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House of Lords

Tuesday, 6 January 2015.

2.30 pm

Prayers—read by the Lord Bishop of St Albans.

Retirement of a Member: Lord Jenkin of Roding


2.35 pm

The Lord Speaker (Baroness D’Souza): My Lords, I should like to notify the House of the retirement, with effect from today, of the noble Lord, Lord Jenkin of Roding, pursuant to Section 1 of the House of Lords Reform Act 2014. On behalf of the House, I should like to thank the noble Lord for his much-valued service to the House.

Children’s Privacy


2.36 pm

Asked by Baroness Smith of Basildon

To ask Her Majesty’s Government what assessment they have made of the effects on children of the publication of photographs of them without agreement or permission; and what consideration they have given to the aims of Protect: the Campaign for Children’s Privacy.

Lord Bates (Con): My Lords, I understand the importance of ensuring that children’s privacy is respected and that safeguards are in place to protect it. The Government have introduced the new system of independent press self-regulation and there are remedies available under civil law. The Government are committed to tackling the production and distribution of indecent images of children and criminal offences are available in such cases.

Baroness Smith of Basildon (Lab): My Lords, we have to be clear about what Protect: the Campaign for Children’s Privacy is asking the Government to consider. Surely it is entirely reasonable and responsible that when identifying an individual child in a published photograph, there should either be consent or good reason. If not, the image should be pixilated or blurred. The Minister referred to self-regulation. If that is working, why did Hannah Weller have to go to court and why did the judge say that the law needs clarification? Will the Minister agree to meet Protect in order to understand parents’ concerns and consider how children’s privacy can be protected?

Lord Bates: My Lords, I thank the noble Baroness for her question. I should say first that my right honourable friend the Deputy Prime Minister has met campaigners and I would be very happy to facilitate further meetings if that would be helpful. In respect of the particular case to which she referred, this is an

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ongoing legal matter and I am sure that she will understand if I do not comment on the specifics. But when it comes to the matter at hand, which is that of self-regulation, it is important to note that the

Editors’ Code of Practice

actually stipulates that where a child is under the age of 16, consent should be sought. That is something which should happen under the code and under self-regulation. Where that does not happen, there is then redress through the civil courts.

Baroness Benjamin (LD): My Lords, society’s clear moral duty is to protect all children. Section 8 of the Ofcom Broadcasting Code does so and is very specific about the privacy and protection of children. All broadcasters apply these rules responsibly. What can be done to ensure that similar rules which refer more specifically to this type of photography are included in the print media code of practice and adhered to in order to protect children from unwanted exposure and potential harm?

Lord Bates: I am grateful to my noble friend for that question. Section 1.8 of the Ofcom code refers to the protection of children and that is mirrored by the code of ethics under the self-regulatory system. What we need to do is ensure that that is working and that people are protected. At the same time, there is a need for a balance on the one hand between large crowd scenes in which children might be involved, or the premiere of a movie where a child star might be putting themselves in the public domain, and situations where privacy is involved. A fine balance needs to be achieved.

Baroness Uddin (Non-Afl): My Lords, does the noble Lord accept that those who have disabilities are still having huge difficulties in coming forward and reporting child sexual abuse or the need for protection? Will he assure the House that in all aspects of dealing with this matter—whether with regard to the media, the social justice arena or the law—he will take on board the specific needs of those with disabilities, in particular those with autism?

Lord Bates: This applies to everybody equally, and those with disabilities should come forward. Those guilty of abuse should be prosecuted. There is a straight line between what we are talking about, which may be general intrusion such as the publication of a photograph, and, of course, the publication of sexualised images of children, on which the full weight of the criminal law needs rightly to come down.

Lord Harris of Haringey (Lab): My Lords, surely the examples that the Minister gave are very different. If there is a general crowd scene, and an individual child is not identified by name, that is distinct from circumstances where a child is identifiable and where consent has not been given. Under what circumstances does the public interest require that a child’s face should not be pixilated? Is there any case at all, in terms of journalistic integrity or the freedom of investigative journalism, that requires an identifiable child’s face to be published without consent?

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Lord Bates: The noble Lord puts his finger absolutely on the point, which is the difference between images—which is the context of the campaign, as I understand it—and the identification attached to an image of a child, which requires consent. That is the area of balance and the area of debate that we are seeking to square in this.

The Countess of Mar (CB): My Lords, does self-regulation apply to internet service providers?

Lord Bates: The We Protect campaign, which the Prime Minister launched and which is chaired very effectively by my noble friend Lady Shields, is about self-regulation. It announced a major breakthrough just before Christmas about internet service providers seeking to remove child abuse images from the internet, identify abusers and ensure that they are brought to justice.

Baroness Lawrence of Clarendon (Lab): My Lords, given that three-quarters of the public believe that the media should protect children by pixilating or blurring their faces, does the Minister agree that more can and should be done to protect children’s privacy?

Lord Bates: I acknowledge the work which the noble Baroness has done and her personal experience in this area, which I am aware of and which, obviously, we all understand. In the case of the protection of privacy, everybody—certainly every parent—understands the lengths to which we are all prepared to go to protect our children and our children’s safety. The question is about weighing the balance between that right to privacy and the right and privilege of free speech and freedom of the press, which is an underscored part of our democracy.

Lord Harris of Haringey: My Lords, the Minister has said that free speech is somehow undermined by publishing an identifiable child’s image. How is it undermined?

Lord Bates: I did not say that it was undermined. With respect to the noble Lord, what I actually said was that there is a balance, in a free society, between being able to produce and publish images and identifying those images—in other words between the human rights aspects of Article 6, which deal with protection and privacy, and of Article 8, which deals with free speech. The courts deal with that and the self-regulators deal with that. We can deal with it in a common-sense way without the need to criminalise everyone who produces an image of a child.

Health: Diesel Engine Pollution


2.44 pm

Asked by Lord Berkeley

To ask Her Majesty’s Government what plans the National Health Service has to reduce the number of premature deaths caused by the combined impact of nitrogen dioxide and fine particles emitted by diesel engines.

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The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley) (Con): My Lords, the plan to reduce emissions and pollution is set out in the Sustainable, Resilient, Healthy People & Places strategy. This encourages walking and cycling, which have direct health benefits, and reduces emissions of air pollutants and carbon dioxide. Key to reducing the health impacts of air pollution is reducing emissions at source. We are investing billions of pounds in measures to reduce air pollution, including incentivising low-emission vehicles and sustainable transport.

Lord Berkeley (Lab): I am grateful to the Minister for that Answer, but is he aware—I am sure he is—that, according to Clean Air in London, 55,000 premature deaths a year nationally are attributable to NOx and fine particulates? Already, monitors in Oxford Street and other parts of London have shown that NOx hourly limit values have been breached for the whole of 2015, which is not bad in six days. Why then is Defra consulting on proposals to remove the obligation for local authorities to monitor such pollution? In the absence of that evidence, are the Government trying to avoid blame for denying those 55,000 people their 10 extra years of life, which they could achieve if the policies were implemented?

Lord De Mauley: It is helpful that the noble Lord has asked that question. It gives me the opportunity to clarify that nothing in the consultation could lead to the closure of monitoring stations. It is essentially about streamlining and simplifying the reporting system to reduce unnecessary burdens and speed up delivery of air quality action plan measures to tackle pollutants such as NO2 and particulate materials. We are not proposing a reduction of monitoring by local authorities, but decisions on local air quality monitoring are for them, so ultimately it is up to them to decide what level of monitoring they wish to undertake.

Lord Brabazon of Tara (Con): Does my noble friend recall that until very recently people were encouraged to buy diesel cars because they produced less CO2 and had very attractive rates of vehicle excise duty? What does my noble friend say to those people now?

Lord De Mauley: My Lords, my noble friend makes an important point, of course. The point is that the EU procedures for testing diesel engines did not deliver the health outcomes that were sought. That is why the Commission is looking at this again.

Lord Hunt of Kings Heath (Lab): My Lords, the Minister says that the proposal to reduce the reporting requirements of local authorities will not lead to a reduction in the number of reporting stations. But he will have seen analysis that suggests that 600 of them will be closed down because there will be less of a requirement on local authorities to report the provisions. Why will the Government not look again at this?

Lord De Mauley: My Lords, to go into a little more detail, the review is aiming, as I said, to reduce administrative burdens to free up local authorities’ time and resources so that they can focus on taking action to address air quality. The consultation was

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split into two parts. Part 1 proposes the removal of the requirement in regulations for local authorities to report on specific pollutants that have been well within limits for many years. Indeed, monitoring of these will be maintained at national level.

Lord Bradshaw (LD): My Lords, I wonder whether the Minister has considered the use of the petrol and diesel engines which drive the refrigeration units that pervade our high streets, airports and other congested places. Those refrigeration units use fuel but it is not passed through any sort of cleaning-up device to get out the particulates and the NOx. I believe it is a very fruitful field for examination by the Government.

Lord De Mauley: My Lords, as my noble friend will know, we have a number of very extensive programmes to reduce the emissions of pollutants from a variety of units, particularly transport. However, I will look into what he says and see if there is anything there that we can do.

The Lord Bishop of St Albans: My Lords, with 4.3 million adults and 1.1 million children suffering from the effects of asthma-related conditions, does the Minister agree that we need to look closely at the World Health Organization’s recent news that an increasing number of British cities are now breaching the safe air pollution levels? In particular, does he agree that we might encourage other cities to follow the example of London, which is now developing a low emission zone for both vehicles and industry, as a way of trying to mitigate some of the huge cost of around £1 billion a year of treating asthma conditions in this country?

Lord De Mauley: I agree with the right reverend Prelate. He will be pleased to know that we are working with local authorities on the feasibility and design of low emission zones and we have provided guidance such as on which vehicles should be covered and what emissions standards they should meet. The right reverend Prelate might like to know that, in addition to London, Oxford, Norwich and Brighton have already introduced low emission zones and other cities are considering them.

Lord Kinnock (Lab): My Lords, the Government are absolutely right to spend—in the Minister’s words—“billions” on seeking to reduce emissions. Will he therefore contact the Mayor of London to tell him how wrong-headed is his policy of reducing or removing the concessions on the congestion charge for very low emission vehicles, which will be brought into effect in December 2016? This is entirely the wrong approach, especially when so many people in the metropolis and elsewhere have bought low emission vehicles specifically to conform with the policy of this and previous Governments.

Lord De Mauley: My Lords, I understand the noble Lord’s point. He will understand that matters such as this are for London and the mayor to decide, but I will of course do as he asks.

Lord Howell of Guildford (Con): My Lords, is this issue connected with the quality of imported diesel and, if so, could the Minister say how much of that imported diesel comes from Russia?

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Lord De Mauley: I cannot, my Lords. I am not aware that it is specifically to do with the source country of the diesel, but I will look into it.

Chilcot Inquiry


2.51 pm

Asked by Lord Dykes

To ask Her Majesty’s Government whether they intend to suggest that the report of the Chilcot inquiry is published before the start of the pre-election purdah.

Lord Wallace of Saltaire (LD): My Lords, as I said to the noble Lord in my Answer of 3 November, the inquiry is completely independent of government. It is up to Sir John Chilcot to decide when to submit the inquiry’s report to the Prime Minister. I continue to hope that its conclusions will shortly be available for all to see.

Lord Dykes (LD): I am certainly not blaming my noble friend, and least of all Sir John Chilcot, but is not this continuing delay an utter and total disgrace after so much time has elapsed? Is my noble friend aware that more and more people think that it is some kind of attempt to prolong the agony for Mr Blair facing possible war crimes charges?

Lord Wallace of Saltaire: My Lords, we all regret the delay, but I wish to stress that this is not unusual for inquiries of this sort. I know that we were all looking at the al-Sweady inquiry as part of our Christmas reading. That took five years to report on two battles in one afternoon and cost £24 million. The Baha Mousa inquiry, looking into the death in UK custody of one Iraqi civilian in September 2003, took three years and cost £13.5 million. This inquiry has been looking at nine years of British policy and operations within Iraq. It is not entirely unexpected, therefore, that it has turned out to take a long time.

Lord Hurd of Westwell (Con): Does the Minister agree that my noble friend’s point is at the heart of this whole matter? This has dragged on beyond the questions of mere negligence and forgivable delay; it is becoming a scandal. This is not a matter of trivial importance; it is something to which a large number of people in this country look anxiously for the truth. Is it not time that the Government exerted themselves to make sure that that reasonable demand is met?

Lord Wallace of Saltaire: My Lords, we all regret the amount of time that has been taken. I think in retrospect, as an outside observer, that it might have been a good thing to have recruited a larger staff at the beginning of the inquiry, because the sheer volume of the documentation that the inquiry found itself looking through was much greater than had originally been anticipated. It is, however, an independent inquiry. The Government will receive the report. The one decision that the Government will then take is when it will be published. It is up to the chairman of an independent inquiry to decide when and how it completes its report.

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Lord Morris of Aberavon (Lab): My Lords, in setting up the inquiry, Mr Gordon Brown made a sweeping statement that all British documents, save those involving the most sensitive national security, would be made available. Has that promise been breached, in either spirit or form? The House also needs a clear, unequivocal statement as to who is responsible for apparently kicking publication into touch until after the election. Is it former or present Prime Ministers, Cabinet Secretaries or Sir John Chilcot and his committee?

Lord Wallace of Saltaire: My Lords, there were two questions there. The Government made all documentation available to the committee at the outset. The further question, which has taken rather longer than anticipated, was the subsequent discussion as to how many of those documents should be published. After all, some of them are highly classified and deeply sensitive about British foreign policy and relations with other major Governments and allies. I understand that that process is also now complete. When the report comes out, it will contain more than 1 million words and will publish substantial documentation from more than 200 Cabinet meetings. That is all agreed and under way. In terms of the publication, the Prime Minister has not intervened at any point—and nor, as I understand it, did his predecessor. It is up to the inquiry and its chairman to decide when the process is complete. As we know, Maxwellisation is part of the process of completing the report. When that is complete, it will be published.

Lord Hughes of Woodside (Lab): My Lords, I join those who wish for an early publication of the Chilcot report, if for no other reason than to put a stop to the conspiracy theories multiplying. The ridiculous comments made by the noble Lord, Lord Dykes, are a disgrace to this House and a disgrace to him.

Lord Wallace of Saltaire: My Lords, I also wish for an early publication, but we are waiting for the inquiry to submit the report to the Government. The Government have taken the decision, as my honourable friend Rob Wilson and I have both said on previous occasions, that if it is submitted after the end of February it would not be appropriate to publish it until after the election because part of the previous Government’s commitment was that there would be time allowed for substantial consultation on and debate of this enormous report when it is published.

Baroness Falkner of Margravine (LD): My Lords, when the inquiry was announced, some of us took the position that it should be a two-part inquiry: one part into the conduct of the war and one part into the events that led up to the war. Would my noble friend agree that that would have been the better way to deal with it? In other words, we should have produced a report on what led up to the war itself and left in the long grass the business of the conduct of the war. In that event, we would certainly by now have had the answers and the truth that the British people seek.

Lord Wallace of Saltaire: My Lords, that might have been wise, but I am afraid that we are being wise a little after the event. We are well under way with this inquiry. Indeed, I hope that we are very close to the finishing line.

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Lord Foulkes of Cumnock (Lab): My Lords, will the Minister join with me in asking people to stop calling this intervention “illegal”? It has never been declared illegal by any court, national or international, and, since it was the first intervention ever to be approved by a vote in the House of Commons, it has more authority than any other intervention.

Lord Wallace of Saltaire: My Lords, I was not aware that I, certainly, had ever called it “illegal”.

Lord Cormack (Con): My Lords, after all the excitement and excitable nature of yesterday’s proceedings, would not pre-election purdah be rather a good idea?

Lord Wallace of Saltaire: Pre-election purdah does not formally start until late March, but the Government have committed that if the report is not available for publication by the end of February, it will be held back until after the election.

UN Security Council: Israel and Palestine


2.59 pm

Asked by Baroness Tonge

To ask Her Majesty’s Government what action they will take to support a two-state solution for Israel and Palestine, following the rejection of the Jordanian resolution at the United Nations Security Council on 30 December.

The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con): My Lords, we remain convinced that the best way to secure a two-state solution is through negotiations underpinned by clear international parameters. Events of recent days have only made that goal more difficult. We are therefore urging the parties to avoid steps which damage the prospects for resuming meaningful talks. In the coming weeks, we will continue to work closely with international partners to promote an environment conducive to peace.

Baroness Tonge (Ind LD): I am grateful to the Minister for that reply—no surprises there, then. I hope that the Minister agrees that we have a historic responsibility for Palestine. Is she aware that a growing number of prominent Israeli academics and politicians support the Israeli peace initiative, which is based on the Arab peace initiative of 2002? Does she agree that we should now take the lead with our European partners in imposing a time limit for the creation of the two states based on that plan, with sanctions applied to both parties if they fail to achieve a solution?

Baroness Anelay of St Johns: My Lords, my noble friend points to her request that deadlines should be imposed. In the past, deadlines have never proved to be the opening of a door to a lasting peace. Clearly, she is right to draw attention to the fact that there are many, both in Israel and in the Arab states, who are

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working hard to achieve a peaceful outcome. The Arab League and the Arab states have a key role in the peace process, and the Arab peace initiative, through its offer of a normalisation of relations between Arab states and Israel in the event of a comprehensive peace agreement, is an important signal of the benefits that peace would bring to the entire region. It needs to be a comprehensive peace agreement. The advantage of a resolution in the United Nations Security Council, if we are able to achieve it, is that one could achieve a peace that is not only signed but delivered and endures.

Lord Anderson of Swansea (Lab): My Lords, apart from continued drift and deterioration, does the noble Baroness agree that the only real alternative to a two-state solution is a one-state solution which would, for demographic reasons, mean the end of democratic Israel? In the light of the fact that Secretary Kerry has tried very hard but failed, does she see any prospect of any initiative from the United States over the next few years? Otherwise, the prospects appear very bleak indeed.

Baroness Anelay of St Johns: My Lords, I hesitate to disagree with the noble Lord’s tenet that Mr Kerry has now failed, but I do disagree with that reading of recent events. I believe that Mr Kerry is determined to continue to take the peace process further. It was regrettable that the United Nations Security Council was unable to achieve a resolution. We continue to believe that negotiations for a two-state solution are the only way forward. We are aware that both Netanyahu and Abbas are ready to continue negotiations. It is important that that process is allowed to continue and that we now have a period where people take stock of what has happened over the past few days and quietly consider how we may constructively move that peace process further.

Baroness Morris of Bolton (Con): My Lords, the Israeli President has said that he believes that it is completely wrong for the Israeli Government to withhold taxes which are due to the Palestinian Authority. Can my noble friend tell us what pressure the United Kingdom Government are putting on the Israeli Government to pay that money, which is due to the Palestinians?

Baroness Anelay of St Johns: My Lords, we are indeed deeply concerned by the decision made by Israel to freeze the transfer of $130 million of tax revenue. It is against international law and it certainly contravenes the 1994 Paris protocol signed between Israel and the PLO. I can tell my noble friend that we press Israel to reverse that decision.

Baroness Morgan of Ely (Lab): My Lords, can the Minister outline whether any aspect of the UN Security Council resolution which was rejected last week was inconsistent with UK policy, international law or previous UN resolutions?

Baroness Anelay of St Johns: My Lords, I am sure that the noble Baroness will have read the full document, which I would hesitate to do here because it is three pages long. The document is three pages long because it is a complex matter and the United Nations Security

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Council should be asked to look at these matters in detail over a sensible time period. Regretfully, the United Nations Security Council members were not given the opportunity to have the normal discussion and come to conclusions, so there was not a full discussion on each of the propositions within it. The imposition of a deadline for Israeli withdrawal from the Occupied Territories at the end of 2017 stood there without any of the other issues which need to be resolved. Because it was not possible to have a full discussion about all the issues in it we were, regretfully, not able to support that resolution. What we support is the fact that we should now go forward with the United Nations Security Council, have a full and meaningful discussion about it and secure a resolution to which all members can not only sign up but then keep.

Lord Gold (Con): My Lords, does my noble friend the Minister agree that progress towards a two-state solution has been set back by those who have been seeking immediate recognition of Palestine as a state while it is controlled by a terrorist organisation with links to ISIL, and whose aim is the total destruction of Israel, and that progress can only really be achieved through negotiation with those genuinely wanting a peaceful solution, supported by the international community?

Baroness Anelay of St Johns: My Lords, I am of course aware that there are those on both sides of the argument who find it very difficult indeed to move this matter forward but I am advised, and have every belief it is right, that President Abbas is a man of peace and wishes to continue negotiations. Prime Minister Netanyahu has made it clear that he wishes to continue in those negotiations. It is clearly going to take still more work at the United Nations before we can reach a resolution to which all can subscribe, but against the bleak background that my noble friend paints I would paint the background of key players who want to achieve the right result—peace for that region.

Social Action, Responsibility and Heroism Bill

Social Action, Responsibility and Heroism Bill

Third Reading

3.07 pm

Clause 3: Responsibility

Amendment 1

Moved by Lord Pannick

1: Clause 3, page 1, line 10, leave out “activity” and insert “act or omission”

Lord Pannick (CB): My Lords, Amendment 1 is in my name and that of the noble and learned Lord, Lord Brown of Eaton-under-Heywood. It raises a drafting point, which will encourage even more noble Lords to leave, but it is a drafting point of some significance on this curious Bill.

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The purpose of Clause 3, as the Minister explained on Report, is to make clear that the court, in considering a claim of negligence, must take account of the context in which the alleged negligence occurred. Of course, that is already what courts do—but we have had that debate. On Report, concern was expressed that the word “activity” in Clause 3 is too broad. The reason for the concern is very simple. We all agree, including the Minister, that it is not the intention of this clause that, when a doctor is sued for negligence for cutting off my right leg because I had a pain in my left leg, it should then be open to the doctor to plead in his or her defence, “I have been treating legs for 40 years and have never before made such a mistake”. We all agree that the doctor should not be able to rely on such a matter in the defence. What the claimant is concerned about, and what the court must address, is what happened on the specific occasion when that claimant was treated.

The Minister confirmed that that is indeed the Government’s intention. He said on Report on 15 December, in answering questions about a hypo-thetically negligent accountant, that,

“it would be the particular tax return or the particular piece of advice”,

which mattered. He added:

“It would be no good for them to say, ‘In the 99 other years in which I did this particular act”—

accountants have a very long professional career—

“I did a good job’”.—[

Official Report

, 15/12/14; col. 37-38.]

So we all agree that that should remain the law. The problem is that the word “activity” in the first line of Clause 3 suggests the contrary. It requires the court to have regard to “carrying out the activity” in the course of which the alleged negligence occurred. However, the word “activity” might suggest the general practice of medicine, accountancy or whatever function is performed by the defendant. Since we all wish that the court should continue to focus on the treatment of this claimant on the occasion when the alleged negligence occurred, I suggest that the words “act or omission” are much more appropriate than the broader term “activity”.

Amendment 2, in the name of the Minister, would replace “generally” with “predominantly”. That is an improvement to Clause 3 that I support, but it does not address the problem that I am concerned about, caused by the inappropriate use of the word “activity”. I beg to move.

Lord Brown of Eaton-under-Heywood (CB): My Lords, I have added my name to this amendment because, speaking as a judge of 28 years’ experience, it concerns me that judges in future are going to have to deal with the Bill in its present form. It would be so much easier and less muddling for them if we managed to make the amendment for which we are contending today. Everyone agrees that Clause 3 is the only part of the Bill that is intended to effect any change whatever to the law. Its essential purpose was set out by the Minister at some length on Report, but really one can simply cite this passage:

“If a defendant was really predominantly doing all that he or she could reasonably be expected to do to look after the safety of an individual, why should there not be some reflection of that fact in the determination of liability?”.—[Official Report, 15/12/14; col. 36.]

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So far, so good—in all events, it is too late now, at Third Reading, to question the desirability of making this sort of change without taking any soundings from, for example, the Law Commission, a point that was stressed strongly on Report by my noble and learned friend Lord Walker of Gestingthorpe—but the real difficulty with the present wording was crystallised on Report in the exchange between the Minister and the noble and learned Lord, Lord Goldsmith. The noble Lord, Lord Pannick, has already made some reference to that exchange, but perhaps it is worth setting it out at a little greater length. The noble and learned Lord, Lord Goldsmith, raised the question of what would arise if, say, someone sued their accountant for negligence with regard to the completion of their tax return, and he suggested that under Clause 3 in its present form the accountant could say:

“‘The activity that I carry out is doing people’s tax returns and advising them on that; I have done it for the last 10 years and I am now going to tell the court about my record’. How do the words in the clause prevent that from being done?”.

The Minister responded by saying that,

“the Bill is concerned with the activity in question, so it would be the particular tax return or the particular piece of advice, because that is what the Bill says”.

The noble and learned Lord, Lord Goldsmith, in turn said:

“It would not be this tax return, surely, but the activity of advising on tax returns generally”.

The Minister’s response—this is the final quotation from that exchange—was:

“I respectfully disagree with that interpretation because it is concerned with the activity in question, ‘in the course of which the alleged negligence or breach of statutory duty occurred’. It would not therefore, deal”—

the noble Lord, Lord Pannick, has cited this—

“with the 99 years of accurate tax returns but would focus on the particular tax return that is the subject of the claim in negligence. That is the correct interpretation of the particular clause”.—[

Official Report

, 15/12/14; col. 37.]

3.15 pm

There we have it. At present, all one can say is that the wording is at best ambiguous. It surely seems sensible to narrow down the word “activity”. Indeed, the noble and learned Lord, Lord Hope of Craighead said:

“Using the phrase, ‘activity in question’ is far too general. If it is to mean anything, it has to be precisely focused on what Clause 1 is talking about”.—[Official Report, 15/12/14; col. 38.]

Clause 1, of course, sets the context for all three of the substantive clauses and makes plain that they are to apply when the court is,

“determining the steps that the person”—

I interpolate that “the person” is the defendant—

“was required to take to meet a standard of care”.

It can be put very simply. The phrase “act or omission”, which our proposed amendment would substitute for the word “activity” in Clause 3, would surely harmonise altogether more easily with the language of Clause 1 and focus the court’s attention more narrowly on determining the steps that the defendant should have taken to avoid a finding of liability. It is a small amendment,

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but a sensible one, which would give effect to what the Minister himself suggests is the proposed limited scope of this provision and would help courts in future.

Baroness Butler-Sloss (CB): My Lords, I have forborne to say a word on this Bill until this moment. I rise only to say that the phrase “act or omission” is extremely well known in the law and is one which judges—I, too, sat as a judge for many years—understand perfectly well. The word “activity” is ambiguous. The noble Lord, Lord Pannick, and Simon—I am sorry, I should have said “my noble and learned friend Lord Brown of Eaton-under-Heywood”; the trouble is I know him so well—have made absolutely clear the ambiguity of this word. I cannot understand why the Government do not just take the perfectly sensible phrase “act or omission”.

Lord Hodgson of Astley Abbotts (Con): My support for this Bill has been very well documented. Notwithstanding the attacks on it from noble Lords and, especially, noble and learned Lords, I continue, albeit as a non-lawyer, to believe it will play a useful role in encouraging, or at least not discouraging, individuals getting involved and participating and in consequence strengthening our civil society and so improving social cohesion. I fully admit there are aspects of the Bill which overlap with the provisions of the Compensation Act and that the provisions of the Bill will not provide a complete solution to what some people argue risks becoming an increasingly atomised and introverted society. It is just as important that the Bill will help with better insurance provision and the busting of myths.

One of my principal reasons for supporting this short Bill is that it provides clarity; it uses short, uncomplicated language that is comprehensible to the regulars in the saloon bar of the Dog and Duck. On Report, this approach seemed to come under attack from what seemed to be two diametrically opposed reasons, which have started to reappear in our debate this afternoon. The first approach, which was adopted by the noble and learned Lord, Lord Lloyd, and which was supported on Report to some extent by the noble Lord, Lord Pannick, at col. 17, which I will not quote this afternoon, appeared to argue that this legislation was superfluous in that judges could always be relied upon to take into account the factors that form the subject of the Bill. Later on in our debates, the focus changed and a number of noble Lords, in particular the noble and learned Lord, Lord Walker of Gestingthorpe, at col. 46, argued that the provisions of the Bill were too wide and required focus and definition to guide the courts and judges.

This amendment in the name of the noble and learned Lord, Lord Brown, seems to be moving towards the second approach. I therefore have concerns about the impact this amendment may have upon the clarity of the Bill, at least as it is seen through the eyes of the regulars in the saloon bar of the Dog and Duck. I have listened carefully to the two noble Lords who proposed the amendment, and I hope that they will forgive me if I say, again as a non-lawyer, that I have concerns about what they propose. My question to my noble friend on the Front Bench is: do we need three words in the place of the current one word? “Activity” has a simplicity

6 Jan 2015 : Column 256

and a clarity which may be clouded by those additional words. Generally, the shorter the better, so my instinct is to resist this proposal. However, I await his further advice.

Before I conclude I turn briefly to government Amendment 2. I am grateful to my noble friend for having taken away the amendment I proposed on Report on 15 December and for having responded so positively. The amendment was originally put down in the name of my noble friend Lord Hunt of Wirral, whom I am glad to see in his place this afternoon and who unfortunately was not able to be present on Report. He will be able to speak far more eloquently about this than me. I close by repeating my thanks to my noble friend on the Front Bench. The change that he is proposing this afternoon will improve the balance by encouraging people to get involved but without encouraging them to do so in a thoughtless or irresponsible way.

Lord Hunt of Wirral (Con): My Lords, I declare my interest as a partner in the global commercial law firm DAC Beachcroft and refer to my other interests in the register.

However, for the purpose of this short debate I add that I have just this morning returned from an expedition to Antarctica, where I must say my boundaries were severely tested. I found myself in the company of adventurers, and I have to tell the Minister that they greeted the Bill with enthusiasm. They took the view that we have achieved the wrong balance, with too much emphasis on health and safety, which, sadly, has led to the cancellation of a lot of trips similar to the one that I went on—I now hold an award and a certificate for following in the steps of Roald Amundsen. I did not go quite as far as he did, but I feel that I have seen the effect of taking risks on the development of one’s own personality and abilities. Younger people certainly benefit from those boundaries being tested. Therefore I bring to the Minister unbridled enthusiasm for the Bill and a slight questioning of why senior lawyers have found fault with it so much.

I speak from my own experience, having dealt with the Compensation Bill, which is generally accepted as a good Bill. At the time, it came under severe attack from some of the most senior lawyers in this House, who tried to explain that it did not add anything and that it should all be left to the judges. They asked why on earth we were repeating the judgment of the very senior noble and learned Lord, Lord Scott of Foscote, who set out the position very clearly indeed, which we repeated in Clause 1 of the Compensation Act 2006. But the general view is that that has done a great deal to calm people down and to stop the cancellation of a lot of adventure holidays.

Finally, I say to my noble friend the Minister how pleased I am that he has decided to delete the word “generally” and insert the word “predominantly”. I thought about all sorts of other words that could be used, as he may have guessed, but I think that the word “predominantly”—for someone to have to demonstrate “a predominantly responsible approach towards protecting the safety or other interests of others”—really clarifies the position brilliantly. I am very grateful to my noble friend for proposing that amendment today.

6 Jan 2015 : Column 257

All that I will say to the other lawyers in the House, who are far more senior than I could ever aspire to be, although I have been in the same firm now for 50 years, is that I bow to their judgments—indeed, I have to observe them and listen to them on many occasions. However, I question for a moment whether it might not be more acceptable for the House to recognise that this Bill will do much to further the opportunities, particularly for younger people, to take the sort of risks that perhaps at my age I should never even have dreamt of, such as traversing the crevasses that I did over the weekend. I think that it did me a lot of good and will do them a lot of good, too.

Lord Beecham (Lab): My Lords, I was anticipating that the Minister would now move his amendment, but perhaps in the circumstances it would be sensible if I spoke from the Opposition Front Bench.

The literary world is familiar with the concept of vanity publishing; this Bill is an example of its parliamentary equivalent, vanity legislation. Clause 3, with or without the government amendment, or that of the noble Lord, Lord Pannick, is the only clause that even purports to effect a change in the law—and that, in the words of Shakespeare’s Richard III, whose subject Ministers, and this Minister in particular, have so frequently prayed in aid, in a manner so “lamely and unfashionable” as to make it worse, not better.

It is noteworthy that, time and again, as this essentially trivial measure has made its way through both Houses, Ministers have harped on the alleged need, in the words of the Minister at Report,

“to provide reassurance to ordinary, hard-working people who have adopted such an approach towards the safety or other interests of others during the course of an activity, that the courts will always take this into account in the event that something goes wrong and they are sued”.

In a remarkable non sequitur, the Minister went on to express the hope that,

“this will also give them greater confidence in standing up to those who try to bring opportunistic and speculative claims by showing them that the law is on their side”.—[

Official Report

, 15/12/14; col. 34.]

That is a reference to the dreaded compensation culture which apparently haunts the sleepless nights of Ministers, potential defendants and their insurers—and now, we understand, possibly penguins in the Antarctic—but whose actual existence is more imaginary, in terms of cases brought, than real.

3.30 pm

Again and again, Ministers have prayed in aid personal injury claims as examples of where a generally —or as it will be if the amendment is passed, “predominantly”—responsible attitude has been exhibited in the course of the activity subject to a claim. The Minister dwelt on this aspect on Report, saying that Clause 3,

“represents a change to the law in that it—”

that is, the existing law—

“does not currently oblige a court to consider whether a person took a generally responsible approach to safety during the activity in question. We wish to ensure that the courts take a slightly broader view of the defendant’s conduct in these circumstances,

6 Jan 2015 : Column 258

by looking at whether his approach to safety, taking into account all that he did or did not do, was generally a responsible one”.—[

Official Report

, 15/12/14; col. 36.]

I repeat that the Minister’s amendment would substitute “predominantly” for “generally”. This formulation is effectively a set of thematic variations of a kind so enigmatic that they are positively Elgarian. We should recall that Clause 3 will apply not only to personal injury claims—the subject which most of your Lordships who have supported the Government, particularly the noble Lords, Lord Hodgson and Lord Hunt, have addressed—but to an enormously wide range of potential claims for negligence, breach of statutory duty or breach of contract, where the damage might be significant without any element of safety being in jeopardy.

Therefore, I repeat the question I asked at the earlier stages of this sorry Bill’s journey through the House: why should the negligent solicitor, accountant, financial adviser, architect, builder, tradesman or manufacturer, and more especially their insurers, escape liability to compensate an innocent client or purchaser because their conduct has been predominantly responsible—or in slightly different terms if the amendment of the noble Lord, Lord Pannick, is adopted—during the activity in question?

The amendments tabled respectively by the noble Lord, Lord Pannick, and the Minister seek to insert wording that is marginally better than the existing term “generally”, but significant questions still remain unanswered. What does “predominantly” mean? Why should the solicitor who drafts a will but allows a beneficiary to witness it, an accountant who prepares a complicated set of accounts but inadvertently omits one or two relevant matters—the Goldsmith example cited by the noble and learned Lord, Lord Brown—or a builder who, in constructing a house, fails properly to connect a radiator, thereby causing a water leak, escape liability because the rest of what they did in connection with their jobs was responsible? Moreover, what is the meaning of “responsible”? What does it actually impute?

Even if the amendment of the noble Lord, Lord Pannick, were accepted, this clause, far from clarifying the law, seems likely to promote more, not less, litigation, unless, of course, people of modest means, for whom legal aid will not be available, are deterred from bringing otherwise well founded claims and are thereby denied justice. But perhaps that is, after all, what the Government really want and what the Bill will produce if Third Reading is concluded this afternoon and it is enacted, as in all probability will be the case. It does not enlarge any substantive issue and addresses a problem which essentially does not exist. Clause 3 which, as I say, is the only part creating a new position, actually makes the legal position worse, and will prejudice a great many more people.

The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, this issue has not occupied a great deal of time in your Lordships’ House but it has been the subject of vigorous debate. It has been assumed that these matters are discussed in the Dog and Duck from time to time. Before today, I do not think that it was even envisaged that the discussion extended as far as Antarctica.

6 Jan 2015 : Column 259

This is a small but important Bill, as the Government have said on a number of occasions. First, I wish to deal with the government amendment. In the course of the debates on Clause 3 at previous stages, concerns were raised from a number of perspectives regarding the use of the phrase “a generally responsible approach”. The noble Lords, Lord Beecham and Lord Pannick, expressed concerns that using this phrase might suggest that a court should give weight to a defendant’s track record on safety, rather than focus on his or her conduct in the specific activity giving rise to a claim. My noble friends Lord Hodgson of Astley Abbotts and Lord Hunt of Wirral supported the clause but took the view that the word “generally” is capable of bearing a broad range of definitions and, conceivably, may serve to confuse.

I indicated on Report that we were attracted to the suggestion made by my noble friends of replacing “generally” with “predominantly”, and, following further consideration, we have concluded that this is the best approach to give greater clarity to the aim of the clause. This amendment makes clear that a body or individual who takes a slapdash approach to safety on a particular occasion cannot escape liability merely by pointing to a previously unblemished health and safety record. Instead, it means that the court must focus on whether the defendant has taken a predominantly responsible approach to safety in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred. As I have previously explained, we believe that this is an important factor that merits the court’s attention.

Perhaps I may deal with some of the points raised during this short debate. The House will not have lost sight of the fact that the scheme of the Bill is that the court must “have regard” to certain matters, including those we are currently concerned with in relation to Clause 3. This does not mean that the court ignores all the other matters relevant in a negligence action; it simply must have regard to certain matters but may decide that they are not of sufficient importance to have a significant effect on the outcome of the case.

I shall deal with the point raised by the noble and learned Lord, Lord Brown, and the noble Lord, Lord Pannick, about an accountant—the subject of an exchange on Report between myself and the noble and learned Lord, Lord Goldsmith. I said then—while slightly exaggerating the longevity of an accountant’s profession —that it did not matter whether previous tax returns had been completed impeccably if a tax return or the advice in question was negligently done. I adhere to that. I might, of course, have given a further answer, which is that the relationship with an accountant is almost always contractual. As well as owing a duty of care in tort, he or she will owe a contractual duty to exercise reasonable care in providing accountancy services. Section 13 of the Supply of Goods and Services Act provides:

“In a contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill”.

The implied term can be negative or varied, provided that it does not fall foul of the Unfair Contract Terms Act 1977.

6 Jan 2015 : Column 260

However, the real issue here is whether the term “carrying out the activity” is sufficiently clear. We think that this is a matter that judges will have no difficulty in interpreting. The activity in question would be completing the tax return, as I said previously, but I shall endeavour to give an example of what this clause is aimed at. I eschewed giving examples for the fear that they can be misleading. However, many claims are brought against supermarkets for spillages that take place in their aisles. With the best will in the world, from time to time, yoghurt, milk, soft drinks or the like are found on the floor. They therefore present a potential slipping or trip risk; and, apparently, a lot of people have, or have alleged that they have, fallen on these slippages. A well ordered supermarket will have a means of ensuring that these spillages are cleared up as soon as reasonably possible, and that, if necessary, some sort of sign can be put around them while they are being cleared up, or that somebody has charge of the process of clearing them up. Nevertheless, such a short period may elapse between the spillage and the accident that this may be impossible. What the Bill is aimed at is: if you are shopping at a supermarket and if its approach towards your visit is, “We don’t really mind that there is a spillage. We don’t have anything by way of a system. The spillages can remain there in the aisle”, then that is perhaps a relevant factor. On the other hand, if it has a system that is satisfactory and sensible—so that designated people are in charge of clearing up or guarding against these slippages—that is a responsible attitude. It should have the desirable result of limiting the number of accidents. However, it is also a matter that most people would think ought to be taken into account in deciding whether there was negligence.

The argument that this is too broad would have a little more force if the words “carrying out the activity” were not there. As I said, that focuses on the activity of a visit to the supermarket or something rather more specific, but is not quite as narrow as “act or omission”, which is proposed to be inserted in the Bill. I accept what the noble and learned Baroness, Lady Butler-Sloss, said: “act or omission” are words that are very familiar to judges, although “carrying out an omission” is rather an infelicitous concept. It is difficult to know how one carries out an omission. I acquit the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Brown, of poor draftsmanship, because I suspect that their answer would be rather like what the Irishman is alleged to have said to the man lost in Ireland and looking for directions: he “would not necessarily start from here”. However, this clause is likely to be part of the law and we must have an amendment that is helpful and clarifies the law. We say that the proposed amendment does not help. We consider that the clause as worded, and as my noble friend Lord Hodgson said, ensures that the court’s attention is focused specifically on the activity in the course of which the alleged negligence or breach of statutory duty occurred. We think that the clarification of the different adverb that the Government have tabled will remove any residual uncertainty. Therefore, we do not believe that the amendment would improve the clause’s drafting or its effectiveness.

The noble Lord, Lord Beecham, was rather more wide-ranging in his attack on the Bill. I do not think it would be helpful to the House if I repeated the answers

6 Jan 2015 : Column 261

that I have given to his many attacks on the Bill throughout its passage. We are dealing with a relatively narrow amendment.

It is possible that the amendment tabled by the noble Lord, Lord Pannick, might narrow the scope of the clause by directing courts to focus on whether a single act or omission in the course of a particular activity was predominantly responsible, rather than on whether the defendant’s approach to the activity as a whole was predominantly responsible. While the Government agree that the term “activity” should not be given an overly broad interpretation for the reasons that I have given, we do not think that the court’s focus should be narrowed to the extent that the amendment suggests. We believe that it must be right in cases such as these to require the courts to take a broader view of the defendant’s conduct by looking at whether his approach to safety—taking into account all he did or did not do—was predominantly a responsible one.

At earlier stages of the Bill, the noble Lord, Lord Pannick, asked me whether this would lengthen cases, as people would look at the overall approach. With great respect to him, in these cases a claimant or defendant will often look at their system generally. If there is an accident, attention will often be drawn to an accident book or an accident record, or the proper approach to a history of accidents. I do not accept that there will be any significant lengthening or complication of litigation as a result of this.

The Government’s approach will help to reassure a wide range of individuals and organisations—whether it will spur them on to the sort of adventure undertaken by my noble friend Lord Hunt of Wirral, I am not sure. However, we hope that it will help to encourage volunteering and to remove, at least to some extent, the shadow that can hang over many activities: the fear of litigation. I simply do not accept the disavowal by the noble Lord, Lord Beecham, of there being a compensation culture, or, at the very least, a perception of one.

We think that the courts will still have every opportunity to come, as they do, to sensible decisions on the facts of each case, using the well established principles of negligence. We regard these changes brought about by the Bill, particularly Clause 3, to be modest in scope, nevertheless representing a change that reflects what most would regard as sensible.

I shall move Amendment 2 in due course, and I hope that, on the basis of the explanation I have given, the noble and learned Lord, Lord Brown, and the noble Lord, Lord Pannick, will agree to withdraw Amendment 1.

3.45 pm

Lord Pannick: My Lords, I am very grateful to noble Lords who have contributed to this entertaining debate. I remain concerned about the width of Clause 3 but I am not going to divide the House. To use the Minister’s analogy, there is no point in crying over spilt yoghurt.

Mr Grayling, the Lord Chancellor, has told us—and the noble Lord, Lord Hunt of Wirral, has confirmed from his Antarctic experience traversing crevasses—that

6 Jan 2015 : Column 262

men and women up and down the land are standing ready to volunteer for social action. They are preparing themselves for acts of heroism, waiting only to receive the message that Parliament has approved this Bill to remove the concerns that they otherwise have about litigation. Then off to the youth clubs and old-age homes they will go to volunteer and into the lakes they will dive to rescue those in danger, and in those circumstances it would be irresponsible of me to delay the Bill any longer.

The noble Lord, Lord Beecham, was less than complimentary about the Bill, but surely, so long as negligence cases are brought in this land, it will stand as a monument to the jurisprudential and policy achievements of Lord Chancellor Grayling. It is a fitting testament to the Lord Chancellor:

“Look on my works, ye Mighty, and despair!”.

This always was and it remains the most ridiculous piece of legislation approved by Parliament in a very long time. However, I pay genuine tribute—I emphasise “genuine tribute”—to the Minister, who has applied his formidable skills of reason and eloquence, and has done so with consummate courtesy, to a text that would barely muster a pass mark in GCSE legal studies, if there is such a thing.

When the noble Lord was appointed to his position on the Front Bench, he would no doubt have looked forward to debating important issues of law and justice, and I doubt that he expected that he would be the straight man in Mr Grayling’s comedy routine, requiring courts to consider whether a defendant has acted heroically. Well, the Minister has heroically dived into the lake created by Mr Grayling’s conference speech. He has rescued this pitiful creature of a Bill—and it is a pitiful creature—and has emerged from the lake with his hair still dry and his suit entirely uncrumpled, he is not even out of breath and he has done it all with a straight face. If I may say so, that is deeply impressive, which is more than can be said for this Bill. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 2

Moved by Lord Faulks

2: Clause 3, page 1, line 12, leave out “generally” and insert “predominantly”

Amendment 2 agreed.

3.49 pm

Bill passed and returned to the Commons with amendments.

National Insurance Contributions Bill


3.49 pm

Amendment 1

Moved by Lord Newby

1: Before Clause 1, insert the following new Clause—

“Secondary Class 1 contributions: apprentices under 25

Zero-rate secondary Class 1 contributions for apprentices under 25

(1) SSCBA 1992 is amended as follows.

6 Jan 2015 : Column 263

(2) In section 9 (calculation of secondary Class 1 contributions), in subsection (1A), after paragraph (a) insert—

“(aa) if section 9B below (zero-rate secondary Class 1 contributions for certain apprentices) applies to the earnings, 0%;”.

(3) In section 9A (the age-related secondary percentage), after subsection (1) insert—

“(1A) But this section does not apply to those earnings so far as section 9B below (zero-rate secondary Class 1 contributions for certain apprentices) applies to them.”

(4) After section 9A insert—

“9B Zero-rate secondary Class 1 contributions for certain apprentices

(1) Where a secondary Class 1 contribution is payable as mentioned in section 6(1)(b) above, this section applies to the earnings paid in the tax week, in respect of the employment in question, if the earner is a relevant apprentice in relation to that employment.

(2) An earner is a “relevant apprentice”, in relation to an employment, if the earner—

(a) is aged under 25, and

(b) is employed, in the employment, as an apprentice.

(3) For the purposes of this Act a person is still to be regarded as being liable to pay a secondary Class 1 contribution even if the amount of the contribution is £0 because this section applies to the earnings in question.

(4) The Treasury may by regulations provide that, in relation to relevant apprentices, there is to be for every tax year an upper secondary threshold for secondary Class 1 contributions.

That threshold is to be the amount specified for that year by regulations made by the Treasury.

(5) Subsections (4) and (5) of section 5 above (which confer power to prescribe an equivalent of a secondary threshold in relation to earners paid otherwise than weekly), and subsection (6) of that section as it applies for the purposes of those subsections, apply for the purposes of an upper secondary threshold in relation to relevant apprentices as they apply for the purposes of a secondary threshold.

(6) Subsection (7) applies if—

(a) a secondary Class 1 contribution is payable as mentioned in section 6(1)(b) above,

(b) the earnings paid in the tax week, in respect of the employment in question, exceed the current upper secondary threshold (or the prescribed equivalent) in relation to relevant apprentices, and

(c) the earner is a relevant apprentice in relation to the employment.

(7) This section does not apply to those earnings so far as they exceed that threshold (or the prescribed equivalent) (“the excess earnings”) and, accordingly, for the purposes of section 9(1) above the relevant percentage in respect of the excess earnings is the secondary percentage.

(8) But the Treasury may by regulations modify the effect of subsection (7) in a case in which the earner falls within an age group specified in column 1 of the table in section 9A(3) above.

(9) In subsection (2)(b) “apprentice” has such meaning as the Treasury may prescribe.

(10) The Treasury may by regulations amend subsection (2)(a) so as to alter the age that an earner must be in order to be a relevant apprentice (and regulations under this subsection may have the effect of allowing anyone who is of an age at which secondary Class 1 contributions are payable to be a relevant apprentice).”

(5) In section 176(1)(a) (regulations subject to affirmative procedure), after “section 9A(7);” insert—

“section 9B(4), (8) or (10);”.

(6) SSCB(NI)A 1992 is amended as follows.

(7) In section 9 (calculation of secondary Class 1 contributions), in subsection (1A), after paragraph (a) insert—

6 Jan 2015 : Column 264

“(aa) if section 9B below (zero-rate secondary Class 1 contributions for certain apprentices) applies to the earnings, 0%;”.

(8) In section 9A (the age-related secondary percentage), after subsection (1) insert—

“(1A) But this section does not apply to those earnings so far as section 9B below (zero-rate secondary Class 1 contributions for certain apprentices) applies to them.”

(9) After section 9A insert—

“9B Zero-rate secondary Class 1 contributions for certain apprentices

(1) Where a secondary Class 1 contribution is payable as mentioned in section 6(1)(b) above, this section applies to the earnings paid in the tax week, in respect of the employment in question, if the earner is a relevant apprentice in relation to that employment.

(2) An earner is a “relevant apprentice”, in relation to an employment, if the earner—

(a) is aged under 25, and

(b) is employed, in the employment, as an apprentice.

(3) For the purposes of this Act a person is still to be regarded as being liable to pay a secondary Class 1 contribution even if the amount of the contribution is £0 because this section applies to the earnings in question.

(4) The Treasury may by regulations provide that, in relation to relevant apprentices, there is to be for every tax year an upper secondary threshold for secondary Class 1 contributions.

That threshold is to be the amount specified for that year by regulations made by the Treasury.

(5) Subsections (4) and (5) of section 5 above (which confer power to prescribe an equivalent of a secondary threshold in relation to earners paid otherwise than weekly), and subsection (6) of that section as it applies for the purposes of those subsections, apply for the purposes of an upper secondary threshold in relation to relevant apprentices as they apply for the purposes of a secondary threshold.

(6) Subsection (7) applies if—

(a) a secondary Class 1 contribution is payable as mentioned in section 6(1)(b) above,

(b) the earnings paid in the tax week, in respect of the employment in question, exceed the current upper secondary threshold (or the prescribed equivalent) in relation to relevant apprentices, and

(c) the earner is a relevant apprentice in relation to the employment.

(7) This section does not apply to those earnings so far as they exceed that threshold (or the prescribed equivalent) (“the excess earnings”) and, accordingly, for the purposes of section 9(1) above the relevant percentage in respect of the excess earnings is the secondary percentage.

(8) But the Treasury may by regulations modify the effect of subsection (7) in a case in which the earner falls within an age group specified in column 1 of the table in section 9A(3) above.

(9) In subsection (2)(b) “apprentice” has such meaning as the Treasury may prescribe.

(10) The Treasury may by regulations amend subsection (2)(a) so as to alter the age that an earner must be in order to be a relevant apprentice (and regulations under this subsection may have the effect of allowing anyone who is of an age at which secondary Class 1 contributions are payable to be a relevant apprentice).”

(10) In section 172(11A) (regulations subject to affirmative procedure), after “9A(7),” insert “section 9B(4), (8) or (10),”.

(11) The amendments made by this section come into force—

(a) for the purposes of making regulations under section 9B of SSCBA 1992 or section 9B of SSCB(NI)A 1992, at the end of the period of 2 months beginning with the day on which this Act is passed, and

(b) for remaining purposes, on 6 April 2016.”

6 Jan 2015 : Column 265

Lord Newby (LD): My Lords, in Committee, I outlined the Government’s intention to table an amendment to give effect to the important initiative regarding apprentices announced by the Chancellor of the Exchequer in his Autumn Statement on 3 December. I now move this amendment to the Bill. As noble Lords will be aware, the Chancellor announced that the Government will abolish employer class 1 national insurance contributions for apprentices under the age of 25 from April 2016. This builds on the removal of employer class 1 national insurance contributions for all under-21 year-olds from April 2015.

Amendments to Section 9 and new Section 9B of the Social Security Contributions and Benefits Act 1992 and the Social Security Contributions and Benefits (Northern Ireland) Act 1992 give effect to the Government’s intention to abolish employer class 1 NICs for apprentices under the age of 25 from April 2016 by introducing a zero rate of secondary class 1 NICs for employers of apprentices under the age of 25 on the earnings of those employees. The zero rate will apply to earnings below the upper earnings limit.

As the Chancellor made clear, apprenticeships are at the heart of the Government’s drive to equip people of all ages with the skills valued by employers. This measure is intended to support employers who provide apprenticeships to young people by removing the requirement that they pay secondary class 1 NICs on earnings up to the upper earnings limit for those employees. The measure is also intended to support youth employment. Under this Government, employment is at its highest ever level while unemployment is now lower than when they came into power. However, there is still more to do. The Government will provide a zero rate of employer’s class 1 NICs on the earnings of apprentices under the age of 25 from 6 April 2016. The measure will apply both to new and existing apprentices aged under 25 and is not time-limited.

The first main feature of the new clause is that there is a regulation-making power to define “apprentice”. There are existing statutory definitions relating to apprenticeships. For example, in England and Wales, the Apprenticeships, Skills, Children and Learning Act 2009 introduces the concept of an “apprenticeship agreement”, which is defined in part with reference to an apprentice. Because education and training is a devolved matter, and not all apprentices are employed under apprenticeship agreements, we will need to look at the approaches taken towards apprenticeships in the different devolved Administrations. The power will allow time to discuss the definition with stakeholders such as the Skills Funding Agency and its devolved equivalents. The power will also enable us to respond simply to changing statutory definitions and requirements in the future.

Secondly, there are regulation-making powers to vary the age group to which the zero rate of secondary class 1 NICs for apprentices applies. For example, the Government could in the future allow for an increase in the age bracket of apprentices falling into the zero rate band of secondary class 1 NICs. Thirdly, there is a regulation-making power to ensure that the benefit of the zero rate of secondary class 1 NICs for apprentices can be enjoyed only in respect of earnings below a

6 Jan 2015 : Column 266

certain level. In other words, the power will provide a means to introduce an upper secondary threshold for apprentices in the same way as we are doing for under-21 year-olds. This threshold will be set at the level of the upper earnings limit in the 2016-17 tax year.

The Government believe that this measure, alongside other initiatives on apprenticeships and the abolition of employer’s NICs for under-21s from April 2015, will help to address the problem of youth unemployment in the UK. I beg to move.

Lord Davies of Oldham (Lab): My Lords, I begin with an expression of gratitude to the Minister. As he indicated in his speech, he was kind enough in Committee to indicate the thrust of amendments that would be tabled on Report. He duly fulfilled that promise. Therefore, when I received his letter dated 22 December—I give the House the opportunity to imagine just when I settled down to read this letter—it did not cause quite the degree of consternation that the Minister might have thought. It was not an unfortunate Christmas present but merely confirmed that the Government were in fact carrying out their intentions with regard to the Bill. Therefore, I thank him for his letter, timely as it was.

As we indicated at Second Reading and in Committee, we are supportive of the broad intent of the Bill and the form of the NICs position. We welcome the particular amendment, but nevertheless have some anxieties which I hope the Minister will assuage. What will be the level of scrutiny to ensure that this change to the NICs position in order to encourage apprenticeships does not result in a rerun in apprenticeships of some of the aspects we have seen of the Government’s obvious enormous delight in the number of self-employed people?

We are all too well aware that the increase in self-employment conceals in many respects great difficulty for people who cannot get work in any other way, so they engage in the most risky process of advancing and safeguarding their lifestyle. What reassurances can the Minister give that this extension of the reduction in national insurance contributions will not lead to unscrupulous employers using this strategy in order to reduce the taxation that ought to be paid?

The Minister must know that there are certain areas where self-employment is very significant. We should mention in particular the construction industry. All of us in the House recognise that that industry has particular patterns of labour engagement—that goes without saying. Nevertheless, we also know that evasion can be carried out with regard to taxation in this respect. The noble Lord must appreciate that the addition which this legislation presents as regards the under-25s, for example, might lead to difficulties.

The Government are passing this Bill without a clear definition of “apprenticeship”; they say that they are working on it. In due course a definition will be introduced in legislation which the Government say will meet the requirements. It is to be subject to secondary legislation at a date that is certainly some way in the future. Given that the Government are emphasising the importance of apprenticeships in this Bill, we would have hoped that the Minister would have got some way towards defining the term.

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I can give him some illustrations of what a proper definition of apprenticeship might look like. It might indicate that the apprenticeship should normally last for two or three years at the least. It might indicate that apprentices should be new entrants to the area of work rather than existing employees. The fact that the Government have made no real attempt during the passage of the Bill to address these issues means that we fear that what they will do with it, if they have the chance, will reflect their present activities; namely, that a great number of apprenticeships involve merely rebranding workers who are already at a place of work and calling them apprentices without identifying what the skills acquisition and development actually involves.

4 pm

Under this Government, one in five apprenticeships has lasted for only six months. One has to question the quality of apprenticeships in which these skills can be achieved in such a limited time. It is also the case that the vast majority of apprenticeships have gone to people well beyond the age of 25. This is about rebadging, not about enhancing or offering opportunities.

Although we will not express opposition or divide the House on the proposals in the amendment that the Minister has just advanced, we had hoped that the Minister would have presented the amendment in the context of a real drive towards the proper advancement of apprentices rather than continuing a policy of which there is much criticism and which we in the Labour Party intend to address when we form the next Administration.

Lord Newby: My Lords, I am glad the Labour Party intends to address this when it forms the next Administration—if it ever does—but it would have done better to have addressed it when it formed the last.

As far as evasion is concerned, there is no evidence that employers will seek to use this measure to, for example, claim that a large number—or any number—of their staff are apprentices who are not actually apprentices. They will be required to meet the conditions of the regulations. The regulations that we are setting out in secondary legislation will include, at the least, an accredited form of training—for example by the Skills Funding Agency or its devolved equivalents. Employers will need to be able to confirm to HMRC that the employee in question is indeed an apprentice. The conditions will be designed in such a way that it will be easy for employers to provide verification if asked by HMRC on a routine compliance visit. The bull point is that there is no evidence whatever, circumstantial or otherwise, that employers either have been or will seek to use this relief, or existing funding schemes for apprentices, to get an unfair benefit.

The noble Lord asked about definitions and why we have not included a definition of apprenticeships in the Bill. As I said, there is a definition of “apprentice” in the 2009 Act, which is the starting point for the definition that we propose to put into secondary legislation. We have to consult with and seek the agreement of the devolved Administrations, which will take a little time. There is also an advantage in

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having an ability to amend the definition, which is obviously easier to do in secondary legislation, rather than in having a very detailed definition in the Bill.

We obviously share the noble Lord’s concern that the quality of apprentices and apprenticeships should be as high as possible, and we have worked very hard to ensure that. The principal way that we have been doing it is through supporting so-called Trailblazers, which are employer-led apprenticeship standards and assessment approaches. More than 1,000 employers, in more than 75 sectors, have been involved in those; 73 standards have been approved and published and more than 75 new standards are in development. These cover a wide range of sectors, from fashion to nuclear, law, banking and the Armed Forces.

The first apprenticeship starts under the new, improved standards began in September last year and the programme will continue. Our aim is that from 2017-18, all apprenticeship starts will be on the new standards. I hope that that will go some way to reassure the noble Lord that we are as concerned as he is to drive up the quality of apprenticeships so that young people—or indeed people of any age—taking part in them will get something of real value to themselves and to the economy more generally. I hope that I have been able to answer the noble Lord’s questions.

Amendment 1 agreed.

Clause 2: Consequential etc power

Amendment 2

Moved by Lord Newby

2: Clause 2, page 1, line 13, at end insert—

“(5A) A statutory instrument containing (with or without other provision) regulations under this section that amend or repeal a provision of an Act may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

Lord Newby: My Lords, as I mentioned in Grand Committee on Monday 15 December, the Government are bringing forward four minor technical amendments to Clause 2 and Schedule 1, which deal with simplifying the collection of class 2 NICs payable by the self-employed.

Amendments 2 and 3 are the Government’s response to the report of the Delegated Powers and Regulatory Reform Committee on the delegated powers contained in the Bill, which was published on 27 November. The report drew to the attention of the House the power in Clause 2 to amend primary and secondary legislation as a consequence of the reform of class 2 NICs. This power is currently subject to the negative procedure. The Delegated Powers and Regulatory Reform Committee said that in its view the justification given in HMRC’s delegated powers memorandum was not sufficient for the negative procedure to apply where the power allows for the amendment or repeal of primary legislation, and recommended that in this instance the power should be subject to the affirmative procedure. I can confirm that the Government have considered and acted on the report of the Delegated Powers Committee. Amendment 2 provides that regulations made under Clause 2 which amend or repeal primary legislation are to be subject to the affirmative procedure. Amendment 3 provides that the negative procedure

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will continue to apply to any use of the power set out in Clause 2 where a statutory instrument does not contain any regulations modifying primary legislation.

Amendments 4 and 5 are minor and technical amendments that the Government intend should be made to the draft legislation in the Bill that deals with simplifying the collection of class 2 NICs payable by the self-employed. Amendment 4 amends Schedule 1 to the Bill, which inserts new Section 11A into the Social Security Contributions and Benefits Act 1992. This is being made to ensure that the relevant self-assessment—SA—penalties apply to class 2 contributions collected through self-assessment by adding a missing reference to the self-assessment underdeclaration penalty contained in Schedule 24 to the Finance Act 2007. It was always the Government’s intention to align penalties for class 2 contributions more closely with those for SA as part of the reform of class 2 so that the self-employed are not subject to two different regimes, but this particular penalty was unintentionally omitted. Amendment 5 makes a corresponding amendment to the Social Security Contributions and Benefits (Northern Ireland) Act 1992. I hope that noble Lords will feel able to support these minor amendments.

Lord Davies of Oldham: My Lords, I have not the slightest difficulty in commenting favourably on technical Amendments 3, 4 and 5, which of course I understand the necessity for. I am glad the Government have brought them forward. Nor am I against Amendment 2—far from it, I am very much in favour of Amendment 2.

I merely draw to the attention of the House the very credible work of our colleagues in the Delegated Powers and Regulatory Reform Committee, which drew this issue to the attention of the Government in a way that gave them just sufficient time before Christmas to get their act together and indicate that they were going to table amendments on Report to give effect to the committee’s recommendation, which is to ensure that such a significant part of the legislation should be subject to the affirmative procedure and therefore much closer and more effective scrutiny in Parliament than the negative procedure. I am very much in favour of Amendment 2 and I congratulate our colleagues. I am sure the whole House is very appreciative of the work that is done by the committee. Once again it has done something that the House can take great pleasure in approving.

Amendment 2 agreed.

Amendment 3

Moved by Lord Newby

3: Clause 2, page 1, line 14, after “section” insert “that does not have to be approved in draft under subsection (5A)”

Amendment 3 agreed.

Schedule 1: Reform of Class 2 contributions

Amendments 4 and 5

Moved by Lord Newby

4: Schedule 1, page 9, line 33, at end insert—

“( ) Schedule 24 to the Finance Act 2007 (penalties for errors);”

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5: Schedule 1, page 12, line 33, at end insert—

“( ) Schedule 24 to the Finance Act 2007 (penalties for errors);”

Amendments 4 and 5 agreed.

House of Lords

Motion to Take Note

4.10 pm

Moved by Lord Williams of Elvel

That this House takes note of the case for effecting a reduction in the number of Peers attending the House each day without recourse to primary legislation.

Lord Williams of Elvel (Lab): My Lords, before I begin, I should say that, although this is a take-note Motion, it is a take-note Motion with a purpose. Most people seem to agree that the House is too large, but nobody seems able to come up with a solution that does not involve the cumbersome process of primary legislation. This afternoon, I want to offer a way forward. That is the purpose of this Motion.

Let us briefly look at the figures. During the past few years, the House has expanded both in “absolute” and in “actual” terms—these expressions and the figures I quote are taken from the recent helpful Library Note and supplements from the Library that I have requested. At 16 December last, the absolute—that is, the total—membership was 847. The actual membership—in other words, excluding those unable for one reason or another to be active Members—was 791. The average daily attendance in the 2013-14 Session was 497. By contrast, in 2009-10, the equivalent first and third values—that is, total membership and average daily attendance—were 735 and 388 respectively. Average daily attendance therefore rose from 388 to 497, which is more than a quarter.

The effect of this increase is not hard to see. The Chamber overflows at Question Time. The House has had to make provision for extra seats below Bar. Many debates are so populated that speaking time is cut down to five minutes or less. Consequently, Peers are put off from putting their names down at all. The rotation arrangements for committee membership to accommodate aspiring candidates is about to become, in my view, too stringent for proper operational efficiency. Division Lobbies are frequently too crowded for comfort. The facilities of the House are strained to breaking point. Accommodation and meeting space for Peers has not kept up with the increase in numbers, leading to business being conducted in the corridors or the Guest Room. In short, the conduct of the House’s business has become disorderly.

The question then arises: what powers does the House have by itself to deal with the problem without recourse to primary legislation? To this purpose, I have taken advice from the Table and my attention has been drawn to the report of the 1955 Select Committee on the powers of the House in relation to the attendance of its Members. In its report, which was approved by the House, the Select Committee stated in paragraph 2 that the House,

“has full power to do anything which may be necessary to ensure the orderly and decent conduct of its business”.

We should note in passing that what it cannot do is override the Writ of Summons.

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My proposal on how to exercise this “full power” in the context of the problem that I have described is in mechanism quite simple but in reasoning rather complex. My proposal is that, on the recommendation of the Procedure Committee, the House should be invited to pass a resolution; namely that, “in order to ensure the orderly conduct of business in the House, attendance at the proceedings of the House shall be regulated in accordance with a scheme established by the House; and, to that end, Peers shall consider most carefully applying for leave of absence under the provisions of that scheme”.

If this resolution is passed it will allow an amendment to Standing Order 22 along similar lines but with the important proviso that, “the House will at pleasure grant leave of absence to any Peer making an application under the provisions of the scheme established under the Standing Order”. The Companion would then spell out in detail the proposed scheme in a new appendix. It will state the intention to ensure that no more than 400 Peers attend the House in each Parliament and that these Peers will be known as “active Peers”. These will be nominated by each of the four groupings—Labour, Conservative, Liberal Democrat and Cross Bench—and in addition the non-affiliated, on the basis of the proportion of the existing House held by each grouping, provided that 75% of nominations should be of those with the greatest relative attendance record in the current Parliament.

As to the reasoning behind all this, I will address what I perceive to be the four major areas of difficulty—all of which will merit full discussion in the Procedure Committee. First, there has been recently, after yet another influx of new Peers, renewed and more intense discussion about the optimum size of the House. Without regarding it as an optimum, the firm opinion of those I have consulted is that the maximum actual membership should be no more than 400 Peers. I believe this to be the right number to aim for. It would in practice return us, more or less, to the situation in May 2010—in numbers but with a different composition. It also has the advantage—I agree that this is rather dubious but in terms of presentation it is perhaps convenient—of being just over half the current actual membership.

Secondly, there is the balance of membership between the various groupings. As I said, I propose that the current balance of the House represented by the proportions of the actual membership in each grouping should be reproduced in my scheme. There are many possible variants but neither I nor anybody I consulted could suggest an alternative way of arranging the quotas that would not promote an undignified and bad-tempered wrangle. There will no doubt be disagreement but we are, alas, where we are.

Thirdly, I propose that 75% of all the nominations by grouping should be those who have attended with most relative frequency—relative to the number of days available to them—in the current Parliament. This provision would not only seem to be a most practical approach but will ensure a necessary degree of continuity, in particular to ensure that those who have kept the House active on a day-to-day basis in the current Parliament would be able to continue to do so without

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hindrance in the next. Moreover, it would be undesirable for the scheme in its trial period to produce a wholly different cast of characters, as might happen if this provision were not included. Nevertheless, political parties and the Cross Benches must have some leeway in choosing Peers who have not qualified as “active Peers” but who, for various reasons, they consider suitable to maintain and enhance the reputation of the House. The 25% provision for nominations at the disposal of each grouping is designed to give groupings that extra ability.

To go a little further, the reason for basing the majority of nominations on previous—

Lord Forsyth of Drumlean (Con): I am most grateful to the noble Lord, and I am listening very carefully to his scheme. However, would not the provision that required 75% to be very active Peers encourage more Peers to be more active and therefore defeat his purpose?

Lord Williams of Elvel: I am all for more Peers being more active. We are talking about 75% of those with relatively high attendance records in the current Parliament. This will be debated and decided by the Procedure Committee, but I do not see an argument for resiling on that.

There have been other suggestions. Some have suggested an inbuilt gender balance, some a proper regional balance, some ethnic representation. One suggestion that I heard was that former Members of the House of Commons should not qualify.

Frivolous and impractical suggestions apart, the only other attractive criterion for nominations is the exclusion of Peers beyond a certain age. Yet, attractive as the idea may be as a principle, in my view it has three main drawbacks. First, it is difficult—and, if I may say so, idiosyncratic—to argue that the disorder I described earlier is due not to overcrowding per se but to the presence of Peers above a certain age and that therefore an age exclusion would lie squarely within the aim of,

“ensuring orderly and decent conduct of … business”.

Secondly, in order to avoid being unfairly discriminatory in applying only to a particular group of Peers, it would have to apply to the absolute number, the total membership of the House. That being so, new appointees and Members returning from official duties or leave of absence would, as a matter of fairness, be subject to the same limitation as existing Members. In the former case, it is difficult to see how that would fit easily with the Writ of Summons and the Letters Patent—or, for that matter, human rights legislation.

Lastly, it would not properly address the matter of the balance of groupings in the resulting House. The application of a blanket limitation on age would have differential effects to the disadvantage of the Cross Benches, average age 72, my party, average age 70, and the Conservatives, average age 69. The winners would be the Liberal Democrats, with an average age of 67 —the party of eternal youth. I am not sure that that would be entirely acceptable to the House, but, if it were, it would distort the percentage of the groupings and in my view introduce an unstable House.

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The fourth possible point of controversy concerns those who are at present entitled to attend but who are not nominated as active Peers. I suggest that they be encouraged to apply for temporary leave of absence. The Select Committee that I quoted and the consequent Standing Order 22(1) make the position clear. Application for leave of absence is an act of individual choice and there can be nothing which smacks of compulsion, but the fact that only active Peers will be entitled to attend and hence eligible to make claims for travel and attendance should be incentive enough if linked to the suggested text in the Companion.

I have used the expression “trial period” because the scheme may, and probably will, need to be modified in the light of experience of operating a House with a finite and defined membership, as opposed to one which is in practice open ended. It may be necessary to accommodate new groupings. In future years, different groupings may wish to adopt different methods of selection of active Peers. The House of Commons may in the end decide what it wants to do with us—perhaps.

I therefore suggest a review as the next Parliament draws to its close. Of course, it may be that the forthcoming general election will produce a House of Commons which is so fractured in composition that it is unable to last the full term of five years. Although I have suggested text for the Companion, I suspect that there may be some provision to allow that to be rolled over if there is an early Dissolution.

I am under no illusions about the difficulty of translating my proposal into action. There will be a particularly heavy burden on the Procedure Committee to analyse and digest both my proposal—which will be formally on the desk of the Chairman of Committees tomorrow morning if this Motion is agreed—and the proposals and submissions which I very much hope other noble Lords will make to it. Nevertheless, the House will be aware that if anything is to happen, it really has to happen before the end of March and the start of a new Parliament. That is why I urge that the committee reports back to the House with its conclusions before the end of February.

Finally, I am under no illusions about the impact of my proposals—or any similar proposals to reduce average attendance—on some valued Members who do not attend regularly and are not chosen by their groupings under the 25% provision. Nevertheless, I believe that it should be done. A House of finite and defined membership will have many advantages. No future Government will be able to pack the House with their supporters. The controversy over “cash for peerages” will disappear since although political donors may be awarded peerages as an honour, there will be no immediate passport to a voting membership in this House. Divisions will no longer depend on who can bus in more of their inactive Members. In short, the House will look more like what it should be, a well informed, experienced and moderate revising Chamber, and less like the caricature which is frequently painted: that of a cross between an old folks’ home for superannuated politicians and a bloated relic from a bygone age.

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It can be done. We are always told that this is a self-regulating House—I hope that the noble Lord, Lord Strathclyde, will support me—and if we are to regulate ourselves, we should take the opportunity to do so. The means are there; the question is whether we have the will. I beg to move.

4.27 pm

Lord Strathclyde (Con): My Lords, I am here entirely out of curiosity. When I saw that this Motion was on the Order Paper, while I understood the fundamental motivation of the noble Lord, Lord Williams, to see a reduction in the number of Peers, I, for one, had absolutely no idea how he was going to achieve it nor what he was going to suggest—nor, having suggested those things, by which means the House could come to a collective decision. I entirely agree with him that a self-regulating House should have the means to look at its Standing Orders to see whether it is being brought into disrepute or disorder. He and I have been Members of this House for a long time. Indeed, he and I sparred across the Dispatch Box as far back as the 1980s, which just goes to show that we are all getting a lot older, as we are half way through the second decade of the 21st century.

I have to congratulate the noble Lord, Lord Williams, on getting this Motion down on the Order Paper—and in prime time. This leads me to believe that the Government have given the go-ahead for such a discussion to take place, not just as a debate in the House of Lords but for a committee to look at this. Why is that? I suppose it is because they, like me, have heard over the course of the last two or three years a rising cacophony of Members of the House who are concerned about the ever increasing number of Peers. The reason is that throughout history very few new Peers have been made up, but since 1998, and the removal of the hereditary peerage, that number has of course increased. The noble Lord and I, and many others in this House, were Members of a House of Lords that had a far larger membership than we have today but a far lower daily attendance, because those Peers did not feel the same burden of obligation that Peers feel today and were at least prepared to come in less often than they do today.

What I have not yet ascertained—it may come out in the course of today’s debate—is what the problem is that we are trying to solve. If we have a problem of too many people, what should we do about it and, indeed, what could we do? Not so long ago, I supported a proposal by this Government to reduce the size of the House to 450 by election. That proposal was welcomed in the House of Commons with a huge majority at Second Reading, but then the parties of government and opposition could not agree on how much debating time it should have in the Commons and the proposal ultimately fell. We have an opportunity now, instead of having solutions imposed on us, to discuss again the kind of changes that we would like to see.

I do not believe that I am alone in saying that it is an enormous privilege to be a Member of this House. In the years that I have been a Member here, people have come in via all sorts of methods: some, like me, thanks to an accident of birth as a former hereditary Peer directly elected by my colleagues. There are the

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Bishops, who are appointed; the Cross-Benchers, who come through the Appointments Commission; and the party Peers, who come here through their leaders. We come here in different ways and we all have our own role to play in the way that the House operates. It is a voluntary and part-time House, and I like to think that we do the job that we are asked to—revision, scrutiny and general debate—extremely effectively.

I have one regret: the groan that rises in this House when there is talk of a new list. Not least, it is deeply insulting to new Peers who join this House; we need a new life-blood of Peers coming in. We will all take a view on what that quantum should be, but without new Peers we will become the old folks’ home that the noble Lord, Lord Williams, has warned us against.

Although there has been higher daily attendance, I understand that there are 34 more Members today than there were in 2007 in the four main groupings in the House of Lords. I do not know if my noble friend the Leader of the House will be able to confirm that when she winds up, but it does not strike me that the numbers have grown completely out of hand.

It strikes me that the whole point of the House of Lords is that it is there to throw up a hand of protest from time to time to the elected Government represented in the House of Commons, and we manage to do that. We should do so by having a broad balance of numbers between the two main parties of government. There should be no majority for the Government in this House, and there is not and has not been. The House of Lords itself works out how best to regulate the balance between the unelected but largely authoritative and influential House of Lords and the directly elected democratic representatives who sit in the House of Commons. So I urge a certain amount of caution in going down this route.

However, if we identify during the course of this debate that there is a problem and the Government and, indeed, the House and its committees wish to take it up, I would hope that the clerks would be prevailed upon to draw up an options paper, on which they could consult throughout the House, on the different ways of regulating it. One option is to have some sort of voluntary cap; I like the idea of not using primary legislation. I am not sure that I favour any of these suggestions, by the way, but at least that is one.

Another option is term limits: every Peer who comes in gets 15 or 20 years, and at the end of that period—perhaps at the end of the Session, or at the end of the Parliament in which their time is up—they leave. However, I can think of many Peers who are just coming into their prime after 15 years. Certainly, if you had been appointed a Conservative Peer in 1997 or 1998, you would have been out by now, just as we were coming into our prime in government. It is a blunt instrument.

The noble Lord made a spirited defence of age in your Lordships’ House, or rather he tried to imply that an age limit would be a bad idea, yet it is the first solution that most people reach for. There is an age limit in so many different walks of life, so why not in the House of Lords? Rather like the noble Lord, Lord Williams, I am nervous of this. In an era when politicians in the House of Commons are getting ever younger

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and the population is getting ever older, having a repository of age in this House is not necessarily a bad thing.

I did not follow the suggestion made by the noble Lord, Lord Williams, quite as keenly as my noble friend Lord Forsyth, but it struck me, exactly as it struck my noble friend, that a proposal that guaranteed a set amount of what the noble Lord called “active Peers” would simply encourage people to become even more active, and that is not in the best interests of the reputation of this House. I would almost like to hand out a prize—perhaps this is something the Lord Speaker could do at the end of each Session—for the most effective Peer who has not taken up the most time of the House of Lords and encourage effectiveness by that. I used to get a queue of Peers who would ask me, “How much do you think I need to do to be useful?”. The whole point about this House is that many people come with backgrounds outside the House so that what they do outside is almost as useful to this House and to the governance of this country as what they do inside it, and we should not forget that.

I have read other suggestions, such as that at the end of every Parliament there should be an automatic reduction of 10% in the size of the House, by ballot as the noble Lord, Lord Williams, suggested. As one who has gone through a party ballot to reduce its number, I can tell the House that it is a quite a painful operation. While there are many volunteers to step back from the House and many who are bound to get in, there is a group in the middle who are not sure whether they will get in, and the noble Lord would find it more difficult that he perhaps thinks. Under that proposal, new Peers would need to get a bye in their first Parliament so that they would be guaranteed the first election free.

Of course, it is easy to divide this process up within the party groups, but the Cross Benches are a very different group which operate in an incredibly different way. I addressed the Cross Benches only once or twice, and I was struck by their breadth and depth. I think they would find it much more difficult than the political parties to get together in some sort of electoral college. Then we have the “others”. I think the noble Lord, Lord Stoddart of Swindon, is a member of the “others”. How would we deal with them? There are also new parties, such as UKIP, and the nationalists. There are not very many nationalists. There are no Scottish nationalists —I have said before that there should be—there are not very many Welsh nationalists, and there are the parties representing Ireland.

I am in favour of an options paper, if that is what this debate concludes, but it should be consulted on widely. We should tread warily. There is another change that has taken place. We have just introduced for the very first time the ability for Members of this House to retire permanently and statutorily to cut their links to the House of Lords. This is only a few months old. A number of Peers have already taken it. Should we not give Peers the opportunity to come forward and volunteer to retire before we come forward with what I am bound to say are quite difficult and complicated schemes whose effects will be unknown in the long term?

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4.39 pm

Lord Elder (Lab): My Lords, I congratulate my noble friend Lord Williams of Elvel on his major initiative and on putting it before the House. Perhaps some will think that it should have been put to the individual groups in the House before bringing it here, but I take the view that that would not necessarily have been a way of opening up discussion—perhaps rather the opposite. The debate is certainly timely. It comes at a time when all Members, I am sure, are aware that the present and future size of the House raises questions about the workings of the House that have not been much to the fore in the past. People who turn their back on any kind of proposal for change perhaps fail to face up to the inexorable rise of numbers here, which has made a very significant difference to the effective working of this place.

First, I will make clear in my eccentric way my preferred first option in the reform debate, which I am afraid is still both not available and probably very unpopular here—namely, the move to a unicameral system. That is not because I have anything other than respect for what this House is or does, but because I wish to preserve the primacy of the House of Commons. Of course, an elected second chamber with the links between the two Houses covered as part of the written constitution of this country could still preserve the primacy of the other place, but we are further away from that than from anything else.

However, I am not in favour of reaching a unicameral system or indeed any other reform of this place by accident rather than design. That is what will surely happen if we continue to see an increase in the size of this House in the way that has happened over the past few years. This House will simply collapse under its own weight. If there has to be a major adjustment in the size of the House after each election—a point which I would personally dispute—unless something is done to ensure that that can be achieved by a reduction in the size of the House as well as by its increase, we shall end up in a ludicrous situation, at which point reform will be forced, and I doubt that that will lead to a satisfactory outcome from anyone’s point of view.

I am a unicameralist precisely because I would not wish to see the second Chamber challenge the legitimacy of the first, which would surely happen if both were elected. Of course, the position would be even worse if the second Chamber was elected by a different system, which would mean that there could be challenges of legitimacy depending on which electoral system individuals preferred. It is no answer to say that we need a full written constitution to cover all that on top of what is already there, because at the present rate of progress that will take most of the foreseeable future.

If we accept that the primacy of the first Chamber is part of the constitution, there is no need to have the second Chamber roughly in the same proportions as the other place—which is in danger of implying an undeserved democratic legitimacy in votes cast in this place. After all, if it is to be representative of the votes cast in a general election, this House may end up being regarded—leaving aside the Bishops and Cross Benches —as at least as legitimate as the directly elected House.

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However, the ever increasing size of the House means that something has to be done, some initiative taken—now. After all, if the Electoral Reform Society is right, and adjustment continues to be made after each election to the base number of each group’s membership, the Lords will move from being about half of the total number of parliamentarians a few years ago to being three-quarters. Peers who disagree with that scheme need to point to a different solution that has a chance of making progress. I accept that there are many schemes, but few of them, if any, have much chance of making progress. I have become convinced that the only group which can take a reasonable initiative for reform of your Lordships’ House is this House itself—hence the great usefulness of the discussion we are having today, led by my noble friend Lord Williams of Elvel, and future deliberations here and in the Procedure Committee.

This proposal has the potential to give us a way to raise and deal with the question of numbers. No doubt there could be flexibility in the final numbers, with perhaps 400 plus the 25% top-up, rather than it being included. Either way, it would lead to a House of a very effective size. It would be ideally placed to be a revising Chamber, but would still not be able ultimately to challenge the other place. It would not collapse under its own weight, and would leave intact the appointment of Peers as part of the honours system.

This scheme concentrates the mind in the way that an endless number of other schemes, ranging from constitutional conventions downwards, do not. It reminds us that in this House we have both the powers and responsibility, perhaps, to take effective action relating to our size, should it be the case, as I believe it will be, that other discussions lead nowhere. There is at the moment nothing actively on the table for discussion. For opening up this debate in a new and pragmatic way, my noble friend is to be congratulated.

4.45 pm

Lord Butler of Brockwell (CB): My Lords, I greatly welcome the opportunity to debate this important matter this afternoon. I found myself in a large measure of agreement with the noble Lord, Lord Elder, who has just spoken. In fact, it is a pity that this debate does not give the House an opportunity to express its opinion. If there were such an opportunity, I think that a majority of the House would agree with the statement of the noble Lord, Lord Norton, in an earlier debate, that this House is too big, is growing bigger, and needs to be reduced. That is an urgent matter now, for a reason not referred to by the noble Lord, Lord Strathclyde; it is inevitable that, after the next general election, there will be, and should be, a substantial number of further appointments to the House.

The House does risk coming into disrepute. Fun is poked at us by people pointing out that the House is the largest parliamentary body in the world, apart from China’s National People’s Congress. Of course, it does not act like that, and the whole membership does not attend, but it is an example of how fun can be poked at the House.

I am not a conspiracy theorist, despite what people might suspect from my background, but it is tempting to suspect that there is a conspiracy on the part of

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those thwarted in the reform of the House in the 2012 Bill to make so many appointments that the size of the House makes it unworkable and absurd, so reform then becomes inevitable. The flaw in that was pointed out by the noble Lord, Lord Elder—that there is no agreement among the parties about the nature of the necessary reform. If the 2012 Bill did one thing when it came before Parliament, it was to cause the penny to drop with Members of another place that an elected second Chamber would become, in one form or another, a direct challenge to the supremacy of the House of Commons, and that no way could be found of entrenching that supremacy.

I was a member of the royal commission under the noble Lord, Lord Wakeham, which was the last body to take an unconstrained look at the nature of the reform of this House. That was 15 years ago. I do not include the Joint Committee under the noble Lord, Lord Richard, which did an excellent job, only because it was constrained by the 2012 Bill that the Government had introduced. That royal commission started, as all approaches to the question should—and as the noble Lords, Lord Strathclyde, Lord Elder and Lord Williams, did—by asking what the purpose is of the House of Lords. Why should we have such a House at all? I think that on this matter, too, there would be a large measure of agreement in the House. It is to complement the other House, not to challenge or replace it, by bringing a measure of experience and expertise from people drawn from a wide range of positions in our national life to comment on and advise on legislation introduced by the Executive into Parliament. I do not think that there would be much challenge to the proposition that your Lordships’ House performs a necessary and useful role in doing that.

I will not go into the question of whether that is best achieved by an elected or appointed House, although the royal commission concluded that the range of expertise which is useful for that purpose could not necessarily be expected in an elected Chamber. That is why the royal commission proposed a mainly appointed House but with some elected Members. It also recommended that there should be a limit on the tenure of a position in this House of either 15 years or three electoral cycles. Again, I do not want to debate today whether that is the right thing to do or whether a scheme of the sort proposed by the noble Lord, Lord Williams, would be a better approach. As I looked round the House as he made his speech, I noted some scepticism about whether a scheme could be introduced in the very short time before the general election. However, given that we face the prospect of a number of further appointments, this is an urgent issue and I urge the Government to take it seriously.

For the reasons that I have given, some do not want to see any further reform of this House as they believe that that would cause the reform which did not happen previously to become inevitable. However, that is to argue the merits of a train crash. As the noble Lord, Lord Elder, said, the danger of adopting that approach is that an unwise reform is undertaken. That is what I fear. Therefore, I urge the Government to take this issue seriously.

I support the proposal of the noble Lord, Lord Strathclyde, to ask the clerks of the House to produce options that could be considered by the Procedure

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Committee. I do not think that there is much prospect of reaching agreement on a very complicated scheme. However, despite the political difficulties, I think that there is merit in a scheme offering a financial inducement limited by the amount of money noble Lords received in attendance allowance in the previous Session. Calculations show that that would be a good deal for the taxpayer which would quickly pay off. That cannot be done through legislation but it does need to be done. I say to those who wish to go on as we are that to allow the House to grow like Topsy until it becomes ineffective and almost a scandal is the height of constitutional irresponsibility.

4.53 pm

Lord MacGregor of Pulham Market (Con): My Lords, I welcome this debate, which gives us an opportunity to discuss some of these issues yet again. I thank the noble Lord, Lord Williams, for giving us that opportunity.

We have talked many times about an elected House. As the noble Lord, Lord Butler, said, that issue is in the long grass due to the other place waking up to what it would mean for that House. However, after an elected House, the size of this House is the next big issue in terms of your Lordships’ office. I admire the noble Lord’s objective but strongly doubt the practicality of his proposal and believe that there are better alternatives. As chairman of the Association of Conservative Peers, in the past two or three years I have been involved in a lot of discussions about not only an elected House but the size of the House; whether it is in formal or informal conversations, that issue almost inevitably comes up, after the issue of an elected House. This demonstrates that there is concern in this House about its size and that it may make us look increasingly unattractive, and certainly out of date, if we go on growing at the pace we are. This debate therefore gives us an opportunity to assess the state of opinion on the merits of the various proposals and to see whether there is some way forward. I very much support my noble friend Lord Strathclyde’s remark about conducting an analysis of some of those proposals. Indeed, the Clerk of the Parliaments produced a limited paper indicating some quite technical and more modest proposals for reducing the size of the House. However, my noble friend would intend that to go further, and I support him in that.

I want briefly to use this opportunity to indicate where I stand on the question of size. It cannot be defended that we are the second largest assembly in the world, only behind the Chinese National People’s Congress; and we are, even at that, an assembly with limited powers. There is, of course, the impact on facilities and costs, to which the noble Lord, Lord Williams, referred, and I have seen the document produced by the Clerk on this, which indicates that introducing a modest proposal by which people can take retirement voluntarily could be done at additional cost; but I will come back to that point later. Certainly, the effect on the facilities and the costs of the House overall are considerable.

There will always be occasions when our numbers will be added to from the dissolution and resignation honours, additional arrivals proposed by the Appointments

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Commission, and so on. Inevitably, there will be new appointments at the end of a Parliament and sometimes at the beginning of one. On the one hand, we are constantly going to have new people coming in—I will talk about fresh blood in a moment—but there is also the slow pace at which we deal with size at the other end. So where do I personally stand? I want to spend my time going briefly through the alternative ways to reduce the numbers to compensate for the fresh blood. It is, of course, extremely important that we have the fresh blood, and we should recall that experience and expertise can get out of date as the years pass, and the issues that involve experience and expertise are very different. That is why we definitely need the fresh blood.

First, the question of the hereditaries should be allowed to wither on the vine and we should no longer have the process of an election for another hereditary Peer to replace one who dies.

Secondly, establishing an age limit is also a proposal put forward by the Labour Party working party. This, in fact, I strongly support. That paper was correct; in every other occupation and profession there is an age limit, and we should be no different. There will always be the argument, “Old so-and-so still contributes enormously to the House and we want to continue to have that benefit”. That may in part be true, but it could be argued elsewhere in other professions and in every occupation for which there is an age limit. However, as I said a moment ago, it is important in this context to recognise that experience and expertise can become out of date. Human rights have sometimes been put forward as a reason for not introducing the proposal but that has not been an objection to proposing age limits elsewhere. If we are to reduce numbers to compensate for the fresh blood that comes in, we should establish an age limit. As the Labour Party proposed, retirement should take place at the end of the Parliament during which one has reached the age of 80. In other words, there would be automatic retirement not at the age of 80—it could be 84 or 85 for many—but at the end of the Parliament in which one becomes 80. That is the right proposal; that is what I would support. I have seen other proposals suggesting that the parties should attempt to maintain the party balance but have elections among themselves as to who should be retired at the end of the Parliament. That is not only impractical and would lead to all sorts of different attitudes being taken by different people, but divisive. The proposal of an age limit in the Parliament in which a Peer turns 80 has the merit of simplicity and fairness all round. I would certainly be happy for that proposal to be put forward as an alternative in the Clerk’s paper, as my noble friend Lord Strathclyde suggests.

Finally, on compensation, I have seen the arguments in the Clerk’s paper that indicated, in the proposal he put forward, that there would be a saving in public expenditure if modest compensation was given to people who wished to retire. That paper had a lot of other ingenious ideas that would be well worth exploring, but the argument about public opinion is very difficult to defend on compensation, when people are here not in an occupation in the normal way, but as a great privilege. If we look for compensation for when people retire, I do not believe that that will help the image of the House.

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In conclusion, I have always, both in this House and for 27 years in the other place, been opposed to an elected House of Lords, but we must recognise our defects and valid criticisms made of us. If we go on growing and ageing, there will inevitably be such criticisms, which will grow, not least in the media. We should grapple with this issue. Therefore, I support what my noble friend Lord Strathclyde suggests: a paper should be drawn up, not just with the limited proposals that we had before, but that covers all the different alternatives so that we can deal with this ourselves and be seen to be doing so.

5.01 pm

Lord Richard (Lab): My Lords, I congratulate my noble friend Lord Williams on raising this issue. It is one that we have skirted around many times in this House for a very long time—I still bear the stripes of past debates on this subject; no doubt there will be others to come—without facing up to it.

The chief attraction of what my noble friend Lord Williams had to say is that it can be done without primary legislation. I am in favour of an elected second Chamber and have been for a very long time, as the House probably knows. I do not resile from that position one scrap. Indeed, if some of the noises that are being made by the leadership of my party in favour of an elected second Chamber based on strong regional connections were to come about, I would welcome it with open arms and be delighted to support it.

We are not currently faced with that issue, however, but with a problem that has arisen from the way that the size of the House has grown. One can set out the issues very simply in a number of questions: is there a problem with the size of the House? The answer to that is clearly yes. It is too big for the work that it does. We do not need 800 people to do work that 400 or 450 are perfectly capable of doing. Is the problem going to go on unless it is resolved? The answer to that is clearly yes. Is the problem going to get worse? The answer to that is clearly yes.

I echo and totally agree with the remarks of the noble Lord, Lord Butler, in his somewhat apocalyptic view as to what will happen after the next general election. An incoming Government are bound to want to rebalance the House of Lords. It is asking too much of any Prime Minister to say that he would be prepared to leave the House of Lords unbalanced, particularly if the number of Liberal Members of Parliament declines and there are more than 100 Liberal Democrats sitting on the Benches of the House of Lords. That is not something that any Government will view with equanimity or pleasure. He will want to do something about it. After all, this is a legislative Chamber. We are generally here not to advise the Government, but to pass laws, in which case the Government have to get their business through this House as well as through the House of Commons. To do that, any Government will want the House of Lords broadly to represent the political situation in the country at the time, and therefore I think that the problem will get worse rather than better.

What can we do about it? It seems to me that there are basically three alternatives. One is an age limit, which the noble Lord, Lord MacGregor, and various

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other people have proposed. Secondly, people can be persuaded to go, presumably through a scheme of voluntary retirement, the outlines of which at least are on the statute book. That, coupled with some sort of financial inducement, might produce a mad rush out of this Chamber on the part of many of our colleagues, although personally I rather doubt that. Thirdly, the numbers can be reduced based on the service that people have given.

I understand the superficial attraction of an age limit—it is a simple way of dealing with the matter. However, it is brutal and blunt. It might be fair but I am not sure that it would be effective. A system based on an appreciation of what people do in this House, how often they appear and how often they participate in the affairs of the House would be a much more sensible way of approaching any sort of scheme for a reduction in numbers.

Lord Foulkes of Cumnock (Lab): I wonder whether my noble friend will give way. He mentioned the Liberal Democrat Peers. Would he care to speculate on why no Liberal Democrat Peer is going to speak in this debate? Why are they keeping their heads down today?

Lord Richard: If I were a Liberal Democrat, I would keep my head so low as to be totally invisible. My noble friend has answered his own question. I am now a bit lost as to where I was.

A noble Lord: Serves you right!

Lord Richard: I think that I was getting near to the end of what I was going to say. I wish to add two sentences. Yes, there is a problem. Yes, it needs resolution. However, setting an age limit is perhaps a brutal way of dealing with the issue. I would far prefer it to be done on the basis of experience and on who does what and when. I still hold to a basic, almost trade union, principle, which is that those who work are entitled to remain in their jobs and those who do not work should perhaps be the ones to whom we say goodbye.

My noble friend Lord Williams has produced a scheme which, in its outline, conforms to that principle, and it is well worth looking at. It is useful that we are having this debate and it is right that this matter should go to the appropriate committee of the House. The clerks are going to have to work extremely hard to produce their options paper, but we all know that the clerks in this House are redoubtable and flexible individuals who can no doubt produce large quantities of paper when that is required, although it is probably not required in this case. We do not want large quantities; we want small quantities. We want a proper options paper, proper consideration by the committee and a quick report. One hopes that more time will be given for the House to look at this issue again before the general election.

Finally, I want to say a word which goes back to where I started. I believe that the future of this House is as an elected second Chamber. I know that that is not a popular view in this House and I am well aware from my experiences in 2012 that it is not a view universally shared. However, faced with the alternative of the

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continuation of a nominated House with the sorts of problems that we are looking at in this debate or an elected second Chamber, I know which side I would come down on.

5.09 pm

Lord Jopling (Con): My Lords, it is a very great pleasure for me to follow the noble Lord who has just spoken. He and I have followed our careers for the past 70 years, since we first met in the school classroom, and I am glad that he clearly is as well now as I feel. I also congratulate the noble Lord, Lord Williams, on this timely debate. We need to discuss this issue and to move to a resolution at this time. Not only do we need to reduce the number of Peers attending debates, as the Motion states, but we need drastically to reduce the number of Peers who have a right to attend. We need a permanent reduction in the number of Peers, which can be done only by primary legislation. I was not very happy with the suggestion by the noble Lord, Lord Williams, of two-tier Peers or very keen on his suggestion of using the criterion of attendance as the key to membership. Attendance does not always reflect usefulness.

My United States friends die with laughter when I tell them that we have an upper House of almost 850 Members. They say, “We in the United States manage very well with 100 in our upper House”. Of course, there are many differences but I believe that there is a lesson there. Unlike the noble Lord, Lord Richard, I strongly oppose having an elected House. For more than 12 years I have advocated a scheme which I put together but which up to now not many people have taken seriously. I take the opportunity to peddle it once more before your Lordships because I believe that more than ever my suggestion is worthy of close scrutiny.

The problem that we are faced with, of course, is that when the hereditary Peers were disbarred from coming, the Government of the day failed totally to reorganise this House. They were told repeatedly, “If we are going to throw out the hereditaries, we must reorganise the House for the future”. We did not do that and now we are paying the price. First, we need a cap set by legislation. I do not mind what it is—perhaps 400, 500 or something of that sort—but we need to bring the number down in stages after each election towards that capped figure. A Parliament would start with whatever the cap is, but there should be flexibility for new blood to come in, as a number of noble Lords have already suggested. Perhaps a limit of 5% or 10% more could come in during a Parliament but, after the subsequent election, the total membership must be brought back to the statutory cap figure. New Peerages could be created but then the House should return to the cap.

I am strongly in favour of a substantial Cross-Bench presence. A figure of, say, 20%—I am happy to discuss either side of that—should be in statute, which would ensure that the Government of the day never has a majority in this House. I find that a lot of people outside have no conception that the last Labour Government had around only 30% of the total vote of the House. I shall come to how it can be done in a moment, but you must have an arrangement which shows that this House is not and can never be the poodle of Government.

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The key to this is that, after each general election, the membership of the House of Lords on party lines should broadly reflect the result of the election which has just taken place. That might be done through the number of votes cast for each party or by the number of seats won. For each Parliament, this House would be made up of 80% party-political Peers who in general would broadly—it does not have to be exact—reflect the membership of the other place or the votes cast in the election.

One of the difficulties, which I acknowledge, is that immediately after an election and before State Opening, which can always be put back by a week or two, the membership of this House would have to be reviewed very quickly. I would prefer it to be done in the same way as the hereditary Peers did when the 92, or whatever number it was, were elected. Colleagues in the House know who contributes. I do not like an age limit, although I have to be careful what I say because only three or four weeks ago I was 84. However, it is colleagues who know best those who contribute the most.

The question is this: what should we do about the composition of the parties in the House? One of the reasons I am suggesting this solution is because, in my view, the membership of this House does not begin to reflect the possible changes in the political scenario of the country as a whole. Let me suggest three scenarios in which the membership of this House could look seriously unsatisfactory, and I hope that I will give no offence to anyone or any party, because I am merely using press comments which we are all aware of.

We have been told that at the next election, there may be a collapse in the Labour vote in Scotland and that a large number of Scottish nationalist Members could be elected to the other place. Let us say that they form a coalition with one of the other parties. They have no representation in this place, and we would look very silly having no Scottish nationalists.

Lord Maxton (Lab): Will the noble Lord give way? The Scottish National Party has been offered peerages again and again, but it has refused to take them. That is why there are no members of the SNP in this House.

Lord Jopling: I am well aware of that, but if they found themselves in government with Ministers down at the other end of the corridor, it is inevitable that they would need to have Ministers on the Government Front Bench here to speak for their party in your Lordships’ House. I think that that is obvious.

Let me put forward another scenario. We are told by the public opinion polls that the Liberal vote has seriously sunk. If that was to happen—I think it was my noble friend Lord Strathclyde who referred to this —and there was only a handful of Liberal Members in the House of Commons, this House would look particularly stupid if it still had 103 Liberal Peers sitting here simply because the arrangements for membership of this place were not flexible. We must somehow build a flexibility into the membership. I believe that, after each election, the way you can achieve that flexibility is to pitch the party membership of the House to broadly reflect the views of the public. That is quite

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different to having an elected House—this is more or less what you would get if you had an elected House, but this is a much better way of going about it.

The third and final scenario—

Lord Richard: The noble Lord has given both the Labour Party and the Liberal Democrats some advice as to what they might do. Would he like to give his own party some advice as to how to deal with UKIP?

Lord Jopling: If the UKIP vote at the next election matches the Liberal vote—as the public opinion polls suggest it might—it would mean that neither of them would have very many Members down the corridor. But let us leave that just to the side for the moment.

A third scenario is that it is not impossible, as I have said to your Lordships before, that a new party could sweep to power. My old friend, the noble Lord, Lord Richard, mentioned UKIP. I do not think that UKIP will do it, but politicians are not popular creatures at the moment, and there is the opportunity for a new party to sweep to power in this country at some time. We have seen it happen in Turkey and in Italy in recent years, with a new party suddenly appearing from nowhere, and this House would look particularly stupid if you had a Government with virtually no support in your Lordships’ House.

These things can be done quickly; it is not impossible to do them. I have discussed this and circulated my plan before. If any of my noble friends wish to see it, I should be very glad to send them a copy of the solution for the construction of the House of Lords which, as I say, I have been peddling for over 12 years.

Lord Trefgarne (Con): My Lords, before my noble friend sits down, could he say what place he proposes in his scheme for the 26 Bishops sitting in this House at the present time?

Lord Jopling: I once wrote a letter to the Times years ago after we had a debate here on blasphemy. I remember suggesting in that letter that three right reverend Prelates had come for, I think, Report stage: one disappeared before the vote and the other two voted in opposite Lobbies. I am not really sure quite what I would suggest now, but I did suggest then that we were being overgenerous giving them 26 places. But there are none here currently, so I think I had better say no more.

5.23 pm

Lord Sutherland of Houndwood (CB): My Lords, I thank the noble Lord, Lord Williams, for giving us the opportunity to debate this very important topic. I also congratulate him on securing a debate that does not have the usual constraints of time limits on the speeches. I will come back to that, as I may come to regret it as I look down the list of speakers, but that is my initial thought.

I have one regret, however, about the subject for the debate, which is that it focuses on what I regard as only one side of the problem: the size of the House. The difficulty we have is that changing it—we have rehearsed

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this well and I will not go into it again—is very difficult and, I have no doubt, will be very contentious. However, it seems to me that we have not debated sufficiently the way in which we might be able to adjust our procedures to deal with this fact and to begin to allow a better use of the talent that we have in this place, perhaps—I throw this in as a possibility—by extending the use of committees with real powers to carry out some of the work of this House.

If you are a Cross-Bencher, you find that to raise a supplementary in Question Time you have pretty well got to surprise God and the Bishops by coming in for Prayers in order to be seated in the right sort of place. That is not sensible. Equally, if you wish to speak in a debate in which you believe you have some expertise, you might well find that the list of speakers is so long that there is the crass example of the two-minute speech. That is not good enough. Yes, most of what I want to say can be said in a minute and a half—I shall not do that just now but it can be done—but often if there are real points of issue, and that has applied to some of the debates in which many of us have taken part, the constraint on time is a great difficulty.

Is there no way of beginning to deal with that? I can think of several ways, none of which I will put forward now because they will be shot down but they are worth detailed discussion, including the use of a more extensive committee system; for example, education is one of the areas in which my own background gives me some expertise but there is no committee on education allowed in this House. Equally, we can take some of the Bills in Committee next door but there could be a much greater pre-legislative scrutiny process, as applies in some areas of our business. I throw these in simply as suggestions. It is a two-part issue: size and adjusting procedures to the size because undoubtedly we will not reduce the numbers significantly within a short period of time.

Those who are looking to the next election should consider the worries of the noble Lord, Lord Butler, about conspiracies here. If one looks at the figures for the two years following the previous election, the net numbers in this House increased by 90. That tells us what is going to happen after the next election, especially with more parties in play. That inevitably will increase the number of those hoping and reasonably wanting to come into the House.

Many of your Lordships who have come through other routes will perhaps not know much about the scrutiny that some of us Cross-Benchers went through. When the Appointments Commission was set up in the previous big revolution here in the House of Lords, it was a complicated procedure and eventually 16 of us were nominated in 2001 and introduced to the House. As part of my involvement in this, I filled in a nine-page form on request from the committee, I nominated referees and I even went and had what was initially referred to as a conversation—although in fact it was more like an interview—and in that interview there were three things that the committee wanted to establish, as far as I could see.

The first was that I had a background of relevant experience—I could match the claims and the pro formas sent in and what my referees said. The second,

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and I think the most important for them, was that on no account should I be tainted by the virus of party politics. I was to be an independent Cross-Bencher. The third, which was probably just my own paranoia, was ensuring that I did not make social gaffes too often, so I avoided asking for three lumps of sugar in my cup of tea. I passed the test, apparently, and here a number of us are. I think there are about 50 of us now. But there was a procedure.

The important part of the procedure came next. The interview was a two-part process so I asked what was expected of me. I did not know and I wanted to be sure that the job was doable. Occasionally one is invited to take on posts—I am sure your Lordships all have been—but the job is not doable. I actually got very good advice from the sub-committee I met. The good advice was, first, make sure you identify areas of interest and expertise on which you could make contributions. Secondly, the hint was to stick to those, but that was up to me because freedom of thought was part of the deal. Thirdly, I should make sure that I was here on the right occasions—not chalking up a sufficient number of attendances to be allowed in next time there was a ballot but taking part in the debates on which I was thought to have something to contribute. I thought, “Yes, that is doable. I can do this”. My training in philosophy immediately reminded me that Immanuel Kant, whom I believe to be the greatest European philosopher, formulated the premise that “ought” implies “can”. If I ought to do that, then surely I should be able to do it. That is partly up to me, but it is partly up to the structures of this place.

What I want to say in this debate is very precise. My worry is that, with the way that things are moving in this House, where we have not adjusted procedure sufficiently to take account of its size, it may well be the case that we cannot make the contributions for which we were brought here. If one is to slim us down, there is a special issue for the Cross-Benchers; I was glad to hear that mentioned, not least by the noble Lord, Lord Strathclyde. However, the broader issue is: can we do this, and does the way in which the House operates allow us to do it? My plea is that, in any further discussion, we set our minds to the questions of procedures that relate to the size of this place.