Grand Committee
Thursday, 15 January 2015.
1 pm
Cadet Units in Schools
Question for Short Debate
To ask Her Majesty’s Government what plans they have to promote more cadet units in schools.
Baroness Garden of Frognal (LD): My Lords, will Members making speeches limited to four minutes please sit down as soon as the Clock reads four, and preferably a few seconds before. Thank you.
Lord Lingfield (Con): My Lords, I begin by declaring an interest as the chairman of a charity, CVQO, the Cadet Vocational Qualification Organisation, an appointment in which I was proud to succeed Admiral West—the noble Lord, Lord West of Spithead. The Combined Cadet Force has a long and honourable history. It finds its roots in the rifle volunteer battalions for home defence which, in the early 1860s, acquired some school units. They numbered 90 by the beginning of the Great War. By 1938, that number had doubled. During the Second World War, Royal Navy and RAF sections were added, and shortly after the war they were combined into the Combined Cadet Force. Her Majesty the Queen became its Captain General early in her reign. Today, we have about 46,000 cadets in 260 schools and there are about 2,800 adult instructors and officers
In 2008, I and other supporters of cadets—I was an honorary colonel at the time—were very pleased indeed when Gordon Brown revealed his plans to increase the number of cadet units in state secondary schools. In May last year, David Cameron announced the cadet expansion programme, which was planned to deliver another 100 cadet school units by September this year. It was with dismay, therefore, that we received the news in July that the MoD proposed that funding as it currently happens should cease and that, indeed—presumably to pay for those new units to be created—the cadet grant should end next September; that the year after that, remuneration for cadet officers and other adults should end; and that the year after that, a government charge of £75 per cadet should be made and should double the year after that.
The consultation which followed suggested that about 60% of schools with cadet corps would not be able to continue them, leading to a loss of probably half to two-thirds of the current number of cadets. It was clear that the department had failed to take into account the fact that schools already contribute considerable resources to cadets and that further funds from their general expenditure would not be possible. That was not where the Prime Minister’s initiative was meant to lead.
It was with pleasure, therefore, that I received a letter on 10 December from the noble Lord, Lord Astor of Hever, from the MoD, which said that those proposals would not go forward and that funding as currently conceived would continue and would extend to the new school cadets. That was very good news indeed, as was the news that I heard later that the schools expansion programme was on time and back on track and that we have about 60 new schools ready to open their cadet corps in September, with another 50-odd in the pipeline. That was good news, as was the cadet bursary fund, of which I know that the Minister is himself a great supporter. That is meant to support the expansion of cadets, and to raise £8 million over the next four years. I would be grateful if the Minister would indicate, when he replies, where that fund is and the prognosis for the future.
If last July’s proposals were indeed misconceived, the MoD was right to subject cadet funding to some scrutiny. That was absolutely proper. Cadets cost annually about £160 million, of which £28 million is spent on school cadets, with the rest going on cadets in the community—the Army Cadet Force, the Air Training Corps and the Sea Cadets. We have to ask ourselves: are they worth it? Are those sums of money justified? In my view, they certainly are.
Not very long ago, I was speaking at a national competition to a young man from one of our northern cities. He was badged as a guardsman and dressed in the scarlet of a drum major. It became clear during our conversation that he had left school with just one poor GCSE and had had a little intermittent work since, cleaning cars. It was also clear that his cadet unit—with its regular attendance, discipline, uniform, and its opportunity for leadership skills and for taking BTEC and other qualifications, which he had started to do—was the only way that he could show any self-worth at all and gain any self-esteem. He said to me, “If it hadn’t been for the cadets, it would be drugs and trouble for me”, and he was beginning to do well.
Stories such as that are legion, and they tend to suggest that every penny we spend on cadets is worth while and could save money in other areas of public expenditure. My own organisation, the CVQO, puts thousands of cadets each year through BTECs and other similar diplomas. They acquire at the same time those life competences of punctuality and a can-do attitude. They are most likely then to go into work and on to higher vocational qualifications. They are less likely to be NEETs or benefit claimants, or indeed to encounter the youth justice system. It is also not too far-fetched to say that the NHS saves money from cadets, because they tend to be healthier, fitter and less obese. Certainly, they make good recruits to the Armed Forces, in both the Regular Forces and the Reserve Forces. There is also some indication that in later lives they are more inclined towards volunteering in their communities. However, all that is anecdotal. We seriously require a study of the social impact of cadets and of their value for money. I very much hope that the Minister will indicate whether such a study might be possible.
Finally, I mention another excellent government scheme, the military ethos in schools programme, in which my own organisation, among many others, takes
part. Typically, some dozen young pupils are selected in each school. They tend to be those who are having problems with discipline and have low achievement. They benefit enormously from the cadet-type work that they do, supervised by cadet instructors, which is usually part-time. Their schools are hugely supportive of this and report better attendance among those pupils, improved self-worth and an increase in levels of literacy and numeracy.
Finally, cadets were created some 150 years ago with the object of making better soldiers. Today, the object is to make them better citizens, and long may they be enabled to do so.
1.10 pm
Lord Jones (Lab): My Lords, in a very long public life, most of it in these two Houses, I have not encountered better provision for youth than that proffered by the nation’s cadet force associations. From my own observations, I can say that what is done by the Army for young women and men is magnificent. They are provided with excellent opportunities, facilities, training and mentoring. There are many successes and Wales is a determined partner in this success. I attend cadet camps throughout the length and breadth of England and see these achievements. The Committee owes the noble Lord, Lord Lingfield, a debt of gratitude for securing this debate. I sincerely support him wholeheartedly. He has made the case for cadet units in our schools and defended them. I thank him for his insightful, loyal and committed remarks.
I also acknowledge the professionalism of Brigadier David Short, the ACFA chief executive officer, for his élan, vigour, experience and enthusiasm. I do not say that for nothing, as he commanded Apache attack helicopters in British squadrons. We are in good hands.
I declare my interests as president of the Army Cadet Forces Association Wales, as president of the training ship “Tuscan”, and my very long-standing association with 2247 Squadron ATC, both of the latter in Flintshire. I have seen a lot of them.
In Wales we have a leadership team dedicated to the best interests of the cadets. I offer praise to Colonel Commandant AV Jones in Clwyd and Gwynedd, covering the communities of the Snowdonian massif and industrial north-east Wales. I also praise Colonel Commandant David Hammond, a very distinguished professional soldier, who leads over the seascapes of Dyfed and the city of Swansea, and Colonel Commandant Rob Hughes, who copes with the vast interior of Powys and the eastern valleys of Gwent. Our splendid chairman is Colonel John Brunt, himself a former commandant. The colonel of cadets is the ubiquitous Colonel Mike Mullis. We recently welcomed our new secretary, Colonel Naysmith, saying goodbye to a wonderful secretary of 10 years—Major John Carter, to whom I owe a great deal. This team faces up very boldly to the constant challenges of distance, climate and topography. We are a very varied people in Wales with distinctive approaches, but I think that the movement is a splendid success in my homeland.
I place on record my thanks to the right honourable Secretary of State Iain Duncan Smith for receiving my deputation concerning the outreach programme. He
also commanded his civil service unit to be present. Outreach is a generous gift from the Army. It reaches out to the young underprivileged and offers a way forward to boys and girls in our high schools, who, for example, may have encountered the police and the magistrates’ youth court. They then do very well on the course. Time is of the essence, so I shall sit down.
1.15 pm
Lord Burnett (LD): My Lords, I congratulate my noble friend Lord Lingfield on securing this debate and for the wholehearted support he gives to the cadets. I also thank my noble friend Lord Astor of Hever for his great support for the cadets.
Life is full of coincidences. I was up on Dartmoor last Saturday. I spend a great deal of time there; not, I hasten to add, in the prison, though I have been there a few times—I made guest appearances only. While up on Dartmoor I came across 60 cadets who were learning to do a six mile or so advance to contact in hostile conditions, on hostile terrain and in hostile weather. It was raining and very cold. They were in cold-weather clothing, though their instructor, I am proud to say, Corporal Credicott of the Royal Marines, was in shirt-sleeve order: noble Lords must remember that it was not quite freezing. Corporal Credicott had come up from Commando Training Centre Royal Marines to instruct the cadets.
These 60 or so cadets were from Tavistock and two other units. They need not have come; they were all volunteers, all dedicated and enthusiastic. They were giving up their free time to learn leadership skills, how to work together in adversity and many other lessons, including initiative and self-discipline. I was immensely impressed and proud of them. I believe, as my noble friend Lord Lingfield said, that other departments of state should contribute to the cost of the cadets.
It is a shame that we have only four minutes in which to speak, but I also want to thank Lieutenant General Sir Robert Fulton, a former commandant-general of the Royal Marines, a corps in which I had the honour to serve, for briefing me. I congratulate the Ministry of Defence and our Secretary of State on recognising the importance of the cadets. He saw them at first hand when the Royal Marines Cadets were at Buckingham Palace last summer. The year 2014 was the 350th anniversary of the formation of the Royal Marines. Due to the tireless work and commitment of many, particularly Colonel Cautley of the Royal Marines Reserve, Her Majesty the Queen last year instructed that henceforth all cadets who are entitled to wear the Royal Marine uniform will be called Royal Marines Cadets. Some 500 or so Royal Marines Cadets and instructors marched behind the band of Her Majesty’s Royal Marines from Horse Guards to the gardens of Buckingham Palace, where his Royal Highness Prince Philip, the Duke of Edinburgh, took the salute. I shall end by reading an excerpt from his Royal Highness’s address. He said of the Royal Marines Cadets:
“They have a very special reputation of their own which reflects the reputation and achievement of Her Majesty’s Corps of Royal Marines”.
1.18 pm
Lord Freeman (Con): My Lords, like my noble friend Lord Lingfield, I am a very strong supporter of the cadet forces. We need more cadet units and I am very grateful for and appreciative of the efforts taken by the Ministry of Defence and, in particular, by my noble friend Lord Astor to ensure that we are on an upward and, I hope, sustainable track in supporting more cadet units. My experience, like that of many of your Lordships, was at school, having served in the Combined Cadet Force. Then it was compulsory. I am not in favour of compulsion, but everyone was in full uniform and received weapon training. That is very expensive, partly because of the cost of provision of armouries, let alone safety; those were the days. Today there are many fewer combined cadet forces and, clearly, cost is a factor. So I ally myself behind those, and with those, who call for a further expansion and I am delighted at the support that has been given.
I will very briefly mention one initiative which I am associated with: the military ethos in schools programme. That involves former military personnel—who I am told are already in 460 schools throughout the United Kingdom—explaining the ethos of the military and explaining and using the discipline and determination that is expressed so well by many in our Armed Forces, helping to improve not only the self-discipline but the ambitions of more than 16,000 children. I thank Her Majesty’s Government for their continuing support for that programme.
Finally, I will touch on the connection I have, partly because I have served as president of the Council of the Reserve Forces and Cadets Association. At the time I served in that association it had 50,000 reservists. Today we have an ambition to get back to something like 30,000, which is a very tall order. I hope that increasing the activities and numbers of school cadet forces will feed through to participation in our Reserve Forces in later life. It is vital that we have 30,000 reservists as soon as possible, because our Regular Forces are being reduced significantly. Initiatives taken at school, and school cadet forces, can help.
1.21 pm
Lord Ramsbotham (CB): My Lords, I, too, congratulate the noble Lord, Lord Lingfield, and thank him for obtaining this debate. I also congratulate him on his leadership of the CVQO, which I know is much appreciated.
I make no apologies for diverting slightly, but the noble Lord mentioned the youth justice system. Recently the Secretary of State for Justice announced that he wants to put education at the heart of the youth justice system. I therefore feel that there is a connection between the subject of this debate and what is wanted in the youth justice system. I will explain some of the things that have happened in the past which give me encouragement to speak like this. Before I do so, I join the salute to the noble Lord, Lord Astor, for all he has done, and say how welcome that letter was. I cannot believe that it resulted from anything other than a great deal of work on his behalf, so I thank him for that.
When I took over as Chief Inspector of Prisons in 1995, very soon afterwards the then Home Secretary told me that he wanted to impose what he called a “boot camp regime” based on what he had seen in America. He thought that the only place where he might find that was in the military prison at Colchester. I told him that that military prison was not a prison—it was the Military Corrective Training Centre and that it had two parts: one was a sort of resettlement prison, returning people to civilian life, and the other gave a second start to people who had made a bad start in their careers. They therefore did basic training again, which resulted in an 84% success rate. Indeed, the MCTC counts 11 regimental sergeant majors among its successes.
One of the very interesting facts about the population of the MCTC was that virtually none of the people who came through that programme had ever been in the cadets. Having been in a regiment which strongly supported the cadets and indeed welcomed people with cadet experience because they had had, as it were, a flying start to their regimental career, I was very interested in that. Therefore one of the things I hoped was that, as a result of the experience of sending young offenders to the MCTC—where they grew up amazingly and responded to military discipline in a way which was immediately recognised by their parents, quite apart from their instructors—perhaps a cadet force might be formed in a young offender institution. Indeed, one was started at Feltham. It has not taken off as well as it might, but I suspect that that is as much because of lack of encouragement rather than lack of opportunity.
Recently, there was the idea of setting up, for instance, a secure foundation, which is a local area responsibility in a one-hour radius by public transport for young offenders. Incidentally, all the local councils, in seeking what the place should do, all wished a cadet force to be part of the curriculum because of what it offered the young people. Therefore, my plea to the Minister is that he should contact his colleagues in the Ministry of Justice, commend to them that the military ethos in schools programme should be extended to young offender institutions, because it clearly works, and do all that he can to encourage this. You never know, out of the youth justice system we might rescue some people for the Armed Forces, quite apart from anything else, and nothing has a better track record of dealing with young people and building up their self-esteem than the cadet force.
1.25 pm
Baroness Seccombe (Con): My Lords, I add my congratulations to my noble friend for giving us this opportunity to debate this important issue. First, I want to declare an interest as my son is chairman of the West Midlands Reserve Forces’ and Cadets’ Association.
When I was at school I was a Sea Ranger, which was odd as I lived in the centre of England as far away from the coast as you could be. We were instructed by a retired naval officer who was a great believer in the power of marching and all its intricate moves. I loved it and could see that we all gained from working together with great precision. We were the best and
proudest of anyone as we marched along The Mall for the then Princess Elizabeth. Noble Lords may question what this has got to do with the subject. All I know is that I benefited from it and it was all that was on offer at the time. We had to spend two hours each day in some form of sporting activity. Children do not have that chance today but now they have this splendid opportunity through membership of a cadet detachment to combine active involvement while developing important life skills. I believe in today’s hazardous world it is really important that young people learn more about the military and voluntary ethos. The cadet expansion scheme gives that opportunity to learn about self-discipline, teamwork, punctuality and self-confidence—all so useful throughout life.
The cadet movement has always been part of life in independent schools, so I was delighted when last year the Government agreed, at last, to fund a scheme with £1 million added to the £10 million already pledged to help state schools cover the setting-up and running costs of 100 new cadet units within a year. The sum is being matched by the private sector. I understand that the initiative is going well and I agree with my noble friend that it would be good to have an update from the Minister. It seems to me that this would be a principled cause to motivate charities and philanthropists in generous donations as well as then following up with interest. Of course, in any exercise of this kind so much must depend on head teachers. They are the ones who must first excite the students and the parents on the benefits of the cadet experience and then drive the project forward. They must explain what will be gained by being part of a team, developing particularly self-confidence and self-discipline. This will be important as the students face all the new challenges that this will offer them. They will be able to go on expeditions, do activities such as sailing, and develop skills in advanced first aid and, most importantly, leadership. Other critical individuals are the adult volunteers who, I understand, are coming forward in encouraging numbers. Perhaps the Minister could update us on this also.
I believe that, whether participation in the scheme leads to a life in the services or not, these young people will enter adulthood as well rounded citizens. They will have had invaluable experience to test themselves in many ways and will emerge more self-confident and, I believe, more understanding, ready to take their place in society. I am sure we all wish we could have had the opportunity in our own school days.
1.29 pm
Lord Rogan (UUP): My Lords, through my involvement in politics and with a personal interest, I have had the good fortune to spend time with the men and women of our Armed Forces. I know that the noble Lord, Lord Burnett, is especially pleased that some of that time was spent with his Royal Marines. I have had the privilege of watching the modern Army at work. As an honorary colonel of a signals regiment, I have come to greatly admire the character of those who serve. I have listened to many tales from serving soldiers about what the Army has done for them—how it shaped and moulded their character and gave them the skills to fulfil their potential.
“Discipline is the soul of an army”,
and that one of its outworkings was “esteem for all”. Words such as “discipline” and “respect” have formed a common refrain in this debate and that is as it should be. While the Army Cadet Force is very deliberately a youth organisation, and not some junior version of the Army Reserve, it does share some common genes with military service—genes which we would do well to encourage throughout society.
People like to complain about the young. It is the natural order of things and has been ever thus. Every generation has shaken its head disdainfully at the prevailing trends of youth culture. Punks, mods, rockers and even the flappers of the 1920s have all been cited as evidence of moral rot. In the 21st century our terminology is less gracious and headline writers are never happier than when writing about the “feral youth” running amok across society.
Clearly, young people are not undermining the fabric of society but I do think that the very nature of modern society is helping to undermine the prevalence of characteristics that are for the common good. Today’s society is more atomised and less community-orientated than at any time I can recall. The ties of tradition, family and religion have loosened. We live in an instant age and are prone to live in the moment and for the moment. We are less patient, less thrifty, less structured, less active and more self-centred—and that applies to the not so young as well as to the young. We live in an era of dichotomy, where medical advances that would have seemed beyond possibility to the post-war generation are accompanied by the plague of obesity. In our relative culture of plenty we have all become concerned with rights rather than duties. We have never had more, but are we really more content or happier?
Frankly, “discipline” and “self-reliance” are not the watchwords of modern Britain’s zeitgeist. You could almost say that they are countercultural. That is why I have no hesitation in supporting the Motion of the noble Lord, Lord Lingfield, to encourage more cadet units in schools. In an age where virtuous and liberating characteristics, such as self-control, hard work, camaraderie and discipline are hard-pressed, we should encourage activities, especially among our youth, which help push back against the prevailing headwinds.
Cadet units build self-confidence, they prepare people for work, they teach respect for the self and for others, they encourage fitness, and, as has been mentioned, the financial cost of involvement is minimal. Sometimes you do not have to reinvent the wheel to solve a problem. School cadet units are an excellent outlet for 12 to 18 year-olds, and many more of them should have the opportunity to get involved.
1.34 pm
Lord Lexden (Con): My Lords, this is indeed a most valuable debate, for which we are indebted to my noble friend Lord Lingfield. Sadly, my career in the school cadet force long ago was an utterly inglorious episode, all details of which must be suppressed.
I have nothing but praise for the Government’s plans—now well advanced—to enable more maintained schools to establish cadet units. A number of those
schools already have them but, like the excellent state boarding schools, they are among the nation’s best kept secrets. Their ranks should be swelled, and now they will be.
The increase in the number of cadet units is surely to be welcomed on two grounds above all. First, it will confer benefits on many more youngsters, assisting the shaping of responsible character and the provision of otherwise unattainable opportunities. Secondly, it will assist the national interest. Our defence in the years ahead will rest on the Territorial Army to a much greater extent than in the recent past. The expansion of cadet units will help furnish the recruits that the TA will need.
I have just one principal objective in this short debate: to advocate greater collaboration between independent and maintained schools. I should add that I have long been associated with the independent sector of education. Collaboration is already flourishing in a number of places. The head of an independent school in York wrote recently that it has,
“pupils from a neighbouring state school training alongside our cadets every week”.
Another head teacher in Cheltenham described how a contingent formed recently in a nearby academy has been developed in partnership with his school’s CCF,
“using our experience and resources, and they are bringing some superb talents to the team”.
I am sure that the Minister will agree that such partnership ventures should be encouraged throughout the country.
Of course, not all independent schools have attained the highest standards throughout their histories. One school magazine reported on 3 May 1888:
“The majority think it monstrous if they are obliged to attend twenty drills in the summer term. The consequence is that whenever the corps makes its appearance the drilling is bad, the marching is slovenly, and it becomes the laughing stock of the school”.
The school in question was Harrow, and its cadet force was about to secure a new recruit: Winston Churchill. He swiftly transformed it, making it what would today be called a model of good practice. It was therefore so very appropriate that contingents of cadets were prominent at his state funeral 50 years ago this month. We can be sure that he would have been much in favour of the expansion of the number of cadet units which is now taking place. He always said that the opportunities available to the few in public schools should be extended throughout the nation.
1.37 pm
Earl Attlee (Con): My Lords, I am grateful to my noble friend Lord Lingfield for introducing this Question for Short Debate about cadets. On the point about recruitment, I point out that the cadets are a youth movement, and the cadet force is worth while even if the Armed Forces get no recruits from it. We would just need to find another way of funding the cadets.
I started my military involvement with Stowe School CCF and, as I observed at Second Reading of the Social Action, Responsibility and Heroism Bill, in the mid-1970s I was allowed to do things as a cadet that would be absolutely out of the question now. For instance, I was allowed to go off on my own on a TA internal security exercise, and I took exactly the same
physical risks as adult TA soldiers. Yes, risks were taken because military exercises are inherently hazardous, even though we try to reduce the risk as much as possible. I hope that the Committee will agree that it was worth taking those modest and controlled risks.
In my career, one thing led to another. Being a cadet led me to the TA, a point made by my noble friend, Lord Freeman. For me, the TA involved logistics and leadership, and that led me to running an NGO in Rwanda. That meant that I had utility to the regular army for peacekeeping operations in the Balkans and, of course, that I had utility to your Lordships’ House. Of course, this argument that one thing leads to another is not unique to someone with the privileged background which I have. It applies to everyone, no matter what their background.
There is one problem I would like to draw to the attention of the Committee and the Ministers. I understand that the maximum age of cadets was 18 and a half, but it has been reduced to 18. Apparently, the reason is that adults are not allowed to share accommodation with cadets, and I can understand the reason for that. Noble Lords might think that this is a small change, but an attractive activity for cadets is target rifle shooting, and competitions are held nationally and internationally. The problem is that other nations can field a team with cadets aged up to 19, and it is difficult for 18 year-olds to compete with a 19 year-old because at that age an extra year of maturity, concentration and everything else makes a significant difference. This is, of course, a matter for both Ministers—my noble friend Lord Nash for education, and my noble friend Lord Astor of Hever, who I am sure we are all grateful to see in his place. A touch of ministerial direction in order to allow cadets at the age of 18 and a half might be worth thinking about. It would be extremely beneficial with negligible risk attached.
When I was in the CCF in the 1970s, many teachers had military experience, and some had operational experience in the Second World War. Two challenges now arise: first, the lack of military experience of the instructors, which is not necessarily a huge problem; and secondly, an increasing requirement for adult instructors to be course trained. As ever, some of this is sensible. For instance, I would take my wife walking on Snowden but I would not take a group of cadets or adult soldiers there because I am not qualified by training or experience. Simply, I do not know what I am doing. However, an instructor may have a qualification but not the right one. In other words, he knows what he is doing but does not have the right piece of paper. I understand that the cadet movement is facing increased bureaucratic demands. I hope that the Ministers can have a look at that.
1.41 pm
Baroness King of Bow (Lab): My Lords, I congratulate the noble Lord, Lord Lingfield, on securing this debate. Even more important than that is securing the funding that he outlined, and I am therefore particularly glad to be able to congratulate him and his colleagues who have worked on this issue and secured the funding stream. In a moment, I should like to ask the Minister a few questions about how far the funding will reach.
First, however, I should say that it is encouraging that both Labour and Conservative Prime Ministers have given their personal backing to the cadet forces. It is also encouraging, as the noble Lord, Lord Lexden, outlined, that partnerships between schools are in place to help strengthen and expand the cadet forces. After all, the cadets, when one looks at what they actually do, are one of the most—possibly the most—fantastic youth service we have in this country. The service they provide is extraordinary. The skills and training on offer are second to none, and then there are all the other things being done—not just allowing young people to jump off mountains or use gliders, although I would have loved to have had that opportunity myself. In terms of promoting active citizenship, committed citizens with high self-esteem, mentoring, volunteering, fitness, personal and social development, and leadership skills—who would have thought that the noble Earl, Lord Attlee, would have ended up in Rwanda?—all these extras that one gets from this funding makes it extremely well spent. In particular, the employment skills around punctuality, reliability and discipline are extremely important.
The other area that we should dwell on was touched upon by the noble Lord, Lord Ramsbotham—the youth justice system. I was struck by his comments. As my noble friend Lord Jones said, the cadet force is, above all else in some senses, an outreach programme that connects young people to the Army, although, as we have heard, it is not a formal Army organisation. I commend my noble friend and others who have spoken on their long association with the cadets and the military. It is really important for young people to have a positive experience of authority at an early age. I cannot underline enough how important that is for young people who come from areas such as the one in which I live in Tower Hamlets, for example. I know that the first words that a police officer said to me were very derogatory and included my skin colour. I remember thinking, “I’m not that black and, anyway, why is he saying that?”. The cadets offer the exact opposite approach and avenue for young people to come into contact with authority and we cannot underestimate how important that is.
I have a couple of questions. First, I understand that there are 3,280 cadet units across the UK, but only 10% of those are in state schools, which is why this programme seeks to increase the numbers. I assume that the 60 new cadet units that are to open this September are all in state schools. I would like clarification, although I believe that they are. Secondly, is the Department for Education encouraging schools to collaborate in a more concrete way, so that a relatively small network within the state sector can reach further? The Government’s website mentions that the cadets can promote social mobility. That is yet another reason to support cadets in schools, both now and in the future.
1.45 pm
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con): My Lords, I thank my noble friend Lord Lingfield for securing this important debate. I pay tribute to him in his role as chairman of the Cadet
Vocational Qualification Organisation and the fine work that it does to ensure that the skills gained through cadet forces are recognised. I would also like to thank all noble Lords for their valuable contributions today.
As part of driving education reforms to address our slide down international league tables, we need to equip our young people with the character, grit and determination that they need to make their own way in life. We need to give them the opportunities to develop the leadership, team working and other social skills that are so vital to employers. As we have heard, many of our most respected independent and some state schools have for over 100 years looked to military-themed activities to give their pupils a sense of discipline, adventure and achievement.
Such life-changing experiences should not be the preserve only of the fortunate. It is young people in schools in the most disadvantaged communities who most need greater strength of character to cope with the challenge they face to succeed in life. Contrast the organisation, routine, structure and discipline that come from a service life with the chaotic home lives which, sadly, so many of our children and young people experience today, with no structure or routine and a background that is literally scatty, with poor eating and sleeping habits, and so on.
One of the charities I was actively involved in before I took this job looks after boys on the edge of exclusion. Virtually all of those would be in a single-parent situation. We surveyed these parents to ask whether any of them had systems or routines at home for times for eating, homework, television or sleeping, or times that they had to be in by. More than 80% of parents replied that they had none; but more than 80% also replied that they would love to hear about such a system if somebody could explain it to them. That shows the chaos in many of our homes today.
The other important thing that the forces can bring to schools is men. Of course, women forces personnel are extremely good role models, particularly for girls in schools; but sadly a large proportion of young people today are brought up in what we politely call single-parent households, which almost certainly normally means a single mother. Some 27% of primary schools have no male teachers in them at all; only 15% of primary school teachers are male, though there has been a 10% increase under this Government; and only 4% of teaching assistants in primary schools are male. This means that many children have a total absence of male role models in their lives, which can be just as damaging for girls as for boys. If a girl has never experienced the love of a man, the dangers that this can represent in her teenage years in terms of unsuitable relationships and teenage pregnancy are clear.
As an important strand of our work to raise standards for all in the English education system, this Government want to see as many pupils as possible benefiting from the same quality of life-changing military activity offered in many of the best independent and state schools in the country. That is why we have put in place such an ambitious programme to expand school-based cadet units. Starting from a base of 190 independent school units and 66 state school units, the MoD and
DfE have been working closely together since 2012 towards our shared ambition of adding 100 new cadet units by this September. I am pleased to confirm that, despite pressures on funding, the Government have committed the necessary money. As a former police cadet myself, I am delighted that state schools across the country are eager to embrace this opportunity for their pupils. To date, 65 new units in state schools have already been approved and opened, and we are actively working with a further 54 schools towards approval over the next nine months. We have also had interest from a further 77 schools. Many head teachers can already give testimony to the positive impact of their cadet unit on attendance, behaviour and discipline, on educational engagement and attainment, and on the relationship between staff and students. As my noble friend Lady Seccombe has highlighted, head teachers have a vital role to play in exciting parents, pupils and staff about the benefits of a cadet unit.
The Government believe in the important societal benefits of cadet units as well as other military ethos programmes such as the excellent SkillForce, of which my noble friend Lord Freeman is chairman. I pay tribute to his work in this regard. These benefits are a significant driver for our continued investment in cadets. They have been clearly articulated today by my noble friends Lord Lingfield and Lady Seccombe, by the noble Lord, Lord Jones, and in studies undertaken by the University of Southampton. I hope that my noble friend Lord Lingfield will be pleased to hear that my department has commissioned research to further strengthen the evidence base for these benefits. When that work reports in May this year, my expectation is that it will support further expansion in the number of cadet units in schools by convincing more head teachers and others about the benefits. In addition, officials are currently considering the feasibility of a further in-depth cost-benefit analysis of the value for money of the cadet experience.
Despite the clear benefits, schools can face significant challenges and barriers to establishing and running a cadet unit, particularly in relation to financial and human resources. In June last year, the Prime Minister launched the cadet bursary fund, a charitable fund pump-primed with £1 million of funds from LIBOR fines to help schools with the cost of their new units. I am delighted to say that, so far, £3.1 million has been raised, which has enabled the fund to award £2 million to 46 schools. A further funding round may be launched later this spring. However, only £180,000 has been raised from private donors, so I would be grateful for any support noble Lords can give directly or indirectly in this regard. To support the long-term stability of the fund, my department continues to fund a professional fundraising activity. As my noble friend Lord Lingfield has mentioned, the MoD has recently announced that rather than proceed with the per-cadet charges schools were expected to pay, it will find efficiencies and absorb the costs of the first 100 units. This is excellent news because it levels up the playing field with schools that already have a cadet unit which are not being charged, thus reducing the financial barriers to new schools. I would like to thank my noble friend Lord Astor for everything he has done in this regard.
My noble friend Lady Seccombe is correct to say that adult volunteers are another critical factor in the success of a unit. This is why round 1 of the cadet bursary fund has had a specific focus on supporting the cost of specialised instructors, and offering incentives or supply cover for volunteers and staff. I record my thanks to all those schools with established cadet units which have partnered with a state school to enable them to offer the cadet experience to their pupils, to which my noble friend Lord Lexden referred. This is particularly valuable where new schools have no prior military experience and helps to transfer important skills. To date, 23 of the 65 state schools approved to establish cadet units under our cadet expansion programme are benefiting from such a partnership, and many existing units are willing to enter into such partnerships. Those who have grown up through the cadet force are themselves ideally placed to inspire and support cadet units and are those who become volunteers themselves when they reach the age of 18.
My noble friend Lord Attlee talked about the benefits of risk taking. I have a poem on the wall of my office which talks about just those benefits, but he did note some implications in the fact that young people can remain cadets only until their 18th birthday. While I acknowledge these points, child protection and safeguarding must be our highest priority, but I will look at this further and discuss it with my noble friend Lord Astor. I would like to see many more state schools including the running of their cadet unit within the employment contracts of their staff, but there is also an important role for adults from outside the school community. The MoD includes information on becoming a cadet force adult volunteer in its resettlement support for those leaving the services and is looking at how to encourage better integration between reservists and cadet units.
The noble Lord, Lord Ramsbotham, referred to the youth justice system, on which he is of course a renowned expert, and I will contact colleagues in the MoJ and commend to them the military ethos programme being extended to youth offenders. The noble Lord, Lord Jones, president of the Army Cadet Force Association Wales, has already highlighted and thanked those involved in cadet units in Wales. I would like to give recognition and thanks to all those involved in running cadet units. They are delivering a truly life-changing experience to their pupils.
The Government’s cadet expansion programme is ensuring that 100 more state-funded schools have the opportunity to do the same. The Government welcome the engagement of forces and ex-forces personnel in the school system. We have demonstrated this not only in our considerable expansion of the cadet programme but through our engagement with organisations such as SkillForce, Challenger Troop and Commando Joe’s, and our Troops to Teachers programme. I firmly hope that in the coming years we can build on this success to give many more children the life chances they deserve. Again, I thank all noble Lords who participated in this debate.
1.55 pm
Criminal Bar: Funding
Question for Short Debate
2 pm
Asked by Lord Morris of Aberavon
To ask Her Majesty’s Government what assessment they have made of the long-term impact of current levels of funding of the criminal Bar.
Baroness Garden of Frognal (LD): My Lords, as this debate is very tight, it will be much appreciated if noble Lords keep to the time that they have been allocated.
Lord Morris of Aberavon (Lab): My Lords, I am delighted to initiate this short debate. I have no present interest to declare save for those on the register. As Attorney-General, I attended the monthly meetings of the Bar Council and, as head of the Bar, I presided over the annual meetings. On one occasion, I even had to exercise my casting vote, which pleased exactly 50% of those attending, but probably not the other 50%.
It was the Lord Chancellor who told the Commons Justice Committee:
“It is very important that the independent criminal Bar has a good future”.
I have not sought this debate to argue for more money for the profession that I had the privilege to practise in over a working lifetime; that is for others to argue. My hope is that, in this short debate, we can get confirmation from the Minister, who understands the profession well, that the Lord Chancellor meant what he said, and that he will spell out his hopes that, in the face of today’s difficulties, on his watch we will not see the decimation of a part of a profession that helps to underpin our freedoms.
It was Mr Nicholas Lavender QC, the chairman of the Bar, who said last year that the Bar was astonished that, on the Government’s figures and allowing for inflation, there had been a 37% cut in the funding of defence advocates’ fees in the Crown Court in six years. He maintained that he was,
“not aware of any other area of public expenditure where individuals have been asked to, and have, put up with cuts on this scale”.
The Bar took unprecedented steps to show how strongly it felt. It was encouraging that the Government decided that there would be no cuts that year in the advocates’ graduated fee scheme. Can we be assured that none will be proposed in immediate future years? The years have resulted in a massive reduction in expenditure on Crown Court advocacy. Fortunately, wise brokering broke the impasse highlighted in the Operation Cotton case. Sir Brian Leveson, on giving judgment in that case, said:
“We have no doubt that it is critical that there remains a thriving cadre of advocates capable of undertaking all types of publicly funded work developing their skills from the straightforward work until they are able to undertake the most complex”.
Sir Bill Jeffrey, who is not a lawyer, was commissioned by the Lord Chancellor to report on the market for criminal advocacy services. He reported that,
“the market could scarcely be argued to be operating competitively or in such a way as to optimise quality”.
When Sir Bill visited Crown Court centres and spoke to Crown Court judges who carry out the bulk of judicial criminal work at that level, he found that the “main area of concern” was that of,
“relatively inexperienced solicitor advocates being fielded by their firms (for what were presumed to be commercial reasons) in cases beyond their capacity”.
Sir Bill described the judges’ views as,
“remarkably consistent and strongly expressed”,
and said that in his view it would be a “mistake to discount them”.
I think I have said enough about the problems. It is no surprise that the relations between the defence criminal Bar and the ministry have been turbulent. It was my old friend, Kenneth Clarke MP, who, as Lord Chancellor, was one of the first to accept the Chancellor of the Exchequer’s proposals at the beginning of this Parliament. I do not know what brownie points he got for being first in the field, but, given the breadth of his responsibilities, it is no surprise that the profession is reaping the results of his alacrity.
Only a few weeks ago, your Lordships voted overwhelmingly against the limitation of judges’ discretion in judicial review cases. I believed, as did the House, that in a country that does not have a Bill of Rights judicial review was one of the bastions of the rule of law. An independent Bar, ready and willing to take up the cudgels on behalf of citizens, is vital to ensure that there is no infringement of the rights of the individual. Likewise at the criminal Bar, however odious the case, all parties who find themselves before the courts should have proper representation.
My experience, like many others, is that from time to time your non-lawyer friends will ask you, “How could you represent such an obnoxious individual?”. History is littered with such examples. My old friend the late Lord Hooson was defence counsel in the moors case. I am sure that he had to explain the role of counsel many, many times. A more recent example might be the Shipman case. Over the years those of us at the criminal Bar have had similar if less startling experiences. In my own experience it was of the upmost importance in the Broadwater Farm case that the prosecution was properly probed and challenged at every stage, as it was. One of the important pistons to the effective working of the engine of representation to ensure fairness is the sometimes questioned cab-rank rule.
Against the background of the horrific atrocities in France in recent days, the need for representation, as in our unhappy years of terrorist activity, will be more important than ever. I note and welcome the comments made by the Lord Chancellor in the reply that he gave in the House of Commons on 6 January to Jeffrey’s criticism and the letter to the chairman of the Bar Council on 22 December. The cab-rank principle has been described by many. I like very much the words of the noble and learned Lord, Lord Hoffmann:
“It is a valuable professional ethic of the English Bar that a barrister may not refuse to act for the client on the ground that he disapproves of him or his case. Every barrister not otherwise engaged is available for hire by any client willing and able to pay an appropriate fee. This rule protects barristers against being criticised for giving their services to a client with a bad reputation and enables unpopular causes to obtain representation in court”.
Against this background I wonder if it was the best use of the funds of the Legal Services Board to commission two professors to work out the impact of the rule. Sir Sydney Kentridge systematically destroyed the methodology and conclusions of this very academic review. The rule with all its practical implications is ingrained in young barristers from the day they begin to practise. The most persuasive evidence comes in a footnote to Sir Sydney’s opinion:
“I can say from my own experience that in political trials in South Africa in the apartheid years it was essential and invaluable”.
I would hope for some endorsement in the ringing tones of the Lord Chancellor’s comments which I have already referred to.
2.08 pm
Lord Brown of Eaton-under-Heywood (CB): My Lords, I begin by congratulating the noble and learned Lord, Lord Morris of Aberavon, on securing this debate and opening it so skilfully. He was himself, of course, in his time a great ornament of the criminal Bar. He has recounted something of the history of the savage cuts that have already been made over the years in criminal legal aid funding and there is of course, following the election in May, to be another review of the fate of the criminal Bar. I suggest it would be catastrophic if, following this review and in the light of the Sir Bill Jeffrey report and other reports, further cuts were to be made. There is time today to make just four brief points.
First, of all the specialist Bars, the criminal Bar is the most important. Of course it does not earn for its practitioners, or even for the Exchequer, the huge sums earned, for example, by the commercial Bar, the companies Bar, the patent Bar or the revenue Bar; however, the work undertaken by the criminal Bar is the most valuable of all. The outcomes of commercial disputes largely result in book entries—the adjustment of balance sheets—but the administration of criminal justice goes to the very heart of the rule of law, and directly and immediately impacts on the day-to-day lives and liberty of all. I quote Geoffrey Cox QC MP in a debate more than four years ago:
“The efficient conduct of cases in the courts is the essential pivot around which revolves the entire administration of justice. Incompetence and poor quality in the representation of prosecution or defence will inevitably lead to the failure of justice, prolonged delays, aborted trials, appeals and much greater cost”.—[Official Report, Commons, 15/9/10; col. 245WH.]
It is all-important to assist the judiciary in its task of achieving justice. That is why the judiciary strongly traditionally supports a strong criminal Bar.
Secondly, the criminal Bar has for many years been the poor relation of the various specialist Bars. The effect of recent funding cuts is “ruinous”—I quote what a member of my old chambers said to me yesterday. Others have spoken of a crisis of confidence in the economic viability and the long-term future of the criminal Bar. Predictably, all this has had a devastating effect on the recruitment of real talent to that Bar. The number of pupillages has fallen, and all this is on top of the loss of student grants and the increasing levels of student debt. How today could one conscientiously encourage some able and ambitious young graduate to
the criminal Bar? Rather, one has to advise them to steer clear of it and direct them instead to commercial or public law chambers or one of the other Bars.
Thirdly, even if financial considerations do not deflect some of the wealthier among the Bar’s potential recruits—those with money, trust-backed grants or family funds—assuredly they put off those who have no financial support and are burdened with heavy debt. The consequences for the Bar’s commendable long-standing efforts to promote diversity and social mobility need no emphasis. They are all too obvious.
Finally, the young criminal bar is the seed-corn for the next generation of experienced criminal Silks and justices. It is small wonder that in paragraph 9.11 of his report, Sir Bill Jeffrey stated that,
“concerns about the future ‘talent pipeline’ for criminal QCs and judges are not, in my view, fanciful”.
In the following paragraph, under the heading “How much does this matter?”, he expressed his conclusion. I shall not read that paragraph in full, although I hope that others may do so later in the debate. Put shortly it was, unsurprisingly, Sir Bill’s conclusion that it obviously matters a great deal. It is imperative that any future Government recognise that they should do nothing to further imperil the future of the criminal Bar, which is truly one of the great assets of our proud legal heritage.
2.14 pm
Lord Thomas of Gresford (LD): My Lords, I, too, thank the noble and learned Lord, Lord Morris of Aberavon, for introducing this debate. My interests are declared. I started off as a salaried partner in a small country solicitors’ office in north Wales in 1961 on a salary of £1,000 a year. Despite our limitations, we could provide for our clients the highest quality of representation in criminal cases via the availability of legal aid and the existence of a strong and expert independent Bar. I could and did instruct on behalf of legally aided clients Lord Elwyn-Jones, Lord Hooson, Sir Ronald Waterhouse, Sir Robin David and other distinguished barristers of the Wales and Chester circuit. Incidentally, I was present with Lord Hooson on the last day of the Moors murder trial. I took him for a cup of tea afterwards, which he almost certainly needed after sentencing.
In every serious criminal case, there was a team on both the prosecution and the defence side led by outstanding silks who were capable of guiding the preparation of cases, were accustomed to taking big decisions and to giving wholly independent advice. In those days, there were the resources of time and money to ensure that cases were properly prepared and presented by experienced people, and I believe that the interests of justice and of the community were properly served. I like to think that my own generation at the Bar preserved those traditions and that the quality of service in Wales with outstanding advocacy from Gareth Williams, Alex Carlile and others has made sure that those traditions continue. Those who have succeeded us have struggled with increasing cutbacks. The input of an experienced solicitor in court disappeared long ago, and it is not only on the defence side that standards have slipped. A lack of resources on the prosecution side has also increased delays and wasted time and money.
But while there were difficulties in the recent past, there was nothing on the scale of the cutbacks now being pursued by the Lord Chancellor. In my view, they will destroy the criminal Bar. Like the noble and learned Lord, Lord Brown, I could not possibly advise a bright youngster to embark on such a career at the present time. There is nothing in it; there are no glittering prizes to reward years of study and struggle. Certificates for leading counsel are granted by judges through gritted teeth, and the fees are a fraction of what they once were.
Solicitors concerned in criminal work now have to become solicitor advocates in order to survive financially, and routinely take the work on which entrants to the criminal Bar would in former days have depended, and it does not stop there. If leading counsel today has a junior at all, it is like as not a solicitor advocate with a direct financial interest in the instructing firm. This often leads to inexperienced and insufficiently qualified persons in that important role. If anyone doubts that, I recall a recent case in a court adjoining the one in which I was appearing where the solicitor advocate junior applied immediately for an adjournment when he was called upon to cover for his temporarily absent leader.
Barristers’ fees in the Crown Court account for around £300 million of the criminal legal aid budget. They have been effectively static since 1997, during which period retail prices have increased by 54% and public sector pay by 49.9%. The average annual payment to criminal barristers made by the Legal Services Commission, including all graduated and VHCC cases in the year 2011-12 was £52,000, from which they paid all their expenses, including up to 20% for chambers’ fees.
The Next Steps consultation by the Ministry of Justice was found to be defective in the High Court on judicial review. That consultation paper was introduced with the following statement by the Minister:
“This is a comprehensive package of reform, based on extensive consultation. I believe it offers value for the taxpayer, stability for the professions and access to justice for all”.
I absolutely and profoundly disagree. In that paper, no attempt was made to evaluate the financial consequences of the proposed changes. They were said to be “uncertain”. They are not at all uncertain. They will do significant harm to the criminal justice system by damaging the supply and the quality of the criminal advocacy service. As a result of the judicial review application, last September the Ministry of Justice was forced to disclose the KPMG report which it had commissioned to advise it. Only then did it appear that the ministry had told KPMG to make broad assumptions about cost savings, profit margins and the availability of investment capital for restructuring businesses which appear to have been plucked out of the air and were completely without evidential foundation. Yet after a further three-week consultation forced upon them last September, the Lord Chancellor persisted in adhering broadly to his original cuts, and his conclusions are now again subject to renewed judicial review application. Are the public to be properly served?
When I look around the area designated in north-east Wales, from Llandudno to Llangollen, an hour and a half’s travel, and consider that the two custody suites are at St Asaph and Wrexham, some 35 miles apart, I find it impossible to conceive that the interests of the public in access to justice, whether in the English or Welsh language, can be served by the wholesale reduction of legal aid contracts to two firms of solicitors. The knock-on effect on the local Bar in Chester will be considerable.
The response to the original Next Steps consultation by Treasury counsel, which conducts the most serious and complex prosecutions in this country at the Old Bailey, put the position very well, saying that:
“skilled and experienced defence advocates, whose capacity and ability inspires the confidence of the court, the prosecution and their professional and lay clients … shorten, straighten, sustain and hasten the trial process: their continued presence is nothing less than vital”.
As the noble and learned Lord, Lord Brown, pointed out, our judiciary is largely drawn from experienced counsel. Destroy the Bar and the whole foundation of our judicial system is put at risk.
2.21 pm
Lord Judge (CB): My Lords, I declare an interest as treasurer of the Middle Temple last year; my intervention in this debate reflects that experience.
In some ways what I am going to say is entirely repetitious, but it is worth drawing public attention to the fact that for many years now the Inns of Court have been dedicated—that is the word—to ensuring that no one should be deterred from entering the profession of barrister on financial grounds. The fact that they or their families may be financially humble was not to be an obstruction. The end result has been extremely successful. The way in which the Middle Temple achieved that—the same process applies to all the other Inns—is that the large majority of the money we have each year is spent on scholarships. Last year we spent in the region of £900,000, which is much the biggest expense we have. The objective: to get every boy or girl of talent who wishes to come to the Bar through the expensive process of getting to the Bar if they are good enough to do so. Nowadays we even have scholarships, chosen on merit, but the funding that is provided for the scholarships reflects the financial needs of the individual concerned.
The take-up has been very great and very successful. My time as treasurer was spent having a good deal of contact with some exceptionally bright young men and women who wish to make a career at the Bar. However, there is one subject on which it is extremely difficult to conduct an exchange with them: what about crime? These are not greedy young men and women; many of them are inspired by a wish to see that the administration of justice works and that they play their part in it as advocates. What about the possibility of an innocent man being convicted—somebody spending years in custody? What about the possibility of a guilty man escaping justice when he richly deserves to be convicted? The same of course applies to women, but there are far fewer women defendants. This matters, and when you discuss it with
them, they see the point, but many of them say, “There is no point—there’s no future in the criminal Bar. Look at what’s happened to it in the last few years”.
If you forget the cuts which have already been described by noble and learned Lords—and I am not forgetting them—there are no pupillages in criminal chambers, or very few of them, therefore what is the point of even starting to try to find a non-existent pupillage? Those young men and women have already committed themselves to the Bar and many of them will be called. The reality is that in the present climate, very few of the very best will do criminal law.
We are having a debate at the Middle Temple about whether we are spending our money wisely, as so much of it is wasted. So much of it goes to people who in the end cannot find a pupillage or, ultimately, a tenancy. We are looking at the possibility of reducing the amount of money that we give to boys and girls to get them called to the Bar in order to provide more money to support the young men and women who have got to the Bar and who have a pupillage in criminal chambers, and who then have a year or two in criminal chambers in which they hope to make enough just to cover the expenses.
That debate will take place, and it will have to recognise that if we adopt that process it will inevitably reduce the money available to encourage young men and women from a humble financial background to even try for the Bar. I think that that is a very sad possibility. When we are considering the impact of this, let us be in no doubt that if we do so the pool of talent will be reduced and the quality of talent will be diminished. The national asset identified by Sir Bill Jeffrey will be dissipated. Being called to the Bar and practising at the criminal Bar will become a matter of means, rather than merit. That is a shocking possibility.
The long-term impact has already been described by noble and learned Lords. The results in criminal trials will be affected; trials will take longer; and trials will take longer to come on. That means that defendants will wait longer for their trials and witnesses will have to wait longer and longer before they can give their evidence, in many cases in very distressing circumstances. At the same time, the long-term future of our efforts to ensure a more diverse judiciary—that is to say, a judiciary coming from every element of the citizens of this country—will be undermined. In 20 years from now, young men and young women from a financially humble background will not be available as candidates for judicial appointment. That will be to the public disadvantage.
2.27 pm
Lord Woolf (CB): My Lords, like other members of my former profession who have addressed the Committee today, I speak from long experience. I congratulate the noble and learned Lord, Lord Morris of Aberavon, on obtaining this debate.
This is a very appropriate time for us to discuss these matters. I was very pleased to read in my Times todayFrances Gibb’s article about what is being done to provide technology for the courts, and I am very glad to be able to say that I am pleased about what is
happening. I emphasise that this is very much needed, and it is about time that it was provided. I say that it is about time because I am very conscious that in the report published in the mid-1990s into access to justice for which I was responsible, I emphasised the importance of that technology being provided. Many of my report’s recommendations were accepted. When I delivered my report we were assured by those responsible in the then Lord Chancellor’s department—which was the equivalent of the Ministry of Justice—that this technology would be forthcoming. Alas, it was not, and some of the problems of the justice system today are because of that delay in provision. None the less, it is important that it should be provided now. I suggest to the Committee that the message to draw from those who have spoken already in this debate is that we are now in a situation in which positive action is needed to improve the position of the criminal Bar in particular, not in the interest of the criminal Bar but in the interest of the public. As has been made clear by those who have already addressed your Lordships, there is a real need for an efficient and effective criminal Bar if this country is to continue to ensure the high standards of justice which are so much a part of this country.
We are all still reeling from the events that took place so recently in Paris. I suggest to the Committee that one cause of disaffection of a country’s young is that they feel that the society in which they live is not just. Fortunately, in this country most people who have been brought up here can rejoice in the fact that they live in a society that can say it provides justice for its citizens, but unless something is done to arrest the present decline of the criminal Bar, I believe that that will not continue.
Although the criminal Bar is the subject of this debate, as the noble Lord, Lord Thomas, made clear, it is not only the criminal Bar; the civil solicitors who provide legal advice and assistance up and down the country are also critically affected. When somebody is faced with a criminal charge he needs to have ready access to someone who can give him, or her, the advice that they need. A situation cannot be allowed to arise in which that is no longer the position. It cannot be allowed to arise because of those who are entitled to and need advice, but also because an efficient system—one that makes the best use of the limited resources available—is made so difficult if those who appear before the court are not of the quality that is required.
The problem, which is why I suggest that this is such a critical time, is that once we have a slide of the sort described it is so much more difficult to restore the position that was once there. Things can be done with the resources available now which will at least arrest the decline. I think that when the Minister comes to reply he should show that the Ministry of Justice is aware of the extent of the problem and that something more than sticking plaster is required. There needs to be a rethink of the approach to the funding of a profession which is of vital importance to this country and to every citizen in it.
2.33 pm
Lord Bach (Lab): My Lords, I congratulate my noble and learned friend Lord Morris of Aberavon on securing the debate. It is an important debate, made
much more significant by the experience and status of those who have chosen to speak. These include two former Lord Chief Justices, one of whom, of course, was Master of the Rolls too, one former Supreme Court judge, one former Attorney-General—my noble and learned friend Lord Morris of Aberavon himself—and two distinguished and successful silks, if I may call them that, including the Minister. I practised as a member of the criminal Bar for many years and am proud to have done so. Slightly to my surprise, and certainly much more to other people’s surprise, I find myself now in the position of shadow Attorney-General.
The years I practised in just about covered what I describe as the golden years for the criminal Bar. They were pretty golden, I have to say. There was the emergence of the Crown Court; there was plenty of work; there were not many members of the criminal Bar around; it was pretty well paid; and it was effectively a monopoly for members of the Bar at that stage. I would argue that that state of affairs has now been over for many years; perhaps 20 or a few more than 20. The important point to remember is that those golden years are not coming back. Any politician of any party who says that they are, or hints that they might be, is to be viewed with a healthy degree of scepticism, at the very least—and the criminal Bar was always very good at being sceptical about pronouncements being made. Therefore, any discussion of the criminal Bar has to happen in the context of today rather than looking back too much at a time that has gone.
As my noble and learned friend Lord Morris pointed out, over a long period the rewards for criminal practitioners have without doubt declined sharply. That is due not just to cuts or long rises in fees, although, of course, they play an important part in what has happened. As Sir Bill Jeffrey, who has been quoted already in this debate, concludes in his report of May last year, crime is down, fewer cases reach the Crown Courts and there are more guilty pleas. He says:
“There is substantially less work for advocates to do. Its character is different, with more straightforward cases and fewer contested trials”.
Of course, there are many more solicitor advocates. Sir Bill goes on to say,
“There are now many more criminal advocates than there is work for them to do”.
He goes on to make proposals for the future, all of which are well thought out, very interesting and should be considered carefully. My first question to the Minister is this: What can he tell us today about Her Majesty’s Government’s response to the Jeffrey report, both in general terms and, if possible, in more detail?
Sir Bill talks about the future of the Bar being less clear. He says that there are signs that, away from the self-employed Bar, the tide may be turning, but he fears that the Bar’s lack of confidence in the future of criminal work, or its unwillingness to adjust to compete for it, may become a self-fulfilling prophecy. I think that the following passage was referred to by the noble and learned Lord, Lord Brown. It is worth quoting. It states:
“This matters, because the particular strengths of the English and Welsh criminal Bar are a substantial national asset, which could not easily be replicated. There is also a distinct national interest in having sufficient top-end advocates to undertake the most complex and serious trials, and senior judges with deep criminal experience”.
It is very hard for anyone to argue with that view. When Her Majesty’s Government did their deal, if I may call it that, with the Bar last spring—agreeing a VHCC cut and leaving until after the election a cut in the graduated fee, with an agreement to discuss the future of both those causes to be continued until the summer of 2015—they were following a well trodden path in two respects. First, some issues were put into what might crudely be called the long grass to escape criticism for actually taking action; and secondly—and more importantly—they actually split the legal profession. The solicitor criminal practitioners were offered no equivalent agreement and some would argue that they were left hanging out to dry. Cuts have been implemented in that field and the imposition of a new and controversial system of criminal legal aid is being attempted. Instead of talks to determine the future, therefore, we actually have, as we speak this afternoon, solicitor practitioners and the Law Society itself traditionally reviewing the Ministry of Justice in court. To put it mildly, this is a deeply unsatisfactory position for our criminal justice system. To set one branch of the legal profession against another is wrong both in principle and in practice, and it does not help either branch or, indeed, the criminal justice system itself.
If my party wins the general election, we will set in train a review of the criminal justice system, concerning not just funding but the way the system works for victims, defendants, the general public and, of course, practitioners. Obviously, we are not making any promises about funding but one thing is clear: there is no future for the Criminal Bar, the criminal solicitors’ profession or even the criminal justice system itself if the Government of the day play off one branch against another. There are obviously going to be natural tensions between the various branches and the Government of the day; that will always happen. But no system will work unless all parties, including the Government, work together.
2.40 pm
The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, I congratulate the noble and learned Lord, Lord Morris, on bringing forward this debate and on attracting such a very high calibre of speakers, as was acknowledged by the noble Lord, Lord Bach. A great deal of experience and expertise has been brought to bear on what is an extremely important subject. It is important because it goes beyond the interests of the criminal Bar as such and has important ramifications for our country, for our system and for the future. I found very little to disagree with in what was said in the debate.
The criminal advocacy market has changed significantly over recent years. I am glad that the noble Lord, Lord Bach, whom I congratulate on his recent appointment, acknowledged that we are not going to return to that golden age. The reduction in cases going to trial and the growing number of advocates, including solicitor
advocates, have presented particular challenges to the future of the independent criminal Bar in its current form.
I note what was said about the judicial review and the noble Lord, Lord Bach, told us, quite rightly, that it is ongoing. It refers to the contract in relation to solicitors. It is not appropriate for me to comment on that in view of the fact that is it ongoing. If one reads the Jeffrey report, one can see that it is inevitable that there will be—and there is—a degree of tension between the role of solicitors and the role of barristers in providing advocacy services at the Crown Court. That is one of the challenges that have to be faced in the future: how the public can be best served by preserving the roles of both solicitors and criminal advocates. One of the Jeffrey recommendations, which I do not think anyone would find hard to accept, is the improvement in the teaching of advocacy at the solicitor level if solicitors are going to function in the same field as barristers. There is clearly a disparity that ought to be remedied.
The Government have found it necessary to make reforms to the legal aid system. The financial climate and the tackling of the deficit have forced some difficult decisions on the coalition. It has been important to try to ensure quality public services while balancing the books. But it is clear, and I am happy to confirm this, that the Government want to protect the provision of quality advocacy services. We have engaged extensively with the profession. Clearly, some of the engagement not always been as happily reported as it might have been. The current chairman of the Bar has confirmed that the current relationship is a good one and I hope that the engagement will prove profitable in the future.
Certainly, the engagement that took place led to several adaptations to the original proposals, including the changes to the graduated fee scheme and the commission of Sir Bill Jeffrey’s report, to which there has been much reference. He identified in his report a number of structural problems related to the history and development of the criminal Bar. He found that the criminal advocacy market is not working,
“competitively or in such a way as to optimise quality”.
There are all sorts of reasons for this and time does not allow me to engage with all of them. The decrease in the amount of crime is clearly one. There is now a rather unsatisfactory state of affairs whereby fewer younger barristers are joining professions. There is a bulge of those in their 40s and 50s. This has significant long-term risks, I accept, for the profession in terms of, “Where are we going to get senior barristers from? Where are we going to get judges with the relevant experience?”. However, as has been made clear, it is not obviously attractive for young people to go into the criminal Bar at the moment. I note what the noble and learned Lord, Lord Judge, said about diverting scholarship funds from the Middle Temple; that seems a highly constructive way in which to encourage people through those difficult years.
The Government recognise that this is a period of great transition. They have endeavoured to listen to the profession, and care was taken in developing proposals that would minimise the effect of the changes on the particularly vulnerable section of the profession—the
junior part. The consultation paper
Transforming Legal Aid
, published in April 2013, included proposals for the graduated fee scheme, which covers most advocacy in the Crown Court, and to reduce fees paid on very high cost cases by 30%. Together, these proposals sought to target the fee reductions at the highest earners; we know that barristers who work on the most complex, longest-running type of cases receive more in fee income than others. Furthermore, the original proposals had the effect of protecting the fee income of the most junior members of the Bar. We amended our proposals, following consultation, and have amended the very high-cost cases scheme while still ensuring that the fees were within planned budgets.
The second consultation, Transforming Legal Aid: Next Steps, published in September 2013, included two options. The first was an adjusted version of the original proposal, and the second was a model based on that put forward by the Bar Council, which was based on the CPS payment scheme. The outcome of that consultation was that the Government decided to implement the CPS-like model. This would still have the benefit of focusing reductions on the higher earners.
Following further engagement with the profession in early 2014, the Government announced the deferral of changes to the advocates graduated fee scheme until summer 2015, to align with the second fee reduction for litigators. This will allow us to take into account the outcomes of the review by Sir Bill Jeffrey, as well as any impact on legal aid spend from falling crime rates, and earlier remuneration changes.
Beyond the review by Sir Bill Jeffrey requested by the Secretary of State, the Lord Chief Justice has asked Sir Brian Leveson to undertake a review of the length of criminal proceedings. He has been tasked with suggesting ways to streamline the trial process, identifying ways to reduce to the minimum the number of pre-trial hearings that necessitate advocates attending court. However, the review goes much further and is likely to produce some real gains in terms of the criminal process as a whole. I note that the noble Lord, Lord Bach, committed his Government—should it be his Government after the election—to look again at criminal procedure. I suspect that whichever Government come to power will find the report of Sir Brian Leveson on criminal procedure a valuable basis on which to review this vital part of our system. The report will also impact on the further consideration of the advocates graduate fee scheme.
We have also recognised the need to regularly monitor the criminal legal aid market. That is why the Government have committed to publishing regular data reports on fee payments received by criminal advocates from public sources. The data gathering collated from the CPS and the Legal Aid Agency will help us to meet the need to collate more data on the market and facilitate a better understanding of the way in which the market is operating. I know how irritating it can be for information that is only partially accurate about barristers’ fees to be published, which can give a rather misleading picture of what are relatively modest earnings for most barristers. I have conveyed that to officials, who confirm that, in fact, much of the information is published as a result of freedom of information requests by journalists,
who are not, of course, terribly interested in providing a full and accurate picture, including the facts that there are chambers’ expenses and clerks’ fees. The figures may be out of kilter because payment is made over several years. It is important that the Ministry of Justice should be responsible for accurate figures, so that the public appreciates the nature of the payments that are in fact received and gets a real picture of the criminal Bar.
It is undoubtedly true that fees have fallen in real terms. It is the Ministry of Justice’s case that they remain reasonable, although I entirely accept that compared with the other opportunities in the legal profession—at the Bar and elsewhere—they remain extremely modest. In 2013-14, mean fee payments for barristers doing publicly funded legal aid work was £70,200, including VAT and disbursements, and the median was £57,400. In the last financial year, 18% of advocates received less than £10,000, while 25% received more than £100,000. That gives a very rough picture of the range. Those are modest sums.
The Government’s response to Jeffrey is that he identifies a number of challenges for the advocacy market, but he does not in fact put forward any positive suggestions, apart from the education factor, and not all of his recommendations are for the Government to address—they are largely matters for the professional regulators of both the Bar and the solicitors’ profession. The Lord Chancellor has made clear that he is committed to working with the profession in the first half of this year, and I am sure that any future Lord Chancellor will also wish to do so. The cab rank rule referred to by the noble and learned Lord, Lord Morris, is a cardinal principle of the Bar. Of course, it is subject to exceptions, but as a principle it is very important and must be respected in the way that legal services are provided.
We are particularly anxious to ensure that defendants are aware of the choices available to them in representation. That was a factor identified in the Jeffrey report as an unfortunate by-product of the way that cases were assigned to solicitors, and is something that the professional bodies need to look at, because it is in everybody’s interests that individuals have their best opportunity to be represented.
This is a time of unprecedented change in a context of continuing financial pressure. I am glad that the noble Lord, Lord Bach, did not make any extravagant promises as to the future. It is imperative to reform the system to adapt it to the modern reality of reduced public funds and greater efficiency. The Ministry of Justice welcomes the engagement that we have with the Bar on the issue. We are concerned to maintain those constructive discussions over the coming months. At a time of major financial changes which are being felt by businesses and households across the country, the criminal advocacy profession cannot be immune from the Government’s commitment to get better value. However, while committed to finding savings within the system, we are also committed to maintaining the high standards of the criminal Bar, which, as many noble Lords pointed out, plays a vital part in our society.
The Deputy Chairman of Committees (Lord Skelmersdale) (Con): My Lords, the Committee stands adjourned until three o’clock.
2.54 pm
Property Boundaries
Question for Short Debate
3 pm
To ask Her Majesty’s Government what proposals they have for the settlement of unclear or disputed property boundaries.
The Earl of Lytton (CB): My Lords, I am most grateful for this opportunity to debate the matter of property boundaries and I thank the Minister both for his willingness to meet Charlie Elphicke, MP for Dover and Deal, and me on more than one occasion in the recent past, and for forewarning us of the Government’s scoping study published today. I am also grateful to other noble Lords, particularly noble and learned Lords, who are to speak today. I declare my interest as a practising chartered surveyor. I also chair the Boundaries and Party Walls Panel of my professional body, the Royal Institution of Chartered Surveyors. I am very much indebted to the groundwork of Mr Elphicke, who raised the matter in the Commons some time ago. Although his Bill did not progress, it triggered the formation of an expert panel of practitioners who took away the original Bill and have comprehensively revised it. The question now is whether the Government are minded to give this some time and support were it to be formally introduced.
An eminent boundary surveyor once prefaced a learned treatise by saying that when he met potential clients for the first time, he would advise how very expensive boundary disputes can be—so expensive in fact that for the money one could purchase a very good family holiday in the sun or even construct a swimming pool in the back garden. He would add that, fortunately for him, most clients ignored the advice which is why he had lots of foreign holidays and a large swimming pool.
Although the need for resolving boundary issues is most evident in the few cases that go to court, this is not representative of the whole picture. There is a hierarchy of needs in relation to boundary matters, which could simply be to facilitate voluntary registration at HM Land Registry, for the purposes of fence erection, because of a wish to transfer a property or sell it free from doubt as to where the boundaries lie, through to a wish to build or develop land in respect of which the boundary position may be economically important, the purposes contentious and the planning mechanism adversarial. Competing interests in land as to extent and intensity often breed acrimonious and hotly contested situations, although these remain a minority. However, as soon as you raise the issue of a boundary position
quite innocently with a neighbour, the balloon often quite literally goes up. Innocent enquiry is fettered and the consequences can be very serious, if not disastrous.
Much of the problem lies in the distant past. Although the paper documents involved with the transaction of land have a long history in this country, actual boundaries are often extremely poorly defined. Maybe in the 19th century everyone knew where the boundaries of Farmer White’s property at Blackacre Farm happened to lie but later, when it mattered for other reasons, everybody seemed to have forgotten. Therefore, the legacy of poor descriptions and even worse plans drawn up by feckless trainees in surveyors’ or solicitors’ offices—I used to be one—adds to the problem.
More recent data are also at fault. Before the general use of digital survey techniques, properties were often sold off-plan and the interests of prospective purchasers and their mortgagees registered against a master plan before a dwelling was ever built. However, nobody thought to check the as-built result. The fencing sub-contractor, with his usual incomplete regard for the legality of boundaries, often added to the problems, as I have encountered professionally. Years ago, I attended a meeting of bigwigs to discuss e-conveyancing and the digitisation of the Land Registry and was unwise enough to suggest that this legacy would henceforward travel at the speed of light and be treated as holy writ thereby. Eyes narrowed perceptibly on the other side of the table. However, I pay tribute to the Land Registry for a remarkable performance in spite of this backcloth of defective raw data.
Land registration works to a general boundaries rule that gives an approximate boundary indication only, except for the very few cases where a formal determined boundary has been registered. The data are plotted on an Ordnance Survey base to either a 1:2500 or a 1:1250 scale, and it has to be noted that OS plans themselves are expressly not definitive of legal boundaries. Note, too, that for a 1:2500 scale a line 0.3 millimetres thick on the OS plan equates to 750 millimetres on the ground, and features closer to each other than about two metres are not shown as separate items on the OS plan at all. This begs the question as to what feature or part of it the OS plans were intended to represent. The Land Registry does not always hold adequate pre-registration documents and many original documents have either not been retained or worse—because they are part of social history—have been deliberately destroyed. Far from everything, of course, is actually registered; much uninterrupted historic ownership, along with a good deal of community, parish and highway land, never mind overriding interests of one sort or another, is simply not registered at all.
In many situations, the boundary may be physically self-evident and identifiably long-standing. Some lack of precision may even be of benefit in allowing a degree of flexibility and evolution, especially when coping with the work of garden fencing contractors. However, in cases of dispute, and especially on tight urban sites, matters are compounded by a substantial legacy of poor or simply inaccurate title documents. Boundary disputes have, I believe, been increasing
over a number of years and although, as I say, relatively few cases get to the courts, those that do are often ruinously expensive. The problem of costs in the action frequently and rapidly outstrips the financial value of the disputed land, which raises the stakes and makes it ever more difficult for the parties to settle.
Many cases, of course, collapse without getting to court simply because one party can no longer afford to pursue the matter. That is not in the interests of justice and seems to me to be inherently unsatisfactory. If advice as to likely costs is taken on board right at the start, people often decide simply to accept the fact and roll over in the face of reality—something sometimes taken advantage of by aggressive neighbours. Moreover, in many non-contentious situations where there is just a simple need to know the correct boundary, even raising it with a neighbour can be dangerous. As I have said, planning applications often give rise to such queries.
Unclear boundaries—and, worse, unresolved boundary disputes—are, of course, a material barrier to sale. Nobody wants to buy a property where there is an unresolved boundary dispute. This can be deployed by unscrupulous owners against their neighbours. Then there is the mistaken belief that unregistered land is somehow ownerless—often aided and abetted by some unscrupulous companies, it has to be said—and therefore up for grabs in some way. That causes problems. Latent uncertainty impedes development or redevelopment proposals, as well as necessary alterations, adaptations and even basic maintenance. For instance, I know of situations where the ownership and control of historic ditches has importance for the long-term drainage of development sites or for preventing neighbours filling them with rubbish or building over them. As the eminent boundary expert David Powell said in an e-mail to me earlier this week, the visible instances of court cases are believed to be but the tip of a much larger iceberg.
Clear boundaries are as essential to property ownership and value as permitted use. Owners need to be able to rely on where their boundaries are situated and who owns a boundary feature or has responsibility for a hedge, ditch, boundary, retaining wall or roadside embankment. People often assume, erroneously, that formal land registration guarantees title; regrettably, it does no such thing. The matter is made worse by the law on adverse possession, with its combination of motive and opportunity, and the high costs of resisting it.
Australia recognised this problem long ago and although I believe that the matter is dealt with nationally under something called the Dividing Fences Act, an effective, workable system occurs on a state-by-state basis. The noble Baroness, Lady Gardner of Parkes, who is not able to be here today, was kind enough to obtain for me some information about this. At present, a formal determined boundary can be achieved only by mutual agreement between neighbours. This makes it impractical for cases where it is not in the collective interests of both owners from the outset. It is certainly of no use when a dispute has arisen. Land Registry adjudication, as I understand it, generally concerns only the accuracy of the register.
As properties become more valuable and urban space scarcer, the position of boundaries becomes more crucial. I believe that the mark 2 Bill that has been drafted, a copy of which I have circulated and placed in the Library, would solve this. I am aware that the Minister may feel that it is unnecessary. The same was said, of course, of the Party Wall etc Bill that I had the privilege of taking through all its parliamentary stages in this House back in the 1990s. The mark 2 Bill can and would be of assistance in removing many disputes from the courts and providing better self-regulation and a cost-effective starting point in the event of the court having to intervene. The formula that is proposed would enable the end product to be recorded without recourse to conventional litigation. It would start with a system of notification of a boundary proposal which, if disputed, would trigger a dispute resolution procedure. I believe that it is in the public interest and that it would be a good thing for the maintenance of property and the removal of contention from what should be the peace and tranquillity of people’s own homes.
3.10 pm
Lord Hope of Craighead (CB): My Lords, I begin by congratulating the noble Earl on securing this debate. I put my name down to speak because the issue he has raised is quite an important one and deserves to be broadened out a bit from the original list of speakers, which until recently was only three. Having looked more closely at the subject over the past two or three days, I am not sure that I am all that well qualified to express an opinion on the point. My background is that of a lawyer rather than a surveyor, and in this debate we are talking about English law, while my training and experience is largely in Scots law. One thing I learnt when I came south was that Scots law and English law differ most fundamentally of all in the area of property law, and it is very difficult for a Scots lawyer to understand the details, let alone the structure, of the way in which English property law operates.
However, I encountered quite a number of boundary disputes when I was in practice at the Bar in Scotland, and even one or two when I was sitting as a Law Lord here in this House and was introduced to, among other things, the wonderful presumption known as the hedge and ditch presumption, which I very much enjoyed examining. I also encountered a number of surveyors during the course of my practice, as a result of which I should say that I have a great deal of respect for the noble Earl’s profession. There were many cases on which we worked together as a team, although it is fair to say that they were largely in the area of valuation for rating rather than surveying in the more strict sense.
We are not being asked to consider the law of Scotland today, and in any case I am quite sure that the Minister would not wish to comment on it since it is a devolved matter. However, it may be of interest if I sketch in a little the way that issues are apt to arise in that jurisdiction. It does tend to show that the problem here in England and Wales is much more acute than it
is under the system I was used to in Scotland, and that underlines the importance of the issue raised by the noble Earl.
Scotland has had a system of recording land tenure in a public register called the Sasine Register since the early 17th century. There were attempts to create a register earlier than that, but the position today is that for well over 300 years, every single property in the country has been the subject of a recorded title, or more accurately, a registered title, which can be examined by every member of the public on payment of a suitable fee. It is in the course of being replaced by a modernised system of registration of title, but the Sasine Register still exists and it is the source from which the relevant information can be derived when moving to the new system. There is a complete account of all deeds, which enables anyone to identify the extent of ownership of any holder of land, and includes all deeds which affect the security of land—the title to the land—that is, deeds which are in the form of security for debt, deeds that record rights of way, and what in Scotland are called servitude and England easements. Everything that affects a title has to go on to the register to be effective at all. It is therefore a very complete record of the present situation of any landowner’s title.
Every title that is put on to the register has to have a description. For a long time the practice has been to describe the property that goes on to the register by reference to boundaries. The early deeds did that by reference to natural features such as walls and gables. Occasionally resort was made to plans, which were always described as taxative—in other words, they were made to be definitive as to the extent of the title. Once a title containing the information had been registered, the titles that derived from it simply tended to refer back to the original deed, so that in practice one has to search the register quite diligently to find out the limits of where the property lie. The result is that from time to time mistakes occur. Someone sets out to design a new definition, but has not correctly recorded what was in the earlier deeds from which the title is derived. It is in that kind of situation that a boundary dispute arises.
Where mistakes of that kind arise there are two kinds of problems. First, there is the problem of searching the register and understanding how the titles have been defined. To some extent that is a task for a lawyer, given that a lot of work is being done through titles, which only lawyers can really understand. It may be that measurements and things of that kind are needed, for which a surveyor might be used. However, there is another aspect of this: in Scotland it is called positive prescription. The noble Earl referred to adverse possession and it is the same concept. If somebody has occupied land without objection for 10 years—“nec vi, nec clam, nec precario” is the Latin phrase—he has an absolute right to remain in possession, even if the description in his title conflicts with his neighbour and the neighbour can show that actually he ought to have been able to occupy that land himself. If he does not take the initiative within the 10 years, he loses the right to do so. In that sort of situation very difficult issues of fact may arise. The question is whether the present possession has been adverse for the necessary period,
and in that situation a surveyor, frankly, is not the person to whom one would turn. It would probably be a solicitor instructing a member of the Bar to prepare and argue the case all the way through. Therefore the situation is quite complex. In Scotland, these issues can arise in various forms, but the basic situation is one of a complete register of all the land and we therefore do not have the problem that arises in England—and, no doubt, in Wales—where a substantial amount of property is not on the register at all.
What about England and Wales? My noble and learned friend Lord Brown of Eaton-under-Heywood said to me this morning that the courts would be quite delighted were Mr Elphicke’s draft Bill to be enacted and the courts were relieved of the heavy responsibility, which he described, of having to deal with these cases. My own experience as an advocate was that these cases were really quite enjoyable and therefore I would be rather sad to see them go. There is a difference of view between counsel and the judge. However, I am not absolutely sure that the situation is quite as easy as the draft Bill is suggesting or that the public would be well served if the law were to be reformed in the way that it proposes.
I stress that I do not for a moment doubt that there is a problem. Indeed, since the pattern of land-holding in England and Wales is much less neat and accessible than it is in Scotland, the problem is indeed acute. But my impression is that the Land Registry does an excellent job. Having studied its website, it offers much helpful advice and guidance for people who find themselves in dispute, which they would be well advised to follow. There is the right that everyone has, under Section 73 of the 2003 Act, to object to an application for registration. If there is an objection, there is a tribunal to which the matter can go. No doubt, it will take many decades before the system can settle down to the extent that it has in Scotland; nevertheless, the Land Registry is there to improve the situation and assist the public, as I have attempted to describe.
My main point is that I am not entirely convinced that making it compulsory for every such dispute to be resolved by reference to a panel of surveyors and excluding the courts entirely—as I think the draft Bill seeks to do—is either necessary or desirable. There will be cases where the title deeds alone will provide the answer and it may be that agreements can be reached; but I am not entirely sure that understanding these deeds is within the exclusive competence of a surveyor. There is then the problem of how to deal with other evidence about the way the property has been used, which may be hotly disputed and requires analysis, presentation of evidence, cross-examination of witnesses and so on. There is also the matter of adverse possession, which could raise very difficult issues.
While I am absolutely sure that the noble Earl has raised some interesting and important issues, I am not sure that the suggested solution is the right one. I look forward very much to what the Minister has to say in his reply and, in due course, to reading the scoping study that has appeared on my BlackBerry, but which I have not yet had a chance to read.
3.19 pm
Lord Kennedy of Southwark (Lab): My Lords, I start my remarks by thanking and paying tribute to the noble Earl, Lord Lytton, for putting down this important question for debate today. In preparing for this debate, I read a number of very useful documents that gave sensible and practical advice on dealing with property boundaries. The overriding theme I picked up was the importance of discussion and communication with your neighbour, and of seeking to find a solution on a reasonable basis. The last place that anyone should want to find themselves in seeking to deal with these matters is a court of law. That, in my opinion, is very sensible advice. Every now and again a case is reported in the media in which a boundary dispute got completely out of hand, and both sides became involved in expensive litigation which cost far more than the worth of the boundary they were actually arguing about. This is, of course, in addition to the stress and anxiety people suffer in dealing with such matters.
In his remarks to the Grand Committee, the noble Earl highlighted the point that in many cases the boundaries for registered and unregistered properties are poorly defined. That is where the problems start. Relying on the Land Registry against a backdrop of Ordnance Survey mapping of the general position of the boundary may not provide the detail required to resolve the problem. I am an elected member of Lewisham Council, and at a recent planning committee meeting which discussed an application for an extension to a resident’s house it emerged that most of the garden was actually owned by Lewisham Council, which owned a long strip of land that went through a number of gardens behind properties. No one seemed to have any idea why the council owned the land or for how long it had owned it, but own it it did. It was not a huge problem in that case, but it illustrated to me how in many cases property boundaries can be ill defined and that, as the noble Earl said, can bring significant difficulties.
Clear boundaries are important, and it is good advice to get the boundaries of your property clear with your neighbours. As I said, and as the noble Earl mentioned earlier, relying on a Land Registry guarantee of title is not the protection that some people think it is. The noble and learned Lord, Lord Hope of Craighead, usefully outlined the position in Scotland. Not for the first time, we could learn valuable lessons from how property law operates in Scotland. To resolve any dispute, speaking to your neighbours is of paramount importance, as is not taking action that would be seen as inflammatory, such as submitting a planning application or using any other means to reclaim land. Reaching an amicable solution to the dispute is in the interests of all parties.
Problems can occur when boundaries are not clear or have become confused over time. Hedges, fences, stone walls or other physical barriers might not be the actual boundary at all but have become seen as the boundary. As I said earlier, minor disagreements can quickly escalate into major disputes involving solicitors and expensive litigation. When agreement cannot be reached between the parties themselves, the objective should be to resolve the dispute at the lowest common
denominator. For example, that could involve chartered land surveyors or chartered surveyors who specialise in boundary work making an expert determination. That could be legally binding on the parties concerned if they agree that it is to be so. There are a number of advantages to this method, which is confidential, speedy, cost effective and final, but actually this procedure is not very popular or often used. I am not sure why that is. Perhaps it is because people are not aware of it, and by the time that professional people get involved lawyers are often needed, as it has come to a court action.
As with other disputes it is possible to go through a process of mediation, by which a settlement is negotiated between the parties that they can live with. However, for this to work there has to be a willingness to negotiate. That involves give and take, and being prepared to enter into the process with an open mind about the discussion and the options for reaching a solution. It is possible that at the end of a mediation process one party will feel that the outcome is unsatisfactory, but if people enter the process with an open mind it can resolve matters. It is also worth noting that the advantages of mediation are that the parties arrive at the agreement themselves, and in reaching that agreement hopefully get a better understanding of the position of the other side.
Moving on from these ways of seeking agreement, people can often find themselves at the land registration service of the Tribunals Service, the county court or the High Court, in certain circumstances. All those options begin to cost quite a lot of money. It does no good to enter into disputes before courts and tribunals that, in the end, cost more to resolve than the value of the land or boundary in question.
The Government need to act on this, and the noble Earl, Lord Lytton, has made the case today with a sensible solution to the problem before us. We need an effective link between the public and the Land Registry so that, where required, the position of boundaries can be formally established and recorded without recourse to litigation of the type I outlined earlier.
As the noble Earl suggested, to achieve that there should be a system of notification of a boundary proposal to neighbours which, if disputed or ignored, would trigger a dispute resolution system backed by a requirement to register the outcome with the Land Registry as a formal determined boundary. It would be similar to the process that operates under the Party Wall Act 1996. It would ensure that the vast majority of boundary disputes were removed from the courts, but without in any way preventing an appeal in appropriate cases. We have only to look at how many party wall cases are appealed to the courts to see the effectiveness of such a measure.
In conclusion, I again thank the noble Earl for raising this issue and I look forward to the response of the noble Lord, Lord Faulks.
3.25 pm
The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, I, too, am grateful to the noble Earl for raising this important issue for debate and for the clear way in which he outlined the problem.
I am grateful to him also for acknowledging the fact that he, I and Charlie Elphicke, who brought forward a Private Member’s Bill, had a number of meetings in which he helpfully outlined of the nature of the problem as he sees it, and the possible solution presented by the Bill. This has been a useful exercise informing the ministry and my officials.
Property boundary disputes relate to the legal position of a boundary between two properties and the ownership of the relevant land. There are many millions of boundaries between properties in England and Wales. This is not a hyperbola—there are 24 million registered properties. The vast majority are probably never the subject of a dispute. However, as we have correctly heard, where neighbours disagree about the line of the boundary, the disputes can be very difficult indeed to resolve.
We cannot realistically create a world in which neighbours do not from time to time fall out over the precise position of a boundary. There are all sorts of reasons for the disputes, not all to do with a precise evaluation of the boundary itself. What we can aim to do is provide effective ways to resolve the disputes that occur. A first step is to try to identify why they seem to be so difficult to resolve.
It is perhaps regrettable that boundaries are rarely precisely defined in England and Wales, and the standard of property descriptions in conveyances and the matching of plans to the situation on the ground has historically too often been poor. In addition, boundaries may be changed by the application of the principle of adverse possession, to which there has been reference in this debate. Those rules are complicated and the time periods applicable depend on whether the title to the land is registered but, basically, a person can become the owner of land by uncontested continuous use over a lengthy period of years. The noble and learned Lord, Lord Hope, correctly referred to the Latin maxim. If this happens, the line of the legal boundary will change.
The fact that adverse possession involved evaluation of the facts is one of the reasons why the Government respectfully agree with what the noble and learned Lord, Lord Hope, said about the difficulty in the otherwise initially attractive solution of having the matter determined effectively by surveyors. An undesirable side effect of this lack of precision is that, unless a certain give and take is observed between neighbours, the resultant boundary disputes are often bitter, protracted and expensive. On occasions, the costs, as the noble Lord, Lord Kennedy, rightly said, can be out of proportion to what is at issue. There are all sorts of reasons for this.
As we have heard, it was concern about the disproportionate cost and bitterness of disputes based on the experience of his constituents and others that prompted Charlie Elphicke to bring forward his Bill. It proposed—if I may condense a 17-clause Bill, which I know has been amended—that disputes relating to the exact location of a boundary between adjoining properties in England and Wales must be referred to an independent adjudicator for final determination at the earliest opportunity, subject only to a right of appeal to the county court. In the light of the concerns raised, the Government decided to carry out an initial
scoping study on the issue. The result of the study was published today; it is on the Blackberry of the noble and learned Lord, Lord Hope, I think the noble Earl has received it, and if the noble Lord, Lord Kennedy, has not received it, he will do so shortly. We have placed a copy in the Library, but I will briefly summarise its content.
The study took the form of interviews with a small number of key stakeholders and the distribution of a questionnaire to 30 organisations with an interest in land law issues involving boundary disputes. Input was also received during the period of the study from a number of individuals who had themselves been involved in such disputes. The study reflects the views expressed in the responses received on the nature, frequency and causes of boundary disputes, the effectiveness of the resolution methods, the problems that arise and what could be done to address them. It discusses a number of options for legal or procedural change. Incidentally, I accept that it is difficult to calculate quite how many disputes there are because they can vary between a full-blown boundary dispute which reaches the High Court and even beyond, and an initial disagreement which may be relatively easily resolved, and there are very many steps along the way.
Boundary disputes can be mediated by a range of methods, either through the county court or the land registration division of the Property Chamber of the First-tier Tribunal, as part of legal proceedings or separately by mediation, as referred to by the noble Lord, Lord Kennedy. Independent expert determination is also used in a very small number of cases. I noted from the RICS document, which was part of the very helpful Library Note put together for this debate, that there is a RICS Neighbour Disputes Service, which provides access to a specialist panel of expert members with experience of resolving neighbourly boundary disputes. The service can involve expert determination and mediation of a dispute, and therefore there is an alternative to formal litigation if any doubt or uncertainty exists between parties on the correct boundary line. The RICS advises those who might wish to seek a slightly cheaper way to resolve their problems.
The core conclusions reached in the study are that there is merit in the Government carrying out further work to assess the feasibility of improvements as regards a number of aspects of the current system, including the use of mediation and expert determination, the spreading of best practice and the provision of better information, but that more radical reform such as that argued for by the noble Earl, Lord Lytton, would not currently be justified. The particular approach the noble Earl advocates is the introduction of a mandatory system for resolving disputes similar to that used under the Party Wall etc. Act 1996. That would involve the appointment by parties at as early a stage as possible of an independent expert, normally a surveyor, to determine the position of the boundary. In the event that either party was dissatisfied, it would be open to them to appeal against it to a court.
It will be useful if I explain why the Government do not consider that requiring everyone involved to follow such an approach would be beneficial. First, the determination of the legal position of a boundary in
the absence of agreement is normally a matter for a judge, as it determines a person’s legal rights. A surveyor, no matter how expert in technical issues—I entirely agree with the noble and learned Lord, Lord Hope, although my own experience with surveyors is that they very often are extremely expert and supplement the often inadequate understanding that lawyers have of these issues—will not necessarily have the legal expertise to deal with cases that involve more complex legal issues such as adverse possession. Allied to this is the fact that, unlike party wall cases, which are essentially based on a mutual need between the owners of the adjoining properties for work to be done efficiently, boundary disputes are much more likely to produce a “winner” and a “loser”. In addition, as contributors to this debate have acknowledged, boundary disputes can generate considerable bitterness.
The combination of these factors means that in our view the likelihood of appeals being brought against decisions would be high. It would mean that in many cases the suggestion would simply add a further layer to the proceedings, which would add to the costs rather than reduce them. In some cases the early appointment of experts could itself front-load costs where the dispute might have been resolved in other ways, and, perhaps, permit stronger and legally astute parties to steal an advantage over more easygoing neighbours. That does not mean that the Government are in any way complacent about the problems that can arise in boundary disputes, or about the possibility of improving relevant civil procedures more generally.
In the course of this Parliament, we have made considerable efforts to rein in the costs of civil litigation in general so that they are more proportionate, including through a new civil procedure rule to ensure that costs which are disproportionate will not be recoverable, even when they are reasonably or necessarily incurred. We have also introduced new provisions for costs management and costs budgeting. These and other steps should help to reduce the amount of costs so that they do not become disproportionate to the issue.
We believe that rather than restricting the flexibility of the current system and the range of methods that can be used to resolve these disputes, it is preferable for us to explore the feasibility of making further improvements. As I have indicated, there are a number of approaches we wish to examine aimed at developing and encouraging the use of mediation or other methods of alternative dispute resolution, supporting robust and timely case management and improving the quality and availability of guidance and information to increase awareness of the issues and the options available. I am grateful to the noble and learned Lord, Lord Hope, for reminding us of what the Land Registry provides by way of assistance to those who wish to have boundaries clarified.
On the question of general boundaries, which was referred to in the debate, I am advised that when land registration was first introduced there was an experiment with general boundaries from 1862 to 1875, when it was abandoned because it caused so many disputes.
On the question of what we can learn from Scotland, of course, it is always useful to learn from other jurisdictions. I am advised that a local deeds registry
existed in Yorkshire and Middlesex until the late 20th century. We will consider, among other things, what we can learn from practice in Scotland, and, indeed, from practice in Australia. Our core aim will be to reduce the costs without in any way impeding the proper opportunity for people to dispute boundaries where they must do so. We intend to take forward consideration of how action can best be focused in these areas in the light of the findings of the scoping study in order to reach more definite conclusions on next steps in the year ahead. I thank the noble Earl for his contribution to the debate and all those who have contributed to our enlightenment on this important issue. As I have said, we are by no means complacent about this issue and the debate has been most helpful.
3.37 pm
Chancel Repairs
Question for Short Debate
4 pm
To ask Her Majesty’s Government what steps they are taking to abolish the liability of private householders and others for chancel repairs.
Lord Avebury (LD): My Lords, a consensus that reform of the law on chancel repairs is long overdue has emerged from discussions with the church, the Law Commission, the Law Society, the Country Landowners’ Association and the National Secular Society. Since the Chancel Repairs Bill will not make further progress until after the general election, a preliminary debate on the issues is useful now.
By the 12th century, the liability to pay for chancel repairs, the CRL, was already linked to the tithes being received by the rectors of certain parishes. At the Reformation, Henry VIII sold the right to the tithes to lay people, who became liable for chancel repairs as “lay rectors”. Under the current law, the Tithe Act 1936, some lay rectors are still responsible for those repairs, but the tithes which originally enabled them to make a profit from the transaction were abolished. The unfortunate remnants were those who owned land that was not relieved of the burden in 1936, or their successors in title, who have been living under a sword of Damocles for the past 78 years. It is for discussion whether major institutions such as the schools of Eton and Winchester or the colleges of Oxford and Cambridge should continue to be required to pay long-standing non land-based CRL, but it is unreasonable for the owners of generally small plots of land in some 2,500 Anglican parishes in England—around half of them—to be potentially liable for the charge, which is without limit.
The Chancel Repairs Act 1932 reasserted the little-used right to enforce CRL but transferred enforcement from the ecclesiastical courts to the county courts
after a lay rector was sentenced to prison by the High Court for contempt of the ecclesiastical court for non-payment of CRL. It was seldom recovered during the succeeding half-century, and in 1981 the General Synod accepted the recommendation of its standing committee, headed by the late Archbishop of Canterbury Lord Runcie, to phase it out. In moving to receive the committee’s report, Mr Clark of Southwark said:
“So I hope we shall support the suggestion that we phase out these liabilities, just as the Church of the 1830s agreed reluctantly to tithes being phased out”.
The synod approved the recommendation but declined to use its legislative powers to implement it. Soon after, and with Church of England involvement, the Law Commission recommended the abolition of CRL by statute after a 10-year notice period, which would by now have long expired. That recommendation, made in a well argued paper, was not implemented, but if the synod itself agreed to ending CRL, thinking it unlikely that compensation would be forthcoming from the Government in 1982, it would be even less realistic in this age of austerity to expect the taxpayer to reimburse parishes for the loss of a doubtful future income. Given the furore over even the registration of CRL of properties in the roughly one in 20 parishes thought eligible to do so, parochial church councils have wisely refrained from enforcing their legal rights since 2003, so are they worth anything?
The state already contributes hugely to the upkeep of churches through gift aid worth some £84 million; the Listed Places of Worship Grant Scheme worth £42 million; the National Heritage Memorial Fund, currently funding repairs to Winchester Cathedral costing £14 million and of York Minster at £18.3 million; further grants to cathedrals recently announced worth £8 million; Heritage Lottery Fund grants to churches of £300 million in the 10 years to 2004, the lion’s share to the Church of England; and finally, £15 million recently announced by the Chancellor of the Exchequer for repairs to church roofs and rainwater pipes under the Listed Places of Worship Roof Repair Fund.
In 2003, following a refusal by English Heritage to fund repairs to the church in Aston Cantlow in Warwickshire, the local PCC refused an offer of £25,000 from the lay rectors, Mr and Mrs Wallbank, and the parish took the case all the way to the House of Lords, with the active support of the Archbishops’ Council. There, the Wallbanks lost, and had to sell their farm to pay the CRL and costs approaching £500,000.
Parliament reacted with an order providing for registration of CRL at the Land Registry to alert buyers to land being subject to the liability, since it was rarely shown on deeds, but lawyers doubt whether buyers of unregistered land are protected as envisaged when the order was enacted. The church warned PCCs that failure to register under the order might render trustees personally liable, so it is little wonder that an estimated 17,000 titles in a few hundred parishes have been registered. The vast majority are owned by ordinary householders, not major landowners.
Attempts were made to mitigate the harm to the mission of the church that registration caused. Titles were singled out where the return seemed most lucrative or there was likely to be opposition. PCCs often
announced that there was no intention of enforcing the liability. However, assurances are not legally binding and can be rescinded at the stroke of a pen. Even cancellation of the registration does not extinguish the right to enforcement.
PCCs were ill equipped for the laborious and exacting work of registration, often involving missing, archaic or inaccurate documents. Unsurprisingly, thousands of registrations have been made in error, compounding the distress caused to householders. This happened, for example, in Gorleston in Norfolk, where all of the nearly 1,000 registrations had to be withdrawn.
Given the hostility to registration reported by the media, churches would find it extraordinarily difficult and counterproductive in terms of their relationships with their parishes to sue for recovery of CRL. It appears not to have been attempted since Aston Cantlow. Registration is literally a medieval anomaly that undermines the value and saleability of land, creating lasting animosity towards the church, without achieving the objective of improving the funding of chancel repairs. It aims at taxing citizens who may not even be Christian or belong to any religion, for the purposes of one faith out of dozens in our multicultural society.
Even more harmful for many landowners than the exposure to unquantifiable and theoretically limitless CRL is the blight of registration, significantly reducing the sale price and even making the property unsaleable, particularly to buyers requiring mortgages. Since Aston Cantlow, purchasers of land have routinely taken out insurance against having to pay CRL, and this has proved very lucrative to the insurance industry, given that payouts have been minimal. But for property blighted by registration, premiums are astronomical or insurance is totally unavailable.
The only fair solution is abolition, modelled on the Law Commission’s recommendation, but until that can be effected, a much greater availability is needed of compounding—the ability to buy out the liability to CRL, at low cost and minimal professional fees. At Edingale in the diocese of Lichfield, the diocese agreed after long and stressful negotiations to accept just £45 from a householder to extinguish her liability to pay CRL of thousands of times that amount if it had been recoverable. Without compounding, any would-be purchaser would have had to take into account the probability that, ultimately, the church would be able to enforce the claim, as it did in Aston Cantlow.
Some dioceses already recommend compounding, but a uniform countrywide scheme would be the ideal, possibly by way of amendments to the Ecclesiastical Dilapidations Measure 1923. The initiatives of the Reverend Greg Yerbury, team rector of Penkridge, Staffs, might provide a useful model. In any case, based on the principle that half a loaf is better than no bread, it might be sensible for the church to devise a workable national scheme for compounding before we return to the Chancel Repairs Bill, abolishing CRL altogether after the general election.
4.09 pm
Baroness Wilcox (Con): My Lords, I thank my noble friend Lord Avebury for bringing this subject to the attention of the Committee and thereby giving us
all the opportunity to discuss a very important matter—chancel repair liability. In my role as chairman of the London Diocesan Advisory Committee and as an active member of my parish church in Cornwall, I see more of the varied picture that the Church of England presents than do most people. The views I have heard from the members and officers of the Church of England on the subject of chancel repair liability are equally varied. I speak now as an individual member of the church, not on behalf of any church body.
As we have heard from my noble friend Lord Avebury, this matter is one that can come between churches and their local communities, and it has long been understood that something must be done to remove the element of surprise from the situation. Those of us within the church had been resting on the assumption that something has been done. In 2002, Her Majesty’s Government brought the Land Registration Act on to the statute book, giving the church 10 years to get its house in order and register legitimate chancel repair liability, after which the door would shut in October 2013. That was the date that we all had in mind: October 2013. After that, it would be settled, with no more scope for nasty surprises—surprises for churches seeking grant funding that are coerced into researching historic liabilities, and, of course, surprises for the owners of properties affected by those liabilities.
There are two sides to every story, of course. In fact, many registered chancel repair liabilities are against wealthy institutions, the church authorities themselves or others who are well able to pay. Those landowners would no doubt be pleased to see the value of their asset rise as a result of the abolition of chancel repair liabilities. However, the worst-case scenario is more often quoted. An unsuspecting person of modest means buys an unassuming house only to discover, despite having taken all possible precautions, that they are liable for a bill of a quarter of a million pounds to mend the church roof. That nasty element of surprise is undoubtedly one of the worst aspects of the current state of affairs, but I wonder how often it actually occurs. I do not have the numbers, but I hope that my noble friend may have the list to hand when he replies to the questions which I and others are asking.
It was precisely that problem which Her Majesty’s Government sought to tackle in the Land Registration Act 2002. At least, that was the popular understanding among my church friends. I think that it is fair to say that in practice the law is not what we all hoped for, a view supported by the Law Society in its parliamentary briefing. Its principal limitation is that it applies only to properties sold since October 2013. All property which has not been sold since October 2013 continues to dwell under a cloud of uncertainty. Even worse, the point of sale being the completion of the sale means that, at least in theory, it is possible to discover and register a new chancel repair liability between exchange of contracts and completion. That means that even when a property search has been returned blank, there remains a risk. Unsurprisingly, the insurance industry has risen to the challenge, and chancel repair liability insurance remains a lucrative business. In practice, the 2002 Act has not met the needs of churches, landowners or potential purchasers.
To my mind, the neatest, fairest and best solution to all this is to bring forward a law to fulfil what we hoped was the ambition behind the 2002 Act: to remove uncertainty and any further possibility of nasty surprises. However, to abolish chancel repair liability altogether without compensation to the churches concerned would not send the right message to the volunteers struggling to maintain our church heritage.
I do not dispute that the present Government have been generous in their funding for church buildings, but in the European context, where many countries’ churches are funded largely by the state to the tune of billions, we get extremely good value for money. The volunteers of the Church of England care for 12,500 listed buildings—more than 10 times as many as the National Trust and English Heritage combined. While churches can apply to certain grant funding pots, there is no guaranteed state funding at all for this substantial part of our national heritage.
While grand country houses and ruined castles are, at best, noble works of art and, at worst, symbols of local oppression, our historic churches represent the very best hopes and aspirations of the communities that built them, celebrated their lives in them, and were ultimately called to that final act of parish communion in their churchyards. In seeking to legislate further to end the undoubted unfairness of the present system of chancel repair liabilities, I urge the Minister to ensure that hard-pressed individual congregations tasked with caring for this very significant part of our heritage are not put at a disadvantage as a result.
4.15 pm
Lord Cashman (Lab): I, too, congratulate the noble Lord on enabling this important debate on an issue which should have been settled years ago but that I hope will be settled soon. I know that I am not alone in having received supportive calls for the repeal, or at least the reform, of this liability from, among others, the Law Society of England and Wales and the National Secular Society. The Law Society is calling for reform of chancel repair liability for a number of reasons, but primarily to reduce the financial burden on purchasers of land and speed up the conveyancing process. It also puts the case that, more widely, reform could help to improve the UK’s standing in the World Bank rankings of ease of doing business. Interestingly, in the section on registering property, we are currently ranked 68th, against an overall ranking of eighth. Much more, clearly, needs to be done.
More widely, the number of property titles blighted by CRL per parish ranges from as few as one to hundreds or even thousands. Where it is a small number, the people singled out will feel doubly vulnerable because of the several nature of CRL—that, in many cases, any one landowner can be sued for the entirety of the repairs needed, as happened in the previously-cited case of Aston Cantlow. Where the number of CRL registrations in a parish is large, untold distress is caused to a significant proportion of the community, including many without the knowledge or resources to cope with it.
In Lytham St Annes, more than 6,000 titles were reportedly registered by the church, the largest number in the country. I believe that the parish with the second largest number of registrations, approaching 1,000, is Gorleston on the Suffolk coast, a town I know well. It is a town with a high proportion of elderly residents, and not a wealthy one; 20% of people are on benefits, compared with 13% for England as a whole. With so many properties sharing the CRL burden, the individual sums recoverable would, one could argue, have hardly been worth collecting or registering, but much as in Lytham, the church in Gorleston gave the impression that the registrations were made just to follow orders, or as the vicar said, “in order to comply with the requirements of the Charity Commission placed on the trustees of charitable organisations”.
The tale goes on. The vicar offered property owners a way out: pay the parish £50 and receive what he described as a “certificate of exemption”. He promoted this as being cheaper than insurance. The recognised way, of course, of buying out CRL is through the Ecclesiastical Dilapidations Measure 1923, under which the money goes to the diocese. These exemption proceeds went to the parish, and an acknowledged expert on CRL has seriously challenged the exemption’s validity. The vicar, too, seems to have had second thoughts, for he has refunded the £50 contributions, which he had said were better than insurance, seemingly whether or not the property owners wanted to lose the exemption they assumed that they had contractually secured. The parish has, it seems, thrown in the towel. I quote this as an example of damage done to the many. It has thrown in the towel because every registration has been revoked, but only after about a year of heartache and uncertainty for those whose properties were registered.
Although I imagine that some owners may reasonably assume that the Church’s right to sue for CRL is thereby removed, the PCC remains free at any time in future to reregister or, more importantly, to sue for it. I hope that I have put the case not only for reform but for repeal. I believe sincerely that CRL is a pernicious, medieval relic and the time is long past for the curtain to be dropped rather heavily upon it.
4.20 pm
Lord Taverne (LD): My Lords, until I found out from my noble friend Lord Avebury what his debate was about, I must confess that I had never heard of CRL. Then I discovered that this ancient, medieval, ecclesiastical relic still exists and can have potentially catastrophic effects on thousands of owners of mainly small plots of land in some 2,500 Anglican parishes. Owners can be held responsible for the cost of repairs to churches amounting to tens of thousands of pounds and that potential liability can make their house unsaleable. The liability is perpetual and can be annulled only by compounding—that is, by buying it out. This can involve large legal, surveyors’ and insurance costs, if it can be insured against at all.
Churches have argued that owners knew or should have known about this when they bought the land but they generally did not know, or they would have avoided making the purchase. In time registration of land was made an option for churches so that owners
would know about their liability for CRL, recorded in the Land Registry, but many bought their property before registration. For example, 30 families in Broadway found out about it only when they received a letter from the Land Registry. It was a traumatic discovery causing an outcry of anguish, duly reported by their Member of Parliament, and in the end registration of their property was withdrawn because of its effect on the reputation of the church.
That unlikely adverse publicity for churches has meant that since the Aston Cantlow case they have not asserted their right to sue landowners, but its existence still blights owners’ property. One landowner was nearly driven to suicide because he lost his principal assets. Sometimes registration by the local church has proved ineffective because the archives holding the records are difficult to trace. Some people have therefore tried to get registration overturned, but the costs are huge and the task is impossible for laypersons because of the legal complexities and because the owner might need to find the relevant archives which are kept in different locations. It is no wonder that the Synod recommended in 1981 that CRL should be phased out. Unfortunately, it did not press the issue.
The case for abolition of this oppressive anachronism is overwhelming. It can ruin lives and I am told that the legal position, even of those who have not had their properties registered, is uncertain. It should go the way of tithes, and I hope that the right reverend Prelate will pass on to the most reverend Primate the Archbishop of Canterbury, who has shown deep concern about social justice, our pleas that this anachronous imposition of huge burdens on possibly thousands of landowners should be ended as soon as possible.
4.23 pm
The Earl of Lytton (CB): My Lords, I, too, welcome this debate and thank the noble Lord, Lord Avebury, for the opportunity. In rising to support him, I declare an interest as a chartered surveyor, as an occasional provider of quinquennial surveys on ecclesiastical property and as a valuer—not in the matter of professional involvement with CRL but rather the implications for valuation and the philosophy of this ancient impost more generally.
In every consideration of property valuation the question of risk looms large and often has a disproportionate effect on net present value. Typically, that is reflected in a discount rate or the rate of accumulation applied in a valuation. This is not just theoretical science but reflects the real world of human response to risk and reward over extended timescales and observed over centuries. CRL affects land value because of how the liability is transmitted and how it attaches to owners.
There is one thing more potent in valuation than a perceived liability and that is a liability that cannot be quantified. To counter it often requires the adoption of a worst case scenario. CRL, to quote Donald Rumsfeld, is full of “known unknowns” and here are some of them. First, whether it applies at all is far from obvious. The basis of liability—is it keeping a chancel windproof and watertight, or is it something more elaborate?—has been the subject of a more
recent decision. What is the resultant amount of the liability and its calculation? Is it shared or individual—joint or several, to use the technical term? The timing of its imposition and the inability to defer or amortise regardless of impact is significant. The reliability of safeguards such as insurance and the implications for professionals, which have been raised by the Law Society, are certainly uppermost in my mind as a professional myself. There is the difficulty of buying out the liability—or compounding, to use the correct term—at a fair sum and at a time of one’s choosing. There is the absence of a right of appeal against either the impost or the quantum. There is the potential for expensive delay at critical moments, with consequential market-value effects, and it can be a severe impediment to transactions. Unfortunately, as the noble Baroness, Lady Wilcox, mentioned, the Land Registration Act 2002 has not resolved the issue; it has simply put a large part of it into the long grass.
Liability falling on wealthy landowners may be one thing but when it falls on unsuspecting householders, reluctantly deemed by the PCC to be the most amenable of various possible pockets, that is clearly something else. The selectively capricious manner of its imposition hugely adds to the risk and to the disproportionate resultant contagion. It can destabilise family finances, destroy livelihoods and wreck lives, as we have heard. The ability to pay matters not one jot. I cannot prove this but I suspect that CRL has the potential to destroy more third party property value than it confers in benefit in terms of chancel repair.
I am no great moralist, but if CRL were in the hands of private landowners, such non-recourse powers would have long since been outlawed as contrary to the public interest. I was raised in the Roman Catholic faith. I know very well that desirable ends of maintaining places of worship exist but they do not necessarily justify capricious or inequitable means of financing them. Part of the problem is that although there is a perception of the great wealth of the established church, administered under the auspices of the Church Commissioners, this does not inure for the benefit of parochial church councils, which are legally obliged to shoulder the funding of church repairs from their own resources and congregations. Although the real estate, if I can term it that, belongs to the diocese and is administered centrally, it is the parochial church council that has the unfortunate business at the sharp end of imposing CRL. This is a fairly invidious state of affairs. Clever financial minds—I do not single out the Church of England for this; far from it—have segregated asset from parish burden, and this is part of the issue.
Like the noble Lord, Lord Avebury, I ponder the message that this sends out. It seems to me that there is a consensus that CRL should be abolished, and I hope the Government will get on with it.
4.28 pm
Lord Rooker (Lab): My Lords, I am very happy to support the noble Lord, Lord Avebury. I want to tell your Lordships a story. It is the story of Helen Bailey from Staffordshire, whom I spoke to yesterday evening.
Helen Bailey said: “The parish church officials in Edingale, Staffs, seemed entirely ignorant of the consequences of registration on title holders, and they
appear to have given the affected individuals not one iota of thought and were utterly insensitive. They appeared not to have had any guidance regarding the human impact of CRL from the Lichfield diocese or from the church centrally, and seemed to be treating it as some sort of purely legal and technical matter. No attempt was made by the church to consult with owners, as had been the case in the adjacent parish of Alrewas, as a result of which registration was not proceeded with. Having decided in principle to register, it apparently did not occur to the Edingale Parochial Church Council to establish whether there were any extenuating circumstances rendering registration an act of callousness or even inhumanity. The church officials did not even observe the most basic courtesy of informing us”—that is, Helen Bailey and her neighbours—“of what they were about to do, or even had just done. The first I learnt about registration was when the letter arrived from the Land Registry. The next day I met one of my neighbours who had also received a letter; she looked as white as a sheet and had clearly not slept. The owners of the adjacent farm, who own the bulk of the affected land, received no notification. The land was not registered, so they got no notification from the Land Registry and it was only much later, at the insistence of the affected homeowners, that the church took any steps to inform them.
“Some weeks after registration a church official appeared on my doorstep, clearly very proud of his prowess in having navigated the mechanics of registering CRL and apparently expecting me to congratulate him. He seemed astonished when instead of being impressed, I expressed my anger and concern and acquainted him with the consequences of his actions. The church council appeared not to have done the basic internet research into CRL, which would have revealed its potential to blight the lives of affected individuals.
“Fortunately, my background as an accountant and experienced CAB adviser and as an advocate equipped me to do some research. Initially what I learnt served only to create increased anxiety as the full implications became clear. Recognising that CRL would in all probability make my property unmortgageable—and therefore potentially unsaleable—I had no choice but to try to find a solution. Initial letters to the church yielded nothing beyond denials of responsibility and hollow sympathy; there was an almost bewildering refusal to engage in the distress it had caused. The local vicar was more genuinely sympathetic but had no idea how to resolve the damage inflicted on my neighbours and me. In the end I was very fortunate to find myself in contact with the Reverend Greg Yerbury, whose integrity, expertise and kind assistance proved invaluable.
“My researches revealed that the historical proofs relating to CRL in Edingale were less than unequivocal but sadly also revealed that my neighbours and I had to disprove liability rather than the other way around, something we could not possibly afford to do. Assurances by the PCC that they had no intention of ever enforcing CRL were of no value at all as they did not remove the blight. Insurance was no longer available now that the
liability notices had been registered and we eventually concluded that the only truly effective way to get rid of the blight was to buy out the liability via compounding under the 1923 legislation”—which has already been referred to.
“Again with Greg Yerbury’s support, I approached the church regarding compounding. Its initial response was unfortunately pretty unhelpful as it would involve fees for solicitors, accountants and surveyors which would have run into thousands and been quite unaffordable, even if shared. Eventually, and only after considerable effort, a more pragmatic solution was arrived at by Reverend Yerbury on the basis of a calculation proposed and agreed with all parties. Because Edingale parish church is small, relatively modern and the chancel is in good repair, the compounding cost ended up being calculated at around £50 per acre. In the end I succeeded in arranging compounding and it cost me £45”.
Helen Bailey continued, “It has been suggested to me that this trivial settlement sum proves that I was making an unnecessary fuss about nothing, but the absolute reverse is true. The settlement sum demonstrates the financial sabotage of CRL and the true idiocy of enforcing this ancient and anachronistic legislation. The church has gained practically nothing. For the sake of £45 they wrought disproportionate destruction on the value of my home and brought misery to my neighbours and me. Had I not drawn attention to this in the media and tracked down Greg Yerbury, who has been most helpful”—he seems to deserve a medal, I might add—“I am sure that my neighbours and I would still be in this invidious position”.
It is time for this legislation to go. I am in favour of preserving our church buildings, although I am not a churchgoer. I have two lumps of stone from St Laurence’s in my back garden, bought at auction to support the refurbishment of the church. I have no problem about that, but this legislation has to go.
4.34 pm
The Lord Bishop of Derby: My Lords, how do I follow that? I thank the noble Lord, Lord Avebury, for introducing this debate. As a number of noble Lords have said, the Church of England is on record as supporting the principle of abolishing what has helpfully been called CRL, to put it into shorthand. It is very important to stress that. We are on record as saying that we support abolition in principle. The question is how and on what terms. Clearly, it is in no one’s interests to hear stories such as the one we just heard from the noble Lord, Lord Rooker. How could CRL be abolished? The fact is that property—not only the properties under CRL—is often subject to rights and restrictions. This is not new, and it is not unusual. In the Wallbank case in 2003 the House of Lords recognised that this was a right commensurate with other rights. In the 2003 judgment, Lord Rodger of Earlsferry stated that,
“in principle I do not find it possible to distinguish”,
“from the liability which would attach to the owner of land which is purchased subject to a mortgage, restrictive covenant or other incumbrance created by a predecessor in title”.
It may feel anachronistic, but the fact is that it is not unusual for properties to be subject to these kinds of restrictions and challenges. In law, the most recent judgment we have from the House of Lords found that it was not easy to distinguish this from others. We can distinguish the pastoral effects of the cases, but in terms of good practice in the management of property and of rights it is a much more complicated issue.
The noble Lord, Lord Avebury, made important statements about the amount of funding the Church of England receives from the Government, and that is very welcome. However, as the noble Baroness, Lady Wilcox, said, the churches have to put in an enormous effort to maintain the buildings. They are not just a vital part of our built environment, but a facility that is there for people when they want it, as they want it and on their terms. A very few of us keep these buildings fit for purpose as a spiritual resource and a spiritual sign.
It is interesting that the Tithe Act 1936 did not abolish CRL. Parishes are often willing to come to a sensible arrangement, although in the story we have just heard it was a very tortuous route. For instance, in my own diocese in Derby, one of the former Dukes of Devonshire had quite a lot of liability in a number of parishes of which he was a patron. Years ago he commuted this responsibility in return for a financial payment, and he now has no liability at all. I make that point because, of course, if we suddenly abolish all this, some people have paid compensation in good faith and in recognition of that right and that the Church needs to be recompensed in some way. We have heard again that trustees have a liability to maximise assets. Again, I do not endorse the way in which this was done in the story which the noble Lord, Lord Rooker, gave us. That showed the wrong enthusiasm, but you have to be enthusiastic for maximising the assets that you oversee.
How can we proceed to get rid of the CRL and all the problems it causes? The advice we received is that—under the European Convention on Human Rights and the Human Rights Act, and taking into account the previous practice of the Government, the Tithe Act, and the previous practice of individuals such as the Devonshires—in all those cases such a right is commuted in return for some kind of compensation. That is the principle by which legislation would need to proceed. It is a well known constitutional principle that Parliament does not deprive a subject of a right in the nature of property without providing compensation.
I propose that we have to proceed to change. All the speeches have made that clear. This has to be done on the basis of compensation. This would be fair to the current liabilities that property owners hold, because they are legal liabilities. It would be fair to give parishes notice and some kind of recompense for having to take on an even greater burden of the maintenance of buildings. This would be fair to current legislation and good practice in the administration of property and of property law, as Lord Rodger reaffirmed in 2003. We are fully behind this. It is just a question of how it is done. There is a very strong case that there needs to be some element of compensation to be fair to all concerned.
4.39 pm
Lord Kennedy of Southwark (Lab): My Lords, like other noble Lords who have spoken, I thank the noble Lord, Lord Avebury, for tabling this Question for Short Debate today. It is a most timely discussion.
As we have heard, chancel repair liability derives from the disposal of church lands following the Reformation. Previously, the rector had the obligation for the repair and upkeep of the church and was able to raise sums of money—tithes—from parishioners. After the Reformation, much church land was passed to lay landowners but the liability for upkeep remained, and this is the problem in effect. The lay landowner with the liability to pay for chancel repairs has no means to cover the costs.
Some progress has been made to deal with this anomaly, most recently in 2003 when the then Labour Government changed the law, as other noble Lords have mentioned, so that after 13 October 2013, where interest has not been noted at the Land Registry, any purchaser of land to which the liability previously attached will not be subject to it, although the current owners in such cases would remain liable. That is some progress but we need to go much further.
We are fortunate in this country to have beautiful buildings of all ages and types. They tell the story of our history and they should be preserved. Our system of listing buildings helps protect them. I note that the Church of England is responsible for maintaining 45% of the grade 1 listed buildings in the country and that the majority of all parish churches are grade 2 or higher. The right reverend Prelate the Bishop of Derby made reference to this obligation. We have to find another way to fund the upkeep of these buildings and phase out the chancel repair liability, particularly for individuals.
Looking at the Wallbank case, referred to by the noble Lord, Lord Avebury, which went all the way to your Lordships’ House—which found against the Wallbanks and left them with a repair bill that amounted to £250,000 including VAT, and legal fees of £200,000—you can have every sympathy with individuals who find chancel repair liability claims served on them, and it illustrates how unsatisfactory the present position is. The case established that chancel repair liability, although ancient, is an enforceable part of the land law of England and Wales, whereby property owners can be compelled to pay for the repairs to the chancel of a church.
The noble Lord, Lord Avebury, introduced a Private Member’s Bill into the House of Lords on 14 July 2014, the effect of which, on becoming law, would be to abolish the liability on lay rectors for chancel repair. With so few days left in this Parliament before it is dissolved at the end of March, I do not think the Bill is going to make much progress, as the noble Lord himself suggested. What the Bill is proposing to do goes in the right direction, but for it to make real progress in the next Parliament there also have to be provisions to identify replacement funding, and that is where the Government come in.
Responding to a debate in the other place on 17 October 2012, Helen Grant did not offer much comfort and generally took the line that the provisions
in place as a result of the 2002 Act have achieved a “better balance” and that the Government were not “persuaded” of the need for change. I contend that the Government need to move on from that position and try to find a lasting solution. Not to do so would continue to make certain properties unsaleable, bringing blight and distress to people, and that cannot be right.
I hope that the noble Lord, Lord Ashton of Hyde, when he responds to the debate, will be able to give a commitment that the Government recognise that there is a real issue here that needs to be addressed; that abolishing the liability in its entirety or at least for private individuals is long overdue; and that they will work with the noble Lord, Lord Avebury, and the Church of England to enable him to bring forward another Bill early in the next Parliament that resolves this question finally and provides a mechanism for replacement funding to be identified. That could just be the Government ensuring that, when the liability is removed, the Church of England will be able to apply for other funding streams. If the Government committed to working with the noble Lord, Lord Avebury, and the Church of England in a similar way to that in which they have worked with the noble Lord, Lord Naseby, on the Mutuals’ Deferred Shares Bill, they could make much progress here, which would be to their credit.
The noble Lord, Lord Ashton of Hyde, has heard the right reverend Prelate the Bishop of Derby say that the Church of England wants to get rid of the chancel repair liability. I therefore hope that he will take up my suggestion and work to resolve this, and not just tell the Grand Committee that the Government are going to keep the matter under review, because we all know what that means—that the Government are going to do nothing at all about it, which is not acceptable in this case.
4.45 pm
Lord Ashton of Hyde (Con): My Lords, I am grateful to my noble friend Lord Avebury for raising the issue of chancel repair liability for debate today. I am also grateful for the interesting contributions of other noble Lords who have spoken. I feel, in some ways, that the right reverend Prelate should be here, I will not say in the dock, but here with me to answer some of the speeches, which were all on the theme of changing the present situation. I listened carefully to the concerns expressed about chancel repair liability and I am sure that the Ministry of Justice will consider them in detail, but I must make clear—I trust that this will not come as too much of a shock to noble Lords, except, perhaps, to the noble Lord, Lord Kennedy—that the Government have no plans to change the law at present. None the less, it is because we take the concerns seriously that we are keeping the situation under review.
I do not have time to go through the long history of chancel repair liability. In fact, my noble friend Lord Avebury has dealt with that admirably, as have other noble Lords. The Law Commission has considered the liability a number of times since the 1960s. The present legal position is that chancel repair liability is an ancient but valid right that enables the owner, who, in
England, is usually the PCC, to enforce the liability. This right can play an important part in the finances of the 5,000 or so churches with the benefit of the liability. In earlier times, the main problem was that the liability was sometimes difficult, if not impossible, for a prospective buyer to discover. Now, following the removal of its status as an overriding interest in October 2013, its existence is readily discoverable. This is a major improvement, as my noble friend Lady Wilcox said.