fact that rumours of large-scale appointments have been with us for many months suggests that the Government know it is not the right thing to do.

The sentiments behind the Motion in the name of the noble Lord, Lord Steel, are perfectly understandable and I am most grateful for his acknowledgement that he is prepared to support my amendment. I put my amendment down because I did wonder whether it was right for the House to seek to prevent the introduction of new life Peers who had already been appointed by the Queen on the advice of the Prime Minister. As the noble Lord, Lord Steel, has such a distinguished pedigree, I did wonder what Mr Asquith would have made of his Motion, given that, with the King’s approval, Mr Asquith threatened to flood the place with new Members if the House resisted the Parliament Bill in 1911. At that time the House agreed to let it through. I wonder what Mr Asquith would have made of the Motion of the noble Lord, Lord Steel, if their Lordships had prevented the flooding of the House in that period. I am also aware that the noble Lord has received a letter from the chairman of the Appointments Commission, the noble Lord, Lord Jay of Ewelme, who is concerned that if the Motion were to be put into effect Cross-Bench appointments would not be allowed to take place.

We all agree with the sentiment behind the noble Lord’s Motion. My amendment deals with these matters in a sensible way. Above all else, this is not about politics but is an attempt to achieve consensus and to recognise that many Members of your Lordships’ House wish to see progress made. It is an indication to the Government that they need to desist from making large-scale appointments at a time when the House is already full. I beg to move.


Lord Laming: My Lords, I will be brief. Perhaps I may remind the House that I try hard to speak personally, especially on occasions such as this, and that I have no authority to speak on behalf of the Cross-Bench group. That will become all too evident very shortly.

The noble Lord, Lord Steel, has vast experience in both Houses of Parliament and indeed far beyond. Furthermore, he has an enviable record of championing changes designed to improve the efficiency and effectiveness of this House. However, as I hope the House will understand, I was extremely unhappy about

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the content of the Motion that he has put down on the Order Paper. I am grateful and pleased that he has accepted the amendment.

The one thing on which we can at least agree is that the membership of the House is too large. As the noble Lord, Lord Hunt of Kings Heath, has made plain, this results in colleagues feeling frustrated when they are denied the opportunity to serve on committees that are dealing with matters of special interest to them and, moreover, when their important contributions to our debates are limited to three minutes or even less. There is a real issue to be faced about the membership of this House. In my view, the Motion is not helpful. I was going to speak about the report to which the Motion refers but as the noble Lord, Lord Steel, has accepted the amendment I will move on.

Only yesterday two new Cross-Bench Peers were announced. I very much hope that at the appropriate time your Lordships’ House will make those new Members extremely welcome. This House has a record of doing that and we should avoid the danger of giving the impression that we are resisting new Members. My concern is solely about tactics and timing. My fear is that the amendment will be perceived to be either irrelevant in the current situation or, at worst, provocative. I well recognise the thought that the noble Lord, Lord Hunt, has given to the amendment and I do not doubt for one moment the good intention behind it. However, I still fail to see how it will have a significant impact on reducing the size of this House and, in particular, the pressure on the facilities and costs. We already have a voluntary retirement scheme that has not been a great success. Any form of financial inducement to make such a scheme more popular would, in my view, especially in the current circumstances, be inappropriate. Trying also to reduce the membership of the House by excluding those who do not, for whatever reason, attend regularly could be counterintuitive in that it would run the risk of encouraging them to attend your Lordships’ House.

The frustrations frequently expressed are sincere, although I cannot help but feel that we are in danger of giving the impression that we want to resist any newcomers into our House. That would be to the disadvantage of the work of this House in revising and improving legislation for the benefit of our fellow citizens and holding the Government to account. In recognising that the House is too big, I nevertheless fear that the amendment will not have the desired effect. I hope that out of this will come something that will be a stimulus to much more detailed discussion across the House in order that we can work towards achieving consensus. That said, I will, as always, listen carefully to the debate.

Lord Cormack: My Lords, I am a great admirer of the noble Lord, Lord Laming, who has given great service to our nation and to this House. Although I agree with him that the two new Members who have been announced should be given the warmest of welcomes—we all agree with that—I regret to say that I cannot follow the logic of his other remarks. I wish to give my strong support to the initiative taken by my noble friend Lord Steel of Aikwood, to whom we are all in debt, and very much to the noble Lord, Lord

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Hunt, who has moved his amendment moderately and persuasively, and I hope in a way that will have garnered support in all parts of the House.

Lord Hughes of Woodside: I am grateful to the noble Lord for giving way. Since he is a great advocate of reducing the size of this House, might I commend to him the traditional trade union solution to dealing with redundancies: last in, first out?

Lord Cormack: If that became the will of the House we would all have to accept it, wouldn’t we? My old and mischievous friend from another place makes his point with his customary tact. It is now 11 years since my noble friend Lord Norton and I formed a group called the Campaign for an Effective Second Chamber. My noble friend Lord Norton, who did that group great service as our convenor throughout those years, cannot be here today because of his teaching duties at his university. We miss him and the contribution he would have made. We formed that group, over which I have had the honour to preside, because we believe that this Chamber is effective but could be much more effective. We were always committed to an appointed House rather than an elected one, but we also recognise the fact that the House as it exists can and should be improved even though many people in this House—by no means the majority, but a number of very distinguished Members—would like to move towards election. The noble Lord, Lord Hunt, has made that his position in the past. Nevertheless, surely we can all recognise that the House as it exists is not only capable of improvement but cries out for improvement, not only in its size but in the way in which we do business. We all owe a great deal to noble Lords such as the noble Lord, Lord Filkin, who have been working hard in this regard over recent months and years. Whatever one’s ultimate view is, surely we should not stand in the way of what the noble Lords, Lord Steel and Lord Hunt, have referred to as “housekeeping reforms”.

To the Deputy Prime Minister, who has shown an interesting flexibility of mind and memory in recent days, I say, “If you believe that the best is elected, then do not let the best be the enemy of the good”. We think that this House as it exists—and on Mr Clegg’s own admission it cannot be fundamentally changed for some years—should now be changed in the way proposed in the amendment of the noble Lord, Lord Hunt. We all hold my noble friend the Leader of the House in the highest regard. I very much hope that he will take it upon himself as Leader of the House—leader of all of us—to convene a meeting to discuss ways and means of approaching the problems referred to by the noble Lords, Lord Steel and Lord Hunt. He would be doing us all a very great service if he exercised his initiative in that regard and I very much hope that he will. Of course, our expertise and experience, notwithstanding the noble Lord, Lord Hughes, must be refreshed and revived, but if many more Peers are introduced into this House without addressing the current problems we will bring this House into disrepute.

Lord Elton: Like the rest of us, my noble friend sees the expected approach of large numbers as rather like a torpedo. He is now choosing one of two paths put

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before your Lordships and I would like to know his explanation of that. On the face of it, the admirable amendment of the noble Lord, Lord Hunt, is actually hortatory—it advises and says that something may be done—whereas the principal Motion is prescriptive and states that it shall be done. The second is not in our gift; the first is. If you want to put out a net to catch the torpedo, surely it must be the first and not the second.

Lord Cormack: I understand and sympathise with the point made by my noble friend, but the fact is that there are issues like royal prerogative that have to be taken into account. We do not want to precipitate—this was implicit in the remarks of the noble Lord, Lord Hunt—a major constitutional crisis. What we want to do is address the housekeeping issues in this House. That is a simple and reasonable aim. This is declaratory, of course it is, but, if we have a vote at the end of this debate, I hope that the House will declare that it really is concerned about these matters. We are asking the Leader to do what he can to bring some common sense to bear.

Surely it is wrong that a particular person should be the stumbling block in the face of sensible reform. Mr Clegg has many admirable qualities, but he should not be allowed to be the arbiter of our constitution. That is wrong. He introduced a Bill, which failed. I am proud to wear this morning the tie made by the 91 stout Tory rebels who frustrated that Bill in July by saying, “You cannot get this through because we will not give you the time to do so”. Mr Clegg recognised that, and he should now recognise that if he believes in parliamentary democracy, and if he believes in this House as being a fundamental part of this democracy as it is the moment, it should be as effective as it possibly can be. If we continue to appoint new Peers without addressing the issues so eloquently talked about by the noble Lord, Lord Hunt, we will run the risk of making this House fall in public repute and indeed become something of a laughing stock, which it should not be. That would fly in the face of history and of what has been achieved by so many, particularly over the years since 1958 when life Peers were introduced. If this comes to a vote, I urge Members to vote in significant numbers to show that there is indeed a consensus in this House on these modest proposals.

Lord Tyler: My Lords, I want very briefly to put a couple of points to my noble friend the Leader of the House before he responds to the debate. I wonder whether he might reflect on the fact that in the previous Labour Administration, some 40% of the new recruits to this House were added to the Labour Benches, compared with 21% to the Conservative Benches and 15% to the Liberal Democratic Benches. Even more significantly, in May 2010, immediately following the general election, there were additional recruits to your Lordships’ House—28 Labour Members, 18 Conservative Members and nine Liberal Democrat Members. Will my noble friend reflect on the very interesting Pauline conversion, if I might put it like that, of the noble Lord, Lord Hunt, who suddenly seems to find the overpopulation of this House such a terrible problem?

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Apparently it was never a problem under the previous Administration, nor was it a problem even in May 2010. I am the last person to turn against a sinner who repenteth, but there is an important question to put to the opposition Benches about their change of attitude.

Would my noble friend also note that some of the Members who now object so strongly to further appointments were indeed the most vociferous when the Government came forward with a proposal to end a fully appointed House? My noble friend Lord Cormack, who is a very staunch defender of the primacy of the House of Commons, may have forgotten that the Government’s Bill received a considerable—indeed, a uniquely—sizeable majority at its Second Reading. That was an attempt to sort this problem out. It had indeed built very firmly on the proposals put forward by Mr Jack Straw, in which the noble Lord, Lord Hunt, played a very important part. Again, he seems to have changed his attitude.

I share the view of the noble Lord, Lord Laming, that this Motion as amended would still be inappropriate at this time. Having had, I accept, an expression of concern on all sides of the House about this problem, I very much hope that the Motion, even amended, is not put to a Division because I think it will have more power if it is not seen to be something that is divisible and therefore divisive in your Lordships’ House.

12.15 pm

Lord Grocott: My Lords, I was just sitting here quietly, looking forward to the conclusion of the debate without, I hoped, a Division, but hoping that if there was a Division it would result in a resounding majority for the Motion of the noble Lord, Lord Steel, and my noble friend’s amendment. However, the comments of the noble Lord, Lord Tyler, make it impossible for me to remain in my seat because I think he suggested that the previous Labour Government paid no attention to what he now considers a very sensible proposal that the membership of this House should reflect the result of the previous general election.

I remind the noble Lord of the facts. I know that facts can sometimes ruin arguments, but the facts are as follows. He may recall that the 1997 general election resulted in a Labour majority of something over 150 in the House of Commons. I will be honest enough to say that I almost wish I had thought of this at the time. It would have been extremely tempting to argue that the membership of this House should reflect the huge majority that the Labour Party had in 1997, and on which it was re-elected, with an almost identical majority, in 2001. The noble Lord can do the maths rather than me, but there would have needed to be a colossal addition to the Labour Benches in this House to reflect that.

I ask for a little indulgence and sympathy towards my dear old party from all quarters of this House. The Labour Party eventually became the biggest party in this House in 2005: that is, eight years after we received a colossal overall majority in two successive general elections. We have been the biggest party in this House for eight years out of the 110 years of our existence as a political party. I do not think it is being greedy to say that eight years is not too bad. If the noble Lord, Lord

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Tyler, did argue for a huge influx of Labour Peers at that stage, it was obviously on one of those days when I did not attend the House. I simply put it to him that he ought to reflect on that.

Perhaps one other matter on which the noble Lord should reflect, in this of all weeks, is the election in Italy, a country which adheres to the constitutional principle that the second chamber should be elected and have pretty well equal powers to those of the first chamber. He should reflect for a moment on whether that is a good idea to incorporate here. While he is about it, he should reflect on whether the proportional representation system of election to the Italian Parliament provides stability and security for a Government. One or two of the noble Lord’s theories have been road tested this week and I could not forbear but to refer to them. On that note, I will sit down.

Baroness Hayman: My Lords, tempted as I am, I will not follow the reflections of the noble Lord, Lord Grocott, on second chambers across the world. During my time as Lord Speaker, I developed a very good 45-minute lecture on second chambers around the world, but I suspect that the House would not appreciate hearing it today.

Like others, I am grateful to the noble Lord, Lord Steel, for giving us the opportunity to consider this issue today and, if I may say so, even more grateful to the noble Lord, Lord Hunt of Kings Heath, for bringing a proposition before the House that I think is in many ways more acceptable than the original one of the noble Lord, Lord Steel, given the interpretation that people could put on that and the suggestion of constitutional impropriety or of being unwelcoming to new Members. I appreciate what the noble Lord, Lord Laming, had to say on that. However, like the noble Lord, Lord Steel, I was deeply depressed when I read the Written Answer that appeared in Hansard on 15 February. While it is understandable that the Government should feel frustrated at the loss of their proposals for an elected House, those proposals were indeed lost. The reality of the situation is that we have two and a half years until the next general election and some time beyond that during which this House will continue to be an appointed House. It is constitutionally and politically irresponsible not to take at least some modest measures now to take us forward.

I am not a supporter of an elected House. I am a supporter of a rather radical reform of this House which is not encompassed in what is before us today, or the Bill before another place. However, I have to accept that that reality cannot be achieved at the moment. The elements in the amendment in the name of the noble Lord, Lord Hunt of Kings Heath, provide a minimum basis for us to take forward some of the changes that are need in your Lordships’ House. It will not radically reduce the numbers but, having been deeply involved with these issues for some time, I believe that not having a legislative base on which to build the House’s consensus—as I hope it will develop—on retirement is a terrible impediment to going forward. One thinks of resources as being about money and people, but as a Minister I learnt that, in politics, resources are also about

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legislative time. Allowing retirement to be a reality—in future “life” not meaning “for life”—is enormously important.

The issue of those with criminal convictions, though very small, narrow and, of course, not retrospective—how could it ever be?—is important for this House. It is also an important basis for our own disciplinary action in future. Even this minimalist legislative change is enormously important and would give us the basis on which to go forward. The other day, I asked the Leader whether he would do the service to this House that could be done by allowing us that minimum basis. I am very encouraged by the fact that there are those who, like the noble Lord, Lord Hunt of Kings Heath—though unfortunately not the noble Lord, Lord Tyler—believe in an elected House but still recognise the problems and the reality of the years ahead. Noble Lords who want to participate in the business of the House sometimes cannot because they cannot be within the Chamber. That is not a proper way for us to continue. We want to welcome new Members and if we are to do so, we also have to find a way in which membership of this House can cease. It is our responsibility to try and do that. We will not achieve it overnight. There will not be immediate unanimity about the grounds for retirement and how we go forward. However, since 1999 we have had constant reasons why proposed changes were not exactly right. We have had constant reversals to proposals for incremental change on the basis that we were going to have all-singing, all-dancing proposals for election. It has got us into terrible trouble over numbers and over financial support for Members. Those who were arguing that we needed to change that system sooner were told, “Don’t worry because very soon we will have a Bill, we will have elections, we will have a salaried House”.

It is not responsible to continue to do nothing. We have to make a start somewhere and I hope very much that the House will today make that view very clear.

Lord Higgins: My Lords, I very much welcome this debate. It is important that we bring pressure on the Government to carry out the urgent changes that have been set out by the noble Lord, Lord Steel, and those on the Opposition Front Bench. I certainly welcome that. Like others, I was concerned about the Written Answer to which the noble Lord, Lord Steel, referred.

The noble Lord on the Opposition Front Bench pointed out that it will clearly be a long time before there is any likelihood of our moving towards an elected Chamber. However, there is another point. I am optimistic on that issue because it is absolutely clear, despite the rather mixed procedure on voting in the other place, that its Members now clearly understand that it is not in their interests to have an elected House of Lords with regard to the situation both at Westminster and in their constituencies. It is high time that it is recognised that this is the case and that we should not go further forward on that point.

In all events, it is important that we deal with the issue of the size of this House and the other issues mentioned in the amendment. The noble Lord, Lord Rooker, referred to the arrangements set out in the coalition agreement. Again, the coalition should recognise

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that that is not a sensible way of dealing with the size of this House. We do not know on either of those points what will appear in the manifestos—the reality is that manifestos are cooked up behind closed doors, with virtually no consideration at all for Members of Parliament in either House. We cannot tell, but I hope that on both matters such proposals will not be included in either of the main parties’ manifestos.

The Motion proposes that there should be no increase in the number of Members until the size of the House is determined—I do not have the exact wording. However, it is extremely important that the Government clearly set out how they envisage the programme for the House of Lords. The House is getting bigger and bigger and, presumably at some stage, its size has to be reduced. The danger then, particularly after an election, is that it increases again. The Government need to say what they think is the maximum size possible within that transitional period and what the ultimate aim ought to be. We need some guidance on the optimum size of the House.

The other points that have been debated concern the various amendments in what I am still inclined to call the Steel Bill. We should simply go ahead with them, and the block in the House of Commons ought to be removed. It is difficult to avoid the impression that a sense of pique on behalf of the Deputy Prime Minister is leading to that block. We ought to go ahead with those changes, and we can perfectly well do so way before the date of the next general election.

Finally, perhaps I may make a more controversial point. Paragraph 47 of the Hunt report suggests that provisions for retirement might be made. I realise that this is highly controversial, but once a Treasury Minister, always a Treasury Minister. If there is one crucial issue in the Government’s policy at the moment, it is to reduce the deficit. On the proposal that one should create, for example, an incentive scheme whereby a modest payment was made based on the expenses incurred in the previous full year, minus travel expenses, it would be helpful to see to what extent that might produce a significant reduction in the size of the House. At all events, it is a means of saving public expenditure, which I hope would be acceptable.

I have one final point about the position of my own Front Bench. I am told that the position normally is that they vote against things that are not government policy. That is a rather strange doctrine: many good proposals are not government policy; that is no reason to vote against them. As for the proposals in the amendment, I think it is clear that the House has already approved them in the shape of the legislation sent to the other place. To then go and vote against them seems a very strange attitude to take.

12.30 pm

The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford): My Lords, I think that we have a good debate and that the outlines of the issues that the House will want to consider are already clear. The points that have been made very forcefully by a number of noble Lords have been well made; obviously I have heard everything that has been said. Although I recognise

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that I am new to this job, one issue on which I can be in little doubt about the opinions of this House is that which we have been debating today. Noble Lords have already been extremely generous—I might say unstinting—with the advice they have given me at every possible opportunity. I am glad to say that I have had a chance to discuss these issues with many noble Lords who have already spoken today and I will continue to do so in future, because I think that that is the right way to take the matter forward.

Coming new to the subject, I cannot have the great expertise and history that many noble Lords have on this matter. We have seen it again demonstrated by the noble Lord, Lord Grocott, and my noble friend Lord Tyler. These issues go back a long time. However, I do at least bring a fresh pair of eyes to some of these issues. Given that the underlying issue to which all noble Lords have referred is the size of the House, I thought that I should start by going back to look at the figures to see by how much the House has grown. This is what I found.

The House that Tony Blair inherited on taking office in 1997 had 1,067 Peers eligible to vote. Of course, that was before the removal of most of the hereditary Peers following the 1999 reform. The House that Gordon Brown inherited on taking office 10 years later in 2007 was smaller: there were 738 peers eligible to vote. As of this week, there are 761 Members of this House eligible to vote; that is 23 more than in 2007. We have had some discussion about the proportion and size of the number who have been introduced, so I looked at the numbers for the Conservative, Liberal Democrat, Labour and Cross-Bench Peers in particular. In 2007, 698 Members sat on those Benches and were eligible to vote. I accept that the equivalent figure today is higher: today it is 704, which is six more than in 2007. Those figures come from the House of Lords Library note of 27 June 2012; for this week’s figures, I consulted the online House of Lords registry.

Given that the overall number of Peers eligible to vote is not so different from five or six years ago, that brings me naturally to the important question raised by the noble Lord, Lord Hunt of Kings Heath, about the exercise of restraint in new appointments to the House, which is referred to both in his amendment and in my noble friend Lord Steel’s Motion.

Lord Brooke of Alverthorpe: My Lords, would the noble Lord be kind enough to give us the details of the average attendances from 1997?

Lord Hill of Oareford: I am coming on to talking about attendance and participation, which I recognise as an important issue. As far as the exercise of restraint is concerned, the amendment of the noble Lord, Lord Hunt of Kings Heath, refers to the Leader’s Group recommendation on the creation of new Members of this House. That read:

“Whilst we cannot recommend that there should be a moratorium on new appointments to the House—since, while the purpose of the House is to provide expertise, we must ensure that that expertise is refreshed and kept up to date”—

a point, I think, on which all noble Lords agree—

“we do urge that restraint should be exercised by all concerned in the recommendation of new appointments the House, until such time as debate over the size of membership is conclusively determined”.

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I would argue that this recommendation has been followed and that the Prime Minister has indeed shown restraint. Since the well publicised lists of May and November 2010, a total of eight new peers have been created, six of them on the Cross Benches; 42 life peers have, sadly, died. I suggest, therefore, that the Prime Minister’s record is consistent with the recommendation from the Leader’s Group, both in terms of exercising restraint and in ensuring that expertise is refreshed and kept up to date.

I now come to the point about which I was asked. The real issue is not so much the absolute number of those entitled to vote but attendance. Surely we all agree that attendance and participation are good things that we ought to encourage. That is one of the reasons why I am extremely keen, as a new Leader, to try to find new ways to help a wider range of Members to play a greater role in this House. That is why, as an early priority, I shortly plan to put proposals to the Procedure Committee that will provide more time and opportunities for Back-Bench Members to lead debates. My intention is to build on the work of my noble friend Lord Strathclyde, who, with the support of the Liaison Committee and the House, initiated a modest expansion in our Select Committee activity to include more pre-legislative and post-legislative scrutiny as well as a greater emphasis on single-session committees. I am keen to do that in order to ensure that a wider range of Members have the opportunity to serve on our Select Committees.

Noble Lords have raised the matter of Question Time. I welcome the fact that the Procedure Committee is due to come forward with some revised proposals on how we might make it easier for a wider range of Members to table Oral Questions. There is also the question of how we might encourage more Members to come in on supplementary questions and broaden participation. I am acutely conscious of how crowded the Chamber is during Question Time, just as it is at PMQs in another place. When you spend as much time as I now have the pleasure to do in your Lordships’ House, it is clear that, at other times of the day, this House is not as crowded as it is during Question Time.

As well as talking about the need for restraint, the amendment of the noble Lord, Lord Hunt, reiterated the support of this House for the proposals in the Bill introduced by my noble friend Lord Steel of Aikwood. Indeed, the House has already made its position clear. We passed the Bill without a Division and sent it to the other place last summer. It contains measures which my noble friend Lord Steel described as “housekeeping” and for which it is clear that there is widespread support in this House. I know that my noble friend is keen that the Government should take the Bill forward. As he said, he made his case directly to the Deputy Prime Minister earlier this week; he was the right person to talk to, as he is the Cabinet Minister responsible for this matter. Despite that, the Government’s position remains that we do not wish to facilitate the passage of the Bill. I understand that the Deputy Prime Minister made clear why that is the case. As my noble friend Lord Tyler said, it is because the House of Commons voted overwhelmingly last year in favour of an elected House of Lords. With that

28 Feb 2013 : Column 1180

in mind, no Government could credibly support a package of measures that could be perceived as anointing an all-appointed House.

Baroness Hayman: I am grateful to the noble Lord. I find this a confusing argument. If the will of the House of Commons was so clear and unambiguous, why are we not now spending our time debating the House of Lords Reform Bill? The fact is that the House of Commons purported to will the ends but refused to will the means. If you do not will the parliamentary time, you do not will the statute. I suggest to the noble Lord the Leader that the view of the House of Commons was not quite as unambiguously in favour of an elected House as he suggested.

Lord Hill of Oareford: Clearly I take the point made by the noble Baroness, Lady Hayman, that there was a difference between the extremely clear view expressed—a 71% majority in favour in principle of an elected House—and what happened. As she said, when push came to shove some of the consequences of an elected House, such as the issue about the balance of powers between the two Chambers and so on, perhaps became less compelling. However, that was the situation and the Government have made it clear that they will not bring forward further legislation to reform the House in what remains of this Parliament. This position was welcomed by many in the House.

Lord Reid of Cardowan: I am keen to preserve the spirit of consensus that my noble friend Lord Hunt generated. However, with respect to the Leader of the House, who I hope will be engaging in discussions with the Government and other authorities, the question of legitimacy that he raised—that it would not be legitimate when something had been done to appear to do the opposite subsequently—must be truly addressed. Does he recognise that not only was the idea of proportionality lost in the proposals for this House but it was previously rejected under this Administration by the country in the referendum on the alternative vote system? Given that there is an apparent consistency about the legitimacy of the processes and non-contradiction, will the Leader assure us that, given the fact that proportionality has been rejected by the country in an overwhelming vote and then lost during the proposals for reform of the House of Lords, the idea of proportionality through appointment to this House will not be pursued?

Lord Hill of Oareford: On the point about proportionality, the noble Lord will know that in the coalition document, the parties set out their position—although, as I argued earlier when I referred to the exercise of restraint, progress towards that form of words has not been put into effect in the same way. I agree with him about the importance of this being a consensual debate. I do not seek to make it political.

Lord Richard: My Lords—

Lord Hill of Oareford: Perhaps I may just finish this point. As things stand, it is clearly the case that the proportion of Labour Peers in this House is greater than was the case in the popular vote at the general election. It has not been the case since then, in 2010 or subsequently, that the Government have sought to

28 Feb 2013 : Column 1181

redress the balance in a dramatic way. As we heard, many new Labour Peers were created. Therefore, I hope that restraint and the measured way in which the Government have proceeded with new appointments have provided the noble Lord with some reassurance. We are not saying that we rule out the measures that the Bill in the name of the noble Lord, Lord Steel, seeks to enact. We are saying that they should be considered in their proper context as part of a wider reform of the House.

If I may, I will say something briefly about the effectiveness of the measures proposed in the Bill to substantially reduce the number of Members who attend this House each day. This point was made by the noble Lord, Lord Laming. In other words, would my noble friend’s Bill tackle the problem of size that it seeks to address? There has been mention already about the non-statutory, voluntary retirement scheme that has been put in place. Two Peers have taken advantage of it. Therefore, there must be some reason for the reticence of Members in volunteering for retirement. I am not personally persuaded that making the scheme statutory would overcome that reticence. Some supporters of my noble friend’s measures suggest that some kind of payment might help overcome this reticence. I should make clear, as I have done before, that the Government do not support making taxpayers’ money available to Members of the House to encourage them to retire. That would be wrong, and it would be seen to be wrong. I am glad to hear that my view on this is shared by all groups and all parties.

On excluding infrequent attendees, I say that those Peers currently put no pressure on the Benches at Question Time. If pressure is to be reduced, the people who need to retire are those who attend, not those who do not. I agree strongly that criminals should be excluded, but, unless there is a grand conspiracy in the House of which I am currently unaware, the suggested policy would not reduce the number of those currently attending the House.

12.45 pm

Baroness Farrington of Ribbleton: My Lords, as a member of the Leader’s Group under the noble Lord, Lord Hunt, and as a Whip in your Lordships’ House, I would not hazard a guess as to the number of noble Lords who would take permanent leave of absence. However, I recollect, when I was in both those roles, a number of noble Lords who attended quite regularly and with great difficulty because they felt that they had been asked to come in and serve for life. I would not dream of naming them, but some are quite regular attendees because they feel honour bound to attend because they feel that, were they to cease to attend, their expertise, which some have said they feel is a little out of date, would not be replaced in the interest of not making the House too large.

Lord Hill of Oareford: I understand that point. As is normally the case with the noble Baroness, it is sharp, perceptive and fair.

I am conscious that the House would like to move forward. I will say a brief word on the Motion that was moved by my noble friend Lord Steel of Aikwood

28 Feb 2013 : Column 1182

and about our powers of regulation in this area. The Leader’s Group got it right when it said that it could not recommend a moratorium on new appointments to the House. That must be correct. The Life Peerages Act 1958 gives the Queen the power to create peerages for life, with the right,

“to receive writs of summons to attend the House of Lords and sit and vote therein accordingly”.

Therefore, I agree with the way that the noble Lord, Lord Hunt of Kings Heath, and my noble friend Lord Cormack approached the issue. I cannot see that our right as an individual House to self-regulate includes the power to override that Act of Parliament.

I have set out why I believe that the Motion in the name of my noble friend Lord Steel calls for much action that has already been taken, and restraint that has been exercised. I have listened to the debate and recognise clearly that Members on all sides feel very strongly about the question of size. However, I hope that the figures that I shared with the House demonstrate that some beliefs about the issue of overall size are not quite borne out by the facts.

I believe very strongly that we must do more to accommodate rising attendance and the consequent increase in demand from Members, especially newer Members, for opportunities to take part in our work. I have strong sympathy with those who are uncomfortable about Members convicted of a serious prisonable offence returning to the House. Pending primary legislation to exclude Members on those grounds, I would certainly support steps to explore measures that we ourselves might take to discourage Members in that category from taking part in the work of our House.

Those are two areas in which we can help ourselves. On the remainder, noble Lords have set out their clear views forcefully. I have attempted to set out the Government’s position. I have no doubt that our discussions, both on the Floor and elsewhere, will continue. I will certainly play my part in those. In the mean time, I hope that the noble Lord, Lord Hunt of Kings Heath, will withdraw his amendment.

Lord Elton: My noble friend asked for restraint. Perhaps I may suggest some restraint on the part of Her Majesty’s Government. I can think of no more appropriate opportunity to put this point. I have watched the House of Commons for a great many years. I have noticed how it changes during a Parliament. At the beginning of a Parliament, the wisdom and experience of those who have served is diluted by many who come in with their head full of theories but no understanding of what the effects would be. As we have been not promised but led to expect legislation in the next Parliament, perhaps I may ask my noble friend to exercise his greatest efforts to see that reform is not undertaken in the first two years, so that those who talk about it will know about it.

Lord Hill of Oareford: My Lords, I am always in favour of people knowing about the things that they are talking about. I always listen with great care to what my noble friend Lord Elton says.

Lord Hunt of Kings Heath: My Lords, I shall respond very briefly. I welcome the willingness of the Leader of the House to seek advice from Members of your

28 Feb 2013 : Column 1183

Lordships’ House. He is a fresh pair of eyes and we very much look forward to working with him. I also very much support his work in trying to encourage Members who perhaps are not as active as possible to participate more in the future. Ultimately, though, I was disappointed with his response. He started to trade statistics and there always seems to be a risk in doing so. My general conclusion is that whatever Government are in power, in general and over time that governing party will tend to see an increase in the number of seats they hold in the House of Lords. I certainly agree that we need fresh blood form time to time, and I actually agree that restraint has been shown so far. As the noble Lord, Lord Elton, said, the issue is the future. The rumours which have been around this House for quite a long time now are that the Government want to make a very large number of new appointments in the next few weeks or months. Above all, I hope that the noble Lord will consider this. The plea of restraint is very much directed at those future appointments.

The noble Lord, Lord Cormack, and the noble Baroness, Lady Hayman, helpfully reminded the House of my own views on Lords reform. I was hoping that my noble friends behind me might forget that, but they are right—I have consistently voted in favour of an elected House. However, the Leader of the House essentially says that because the Commons voted at Second Reading for Mr Clegg’s Bill, that means that it would be wrong to put to them proposals for incremental housekeeping. As someone who favours an elected House I strongly refute that. First of all, that Bill did not go through. Secondly, under the proposals of Mr Clegg, or indeed those of my right honourable friend Mr Straw, if a party pledged an elected House of Lords and that party came into power in 2015, the first element of elected Members would not come to your Lordships’ House before 2020. That is seven years away. For the Leader of the House to say that no useful housekeeping or incremental change can take place before that moment is a matter of regret. I think that is the implication of what he said.

I do not think that we can wait. We need to indicate to the Government that sensible change ought to happen as soon as possible and say that we very much hope that restraint will be exercised in the appointment of new Members. It is important that the House has a way of indicating its support for those intentions, so I will put this to the vote.

12.54 pm

Division on Lord Hunt of Kings Heath's amendment.

Contents 217; Not-Contents 45.

Amendment agreed.

Division No.  1


Adams of Craigielea, B.

Adonis, L.

Afshar, B.

Alton of Liverpool, L.

Anderson of Swansea, L.

Andrews, B.

Armstrong of Hill Top, B.

Armstrong of Ilminster, L.

28 Feb 2013 : Column 1184

Bach, L.

Bassam of Brighton, L. [Teller]

Bates, L.

Bath and Wells, Bp.

Berkeley, L.

Best, L.

Bhatia, L.

Bilston, L.

Blair of Boughton, L.

Borrie, L.

Bowness, L.

Bradshaw, L.

Broers, L.

Brooke of Alverthorpe, L.

Brookman, L.

Browne of Belmont, L.

Browne of Ladyton, L.

Buscombe, B.

Butler-Sloss, B.

Campbell-Savours, L.

Christopher, L.

Clarke of Hampstead, L.

Clinton-Davis, L.

Cobbold, L.

Collins of Highbury, L.

Colwyn, L.

Condon, L.

Cormack, L.

Corston, B.

Coussins, B.

Craig of Radley, L.

Craigavon, V.

Crawley, B.

Crickhowell, L.

Davies of Oldham, L.

Davies of Stamford, L.

Dean of Thornton-le-Fylde, B.

Dear, L.

Deech, B.

Dobbs, L.

Donaghy, B.

Donoughue, L.

Dubs, L.

Eames, L.

Eccles of Moulton, B.

Eden of Winton, L.

Elder, L.

Elton, L.

Elystan-Morgan, L.

Empey, L.

Exeter, Bp.

Falkland, V.

Farrington of Ribbleton, B.

Fellowes, L.

Filkin, L.

Fookes, B.

Foulkes of Cumnock, L.

Framlingham, L.

Freeman, L.

Gale, B.

Gardner of Parkes, B.

Glasgow, E.

Glenarthur, L.

Gordon of Strathblane, L.

Gould of Potternewton, B.

Grade of Yarmouth, L.

Grantchester, L.

Greengross, B.

Grenfell, L.

Grey-Thompson, B.

Grocott, L.

Hameed, L.

Hannay of Chiswick, L.

Hanworth, V.

Harris of Richmond, B.

Harrison, L.

Hart of Chilton, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Hennessy of Nympsfield, L.

Higgins, L.

Hollis of Heigham, B.

Howarth of Breckland, B.

Howarth of Newport, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Hughes of Woodside, L.

Hunt of Kings Heath, L.

Hussein-Ece, B.

Inglewood, L.

Irvine of Lairg, L.

James of Blackheath, L.

Janner of Braunstone, L.

Janvrin, L.

Jenkin of Roding, L.

Jones of Whitchurch, B.

Jopling, L.

Judd, L.

Kakkar, L.

Kennedy of Southwark, L.

Kennedy of The Shaws, B.

Kilclooney, L.

King of Bridgwater, L.

Kingsmill, B.

Knight of Weymouth, L.

Lawson of Blaby, L.

Lea of Crondall, L.

Lee of Trafford, L.

Lester of Herne Hill, L.

Lewis of Newnham, L.

Lipsey, L.

Liverpool, Bp.

Lloyd of Berwick, L.

Low of Dalston, L.

Lucas, L.

Luce, L.

Lyell, L.

McAvoy, L.

Macdonald of Tradeston, L.

MacGregor of Pulham Market, L.

McIntosh of Hudnall, B.

McKenzie of Luton, L.

Maclennan of Rogart, L.

Maginnis of Drumglass, L.

Mar, C.

Marlesford, L.

Masham of Ilton, B.

Mawson, L.

Maxton, L.

Miller of Hendon, B.

Monks, L.

Morgan of Huyton, B.

Morris of Handsworth, L.

Morrow, L.

Moser, L.

Northbrook, L.

Norwich, Bp.

O'Cathain, B.

Ouseley, L.

Palmer of Childs Hill, L.

Patel of Bradford, L.

Paul, L.

Phillips of Sudbury, L.

Pitkeathley, B.

Ponsonby of Shulbrede, L.

Prashar, B.

Prescott, L.

Prosser, B.

Quirk, L.

Ramsay of Cartvale, B.

Ramsbotham, L.

28 Feb 2013 : Column 1185

Redesdale, L.

Rees of Ludlow, L.

Reid of Cardowan, L.

Richard, L.

Richardson of Calow, B.

Rooker, L.

Royall of Blaisdon, B.

Ryder of Wensum, L.

St John of Bletso, L.

Sandwich, E.

Sawyer, L.

Scott of Foscote, L.

Selkirk of Douglas, L.

Selsdon, L.

Sharkey, L.

Sharp of Guildford, B.

Shaw of Northstead, L.

Sherlock, B.

Simon, V.

Singh of Wimbledon, L.

Skelmersdale, L.

Slim, V.

Smith of Basildon, B. [Teller]

Smith of Finsbury, L.

Soley, L.

Steel of Aikwood, L.

Stephen, L.

Stern, B.

Stevenson of Balmacara, L.

Stirrup, L.

Stoddart of Swindon, L.

Storey, L.

Sutherland of Houndwood, L.

Symons of Vernham Dean, B.

Temple-Morris, L.

Thomas of Winchester, B.

Thornton, B.

Tonge, B.

Touhig, L.

Trees, L.

Turnberg, L.

Turner of Camden, B.

Walpole, L.

Warner, L.

Warnock, B.

Watson of Invergowrie, L.

Wheeler, B.

Whitaker, B.

Wigley, L.

Wilkins, B.

Williams of Elvel, L.

Wills, L.

Wilson of Tillyorn, L.

Wright of Richmond, L.

Young of Hornsey, B.

Young of Norwood Green, L.


Addington, L.

Ahmad of Wimbledon, L.

Anelay of St Johns, B. [Teller]

Astor of Hever, L.

Attlee, E.

Bew, L.

Brooke of Sutton Mandeville, L.

Clement-Jones, L.

Cope of Berkeley, L.

Courtown, E.

De Mauley, L.

Deighton, L.

Fowler, L.

Fraser of Carmyllie, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gold, L.

Hanham, B.

Hill of Oareford, L.

Howe, E.

Hunt of Wirral, L.

Kramer, B.

Laming, L.

Mackay of Clashfern, L.

McNally, L.

Nash, L.

Newby, L. [Teller]

Northover, B.

Perry of Southwark, B.

Popat, L.

Randerson, B.

Seccombe, B.

Stowell of Beeston, B.

Swinfen, L.

Taylor of Holbeach, L.

True, L.

Trumpington, B.

Truscott, L.

Tyler, L.

Verma, B.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Wilcox, B.

Younger of Leckie, V.

1.06 pm

Lord Steel of Aikwood: My Lords, I beg to move formally the substantive Motion as amended and, in doing so, would say simply that the House has spoken very clearly, which I hope will strengthen the hand of the Leader of the House in future discussions with the Government.

Motion, as amended, agreed to.

Succession to the Crown Bill

Succession to the Crown Bill14th Report from the Delegated Powers Committee


1.07 pm

Relevant documents: 14th Report from the Delegated Powers Committee and 11th Report from the Constitution Committee

28 Feb 2013 : Column 1186

Clause 1 : Succession to the Crown not to depend on gender

Amendment 1

Moved by Lord Trefgarne

1: Clause 1, page 1, line 3, leave out “28 October 2011” and insert “31 December 2060”

Lord Trefgarne: My Lords—

Baroness Anelay of St Johns: My Lords, my noble friend Lord Trefgarne will hesitate for a moment or two so that colleagues can leave the Chamber. We will then take his Amendment 1.

Lord Trefgarne: My Lords, I have never quite understood, and do not now understand, why it is thought so necessary that this Bill should be driven through with such speed. The plain fact is that the arrangements it seeks to change—I do not disagree with all of them—have been in place in some cases for many hundreds of years. Why we need not only to drive the Bill through swiftly but also to backdate one of its provisions is not immediately obvious to me. I therefore propose that, at the end of the first clause, we should provide that it should come into effect in, say, 50 years’ time, which is a very short time in relation to how long these arrangements have been in place. That would be an appropriate change to the Bill and I beg to move.

Baroness Hayter of Kentish Town: My Lords, given that we support the Bill, this amendment does sound rather like, “Please make me chaste, but not quite yet”. Some of us have waited, particularly for the first part of it, for many years and we certainly would not want to see any delay. Therefore, we hope that the amendment will not be passed.

Lord Elton: My Lords, I want to add a note of concern to that of my noble friend Lord Trefgarne by referring to the report on the Succession to the Crown Bill produced by the Constitution Committee, which holds the strong view that there is no need for haste.

The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, the effect of my noble friend’s amendment would be, as he has indicated, to delay the removal of the male gender bias in the line of succession for almost 50 years. Perhaps I may pick up the point made by my noble friend Lord Elton and his reference to the report of your Lordships’ Constitution Committee. It is fair to say that since that committee reported, there has not been any undue haste. The time made available for debate on this Bill in the other place was not even fully used up, and in your Lordships’ House we are proceeding in the normal fashion with the appropriate elapses of time between the different stages. There is certainly no intention to cut short the debate in this House.

My noble friend has asked why we are doing this now and at this speed. The position is that the Prime Ministers of 16 Commonwealth nations, of which Her Majesty is the head of state, agreed during the Commonwealth Heads of Government Conference in

28 Feb 2013 : Column 1187

Perth in October 2011—that is why the date has been put into the Bill—to work together towards a common approach to amending the rules on the succession to their respective Crowns. It is fair to say that that was the product of considerable work and discussion over many years. Indeed, discussions were ongoing during the previous Administration in this country. All these countries wish to see change in two areas, the first of which is covered by this clause, and that is to end the system of male preference primogeniture, under which a younger son can displace an elder daughter in the line of succession. It is right and appropriate that this clause will remove a piece of long-standing discrimination against women that may well have been acceptable in earlier centuries, to which my noble friend referred. This provision will modernise and affirm the place of our constitutional monarchy.

At Second Reading the noble Lord, Lord Janvrin, said that:

“If in the future within the line of succession a younger son were to take precedence over an older daughter, it would seem to be at least controversial and at worst discriminatory, out of date and out of touch. To make this change now, therefore, strengthens the monarchy because it avoids any risk of such deep controversy”.—[Official Report, 14/2/13; col. 802.]

That is why this is an appropriate time to make the change, because it will be done without affecting anyone who currently would have a prior claim on the throne. If, however, we wait for a situation where there may be a daughter and then a younger brother, and we tried to make the change then, it is inevitable that that would be more controversial.

Perhaps it is also worth reflecting that if the Duke and Duchess of Cambridge have as their first born a son, have only sons or, indeed, have only daughters, the effect of this clause may not bite until the next generation, possibly after 2060. However, as the noble Lord, Lord Janvrin, made clear, it would be controversial and possibly even destabilising to the monarchy to have this kind of debate at that point. We look forward to the birth of the Duke and Duchess of Cambridge’s first child knowing that we can celebrate, when this Bill is passed, that whether the baby is a boy or a girl they will have an equal claim to the Throne. I therefore invite my noble friend to withdraw his amendment.

Lord Trefgarne: My Lords, I hope that we will not hear too much more about the Commonwealth Heads of Government Conference where it was all said to be agreed. These matters are not agreed by ministerial diktat, however senior and distinguished the Ministers may be, but by the Parliaments of the countries concerned, and in some cases by a referendum as well. When the Heads of Government agreed all this in Perth back in 2010, it was subject to parliamentary approval in the relevant countries. That parliamentary approval has not yet been received, not least in this country. I hope very much that we will be thinking in terms of parliamentary approval rather than ministerial diktat, upon which my noble and learned friend seems to be relying.

1.15 pm

Lord Wallace of Tankerness: I entirely accept what my noble friend says on the importance of the Parliaments; indeed some of the realms do not necessarily feel they

28 Feb 2013 : Column 1188

need parliamentary approval, but obviously in this country we do. I am sure that he would agree that we needed prior agreement before any measures could go forward to the respective Parliaments.

Lord Trefgarne: Yes, but that is not included in this clause. That said, I do not wish to delay your Lordships on this matter. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 2 not moved.

Clause 1 agreed.

Amendment 3

Moved by Lord Northbrook

3: After Clause 1, insert the following new Clause—

“Succession to the Duchy of Cornwall not to depend on gender

In determining the succession to the Duchy of Cornwall, the gender of a person born after 28 October 2011 does not give that person, or that person’s decendants, precedence over any other person (whenever born).”

Lord Northbrook: My Lords, I rise to move Amendment 3. If His Royal Highness and the Duchess of Cambridge have a daughter, she may, thanks to the Bill, be able to become queen. However, she cannot as of right become Duchess of Cornwall or Countess of Merioneth. That seems to be an anomaly, particularly with the Prime Minister’s focus on equality. I beg to move.

Lord Lloyd of Berwick: My Lords, I support the amendment. I do so because many years ago when I was a struggling barrister, I was appointed Attorney-General to the Prince of Wales, which carried with it also being Attorney-General to the Duchy of Cornwall. Therefore, I do have some—albeit from rather long ago—experience of what the Duchy of Cornwall is and how it works.

In his reply to the Second Reading debate, the noble and learned Lord made three points, at column 830, about how the Duchy of Cornwall would be affected if this Bill becomes law, as I hope it will. I very much apologise that I was unable to be present, but I was abroad. First, he pointed out that Princess Elizabeth, when heir to the Throne, did not become the Duke of Cornwall. Secondly, he pointed out that if the Bill becomes law and the heir to the Throne is a daughter, the title would go into abeyance in the ordinary way. Thirdly, he pointed out that if the heir to the Throne is a daughter, she will not suffer financially from the title going into abeyance because of the Sovereign Grants Act 2011, to which the noble Lord, Lord Janvrin, had drawn attention during the debate.

As to the first point, it is of course true that the title fell into abeyance when Princess Elizabeth was heir to the Throne. As to the third point, it is clear that the heir to the Throne will not suffer financially anyway, so to some extent we can disregard that as a relevant point. However, I question the second point, and

28 Feb 2013 : Column 1189

whether there is any need for the title to go into abeyance. Why, I ask the noble and learned Lord, should it?

It seems to me that to enable the heir to the Throne to become Duke of Cornwall if female is the logical extension of the provisions of this Bill. It is within—if only just—the royal title. Obviously, there is no difficulty in a female heir to the Throne being called the Duke of Cornwall because, as we all know, the Queen is also the Duke of Lancaster. In addition to what I submit is the logical extension of this Bill, there is a practical reason why I support this amendment.

I remember very well meetings of the Duchy council, which the Prince of Wales, then a very young man, would always attend. He took a close interest in the affairs of the Duchy. One must remember that we are not talking about just a paper title but a large estate and what has become a large business in recent years. It is my belief that the Prince of Wales’s experience in chairing the Duchy council and dealing with a large estate and matters of business has served him very well in subsequent years.

That experience, which has served the present Prince of Wales well, should not be denied to a future heir to the Throne if she is a woman. In fact, one might almost say it is all the more important that she should, as heir to the Throne, have the sort of experience that the present Prince of Wales has had. I hope that that experience will become available irrespective of the gender of the heir to the Throne. This may come as a bit of a surprise to the noble and learned Lord, but perhaps he will consider the matter and take advice from the Duchy of Cornwall itself if necessary—I could perhaps give him advice—that this is a sensible extension of the Bill.

Lord Lexden: My Lords, I, too, support this amendment and will add a small footnote to what the noble and learned Lord, Lord Lloyd, has just said. I understand that an amendment would be needed to the Duchy’s founding charter, drawn up in 1337, to enable a female heir to inherit. As the noble and learned Lord, Lord Lloyd, stressed, this is a Bill that provides for gender equality. If that principle is to be fully and completely embodied in it, action must surely be taken to revise the founding charter of the Duchy of Cornwall so that a female heir to the Crown can succeed to it.

As the noble and learned Lord, Lord Lloyd, so wisely pointed out, there is a further practical consideration. If the Duchy is not held by an individual but placed in abeyance and administered by its council, there is a real risk that its affairs will not be administered with efficiency and skill. There is a strong view held by many that the absence of a Duke of Cornwall between 1936 and 1958 led to a serious decline in the running of its estates and other properties, a decline from which the present Duke, now the Prince of Wales, successfully rescued it. For these reasons, I support this amendment.

Lord Mancroft: My Lords, I, too, support my noble friend’s very important amendment. I was going to make the point that I have heard repeated again and

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again—which my noble friend Lord Lexden has made very strongly for me—that not only does the Duke of Cornwall need a Duchy but the Duchy needs a Duke. Estates, businesses, or whatever you may choose to call them in the modern day and age, that are run by councils, groups of trustees or boards of directors are all very well but in the case particularly of a large agricultural estate such as the Duchy or Cornwall—and there is none larger or better run—the present Duchy of Cornwall runs so well because the Duke of Cornwall has taken such an interest in it, and if there were not a Duke, regardless of that Duke’s sex, I think that would not happen. My noble friend Lord Lexden’s point is absolutely valid.

Another point that has been made, which I will repeat, is that the splitting apart of ancient titles is unsatisfactory and untidy. In dealing with important constitutional matters, although these are technicalities and perhaps of interest only to historians, politicians and noble Lords who can be bothered to spend their Thursday afternoons in your Lordships’ House, they are important matters and need to be done tidily. I do not think they are done tidily in the Bill.

Lastly, when my noble and learned friend Lord Wallace responds, will he assure the House that the Duke of Cornwall—the Prince of Wales—was consulted over this and that he is comfortable with the way in which the Bill is going forward? I do not wish my noble and learned friend the Minister to breach any confidences or step outside the correct procedures but it would give comfort to the House to know that the Government had consulted His Royal Highness and that the Duchy and the council and the Duke of Cornwall himself were comfortable with the way in which this is proceeding.

Lord Trefgarne: My Lords, I do not intend to delay your Lordships on this matter. All I will say is that a number of years ago now I had to deal with His Royal Highness the Prince of Wales in his capacity as the Duke of Cornwall in connection with the use of Dartmoor as a military training area. He dealt with it with enormous skill and understanding and we were grateful to him for that. If this amendment seeks to preserve and encourage those arrangements, I am in favour of it.

Lord Berkeley: My Lords, I support this amendment, but for rather different reasons from those of some other noble Lords who have spoken. It is ironic to me that we are having a debate, quite rightly, about equality between men and women in inheriting titles. I understood from what the noble and learned Lord, Lord Wallace, said at Second Reading that if the next heir to the Throne is a lady, she could be called either the Prince of Wales or the Princess of Wales—heaven knows; I would have thought she would be a princess, but I am no expert. If she can be called the Princess of Wales, why can she not be called the Duchess of Cornwall, or the Duke of Cornwall, or whichever way we want to put it? It seems extraordinary, really.

At Second Reading, I spoke about a number of issues that I had with the current structure of the duchy: whether it is in the private or public sector; what it does with its revenue; and the ability of the

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Prince of Wales to approve legislation. Frankly, this is one of the few Bills that he and Her Majesty should have a view on because it affects them in their roles. However, there are an awful lot of other issues on which I have not put amendments down because I was advised that they were a bit outside the Long Title, so I shall be looking to prepare and propose a Private Member’s Bill on some of these issues in the next Session, I hope. When the noble and learned Lord, Lord Lloyd, said that he had been Attorney-General to the Duchy of Cornwall, I thought, “Fine, the Duchy is getting free legal advice from some of the best lawyers in the land”. However, it then goes to tribunals and says it is a private organisation. Well, no other private organisations get free legal advice from an attorney-general. There are many other issues to discuss on that, but I support the amendment as a logical extension to the Bill. I look forward to hearing the Government’s response.

Lord Deben: My Lords, we are dealing with anomalies here and seeking to remove them. One reason we are doing that is because it sends a very clear signal about the attitude of the state towards certain issues. That is why so many of us are such supporters of the removal of gender discrimination in this way.

I genuinely find it difficult to understand why, if we are going to do that, we have not thought through one or two other things that are also signals. The concept of the heir to the Throne having this remarkable opportunity, which history has given them, of running a significant estate and dealing with significant matters of business is something that has characterised the monarchy for a long time and has given the present heir a remarkable opportunity, which he has used to huge effect.

I do not think it right to put before the House a Bill that specifically denies a female heir that opportunity. I know what will happen. She will in effect be the Duchess of Cornwall. I have no doubt that she will be asked to take the chair. I have no doubt that all this will happen. But what I find so difficult—I rise on this point only because it is a continuing concern of mine—is that we do not understand that when you decide you are going to deal with an anomaly, you have to deal with it. You cannot say, “I am going to deal with this bit of it, but I have a particular concern that it would mean changing something that happened in 13-something”. What a good opportunity to remind people of the great length of our history and of the fact that at this moment something has changed and we want to put it right.

So far I have found the Government at their least compelling when they have found it impossible to recognise that these things hang together. I hope that the noble and learned Lord, Lord Wallace, can accept that this will not make any difference in the other countries of the Commonwealth. No one will say, “I am frightfully sorry, I cannot vote for this because I am not prepared to give the Duchy of Cornwall to a female”. Surely this is something we can sort out properly. If the argument is that this might affect the issue of primogeniture with regard to your Lordships’ House and those who were once in it, then the answer is simple: this whole Bill is about the monarchy. We are

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talking about the monarchy. We are not talking about anybody else. Nothing inevitably comes from this, except possibly a spirit of change. There is nothing that is a precedent.

On this occasion, could we please see that this is a sensible thing to do? Would it not be good to do a sensible thing because it is sensible, rather than to argue about it because there is another argument?

1.30 pm

Lord James of Blackheath: My Lords, my noble friend Lord Deben has been singing from the same song sheet as my noble friend Lord Trefgarne. In effect, he is saying that this is too complicated to rush and we need more time on much more detail. We are on only the third amendment and already we are looking at a series of complexities which have not so far been considered. This Bill is riddled with the potential for unintended consequences of the type we are talking about. We need much more thought and much more time. In the two weeks since Second Reading I have had a great many communications from your Lordships, mostly disagreeing with something I said on that occasion. I have a shortlist of what the principle points are and they are not really addressed in the process today.

First is the point that no Parliament may bind its successors. One of my contentions is that the deed of rights does effectively bind its successors, as does the Act of Settlement. The question of entrenchment was not considered at all, yet it is fundamental to that issue. There is the issue of the sovereignty of Parliament and of the Crown. The Crown in Parliament is a special factor and an expression which needs to be redefined in that context. There is also the question of the limitations that the Bill seeks to avoid and thus whether the constraints which normally apply do not apply to the limitations of power. Amazingly, one of your Lordships accused me of committing “desuetude”. I do not have a clue what desuetude is, but I assure you that it has nothing to do with what has been going on in the Liberal Democrat party.

If the tabloids think they have a new story, I wish to make the point that this Tory Peer has never done desuetude in his life as far as he is aware and if he did, it was an accident and he was lured into it unawares. I found that desuetude is not recognised under British law and does not apply, so we can kick it into touch. On all the other issues, particularly the right of this House to accept the delegation of the royal prerogative, I stand firmly in my belief that we do not have the right to act accordingly and we have been ill advised and inadequately advised about our proper role and authority.

We do not have time available for all these great issues. My concern is that although we could go into them individually now or at some other time, at the rate we can process with this, we do not have enough days or months available to consider this important Bill. I am not opposed to it, but I will leave your Lordships with two thoughts. There are two awful, unintended consequences which we have not thought of. First, if we pass this Bill we have effectively done away with the need for a Scottish referendum because

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we have driven a coach and horses through the 1707 Act of Union. It no longer exists because you cannot pass this Bill compatibly with the separate proclamation and coronation oaths required by the 1707 Act.

Secondly—and I hate to say this—I fear that if we pass this Bill we have in effect created what will amount to the accidental and unintended abdication Bill. I cannot see how this Bill can be given Royal Assent, and without it, it cannot pass. In those circumstances, the only way it could ever be passed is during an interregnum, which can happen only with the death of a monarch or an abdication. There would then have to be an interval of several days before the proclamation of the new monarch in which this Bill could be passed. I cannot see that it could be done in any other way. We are in an area of total ignorance and floundering. We need more time and more guidance.

Lord Lang of Monkton: My Lords, I support the amendment of the noble Lord, Lord Northbrook. In particular I endorse everything said by my noble friends Lord Lexden and Lord Mancroft. One point to make by way of modest qualification is that I understand there are a number of other dukedoms and titles held by the Prince of Wales which might also need to be changed and modified to bring them into the needs of this Bill. As long as this does not delay action on the Duchy of Cornwall, I hope that the Duchy of Lancaster and any other such duchies should be looked at quickly as well. It would be better to have one composite solution to the problem rather than a piecemeal one.

Lord Berkeley: My Lords, I have a question for the noble Lord, Lord James. As far as I recall, he spoke at Second Reading about the House committing collective treason. Why has he not put down some amendments in Committee to take these arguments forward, so we do not all commit treason?

Lord James of Blackheath: My Lords, I sought guidance on this. I did not get adequate guidance to enable me to formulate a wording which I could see was appropriate. I wholly agree that it is required. Given time it can be done, but we do not have time.

Baroness Hayter of Kentish Town: My Lords, as the noble Lord, Lord Deben, says, the issue is a sensible one. I then break with the tradition of everyone else who has spoken by saying it may be a sensible issue, but the issue is about property, the ownership of an estate, about title—as reflected in the words of the noble Lord, Lord Lang—or about a business, in the words of the noble and learned Lord, Lord Lloyd of Berwick. While it may be an important issue, it is not about the constitution of this country and therefore not really appropriate to what is an important and, in our view, welcome change in our laws of succession. That is what this Bill is really about.

It is quite possible that the founding charter governing the Duchy of Cornwall may need changing—I had not realised that it was in 1337. Interestingly, 600 years after that, from 1937 to 1952, the title fell into abeyance. Our present monarch seems to have done a fantastic job without the benefit of being the Duke of Cornwall in that period, so I am not certain that this needs to be

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done. If it does, it should be done by another way and not in this Bill, which is about our rules of succession. I hope that this is what your Lordships’ House will address itself to.

Lord Wallace of Tankerness: My Lords, I thank my noble friend Lord Northbrook for introducing this amendment, which has generated a considerable amount of debate and discussion. I understand where he and other noble Lords who contributed to the debate are coming from as they seek to remove gender bias in the descent of the Duchy of Cornwall. I will try to clarify the current situation. The title can pass only to the eldest son and heir of the monarch. Thus—as has been indicated—when she was heir presumptive to the throne, Her Majesty, as Princess Elizabeth, did not hold the title of Duke of Cornwall.

As has been said, the title and inheritance of the Duchy were created by King Edward III in 1337, and vested in the Black Prince by a charter having the authority of Parliament. My noble friend Lord Deben said that this was an opportunity seek to remove anomalies. It is fair to say that this one is perhaps even slightly more anomalous than it might appear on the surface. The mode of descent specified by the charter is unusual, and differs from that which commonly occurs in respect of hereditary titles. The monarch’s eldest son is automatically Duke of Cornwall immediately that he becomes heir apparent. However, if the monarch has a son who is the heir apparent and that son dies before the monarch, leaving a son of his own—a grandson of the monarch—the grandson would become heir apparent but would not be Duke of Cornwall because he is not the son of the monarch. It is not just a question of daughters not inheriting the title; it would be that grandsons did not, either.

With the Duchy of Cornwall we therefore have an unusual and interesting piece of English history that does not conform to the standard rules of descent for hereditary titles. However, it is exactly that: a piece of English history and not an issue that is of direct relevance to the succession to the Crown—as the noble Baroness, Lady Hayter, indicated—nor to the other realms of the Commonwealth. I made it clear at Second Reading that it is not the Government’s intention to deal in this legislation with UK-specific matters. This amendment very much falls into that category.

My noble friend Lord Lang referred to other titles, to which the same arguments apply. I tried during my reply at Second Reading to set out what would happen to these. I am happy to write to my noble friend to outline the cases in these situations.

Lord Trefgarne: My Lords, when the Minister writes to our noble friend Lord Lang on the various other titles, would he include an answer to the point I raised at Second Reading: whether the Princedom of Wales can be passed to a female if the sovereign of the day so decides? He was not able to give me an answer to that at Second Reading, as I recall. If he could touch on the matter in his letter to our noble friend Lord Lang, I would be greatly obliged.

Lord Wallace of Tankerness: My Lords, I understand that the creation of the Princedom of Wales, let along the matter of it going to a daughter, is very much a

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matter for the personal decision of the sovereign. The current Prince of Wales did not automatically become Prince of Wales upon Her Majesty’s accession in 1952; that did not happen until 1958. It is a matter for the sovereign, and I will seek to set that out in a letter which I will copy to others who contribute to this debate.

The noble and learned Lord, Lord Lloyd, raised a query about the efficient running of the estate between 1936 and 1952. There have of course throughout history been stretches when there has been no Duke of Cornwall, and the Duchy continues to today. I pay tribute to the leadership which the present Duke of Cornwall has given. When I was in the other place, my constituency, Orkney and Shetland, could not have been more remote from Cornwall. Even in Orkney and Shetland, however, we were aware of the work of the Duke of Cornwall on his estate. I see my noble friend Lord Maclennan of Rogart in his place. Certainly, closer to home, I know of the work of the Duke of Rothesay in respect of the Castle of Mey estates since he inherited them from his late grandmother. Those tributes were rightly paid.

Lord Maclennan of Rogart: As a footnote, I also commend the Duke of Cornwall for the work that he has done in setting up the North Highland Initiative: three separate charitable companies to promote the well-being of the area.

Lord Wallace of Tankerness: Indeed. I certainly am aware of that and the contribution that my noble friend has also played in these developments.

As was perhaps surmised by my noble friend Lord Deben, there is of course nothing to stop a female heir having an active role in the running of the Duchy, but that would be a matter for the sovereign to decide at the appropriate time. As has already been recognised, a female heir apparent will not find herself at a financial disadvantage. The Sovereign Grant Act 2011 broadly ensures that financial provision equivalent to the income from the Duchy is made for the heir apparent.

As was indicated by the noble Baroness, Lady Hayter, the Bill seeks to achieve three things set out in the first three clauses. It is about succession to the Crown. It is relevant to the other realms of which Her Majesty is Queen and head of state. I do not believe that this is the legislative vehicle in which to address a number of the other issues which have been raised. For these reasons I invite my noble friend to withdraw his amendment.

1.45 pm

Lord Northbrook: My Lords, I am grateful to all noble Lords who have taken part in this debate—to the noble and learned Lord, Lord Lloyd of Berwick, for his useful contribution on legal aspects; and to the noble Lord, Lord Lexden, for his observation that the Duchy’s founding charter would have to be changed and his comment about the serious decline in the fortunes of the Duchy when there was no Duke of Cornwall. My noble friend Lord Mancroft made a good point about whether there has been consultation with His Royal Highness the Prince of Wales. I also

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noted the comment of the noble Lord, Lord Deben, about denying a female heir the opportunity of being Duchess of Cornwall.

I am still not entirely familiar with my noble friend Lord James of Blackheath’s meaning of “desuetude”. I took note of the comments of my noble friend Lord Lang of Monkton about other changes that might be necessary. What the noble and learned Lord, Lord Wallace of Tankerness, said about a grandson not automatically inheriting was interesting. I am concerned that when you open the box and the genie of unintended consequences comes out on this Bill, all these issues need to be looked at.

There has been a lot of interest in this amendment. I will seek further discussions with the Minister before Report. In the mean time, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Baroness Garden of Frognal: My Lords, I beg to move that the House do resume. In doing so, I draw the attention of noble Lords to the debate that follows, on which the timing is very tight. I invite noble Lords to keep to their allocated time.

House resumed. Committee to begin again not before 2.48 pm.

Research Councils UK: Open Access Policy (S&T Report)

Question for Short Debate

1.48 pm

Tabled By Lord Krebs

To ask Her Majesty’s Government, in the light of the third report of the Science and Technology Committee, what assessment they have made of the implications of Research Councils UK’s open access policy.

Lord Krebs:My Lords, this debate follows the publication of a short inquiry by the Science and Technology Committee into the implementation of the policy of open access. I start by thanking the members of the Select Committee for their excellent contributions to this short inquiry.

Open access is the most radical transformation in academic publishing since the first scientific journal, Philosophical Transactions of the Royal Society, was published in 1665. As an aside, when I talk about “science” in the next few minutes, I use the word to be akin to the German “Wissenschaft”, meaning scholarship, learning and research across all disciplines including the natural sciences, social sciences and humanities.

The challenges of the transition to open access apply to all academic disciplines, although the details may vary from subject to subject. I will first explain the traditional model of scientific publishing. Researchers, having garnered results and written them up, submit a paper to a scientific journal, which has an editor who sends the paper out for peer review, decides whether or

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not to accept the paper for publication and, if revisions are needed, supervises those. The publisher then edits the revised paper and prints it.

The significant costs of that process are born by individuals or institutions paying subscriptions to the journal. It is a model in which the consumer rather than the producer pays for access to academic research. Some journals are purely commercial enterprises, but many are owned by learned societies that use the profits from publishing to support research, such as sponsoring studentships or conferences in their own discipline.

This traditional model has been radically changed in the past decade or so by the advent of online publishing, which presents the possibility of anyone, anywhere in the world, accessing scientific articles. Part of this disruptive change has been an increasing shift to open access, meaning that the consumer can read the literature free of charge. Perhaps the great majority of academic journals now allow readers free access but usually only after a delay following publication; this delay, or embargo, on free access enables the journals to maintain their subscription-based model and people or institutions that pay get a head start in reading the latest articles.

There is also rapid growth in a more radical form of open access, in which the producer or author of the article pays the full costs of having it refereed and published via a so-called article publishing charge or APC. The consumer therefore gets free, immediate access and there is no embargo. In the jargon of the trade, the embargo model is known as green open access while the instant access, the producer-pays model, is known as gold open access; some journals operate a hybrid system.

Recognising that this landscape is changing very rapidly, the Government commissioned a report on the topic and advice on how to proceed. The report was produced last year by a stakeholder group chaired by Dame Janet Finch, the former vice-chancellor of Keele. The Government agreed that the recommendations of the Finch report would be implemented forthwith.

That is the background; why did we carry out our inquiry? We were not questioning the move to open access. It is an inexorable trend and it is generally considered to be desirable that everybody should have access free of charge to new research results and data. We had, however, heard informally from both publishers and academics that the implementation plan following the Finch review was not proceeding adequately. In the words of one commentator, we were heading for a “car crash” on 1 April 2013, the date for the implementation of Finch recommendations. We therefore inquired, as a matter of urgency, into what was happening in order to identify the root of the problems and make appropriate recommendations and report well before 1 April. We have done that, and our report has been welcomed by all stakeholders. The bodies responsible for implementing the Government’s policy are the Research Councils UK—the RCUK—and the Higher Education Funding Council for England. They are providing funding to cover the costs to the author of publishing scientific research under the preferred gold model.

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Here are some of the key issues that emerged from our inquiry about this transition. The first, and perhaps most important, relates to embargo periods. It is generally recognised that for the foreseeable future, most journals will operate a hybrid of gold and green open access even if, as the Government wish, gold is the final destination. Therefore, a crucial question for both the publishers and for academics is the length of embargo periods. For publishers, longer embargos are more likely to sustain the subscription-based model. The Government’s position has been that the starting point should be flexible, allowing for longer embargo periods but moving gradually to shorter periods. However, the research councils, through RCUK policy and guidance, require an instant change for all research funded by the councils to short embargo periods. Crucially and happily, in its evidence to our inquiry, RCUK appeared to change its position and said that it would adopt the flexible starting point that is the Government’s policy.

Can the Minister confirm that RCUK will revise its policy and guidance, as we recommend, to reflect that it will adopt a flexible position and that the research councils will explicitly refer to the “decision tree” on embargos endorsed by BIS and the Publishers Association? This tree makes it explicit that if the author does not have access to funds to pay for the APC—in the early years RCUK expects to fund about only half the APCs—longer embargo periods are acceptable. Will the Minister also confirm that the policy of the Higher Education Funding Council for England will align with that of the Department for Business, Innovation and Skills?

Our inquiry also highlighted the possibility of various unintended consequences of the open access policy, as well as lack of clarity. For example, who will pay for the APCs when UK research council-funded scientists are collaborating with scientists from other countries, as happens in many of the top laboratories? Is the UK taxpayer to subsidise other countries’ scientists? This has not yet been clarified. Will there be a race to the bottom, in which journals cut corners in peer review and editing to minimise their charges to authors? Will UK scientists be allowed to publish in journals that do not comply with RCUK policies? Could charging for publishing drive scientists from other countries away from UK journals? Academic journal publishing is a significant industry with a turnover of more than £1 billion a year and 80% of that is export.

These, along with a number of other points, emphasise that the UK is entering unchartered territory. It is one of the first countries to adopt an open access policy with a stated preference for gold open access. Can the Minister therefore confirm that, as we recommend, RCUK will carefully monitor the consequences of the new policy, not only in 2014 but also at further stages during the five year implementation phase? We suggest reviews in 2016 and 2018. We also suggest that, if the unintended consequences and disadvantages turn out to be more significant than anticipated, the RCUK should modify its policy. Other noble Lords may refer to the implications for learned societies, so I will not address that issue here. Let me end with two final points.

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RCUK’s consultation was clearly inadequate. We recommend, and I seek the Minister’s confirmation that this will be accepted, that BIS should undertake a review of the consultation process and ensure that lessons are learned. Finally, we were surprised to find that, although there was much talk of the benefits of open access, no analysis of these benefits has been done, either by BIS or by RCUK. Does the Minister agree that in implementing one of the most fundamental changes in academic publishing in 350 years, it would be appropriate to understand the benefits, especially in light of the considerable costs to the science base involved? Open access is a disruptive change to academic publishing. It is potentially beneficial and desirable but it must be introduced with clarity and care if it is not to have unexpected disadvantageous consequences to the UK science base.

1.57 pm

The Earl of Selborne: The House will be grateful to the noble Lord, Lord Krebs, for introducing what is to many a complex subject but one, as he pointed out, which has radical implications for academic publishing. He very clearly set out some of the knotty issues which must be rapidly resolved. In this inquiry conducted by the Select Committee the process has been as valuable as the product. When we invited written evidence, we rapidly received more than 60 submissions, just about all accepting the principle of moving towards open access—not an issue, as the noble Lord has explained—but with greatly differing views on the wisdom of the present preferences and timetable of the Government and the research councils to achieve this desirable aim.

Having recognised that this is a desirable aim, we should be highly supportive of the leaders in this field; the Medical Research Council and the Wellcome Trust have led in this respect. The MRC open access mandate has been in place since 2006 and compliance with this mandate has increased from about 24% in 2006 to almost half last year, and at the end of the transitional period proposed by the research councils of five years they hope to achieve 100% compliance.

For the areas of biomedical research with which the Medical Research Council is concerned, without doubt the gold open access model has much to favour it. That certainly is why the MRC and the other research councils have preferred the gold open access model over the green. As well as dispensing with the need for embargoes, it lends itself well to some of the quite sophisticated procedures nowadays, such as text and data mining, all of which have enormous commercial importance and importance in promoting the dissemination of knowledge.

As we have just heard, the gold model requires article processing charges—APCs—and in the case of the Wellcome Trust, the cost, which it calculated at between l% and 1.5% of its total research spend, has been met by the trust. It simply says it believes that in the field of biomedical research, the benefits flowing from open access more than justify the additional cost. It strongly supports the commitment of the research councils to provide funding via institutional block grants to meet the cost of gold open access APCs.

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As the Select Committee notes, there is considerable doubt as to whether everyone who wants to publish via the gold route will be funded for the APCs. It further notes that, while the principle of favouring open access was almost universally accepted, the one-size-fits-all approach certainly was not. It is evident that the research councils now accept this and are prepared to be much more pragmatic and flexible than perhaps the original proposals seemed to imply.

The concerns of a number of organisations were particularly centred on the risk of being the first mover. While in biomedical research it is certain that the gold open access route ultimately will be followed by most other countries, it is by no means evident for other disciplines, particularly but not exclusively the humanities and social sciences. The green route, once a suitable repository is in place—many obviously now are in place—is a cheaper route. It does not rely on APCs, which at least in the early stage will have to be rationed. The very real difficulty of some researchers, such as independent scholars, in finding up-front funding for their APC is met by the green route. They have no problems. It is true that embargo periods will restrict the flow of research findings for a period but in practice we have already seen that in many cases this does not present insuperable problems for many disciplines. In other words, people are finding ways around it in so far as it represents an issue.

Subscription journals will not all wither and die. Some will be here for many more years. Therefore, having identified the direction of travel, it will be as well to recognise this and other concerns, and to ensure that in our enthusiasm for being an international leader we do not do ourselves an unnecessary disservice. The noble Lord, Lord Krebs, referred to the problems for periodicals, particularly those of learned societies. These learned societies very often rely on subscription journals for promoting their charitable objectives and their discipline, including public outreach, bursaries for students and fellowships, all of which are commendable causes. However, one has to recognise that periodicals and subscription journals first and foremost are there to disseminate knowledge. Clearly, they will have to move with the times and recognise, as the noble Lord reminded us, that things have changed dramatically in academic publishing.

Nevertheless, it is important to ensure that the transition, although abrupt as it will eventually have to be in many ways, is carried out as expeditiously as possible. It is clear that for some the repository route and green open access will not be what the Department for Business, Innovation and Skills called in its written evidence to us a legitimate second-best alternative gold. However, for some it still will remain a perfectly viable option and a legitimate, long-term strategy. For that reason, I welcome the response of the research councils to our report, which recognises that this possibility should at least be tested in future months and years.

2.04 pm

Viscount Hanworth: My Lords, I, too, am grateful to the noble Lord, Lord Krebs, for introducing this debate. I should begin by saying unequivocally that I am in favour of the open access to academic journals

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for anyone, without distinction or qualification. Having said as much, I declare that I am not in favour of the proposals of the Finch report. I shall voice my severe misgivings later.

The backdrop to these proposals is the manner in which digital technology has impacted upon the production of the journals and the manner in which their vast legacy is nowadays handled and controlled. At present, a few overpowerful commercial suppliers are dominating the markets for academic journals. They are deriving excessive profits from their position as virtual monopolists. The profitability of these enterprises can be explained by their market power and by the extraordinarily favourable way in which they acquire their principal assets, which are texts for publication. They are in possession of valuable legacies of published material stretching back in time, often by as much as a century, from which they can derive considerable rents by granting access to their electronic archives.

To my knowledge, the oldest collection of back issues is from the Philosophical Transactions of the Royal Society, which dates back to its beginning in 1665. This collection has been digitised by JSTOR, which is a not-for-profit operation for the electronic archiving of journals that began in 1995 under the auspices of Princeton University. JSTOR represents a countervailing force, which is limiting the strength of the commercial monopolies. The principal clients of the commercial monopolies, the universities, often feel greatly aggrieved. University librarians and bursars are angered by the expense of paying for access to the legacy, which is an expense that cannot be avoided by any institution of higher education that supports research. The academic staff are angered by the manner in which the commercial journals presume upon their time and exploit their labour without offering any financial recompense.

The free services of academics consist not only in the supply of articles for publication but also in their services as editors and referees. In recent times, authors of technical papers have been rendering another valuable service; that is, typesetting the articles. Nowadays, the authors can typeset their own papers in the universally recognised languages of TeX and LaTeX, which can be converted to the publisher’s formats with few, if any, editorial or typographical intercessions.

The outcome is to relieve the authors of unnecessary drudgery and to enhance the profitability of the journals. If anyone wonders why this unpaid labour is supplied so plentifully, the answer is that the achievement of publication is essential to the advancement of an academic career. The journals, therefore, have a captive workforce. The commercial journals have been acutely aware of the threat that digital technology in the hands of its clients can pose to their enterprises and they have taken steps vigorously to protect their interests.