Vol. 764 Friday No. 42 11 September 2015

PARLIAMENTARY DEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDER OF BUSINESS

Council Tax Valuation Bands Bill [HL] Second Reading ...... 1585 Property Boundaries (Resolution of Disputes) Bill [HL] Second Reading ...... 1602 Succession to Peerages Bill [HL] Second Reading ...... 1618

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No party affiliation is given for Members serving the House in a formal capacity, the Lords spiritual, Members on leave of absence or Members who are otherwise disqualified from sitting in the House. © Parliamentary Copyright House of Lords 2015, this publication may be reproduced under the terms of the Open Parliament licence, which is published at www.parliament.uk/site-information/copyright/. 1585 Council Tax Valuation Bands Bill [HL][11 SEPTEMBER 2015] Council Tax Valuation Bands Bill [HL] 1586

tax, but they are not very great overall. Give or take a House of Lords couple of hundred pounds, band A properties attract council tax of about £1,000 a year. Thus the most Friday, 11 September 2015. expensive of all properties attract only about £3,000 a year. This is, I believe, no longer either fair or publicly 10 am acceptable. It was, indeed, endless bad publicity for the small Prayers—read by the Lord Bishop of Peterborough. amount paid by those buying properties for many tens of millions of pounds that tempted the Lib Dems into inventing their mansion tax, which was a wealth tax Council Tax Valuation Bands Bill [HL] on only one form of asset. The Lib Dems wisely Second Reading dropped it; Mr Miliband unwisely scooped it up. He made much of it during the election campaign. Practically 10.06 am every desirable policy from health to education was to Moved by Lord Marlesford be financed from this miraculous pool of wealth. My Labour friends tell me that it did them little good on That the Bill be now read a second time. the doorstep. Many marginal Labour voters, who individually would have been most unlikely to reach the £2 million mansion tax threshold, rejected what Lord Marlesford (Con): My Lords, it is one of the they saw as a vindictive “soak the rich” policy. great privileges of being a Member of your Lordships’ House to be able to initiate legislation through Private There has long been a need to update the council Members’ Bills. It is even better to be able to get one’s tax to reflect current market values. The inhibiting Bill debated, but that is now a matter of luck. I factor has always been the task of revaluation: colossal introduced this Bill in the previous Parliament but it in both cost and human resources, and controversial never got to the top of the queue for a Second Reading. in that all valuations tend to be—must be—subjective This time I was lucky in the ballot, with my Bill and therefore result in expensive argument and dispute. coming seventh out of 42 Bills. So, of course, I am The most accurate value of a property at any point in now a supporter of House of Lords reform—at least time is obviously the price actually paid for it. Fortunately as far as procedure goes. we now have the Land Registry, one of the most Let me say straight away what this Bill is not. It is efficient and respected public bodies in the whole not a new system of local government taxation. The public sector. Since April 2000 it has recorded all Bill seeks, quite simply, to update the system of council prices for the transfer of ownership of dwellings. Well tax in England. I emphasise England because, as drafted, over half of all dwellings are now on the register. The it covers Scotland and Wales and, as they are covered register is completely transparent. by devolution, my first amendment would be to confine My Bill does two things: it updates the prices in it to England. the bands and it increases the rate of progression. In Local government taxation has always been a tricky the Explanatory Notes, which I hope your Lordships matter. The old rating system fell into disrepute, as have with you, illustrative tables show the bands that had the schedule A income tax on imputed rental I propose and the rate of progression that I suggest. I value of owner-occupied housing, which was the system say at once that both the bands and the rates of from 1918 to 1952. The 1990 poll tax lasted rather less progression are amendable as far as I am concerned. time; it was, of course, a political disaster for the Tory They merely represent my own view of what seems party. In 1993 it was replaced by council tax, introduced sensible, after quite a lot of consultation. by my noble friend Lord Heseltine. It has served us I have used the existing denominator—the ratio well, but it needs refreshment. Five years of coalition figure of six—as the starting point for band A, which government did nothing to help. I suspect that we will would now cover properties of up to £250,000 in hear from the Minister that this Conservative Government value. I have made band B properties up to £500,000. will oppose my Bill, but that they have nothing new to That will be slightly more progressive than the old offer either. system, at eight instead of seven, thus a 33% increase My Bill does not seek to change the two basic rather than 17% above band A. Thus, existing band A principles or the design of the council tax. Those properties would continue to pay exactly the same—about principles are: first, to divide residential properties £1,000—and band B would pay about £1,300. My into eight bands of value labelled A to H; and, secondly, suggestion is that it would get more progressive towards to apply a different level of taxation to each band with the top, with the new band H properties worth more progressive levels of taxation for each band. than £20 million paying £42,000 council tax rather In 1991 the bottom band A was for properties than the present £3,000. Again, I emphasise that this is worth up to £40,000 and the top band H for those not introducing a new element into the existing system, worth more than £320,000. Those are the same today. which has always been progressive and never made The ratio of tax was set at the figure of six for band A any attempt to limit the charge on expensive properties and 18 for band H. For some arithmetical reason, six to any relative use made by households of local was chosen to start with. Thus the most expensive government services. properties paid, and still pay, three times those of the I also emphasise that my proposals are no more a lowest value. There are some differences between the wealth tax than is the present system. The £42,000 charge rates at which different local authorities level council for band H is a mere 0.21% of £20 million, while 1587 Council Tax Valuation Bands Bill [HL][LORDS] Council Tax Valuation Bands Bill [HL] 1588

[LORD MARLESFORD] 10.19 am £8,000 is a mere 0.16% of £5 million. We were never Lord Flight (Con): My Lords, the proposals of the really told the details of the mansion tax, but at 1% on noble Lord, Lord Marlesford, for reforming council all properties worth more than £2 million, a £5 million tax valuation bands strike me as inherently sensible property would have paid £50,000 a year and a band and fair. I am surprised that none of the political H property would have paid £200,000 a year. There parties has taken up this model. may be some danger that stamp duty, to some extent increased to meet public concerns, may be becoming It seems to me ridiculous that for a long time the counterproductive to retaining London as a magnet top valuation bands in London have started at a value for wealth, which we wish it to continue to be. Perhaps of a mere £320,000, when, in Kensington, you can get key to my Bill, enabling updating to be introduced in a little more than a garage for that money, and the timely manner, is Clause 1(2), which states that any difference between the amounts paid at the top and property that has not been bought or sold since 1 April bottom bands is far too small in relation to the values 2000 will continue to be subjected to council tax in of the properties and, indeed, the potential local authority exactly the same way as at present. All such properties services being used. The existing difference in council would migrate to the new system of bands and charges tax bills between modest and grand houses is, as I say, when they change hands. Meanwhile, there will be two far too small, and so greater rate progression is justified. scales operating side by side. In addition, very large houses often have more people living in them, and to the extent that council tax is To those who say that it is inequitable for similar there to finance local authority services, they are burning properties to pay different rates of council tax I say up more of those services. only that there has always been a differential between It was very clever of the noble Lord, Lord Marlesford, the tax liabilities of similar properties that are in to take April 2000 as the cut-off date and, as he said, different locations, bought at different times and subject make it possible, on a going forward basis, to use the to different economic and social influences. The only purchase prices recorded in the Land Register and way to counter that would be to revalue all properties, save all the hassle of valuation and revaluation in the not only at frequent intervals but when any significant future. I do not see any great problem in leaving change affecting them took place. That could be anything pre-April 2000 dates of purchase properties with the from a development, a new road, mining, fracking, or old rate. Over time, obviously, it will change to the new even the waxing or waning of local schools—or perhaps rate as ownership changes and people move on or die. a change of neighbours. But it would be quite impossible Council tax is also a cheap and easy way to collect for officialdom to take account of all such factors. tax. I would be interested to know whether the arithmetic That is the job of the market, which is why tying of the proposals of the noble Lord, Lord Marlesford, council tax to the price actually paid for a property is means that local authorities would become virtually sound economics. self-financing, which I think is also extremely desirable. Should the same formula be applied to Greater London A crucial point is that the purchaser of a property as to the rest of the country, when house prices in the will know exactly what the financial implications are Greater London area are clearly wildly in excess of of a transaction. To some extent that would make those outside London? At the end of the day, the size market prices more realistic. There is good evidence and luxury of the accommodation are what matter. It that buyers already take account of stamp duty, as is debateable whether the noble Lord’s proposed well as legal and financing costs, in what they are progression arithmetic of increasing the ratio between prepared to pay a seller. They would also want to take the lowest and the highest band from three to 42 is account of council tax bills. In this sense it is the seller right. Arguably, it might be a little too high. It might who pays part of such costs. be an idea to, as it were, cap the maximum that is payable, but those are only minor points. I have had much encouragement after discussing However, my major quid pro quo or proviso concerns the Bill with many colleagues. Sadly, not everyone has stamp duty. Irrespective of whether these changes are skipped back to enjoy the delights of a sunny Friday made, there is, in any case, as a matter of principle, a in September at Westminster. Three who are not able need to reduce stamp duty rates. The reform of the to be here but who have been particularly supportive slab effect is fine but stamp duty bills in London are of what I am trying to do are my noble friends Lord now far too high and are already considerably damaging Lawson of Blaby and Lord Baker of Dorking and the turnover in the market. In many parts of central noble Lord, Lord Butler of Brockwell. London a fairly ordinary family home with a garden now costs in the order of £3 million, and the stamp In summary, I am proposing a practical, cost-effective duty bill is £117,750—a cash cost. It is no wonder that and much overdue refurbishment of council tax. It everyone is digging out their basements or adding will use up-to-date values of houses as determined by another floor to their houses because that is a lot the market and recorded by the Land Registry. Those cheaper than moving house. This situation may also who live in modest dwellings will pay no more than discourage older citizens from trading down as they they do now. It will increase considerably but not incur a substantial stamp duty cash cost. excessively the contribution to local government revenues It may sound as if I am shedding crocodile tears for from the most expensive houses, especially in the the more fortunate. However, it is bad enough that London area. There will be no need for widespread young professionals in London have to borrow huge and costly bureaucratic revaluations. I beg to move. sums and mortgage their future to buy somewhere 1589 Council Tax Valuation Bands Bill [HL][11 SEPTEMBER 2015] Council Tax Valuation Bands Bill [HL] 1590 decent to live, but the addition of stamp duty cash living in more expensive properties pay a fairer share costs means that they cannot afford to move to a of the cost of local government. If one of the canons larger house as and when they have a family and need of taxation is fairness, he is right to draw attention to more space and, they hope, a garden. The top rates of that aspect. 10% and 12% are self-evidently too high and are a The other point I want to highlight is how property rip-off. They make even lawyers’ charges look cheap. should be valued; my noble friend raised this question. Unbelievably, you do not get much in central London At the moment it is valued on valuations going back for £1.3 million, but the stamp duty at that level is 25 years. It would be absolutely absurd if the rates of £36,000. That means that those whose career requires income tax were levied on the incomes earned 25 years them to move around the country cannot move their ago. He has found a very ingenious way of dealing families as they cannot afford the cash cost of such with this problem. large stamp duty bills. Therefore, you get the unsatisfactory At some stage in the future, both those points will situation whereby someone rents a room near where have to be dealt with. As I said, Governments are they work and leaves their family a long way away, and understandably badly scarred by property tax reform often the marriage breaks up as a result. That is unfair. and they will no doubt delay dealing with this, but at Teachers are particularly hit by this situation. How on some point it will have to be dealt with. The longer earth they can afford to pay these stamp duty bills on that takes, the greater the danger that the council tax their remuneration I cannot imagine. system will fall into disrepute, as have other local From a practical point of view, I also suggest that government taxes in the past, and that when the the Government have their estimates and calculations adjustments have to be made, they will be even more wrong of the level at which to pitch stamp duty to painful than they need have been. optimise revenues. I think they did the same thing with I congratulate my noble friend on having brought the CGT changes. The present charges are already this Bill to the attention of the House and having reducing significantly the volume of transactions. A highlighted what I think are really important points. recent analysis by Knight Frank showed that sales of £1 million-plus properties were down 21% in the year to this April. In addition, it is a discriminatory tax on 10.30 am those living in London. While Greater London Lord Desai (Lab): My Lords, I congratulate the transactions accounted for 13% of the total, Greater noble Lord, Lord Marlesford, on not only having London stamp duty revenues in the first quarter of secured a date for his Bill but having done it on his this year were nearly half of the national total, so this birthday, which is a rare achievement. The best compliment tax is silently affecting major redistribution from London I can pay him about his Bill is that I wish I had and the south-east to other parts of the country. From thought of it myself. a purely practical point of view, it would be sensible to We have had Prime Ministers fall on the question of pitch stamp duty charges at a level that at least optimises appropriate property taxation. Your Lordships will revenues rather than at a level which, Laffer curve-like, remember that when we were trying to remove the potentially reduces revenues as well as messing up the rates, there were stories of little old ladies in large market. houses living next door to another house where there The noble Lord, Lord Marlesford, is absolutely on were four adult men working full time, and what a the right track. It is necessary and fair to move in that great injustice the rates caused. There were not enough direction, but it needs to be accompanied by some old ladies in large houses in the census but that was the sensible reductions in the rates of stamp duty. propaganda and therefore we moved to the community charge, or poll tax. The poll tax became a complete disaster but it happened because of the reluctance of 10.27 am politicians of all parties to revalue property according Lord Sherbourne of Didsbury (Con): My Lords, I to what the market was doing. People who swore by congratulate my noble friend Lord Marlesford on the market—who had always sworn by the market— having secured time for this Bill and on his tenacity, as and encouraged property-owning democracy, and he managed to use the cities Bill in July to give us an congratulated themselves when house prices were rising, amuse-bouche and almost a forerunner of his speech refused to pass it on into taxation. That anomaly today. I also congratulate him on his bravery, as the caused the loss of Mrs Thatcher and then when the story associated with anybody who has tampered with, new Government tried to do the council tax, my or sought to amend, property taxes is not a very happy party—which used to listen to me in those days, long one. I suspect that my noble friend the Minister will, in gone—asked me if I could think of an alternative. I her very charming way, want to give this Bill a very racked my brains but I did not come up with anything wide berth indeed. as good and radical as the noble Lord has done. I wish to highlight two of the points that my noble This is an excellent Bill because it restores progressivity friend Lord Marlesford made which I think are important to property taxation. We do not have much progression and will not go away. The first is the anomaly whereby, when it comes to wealth taxation but he has at least especially in London, the very expensive houses and restored it here—if the Government accept it, which I properties of bankers, hedge fund managers and oligarchs, very much doubt because we already heard the noble costing millions of pounds, are taxed at the same rate Lord, Lord Flight, crying copious tears about people as the modest homes of people with much more living in merely £3 million houses who are struggling modest jobs and earnings. My noble friend is right to to make ends meet; no doubt these sorry tales of the examine how the bands can be extended to make those poor rich will multiply. But I hope the Government 1591 Council Tax Valuation Bands Bill [HL][LORDS] Council Tax Valuation Bands Bill [HL] 1592

[LORD DESAI] I support my noble friend Lord Marlesford today have the courage—they have the majority, they have because his Bill is characteristic of his admirable trait the numbers and I am sure my party would try only to of getting inside a genuine issue that for a variety of make it more radical, not less radical—to seize this reasons has not received the recent scrutiny it deserves. opportunity and go ahead and do it. Other examples of his persistence are outside the The most brilliant part of the noble Lord’s suggestion scope of this debate but they all occur in a manner is that rather than having any official revaluation directly reflecting the essence of this Chamber’s function committee, he is relying on the market to do the as a scrutinising and revising body, and he deserves the revaluation. By protecting people who have not sold a approbation of your Lordships’ House at large. He house since 2000, he is protecting the people who are has defined the problem in an admirably comprehensive vulnerable and have not moved out; they might be speech. He has also sought to present imaginative and elderly and they do not want to. This is a humane, ingenious legislative remedies which would ameliorate progressive, radical and economically intelligent Bill—a a state of affairs that will deteriorate further if a rare thing. It is so rare that it may not get government searchlight is not shone upon it. support but I urge the Government to support the I can guess the outline of the Government’s case, noble Lord. which I suspect will owe not a little to the legendary Fabius Maximus Cunctator. I am happy to serve as a 10.34 am member of the infantry in my noble friend’s troop of Lord Brooke of Sutton Mandeville (Con): My Lords, interested supporters, and this debate, whatever the it is a pleasure and a privilege to follow the noble outcome, will have been a very worthwhile illumination Lord, Lord Desai, who speaks in the midst of a sea of of an issue that will fester unhelpfully if it is not Conservative Back-Benchers. It is not the first time further attended to. In the mean time, we are all in my that the noble Lord’s enthusiasm for the solitary has noble friend Lord Marlesford’s debt. embraced me. During the 2001 general election, he was the only Peer in a British IPU delegation to a great jamboree in Havana to dance the salsa. I fear neither 10.39 am my noble friend Lord Fowler nor myself followed him in that experience. Lord Wasserman (Con): My Lords, I support the Motion proposed by my noble friend Lord Marlesford This is going to be a brief speech for reasons that the Bill be read a second time. As it is a very short irrelevant to this Bill but since a Second Reading Bill, I propose to keep my comments very short, too. debate is on the principle of the Bill in question, I As my noble friend Lord Brooke has already pointed wanted to support my noble friend Lord Marlesford. I out, my noble friend Lord Marlesford has a well-deserved was one of the relatively few Members of your Lordships’ reputation for identifying bits of our administrative House present just over eight weeks ago when the arrangements which are in need of updating, either to noble Baroness, Lady Hollis, launched the dress rehearsal take account of changed economic and social for this debate with her Amendment 75A to the Cities circumstances or new technology, or simply because and Local Government Devolution Bill on 15 July, as the world has moved on and we look at things in a my noble friend Lord Sherbourne has already mentioned. different way.Our statute books contain several examples That Bill was in the charge of my noble friend Lady of what I call Marlesford modifications, aimed at Williams of Trafford, who of course is here today to making our bureaucracy more cost-effective and our respond for the Government. society fairer. This Bill is his latest contribution to this The subject of the amendment of the noble Baroness, campaign. Lady Hollis, was broadly the same as today’s—council tax bands—and would have committed the Secretary Although it carries the innocuous and, dare I say it, of State to consult with local authorities before laying, rather tedious title of Council Tax Valuation Bands Bill, which sounds very much like something out of a “before each House of Parliament a report on the introduction of additional higher bands of council tax in England for the areas of “Monty Python” sketch, it is in fact a very ingenious combined or local authorities which may assume additional functions Bill with wide-ranging implications. As the noble Lord, under the provisions of this Act”. Lord Desai, pointed out, it is also very radical because The noble Baroness, Lady Hollis, alluded in her remarks it proposes that those who own the most expensive to my noble friend Lord Marlesford’s creative endeavours properties should pay not three times more in council in this area, and he immediately followed her; he was tax than those who live in the least expensive, as is now immediately followed by my noble friend Lord True, the case, but 42 times as much. who is speaking today as well. There is a marked Is 42 the right number? This is clearly a matter of overlap of dramatis personae in these matters. opinion. I am not going to try to defend it or any other I am not proposing to retrace our steps on that set of ratios set out in Clause 1(3). Debates about terrain today—they occurred in a somewhat different numbers and ratios are best left for Committee, when context and anyone who was not present can read the the real experts in the intricacies of council tax debate for themselves. My noble friend Lady Williams collection—of whom I am definitely not one—will no of Trafford made it clear in her response that she doubt have plenty to say. However, I welcome the would reserve her comments on our noble friend progressive nature of the Bill’s proposals, particularly Lord Marlesford’s speech until today. Her remarks at the higher ends of the scale, and believe that they were understandably less than the full exposition of are much more in keeping with the spirit of the times Her Majesty’s Government’s case to which we look than our present arrangements, whereby those at the forward today. top pay only three times as much as those at the 1593 Council Tax Valuation Bands Bill [HL][11 SEPTEMBER 2015] Council Tax Valuation Bands Bill [HL] 1594 bottom. Those arrangements are simply no longer Lord True: Sorry, my noble friend’s father—I apologise. defensible in a world where fairness has become a Anyway, we are interested in policy and it is absolutely basic principle across the whole political spectrum. true that what my noble friend Lord Marlesford has The Bill is concerned with more than simply increasing come up with has some ingenious aspects. the progressivity of the council tax system so as to When you think about policy, you need to think achieve greater fairness. It makes two other ingenious, about what you are trying to achieve. One effect of important and very sensible proposals. The first is that reforming a tax might be to raise more revenue. I council tax bands should reflect more accurately the noticed from the noddings on the other side at the actual values of the properties being taxed. As has speech of the noble Lord, Lord Desai, that there is already been pointed out several times this morning, certainly some interest in the possibility of raising the present bands were set as at 1 April 1991, which more tax from the better off by this mechanism. is almost 25 years ago, when a property worth more Personally, I would like to hear of a little more ingenuity than £320,000—the beginning of the top band—was in reducing spending. I do not think that my noble something to behold. I noticed the other day that friend was after raising more revenue overall. there is a property for sale in Smith Square, which is very convenient for Members of your Lordships’ House. The second reason might be redistributive. Actually, It is on the market now for £25 million, although I will if you want to redistribute money from the wealthy to admit that it contains a gym, a jacuzzi and a lift. Is it poorer people, there are far more effective methods sensible that that property should be lumped in the than working through bricks and mortar; you go present band H, with all other properties valued at directly to income and the pay packet. That is a more than £320,000? Is it fair that the purchaser of well-tried mechanism. Another motivation might be—I this property should pay no more than three times as have heard a lot about this in this debate—some sort much in council tax as someone who owns a property of mild embarrassment about the fact that wealthy at the very bottom of the scale? people live cheek-by-jowl with people not so well-off: a distaste for the privileges of substantial wealth, one It seems obvious that the property values used to of which might be property. assess council tax should reflect the situation in the real world. Here is where the Bill’s third ingenious and We are getting a rather confused approach in the sensible proposal comes in. The main argument against way that policy is going at the moment. Do we want to revaluing all properties in England for council tax have wealthy people or do we not? I follow very much purposes is one of cost. In our so-called age of austerity my noble friend Lord Flight’s remarks about stamp this is indeed a powerful argument but, as has been duty. We have lately seen a reform of child benefit, pointed out several times already, the Bill deals with which has effectively been withdrawn from those earning this objection by proposing that the new property over £60,000 a year— not necessarily the way I would values used for assessing council tax should be taken have reformed child benefit, but it is done and I am from the land register—that is, from the list of actual perfectly content with it. On the pension side, we want property transactions recorded under the Land to reduce privileges for those earning more than £150,000. Registration Act 2002, rather than being produced as Meanwhile, before the Recess, we had a measure in the result of a massive revaluation of the kind completed your Lordships’ House proposing unlimited free childcare 25 years ago. I have no doubt that those who know on the ratepayers for people earning up to £5 million, much more about this subject than me will tell us in £10 million or £20 million a year. Indeed, we pay for Committee why this proposal is fraught with free school meals for the five and six year-old children administrative and technical difficulties—but that is of people of unlimited wealth—a policy which overall what Committee is for. For these reasons, I urge your costs the country more than £1,000 million a year. So Lordships to give the Bill a Second Reading. we have a slightly confused view in different areas of policy on whether or not we want to get after wealthy 10.44 am people. Lord True (Con): My Lords, I guess that I speak for The trouble with going after property, as others the away team and, in so doing, I declare an interest as have indicated, is that it is an imperfect measure of leader of a local authority. I make no apology in what is actual wealth now. Income and property value following my noble friend by saying that the technicalities do not always coincide. This is a point which others and administrative details of measures matter and have alluded to and which we can look at in Committee, that your Lordships’ House is very good at considering but I say to my noble friend that this is written as a precisely those things. I congratulate my noble friend retrospective measure. Anyone now living in a property Lord Marlesford on bringing the Bill forward but if it which had been bought or sold since 2000 would proceeds to Committee, as I am sure your Lordships suddenly find, on the passing of this Bill, that their will intend and which I think would be an excellent council tax went up overnight if they were at the upper idea, we shall want to look at those details. end in parallel to the other measure. We would be I start on a more general note as this is Second introducing a new taxation system based on the values Reading. My noble friend Lord Marlesford and I of up to 15 years ago in place of one based on the come from the same stable, as indeed does my noble values of up to 23 years ago. I do not know whether friend Lord Sherbourne: the Conservative research that is what is intended but it looks to me to be department. My noble friend Lord Brooke did so as retrospective. well, I believe. I believe that property taxes in this country are relatively high in international terms. There are good Lord Brooke of Sutton Mandeville: Only my father. economic arguments, as the noble Lord, Lord Desai, 1595 Council Tax Valuation Bands Bill [HL][LORDS] Council Tax Valuation Bands Bill [HL] 1596

[LORD TRUE] government deals with it, there are basically only three said, for raising them if we wish to. It is absolutely ways of doing it: a local income tax, direct charges for correct to say that stamp duty in the south-east, and in services or a levy on property. At the moment we have London in particular, is counterproductively high, a sort of mix. I personally think the balance overall is and one would not wish to add another disincentive not too bad at present. My noble friend’s Bill is effect by setting council tax levels too high and certainly worth considering, but would I go forward discouraging people from moving. Inheritance tax, with it without considering very carefully in Committee contrary to the sleight of hand of my right honourable the specifics of some of the issues that I have raised friend the Chancellor, is scheduled to go on rising—the more broadly? On balance, I would probably leave it, take from it will rise by 50% in the survey period, but I would want to investigate further whether we whatever you see in the headlines. So property is quite could make savings through the Valuation Office Agency heavily taxed, particularly at the higher level, but that issue. is not necessarily a reason to address reform in itself of a tax which, I remind noble Lords, is about paying 10.55 am for council services. It is not a surrogate wealth tax or Lord Kennedy of Southwark (Lab): My Lords, I a surrogate mansion tax; it is designed to pay for thank the noble Lord, Lord Marlesford, for bringing council services. That is another philosophical issue his Private Member’s Bill to your Lordships’ House that we need to consider. today. I declare an interest as an elected member of In the detail of the Bill is an extremely ingenious Lewisham Borough Council in London. I am unable proposal to put the Valuation Office Agency out of to give the noble Lord the full support of the Opposition business—and, as a good Tory, I can certainly follow today, but I wish him and his Bill well. I think we can that. Measuring values when properties change hands all agree that there is an issue, and this is an important in any reform is a very ingenious proposal. Many part of the discussion in seeking to resolve matters. I properties of course change hands not on sale but on agree with the noble Lords, Lord Brooke of Sutton succession: they change title when somebody dies, and Mandeville and Lord Wasserman, about the noble the value is registered through the IHT system. The Lord’s creative endeavours and his ability to get a grip Bill would seem to include that form of succession, so on issues that may not have been looked at for some the higher council tax would immediately bite on the time. carer of an older person who had died. The definition As my noble friend Lord Desai said, the council tax in the Bill is “bought or sold”, and whether that was introduced to replace the poll tax, the very unpopular includes inherited needs to be clarified in Committee. form of local taxation that the Conservative Government A lot of people who are living together and who introduced in 1989, first in Scotland and then in England already fear the impact of inheritance tax will be and Wales. As we all know, it led to Mrs Thatcher interested in that aspect, which is something to probe being deposed as Prime Minister and replaced by in Committee. John Major. If I am correct, it was the first policy I do not want to tire the House too much, but we announcement he made: he immediately said in the need to look at the impact of the measures in Committee. other place that the poll tax was to be scrapped. The It is certainly fiercely redistributive, as my noble friend council tax is how local people pay for the services has said, within local authority areas. The dampening they receive from their local authority or authorities, effects within the council tax system would lower which include housing, social services, transport, policing, band D in an area such as mine with a large number of and fire and rescue services. However, it covers only higher-value properties. part of the cost, with the rest of the money coming What then is the impact on the authority as a from central government through grants and other whole? Normally, the grant system would adjust itself forms of funding. to account for the impact of changes in council tax As the noble Lord, Lord Marlesford, outlined, and would claw back the kind of windfall gains that properties are allocated one of eight bands, coded by some authorities might get. If this came in, it would the letters A to H, on the basis of an assumed capital probably have the effect of my authority getting a value as of 1 April 1991. There are discounts for single negative grant and having to pay the Treasury money. people and other exemptions where properties are Some might support that. Before Committee, for the unoccupied. The noble Lord, Lord Flight, has a point convenience of the House and my noble friend, I will about the narrowness of the bands, particularly in run a council tax model through our computer on this London, something which was also mentioned by the basis and see what impact it would actually have. I do noble Lord, Lord Wasserman. However, my experience not think that every Government would compensate in Lewisham suggests that we would certainly not be local authorities for the possible effect on their area of self-financing on the basis of these changes. this change in the system. There is therefore a risk that The previous Labour Government did not proceed people across the financial board might lose money if with a revaluation, and I am sure part of the reason Governments claw money back. for that was the effect on poorer families. The coalition Although the suggestion is ingenious and the Government also did not proceed with a revaluation, mechanism is particularly interesting, I am concerned and I suspect this Conservative Government are going about the retrospective effect. As other noble Lords to do exactly the same thing. The point of the noble have said, we have to look carefully at what the impact Lord’s scheme is that it does not require a revaluation of the new bands might be and whether the levels are but would instead deal with the issue as properties are right. There are irrationalities in council tax, as there sold. The problem that I have is that I do not want are in every form of local taxation. Unless central people, particularly people struggling to make ends 1597 Council Tax Valuation Bands Bill [HL][11 SEPTEMBER 2015] Council Tax Valuation Bands Bill [HL] 1598 meet, having to take on extra costs that they would not after my noble friend had started speaking. I was in otherwise have to pay. That of course would be the fact dealing with another matter of interest to him, but effect if this Bill became law. I apologise. As a councillor in Lewisham, I was delighted that we froze our council tax this year. I believe I am I thank my noble friend for setting out the purpose correct in saying that we have frozen our council tax in of his Bill, for his interest in the fairness of the council all but one of the last four years, but that was before I tax system, and for providing the Government with an became a member of the authority. I hope we are able opportunity to set out their position on the subject of to continue to freeze our council tax for many years to council tax revaluation. I also congratulate him on come. giving a bit of a warm-up act during the passage of the Cities and Local Government Devolution Bill, as If the Bill manages to get some time in Committee, other noble Lords mentioned, and wish him a happy it will be possible, through probing amendments, to birthday. see how it could be improved and the idea put forward by the noble Lord explored further in debate. The I know that these are matters about which my noble noble Lord, Lord True, made that very point about friend has been concerned for some time and I dealing with these matters in Committee. We can also congratulate him on his determination to bring a Bill look at this in terms of policy development for local before this House. He will not be surprised to hear government, and one thing that I will want to look at that the Government have reservations about the Bill, is the whole question of value for money. I am concerned and I would like to explain them for the benefit of the about the value we get in local government when whole House. tendering out services. There is an issue there in terms of the cost that local government actually pays. I fully First, the Bill’s proposals would require the formation support wealth creation—we all need wealth creators, of a second council tax list based on Land Registry because they provide the tax that we need to pay for values, to which properties would transfer from the our public services. valuation list as they were sold, the start date being The noble Lord, Lord Marlesford, mentioned the 2000. My noble friend envisages that eventually this proposed mansion tax when introducing the Bill. One would be the only property list for council tax. However, of the problems with the mansion tax is of course its I fear that he overlooks the protracted transition period application in London. With property prices ahead of in which two parallel council tax lists are likely to many other parts of the country, family homes in require maintenance and use. London—often very nice ones—can be bought and sold for large sums of money, but they would not be, Not only would this extended period place a heavy in anyone’s understanding, a mansion. That is a real and potentially complex administrative burden on those problem. administering the tax but it would lead to confusion One of the criticisms of the council tax is of course and an understandable sense of unfairness among its perceived unfairness in not taking into account the taxpayers. Residents in similar houses on the same ability to pay. Critics point out that although the street could face radically different council tax bills capital value of a property in which a person lives purely on the basis of when they had bought their might give some indication of the relative wealth of an property. Council tax is used to pay for local services, individual, it does not necessarily relate to current and to charge one household significantly more or less income. On the other hand, benefits are available to than another according to arbitrary parameters set reduce the amount of council tax paid—although we out in the Bill may rightly be considered unfair. are all aware of the cuts there in recent years. The use of Land Registry values throws up another It is important to say in looking at any element of issue. The provisions in this Bill would mandate the local government funding that the cuts that have been use of property values across a range of years going asked of local government have been difficult to absorb. back to 2000. Placing properties in bands on the basis Local government has risen to the challenge in recent of different valuation dates does not strike me as years and delivered local services at a level that local particularly progressive. Indeed it leaves banding at people would expect, but that is becoming more and the mercy of fluctuations in the market across time. more difficult. I see that first hand in Lewisham, with the difficult decision that we had to take to balance The Government believe that it is fairer and more our budget and deliver the best possible services with consistent to have properties banded in a single list, on fewer resources. the basis of their value at a common date. The current I hope that the Bill gets some time in Committee for council tax system already offers a means of updating us to debate the matter further. The funding of local a property’s band if it appears incorrect. Council tax government is a complex area. I want fair funding for payers have the right formally to challenge whether local authorities—fair for local people, fair for everyone their home is in the correct band within six months of involved, and getting the best possible value for money. becoming liable for the council tax on a property for the first time. This council tax band may increase on 11 am sale if this operation is clearly understood by those The Parliamentary Under-Secretary of State, Department selling and buying properties, and avoids an arbitrary for Communities and Local Government (Baroness Williams distinction between pre-2000 properties and post-2000 of Trafford) (Con): My Lords, first, I apologise to my properties. The band may also be changed to reflect noble friend Lord Marlesford and other Members of significant changes in the locality—for example, if a your Lordships’ House that I entered the Chamber motorway has been built nearby. 1599 Council Tax Valuation Bands Bill [HL][LORDS] Council Tax Valuation Bands Bill [HL] 1600

[BARONESS WILLIAMS OF TRAFFORD] Any change that creates a two-tier system will increase The other aim of the Bill is to make a very large the sense of unfairness rather than diminish it, and, as adjustment to the council tax banding charge ratios. I have explained, the Government have no intention of The suggested ratios show a steeper progression than conducting a full revaluation during this Parliament. those currently in place. On Report of the Cities and Above all, we must bear in mind that, despite Local Government Devolution Bill on 15 July, my arguments set out today, there is no public clamour for noble friend accepted that the increase from band A to change in the bands of council tax or for a new band B under his proposals would produce an increase revaluation. Collection rates remain extremely high, at of 33%, compared to only 17% under the existing 97%, which does not create the picture of a population arrangements. That does not strike me as an increase that considers it unfair and in need of fundamental in fairness. At the top end of the scale, for the highest reform. value properties, the tax paid would be 42 times the Given the unfairness of the proposed changes to value of a band A property. I know that my noble council tax and the logistical difficulties of implementation, friend may disagree, but that creates the very picture I must express my reservations with regard to the Bill of a punitive mansion tax, penalising those households and reiterate the Government’s firm and abiding living in larger homes simply because they have been commitment to protecting hard-working taxpayers from bought or sold since 2000. That is of course something the financial pressures of high council tax bills. which the Government have long opposed, and we see no reason to change our position. Looking beyond the numbers, however, I remind 11.08 am my noble friend that council tax is intentionally not a wealth tax. It is not the domestic rates but rather a Lord Marlesford: My Lords, I thank everybody hybrid property and personal tax. It is a tax which who was kind enough to take part in this debate. I very aims to raise income for the council to help to fund much appreciated the general feeling that it was worth services, taking account of the value of a person’s proceeding along the sort of lines that I have been home and their personal circumstances. Local council thinking on. I felt particularly encouraged by what the tax support goes even further and takes account of noble Lord, Lord Desai, and indeed the noble Lord, their income. Council tax is deliberately not a version Lord Kennedy, said: that it is worth considering in this of the old domestic rates, and the use of bands, rather way. than point values, and the moderate ratios between I was much more disappointed than I expected to bands reflect that as much as the inclusion of personal be by what the Minister said. It was really rather sad. circumstances. A lot of quite irrelevant points were made. I do not A number of noble Lords have talked about an blame her; she was saying what she had been told to additional band, band H, for expensive properties, say. I quite understand the way that the system works. and it seems an attractive proposition. It would cost I will not go into all the inaccuracies, but there is no less than a full revaluation and it would get at the question of forming a new band. Other points were highest-value homes. However, there are a number of made which we will discuss in Committee, because logistical problems with such an approach, even beyond they are mainly Committee points. the principle that more bands are not needed. The point about stamp duty is a valid one. I made it The Valuation Office Agency does not hold specific myself to some extent—I think that there is a need, as information on the precise value of properties in any with all taxes, to get that balance right, as my noble band, only that they fall within that band. It would friend Lord Flight said. My noble friend Lord Sherbourne therefore need to reach a view about the actual point gave a general welcome to the Bill, but he is right that value of properties before they could be ascribed a we need to go into considerably more detail. It was new band. It would need to undertake a substantial good to be signed off on the economics of it by as data enhancement exercise to ensure that its physical distinguished an economist as the noble Lord, Lord property data were sufficient for the task and undertake Desai. He and I came into the House on the same day, an analysis of sales evidence. in the same list. In those days, the great and the good were put here for what they had done, and there were Newly valued properties could also be subject to others who had no particular merit but were put here appeals, causing lack of certainty for all involved. The for what they might do, and he and I were in that list. revaluation in Wales in 2005 prompted overall appeal In those days, there were 10 a year of those people. rates of about 5% of all properties. We would expect The system has grown in rather a different direction in similar or increased levels of appeals following a rather a large way since then. revaluation and the implementation of a new band in England. I was very grateful for what my noble friend Lord Brooke of Sutton Mandeville said. We must progress Although the above costs might not be huge, they it along the sorts of lines that he is talking about. My are significant, and in a time when money is tight and noble friend Lord Wasserman has considerable experience households are hard pressed, such a voluntary cost is of the sorts of things that I am trying to do, in unacceptable for the marginal change that it would devising methods to improve technical aspects of bring about. government. In fact, one of his great achievements is However, the main issue for me with the idea of an the invention of the police and crime commissioner additional band is that if we were to set in train a system, which is not relevant to the Bill but, despite revaluation of one set of properties, it would be likely what people say, is working extremely well, particularly to raise questions about the integrity of other bands. in Suffolk, where I come from. 1601 Council Tax Valuation Bands Bill [HL][11 SEPTEMBER 2015] Property Boundaries Bill [HL] 1602

My noble friend Lord True knows an enormous Lord Flight: On both death and gifting, valuations amount about local government, and I take very seriously are required for IHT and capital gains tax reasons, so the points that he made. I do not think that there is an it is going to happen automatically, anyway. element of retrospection, in the sense that at any moment, when a system is introduced, it will apply to Lord Marlesford: Exactly, there are valuations in people in the form that it is introduced. Rather luckily, those cases. But there is a very big difference between the date on which the Land Registry started to have its doing it just for those and doing it for everything. The full record was April 2000, which means basically argument has always been that we cannot have a that— complete revaluation. The Minister used again that very old argument, which I reject, and I have tried to meet it by saying that, fortunately, we have the Land Lord Trefgarne (Con): I am sorry to interrupt, but if Registry and, fortunately, for well over half of dwellings my noble friend would point forward, rather than at the moment, we have the actual prices that have addressing my noble friend Lord True directly, we been paid. As for the poorer people at the bottom of could hear what he was saying. the market, very few people at that end will find that they pay a higher council tax. The movement in my banding from £40,000 to £250,000 would include virtually Lord Marlesford: I am so sorry. It is rather fortunate all the people in band A anyway—it is very unlikely that the date of 2000 was the date when the full Land that people would find themselves in band B. Quite a Registry started, because that is basically before the lot of the people currently in band B will remain in big explosion in prices. Therefore, there would, in band B, because that goes up to £500,000. So there is a practical terms, be a very limited element of retrospection. certain automatic adjustment from the price mechanism and the market in that respect. Lord True: I should explain retrospection, since my I shall not continue now, because a lot of these noble friend Lord Marlesford is on the point—and points need to be studied in detail. I hope that the my noble friend on the Front Bench made the same Government will show themselves perhaps a trifle point. What is proposed, if it is going to look back to more open-minded, rather than merely trying to produce anybody who bought a house before 2000, is to tax old and jaded arguments and persuade some unfortunate people on their past choices and on potentially capricious Minister to put them forward for them. I ask the values. I do not think that that is a very fair way in House to be graciously prepared to give this Bill a which to proceed. In that sense, it is retrospective but, Second Reading. obviously, it would come into force and go forward. Bill read a second time and committed to a Committee of the Whole House. Lord Marlesford: The point that I was trying to make on that is that, for many people already on the register, there would probably be very little difference Property Boundaries (Resolution of in bands, because they would have bought their property Disputes) Bill [HL] before the big explosion. To be honest, I think that the Second Reading people who had just bought a property at a huge price would be among those who I would be content to pay 11.18 am a much higher tax. So, yes, of course it would apply. Indeed, from now on until this measure comes into Moved by The Earl of Lytton force, which I hope that it will, people will be able to say to themselves, “Well, if this comes into force, it will That the Bill be now read a second time. do so on the price that I am paying now”. Therefore, people can take it into account. I do not feel that the The Earl of Lytton (CB): My Lords, in outlining the oligarch who bought a £20 million house in Smith Bill’s purposes, I have a particular interest to declare. Square with his jacuzzi and swimming pool can really First, I am a practising chartered surveyor, with have an enormous amount to complain about if he involvement in the realms of boundary, title and party-wall pays £42,000 rather than £3,000 in council tax. I think matters. I chair my profession’s specialist panel in this that he will be very pleased to be living in this country, area, and together we produce guidance notes for with all the benefits that go with it, compared to his members. I am also a property owner—although, own country, perhaps, and pleased to pay that small thankfully, without any current boundary disputes. ticket. I must express my thanks and appreciation to a Most of these points need to be dealt with in number of people, and first to Charlie Elphicke MP, Committee, but I would just say to my noble friend whose original Bill was introduced in another place in Lord True that yes, indeed, prices of houses are registered 2012, which started all this rolling. I am most grateful when ownership is transferred—and, indeed, death is to him for his advice and support. Secondly, I thank a transfer. The valuation made in that case is, of the group of what I might describe as the top five course, made by a valuer. But the number of dwellings professional boundary practitioners, under the leadership transferred at death are very few compared to those of Andrew Schofield, FRICS, who took that earlier transferred by market transactions, so a valuation is Bill away and substantially reworked it to produce the required then. That value is often argued about with document before us today. I particularly single out the capital taxes office, and all the rest. Mr Schofield because he has been my adviser, mentor 1603 Property Boundaries Bill [HL][LORDS] Property Boundaries Bill [HL] 1604

[THE EARL OF LYTTON] purposes, though invariably this is ignored by owners, and supporter on many of the technical issues relating who believe the title plan is to be taken literally. to this Bill. Thirdly, I must thank the staff of the Therein lies part of the problem. Public Bill Office for their unfailing assistance and One may be lucky as a practitioner and find a more courtesy. Their help with preparing the Explanatory accurate pre-registration deed plan lurking somewhere, Notes has been frankly beyond price. Perhaps I should but one quickly runs into the legacy of hand-drawn or also thank Lady Luck, who has favoured my entry in traced plans, plans not to scale, or plans defaced with the ballot, enabling me to introduce this Bill. overzealous outlining, subsequently photocopied and I also thank the Minister and his department for then re-coloured. This is a legacy issue, an historic being ready to listen, even if they do not entirely buy failing of those involved with conveyancing at a time the reasons why this Bill is needed, and, not least, I when, I am afraid to say, precise boundaries did not thank the Minister’s officials for meeting me yesterday matter that much. Now, with more intensive uses of at short notice. I note with appreciation and satisfaction land, competing neighbour aspirations and high property the support of my professional body, the Royal Institution values, it does matter, and often it matters very much of Chartered Surveyors, and, in particular, I thank indeed. Mr Martin Burns of the RICS for his advice and encouragement. I thank the Pyramus & Thisbe Club, Practitioners, the judiciary, the professions, local a learned society, mainly of surveyors but of other government and public bodies all agree that boundary professions as well, which has a particular interest in disputes are toxic. Evidence from Citizens Advice in this matter. It so happens that I am a member of that correspondence with me reveals that last year it dealt club. A number of individuals showed a positive interest with around 3,600 inquiries in England and Wales. in this. Finally, I express my fondest thanks to my wife Practitioners believe that with the cases they handle, for her patience about all the late nights when I have usually via solicitors, the total may be in excess of been dealing with this thing and have come home from 5,000 per annum, but I admit that no accurate records the office or from this House late in the evening. are kept. One well-known specialist practitioner recently advised that additional staff had just been taken on to I look forward to the comments of the noble Earl, deal with the increasing workload. Other practitioners Lord Kinnoull. His late father was a great supporter share the view that the problem is growing. of the Party Wall etc. Act, which I had the privilege of taking through your Lordships’ House in 1995-96. I Although there is, of course, access to forms of very much look forward to what he has to say and to alternative dispute resolution, such as mediation, hearing the noble Baroness, Lady Gardner of Parkes, arbitration or adjudication, the parties to a property who has such extensive knowledge of the residential boundary dispute can very seldom be compelled to world, its foibles and its areas of conflict. use them and even less to honour the spirit of the process. Furthermore, for voluntary ADR to work, it The fundamental premise behind this Bill is the needs to be in the common and reasonably balanced undeniable fact that boundary issues are a matter of interests of the respective parties—often even for voluntary technical complexity and, as such, are most amenable agreement on the process to be reached, let alone on to scrutiny by technicians first and foremost and to being bound by the outcome. There is seldom the legal overview as a second stage. This Bill is intended necessary convergence of financial strength, commonality to be in tune with the general direction of policy to of motives or intended outcomes to make this a reality. reduce conflicts and provide alternative non-judicial Sadly, owners of property can be very defensive about means of resolving disputes. This is the broader public boundary issues, which are often tied up with other interest hook on which the Bill hangs. I know that the matters: pets, trees, children, lifestyles, poor living Minister and his department are very much aware of conditions, poverty and maybe racial or cultural this. I hope he does not feel that I am trying to force differences. Bad or uncertain title can be added to that the pace by this Bill having its Second Reading today; rather heady mix. it just so happens that it is the date I was offered. Any consideration of property boundaries brings The fact that it is difficult, expensive and, in terms with it considerations of title, but title is a legal construct of disposing of property, a serious barrier to transactions based on the documentary and other paper evidence means that there are abuses, with some owners apparently and in many cases is now registered at the Land Registry. wilfully ignoring the mores of polite society and being However, on the ground, the proper interpretation of prepared to chance it to see what they can get away these factors is a matter of observation, identification, with or just in total denial that they might be in the physical facts, measurement and cartographic or other wrong. A neighbour, realising that the defence of their documentary interpretation. This is a surveying task. property carries a high tariff, has to either accept the For what is shown by a line on the registered title incursion or fight it to the bitter end. plan—plotted, as it is, on to a Ordnance Survey plan Once parties start down the road of litigation, it base—at best denotes the presence of a feature that a very quickly becomes impossible to reverse the process cartographer believed to be in the position shown, but because of the rapidly accumulating costs. These costs it is entirely silent about what that feature is on the can quickly overtake the original issue to become the ground. Moreover, Ordnance Survey has a standard real bone of contention, and frequently dwarf many disclaimer that a line on a map does not reflect a legal times over the economic value of the disputed land. I boundary, just as the Land Registry has a standard am inclined to give clients a bit of advice that the proviso that the title plan accords with what is known ferocity with which boundary disputes are pursued is as the general boundary rule. This rule ultimately boils in inverse proportion to the value of the land in down to little more than a plan for identification question, and after many years I have no reason to 1605 Property Boundaries Bill [HL][11 SEPTEMBER 2015] Property Boundaries Bill [HL] 1606 resile from that advice. Because of the effects on courts; give greater certainty of outcomes; substantially transacting property subject to a dispute—effectively reduce timeframes for resolution; provide a determinative it is a block on being able to dispose of it—there is no conclusion; and retain ultimate redress on matters of retreat: a conclusion must be reached some way or law to the courts. It would also do the same for other. easements and rights of way. However, being based on Practitioners’ experience is that a boundary dispute the construct of existing land entitlement, it would not that goes to court is likely to cost on average in excess address or determine adverse possession cases, though of £100,000. When coupled with the costs of the it might clarify just how much of the possession was winning party, this can be ruinous for the loser, and actually adverse. It seems to me that if the boundary is most specialist practitioners are aware of cases where uncertain, you cannot log the degree of your adverse a party has been forced to sell their property to meet possession. As I said earlier, though, it is in line with the bills. While it is, of course, a free world in which a the general thrust of public policy, which I know to be fool and his money may be deemed to take their espoused by the Minister: that these cases should be chance or be parted, I submit that it is also the duty of kept out of the courts at all costs. It is a public interest public law and administration to have such measures issue of a pressing and apparent nature, and I believe in place as will reduce, if not completely protect citizens that it can no longer be ignored. from, such activity, if not their folly. The Bill is in effect largely enabling legislation, empowering the Secretary of State to make orders We also know that the civil courts cannot cope with governing much of the finer detail. This is deliberate. present workloads and have been described in some The power is confined within the Bill’s purposes, so it quarters as sclerotic. Boundary cases in the courts would not afford a wider power—even less a Henry typically take years to reach a conclusion. I think it VIII provision—but it provides for future flexibility. It was David Powell, FRICS, a well-known practitioner provides for boundary dispute cases to be referred to and technical author, who once remarked that when technical experts first, rather than to litigators. It meeting a new client on a boundary case, he would would intercept certain existing cases before the courts warn that such disputes can be hugely expensive, so as well as providing a trigger mechanism where, before much so that for the same money one could have a action has been commenced, a boundary issue has very good family holiday in some delightful foreign arisen. It then provides for a dispute resolution process spot or even construct a swimming pool in the back that is very similar to that in the Party Wall etc. garden. He then added that the majority of clients Act 1996, which, as I have said, it was my privilege to ignored his advice, which is why he enjoyed many take through your Lordships’ House at the time. That foreign holidays and had a large swimming pool. I give Act has been in force since 1997. It is believed that that as an anecdote. Citizens Advice’s recent email to around 500,000 to 600,000 cases have been dealt with me observed that many of its cases relating to planning under its umbrella, and only about three cases of also have a boundary element but are not included in substance have proceeded to the senior courts and not its boundary inquiry figures. It is often in the planning many more than that to the county courts. It is a tried and construction of home extensions that the need to and tested formula in which surveyors are appointed know a boundary position with precision is most and charged with objectively considering the issues pressing. The definition of “title” has not kept up with and producing a document, known as an award, setting this, or with advances in measurement and positional out their agreement and determination. On matters accuracy. where they cannot agree, there is a third surveyor who The views of the judiciary in some high-profile will effectively act as a referee. The award so produced, cases have been quite illuminating. In the case of by either the two surveyors or one or other of them, or Moncrieff v Jameson before the House of Lords in the third surveyor, as the case may be, is appealable to 2007, the noble and learned Lord, Lord Scott of the courts. So there is judicial oversight. Foscote, noted the regrettable and surely unnecessary Unappealed awards, however, would require registration falling out of neighbours who had lived in amity for of the outcome with the Land Registry as a determined many years. Lord Justice Sedley, in the Court of boundary.The determined boundary is a specific process, Appeal case of Strachey v Ramage in 2008, similarly which means that, as opposed to the general boundary observed how defective conveyancing has led to war rule, the actual boundary in question—not necessarily being unnecessarily declared between neighbours, with the whole boundary of the property but the particular costs that vastly exceeded the value of the land. The boundary—becomes part of the registered title, and 1997 court case of Alan Wibberley Building Ltd v any future purchaser has due notice of that. So it Insley induced Lord Justice Ward to lament the dread makes that boundary definitive for the purposes of the with which judges would greet the label “boundary registered title, and the purpose of that is to avoid the dispute”. Later, in the same case before the House of case then resurfacing at some future date because of a lords, Lord Hoffman referred to them as a particularly change of ownership. painful form of litigation, with disproportionate amounts of money spent and claims often involving small and The Bill provides for the role of surveyor to be valueless pieces of land but, discharged by certain specified types of person. There are some precedents for this; for example, in some “pressed with the zeal of Fortinbras’s army”. agricultural arbitrations the arbitration function has So the Bill, or at any rate its principle, has the to be exercised by a chartered surveyor. The point is support of several key sectors. I suggest that it would that the exercise of technical expertise in boundary have the following advantages. It would restrict occasions matters must necessarily be done by someone with the of conflict; reduce costs; lower the burdens on the requisite training, subject to continuous professional 1607 Property Boundaries Bill [HL][LORDS] Property Boundaries Bill [HL] 1608

[THE EARL OF LYTTON] Boundary disputes of course happen naturally and development and with a proper policy of indemnity always will. Those who sit in tutorials learning Roman insurance. Only professional bodies such as those referred law at Oxbridge have to learn about them from several to in the Bill encompass all of these and monitor them thousand years ago, and Citizens Advice has advised year on year. that last year alone it was giving advice on 3,700 such To summarise: I believe that the Bill, or something disputes. I dare say that there were many more. like it, would defuse many potentially contentious The situation in England and Wales at the moment situations; provide orderly and more predictable outcomes means that such disputes are extremely expensive to to cases that have become contentious; reduce costs; sort out and very slow. They give rise to blight on an and substantially reduce timeframes from years to affected property, and that blight is expressed both in months. A typical party wall case, for instance, is the saleability of the property and in the ability to normally dealt with in a matter of a few months, raise mortgage finance on it. They give rise to problems seldom running into years. More to the point, it would between what one might term big party property contain the risk and reduce the heartache, stress and owners and small party property owners because the bitterness of these often very emotive situations. I big party will be tempted by use of wallet to be, believe that the courts would thereby be freed up. It frankly, unfair to the small party, and abuses can and would prevent serious and protracted blocks on transacted do happen. They also clog up the courts, about which property and, with that, the corrosive risks of attendant I shall say more in a second. uncertainty. It would be flexible and, as I have suggested, reasonably future-proof. I feel that the Bill is in line with a general policy in There have been some criticisms of and comments life of trying to provide better access to justice for on the Bill, and I will address one or two of them. people. It would speed things up and produce much First, it has been said that it would somehow cut lower costs. It would also blunt the abuse weapon, to across title issues. For the reasons I have already which I have just referred, between larger and smaller stated, I do not believe that that is the case. It has also parties. been suggested that it is unnecessary, but I believe that I have much direct experience of the Party Wall etc. I have made the case for its necessity, even though the Act 1996, both as a private individual and corporately. numerical incidence of such cases may appear low in At least two of the things that I have been involved in statistical terms. It has been suggested that the Bill have become very contentious indeed. I feel that, after would sit ill with adverse possession cases. Again, I do nearly two decades of it being in service, the one thing not believe that the Bill trespasses—if I can use that that one can say is that the mechanism provided under term—on that territory. that Act really works well. It has been suggested that there are other suitable forms of dispute resolution. Sadly, this does not seem One party wall surveyor, who I think is the chairman to be the case because, as I say, the parties to a dispute of the Pyramus & Thisbe Club and who has been in cannot be obliged to use them or adhere to the outcomes. practice for more than 25 years, told me proudly that It has been suggested that the Technology and he has never had to go to a third surveyor in his line of Construction Court, the judicial body to which the work. There is a very clear reason for that, which is Bill proposes that an appeal be made, is not the that to be a successful surveyor you have to have as a appropriate forum for that. I have had some very core skill relationship management; otherwise, you helpful email correspondence with Judge Anthony simply will not get any clients. That ability to have Edwards-Stuart, who is in charge of the Technology relationship management is, I am sure, at the core of and Construction Court. He said that it was not the being able to bring together parties whose feelings right forum, but very helpfully suggested that perhaps often run very high and at the core of being able to get the Bill might merely refer to a right of appeal to the a deal done. High Court, leaving the Heads of Chancery and Queen’s The noble Earl mentioned previous criticisms of Bench divisions to work out which court should actually efforts to bring forward legislation of this kind. There deal with the appeal. I am very happy to accept that is one more criticism, which is that surveyors lack legal sound advice. expertise. I think that is a weak point and I shall make It has been suggested that the definition of “surveyor” three counterpoints, although there are more. The first may need tweaking—funnily enough, because it makes is that, very often in these disputes, the issues are not a technically incorrect reference to “engineers”. Again, legal but factual. A surveyor with gum-boots on is I am very happy to tweak that and oblige by dealing probably much better suited to facilitating a resolution with that in an amendment. I believe that these and in a dispute than someone sitting in a lawyer’s office. other matters can be dealt with by amendment to the The second point that I make in rebuttal is that Bill. With that, I beg to move. surveyors can and do employ a lawyer if a legal point comes up. Indeed, in one of these very contentious 11.38 am cases that came up, precisely that happened. Both surveyors immediately wanted to instruct a lawyer on The Earl of Kinnoull (CB): My Lords, I congratulate a very arcane point. Legal advice was taken and the noble Earl on bringing the Bill to the House, the prepared, and the dispute was eventually resolved. second in his suite of “neighbourly matters”legislation— the first being, as he said, the Party Wall etc. Act 1996, The third point concerns the judiciary. We have had of which more in a second. I welcome the very clear various quotations and in fact the law reports are reasoning that he has just set out. littered with interesting quotations from the judiciary 1609 Property Boundaries Bill [HL][11 SEPTEMBER 2015] Property Boundaries Bill [HL] 1610 about how little they enjoy boundary disputes. I have a general would be relieved to know where to go to get quotation from Lord Justice Mummery in Bradford v this sort of advice. The party-wall system is well James in 2008: known, and something similar, as proposed in the Bill, “There are too many calamitous neighbour disputes in the would definitely have a very good effect. courts. Greater use should be made of the services of local I am also delighted to speak after the noble Earl, mediators, who have specialist legal and surveying skills”. Lord Kinnoull, because I served with his father for He went on: many years on the Woolwich Building Society board. I “Litigation hardens attitudes. Costs become an additional held him in very high regard, and I hope and trust that aggravating issue. Almost by its own momentum the case that his successor has the same ability. From the sound of cried out for compromise moves onwards and upwards to a it, that seems very likely, and I hope that we will hear conclusion that is disastrous for one of the parties, possibly for more from the noble Earl. both”. I think that the judiciary would certainly want to try I like the fact that the Bill proposes the establishment to export a lot of boundary disputes to another method of clear and simple processes. They can be understood of resolution. by ordinary people in the street or by a neighbour who has a boundary issue with you. The noble Earl, Lord In summary, I agree very much with the noble Earl Lytton, mentioned that people are terrified of getting that the current arrangements produce disputes that involved in something where the costs are unlimited. go on for too long, are too expensive, are open to People can even find themselves losing their properties abuse—there are instances of abuse—and clog up the after they have taken on a legal challenge. Qualified courts system. I have three very short questions for the surveyors are respected and valued. Minister. First, does he agree that it is preferable to do something about this issue now than to let the status I think it was mentioned that there would be a code quo be? Secondly, does he agree that the Party Wall of practice, and I feel that that would be very important. etc. Act mechanism has been a great success over its Of course, the Government and Members of this nearly two decades? Thirdly and accordingly, does he House will probably have an opportunity to look at agree that such a mechanism could successfully be any code of practice that goes with the Bill, and it will applied to other boundary disputes to the benefit of be important to consider it in detail. However, it is the all? sort of thing that people are used to. They like to know that there are procedures that they can follow and understand. Technical procedures have a complexity, 11.44 am which the noble Earl mentioned, and therefore you need to know where to go to get the right advice. I Baroness Gardner of Parkes (Con): My Lords, I stress that I very much support non-judicial means declare at the outset my property interests, which are that work. If they do not work, you can find yourself in the register. in an expensive situation. However, by that time, you I support the Bill for two reasons. One is that I will know a little more about the situation and might think it is a very positive and good idea, and I like be more willing to agree to something. I certainly what is in it. The second is that I have huge respect for believe that to be the case. the noble Earl, Lord Lytton, and his expertise in this I do not intend to go on at great length because the field. I am a qualified dentist but I am not a qualified issue is clear-cut and the proposal is good. The case anything in terms of property, other than having has been presented in great detail by the noble Earl, experience of being a sufferer of people who argue Lord Lytton. It is worrying that every politician seems about something and then it ends up in court. I found to be pushing the public more and more into litigation. myself in a situation where, although the case was Instead, simple procedures such as that proposed would withdrawn and ruled to be completely out of order, avoid much of that. It would also do away with the my legal bills simply to have the case withdrawn and acrimony which it is terribly sad to see develop between have it vanish from the list were horrendous. people who have been neighbours for years, and have Therefore, I support something that is practical and got along well; suddenly there is bitterness, which is easy to operate, as well as being a system in which the not forgotten and lives on. public can have confidence, as I believe they can as I strongly support the Bill. I will not go on any there is a parallel with the party-wall procedures. I more because everything that needs to be said has and have never had any problem with party-wall procedures; will be said here today. I have found them very effective. I think that this country is tending more and more to push out smaller self-help systems in favour of putting us all into court. 11.50 am I am very opposed to that. The leasehold valuation tribunal, where you could take your case and you were The Earl of Erroll (CB): My Lords, I want to say a told that it would not cost you more than £500, was couple of brief things in the gap. A dispute such as thrown out. Now, it costs you much more than that this happened to my family and it would be useful if a even for an appearance. I understand that employment proposal such as this covered it, although I am not law has gone the same way in that you can no longer sure whether it does. handle cases yourself. I think that there are many very What happened was that there was a privately good things about people being able to deal with their owned lane with a verge along it. The title deeds to it own cases with the benefit of help from someone such were probably lost in the mists of time. No one could as a qualified surveyor, who is well qualified and find them and it did not really matter. However, the understands the process. I believe that the public in people who owned land along the lane sold off building 1611 Property Boundaries Bill [HL][LORDS] Property Boundaries Bill [HL] 1612

[THE EARL OF ERROLL] are no areas where it could be improved and refined in plots. The trouble is that the chap at the end of the your Lordships’ House, and I hope we will have a day lane, where it joined the highway, then put in a claim in Committee to do that. for adverse possession over the verge, which the Land Registry accepted, even though there was no fence As has already been outlined, the Bill makes provision along the verge edge. The registry said that the applicant for the resolution of disputes concerning the location had mown it or whatever, and agreed to the application. or placement of boundaries and of private rights of The challenge is that the water meters for the entire way relating to the title of an estate in land. It seeks to lane are at the end of it. That is all right because an do this by requiring the owner of land who wishes to existing right can be proved, and the water for all the establish a boundary to serve notice on the adjoining other properties down the lane runs under it. However, landowner. If the adjoining landowner does not specifically the owners of those properties have no right to dig up consent to the notice, a dispute is deemed to have another person’s land—or apparently they do. We arisen. The dispute is then resolved by an agreed understand that there is probably a right to maintain surveyor or, where there is no agreed surveyor, three the water pipe; therefore, although adverse possession surveyors who shall determine the precise location of over the land was granted, there is probably also a the boundary or location and extent of the private pre-existing right to use of the lane. right of way. I very much agree with the noble Baroness, That may be fine, but no one is sure where the Lady Gardner of Parkes, that too many matters are telephone lines, sewage or other things run. What is driven towards the courts, and the Bill gives us a clear under there? And what happens when one wants to and straightforward way in which to resolve these put in something new, such as broadband, when there disputes. is a need to run a fibre-optic cable under the lane? Can you do this? The answer is probably no because the The matter is not to be questioned in court except owner has adverse possession, and I am not sure how through an appeal to the Technology and Construction fair that is. The challenge is that because the Land Court, or perhaps just the High Court, and if no Registry has accepted the application and registered it, appeal is made within 28 days, the award is submitted the situation cannot be disentangled. Should one be to the Land Registry. The Secretary of State shall by able to? regulation approve a code of practice that would set out the form and manner in which the documents are I merely describe the situation; these disputes get to be served and used under this procedure. Where a complicated and there needs to be a simple way in party to the dispute seeks to disrupt or not co-operate which to sort them out. Perhaps issues such as this with this process, they would be guilty of an offence could be incorporated within the scope of a Bill such and, on summary conviction, liable to a fine. as this. It may be too difficult; I do not know. However, unravelling such issues should be possible because it is I am assuming that the Bill is not going to receive easy to make mistakes, particularly when no one knows an enthusiastic welcome by the noble Lord, Lord the precise position. This issue arose partly because Faulks, but I hope that he can recognise that this is a there was no duty to inform the people who lived up real issue—a real problem—and that this is an attempt the lane about the fact that adverse possession was to reduce the costs and have these boundary disputes being registered because there was no apparent interest determined quickly and efficiently for as little cost as in it. I leave noble Lords with that other difficult possible to the parties involved. The noble Lord on a problem. previous occasion has said that this proposal would not always return beneficial results and suggested that 11.53 am this could be due to the adversarial nature of these disputes and the potential lack of legal expertise held Lord Kennedy of Southwark (Lab): My Lords, I by the appointed surveyors. I agree with the points thank the noble Earl, Lord Lytton, for bringing this made by the noble Earl, Lord Kinnoull, in that respect. Private Member’s Bill forward for debate today. He is If the Minister intends to pursue the opinion he stated a man of considerable expertise in this area, and the previously, perhaps he could also address the argument intention of his Bill is to resolve property boundary that it is the very expertise of these surveyors in disputes at the earliest opportunity and with the least determining these matters that in fact would make the cost to the individuals concerned. That is a very welcome likelihood of successful appeal proceedings less likely. intention indeed. That is because the determination will have been made We are all aware that matters concerning boundaries by a qualified professional who is expert in their field, can lead to highly charged and protracted legal following a code of practice set out by the Secretary of proceedings, which can be extremely expensive for the State on how these matters are to be determined. parties involved and certainly far more expensive, as the noble Earl said, than the value of the land in It would also be helpful to your Lordships’ House if question or the boundary in dispute. That situation is the noble Lord, Lord Faulks, said that he is of the of benefit to no one and one we all should all be view that this and a combination of factors would concerned to remedy. mean that a high number of appeals is likely. That We had a useful debate on this very issue on 15 January would not be beneficial. Does he expect more boundary this year, led by the noble Earl. Being able to move dispute appeals to appear before the courts, or would forward quickly and consider proposed legislation in there be fewer appeals but not sufficiently few to this area is welcome progress. I generally welcome the justify making the change proposed in the Bill? How Bill and what it proposes. That is not to say that there did he and his department come to that conclusion—if, 1613 Property Boundaries Bill [HL][11 SEPTEMBER 2015] Property Boundaries Bill [HL] 1614 indeed, that is the conclusion? Will he share that Dover, Charlie Elphicke. In the light of the concerns information with your Lordships’ House by placing a that that raised, the Government decided to carry out copy in the Library? an initial scoping study, the results of which were It may be that Minister is absolutely right, but I published on 15 January this year. The core conclusions should like to understand what is behind that thinking of the scoping study were that there would be merit in if he is going to put forward arguments such as those the Government carrying out further work to assess he advanced in January. With those questions to the the feasibility of improving a number of aspects of the Minister, I bring my remarks to a close and again current system, including, in particular, the use of thank the noble Earl, Lord Lytton, for bringing this mediation and expert determination, the spreading of matter before your Lordships’ House. It is a valuable best practice and the provision of better information, contribution to the debate on these matters and a but that more radical reform, such as that proposed in pointer to where we need to make improvements. this Bill and its predecessor, would not currently be justified. The noble Earl’s Bill differs in some important 11.58 am respects from its predecessor and, in particular, extends The Minister of State, Ministry of Justice (Lord to disputes about the location and extent of rights of Faulks) (Con): My Lords, I congratulate the noble way. These were not considered in the scoping study to Earl, Lord Lytton, on securing a Second Reading for which I have referred. his Bill on this important issue. Before I update the House on the steps the Government As the noble Lord, Lord Kennedy, indicated, we have taken since the publication of the scoping study had a debate, initiated by the noble Earl in January in considering improvements in the current system, I this year, in which many of the issues that have been would like to focus on what we see as the core difficulties discussed today were canvassed. That is nothing but to with the approach proposed by the noble Earl. the good. Similarly, I have had an opportunity to meet Responses to the scoping study confirmed that with him and others who are concerned with the issues boundary disputes can arise for a number of reasons. that the Bill generates. I am grateful for that opportunity, Although some disputes may follow an unprincipled and for the noble Earl’s acknowledging his engagement unilateral annexation of a strip of land, many more with officials in my department. will derive from two honestly held beliefs—or fairly The Bill’s core aim is making it easier to resolve honestly held beliefs—as to where the boundary lies. boundary disputes. It proposes to do this through a At the root of these divergent views will frequently lie system like that adopted in the Party Wall etc. Act a conveyance that is poorly drafted or, at least, does 1996, which would require disputes about the exact not define the property to be transferred with sufficient location of a boundary between adjoining properties clarity and precision. Because of this, such disputes in England and Wales to be referred to a surveyor or will ultimately hinge on the legal question of who surveyors acting as independent adjudicators for final owns a particular piece of land or is entitled to exercise determination, subject only to a right of appeal to the a particular right of access, and will fall to be decided Technology and Construction Court. on the interpretation of the evidence in the light of the Pausing there, I note that the noble Earl has been in law. In particular, the outcome will depend on the communication with Sir Antony Edwards-Stuart about interpretation or construction of legal documents, the suitability of the TC court as a venue for appeals. such as conveyances and the plans incorporated in He has indicated that he does not think it appropriate them. but makes some useful suggestions. I am sure that, if I do not, in any way, wish to downgrade the very the Bill were otherwise to proceed, the precise venue substantial contribution that surveyors can and do for an appeal is something that could be satisfactorily make to the resolution of these disputes. It is of course concluded. the case that judges will often rely to a considerable The Bill also proposes to apply this system to extent on the advice and expert evidence that surveyors disputes relating to the location and extent of private provide. rights of way. In answer to the question raised by the noble Earl—is The noble Earl considers that the procedure proposed a boundary line a technical issue or a legal one?—a in the Bill will make dispute resolution simpler, faster technical assessment of where a boundary lies is, in and more cost-effective. These are laudable aims, which part, a surveying exercise. It would be unusual not to the Government share. Indeed, we have made, and consider the lie of the land. However, this is not the continue to make, considerable efforts to control the whole story. The line of a boundary is ultimately a cost of civil litigation to ensure that the costs incurred legal issue. I note the distinction that the noble Earl are proportionate to the subject matter of the dispute. has made but am afraid that I am not entirely convinced However, we have significant reservations about the by it. extent to which the proposals contained in the Bill The kind of dispute with which we are concerned is would in fact improve matters. Indeed, we are concerned one that the courts and the land registration division that they could have the unfortunate effect of making of the property chamber of the First-tier Tribunal are the resolution of these disputes more complex and designed to determine. I entirely agree with all speakers costly than at present. in this debate who confirmed that surveyors have great A similar Private Member’s Bill relating to the expertise in this area. However, a surveyor, no matter resolution of boundary disputes was introduced in the how expert in technical issues, will not be able to give a other place in 2012 by the honourable Member for ruling that is conclusive in legal terms and will not 1615 Property Boundaries Bill [HL][LORDS] Property Boundaries Bill [HL] 1616

[LORD FAULKS] surveyors are often particularly useful in resolving necessarily have the legal expertise to deal with the these disputes because of their skills in relationship complex legal issues that might arise; of course, I management. That, of course, is a valuable quality in include adverse possession in this. This in itself would any profession, as I am sure he would agree. make it likely that many decisions would be appealed—this The noble Earl said that the disputes are often is my answer to the point made by the noble Lord, factual, not legal. I agree with him to some extent. Lord Kennedy. That prospect becomes even more They are a bit of both: both fact and law. He referred, likely when one takes into account the considerable as did a number of other noble Lords, to the fact that bitterness and antagonism that such disputes can generate. the judiciary tend not to welcome such disputes. That I agree with all noble Lords who have expressed the is true. In my own experience, I have seen that judges, view that it is far better that these matters are resolved knowing that they are facing a boundary dispute, do out of court by simple arbitration or the involvement, not jump for joy at the prospect of the decision they perhaps, of one surveyor in a relatively informal context. will have to make. But not all judges, despite the However, as a number of noble Lords have pointed quotations that we have received, share this lack of out, the reality is that these disputes can escalate and enthusiasm for boundary disputes. Indeed, the noble often involve costs that are out of all proportion to the and learned Lord, Lord Hope, who spoke in the amount in dispute. I fear that the mere interpolation debate in January, told the House that he found them of a process, which this Bill envisages, will not prevent extremely interesting. He also, valuably, pointed out those determined to see these disputes carried out to some of the advantages that there were in Scotland in the bitter end. resolving these issues, and in his careful consideration The comparison with party-wall cases is of course of the noble Earl’s Bill said that, important. However, unlike party-wall cases, boundary “I am not entirely convinced that making it compulsory for every disputes are generally likely to produce a winner and a such dispute to be resolved by reference to a panel of surveyors and excluding the courts entirely—as I think the draft Bill seeks loser. Therefore, the chances that a loser will be determined to do—is either necessary or desirable. There will be cases where to vindicate his or her view of what is right by bringing the title deeds alone will provide the answer and it may be that an appeal are high. A rigid system requiring referral in agreements can be reached; but I am not entirely sure that all cases at an early stage to the process, as set out in understanding these deeds is within the exclusive competence of a this Bill, could also serve to raise the stakes in the surveyor. There is then the problem of how to deal with other dispute, increase hostility and entrench attitudes. evidence about the way the property has been used, which may be hotly disputed and requires analysis, presentation of evidence, Taken together, these points would mean that the cross-examination of witnesses and so on. There is also the Bill would simply add a further layer to the proceedings, matter of adverse possession, which could raise very difficult which would increase the costs involved rather than issues”.—[Official Report, 15/1/15; col. GC 267.] reducing them. In addition, in some cases, the early The noble Earl, Lord Kinnoull, asked me three appointment of experts could itself front-load costs questions. I think that I have dealt with the party wall where the dispute might have been resolved in other issue and the comparison, which I respectfully suggest ways. only goes so far. On the status quo not being satisfactory, We believe that a more effective and proportionate we are well aware of the difficulties and, as I have approach is to look at practical procedural improvements indicated, are considering them. to the current system, rather than undertake a radical I am sure that many noble Lords have similar overhaul. With that in mind, we are exploring the experience of potentially difficult and expensive disputes scope for improving court and tribunal procedure, to that of my noble friend Lady Gardner, and the encouraging the use of mediation and expert Government share her desire to do all we can to limit determination, and improving the availability of the expense and heartache which such disputes can information on ways to settle disputes. We are in the cause. The noble Earl, Lord Erroll, spoke of the process of developing firm proposals in the light of immense complexity that is sometimes involved in our discussion of these issues with the relevant bodies. such disputes. I cannot of course comment on the As we announced in the report on the scoping study, particular problem that he outlined in detail, but I we aim to announce our emerging conclusions before detect that what he was suggesting was that, if there is the end of the year. to be a change in the law, it would be good if it I note, of course, that the noble Earl quite fairly embraced as many of the potential difficulties such as said that the date for the Second Reading of his Bill those which he has described. was rather beyond his choice. I think he might accept We are grateful to all noble Lords who have taken that, in some ways, he would have been a little happier part in this dispute. if it had come after the scoping report had been concluded. Be that as it may, I hope he will be reassured Noble Lords: Oh! by the fact that the matters raised by his Bill are receiving serious consideration by the Government. Lord Faulks: I mean this debate—I am most grateful. The noble Earl, Lord Kinnoull, with whom I shared I hope that my comments in this debate will reassure the experience of studying Roman law at Oxford—there the noble Earl, Lord Lytton, and others who have is some comparison with these issues—referred to the spoken that the Government are committed to ensuring inequality of arms that quite often prevails in these that boundary disputes can be resolved fairly and disputes and which can result in their escalation. It is effectively and to minimising the adverse impact of difficult to avoid that, whatever particular procedure adversarial behaviour and entrenched positions. We we adopt. He also quite rightly made the point that believe that the work that we are undertaking represents 1617 Property Boundaries Bill [HL][11 SEPTEMBER 2015] Succession to Peerages Bill [HL] 1618 a more effective approach than radical reform of the wits between, as we have heard, often very unequal law, which the Bill suggests. While the Government parties. I cannot help thinking that putting the will not oppose the Motion to give the Bill a Second consideration of the factual and technical basis before Reading, for the reasons that I have given we have the process rather than part way through would be of reservations about the changes to the law that it proposes. benefit generally. Clearly, the Minister has to have the construct of 12.13 pm due process and the proper sanctity of the court. He mentioned comments made back in January by the The Earl of Lytton: My Lords, I thank warmly all noble and learned Lord, Lord Hope of Craighead, noble Lords who have spoken. I hope that they will when he referred to excluding the court entirely. I excuse me if I do not go into a huge amount of detail suggest that that is a slight exaggeration of what is on what has been said, because all the matters that I contained within the Bill because that is not what it feel are important have already been covered. does. It leaves the backstop of judicial scrutiny in The noble Earl, Lord Kinnoull, and the noble place. I understand the issues and in a sense we are Baroness, Lady Gardner, raised two core issues: first, where we are, but I believe that the Bill has merit. We access to justice and, secondly, the question: if not this should continue to discuss it and therefore I ask the Bill, then what and when? That will perhaps be more House to give the Bill a Second Reading. apparent at the end of the year, when the results of the scoping study are better known and the department’s further consideration becomes available to us. I live in Bill read a second time and committed to a Committee hope, but at this juncture it is difficult to predict that. of the Whole House. The noble Earl, Lord Erroll, raised a different type of issue. I will ask him to forgive me if I do not go into detail on that either, save to say that questions of Succession to Peerages Bill [HL] orphan bits of land—verges, footpaths, left-over bits Second Reading from once larger landed estates and so on—are hostage to what can sometimes look like a land grab. With it, 12.21 pm the extent of public and private rights and easements are considerations that are often shorn from the resultant Moved by Lord Trefgarne successful registration of title by adverse possession, regardless of the physical presence of the representative That the Bill be now read a second time. bits of conduit underneath the ground. I thank the noble Lord, Lord Kennedy, for the Lord Trefgarne (Con): My Lords, this Bill has nothing support of his party on this issue. I think that we all whatever to do with membership of your Lordships’ share the fundamental aims that we are trying to House. It concerns only the arrangements for succession achieve. to hereditary peerages, which Peers may, or may not, I thank the Minister for saying that the question of wish to come to your Lordships’ House. It intends the reference to the Technical and Construction Court only to bring the succession arrangements into the can relatively easily be dealt with, and I believe that 21st century. that is the case. He then turned to his core reservations. Noble Lords will be aware that most hereditary He felt that expert determination or mediation was the peerages can descend only through the male line. Thus way forward but he regarded this Bill as radical. I do it follows that in some cases, where there is no male not entirely share that view given that the constituent heir, sadly therefore the peerage usually dies out. There bits of the mix, as I have explained, have been rather are a few peerages, mostly Scottish ones or very ancient well trailed and bench-tested for the past decade or ones, which can descend through the female line and more. That apart, the Minister still did not explain there are a very small number of other peerages where why under current terms enforcing expert determination the letters patent specifically allow descent through a and mediation, which is ultimately the only way of woman. My noble friend Lord Fellowes, when he corralling these things, can be dealt with other than by comes to speak, will explain from his position of being somewhat radical in approach. So we possibly special knowledge some further details on this matter. part company there, but it may be a matter for further There are two other points that I would like to discussion at some juncture. make. First, a number of your Lordships asked me I appreciate that an assessment of a boundary may why I do not propose that hereditary peerages simply only partly be a technical issue, but getting rid of the descend through the oldest child, come what may. assessment of what I might call the physical issues in Speaking personally, I would have no particular objection advance and dealing with it by way of surveyors of to such an arrangement. But the plain fact is that that both sides would refine the situation in a way that it proposition has been before Parliament on several tends to be refined anyway at the stage when, later on, occasions and has on each of those occasions failed to litigation is well under way. At that point, the trial attract your Lordships’ support. I therefore propose a judge and the protocols demand that a technical expert more modest arrangement. Modernisation of the be appointed by either side if they cannot agree a hereditary peerage should now begin and it is for that single joint expert and that a report be then produced reason that I bring this modest proposal before your which has to be exchanged or, at any rate, comes Lordships. Thus it is that the purpose of the Bill is before the court. However, at that stage, much powder to authorise succession through the female line in and shot has already been expended in the battle of those circumstances where the peerage would otherwise 1619 Succession to Peerages Bill [HL][LORDS] Succession to Peerages Bill [HL] 1620

[LORD TREFGARNE] the land. The peerage cannot claim to be exempt from disappear. I hope that your Lordships will agree that the basic principles of fairness that govern the rest of this proposition is right and proper in the present our society. circumstances and will agree to the Bill. In this context, as in others, discrimination against I make just one further final point. A peerage is not women is simply objectionable. It is entirely without the only hereditary title within our system. There are justification and we have tolerated it in relation to the also baronetcies and one or two other more obscure peerage for far too long. I therefore welcome the Bill hereditary titles, mostly within Scotland. I have received because it puts this issue on the parliamentary agenda. several representations from those representing baronets But the Bill, as drafted, is patently inadequate. who would like their titles, too, which like peerages It will need substantial amendment in Committee. descend only through the male line, to be the subject Clause 2(3) would allow a woman to succeed to a title of this Bill. Again, I would have no objection to if she has no male siblings. If she has younger male widening my Bill in that way, but I fear that any such siblings, they will have precedence over her. The noble amendments may be said to be outside the scope of Lord, Lord Trefgarne, said in a quite remarkable the Long Title and therefore out of order. That is a statement that his Bill aims to bring succession to the matter for the clerks rather than for me and I make no peerage into the 21st century—really? He said that his further observations. proposal is modest, but it will perpetuate sex discrimination There is a difference between abeyance of a peerage and for that reason it needs to be amended. and extinction of a peerage. It is a highly technical If the oldest child of the monarch now succeeds to difference and I would not claim to be an expert on it, the Throne, whether they are male or female, how can save to say that abeyance generally applies to the very it possibly be defensible to retain a position that the oldest peerages and may therefore come within the oldest male child of a Peer will succeed to the title? If scope of this Bill. I have nothing more to say in this Bill were to be enacted, then in the magnificent connection with this measure and I hope that it will creation of the noble Lord, Lord Fellowes, “Downton find favour with your Lordships. I beg to move. Abbey”, as I understand it the Earl of Grantham would now be succeeded by his eldest daughter, but only because he had no sons. However, a younger son 12.25 pm would retain precedence over an older daughter. That Lord Pannick (CB): My Lords, I congratulate the is quite indefensible. noble Lord, Lord Trefgarne, on bringing this Bill In his play, “A Woman of No Importance”, Oscar before the House and on doing so in such economical Wilde wrote: terms. “You should study the Peerage, Gerald … it is the best thing in No one could suggest that a Bill on this subject is fiction the English have ever done”. premature. The Sex Disqualification (Removal) Act It is time that we brought the peerage into the real 1919 removed sex discrimination in relation to the world. The peerage has hitherto treated women as exercise of public functions, or the holding of any civil being of no importance. This Bill, which is a modest or judicial office or post, or from entering or carrying improvement, would treat women as being of very on any civil profession or vocation. Yet here we are, limited importance. The peerage needs to do better nearly 100 years later, debating a Bill that will remove than that. I congratulate the noble Lord, Lord Trefgarne, some of the inequality—although, as the noble Lord on introducing the Bill and I look forward to noble said, only some of it—in relation to succession to Lords improving it in Committee. peerages. This is a quite remarkable situation. Women were given the same voting rights as men in 12.31 pm 1925. The Equal Pay Act 1970 and the Sex Discrimination Lord Fellowes of West Stafford (Con): My Lords, Act 1975 addressed sex discrimination in employment, I rise to support the Second Reading of this Bill, and I education and in the provision of goods, facilities and must immediately declare an interest. My wife was services. Even the Church of England, not known for born female, something of which I am very glad, but being in the advance of social progress, has now the fact remains that had she been born male, she provided for women bishops, and Parliament has provided would now be the fourth Earl Kitchener of Khartoum. recently that succession to the Crown no longer depends As it is, our law preferred to let this title, probably the at all on a person’s gender—see Section 1 of the most historic of any of the imperial creations, become Succession to the Crown Act 2013—and rightly so. extinct rather than have it be held by a woman. As the The only area of public life that I am aware of that niece of the last Earl, the reason she does not have that retains institutional discrimination against women is rank is only and entirely due to her sex. Of course, she the hereditary peerage. is expected to take on the duties of the name, to be I can think of only one argument in favour of such president of the Kitchener charities and to award the prejudice: that the hereditary peerage is so absurd and Kitchener scholarships, but the name she may not anachronistic an institution—why on earth should a have because she is female. And if noble Lords think I person’s status depend on that of his or her father—that find that extraordinary in 2015, they would be absolutely we cannot expect to apply basic principles of fairness right. The fact is that women born into titled families in that context. But that will not do. The peerage is not are non-persons. They have none of the legal status of a private club. Indeed, 92 hereditary Peers, of whom their fathers and brothers and none of their rights, the noble Lord, Lord Trefgarne, is a distinguished even if they are sometimes obliged to perform their example, sit in this House helping to make the laws of duties. It is an absurd and outdated situation. 1621 Succession to Peerages Bill [HL][11 SEPTEMBER 2015] Succession to Peerages Bill [HL] 1622

Of course, there are many, no doubt some in your have lived under for years, and so would their children. Lordships’ House, who would be happy to see the end It would mean that the financial arrangements that of hereditary titles altogether, but that is not what we have been designed to protect a large number of families’ are debating here. They exist at the heart of many interests would be wrecked, and that those same families modern institutions and they enshrine an attitude to would be facing an intolerable position, dividing siblings women that has no place in modern society. We may and bringing real unhappiness. hear that the exemption of women will bring these The Royal Family took advantage, very sensibly, of titles to a natural end more quickly, but it will not. a moment when the next three heirs—two then, but There are more than 800 of them, and especially the three now—were male eldest children and so nobody older ones will live on indefinitely without the intervention would be deprived of anything. By the time the new of a new law. It would be statistically impossible for a law will have any effect with Prince George’s daughter situation ever to arise where there was no heir to the or granddaughter, the public and the Royal Family dukedom of Norfolk, the earldom of Derby, the earldom will have had many years to make the necessary of Devon or many others. There may be an argument adjustments and to grow used to the plan. The peerage for abolition, but there is no plan to abolish them yet. would have no such luxury. Because of that—this is While they exist, are we prepared to tolerate the negative the point—as things stand, no such Bill will ever pass. status of women they represent across the board, with However, once the law has been changed to give the exception of a few Scottish titles and a tiny handful women at least some legal status within noble families, of English baronies? and once they are allowed to pass on the rights that An argument in this debate that always strikes me their brothers can pass on, I am reasonably convinced as questionable is when a speaker will say, “Why that public opinion will cease to regard female Peers as should we bother with this? Why spend useful time on anything very unusual and the climate will alter, perhaps it when we have more important things to do?”. This leading to further reform. But we have to take the first has the double benefit of conferring a place on the step, and this Bill is the only first step that may pass moral high ground to the speaker, showing how into law. unsnobbish and unfrivolous they are, while at the same time changing nothing and leaving women at Of course there will be losers, even in the proposed the bottom of the pit. But it does not wash because the scheme. No one will be stripped of a courtesy title, suggestion that holding a title is no longer of any and almost no one will have their financial arrangements importance in Britain today does not wash. It is still a disturbed since most Peers without a son nowadays privilege to hold one, and it is a privilege that is denied rightly prefer to leave their fortunes to their daughters, to women. whether or not they can control the descent of their title. But there will be heirs presumptive who will have It is true that there was a belief in the 1960s that by to yield the senior position in the succession to their stopping their creation, the status of the hereditary nieces or cousins. I would point out only that heirs aristocracy would soon fade and be replaced in terms presumptive have never enjoyed the security of heirs of public profile by the life peers, but this has not apparent. There has always been a chance that the happened. You will find holders of hereditary titles or Peer in question would marry again and produce a their wives on the boards of many, if not most, charities, son, thereby displacing a more distant relative. My chambers of commerce, universities and hospitals, to own cousin lost a baronetcy, which he had assumed say nothing of the Court, where almost every major was his until half way through his 20s, when a baby position is still conferred on a hereditary Peer or his boy was suddenly and rather surprisingly born. The wife. I am sure, indeed I know, that many of these father of the present Marquess of Northampton was people take their appointment seriously and do excellent 61 when his son appeared, no doubt putting a few work, but that it is clearly thought by the authorities noses out of joint. But even the displaced heirs will not that their noble names will add lustre to the various lose their rights entirely. They will merely have to step organisations is proof that a hereditary title is still back to allow a better position in the queue to their viewed by the public as conferring distinction, however female relatives who will have a senior claim—and illogical that may be. If, therefore, holding a hereditary what is wrong with that? title can be construed as a distinguished position and a privilege, how can we allow women to be excluded The advantage of allowing the revival of peerages solely because of their sex? made extinct in the present reign is twofold. It would seem harsh to exclude living women who would have Of course, there may be—I am sure there are—many had the right to succeed under the new system, and by of your Lordships who think that the trouble with my including them there can be no risk of opening the noble friend Lord Trefgarne’s Bill, as we have just running sore of legal action to defend their rights. heard, is that it does not go far enough and that the This change will, or should, allow all female heirs who peerage should follow the Crown’s example and simply were alive when the last holder of their family’s peerage have succession in order of birth, with the firstborn died to make a claim within one year of the Bill’s inheriting irrespective of sex. I do not propose to put becoming law. Of course, some will not, and many of up a stout argument against this because I believe in it. the extinct peerages were new and had no heirs, male However, I would point out only that there have been or female, but there will still be a number of them, several attempts to encourage some interest in the which is the strength of the clause. idea, but it never gets off the ground, and the reason is simple. An immediate change now to eldest child By the measure, there will immediately be a group inheritance would mean that a great many men would of hereditary lady Peers who will render the situation be stripped of their courtesy titles and the names they normal. It will not be necessary to wait for three-quarters 1623 Succession to Peerages Bill [HL][LORDS] Succession to Peerages Bill [HL] 1624

[LORD FELLOWES OF WEST STAFFORD] often go with other possessions which means that of a century for a sufficient number to build up to women can sometimes be excluded from the home make it ordinary.Of course, to quote Mandy Rice-Davies, they grew up in through the inheritance of a title by a I would say that, wouldn’t I? The fact is that my wife’s stranger—a distant relative from the other side of the situation does not make it any less true. The sooner world—because there are no boys in the immediate the female hereditary Peer becomes ordinary, the sooner family. That is not uncommon. Also, what should not these women are accepted within the traditional system, be underestimated is the influence that this system has and the sooner the climate may be right for further at all levels of society when women can still be left out reform. of inheritance entirely because that is the way things In short, if your Lordships believe there should be have been done. Nor should we ignore what continuing no area of our public life where women are made influence such gender discrimination has abroad. nothing, please support this Bill. If you would like to In terms of the Bill itself, it is worth noting that see total equality, support this Bill to get the process when we discussed this topic last at the Committee started, because if you do not, there will be no change. stage of the Equality (Titles) Bill, introduced by the If you believe that women are the equals of men and noble Lord, Lord Lucas, the year before last, with the that leaving them as non-persons in any part of our will of all sides of the House behind us, we were constitution is wrong, support the Second Reading of heading at the time the Committee stage was halted this Bill. In fact, your Lordships should oppose it only towards a greatly simplified Bill that stated simply that if you believe that it is quite correct for women to the eldest child of either sex was the one who would occupy an inferior position, and be denied all rights, inherit. In my view, that is the Bill that should go to on so public a stage. The choice, of course, is yours. the Commons, and which would stand the best chance of being passed. Clause 3(2) of this Bill, which still allows men to inherit before women, and is therefore 12.41 pm gender-discriminatory, must go. Surely it contradicts The Earl of Clancarty (CB): My Lords, I am grateful current equality legislation. to the noble Lord, Lord Trefgarne, for the opportunity There are those who say, “But what about the to discuss this issue. I have a hereditary title and I have expectations of young men?”—to which the reply is, a daughter who could inherit that title if the law were “What about the expectations of women?”. In changed. I should also say that my wife, the journalist contemporary times this cuts both ways. The hopes of Victoria Lambert, is a co-founder, with Liza Campbell young women are as valid as the hopes of young men. and Sarah Long, of the campaign group that wants to The previous Government said that this change would see gender discrimination removed from titles. be, We now have women bishops. Since 2013 women, “far more complicated to implement fairly”. including Dame Ellen MacArthur, can be members of The answer to that is clear. If the Government can sort the Royal Yacht Squadron. From this year, women this out for the Royal Family, with all the international can be members of the Royal and Ancient Golf Club complications involved, a simple, effective Bill can do of St Andrews, and this year as well, women competed the same for the other titles which the Crown owns for the first time on the same day as men in the and has responsibility for. equivalent Oxford and Cambridge boat race. These changes will not apply to all women; they are niche changes, but nevertheless significant ones for the advancement of gender equality. So it should be with 12.46 pm hereditary titles; women should have an entirely equal Baroness Flather (CB): My Lords, as noble Lords chance of inheriting a title. will have noticed, I am British but not English and I There are those, of course, who do not believe in look at a lot of things in a slightly different way. When the hereditary system at all because of its innate I came to your Lordships’ House in 1990, I was the unfairness and think that it should be swept away. Not only Asian and the only minority woman in this all of those people will be anti-monarchists, and it is House. The House was full of hereditary Peers, and I worth reflecting on the fact that the monarchy itself is was worried about this because I had not met any simply a part—the top part, certainly, but a part of the aristocrats before I came to your Lordships’ House. I wider system of hereditary titles. If hereditary titles wondered how they would treat me. I can tell your are unfair, so is the monarchy. They are part of the Lordships that I was treated better in this House by very same system. As long as we have the monarchy—and the hereditary Peers than I have ever been treated it remains hugely popular—the system as a whole anywhere else in my life. They became my friends—and needs to be dealt with in the same way that the my entertainment as well—and I learned a lot from monarchy has very correctly been dealt with through them. They had a great sense of humour and they had the Succession to the Crown Act. Otherwise, the system a light touch about life. I have to tell your Lordships remains inconsistent in terms of gender equality, which that I miss them and I have great affection for hereditary is unsatisfactory. Peers. The titles themselves are not abstract. They are the That is by the by. We are talking about the Bill. property of the Crown. It needs to be more widely When I saw it on the list I thought that I must speak recognised that the great majority of these titles and because I must support it. Then I read the Bill and I offices, which are owned by the Crown, and for which got really quite upset. I thought that I was going to it has responsibility, are gender-discriminatory. There support something that I have always wanted: the are significant wider ramifications. One is that titles eldest child inheriting regardless of gender. I cannot 1625 Succession to Peerages Bill [HL][11 SEPTEMBER 2015] Succession to Peerages Bill [HL] 1626 put it better than the noble Lord, Lord Pannick. He is It also drew attention to holders of hereditary peerages, the ultimate person for saying the piece. I am delighted noting that, with and endorse everything that he has said. “the way in which their titles are inherited, and its effect on the I am not sure about the other Bills because I am not gender balance in Parliament, remain matters of public interest”. very good with dates, but the other Bills may have My noble friend Lord Fellowes of West Stafford come before we decided on the monarchy. They may stated in a submission to the Hereditary Peerage have come before we had decided that the eldest child Association in 2008: will be the next monarch. That will make a huge difference in people’s thinking: if the eldest child is a “People will tell you how difficult it would be and how it girl, she will inherit; if the eldest child is a boy, he will would involve re-creating all the peerages from new. … When”— inherit. If they can do it, I cannot imagine that this in the 1700s— House cannot do it. “the Duke of Marlborough was needed for another campaign I listened to the noble Lord, Lord Fellowes, with and his only son was dead, a bill was introduced into Parliament interest. He is really worried about the situation of granting a new remainder allowing a unique form of female some of the boys: how are they going to live? How are descent to the existing title, without recreating it”. they going to manage? They will not have the amount As we have heard, my noble friend Lord Fellowes has of money that they would have had. In the old days now approved what are essentially the contents of this they got sent to the colonies, as we all know. The Bill, based on the Marlborough precedent. younger sons were all sent to the colonies. You have not got any colonies so we have to find some other way In the same submission, my noble friend Lord of finding employment for them. Maybe it will encourage Fellowes touched on his concern that, if nothing is them to become professionals and to become more done in this sphere, European law may step in with a able to fend for themselves. That also would not be a solution of its own. The noble Lord, Lord Pannick, bad thing. surprisingly did not mention it, but as I understand it In the case of Countess Mountbatten, Earl Section 14 of the Human Rights Act 1998 makes it Mountbatten did not have a son. It had to go through now illegal to discriminate on the basis of sex, where Parliament to pass the title to Countess Mountbatten. both sexes may perform the function required. Of course that is wrong. Viscount Whitelaw did not Discriminating against women solely on the basis of have a son and his title has died. It is quite right that their sex is also illegal. The noble Lord, Lord Pannick, that should not happen. If we want to make a change has also mentioned to me that, if a legitimate female we have to make it gender neutral, as the fashionable issue, where the peerage would otherwise become extinct, term is these days. It has to be the eldest child. Thank referred a case to the European Court of Human you very much. Rights, they could well have a chance of success. The organisation called The Hares—I think I see a couple 12.49 pm in the audience—may well pursue this route, or much worse could happen if Mr Corbyn gets into power. It Lord Northbrook (Con): My Lords, I welcome my is far less disruptive to peerages, in my view, to pre-empt noble friend Lord Trefgarne’s Succession to Peerages such a referral by enacting this Bill. Will the Minister Bill. As an aficionado of the topic, I declare an give the Government’s thoughts on the outcome of interest as my title will die out under current peerage such a referral, and their reaction to it? inheritance rules. I have a very capable eldest daughter who would be more than suitable to carry it on. I can understand the logic of Clause 3, which I believe that the Bill offers a way forward to would guarantee a batch of new Peeresses, making the prevent this extinction without seriously threatening peerage look refreshed and modern from the first the status quo for those peerages where there are male moment of the change, as opposed to having to wait heirs. It is better than Lord Diamond’s Bills of 1992 years for any alteration really to show, and 1952 seems and 1994, which proposed that hereditary Peers could a sensible date. It is striking that there are currently no petition the Crown to amend their letters patent so women on the most recent register of hereditary Peers that the peerage could descend to the eldest legitimate who have put themselves forward to be eligible as child, male or female. It seems more logical than my candidates for future by-elections. All the hereditary noble friend Lord Lucas’s recent Bill, which sought to by-elections since 1999 have been won by men. As of enable the succession of female heirs to hereditary now, only one Peer of the 92 hereditary Peers who peerages if the incumbent of the peerage wrote to the were allowed to continue in 1999 is female. Lord Chancellor to ask that this should occur. I prefer I have two other issues to raise. I think that there it also to Mary Macleod’s Succession to Hereditary should be an amendment extending the change to Peerages and Estates Bill in the other place, which baronets, although I take the point made by my noble included provision to remove male preference friend Lord Trefgarne about that being outside the primogeniture in succession to hereditary peerages. Title of the Bill. I am not sure either about the After the Succession to the Crown Act has passed, principle in the Bill of excluding a very close relative it seems only logical that appropriate change should such as a brother from inheriting a peerage. Ruling out be made for hereditary peerages. The House of Commons cousins and distant relatives is fair enough as their Political and Constitutional Reform Committee’s 2011 expectations are never high, but a very close relation report on the rules of succession to the Crown noted may be a step too far. As the noble Lord, Lord that the proposal to end the preferential treatment of Fellowes, stated, family financial arrangements could men in the line of succession had been, be seriously disrupted. There could be an argument “widely welcomed, and with good reason”. for an amendment extending the peerage succession to 1627 Succession to Peerages Bill [HL][LORDS] Succession to Peerages Bill [HL] 1628

[LORD NORTHBROOK] Lord Winston (Lab): I am very grateful to my noble brothers—a modification of the semi-Salic system, friend for allowing me to say a word. I want to be a although it has to be said that an heir presumptive has loyal member of a paid-up Labour Party. I suspect, never had the security of an heir apparent. although I do not know, that there are quite a few But overall I welcome this Bill wholeheartedly. It disloyal members. However, I do not understand the would merely put peerage succession on to the same argument here. Surely we are not talking about basis as the Crown used to be. I wish it a safe passage membership of the House of Lords or the size of the through the House. House; this is a different issue. We have to accept that we have to address that issue in a logical and rational 12.55 pm fashion. I understand that on the whole my party is Baroness Hayter of Kentish Town (Lab): I thank the not particularly favourably disposed to the hereditary noble Lord, Lord Trefgarne, for bringing this issue to peerage for whatever reason. However, that is not the House, if only to tease out the Government’s and, really what we are discussing here, is it? indeed, the Opposition’s, view on the issue. It is obvious that the Bill will not affect the size of Baroness Hayter of Kentish Town: What we are the House one way or the other, yet, of course, that is discussing is whether as a House we want to continue the big issue that concerns probably all noble Lords, as with titles and the privilege and status—I think evidenced by the debate that will take place here on respectability has been mentioned—and whether that Tuesday. The increase in the size of your Lordships’ is a priority. Surely, if we are to do anything, the House to 826 gives great urgency to reducing the priority is to do something about the peerages in this number of Members rather than suggesting ways of House. That is something my party would like to do bringing in a new category of Peer. Indeed, as we by removing by-elections for hereditary Members. know, the Prime Minister has already appointed in We want women, whether in this House or with the five years more than double the number of Peers that other titles they may earn, to get them by their own Labour did in 11 years, creating new Peers at a faster ability. The examples are the women who serve in this rate than any other Prime Minister since life peerages House. They may get damehoods before they get here. began. Therefore, it seems to me that the priority for We would not want those to be inherited, I assume, the House is to look at size rather than this issue. That because the awarding of a title is about what they have is partly for the sake of this House and how it works done for themselves. The point I am trying to make— but also, I have to say, because of the anachronism of perhaps ineffectively—is that surely the priority is for appointing Peers here not by virtue of their own more women, whether in this House or with other experience and attributes but those of their fathers, titles such as dame, to receive them by virtue of what grandfathers or even great-uncles. Therefore, ending they have done for themselves. The examples I want to the hereditary by-elections as any of the 92 places fall give are the people who have got peerages here on their vacant should surely be a better way forward. The own abilities rather than the abilities of some male calls I have heard today for maintaining the status of forebear. titled families are ones I did not believe I would hear in The noble Baroness, Lady Grey-Thompson, was a the 21st century. But more than that, as has been said, dame before she came here. She did not get that the flaw of the Bill is that it stands feminism on its because her father was a great athlete. She got it head. For the very pragmatic reasons that the noble because she had won 16 Paralympic medals, 30 world Lord, Lord Trefgarne, gave, it does not get rid of titles and the London Marathon six times; she chairs primogeniture for hereditary titles but says only that, the Women’s Sports and Fitness Foundation; and she where there is no man, a woman will do. was BBC Wales Sports Personality of the Year. The Your Lordships will have noted that there is only noble Baroness, Lady Benjamin, is an actress and one other woman speaking today, which I think says television presenter, and chancellor of the University something about how our sisters in the rest of the of Exeter. The noble Baroness, Lady Finlay, is past House feel about this issue. Perhaps they are not president of the Royal Society of Medicine and a present because they also regard this Bill as deeply consultant professor of palliative medicine. These are anti-feminist. It is saying, “Let us have some more women who have gained their titles—which happened women in this House”, of which I approve, “not for to bring them here; some of them had damehoods what they have to offer, their experience, knowledge, before—because of what they did. Those are the examples ability, insights, professionalism or anything like that I want to give. but because some male forebear either fought, bought— There are, of course, people such as the noble Baroness, Lady Harding of Winscombe, the chief The Earl of Clancarty: I accept entirely that hereditary executive of TalkTalk and named as one of the 10 most peerages will be removed from this House. Sooner or influential women. She happens to be the daughter later that will happen. However, this Bill has nothing and granddaughter of Peers, but has her title because to do with hereditary peerages in this House, as the of what she has done in her own right. noble Lord, Lord Trefgarne, said.

Baroness Flather: I know that I am the only other Baroness Flather: My Lords— woman speaking, and, as I said, I am not even English, but the noble Lord, Lord Pannick, and the noble Earl, Baroness Hayter of Kentish Town: Could I just Lord Clancarty, made the same points that I did. They finish with this example? I am arguing that the Bill did so very strongly and in some ways better than me. seems to be based on the continued assumption that 1629 Succession to Peerages Bill [HL][11 SEPTEMBER 2015] Succession to Peerages Bill [HL] 1630 women should not gain a title—recognition—because This latter issue—the equality of treatment before of what they have done but because of what a father, the law—is one that this Government take seriously in grandfather or great-uncle did. I give way to the noble every walk of life. As the noble Lord, Lord Pannick, Baroness. and others have said, during the last Parliament the coalition introduced what became the Succession to Baroness Chisholm of Owlpen (Con): I am sorry, my the Crown Act 2013, which removed, as your Lordships Lords, I think in this debate you cannot give way—you know, the male bias with regard to the descent of the just have to keep going. Crown. We therefore sympathise with the concerns over gender inequality in the area raised and discussed by your Lordships today. Baroness Hayter of Kentish Town: I am delighted to However, as your Lordships know better than me, get that bit of advice. The assumption behind this—that and as has been pointed out, addressing this area of because there are titled families the best way to deal discrimination means tackling a very thorny legal with that is to pass the title, where there is not a man, thicket. Over the summer, I asked my officials to give to a woman—is, in the 21st century, the wrong assumption. me the relevant debates on this issue. I rather regretted As a feminist and on behalf of the other women here that, as I got a very large pile of reading for my who have great experience in the trade union movement, deckchair. As I ploughed through those previous debates, for example, and who have won their spurs by their I must confess that I felt as if I was reading a mix of own efforts, I say that that is the way we should Jarndyce v Jarndyce and “Kind Hearts and Coronets” recognise women, not because of what their male with a good sprinkling of “Downton Abbey”. Indeed, forebears have done. If a woman wants a title, I say, as Dickens described Jarndyce v Jarndyce: “Do the same as anyone else. Go out and earn your spurs. Work in civil society, trade unions, business, “Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have academia, medicine or law”. That, surely, is the way died out of it”. to be recognised and to be valued in society. In the 21st century, that is the feminist way forward—not to The same could be said of this issue. inherit a title because of a male forebear. With that in mind, while it is obviously true that the succession of most peerages does not treat men and 1.04 pm women equally, one must ask whether the Government ought to be devoting time and resources, both of The Parliamentary Secretary, Cabinet Office (Lord which are limited, to addressing this extremely complex Bridges of Headley) (Con): My Lords, I, too, congratulate subject. Discrimination on the grounds of not just my noble friend Lord Trefgarne on securing this Second gender but race and age is clearly and sadly present in Reading, which has provoked an engaging, thoughtful many parts of society and, despite the efforts of this and at times entertaining debate. Among his many Government and their predecessors, continues to blight accomplishments, I know that my noble friend has the opportunities of many people—many more than spent much time supporting the excellent Brooklands those affected by the issues we are discussing today. Museum, which I thoroughly recommend to your When it comes to our approach to tackling discrimination, Lordships, where he has helped to conserve and restore addressing these wider aspects is the Government’s to life the gems of British motoring and aviation. priority. Today his intention and energy has turned to protecting I realise that these words will irk some of your and conserving that other part of our nation’s history, Lordships and those who have campaigned on the the peerage. issue that we are discussing. As has been mentioned, I My noble friend’s energy and tenacity is obviously see that a group called The Hares has been specifically shared by a number of your Lordships who have created to lobby for a change to the law to create spoken today. Although it is invidious to single out gender equality in the peerage by ending male anyone in particular, I thank my noble friend Lord primogeniture. I fear that to them I am yet another Fellowes for his passionate contribution to the debate. tortoise whose plodding is holding up progress but I He is clearly following in the footsteps of the great assure your Lordships that I am more than willing to Lord Kitchener and becoming the recruiting sergeant hear of ways in which this area of discrimination for this campaign. I can see the poster now: “Your might be tackled. Let us not forget that, in the end, the peerage needs you!”. tortoise wins the race. This debate reminds me that while a number of The fact is that the Bill would have a very limited your Lordships have spent many years looking into impact in addressing the fundamental issue here, namely this issue I am a mere novice, trying to get my GCSE gender inequality in the succession of hereditary peerages. on issues such as abeyance while many of your Lordships As the noble Lord, Lord Pannick, pointed out, Clause 2(3) clearly have doctorates on the subject, so forgive me of the Bill explicitly states: for stating the obvious and repeating a point made “Within each group of siblings”, before. This Bill, as its title suggests, is about the succession of peerages. Its purpose is to ensure hereditary male heirs, peerages do not die out and like that noble prince in “in order of birth and their issue”, Sleeping Beauty, it aims to give the kiss of life back to would succeed before female heirs in order of birth peerages that now lie dormant. Its primary purpose is and their issue. The Bill therefore permits women to not therefore to address the inheritance of peerages inherit hereditary peerages only when there is no direct discriminating against women, which I know that a male heir. Surely, if we are to achieve equality in this number of your Lordships have debated before. area, the first born should inherit the title irrespective 1631 Succession to Peerages Bill [HL][LORDS] Succession to Peerages Bill [HL] 1632

[LORD BRIDGES OF HEADLEY] place. Similar issues arise in respect of Clause 3(2) and of their gender. I am not alone in saying this. The (3), which make provision for peerages which became campaign group The Hares described the clause in an extinct before 6 February 1952. These are changes that email to me as, should not be undertaken lightly without proper “clearly gender discriminatory. Under present equality legislation consideration of their effects or of any potential unfairness this is unacceptable”. or conflict they could cause. I also draw your Lordships’ attention to Clause 2(2), Turning to the issue of the inheritance of land which states that, associated with some peerages, Clause 5(2) states that “any daughter (‘D’) and her issue shall be treated for the purpose the Bill, if it were to become law, would, of succession as they would be treated if D had been male, save as provided by subsection (3)”. “not affect the succession to land or any other property real or personal”. It is not clear whose daughter is being referred to and whether this provision excludes female relatives, other It should be noted, however, that there are a number than a daughter of the incumbent, from inheriting a of hereditary peerages which carry estates, either by peerage. If that is the case, this further highlights the virtue of the terms of the instrument creating the Bill’s inadequacy in promoting gender equality. peerage or as a result of a trust arrangement which has been put in place in order to ensure that the peerage I will now explain the concerns that the Government and property descend together. In those cases, the Bill have with Clause 3, which provides for the revival of would create a strange system whereby property would peerages that have become extinct. Given that we continue to be inherited by the oldest male heir even if, believe that many peerages have the potential to fall under the Bill’s provisions, the title went to a female within the scope of this clause, it is vital that there is heir, leading to titles being split from their associated thorough consideration of and consultation on the estates. It would be impossible to say how many titles significant impact this clause could have. To begin would be affected by this provision, given that trust with, the effect of immediately reviving a large number arrangements are often confidential matters. This is of extinct peerages should not be underestimated. another aspect of the Bill that would have to be Before a peerage can be revived, its provenance and carefully considered in order to prevent any unintended the right of the individual in question to inherit must consequences. be proven before the peerage can be entered on the Roll of the Peerage. The Bill would therefore create a My noble friend Lord Northbrook raised the issue considerable amount of additional work for the Crown of the ECHR and Article 14. During my summer Office and, most probably, the College of Arms. If the reading, I also had the opportunity to look into it. The descent of a title were in any way unclear or contested, prohibition of discrimination set out in Article 14 of it could take years for matters to be resolved. I can the ECHR applies only in conjunction with other almost hear the solicitors in Lincoln’s Inn rubbing rights set out in the convention. The right to peaceful their hands with glee. enjoyment of one’s possessions is set out in Article 1 Clause 3(1) states: of Protocol 1 to the convention. It has been argued— unsuccessfully—that Article 1 of Protocol 1 applies to “For any peerage which became extinct on or after 6 February hereditary peerages and the right to inherit a peerage, 1952”, and therefore that accession to hereditary peerages the Bill shall vest the peerage, engages Article 14. Although peerages have been described “in the person who would have succeeded to that peerage if the as a type of property under English law, there is universal rule of succession had applied”, Strasbourg case law to the effect that nobility titles to it since 6 February 1952. The Bill therefore proposes cannot be regarded as possessions within the meaning that the line of succession for all peerages that became of Article 1, Protocol 1. extinct on or after 6 February 1952 is to be traced The High Court of England and Wales has confirmed back and potentially altered from that exact date. This that the right to sit and vote in Parliament by virtue of is very likely to have odd, and potentially unfair, a hereditary peerage is not a possession. Furthermore, consequences in some cases. For example, suppose a Strasbourg has held that Article 1 of Protocol 1 applies now-extinct peerage had been inherited by a distant only to a person’s existing possessions, not future ones. male relative after 6 February 1952 and that male It does not guarantee the right to acquire or succeed to relative had since died. It may be the case that, applying possessions. Therefore, as Article 1 of Protocol 1 does the “universal rule of succession” from that date, the not extend to peerages or the right to succeed to a title would not have been inherited by that male relative peerage, Article 14 cannot be engaged. It is highly but by a closer female relative instead. In that case, unlikely that a successful claim could be raised under according to Clause 3(1), the fact the peerage had the Human Rights Act 1998 in the UK domestic been inherited by the male relative would be ignored. courts, as the Act does not apply to the Lords Select Instead, the inheritance would be retrospectively redirected Committee on Privileges and Conduct, which is the through the female. This is not only a somewhat only domestic court with jurisdiction to hear peerage strange method to adopt but could affect the legitimate claims. expectations of the male relative’s successors who wished to revive the peerage. Clause 3(1), which applies To conclude, I fully understand the interest and the new rule of succession on and after 6 February passion that this issue raises for some families, but as 1952, would therefore appear to be incompatible with your Lordships would, I hope, agree, one of the great Clause 5(3)—which states that the Bill will not affect strengths of this House is to legislate with care and any succession to a peerage which has already taken caution, to kick the tyres of policy and to think 1633 Succession to Peerages Bill [HL][11 SEPTEMBER 2015] Succession to Peerages Bill [HL] 1634 through the consequences of our actions. In that throne, I suggest that even with lengthy and detailed spirit, I hope that I have clearly set out the Government’s consideration and research, it would be impossible to reservations about the approach set out in the Bill. foresee clearly all the effects of the Bill. At the very The Bill itself fails properly to address the issue of least, such a change should not be undertaken without gender discrimination in the succession to hereditary extensive consultation and public discussion. peerages: rather, it provides a means by which hereditary Above all, I hope that your Lordships would agree peerages which have died out can readily be revived. that given this complexity, the Government’s priorities In addition, the Bill raises numerous problems and should rightly lie elsewhere, as I said at the start. concerns, particularly relating to Clauses 2 and 3— Let me conclude by stressing that I hope that all I problems which would take up a significant amount of have said will be seen as constructive criticism. The parliamentary time and consideration in attempting Government recognise the inherent inequality in the to work out. Indeed, they may never be resolved, due succession of hereditary peerages and are happy to to considerable uncertainties as to whom the provisions consider further attempts by interested parties to address of this Bill may adversely affect and the likely unintended the multitude of issues of gender discrimination which consequences were it to become law. overcome the complexity that I have outlined. By making a single, rather sweeping change to the descent of all hereditary peerages, potentially the Bill 1.19 pm would affect a considerable number of families in Lord Trefgarne: My Lords, I am grateful to every different ways, according to their own individual noble Lord and noble Baroness who has contributed circumstances. to this debate, and particularly grateful to my noble friend the Minister for his lengthy, interesting and The Earl of Caithness (Con): My noble friend has detailed reply. I am reminded that back in 1956 a case spoken on this point, and we have listened with care. came before Parliament relating to a peerage that had Can he tell us how many peerages have become extinct gone into abeyance in 1302—so there is some complexity since 6 February 1952? in these matters. I have an open mind on many of the issues that Lord Bridges of Headley: I will have to write to have been raised during the debate, and I shall be confirm that, but I am led to believe that there are happy to consider amendments that might correct the scores. I will need to write to my noble friend to anomalies referred to, particularly the one referred to confirm that. by the noble Lord, Lord Pannick, and repeated by others. In some cases, the Bill will lead to the disinheritance of individuals with legitimate expectations to inherit Bill read a second time and committed to a Committee an hereditary peerage. Whereas the Succession to the of the Whole House. Crown Act could be introduced without disturbing the legitimate expectations of anyone in line to the House adjourned at 1.21 pm.

Volume 764 Friday No. 42 11 September 2015

CONTENTS

Friday 11 September 2015

Council Tax Valuation Bands Bill [HL] Second Reading ...... 1585

Property Boundaries (Resolution of Disputes) Bill [HL] Second Reading ...... 1602

Succession to Peerages Bill [HL] Second Reading ...... 1618