House of Commons
Prayers
09:34 - The House divided: - Ayes: 0 / Noes: 33 - Mr Speaker declared that the Question was not decided because fewer than 40 Members had participated in the Division (Standing Order No. 41).
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Mr Mark Spencer (Sherwood) (Con)
I beg to move, That the House sit in private.
Question put forthwith (Standing Order No. 163).
Self-build and Custom Housebuilding Bill
Mr Richard Bacon (South Norfolk) (Con)
I beg to move, That the Bill be now read a Second time.
It is my honour and pleasure to move the Second Reading of my Bill today. My interest in this subject was initially prompted by the fact that I represent the very rural constituency of South Norfolk, which has many young people who find it very difficult to get on the housing ladder or to find any place to live when they grow up and leave home. The idea of being able to stay in the area, let alone the village, where they grew up or to be near their parents is sometimes completely outwith the range of possibilities for them in a very rural area with many small villages. Of course, some young people will go off to big cities—in our case, to Norwich or cities in Essex, as well as to London or elsewhere—but the fact is that we do not have enough housing in our rural area. What has become apparent to me, and it would be apparent to anyone who takes notice of the debate across the country, is that the problems of housing are just as acute in many urban areas. In some cases, the problems elsewhere are even broader.
There is a very important but underestimated issue about how we unlock the energy latent in the population and deploy it to get more housing. The fact is that many millions of people in this country would like to get a piece of land and build their own house. The National Custom & Self Build Association estimates that about 1 million people would like to do it in the next 12 months, and that more than 7 million people would like to do it at some point in their lives. The availability of means to turn this latent desire or pent-up demand into something real—in my view, it would do a great deal to fulfil the nation’s housing needs—have been remarkably lacking. We have a housing market, if we can call it that, that is sclerotic.
Slightly more than 12 months ago when I was at the party conference in Manchester—I have recently returned from this year’s conference—house builders were still talking about how the housing market was quite fragile. They said that there was no certainty about the recovery, and that the sector still needed support. Yet only two or three months ago, the newspapers were full of stories about a housing bubble. It is quite remarkable how one can go from near stasis or sclerosis to a housing bubble within 12 months. It seems improbable that that would happen if we had a well-functioning housing market. In fact, it happened because we do not have a well-functioning housing market: the supply of housing does not rise to meet the demand for housing. We have a systemic problem or a sustained disequilibrium, to use the jargon, between the number of people who want houses and the supply of houses. There are a whole range of very understandable reasons for that connected with the structure of our planning system and the number of large-volume house builders who provide a great deal of the housing in this country, as well as the interplay between those two factors and between the large-volume house builders and the capital markets.
Although we do not have equilibrium, it is no good blaming anybody. I attended the debate on housing supply in the summer, which was moved by the hon. Member for Wolverhampton North East (Emma Reynolds). I found it a rather appalling and depressing experience, because the first hour and a half was taken up with hon. Members on both sides of the Chamber essentially shouting numbers at each other about who had not done what. Shouting numbers will not get us far. Indeed, announcing targets will not necessarily get us far. If targets were the answer, we would probably have solved the problem by now.
One of the most interesting facets of public policy in recent years has been the widespread recognition, for example in policing, health and schools, that targets have often made the situation worse and allowed people to game the system. I am not sure that that is quite true of housing, but there is certainly a broad recognition in many areas of public policy that instead of worrying about numbers and setting targets, one should focus on removing the blockages that prevent the system from flowing smoothly. In other words, to use the term of art coined by John Seddon, the occupational psychologist and management thinker, if one spends more time studying “how the work works” and attempting to remove the blockages in the flow of how the work works, one frequently gets improvements in performance much greater than any target one would have dared to set. We have seen that again and again in different parts of local government, where we have had startling successes in performance improvement by taking that approach.
People have asked me whether it would make a difference if we had a statutory right to get a piece of land and build a house. They ask whether I can point to a number and say, “That is how many extra dwellings would be created as a result.” The answer is, “No I can’t, and I’m not even going to try,” because the question misses the main point: that there is enormous pent-up demand among people who wish to get a piece of land and build a dwelling of their own, but it does not have an outlet because the blockages are too severe.
My humble Bill seeks to do two things: to create a register containing information on people who wish to get a piece of land and build a dwelling—individuals and associations of individuals—and to ensure that local councils have regard to that register when bringing forward their housing plans. I believe that such house building could make a significant difference if it were built into the warp and weft of the housing plans of local authorities and became, as it were, part of the new normal. A number of other steps would need to be taken in parallel for it to become part of the normal landscape, rather than an activity for an eccentric or highly wealthy fringe, as it is still too easily characterised. I will say more about the things that need to happen in parallel later, but I just say, to emphasise the point, that we need to take a broader view of the parameters of what is possible in trying to make our housing supply function properly and rise to meet demand.
This agenda touches on a far broader range of issues than I at first realised. It is not just about rural areas and urban areas, but touches on social cohesion, reoffending and disability. Stella Clarke, who runs the Community Self Build Agency in Bristol, has young people, who 10 or 15 years ago would have been rioting, literally building their own stake in the community. She has found a way to help young unemployed people who are in housing need to take action to shape their own future. Ex-service personnel, who had always had the accommodation that they needed provided for them in the forces, but who sometimes lose their way when they leave the discipline of the military environment, have been helped in the same way.
The front page of the Community Self Build Agency website quotes a local resident who was helped by the agency:
“I was encouraged by the local council to apply for the CSBA Scheme, I rang them and said; ‘I am disabled, unemployed, on benefits and I know nothing of building.’ They said; ‘You fit all the criteria!’ I have never looked back.”
We need to open our eyes to the parameters of what is possible if we are to unlock the energy of our people.
There are many people I need to thank for their help and advice on the Bill. First, the Minister’s terrific team at the Department for Communities and Local Government has helped me enormously in making the Bill technically sound. I thank Ted Stevens, who until recently was the chair of the National Self Build Association, which is now called the National Custom & Self Build Association, as well as his successor as chair, Michael Holmes, and the association’s members and supporters.
Ted Stevens was instrumental in a visit that was made by the all-party parliamentary group on self-build, custom-build and independent housebuilding—we were looking for a snappy title, Mr Speaker. We will shortly be changing the title to self-build, custom housebuilding and place-making, which I wish we had called it in the first place, to connote the important difference between building boxes on the one hand and using a bit of thought to shape places and communities that work as places to live on the other.
Ted Stevens was instrumental in helping the all-party group with our trip in the summer to Berlin to look at the Baugruppen, or building groups. More than 300 such groups have sprung up in Berlin, delivering more than 5,000 dwellings. I am delighted to see the hon. Member for Nottingham North (Mr Allen) in his place, who came on the trip. We were accompanied by senior officials, right up to director general level, from the Department for Communities and Local Government, as well as a range of housing experts from around the country, including from the Scottish Government. It was an extremely enlightening visit.
One thing that became apparent was that if the local authority—in this case the Berlin senate—co-operates with and encourages activity by people from the bottom up, there can be a surprising range of results and a surprising speed of delivery, and more can be done than is currently done in this country to meet housing need. I think we could import some of the ideas that we saw in Berlin to this country. I am conscious that one cannot just take a model and lift it across, because one has to take account of local circumstances, but the fact is that the Baugruppen have contributed nearly 200,000 dwellings in Germany. It is not a small sector, but a significant one.
I received an e-mail from a lady in Yorkshire a few months ago who had heard about my Bill, saying that she and her husband had been looking for a piece of land for five years, and that they were no further forward now than on the day they started. She said, “It seems as if in this country it will never be, as it is in Germany, a middle-age right of passage that you can go and get a piece of land and build a house.” In Germany, if somebody wants a piece of land, they go to their local authority and say, “I’d like a piece of land please.” The way the system works in Germany is that the land is, in the first instance, sold by landowners to the local authority. I am not saying that we necessarily need to repeat that system here; I do not think that we do. I am just telling the story because I think that it is illustrative.
When someone asks for a piece of land, the local authority says, “Would you like a big one or a small one?” The big ones are slightly disproportionately expensive to subsidise the smaller ones, which are slightly disproportionately cheaper. That is relatively easy to do and there is no chronic shortage; and that in a country where, as anyone who has been listening to Neil MacGregor’s wonderful programme about Germany on Radio 4 will know, a third of the land area is forest. I will not segue into a great soliloquy on the importance of hugging trees and the German soul, because it would be outwith the bounds of this debate, but the fact is that there is plenty of land and it can be done.
One thing that people do not understand in this country, which they really should—I have dwelt on this and have tried my best to get the point across—is how much land we have. Only 1.2% of the land area in this country is taken up by houses. We could double the number of houses in this country, if they took up the same amount of land, and still have 97.6% of the land not being taken up by housing. Surrey has more land devoted to golf courses than to houses, and that is in the rich south-east. These are important facts—I am not making them up.
I have taken the official statistics from the Department and asked The Daily Telegraph to publish them. The senior political correspondent of The Daily Telegraph, Christopher Hope, has been running a very successful campaign for years to point out that the wicked Conservatives wish to concrete over England. Sometimes he gets one of his reporters to phone me up, and she says, “You’re a rural MP. You’ll be worried about all this extra housing.” I then give the reporter 10 or 15 minutes on why we need more houses, and because she phoned me and it would be really rather rude to put the phone down, she has to sit and listen. I know full well that they will not actually quote me, and they never do, and then instead I see a quote from somebody else saying, “It’s disgraceful—there are actually people who think we should have enough houses for everyone in this country. It’s wicked.”
The fact that Mr Hope is my brother-in-law is simply annoying, but I hope that at some point I can persuade him to publish the facts about what is going on. A ludicrous dichotomy is emerging—the idea is that people either want to concrete over England and do not care about beautiful scenery, or they only care about beautiful scenery and do not want there to be enough dwellings for all of us to have somewhere to live. I do not know anybody who falls into those categories. Most of the people I talk to both love beautiful scenery and want somewhere to live. My firm belief is that both are possible, and I hope that my Bill will make a contribution to making that happen.
Emma Reynolds (Wolverhampton North East) (Lab)
I welcome the hon. Gentleman’s bravery in taking on the Telegraph in the form of his brother-in-law. According to the national land use database, 5.4% of land is homes and gardens, and only 1.1% is the homes themselves. Not only are we not concreting over the countryside, we are dedicating a large percentage of the land that is developed to gardens.
Mr Bacon
Indeed. When I talked about 1.2% of the land—the hon. Lady said 1.1%—I was referring to houses. She is right that gardens take up at least another 2% or 3%. I believe that railways take up 2.2%, and that the built environment as a whole, including absolutely everything—factories, offices, roads, railways, churches—takes up about 9% or 10%, so 89% to 91% of our land area is not built on.
I am sure that there will be discussion of the green belt, but I will not dwell on it, partly because we do not have any green belt in Norfolk. Searching Google images for “green belt” gives maps of where the green belt is, showing that none of it is in Norfolk. We have a huge amount of land, and the green belt is an unfortunate distraction. It has been created in such a way that there are places that are not in the green belt, including in my constituency, that I would be horrified to see built on. I would sit in front of the bulldozer to prevent it. There are also places that are in the green belt but probably should not be. We need to be more intelligent about that. Personally, I think people’s instinct to preserve beautiful countryside is good, and I completely support it. The Campaign to Protect Rural England wrote to me saying, “We’re interested to hear that you’ve got a Bill, and we are quite supportive of this sort of approach, even though you might think that all we’re interested in is hugging trees and protecting wild animals.”
Mr Andrew Turner (Isle of Wight) (Con)
I, too, am concerned about the issue of the green belt. We do not have any green belt on my island, but a lot of people talk of it as though it were green belt and are surprised when building on it is not stopped.
Mr Bacon
My hon. Friend has a good point. The Isle of Wight is one of the most beautiful parts of the country. If we had the north American approach of zoning, which is much harder-edged and makes it absolutely clear whether somewhere can ever be built on, we might make more progress. That is probably outwith the terms of the debate, as would be a long discussion of the green belt, but it is an important point because it relates to people’s deep instincts about land use. Those instincts are sound in many ways, because we want to protect beautiful countryside. As a representative of a rural area with a lot of farmers, I should say that we also want to keep land to grow food on.
Mr Mark Spencer (Sherwood) (Con)
I trust that my hon. Friend recognises that to a developer, the choice between developing a brownfield site, which may have problems of industrial waste or contamination, and developing a greenfield site, which carries none of that extra development cost, makes them much more likely to want to pursue a greenfield or green belt option rather than a more challenging industrial brownfield option.
Mr Bacon
I completely take my hon. Friend’s point. I suppose I would reply, with the Irishman, “I wouldn’t have started from here”, but the developer is presented with the narrow choice that my hon. Friend describes. I should say in passing that one event that I attended at our party conference featured someone from the London assembly who was trying to get some brownfield sites in London made available for housing. They kept on encountering planners who said, “Hands off our strategic industrial land. We need to keep some brownfield land.”
The argument is complex and nuanced, and my hon. Friend is right about the costs of dealing with contaminated land, but in a more fluid and well-functioning world, the responsibilities that sit within the public realm for making land available for use and providing services for it would work differently. In Victorian times, the local councils or corporations—those great Victorian institutions—took it upon themselves to build the infrastructure they needed, such as roads and sewers. The fact that they did that so well is the reason why it has lasted so long and why we now have 100-year-old sewers that need to be replaced through private finance initiative schemes. The only reason they have lasted so long is that the Victorians did such a good job. They went into the market and issued bonds, and they borrowed money. The Bolton Corporation, the Corporation of Birmingham and other great Victorian civic institutions, from when local authorities had a bit of self-respect, did great work and provided the environment in which private individuals could build. Many splendid developments were built, quite dense and quite high, and we can see many still standing in London and our other great cities.
The problem that we have now is that strategic land promotion is, in a way, done by the wrong people. I will come on to the issue of volume house builders, but I will mention them now since my hon. Friend has triggered the point. I do not blame volume house builders for acting in a rational manner, and people who are surprised that they construct dwellings only when it is profitable to do so need to wake up and smell the coffee. Of course that is how they will behave, and we cannot be in the slightest bit surprised. The point is not so much that we encourage them to do a quick job and get out, leading to buildings of substandard quality and durability and poor longevity, but that we require them to do that. They are forced to act in a deeply sub-optimal way in a flawed system. We need a much more patient approach to the employment of the capital that is needed.
We can look at some of the ancient estates that undertook construction years ago, including in London, and still own the properties that were built, or at least the freehold to them, many decades or hundreds of years later. One is the Duchy of Cornwall—there are not that many 600-year-old private ducal estates with the explicit purpose of providing an income for the heir to the throne, but it has been doing its job quite well for 600 years.
Mr Spencer
Surely the planning authority is the ultimate authority, and local authorities should be much more robust in forcing developers to consider brownfield sites before they allow greenfield sites even to be considered. I do not know whether my hon. Friend’s Bill would assist in any way in freeing up brownfield sites first.
Mr Graham Allen (Nottingham North) (Lab)
I congratulate the hon. Gentleman on introducing his Bill, which I am here to support. I had not anticipated making an intervention about the much bigger issue of devolution in England, but he is making a strong case for enabling local authorities to have the independence, the powers and the finance to make decisions and judgments as they see fit. That would enable the sort of building that we saw in Berlin, which the Berlin local council initiated just after the second world war. The marvellous dwellings that we saw would not exist were it not for that freedom and finance. Perhaps I can draw him, provided that he does not go out of order, into the argument about freeing up local authorities to get on with that.
Mr Bacon
The hon. Gentleman makes an important point, and the issue is broad and deep. The fact is, many people who go into the planning profession do so because they are driven by a desire to help shape the community and provide better places for us to live. Then they get into a local authority, with the extraordinarily complex planning environment in which it operates—I commend the Government for scything away hundreds of pages of planning law so that an ordinary lay person can read it and have some hope of understanding it—and suddenly find that instead of being able to help shape the community and think logically, they are the person who says no the whole time. They do not like being that person, so the good ones often leave. That is a dreadful caricature and it is not true that the only people left are the malign and mediocre, but hon. Members will get the point.
Some people who go into planning with the best of motives end up leaving. I have met such people, and when I present that caricature they say, “Yes, I used to be one of those people; I found I couldn’t do anything.” Think about where planning authority power sits. My local district council is the council tax raising authority and the planning authority, and 1p on council tax raises only about £60,000 for it. Will it be able to stand up to a large developer? There is an enormous asymmetry of power; it cannot take rounded decisions in a responsible and representative way on behalf of the people it governs locally, as I and the hon. Member for Nottingham North (Mr Allen) would like. Once again, however, I fear that reforming the whole of local government and making it flow and function as it should is probably outwith the terms of my Bill.
On patient capital and the Duchy of Cornwall, let me talk about Poundbury, which is an urban extension of Dorchester. I went there last year with the Public Accounts Committee when we were looking at the Duchy of Cornwall, and again this summer with a number of colleagues. As for the Georgian pastiche—like sugar in tea, some people like it and some people do not—I happen to think that if it is well done, and some of the pastiche in Poundbury is extraordinarily well done, it is rather good, and it is built to a very high standard. If one stands near the farmhouse and some of the oldest developments that have been there for nearly 20 years by the mature trees, one would swear one was in Islington or Camden 150 years ago. People like that and want to live there.
What is really interesting, however, is that Poundbury is now 21 years into a 33-year project. Last year, they had done more than 1,000 dwellings and 1,600 jobs. Now they have done 1,200 dwellings and more than 2,000 jobs. The target for 33 years was only 2,200 jobs, so they have nearly reached the target in two-thirds of the time. The dwellings are becoming more and more attractive, and the most fascinating thing is that when firms such as Barratt are allowed to build there, they have to build to a very tight design code, and they pay a premium for the land compared with what they pay elsewhere. On the surrounding land belonging to different land owners there is a halo effect, because people look at it and say, “Phwoar—I’d like some of that!” Instead of boxes on the greenfield at the edge of the town, which is easier and cheaper to build on than the brownfield mentioned by my hon. Friend the Member for Sherwood (Mr Spencer), the value of the last house built is higher than that of the first house built, which is rarely the case in most big house building developments.
I will make a bit of progress and try to whizz through the rest of my thank you list because I would like to get on to the substance of my Bill. As it is such a humble little Bill, I hope that will not take too long.
Lord Richard Best, president of the Local Government Association, has been enormously helpful and supportive to me, as has a group called Housing People, Building Communities in Liverpool. It has an award-winning self-build project on land provided by the Roman Catholic diocese. I recently met the Bishop of Rochester, James Langstaff, who leads for the Church of England on land and property. He is hoping to link the dioceses across England with the vanguard councils that were recently announced by the Department for Communities and Local Government. The National Housing Federation has also been amazingly helpful and supportive. Being at the cutting edge of technology, I am sure that the Minister will be aware that 12 November is #housing day. I am even more impressed by its December Christmas campaign, Ho Ho Homes for Britain. Somebody should probably get an award for that, even if it is only a bar of chocolate.
Mr Speaker
Order. The hon. Gentleman is indulging in what I think I can accurately describe as preliminary dilation. If it is of any encouragement or succour to him, I have the very keen sense that the House is enjoying his preliminary dilation, and I am a little alarmed by the thought that he might, as he put it, “whizz through” the rest of his remarks. I do not think we would want him to do that.
Mr Bacon
I feared that my speech would be more like Oscar Peterson than J. S. Bach, and so it is proving, but I will conclude my thank you list because I want to move on. Lloyds bank has been tremendously supportive to the planning sector. Stephen Noakes is head of mortgages at Lloyds bank, and the current chairman of the Council of Mortgage Lenders. He supported our all-party group on self-build, custom-build and independent housebuilding when we had a meeting last year with the university of York. It launched a report on blockages in the self-build and custom house building sector, and Stephen Noakes was a sponsor of that report. Earlier this year we had a meeting with Kevin McCloud in a Committee room upstairs. The meeting was packed with MPs and peers, Stephen Noakes was also there and I found myself on a panel with him at the party conference. Earlier this week Lloyds bank announced a £50 million fund for small house builders to encourage a sector that has been decimated.
When we consider what happened after the housing crash, and the fact that many big banks, including Lloyds bank, decided at the highest level to shrink their exposure to property on their balance sheet, the fact that such institutions are making long-term commitments is extremely welcome. Lloyds bank has created the Lloyds bank commission on housing to explore and address such issues. That is chaired jointly by two of the Minister’s predecessors—my hon. Friend the Member for Hertford and Stortford (Mr Prisk) and the right hon. Member for Greenwich and Woolwich (Mr Raynsford), and they will bring together in that commission a range of housing experts.
On the front of a recent document Shelter asks the extremely important question:
“Where are our children going to live?”
When one looks at the Lyons review, which was commissioned recently by the official Opposition—I think I have a copy of it somewhere—the front page title is:
“Mobilising across the nation to build the homes our children need”.
I was given the review only yesterday so I have not had a chance to look at it all. I have heard it slagged off in newspapers, probably by people who have not read it all. I am sure it contains things I would agree with and things with which I would disagree, but it is an interesting and important contribution.
Emma Reynolds
Interestingly, the report contains a section on the subject of the hon. Gentleman’s Bill, which I will talk about in my remarks, and it has been widely welcomed by the sector and the industry.
Mr Bacon
I am glad the hon. Lady says that, and I look forward to reading it with interest.
I was talking to Shelter at a meeting and trying to distil my policy. I have not come to this as a housing expert, but I look at the world and think that if we had got things right there would not be a problem, there would be an equilibrium between supply and demand, and I would not have to stand here in the first place. I distilled my policy down to six words: everyone should have somewhere to live. That is it; that’s what I know. More than that I do not know, and the rest in some ways is details. We must ensure that everyone has somewhere to live, and at the moment they do not. I think we need every available shoulder pushing on that wheel. Of course, if a big rock is in front of the wheel we need to move it out of the way, but I am up for any idea that increases the total supply of housing, particularly if it is done to the highest possible standard.
One simply cannot tell which parts of Poundbury are affordable housing. When they are pointed out, people look at them and think, “Phwoar—I’d like to live there.” They have no particular special status; people are taken off the local housing list like everywhere else, and Poundbury has its share of social problems. However, the shape of community that has been created does something to lessen some of those problems.
A YouGov survey two years ago indicated that 75% of people do not want to buy the product of the volume house builders which, as I said earlier, I think are acting rationally inside a systemically flawed system. One of the main constraints on supply is that the standard house models of the volume house builders are attractive to only a small proportion of the total numbers of would-be buyers in the population. That makes it difficult to get above an average of 2.6 sales per month per site. Where there is a custom-build approach—or, as I might venture to call it, a customer-build approach—they can get two, three or four times that level of performance.
There is a wonderful development—it is not an experiment; it has happened—in the Netherlands in Almere on the opposite side of the IJsselmeer from Amsterdam. Many, many dwellings were allowed—it now has 3,000—and most are self-build and custom build. When the volume house builders around the edge were basically in stasis and nobody was buying their dwellings, there was a hive of activity in the middle of that development because the building of houses was being treated as if customers mattered.
A colleague recently retailed to me the story he had been told about a former Conservative MP who had been on the board of a major house building company. The former MP had said, “I have been on the board of this big PLC house builder for eight years. We have talked about land acquisition, finance, buying other businesses, the supply chain, cost control, staffing levels and skills. The only thing we haven’t talked about is houses.”
The truth of the matter is that we do not really have a housing market. If we did, there would be enough houses for everyone. What we have is a land market—which is very tightly controlled—and volume house builders which have access to the open capital market act rationally: they build when it is profitable to do so and take out an insurance policy to cover the down side. A farmer who is getting 3.5 tonnes of winter barley from a field is very happy if someone gives him £4,000 a year for the next 10 years for an option to apply for planning permission to build houses on it one day. That may never happen, but the only entity that can afford to do that is a large, well capitalised house builder. Small house builders cannot possibly do that.
It is even worth a large house builder’s while to employ someone—at considerable expense—to work out how to remove a joist that costs £76 from a roof. It is worth the investment of thousands of pounds and a considerable amount of time to figure that out, because for 1,000 houses on one site it will save £76,000. For someone who builds 9,000 or 10,000 houses a year, it will save £750,000. Over 10 years, that will amount to £7.5 million. What business would not want to save such a sum? But then along comes the purchaser, accompanied by the sales agent who, for some strange reason, often drives a pink Fiat. The sales agent is trying to sell that rather pretty little shoebox, containing furniture that is manufactured to deceive the eye. The width of a double bed in most show homes is about 3 feet 11 inches or 4 feet. Furniture for show homes is not furniture that could be used: it is specifically designed to make the rooms look bigger. The prospective buyers, perhaps a husband and wife with a baby, say, “We are thinking of having another baby. Can we extend into the roof?” But they cannot do that because the design, to save that £76, makes that impossible. The whole thing would fall down.
In a customer-driven environment, from the beginning the customer would say, “This is what I want now, and this is what I may want in the future”, and the market would respond. Some mathematician has worked out that if someone buys a Mini Cooper from the factory in Oxford, there are 126,000 different permutations to choose from.
Mr Spencer
My hon. Friend mentioned the Duchy of Cornwall. The Prince of Wales is on record several times talking about UK architecture and the occasional carbuncles that it produces. If the market allows individual designs, someone’s aspirational design is likely to be someone else’s carbuncle. How will the Bill address that differential in taste and aspiration?
Mr Bacon
The vast majority of our built environment that is worth protecting was built before the Town and Country Planning Act 1947, when there was much less control on what could be done. Also, when people are spending their own money on assets, they are likely to do so in such a way that protects the value of those assets. Aesthetics vary: every beautiful Georgian terrace we see—except those that were built on green fields—was built on land that previously held a beautiful row of black and white cottages from the 14th or 15th century that was knocked down to make way.
Imagine a world in which people could go along to a site and the sales agent with the pink Fiat said, “Here are some choices for you. You might want a big plot or a small one. Your tastes might tend in the direction of very traditional architecture or of something very funky. If the former, you might want to think about these architects and builders. If you want something more contemporary, you might want to consider these architects and builders who have a lot of experience in that sector. We have some examples of work they have done earlier and we can attest to their quality.” That could be the normal approach, but at the moment it is anything but.
Interestingly, the UK is an outlier in this area. In Canada, Germany, France, Sweden and Ireland, self or custom build often accounts for more than 50% of the market. In Italy, it accounts for more than 60% and in tiny Austria it is 86%. In this country, self-build is still seen as an elite club that is open only to a small number of people. As Kevin McCloud has said, we build some of the poorest performing, most expensive and smallest homes in Europe. If someone wants a home with triple-glazed windows so that it costs nothing to heat, we have no suppliers who can supply that. I do not know anyone who would not like a house that cost nothing to heat, but triple-glazed windows are not available here, although they are in Germany. They should be available here, too.
Jacob Rees-Mogg (North East Somerset) (Con)
I am hugely enjoying my hon. Friend’s speech. Is there, however, a greater problem with the planning system than he has outlined so far? Planners instruct builders on the precise colour of the bricks that they must use. With that level of ridiculous detail, people cannot let their imaginations run wild on bespoke houses because they will not meet the conditions laid down by the bureaucracy.
Mr Bacon
My hon. Friend makes an important point. As I said earlier, people go into planning with the most benign intentions, but they end up becoming the person who says no. They find that they do not like that and they leave. That means that those left in planning authorities can be the less imaginative and creative, who like exercising their little bit of power. I know someone in South Norfolk who built a house and he said that after his seventh attempt to get the gutter colour right, he told the planner to choose. But that person is employed by the taxpayer and should have better things to do. The people who work in local planning authorities are as much victims of the system as everyone else. Perhaps a quarter of them should not be there, but most of them would like to do a good job. They would like to have more ability to help their local communities properly in a true place-making way, as the hon. Member for Nottingham North describes.
The Government have done a lot in this area. The Budget provided £150 million for service plots, and the Government have announced a significant range of housing schemes in recent years—the local infrastructure fund, the Growing Places fund, the new homes bonus and Help to Buy, as well as the more recent starter homes money. The Minister can say more about those if he wants, but my point is not that nothing is happening. It is that it is not happening quickly enough. We need to make it happen quickly if we are to solve the housing needs of our people.
One crucial problem is that, because the supply has not been flowing properly, the cost of buying a house has risen considerably compared with the average income. It used to be three to four times income. In South Norfolk, it is now 8.2 times average income to buy the average dwelling, and it is the same in Harlow. In mid Suffolk, it is 8.6 times. These figures are from a “Home Truths” card for the east of England—the National Housing Federation has produced a card for each region of the country. In South Cambridgeshire, it is nine times average income, in St Albans 10.5 times, in Welwyn Hatfield 11.9 times and in Hertsmere it is 13.4 times. In a well functioning, flowing market that would not be the case.
In my view, the word “customer” should apply in the broadest possible sense. As I said, my policy is that everyone should have somewhere to live, but not everyone can afford to buy a house, and we need to recognise that. It follows that people without the money to buy a house should also be treated as customers. I want to see a world in which a person can say to a housing association, “I can’t afford to buy a house, but I am a human being and I don’t want to live in a ditch. I would like to have somewhere to live, and I understand that you provide housing for people like me”; and I want to see a world in which the housing association replies to such people or groups of people, “How can we help create something you want to live in and then rent it to you?” I know that can happen because it is happening now—tens of thousands of houses are being built this way across Germany and other parts of the continent—but not here. If we treat house building as if customers matter, we will go a long way towards solving the problem.
My humble Bill would require each local authority to keep a register of persons—individuals or associations of individuals—who are
“seeking to acquire serviced plots of land in the authority’s area in order to build houses for those individuals to occupy as homes.”
In the Bill, the word “house” includes a dwelling that forms part of a building, and “serviced plot of land” means
“a plot of land which satisfies such requirements about utilities and other matters as may be specified.”
For example, if a group of people got together to take over a derelict commercial building in an urban area, do it up and turn it into a series of dwellings, and if they got the co-operation of the local authority, that would fall within the scope of the Bill as a serviced plot.
Clause 1 identifies the relevant authorities that in each area would be responsible for observing the Bill: district councils, county councils in areas with no district councils, London borough councils, the Common Council of the City of London, the Council of the Isles of Scilly and other authorities, such as the Broads Authority, national parks and so on. The Government’s vanguard councils, with a bit of help and pump-priming money, are experimenting voluntarily with registers to see what is easiest and most cost-effective, and the last thing I want to do is place extra burdens on already overburdened councils.
Mr Spencer
My hon. Friend is making a powerful case and is slowly winning me round. However, if there was a plot on which 10 houses were to be built, a section 106 agreement, as well as infrastructure for sewerage and top water, would be needed. How would the 10 individual purchasers arrive at an understanding to pay the section 106 money, the sewerage connection fees and other ongoing costs?
Mr Bacon
It could be done in lots of ways. I am grateful to my hon. Friend because he draws my attention to something I should have mentioned earlier. The long title of the Bill states that one of the purposes of the Bill is
“to allow volume house builders to include self-build and custom-build projects as contributing towards their affordable housing obligations, when”—
and for the avoidance of doubt, I should have written “and only when”—
“in partnership for this purpose with a Registered Landlord”.
There is no reference to that in the text of the Bill, and there is a reason for that. I had planned to suggest to volume house builders that they could do this too, but on advice, owing to concerns from the affordable housing sector, the Department for Communities and Local Government and others—particularly in the other place, there are many experts who have forgotten more about section 106 agreements than my hon. Friend or I will ever know—it became apparent that I would have been treading into deep waters unnecessarily and that much of what might be needed could be done by guidance and regulations from the Department. For a technical reason, however, the words about volume house builders in the long title have had to remain: this was the Bill that was presented, so I have to keep the long title on Second Reading. If it gets into Committee, however, I will move an amendment deleting those words so that the Bill is silent on the question of section 106 agreements and volume house builders—there is no definition of volume house builders in law anyway. There was much justified concern that this approach might have been open to abuse, and it was certainly not my intention to allow that.
In defence of volume house builders, whom I do not blame for behaving rationally, there are some—in particular, Mark Clare, chief executive of Barratt Developments—who are across this agenda and thinking broadly and deeply about what they can do to help. For example, Barratt is providing plots for local small builders alongside its big developments to encourage diversity and choice. I commend that approach tremendously. Barratt is a high-quality operation, and as it does that, more will follow. In their negotiations with big developers, local authorities could start discussing how volume house builders might incorporate that into their big developments, but I would rather it be done on a case-by-case basis—local authority by local authority—rather than have us tell them from above what has to happen. That is not likely to work.
Clause 1 deals with the establishment, maintenance and promotion of the register, and clause 2 deals with the duty as regards the register. It states that local authorities, having established the register, must have regard to it in bringing forward their housing plans. The meaning of “have regard to” will vary enormously. What is appropriate for the London boroughs of Hammersmith or Newham, depending on conditions and the amount of land available, will be very different from what is appropriate for a national park, which is also a local authority, for a suburban area, a rural area such as South Norfolk or a market town. So I have not tried to define exactly what it would mean. Instead, the Bill provides that the Secretary of State could issue guidance and make regulations about what it means.
Just yesterday, the Government published their “Right to Build: supporting custom and self build” consultation document. It is a thorough document and I commend it to hon. Members. It is an index of how serious they are about talking to local authorities about what will work locally and how to make this the new normal without its becoming a bureaucratic and burdensome exercise.
I do not pretend that the Bill will change everything overnight. We have a serious issue with our housing need that has not been solved for a generation, and we are not going to solve it overnight. However, I contend that if we open up choice and empower the customer—I mean “customer” in the broadest sense, including those in the market for affordable rental properties—we will start to make a significant difference. We need every available arrow in our quiver if we are to start to solve this problem, which has been going on for far too long. If we can unleash the energy of our own people, we can make a tremendous difference. As Rod Hackney, the architect who used to advise the Prince of Wales, said, it is a dangerous thing to underestimate human potential and the energy that can be generated when people are given the opportunity to help themselves. I believe that my Bill would contribute towards helping people to help themselves, and I commend it to the House.
Mr Graham Allen (Nottingham North) (Lab)
Madam Deputy Speaker, you and I represent constituencies with an equivalent demography and similar levels of deprivation and dysfunction. My constituency could be characterised as seven enormous former council estate. It might seem odd, therefore, for me to begin by praising the Bill put forward by my hon. Friend—if I may call him that—the hon. Member for South Norfolk (Mr Bacon) and mentioning Kevin McCloud and his programme “Grand Designs”. I do that because he has popularised the concept of self-build and because it happens to be my favourite television programme. When Kevin McCloud came to the House of Commons to speak to the self-build group, I remember him being deeply unimpressed when I showed him that my phone ring-tone was the “Grand Designs” theme tune. More seriously, however, he has put the concept of individual self-build very much into people’s minds, so we owe him and the show a continuing debt because it opens up a line of thinking.
The line of thinking for me is not building a £1 million house in beautiful green belt, but, to connect back to my opening sentence, that self-build, custom build or community build could be one of the answers for areas such as my constituency and that represented by Madam Deputy Speaker—places that linger at the bottom of the league table on so many statistical indices, whether it be, as in my case, sending the fewest number of young people to university, or having double the number of single households or double the national average of the number of children entitled to free school meals. I am trying to juxtapose these two extremes, and I think we can do this, which is why I would like to pay tribute to my hon. Friend the Member for South Norfolk, the chair of the self-build, custom-build and many other builds in the title of the group. If we are extending the title further, I would like to add, in brackets, community build, because that is where we can bridge into the less affluent areas where the need for housing is just as important. By dint of personal energy and effort, my hon. Friend has raised this issue virtually single-handedly in the House, bringing us to a position whereby I understand that both the Front-Bench teams will support his Bill—quite an achievement, albeit only one of many in his illustrious parliamentary career.
Mr Spencer
As his constituency neighbour, I am well aware of the challenges the hon. Gentleman faces in his constituency. He referred to Mr McCloud and the “Grand Designs” programme, but it strikes me that almost all those type of programmes conclude with the projects going over-budget and over-time—a demonstration of the enormous challenges of building one’s own property. Is there enough support out there from the National Custom & Self Build Association to assist people who are not of great wealth to overcome the challenges they might face in the self-build process?
Mr Allen
I am tempted, in Kevin McCloud fashion, to say, “Will I actually get to the end of this speech, and will it be done by Christmas? Let’s come back after the break and see.” More seriously, my honourable neighbour makes an important point, which I shall try to cover on the basis of what little I know about this field. It is indeed important not to look at individuals of high net worth to do the self-build, which would simply not be possible in my constituency. Rather, we should look to local partnerships, particularly including local councils. I have alluded to the experience of Berlin, to which I shall return, but in my own area, the superb Nottingham City Homes is the arm’s length management organisation for the former council housing stock. It is very well led, with imagination and creativity in abundance. If we can tie such organisations to people in the private sector who are prepared to help, I think it will be possible to bridge from those high-end individual self-builds into something that could have a real impact on my constituents.
I say that for another reason, too—not necessarily for the obvious housing reason. This could be a demonstration and a symbol of the fact that people in areas decimated by the decline of manufacturing who have been pulverised by the loss of employment in their communities—and, in many cases, the loss of self-respect, as well—are capable of getting up, organising and achieving something like this. That could have a really cathartic effect on those estates with which I know the hon. Gentleman is so familiar.
I pay tribute to Ted Stevens, whose name has been mentioned. Ted was not simply the chair of the National Self Build Association. One cannot come into contact with Ted without being electrocuted by the passion and desire he brings to this field. He is an inspirational character, and we were fortunate that he chose to come to Nottingham recently to convene a meeting with a number of colleagues who are interested in this field. One cannot pay for that sort of passion or buy that sort of interest and desire to spread the word. If, with the hon. Member for South Norfolk and Ted Stevens—he is no longer the chair of the association, but he is not the sort of character who is going to leave the field—we can bottle that passion, there is a real chance of doing something very significant in this field.
Let me say a little more about the specifics in relation to my own constituency, which I know the Bill’s promoter is concerned about, too. If we are to make an impact on the market, we are going to have to look at how this will impact on the former council estates, on working-class and low-income housing, which is where much of the expansion could come from. I made a point earlier about having more devolution so that local government can make some decisions rather than be the passive recipient of policies coming down the pipe from Whitehall. In my constituency, we need to enable the local authority to get on and do the job it sees fit. Peculiarly, there is too much housing in my constituency.
The project I am fortunate enough to chair in my constituency is called the rebalancing project. It is called that because we are trying to balance the fact that 95% of the constituency is covered by former council estates, with very little provided in the way of employment, training, leisure—all the things that go to make an effective community. To balance that, we have to confront the reality of being issued with housing targets that are wholly inappropriate for a constituency such as mine, and the drive in local government, when battling austerity, to sell land assets, often to people who could put a semi on a corner or a Barratt estate on a zone designated for business and enterprise, losing that land for ever. Those pressures must be considered .
We need a much more flexible system—one that is looked at locally rather than one in which all we are doing is looking to tick the boxes sent to us by the centre. If we can have that degree of flexibility, there will be room and possibilities for self-build, custom build and community build—breaking, in my case, this unleavened sea of former council housing. I put on record that this is actually very good stock—brick-built houses from the new garden city movement era, with gardens front and back and pitched roofs, with no deck access and no high rise, but which, none the less, in modern circumstances, without the employers who were around at that time, creates a large, single problem, verging on a ghetto, which we need to break down in order to create communities and neighbourhoods on a more human scale, based on a balance of employment, skills and training.
I was inveigled by the hon. Gentleman to go to Berlin to have a look at some of the self-build or community build there. It was one of the best bits of inveigling I have ever experienced. This was not “Grand Designs” as a concept. Some of the buildings we saw were converted. There was a beautiful former school which had been made into a wonderful set of apartments for a broad-based mix of people, with plenty of facilities on site. The other buildings that we saw were flats, sets of housing rather than individual housing. That visit opened my eyes to the fact that it was not necessary to do a one-off in a green field. I realised that this was relevant in an urban context and relevant to more than just an individual, and that it could start to involve a more collective approach that could be the answer in areas such as mine.
Mr Bacon
The hon. Gentleman mentioned our visit to the school in Karlshorst, in east Berlin. That meant a great deal to me, not least because in a different incarnation, probably more than 20 years ago, I worked in Karlshorst as a teacher. I used to pass Russian generals walking their dogs every morning, just after the Berlin wall had come down. The most interesting thing about the Karlshorst school was the existence of a supervised community consisting of eight or 10 families and 10 children, many of whom were orphans or had been removed from their parents. The children had adult role models to whom they could relate—apart from their own step-parents—who created for them a new, normal environment that they could not possibly have experienced anywhere else.
Mr Allen
When I was in Berlin, I had the impression that the concept of group build was déclassé. In the United Kingdom, the aristocrats have the big houses, the middle classes have their hideaways in Islington—or its equivalent in my city, and no doubt in other cities—and everyone else seems to have acquired the “better builder” kit from one of the volume builders. And then there is social housing.
In the United Kingdom, there is a very rigid view, almost a “caste system” view, of what housing should be. That was totally absent in Berlin. There was fluidity. It was not a case of “We have a quota,” or “We are helping some people out,” or “We are getting a bit of a deal, some money, and because we are being allowed to build something else, we will build a bit of social housing.” That is rather what the old council estates used to be like, certainly when I was growing up in my constituency. There was no thought that such housing was strictly limited to a specific group. Now, however, we have almost come to accept that that is the way that it has to be in the United Kingdom. I think that self-build, or collective build, or community build, is one of the ways in which we can return to a more open market in housing, in which everyone can have a stake.
As I have said, Berlin was quite an eye-opener for me. I discovered that 15% of all new homes there were provided by means of the group build method. That is a big chunk of the market, and—the hon. Gentleman will correct me if I am wrong about this—I believe that the percentage is increasing, and has been increasing steadily since just after the war.
A key factor has been local government’s ability to play its part. We were told repeatedly that the precedent could not have been set if the spark had not been lit by the Berlin council and its sub-divisions, which saw group-build as a way of enabling people to run their own affairs and to make housing that they felt was appropriate, rather than housing that some other person felt was appropriate for them. They were allowed to express themselves, by which I mean not wild and wacky architectural design, but enabling people to make whatever interiors they like once the shell had been constructed. As the hon. Gentleman will recall, we went in and out of houses which were identical at first sight, but whose internal design had resulted from a tremendous amount of imagination. The customising of group-build was one of the features that I took away from that visit.
Bob Stewart (Beckenham) (Con)
I am sorry that I was not present for the beginning of the debate. I know from my time in Germany that there is not much of a tradition of owner-occupation there. Many people hire or rent their properties. Is the system that the hon. Gentleman is describing a way of helping young Germans, or Germans without much money, to enter the property market, because the cost of owning property in Germany is so much higher than it is here? That is a question, not a statement: is owning property more expensive there?
Mr Bacon
I did indeed want to intervene. The hon. Gentleman will recall that we visited the houses known as “Elf Freunde”, or “11 Friends”, which is a German footballing pun. Indeed, I think that those are the houses to which he referred earlier; the ones with the tremendous variation inside. Although much of the housing that we saw in Germany had been provided by Genossenschaften, housing co-operatives, that particular project was for private sale. Four of the 11 people involved were architects who, because of rising costs in Germany, were anxious to do what many people in this country have thought about doing for years—to buy somewhere so that they would have somewhere later, rather than seeing their rent dissipate. We saw four-storey houses with huge square footage that had been built for a total cost of just over £200,000, including land and construction.
Mr Allen
I found that intervention very helpful, and I hope that the hon. Member for Beckenham (Bob Stewart) did as well.
What I envisage for my area is not the standard group building that we saw in Berlin, much of which was architect-driven or initiated by professional people. I have been encouraged by my conversations with my hon. Friend the Member for Wolverhampton North East (Emma Reynolds) and with the Minister, whom I met coincidentally earlier in the week in order to discuss another matter. They seemed to be open to the idea that there is not a one-size-fits-all answer in this instance, and that self-build can contribute to the opening up of the housing market. In Nottingham North, however, we would not start off with the professional skills that would be necessary to create something along the lines of what we saw in Berlin, but we could bring those skills to the table. We could ask the private sector to bring them to the table. We could ask individual architects and other professionals to help, we could ask local government to facilitate the project, and we could ask our wonderful Nottingham City Homes whether it might consider sponsoring it.
Nottingham is probably the last place where most people would ever think of trying to start something like this, but let us, as it were, start with the last place. As I hope to show later in my speech, if we can do it in Nottingham North, there is absolutely no reason why it cannot be facilitated by all parties—and this is a cross-party debate. There is no reason why Governments of all colours, and parties of all colours, cannot do something similar to what was done by the Germans after the last war. We could see 15%, 20%, 25% of homes in the United Kingdom being self-built, custom built, or community built. Some people might say that the demand does not exist, but I think that the hon. Member for South Norfolk has well and truly shot that one out of the water.
Let me now add my two penn’orth and return to the survey conducted by the National Custom & Self Build Association, which the hon. Gentleman mentioned earlier, and which I think was carried out jointly with Ipsos MORI. According to the survey, an estimated 7 million people want to adopt the self-build, communal-build route. Well, we could all say that we might like to have a go at it, but there is a further statistic: it seems that 1 million of those 7 million want to start this year. I cannot believe that they will all do so, but if there is a real desire among them, if they have a time limit in mind, if they are saying “I really want to do this”, I would love to be standing here this time next year with the foundations dug in, and Kevin saying, “Will the money run out?” I am sorry; I should be more serious about this. If 1 million people are saying that they want to get started, that is a fantastic asset for the Government and all parties. I think that if we could achieve it at the cost of just one or two little improvements, flexibilities and discretions, building on the Bill, that would be a great step forward.
I want to finish with a little vignette about the rebalancing project in Nottingham North. We are pulling together a charity which is setting up to do a large number of things coterminous with my constituency, not least around the pre-NEETs group—14-to-17s—and also a number of key public health issues, but one of our workstreams is most definitely around housing, self-build and tenure. We were able to bring Ted Stevens to my constituency just a couple of Fridays ago and he got a fantastic group of people in the same room to brainstorm around the topic of self-build. They included the chief executive of Nottingham City Homes, Nick Murphy, private sector people such as Jon Sawyer from Igloo, which I understand has won the build-it award for custom build this week—we were not aware it was even in for that competition, but congratulations to it—and people from the One Public Estate organisation, which I think resides in the Cabinet Office, or perhaps the Department for Communities and Local Government; forgive me if I am wrong, the Minister will.
What they are trying to do is bring land assets which are not being used fully into proper use. That includes central Government assets—I had better not name any as I am keen to have the possibility of exploiting them—and the aim is to match those with council land and property assets in the ownership of local government. That is a precious and small group of assets. We are not in the position of the hon. Member for South Norfolk of having a fairly large number of sites to look at. They are very precious and we must safeguard them to ensure they are used and maximised as much as possible.
We started to get those holders of land assets to consider self-build as an option, and that is an enormous step forward. Hon. Members in slightly better circumstances may not even understand what I am saying there, but when land is so precious and virtually all of it is built on, those small sites can be very important. Land is the key social control in an area like mine and catalysing that frees up the potential for self-build and community build.
One of the key things Ted Stevens, Jon Sawyer and others put to us the other week was that separating the land acquisition from the build process reduces the risks for house buyers buying upfront. So in a sense what we look at then in terms of self-build is that we have housing manufacturers rather than people who need to do the whole lot of the pathway from an empty piece of land to occupied land full of happy families. Separating the land acquisition is one of the key factors and will be even more important in the British context than it is in the Dutch or the German context.
There are a lot of examples of this happening already. I do not know if it is in your constituency, Madam Deputy Speaker, but there is a development called the Yard in Bristol, and that was pointed up as a lower income area that could benefit. Perhaps the hon. Gentleman knows of it? We would be looking to do something like that—building something in Nottingham similar to what they are doing in the Yard in Bristol.
Added to the people I have mentioned, we had people from urban design, not least from Nottingham Trent university, but also people who had attended the annual urban design conference in Nottingham some five or six weeks ago. I think marrying self-build, community build and group build with the idea of re-engineering—redesigning—the urban landscape in a place such as Nottingham North presents tremendous possibilities.
In order to be inventive, innovative and creative, I wish the hon. Gentleman’s Bill swift passage. What he has managed to do in getting the Bill to this stage of its progress through the Commons is superb. If he wishes, I will allow my name to go forward for the Bill Committee. There is so much to disagree about in housing, and I hope that the dogfight continues, but I also hope that on this issue my hon. Friend the Member for Wolverhampton North East (Emma Reynolds) on the Opposition Front Bench and the Minister, who I have had so many positive dealings with, and all of us can say that if we can give self-build, communal build and group build a fair wind, we will be doing something that will bring immense joy and happiness to many families, not least those in my constituency.
Emma Reynolds (Wolverhampton North East) (Lab)
I warmly congratulate the hon. Member for South Norfolk (Mr Bacon) on both an excellent bit of luck and an excellent choice: excellent luck in coming fourth in the private Member’s Bill ballot—not many of us can say we have come fourth in it—and excellent choice of the specific Bill he has brought forward. I went to his all-party group on self-build, custom-build and independent house building meetings earlier in the year and I know he has become a champion for self-build and custom build in Parliament, and I commend him for his work in this area.
I commend Ted Stevens, who has already been mentioned by a number of hon. Members, the former chair of the National Custom & Self Build Association. I thank him and the association for contributing to the Lyons housing review, which the hon. Gentleman mentioned.
I also want to thank Igloo Regeneration, which has also been mentioned, not least by my hon. Friend the Member for Nottingham North (Mr Allen), for its submission to the Lyons review. I will say something later about the work that has been done in this area.
On a personal note, I want to put on record the fact that I have lived in a self-build house. In fact, the first house I lived in was a self-build house, because my father is an architectural consultant, and he built his first self-build house in the 1970s and then built another one in the 1980s in which he still lives, so I do have some personal experience. However, I would suggest that most of us mere mortals who do not have the experience my father has in architecture or the trades tend to be more attracted to custom build because it is somewhat easier. It gives people the choice and control over the design, but it takes away a lot of the risk, uncertainty and challenge for those who do not have significant experience in the house building sector or market.
First, I want to say something more general about the opening remarks of the hon. Member for South Norfolk. Labour Members support his Bill and agree with his overall and—let us face it—simple objective that everybody should have somewhere to live. I think that would be difficult to argue with, and I agree with him wholeheartedly. I also agree with his analysis that for quite some time the market in this country has not been delivering anywhere near the number of homes we need.
Usually the Minister and I would trade insults and figures and so forth across the Dispatch Box, but I will attempt not to do that today. This is a long-standing problem. The problem of under-supply of new homes goes back some three decades or more, and I agree with both my hon. Friend the Member for Nottingham North and the hon. Member for South Norfolk that there are some pretty deep structural and, as the hon. Gentleman said, systemic problems with the housing market.
One of the big problems, which both Members highlighted, is the problem with the land market. That structural problem affects the potential of self-build and custom build. I will focus on that later in my remarks, but I want to put that right up front as one of the key, fundamental issues we need to deal with.
We support the creation of the register by local authorities and a requirement for them to identify demand for self-build and custom build. I called for that in my first major speech as shadow housing Minister in January. The Government have been talking about it for some time and I welcome the support I believe they will give the Bill. As the hon. Gentleman suggested, evidence presented by the National Custom & Self Build Association and others shows significant unmet demand, so we also agree when the Bill sets out that local authorities should have regard to the register that they will have to put in place when carrying out their planning functions and producing their housing plans.
Let me deal briefly with the specific reasons why the Opposition support the Bill and why I support it. The first is that, as the hon. Gentleman discussed, it will give a voice to those shut out of home ownership. This is not exclusively about them, as there will be owner-occupier families who want a bigger home or even a smaller, more bespoke home. However, some first-time buyers are priced out at the moment. He talked about the ratio between the average salary and the average house price, which is scarily high in some areas of the country, not least London. The generation who are between the ages of 20 and 34 are the most deeply affected by our failure to deliver a market that delivers enough homes. We know that one in four of that age cohort are living at home with their parents.
In the last 12 months that I have been doing this job, I have met so many parents who crave an empty nest. I am sure they do not mean it—[Interruption.] Oh, there are some in the Chamber. Extraordinarily, 3.3 million people in that cohort are still living with their parents. As a country—I say this of successive Governments —we must be doing something wrong, and the system is not working. This register would be one approach to and recognition of that failure and unmet demand. I am also keen on the register because planning applications, which are between the council, as they should be, and groups of people, some of whom are in favour and some of whom are against, often do not include that younger generation, so the register could be one way of seeking to give them a voice in this process that they do not currently have.
Secondly, as the hon. Gentleman set out in his excellent speech, by promoting self-build and custom build we can, in turn, promote more customer choice and a drive for better quality. We often focus on the numbers in our debates, talking about a Government not producing a certain number, describing what our party would do and saying that we would like to double house building from the current level. However, any such increase cannot be at the expense of quality. The interesting thing about this part of the market is that it is so focused on quality. As he set out, if the customer is put at the heart of the process, we inevitably drive up quality. On energy-efficient homes, someone who is in the driving seat and who will be subject to the energy bills has much more motivation to try to commission—if it is a custom build—or build a house that will give them the lowest possible energy bills in the future. The volume house builders perhaps do not have that same motivation, because they will simply sell on and move on. Where the customer is driving that process, they will be the one living in the home for some time, so I am totally with him on this point, and how we drive up quality is important to the wider industry, too.
Thirdly, as the hon. Gentleman mentioned, it is important that we promote self-build and custom build to a much wider range of people. Recent research carried out by the university of York found that a variety of households could benefit from self-build and custom build but the current market is dominated by an older, asset-rich demographic, although not exclusively so. The hon. Member for Sherwood (Mr Spencer), who is no longer in his place, intervened on my hon. Friend the Member for Nottingham North to suggest that although Kevin McCloud’s programme is a fantastic contribution to this debate, its projects often run over budget and over time. We need to de-risk the process, and so although I welcome the initiatives in the Bill we can do more on that. I know that the Government have done some interesting things on trying to make sure that mortgage provision is available in this area, as that remains a major barrier.
Emma Reynolds
I could not agree more with that. It was interesting to meet Kevin McCloud at the all-party group meeting that the hon. Gentleman organised earlier in the year. I am sure that Kevin McCloud’s vision is for a much more inclusive and comprehensive sector catering for people of different backgrounds and incomes, but his programme can sometimes focus on those who are having difficulty. Perhaps that is because it makes for more interesting television, as the hon. Gentleman has implied.
My hon. Friend the Member for Nottingham North made an interesting point about community build and his experience on the visit that the hon. Gentleman organised to Berlin, where a much more collective approach to these projects is taken. Our country has some real trailblazers, but they are few and far between. We have some interesting initiatives, but they are not going on at scale in the way we see in Germany and other countries.
Mr Allen
I think you were otherwise engaged when I mentioned the Yard in Bristol, Madam Deputy Speaker. I do not know whether it is in your constituency or nearby, but it is a classic example of a community starting a development together. I wish the House had facilities to enable the hon. Member for South Norfolk (Mr Bacon) to make a presentation of the sort we have seen, showing example after example of different groups and types of people, some with and some without a connection, some where people have responded to an advertisement, all coming together. Delighted as we are that Kevin McCloud has raised the public profile of self-build, that approach is the antidote to it, as it is about collective provision rather than just individual provision.
Madam Deputy Speaker (Dame Dawn Primarolo)
Order. I did hear the reference that the hon. Gentleman made—he would be surprised to know that I can do more than one thing at a time—but it is not normal for the Deputy Speakers to intervene. While I am on my feet, may I say that the provision has historically been done on a community basis, not only in Bristol, but in lots of places? Minister.
Emma Reynolds
Thank you, Madam Deputy Speaker. You have just promoted me, and I am very grateful for that. The point I was making was not that this is not going on, because we know it is happening in Bristol, Cornwall and other parts of the country. My point is that in Germany and other European countries it is going on at scale, not only in self-build—so on an individual basis—but in collective build. I am referring to the group build discussed by the hon. Member for South Norfolk and my hon. Friend the Member for Nottingham North.
I also wish to say something about social housing, because some impressive Labour councils—I am trying not to be party political—have undertaken interesting initiatives using custom build. That is not happening in all parts of the country and it is not happening at scale, but we can learn and draw inspiration from it. In fact, in a new scheme in Lewisham, the local Labour council is running a custom-build scheme that allows residents—my hon. Friend the Member for Lewisham East (Heidi Alexander) knows about this—to choose the design, select the contractors and specify individual requirements. We should not limit this just to private sales: it is just as important to involve social housing residents in design and place shaping, as the hon. Member for South Norfolk said. That is an innovative way to go about new build.
Finally on the Bill’s specifics, I welcome the hon. Gentleman’s intention to delete the last part of the long title, which states:
“to allow volume house builders to include self-build and custom-build projects as contributing towards their affordable housing obligations, when in partnership for this purpose with a Registered Social Landlord; and for connected purposes.”
I understand that his intentions were good, but I agree with his analysis that, if we are not careful, that provision could be misused. We would very much like to protect section 106 arrangements and ensure that developers play their role in delivering affordable housing. I appreciate that he has not been allowed to delete that provision for some strange, technical drafting reason.
The Lyons housing review rightly identifies the problem of the availability and affordability of land as one of the main barriers to self and custom build. In fact, according to the National Custom & Self Build Association, 48% of would-be self and custom builders have a budget of £200,000 or less, which is simply not enough to cover both the construction costs and the land costs. As my hon. Friend the Member for Nottingham North said, land is one of the key problems. Sir Michael Lyons specifically calls for land to be included in plans for self and custom build in a way that allows the kind of broad outline permissions that we see in the Netherlands and Germany to be granted. That is an interesting way to simplify the planning procedure for self and custom build, and it should be considered.
Sir Michael Lyons talks about the need to make land more affordable—the Government have spoken about this—and public land should be a priority. We should think about how public land could be invested as equity. In fact, the review makes recommendations about how we could use public land more innovatively for self and custom build and for other types of housing, too.
All too often, public sector land becomes a victim of the same process as private sector land, where the state—whether a local authority or a Department—sits on the land and waits to sell it off to the highest bidder, so that land is not built on because the process takes time. Sir Michael Lyons suggests in the review that the state take a more innovative view, perhaps by keeping a stake in that land or allowing deferred payments. That could unlock the potential for self and custom build and for other types of house building, too.
More widely, Sir Michael Lyons emphasises giving local authorities more power to be proactive in going about their planning and housing duties, rather than being reactive. In particular, the innovations of housing growth areas and new homes corporations proposed by the review will provide new opportunities for local authorities to assemble plots of land and, crucially, allocate some of that land for self and custom build.
Crucial to trying to drive this sector is the role of the small builder. The hon. Member for South Norfolk said that Mark Clare is on the expert panel of the Lyons commission. As important as Barratt and other volume house builders are, small builders are essential if we are to deliver a step change in the self and custom build ambitions that we all agree need to be furthered. Often, the smaller builders are doing the work and building these new homes.
Sir Michael Lyons and the Labour party more generally have been keen to seek ways to promote greater competition in the market, particularly by helping small builders to access finance. We have set out a help to build scheme, which would underwrite loans for small builders. Only yesterday, we had a meeting of five of the big banks with a number of small builders, facilitated by the Federation of Master Builders, and we were encouraged by the debate that went on between those two stakeholders. Again, if we could ensure that the banks were lending to small builders in a more significant way, it would help us to increase self and custom build in different parts of the country.
In January, in my first major housing speech, I talked about this subject and the need for small and custom builders to have access to land. I said—I still think that this is the case—that local and national Government ignore small sites too often and place much more emphasis on larger sites. Local authorities should include a higher proportion of small sites in their five-year land supply. Often, small sites are brought to market much more quickly. They are often simpler to develop and the projects are easier to get going.
I also said in my speech in January that more public land should be allocated to smaller firms and custom builders. In addition, we have committed to ensuring that a proportion of the homes built in new towns and garden cities will be built by smaller firms and self and custom builders. So there are lots of things that we can do in the land market.
The other aspect of the land market that we are poorly served by is the lack of transparency. We have committed to increasing transparency in the land market by ensuring that developers register the land that they own or have options on. Again, that will help people to identify plots of land for self and custom build.
Mr Bacon
The hon. Lady is making an interesting speech and has touched in almost the same breath on two exceptionally important subjects: land and finance. Does she agree that there is no shortage of land; there is a shortage of accessible land? There is plenty of “permissioned” land out there. Does she also agree that there is no shortage of finance; there is a shortage of financeable propositions? If the proof of concept in the experiment that Igloo is doing with institutional investment from Aviva works—by the way, a very good Norfolk investment institution, although I prefer the name Norwich Union—it will show that this can be done all over the country at scale.
Emma Reynolds
First, on land, I agree with the hon. Gentleman that, as he said in his opening speech, there is no absolute scarcity of land because we have not built on much of the land in our country. I agree that we have enough land to build more homes to meet housing need and to preserve our wonderful and beautiful countryside. We are dealing with an artificial scarcity of land, for all sorts of complex reasons that are not just to do with planning. We have said that if we win the next election we will keep the national planning policy framework, but this is not just to do with planning; it is also to do with speculation and the extended negotiations between landowners, developers and local authorities. Often, local authorities and local communities are unable to benefit to the degree that we would like from the uplift in value of that land. Capturing that value was one of the great innovations of new towns, and we would like to replicate it.
Developing infrastructure up front makes it much easier to gain public consent. People oppose development because they are concerned that their local schools and GP surgeries might become over-subscribed and their roads might become congested. If we can find a way, along the lines of what happened with the new towns—this is why we are proposing new homes corporations—of capturing that uplift in the value to put back into communities, we think that we can unlock sites more quickly, and for the benefit of those communities, and start to see an easing in the process of getting consent in the first place.
I also think that driving up the quality of new development more generally will help with seeking consent. Shelter, which has done a lot of polling on this, has told us that people often object to development because they are worried not necessarily about their house prices falling but that their community and area might be undermined and not look as nice. They are worried about the aesthetics of the communities and areas they live in. I think that driving up quality through self-build and custom build, and indeed more generally, could really help in the wider debate on how we seek consent for new development and, frankly, give it a better reputation.
The hon. Member for South Norfolk is absolutely right that we need to draw inspiration from our European neighbours, whether Germany, France or Austria. As he pointed out, Austria is top of the league when it comes to the percentage of new build. In the UK, self-build and custom build make up about 1% of new build housing, whereas in Austria the figure is over 80%, and in France and Germany it is in excess of 40%, so they are clearly doing something right. I agree with him that we cannot simply transpose their model, because obviously it is very different from ours. However, it is interesting to hear about the sorts of initiatives that he and my hon. Friend the Member for Nottingham North have visited and think about what we can learn and draw inspiration from.
In this great spirit of cross-party agreement, I will conclude by saying that we welcome some of the initiatives that the Government have introduced to assist self-build and the provisions of this Bill. We think that the artificial scarcity of land and the way it is brought to market, and indeed the land market more generally, are part of a much more fundamental problem that we will need to grapple with if we are to boost this part of the house building sector, and the other parts too. I will not get into that wider debate today, but it might be the area we do not always agree on. However, on the self-build and custom build sector, I welcome the Bill and the provision that local authorities should have a register. I also welcome the hon. Gentleman’s commitment to ensure that the sector drives up quality and that we have more innovation and creativity in the house building industry.
The Minister of State, Department for Communities and Local Government (Brandon Lewis)
It is a great pleasure to say that the Government strongly support the Bill, as I think the House is well aware from the comments that have been made. I welcome the commitment of my hon. Friend the Member for South Norfolk (Mr Bacon), a fellow Norfolk MP, who has championed the cause of self-builders and custom builders as chair of the all-party group on self-build, custom-build and independent housebuilding—I understand that its name is shortly to change again. I am happy to endorse this innovative piece of legislation.
This debate is a really good example of what this House does fantastically well and of the importance of private Members’ Bills. My hon. Friend has taken up this matter of his own accord, worked it through and come up with a Bill that enjoys cross-party support and will be an important step for our country. Thousands of people across the country are taking on this type of building project, and we want to see that grow much more. In years to come we may well be able to look back and see that that growth in the market started here in the work we are doing this morning on this private Member’s Bill.
I will take this opportunity to explain to the House why the Government are so strongly supportive of custom builders and how the Bill will help to take forward our proposals for a new right to build, which we are currently consulting on. The Government are committed to increasing housing supply and helping more people achieve their aspiration of a home of their own. When we came into office, house building in England had fallen to levels not seen since the 1920s and many sites across the country were stalled. We have spent the past four and half years fixing that, and we can see our policies working.
However, we must also accept that for many years this country has not built enough houses and that our population is growing. We can see that when we think about our own families. My parents had three children and we lived in one home. All of my siblings now have a home of their own and we all have, or are about to have, two children. That means that within two generations one family will have gone from needing one house to needing 10 or more, depending on how many children my siblings end up having—my wife has made it very clear that two children, wonderful though they are, is quite enough. We are seeing our population and the need for housing grow.
We are rebuilding demand through Help to Buy so that hard-working people with sufficient earnings can get on and fulfil their aspiration to own their own home. We are boosting supply through planning reforms, as the hon. Member for Wolverhampton North East (Emma Reynolds) outlined, with the national planning policy framework widely recognised as a fantastic step forward. We are investing through our get Britain building campaign, large sites and builders finance funds, which make sites viable for builders so that they can build out their sites and do what they do best—build the homes we need. That action is delivering more new homes. Nearly 480,000 homes have been built since 2010, including over 200,000 affordable homes. New housing construction orders and the registration of new homes across country are at their highest level since 2007.
However, we know that we cannot just rely on a delivery model that is dominated by volume house builders. Much of the housing built during the last boom was in the wrong place and was of the wrong size, which did not meet homebuyers’ aspirations. That is why, looking forward, we want to see greater diversity in the housing market, with more competition, more small and medium-sized home builders, more new entrants and more new development, to increase the speed and quality of the housing we build in this country.
We want to see small builders grow further. The hon. Lady outlined the importance of small builders building on small plots. The Bill can directly provide a huge boost to the small building industry, because it will appeal to those kinds of builders to pick up the contracts from home owners, and potential home owners, who want to be part of the custom and self-build market. We have also introduced the builders finance fund for small builders. I was pleased to see Lloyds announce this week its plans, following our meeting last week, for a £50 million fund aimed directly at small builders.
The Government strongly believe that custom and self-build housing can play a crucial role as part of a wider package of measures in securing greater diversity and helping to deliver the homes people actually want. The hon. Lady and the hon. Member for Nottingham North (Mr Allen) mentioned television programmes such as Kevin McCloud’s “Grand Designs”, which bring a new profile to custom build. The intention of this Bill, and the fantastic work my hon. Friend the Member for South Norfolk is doing, is to make people more aware of that opportunity and make it more available to them, turning it into a wider market. More people will start to appreciate that they can build their own home at an affordable price, and often more affordably than buying directly from a developer.
It is right to put on record the important distinction between custom build and self-build within the sector. The definition of “self-build” covers someone who directly organises the design and construction of their new home, while “custom build” covers someone who commissions a specialist developer to help to deliver their own home. What matters for the purposes of this Bill and our proposals on a new right to build is that we develop a framework that promotes both.
Mr Allen
That is a really important distinction if we are to retain credibility and trust as this Bill moves forward. It is not good enough for the big-volume builders just to offer to put a few extra knobs on and call that custom building. The custom building that I am referring to—as is, I suspect, the hon. Member for South Norfolk (Mr Bacon)—occurs where there is a sense of creating something. It might not be entirely original; there may be elements that can be drawn down and fitted in. I think that is the concept—I am sure he will correct me if I am wrong—that we are all proposing in trying to move self-build and custom build forward.
Brandon Lewis
The hon. Gentleman makes a good point. Having explained the differences between the two, for the purposes of this debate I will use the terms “custom build” and “self-build” interchangeably—but I want to make it clear that there is a difference between them. He is absolutely right. With regard to volume house building, including on large sites, we would like eventually to see opportunities within that put aside for these projects. I will touch on that later, particularly as regards garden cities and the garden city principles we are using in areas such as Ebbsfleet.
It is realistically possible that, with the use of modern technology and the way in which modern building techniques are now moving, we will not be that far away from house builders, even in large-volume house building, adapting parts of their site, at least, to a point where a member of the public who wants to buy their own home can walk on to it and instead of doing what they tend to do now and saying, “What plots are available and which house are you building on that plot,” and, “Thank you, that’s the one I would like to buy,” being able to say, “I want that plot with this style of house, and I want to do this or that with it,” so that they can then have that house built for them by the builder more quickly, we hope, than the 20-plus weeks that it takes at the moment.
Bob Stewart
Does self-build also apply to someone who takes a wrecked old barn, say, and decides to make it into a home? If it was not anything much before—a sheep pen or something—but then becomes a home, is that defined as “self-build”?
Brandon Lewis
My hon. Friend gives me a chance to clarify the situation. Earlier this year, we changed the permitted development rights on farm buildings, in particular, to allow them to be converted into homes. They would probably come more into the conversion category, unless it involves somebody being able to get planning permission to demolish what was there and then move on to self-build or custom build, as appropriate. I guess that it somewhat depends on the size and quality of the sheep pen.
Many people across the country would love to build their own home, whether by building it themselves or by commissioning a specialist developer. As has been noted, research by Ipsos MORI has shown that over 1 million of them are looking to do so in the immediate future. We know from the latest Building Societies Association consumer survey in September that more than a third of Britons are open to building their own home. That is a phenomenal number to whom this Bill could open up a new market.
That strong level of interest is not surprising. Custom and self-build housing offers people more choice and the ability to design a home to suit their own needs, leading to greener and better-designed homes. If people design their own home, as I am sure the hon. Member for Wolverhampton North East remembers from the home with her parents that she described, they tend to live there longer, and that is good for building stronger communities. In many cases, it is also more affordable than buying a home in the conventional way. A report published by Lloyds Banking Group in 2013 concluded that self-builders can save between 20% and 25% on the cost of an equivalent home on the open market—a crucial saving for many looking to get on the housing ladder. That brings things up to the levels we are talking about with the new starter homes programme under the next Conservative Government.
There are wider benefits too. A strong custom-build sector brings new opportunities for medium-sized and smaller house builders, as well as for housing associations that are looking to diversify their offer. We know this because the Federation of Master Builders and the National House Building Council have found that most smaller builders want to do more custom-build projects. More housing associations are now looking at the option of custom build. It presents a huge opportunity.
Heidi Alexander (Lewisham East) (Lab)
As my hon. Friend the shadow Minister said, there is a very exciting project in my constituency, where L&Q has worked with a group of young people to develop 10 new self-build properties. Does the Minister recognise that such projects give important skills to young people who want to develop their careers, as well as providing them with a house at the end of the process?
Brandon Lewis
Absolutely; the hon. Lady makes a good point. That is a super scheme. L&Q is also doing some fantastic work in regeneration across London. She gives a good example of how house building is not just about providing homes but plays a hugely important part in our communities, as we all know, with people building their own homes and learning new skills in everything from the building itself right through to project management and financing. That is a hugely important option. This also mixes well with modern technology. I saw the building opportunities created by Accord up in Walsall, where there is a factory with 19 staff, 17 of whom were unemployed before it opened. Within weeks, they were building houses, which helps them with their skills challenges.
This sector can speed up the supply of new homes where there is a strong demand for plots, because custom builders do not build for profit—they want to get their project up and running, built and finished as quickly as possible so that they can move in. The up-scaling allowed by modern technology can help even more, so that we start to move from the 20-plus weeks that traditional building can take to just a few weeks. It sustains and creates new jobs and, as the hon. Member for Lewisham East (Heidi Alexander) just outlined from the experience of her own community, supports local economies. The sector already makes an important contribution to our overall housing supply, with about one in every 10 homes being built or commissioned by individuals. Many people are not fully aware of how widespread this already is. It is important to the national economy, turning over about £4 billion per year.
However, the sector in England is not yet fulfilling its potential. In many other European countries, more than half of all new homes are built or commissioned by self-builders. Several hon. Members have referred to this. In Germany, for example, the figure is about 60%, while Austria builds over 80% of its homes this way. Crucially, in these countries, building one’s own home is not just for the privileged few—there is a strong tradition of self-build and custom build right across the social spectrum, and there should be in this country as well. Although I, like many others who have spoken, greatly enjoy “Grand Designs”, it is important that we see custom build not as a hugely challenging activity that only a few have the resources and time to aspire to, but as a mainstream activity that people from all walks of life can participate in. Crucially, hard-working people on modest and reasonable incomes should have the opportunity to build the homes that they want for themselves and for their families.
That is why it is important that we tackle the four key barriers that face self-builders and custom builders. First, there is a lack of suitable plots of land to build on, as we have heard. Only yesterday, I was delighted to be able to talk to the landowners at Ebbsfleet about the opportunities for making land there available as part of the project. Secondly, there is limited finance available to custom builders, especially in the development phase. Thirdly, the significant amount of red tape, especially around securing planning permission, can put off many prospective builders and make life very difficult and costly for them. Fourthly, there is a lack of independent advice that can take people through the process of building or commissioning their own home from start to finish.
We as a Government have taken strong action, in partnership with the industry, to tackle the key barriers holding back the growth of the sector. We are already encouraging more plots of land to be made available through the planning system. Since 2012, local councils, through the NPPF, have been required to assess and plan to address the need for all types of housing, including the demand from those wishing to build their own homes. This has been backed up by our planning guidance earlier this year. I am pleased to say that many are responding with a wide range of policies, proposals and initiatives, many in partnership with the private sector, from Newcastle to Plymouth, and from Norfolk—I am pleased to say, as a Norfolk Member of Parliament—to Cornwall. This past year has seen a record number of permissions, with 230,000 homes being approved through the planning process.
We have also identified 12 Government-owned sites, which the Homes and Communities Agency is releasing for self and custom-build development. The sites include Trevenson park in Cornwall, where Carillion-Igloo proposes up to 60 plots, which sets a good trend.
We have been actively addressing the finance challenge, too. In 2012, we launched a £30 million custom build homes fund to provide repayable finance for larger custom-build developments. That has since been completed by giving self-build groups access to £65 million under the affordable housing guarantee programme, and by introducing, earlier this year, a £150 million five-year “serviced plot” investment fund to finance up to 10,000 more plots. We have been engaging with lenders—including meetings I have had in the past two weeks directly with the major lenders—to see how we can improve the number of self-build mortgages available to the sector.
We have been removing red tape. Self-builders are now exempt from the community infrastructure levy, potentially saving them thousands of pounds on individual projects. We have just finished consulting on a similar policy change to section 106 charges, which, if implemented, will exempt smaller scale housing projects from paying costly planning obligations—the very things that can sometimes prevent this kind of small-scale personal development from happening. We have also simplified design and access statements and made it easier to change the use of buildings to housing, which we know the industry has welcomed.
We are working closely with the National Custom & Self Build Association, which, as other Members have said, deserves great credit, particularly its chair, on the work that it and others in the industry have been doing to improve the advice available to consumers and developers, including the development of an online self-build portal to provide better information for self-builders, which now includes a plot-finding and “find a self-build contractor” service.
That action is having a real impact. According to the National Custom & Self Build Association, there are now more than 5,000 new plots in the pipeline, with many new projects across the country. Many councils are now bringing forward land and developing new initiatives to support custom builders, and there are more lenders operating in the market—26 compared with just 16 in 2011.
We recognise, however, that there is still a long way to go if this form of housing is to become a mainstream option in our country. In particular, we need to do more to address the lack of suitable plots of land being made available for self and custom build, and we know from our constituency mailboxes about the frustration that that lack of land can cause people.
That is why we announced in the Budget earlier this year that we would consult on a new right to build. The idea is simple: prospective custom builders will have the right to a plot of land from their local council to build their own home. Implementing that right in different land markets across the country, with different challenges and opportunities, is potentially complex, so we want to consult widely. I am pleased to say that we published our public consultation on the right to build yesterday, to coincide with the Second Reading of this excellent Bill.
The consultation sets out our vision for the right to build. First, eligible prospective custom builders, including groups of individuals, will be entitled to register with their local planning authority for a suitable, serviced plot of land on which to build or commission their own home. They will be recorded on a right to build register. Secondly, the demand for custom build on the right to build register will be taken into account in the preparation of local plans, so that appropriate planning policies are in place to bring forward sufficient plots of land for custom build. Thirdly, and crucially, registered custom builders will be offered suitable plots of land, with planning permission, for sale through the local planning authority at market value.
This is an ambitious vision, giving local councils an important new role stimulating custom build in their area. I hope as many prospective custom builders, local authorities and businesses as possible respond to the consultation over the next few weeks, to help us tailor the right to build to every local area and every aspiring self-builder in the country. As part of the process, we also intend to ensure that we consult the National Custom & Self Build Association and the Local Government Association. We want all the partners that can deliver this future prospect to work together in order to deliver it in the right way. To underpin the consultation and ensure that the right can work across the country, I announced in September a network of 11 right to build vanguards to test how the right can work in practice in a range of different circumstances.
I want to be clear that the full right to build will only be legislated for in the next Parliament. In particular, the idea of local councils offering plots of land to registered custom builders needs careful consideration. I am delighted that there is cross-party support to make sure that we can work to deliver that. We want to ensure that the right forms an integral part of the planning system and that it does not override the local plan process or trump existing planning designations that are designed to constrain inappropriate development and protect precious landscapes such as our green belt. We want to proceed carefully but fully, and to ensure that the views from the consultation and the experience of the vanguards play their part in informing the full legislation.
We think, however, that there is merit in legislating in this Parliament to establish a key foundation of the right to buy, namely the establishment of local registers of custom builders who wish to acquire a suitable plot of land to build their own home. I am delighted that my hon. Friend the Member for South Norfolk has given us the opportunity to work with him on his private Member’s Bill to put in place that early legislation.
Specifically, as my hon. Friend has emphasised, the Bill will ask local planning authorities to maintain a register of custom builders who want a serviced plot of land in their area and to have regard to the demand of the register in the exercise of their planning, housing, regeneration and land disposal functions. As such, it builds on national planning policy and guidance, which already requires local planning authorities to identify and plan for local demand for custom build in their local plans and five-year deliverable housing supply. In particular, the guidance already recommends that local planning authorities should develop registers of custom builders to help identify local demand.
The Bill as drafted sets out the broad framework for the register and the need for local authorities to have regard to it. The Secretary of State will have the power to make regulations about the operation of the register and issue statutory guidance to local authorities. We are very keen to ensure that regulations and statutory guidance take account of the outcome of the consultation and, crucially, the experience of the vanguards.
Ultimately, it is important that the register is seen as valuable to prospective custom builders—who are, after all, the consumer—and proportionate and not burdensome on local authorities, which we want to deliver this opportunity. That is why we are keen for the consultation to seek views about the practical operation of the register and the balance between a common national framework and—this is hugely important—local discretion and local accountability. In particular, an individual or group of individuals that seeks to acquire a plot of land in a local authority area to build their home would, under the Bill, be entitled to apply to register with the local planning authority.
However, it is important that custom builders have the opportunity to express preferences about the nature of the plot that they ideally seek for their home. We therefore propose, through regulations and statutory guidance, that applicants would have the opportunity to set out broad preferences in their application, such as general location—for example, a particular town—or a realistic price range for the plot based on local land values.
At the same time, the register is intended to demonstrate local demand for custom- build plots. Those on the register should genuinely be seeking to build or commission their main home, and have the financial means to acquire a plot at a going market rate and to build their home on it. We therefore propose to set out eligibility criteria in regulations. If an applicant fails to meet any of the criteria, the local planning authority would have the right to reject the application and not include it on the register.
The consultation specifically suggests four possible criteria—age, local connection, financial viability, and a main residence test to ensure that people are registering only to build their own main home, not a second home or a property to rent out. There is particular merit in giving local authorities the discretion and the right to ask prospective custom builders to demonstrate a local connection to be eligible for registration. That is especially important as new custom build developments should contribute to meeting local housing need, as identified in the local planning process.
We want to ensure that authorities have at hand the tools they need to manage demand effectively; for example, in areas of high demand, such as national parks. That will ensure that those areas are not overwhelmed, and allow the register to focus on identifying and supporting local need. At the same time, we recognise that some parts of the country will want to attract custom builders from outside the local area as part of a wider regeneration plan.
Local authorities will have the power to remove an individual from the register on certain grounds to be specified in regulations—for instance, if an individual notifies the local planning authority that they wish to be removed from the register, or if they cease to be eligible for the register. To ensure that the eligibility assessment and removal powers are not abused, a prospective custom builder who is deemed ineligible for the register following their expression of interest, or who is removed from the register, will have the right to request the local planning authority to review any such decision.
We are keen to ensure sufficient transparency. The register will not be made publicly available for data protection reasons, given that it is likely to contain personal data. It will, however, be legitimate for local planning authorities to make publicly available, on an annual basis, the headline data about the level of demand on the register—for instance, the number of individuals registered and their broad preferences. These data are particularly important as they will help to ensure that local planners, landowners, building contractors and custom builders have a clear idea of aggregate local demand for custom build in their area, and can therefore plan accordingly for their area or business. In particular, the aggregate data would form an important contribution to the process of making the local plan.
The Bill will require local planning authorities to publicise their register so that local custom builders are aware of it, and the Secretary of State will have the power to issue statutory guidance. How the register is publicised will be at the discretion of the local planning authority, taking into account statutory guidance and reflecting its individual circumstances, but I make it clear that we expect publication to be proportionate and not burdensome for local taxpayers.
There is no doubt that the detailed operation of the register will throw up practical issues and challenges. That is why I am pleased that we had such a strong response over the summer from local authorities wanting to become right to build vanguards. I especially welcome the diversity of those authorities, which has allowed us to select a wide range of different types of authorities. All the vanguards are committed to establishing registers and making plots available in response to the level of demand on their register. We will work closely with them over the next year to test the practicalities of maintaining a register and of making sufficient land available across a range of different local housing and land markets so that regulations—under this Bill, as well as under the legislation for the full right to build—can be informed by the practical experience of delivery on the ground.
The list of vanguards includes several authorities that have established a strong custom build track record. Cherwell district council in Oxfordshire has led the way in establishing registers for prospective custom builders through its Build! programme. It is pursuing the largest custom build project in the country at Graven Hill, which will offer nearly 2,000 plots over the next decade on land bought from the Ministry of Defence. Similarly, South Cambridgeshire district council is keen to work with major developers in the area to ensure that its significant growth plans reflect the demand for custom build and enable homes to be delivered faster. Shropshire council and Teignbridge district council, which cover predominately rural areas that face local housing growth pressures, have been at the forefront of developing innovative policies in their local plans to make more land available for custom build.
Perhaps more interestingly, it is not only local authorities with strong growth pressures that are actively considering custom build. Two of the vanguards, Stoke-on-Trent city council and Oldham council, are in areas in the north and the midlands with lower housing demand. They see custom build as part of the solution to regenerate their areas. Sheffield city council is keen to offer its surplus public land for custom build. Its inclusion in the vanguard process will allow us to test how a register can operate in a large conurbation.
We have chosen a number of authorities as vanguards, such as South Norfolk, which is the home council of my hon. Friend the Member for South Norfolk, and Pendle and West Lindsey in Lincolnshire, which are keen to pursue custom build, but are only starting to formulate their final plans, so that we can learn lessons for the majority of authorities that are yet to engage proactively with the custom build agenda.
Perhaps the most welcome bid was a joint bid for vanguard status from the Dartmoor and Exmoor national park authorities. I am delighted that the national park authorities are actively engaging with our proposals. We have no intention of using the right to build as a means of encouraging unacceptable development in our most precious landscapes. However, the national park authorities are keen to explore how the register could be used to identify and address local housing demand from long-standing residents who work and live in their national parks.
Finally, we will work with the Greater London authority on the merits of a pan-London register of prospective custom builders. Although the Bill proposes that the requirement to maintain a register should fall on London boroughs, we recognise that London poses particular challenges, such as high potential demand and significant land constraints, especially in inner London. Just this morning, the hon. Member for Lewisham East (Heidi Alexander) outlined what is happening in her area. Recently, I saw the YMCA using modern technology to put together properties that could just as easily lend themselves to custom build and self-build opportunities for first-time buyers. The experience of Berlin, where there is a growing culture of custom building, shows that custom build can be a viable option in world cities that, like London, face significant growth pressures. We are keen to hear people’s views on the most appropriate approach for our capital city.
I believe that the experiences of the vanguards will enrich the development of the registers for which the Bill legislates. The legislation has been drafted deliberately to ensure that there will be sufficient flexibility in the regulations governing the detailed operation of the registers to reflect the vanguards’ experiences.
We are keen to explore how the right to build can be used to support more custom-built affordable housing. Although custom build is generally considered to be a form of market housing, it has a track record of delivering affordable housing. We think that registered providers can play an important role in bringing forward custom-built affordable housing by bringing sites to market, enabling and supporting others, and providing information and support.
Not that long ago, I was proud to take the Secretary of State to see the first council-built homes in a generation being built in my constituency of Great Yarmouth. Those homes are being built using modern technology and the skills of local people from the great Great Yarmouth college. The very same technology that is delivering those homes could easily be used to deliver homes on a larger scale for custom build and self-build projects in constituencies right through the country from Great Yarmouth to Cornwall, Newcastle, London and elsewhere. Our consultation proposes that the register should enable prospective custom builders who are eligible for affordable housing to register in partnership with a registered provider.
In conclusion, I am determined to ensure that we help everyone who aspires to build a home of their own. The Bill marks an important milestone along the road to achieving that. Along with the consultation and the vanguards that I have outlined, I am keen to build a consensus on how the right to build can be implemented effectively to deliver long-lasting change and make more high-quality homes available to hard-working people. I commend the Bill to the House.
Question put and agreed to.
Bill accordingly read a Second time; to stand committed to a Public Bill Committee (Standing Order No. 63).
Control of Horses Bill
(10 years, 1 month ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Julian Sturdy (York Outer) (Con)
I beg to move, That the Bill be now read a Second time.
I am delighted to be able to introduce this simple but important Bill, which I believe will go a long way towards improving the existing legislation on fly-grazing and, in the process, improving horse welfare.
First, I must draw Members’ attention to my declaration in the Register of Members’ Financial Interests. As a farmer, although I have not suffered the effects of fly-grazing, I have witnessed at first hand the problem and the horse welfare horrors it causes. It is my aim today, in the time available—I know that a number of hon. Members want to speak—to set out the scale of the problem, explain why the current legislation is not working and set out exactly what the Bill will do. Finally, I will touch on my intention to apply its provisions to private land, with the will of the House, for reasons that I will make clear.
Some Members with long memories may well remember that I secured a similar debate on the connected issue of illegally tethered horses back in July 2012. Last November, my hon. Friend the Member for East Hampshire (Damian Hinds) secured an excellent debate on the issue of fly-grazing. Unfortunately, the problem has worsened since then. I appreciate that for some, the problem of fly-grazing might seem somewhat mundane, but try telling that to the farmer whose crops are being destroyed, the motorist whose life is endangered by a horse on the road or the animal welfare charities that work tirelessly every single day to rescue horses from the miserable existence to which so many are condemned.
At the core of the issue is a simple but profound point of principle: that no one should be above the law. Abandoning horses to a life of neglect has no place in civil society, nor should people’s lives be negatively impacted by those who have little regard for the law. Habitual fly-grazing represents a complete and utter lack of respect for the law and the wider community. Frankly, it is beyond me how some people have the nerve to take over someone else’s land without permission for their own gain.
It is impossible to know precisely what the true scale of the problem is. My constituents on the edge of York face the problem of fly-grazing, but sadly it is not restricted to York or the great region of Yorkshire. It is found throughout the entire country, from the countryside to our towns and cities, and even on some busy roundabouts.
I would like to place on record my thanks to Members from all parts of the House for their support since I introduced the Bill. We need cross-party co-operation to tackle what has become a terrible problem for many communities up and down the country. I have been working with a wide variety of rural organisations and welfare charities, ranging from the Royal Society for the Prevention of Cruelty to Animals and World Horse Welfare to the Countryside Alliance, the Country Land and Business Association and the National Farmers Union. I also wish to put on record my thanks to all the charities and organisations that have worked hard on the issue. If the organisations that I have mentioned can agree that this fundamental animal welfare issue needs addressing—they do not always agree—there is hope yet that Members from all parts of the House can work together to tackle it.
Definitive numbers are impossible to provide, but welfare charities believe that unlawful fly-grazing has increased significantly in recent years, with conservative estimates that at least 3,000 to 4,000 horses are being fly-grazed in England alone. During the past decade, fly-grazed horses have become an acute problem for farmers and local authorities. The lack of care that the horses receive, and the actions of their irresponsible owners, are threatening people’s livelihoods, causing huge animal welfare problems, and risking the lives of motorists. This is a horse crisis of unprecedented levels, which is exactly how animal welfare charities and rural organisations regard the issue.
Two excellent reports have been published on this issue: “Left on the Verge” and “Stop the Scourge”. Those reports are essential reading for all Members present today, and indeed some may touch on them later in the debate. Unfortunately, rural organisations have all reported an increase in the number of cases of horse neglect and abandonment that have been brought to their attention. The irresponsible horse owners who engage in the practice appear to have little concern for the impact they are having on people’s lives, and people from across the country have contacted me with their own stories of how existing laws are letting them down.
In my constituency of York Outer there have been a number of incidents involving horses being fly-grazed. A month ago an accident on the A64 from York to Bridlington involved two horses that were being fly-grazed and a cement lorry. Sadly, but as one would expect, the consequences were not good. One horse died almost immediately, but the second was only injured and subsequently went missing. It had been moved by persons unknown, but was later traced back to a local site where the RSPCA attempted to treat the injured animal. Unfortunately, the mare had to be euthanized soon afterwards, as although she appeared to be responding to treatment, vets were unable to control her pain and she was found to be bleeding internally. The owner of the horse has yet to come forward.
In November 2013, three Shetland ponies were removed from the same site in my constituency in extremely poor body condition. The attending vet gave the ponies body scores of 0.5 and 1 out of 5—a score below 1 is officially categorised as “emaciated”, and the animal is all too often close to death by that point. Although the RSPCA was advised who the owner was and was able to contact them and conduct interviews, it was unable to prove ownership so the case could never proceed to court. Thankfully, the ponies were re-homed.
A further case from my postbag involved another horse being hit by passing traffic on the A1079 from York to Hull. It was reported that the owner had discovered the horse in a terrible state of pain in a field where it was being fly-grazed, yet they decided to leave the animal to die in a neighbouring field without any veterinary attention. Again, the RSPCA was unable to prove ownership of the horse, which must serve as a reminder that those tragedies would never have occurred if the owners had looked after their horses responsibly and not left them abandoned to their own devices.
Fly-grazing not only blights the lives of horses subject to it, but also impacts on farmers who grow our food. A 2012 survey by the National Farmers Union found that more than 1,000 farmers have direct experience of fly-grazing, and a similar number are aware of neighbours who have been victims of it. More than half of all respondents had suffered from fly-grazing on their land on multiple occasions, with more than a third affected more than five times in a single year.
This week I received telephone calls from farmers from Richmondshire and South Yorkshire. In the latter case, an elderly farmer has for the best part of a decade had up to 80 horses being fly-grazed on his land, yet Doncaster council has consistently failed to address the problem. It appears that this very serious case also included a long campaign of intimidation by the owners of the horses that, the farmer believes, resulted in the much hastened death of his neighbour, an elderly farmer in his eighties, after a dead horse was left at the end of his lane in a grim Mafia-style warning. Because of such behaviour, many people fear reprisals and do not want to come forward so that those responsible can be held to account. Fly-grazing is part of the much wider issue of rural criminality, which all too often goes unnoticed by the metropolitan elite. Meanwhile, lives are blighted by criminal damage and intimidation of often vulnerable people in isolated households.
Local authorities have also suffered the ill-effects of fly-grazing, both in their capacity as landowners and from trying to address the situation as enforcers of the existing legislation. In a survey in 2014 conducted by animal welfare charities, more than 70% of responding local authorities said that fly-grazing was a problem in their area. One authority even reported spending more than £100,000 on attempting to crack down on the issue. More than 80% of local authorities surveyed also said that the changes I propose in the Bill would help them to address fly-grazing more effectively in the future. That support has been further cemented by my meeting with the Local Government Association on this issue.
The reasons behind the growing prevalence of fly-grazing are complex. My understanding is that since the horsemeat scandal that devastated our confidence in the EU’s food safety process the price of horsemeat has plummeted. Notwithstanding that collapse, irresponsible dealers have continued to buy, breed and import horses, and the market has become saturated. A horse can now be purchased for as little as £5, although it can cost in excess of £100 a week to look after it properly. Some evidence suggests that irresponsible dealers are importing horses from France and Ireland under the tripartite agreement that allows for free movement of horses without health checks. As the market for horsemeat in mainland Europe is also depressed, dealers are left with a surplus of horses, much of which—sadly—can be seen grazing along the roadside and in other people’s fields.
Over-breeding of horses is also a significant issue and another great concern that I share with the animal welfare charities. Irresponsible horse owners are failing to ask themselves, “Do I need to breed from my horse? Is there a market for the foals? Can I afford the costs involved in caring for and supporting more horses?” When the answer to those questions is no, the temptation to fly-graze is all too clear, especially when enforcement action is so varied.
One area that has got to grips with the problem is Wales. The Welsh Government have given their local authorities powers to seize fly-grazed horses after seven days and, if necessary, to destroy them. Seven days is still a long time to wait to seize a fly-grazed horse, although the existing legislation in England provides for 14 days. A shorter period would benefit everyone involved. The code of practice on the welfare of horses says that owners should check on their horses at least once a day, so if a horse has merely strayed—as opposed to being deliberately fly-grazed—the owner should pick up on that very quickly.
The main mechanism for dealing with fly-grazing has been the Animals Act 1971. Under the Act, it is possible for landowners to detain livestock that strays on to their land after 14 days, and sell such livestock at auction or public market.
It was drawn up at a time when animals fetched a good price at auction and there were not so many horses being grazed, and unfortunately it was not designed for the problem of deliberately fly-grazed horses. There are, therefore, numerous problems with using the Act to deal with this growing issue. For example, it refers to animals straying on to other people’s land, but with fly-grazing we are concerned with animals placed deliberately on someone else’s land without their permission, which is a different matter, both in action and intention.
The Act allows animals to be sold at auction, but often the horses have little or no value, and it is commonplace for the owner to buy back the horse at a knock-down price, the horse having been microchipped by the person or local authority responsible for the horse’s initial detention. Thus, the irresponsible horse owner who engages in fly-grazing at the expense of others gains a fully vetted and legally compliant horse at little cost. The current law, therefore, has the perverse effect of allowing them to benefit from their actions, while leaving local authorities, farmers and taxpayers to pick up the pieces.
Welfare charities have argued strongly for a mechanism whereby the horse being fly-grazed can either be re-homed or, in some circumstances, humanely destroyed. Sadly, there is often no demand for horses for re-homing. The RSPCA, World Horse Welfare and Redwings tell me that their re-homing centres are full of unwanted horses. Sadly, we have too many horses, and without the measures proposed in my Bill the cycle of fly-grazing will continue unabated, with horses growing in numbers and the problem spreading further and wider.
Another major problem with the Animals Act is that it requires the person detaining the fly-grazed horse to look after it for up to 14 days. During this time, they are responsible for the horse’s welfare—they have to feed and water the horse and ensure it does not stray or harm itself—which can be expensive. This is the nub of my point. Too often, an irresponsible owner who abandons a horse on someone else’s land has no intention of paying any of these costs, and although there is provision in the Act to recover costs, it is often impossible to do so because there is seldom any way to identify the owner.
The authorities can use other mechanisms to crack down on fly-grazing. If a horse is suffering, it is possible to use provisions in the Animal Welfare Act 2006 to take emergency action, but often the horses are not in immediate distress, so the emergency provisions are not applicable, and they might then be left until they are in severe distress, which cannot be correct. In some cases, local authorities could issue a community protection notice, under the Anti-social Behaviour, Crime and Policing Act 2014, but in such cases the owner of the fly-grazed horse would have to be known. As I said, however, too often the owner’s identity is not known—and the weapons in our armoury against the scourge of fly-grazing are all the weaker for it.
As a proud Yorkshireman, taking inspiration from the Welsh is an unusual concept for me, but that is exactly what the Bill does. It takes inspiration from the Welsh Assembly’s example in order to close the current loopholes. It would make several small but significant amendments to the 1971 Act to make it easier to tackle fly-grazing head on.
I propose three changes. First, the Bill gives local authorities in England the power to detain a horse in any public place in its area where the authority has reasonable belief that the horse is there without lawful authority. It is worth noting that the provision can apply to both stray horses and ones placed there deliberately by irresponsible owners. This is similar to the powers available to local authorities in Wales under the Control of Horses (Wales) Act 2014.
After detaining a horse—and detaining can include removal—the local authority must inform the local police within 24 hours of its right to detain the horse. Once the police have been informed, the local authority may detain the horse for a total of four working days from when it was first detained. The current time frame in Wales is seven days. To my mind, seven days is still quite a long time for a landowner or local authority to have to care, house and support a horse that is not one of their own. After that time, the local authority may dispose of the horse by selling it, arranging for it to be humanely destroyed or in any other way such as gifting the horse to an animal welfare sanctuary or re-homing it with a loving family, if at all possible.
After four working days, the owner of the horse will no longer be able to claim it back—crucially breaking the cycle of abuse and neglect. Where a horse is sold and money is left over from the sale, any excess money once the costs of looking after it have been deducted can be claimed back by the owner. As I said, however, the horses are often of such low value that there is hardly ever money left over after the sale.
It has always been my intention that these changes to the Animals Act 1971 should be applied to all land—to private land as well as to public places. I am advised by the Public Bill Office, however, that the long title of this version of Bill does not stretch to the inclusion of private land. Sadly, this was due to a slight misunderstanding between myself and the department that seeks to keep control and order in this place. My intention, with the support of the House, is that, should the Bill reach Committee, we consider amending it to extend the same provision to private land as to public land. This would allow occupiers of private land the same benefits as those of local authorities with respect to public places. In my opinion, it is essential that public and private land receive the same protection under the law from fly-grazing. Otherwise, we could see the mass migration of thousands of horses on to private land, as it becomes clear that many irresponsible horse owners know full well how to exploit the law’s current loopholes.
I am advised that for the Committee to consider such amendments as are cognate to the Bill, this House would need to pass an instruction. I hope that time will be available for such a motion, and I ask whether the Minister would be willing to table the instruction. Should the Public Bill Committee agree, the intention would be to amend the Bill’s long title in order to make it consistent with provisions relating to private land as well as public land.
In conclusion, the issue of fly-grazing affects a great number of people in a great many ways, as I have made clear and, I am sure, as other Members will make clear. In almost every case, an innocent law-abiding person is either endangered or taken advantage of. This issue is a cause of deep anger and frustration for many individuals up and down the country who want to see robust action taken. I hope that Members will support me in trying to take that action and that the law will be changed so that it applies universally and fairly. I believe the Bill will go a long way towards tackling the scourge of fly-grazing, and I commend it to the House.
Caroline Nokes (Romsey and Southampton North) (Con)
I congratulate my hon. Friend the Member for York Outer (Julian Sturdy) on having had the determination to present the Bill.
I am not sure whether I need to declare an interest. I have kept horses and ponies for a long time, but I can assure the House that I have never fly-grazed one of mine. Like many other horse owners, I am acutely aware of the cost of responsible horse ownership. I seem to spend an inordinate amount of my time focusing on a reduction in numbers—not altogether successfully, because the direction of travel always seems to be up.
My hon. Friend rightly identified the issue of irresponsible ownership, but let me emphasise that the vast majority of Britain’s horse owners are entirely responsible. Their animals are, in many ways, treated like their children. Just like other pet animals, they are part of the family—loved, cherished and looked after. There are many of them: although no accurate figures exist, which is a problem in itself, it is thought that there are between 600,000 and 1.2 million horses in the United Kingdom. They are also big business. In 2011, the British Equestrian Trade Association estimated that the horse industry contributed £2.8 billion to the British economy every year.
According to some terrifying statistics produced by Equine World UK, the cost of keeping a single horse can range between just over £3,000 and £10,000 a year, depending on how the horse is kept. The British Horse Society has produced a detailed breakdown of the costs of responsible horse ownership. Interestingly, there is no total at the end, and I did not dare tot up the sums; suffice it to say that they are the sort of eye-watering numbers that I have spent all my life trying to keep from my father.
Those figures, of course, relate to responsible ownership. They include farriery costs and the costs of vaccinations, worming, equine dentists and vets. Those are costs that all who cherish their animals willingly pay, but the owners described by my hon. Friend simply do not bother with them. That is the reason for the horrific welfare cases with which so many equine charities are struggling to cope. When they are called to places such as Alton in Hampshire, in the constituency of my hon. Friend the Member for East Hampshire (Damian Hinds), the rescue charities are not contending with fit and healthy animals; they are dealing with starving, sick animals, riddled with parasites, and with hooves that have grown to such an extent that they bring to mind pictures that used to be seen only in advertisements for foreign welfare charities.
I picked Alton—perhaps unfairly, as my hon. Friend the Member for East Hampshire cannot be here today—largely because when I was chief executive of the National Pony Society, it was based in that town. The NPS is Britain’s oldest pony charity, and is dedicated to the welfare of British native breeds and the British riding pony. It does not have a rescue facility of its own, but it is a member of the National Equine Welfare Council.
I remember from meetings that I attended back in 2008-09 that the welfare crisis was well known then, and the rescue centres were already struggling to cope. Wind the clock forward five-plus years, and the situation is much worse. The numbers are much higher, the cost of feed has gone up, and charities that were previously struggling to cope have now gone beyond breaking point. That does not mean that they are not doing their absolute best in extremely difficult circumstances. When, as happened in Alton, they are called to a field of 45 horses that have been dumped by their owners—and, in that instance, multiple owners were thought to have been involved—for whatever reason, and have been left to fend for themselves as a herd, the charities are already at capacity, and in many cases, sadly, there is only one viable option. No one likes to talk about euthanasia, but for sick, old, lame and starving horses it can be the kindest option. However, there are then the costs of destruction. The British Horse Society estimates that it can easily run to £500 per animal, and who is to pick up the bill when animals are not necessarily microchipped or freeze-branded and no one can trace the legal owner?
The case that I have just described occurred on what was definitely private land. Let me now say something about what happens on local authority-owned land. I have never forgotten the sight of two small ponies trotting down Coxford road in Southampton right past the general hospital. Few Members in the Chamber today will recognise the geography of Southampton, so let me assure them that that is right in the urban core of the city. I have no idea where those two ponies had come from, but the only pieces of open land anywhere near there are the cemetery, the municipal golf course, Southampton common and the sports centre, all of which are owned by the city council.
I do not know if those ponies had come from any of those areas, but I do know that fly-grazing has been a problem in the city for many years. It has happened on both private and public land, but areas such as Peartree green have frequently been abused in this way, and it causes distress and concern for local residents. Many of them are simply not used to seeing relatively large animals with potentially dangerous traits—I learned from a very early age that they kick at one end and bite at the other—and it can be extremely scary, especially for the parents of young children who wish to use the play areas and the sports pitches, and also for the horses themselves, which are not usually used to being in an urban environment and can sometimes be found tethered with inadequate access to food and water and without the sort of shelter responsible owners lavish upon them.
Of course in the Romsey and Southampton North constituency we might reasonably expect horses to be commonplace. There is a small corner of the New Forest in my constituency and at Canada and Wellow commons we can find the indigenous New Forest ponies in abundance. I am the first to celebrate feral ponies running wild—our traditional mountain and moorland breeds, which can be found in their natural state all over the British isles. It entertained me earlier to hear the Minister speaking of the national parks of Exmoor and Dartmoor, but in many cases it is our national parks where we find our native species running free, from the Exmoor and Dartmoor ponies in the south-west to the original Thelwell ponies on the Shetland islands—as an aside, Norman Thelwell was one of Romsey’s most famous former residents, who lived on the banks of the river Test. However, these are distinct cases and very different from the situations my hon. Friend the Member for York Outer has identified in his Bill, but I am sure he has considered them, and fully considered how the national park authorities might address this sort of issue, should they encounter it.
In other parts of my constituency there have been real problems with semi-feral herds of ponies, including an unfortunate incident earlier this year at Braishfield, where a large number of ponies escaped and ran loose through the famous Harold Hillier gardens and arboretum, causing much damage. While there can be an almost comical aspect to the prospect of police community support officers, police officers and local residents running through the gardens chasing after roughly 80 ponies, it is not funny for a motorist who encounters a dark-coloured pony in the dead of night standing in the middle of the road.
If we find a horse or pony loose, they are very tricky to identify. Yes, since 2009 all foals have had to be microchipped, but when there are large fields of horses with no discernible owner indiscriminately breeding among themselves, who exactly is checking whether they all have passports or microchips? Local authorities simply do not have the resources or the expertise to be matching fields of feral horses to what in many cases is non-existent documentation.
My hon. Friend the Member for York Outer rightly referred to the problem of over-breeding and identified that in many instances owners might decide simply to continue breeding when there is no viable market for the stock they produce. I would highlight that those who breed responsibly do so very scientifically and with much thought, in many cases with generations of knowledge and expertise, but even they, producing very high quality animals with commitment, love and dedication, cannot find homes for all the ponies they produce—or certainly are finding it very difficult to do so with an economic return on them. Why then are irresponsible owners simply getting away with indiscriminate breeding? In many cases, close relatives will be breeding among themselves, producing many conformational defects and horses that are never going to be any use on the open market because they are not sound and never will be.
Earlier this year a loose pony was found on the A36 trunk road running through my constituency. I met one of my constituents clinging desperately on to it with a length of washing line in the car park of the local convenience store, and I did the decent thing and took it home. As I did so, I spoke to a police officer who had been forced to stop all the traffic on the trunk road, and a jam was building up. I said, “What do I do with it now? How are we going to find the owner?” I was met with the response, “We’ll just wait until somebody notices it is missing.” I looked at this beast, which I did not much want—it was very sweet, but I did not want to keep it or have the costs associated with doing so—and was told that the owner might appear. Last night we debated the perils of social media but this incident proved their power, because once the mugshot of the offending pony was plastered all over Twitter, Facebook and Snapchat the owner recognised the wandering criminal, came forward, collected it and took it home.
I wondered what would have happened if the owner had not done so. How long would I have been left with this wee beastie? If I had sent it to auction, that would in no way have met the cost of keeping it for however long was necessary. If it had had to be sent to be humanely destroyed, I certainly was not going to be the one stumping up £500 for that. The local authorities do not have the capacity to stable unwanted straying horses, the charities are at breaking point and the police certainly did not want to be lumbered with this beast, although they were keen to get it off the main road. Thankfully, it eventually went home. I cannot say that I blame the local authority or the police for not wanting it, because the costs of stabling it would have been horrendous, and over long periods, in particular, our public services and local authorities cannot be expected to sustain those, especially not in the numbers we have heard about today.
Hampshire is thought to have about 5,000 fly-grazed horses and ponies, and is second only to Surrey in that respect. Those figures were put together by the Country Land and Business Association. My hon. Friend the Member for York Outer has done sterling work in introducing the Bill, which aims to remove the ambiguities in the current law, and consolidate powers into one place and strengthen them. He has worked tirelessly to secure Government support and, given that, as he said earlier, the situation is a crisis, he has been absolutely right to do so. What we all want from this Bill is an improved welfare situation; greater clarity for local authorities so that they can more easily detain, secure and dispose of animals that are causing a hazard and being illegally grazed; an avoidance of situations where owners at the last minute remove one animal and replace it with a different one; and, importantly, a presumption that, if you can find them, the owner of the horse will be liable for damage and all associated costs.
Sir Edward Garnier (Harborough) (Con)
It is a pleasure to follow my hon. Friend the Member for Romsey and Southampton North (Caroline Nokes), who brings to this debate a good deal of experience in the ownership of horses, both as a child and as a responsible adult. It is also a pleasure to congratulate my hon. Friend the Member for York Outer (Julian Sturdy) on bringing this Bill to the House. Like her, he knows a great deal about this subject, both as a constituency Member of Parliament and as a farmer. He has set out the facts and the concerns that a great number of his constituents and mine, and no doubt those of my hon. Friend the Member for Romsey and Southampton North, have as a consequence of the unlawful grazing of animals on other people’s property. I have no doubt that the Minister will be able to sum up this debate and respond on behalf of the Government. His presence here highlights the importance the Government place on this matter. It is important that we try to produce a practical solution to this obvious problem.
As my hon. Friend the Member for York Outer said, the current legislation is well meaning but it is inadequate to deal with the problem we face, which is a national one. The Welsh Government have attempted to deal with it, but in his constituency, as in that of my hon. Friend the Member for Romsey and Southampton North and in my own, in Leicestershire, we see on a daily basis the difficulties caused by irresponsible owners and the illegal use of other people’s land.
At the moment, as my hon. Friend the Member for York Outer candidly accepted, the Bill deals with public land only. It is most important that it is adjusted to enable the owners of private land to be protected by its provisions. The problem on public land is bad enough, but until we sort out the private land problem, we are only nibbling at the problem.
We have all seen examples—I have certainly seen them in my constituency—of horses either tethered or wandering about on main road verges, roundabouts and other vacant land, which may or may not be in public ownership, strictly speaking, but which is certainly accessible to the public. There one sees—predominantly, I am afraid, they are coloured horses or ponies—horses of varying degrees of health. Just outside my constituency in Enderby, which is close to the city of Leicester, I have seen horses that could only be described as toast racks. I have seen them lying alive but unable to move in puddles, in boggy fields and in the most appalling state and the most uncomfortable conditions. Until those irresponsible owners are prepared to own up to owning them, very little can be done of a practical nature.
At the heart of the matter is how best to use public resources to deal with the problem and how best to discover and then to deploy the evidence of ownership. Without evidence of ownership, even under my hon. Friend’s measures, it will still be difficult to pin on those errant owners financial responsibility for the consequences of their actions.
I applaud the introduction of measures that will allow local authorities to dispose of such beasts, either by sale or destruction at an abattoir, but I worry that if the local authority cannot sell the beasts, and as my hon. Friend has quite properly said, these animals are of little financial worth, and is forced to have them destroyed—to have them put down—that will involve a cost.
As we well understand—this is not a controversial party political point—our local authorities are short of cash. Harborough district council has a revenue budget of between £10 million and £12 million a year. It is not a large metropolitan authority with lots of money. It must husband its resources extremely carefully. It must have an order of priorities. If it is a question of performing a more general and acceptable public service or spending its limited resources on taking abandoned horses to the abattoir, I suspect that it will place the removal of the horses at the bottom end of the list of priorities and that the problem will persist.
I look to the Minister to see whether he can provide us with at least an indication, if not the whole answer, of what we do when a local authority would like—it is not a matter of wishing or desiring, but this is the only option available to it—the horse to be taken to the knackers or the abattoir, but the cost of doing so is an inhibiting factor, even if not wholly prohibitive.
There is this great problem of ownership. Far too many people need to be brought to book, whether under the criminal law or under the civil system of justice, for their irresponsible ownership of their animals. The shorter detention period that my hon. Friend’s Bill would introduce is a welcome amendment to the law. He set out the deficiencies or difficulties caused by the existing legislation, particularly the Animals Act 1971. A number of other pieces of legislation work to a greater or lesser degree, but they all founder on the difficulty of pinning ownership on an individual or a group of individuals who can be required to accept responsibility.
Evidence, evidence, evidence is what we need, and unfortunately this Bill does not provide for it, but at least if local authorities and, when the Bill is amended in Committee, private landowners can, after the shorter detention period, deal with the animals in question, I hope the problem will be lessened and the Bill, as amended, will have a deterrent effect. Once the legislation is in force, I hope the Government will make sure that nobody can be in any doubt that if they leave their horses on somebody else’s land, be it a private owner or a public owner, the horses will be confiscated and brought into the ownership of other people, who will be able to dispose of them, and that if the original owner can be found, it will be at their cost.
I have one question which my hon. Friend the Minister may be able to answer when he responds to the debate, or perhaps on another occasion or in writing to me. That relates to one of the conditions in the proposed amendment to section 7A of the Animals Act 1971, which is dealt with in clause 2. Subsection (2) of proposed new section 7B states:
“The right to detain the horse ceases at the end of the period of 24 hours beginning with the time when it is first detained unless, within that period, the local authority gives notice of the detention to”—
this is where the question lies—
the officer in charge of a police station”.
What is the officer in charge of the police station supposed to do with the information? Is that simply a box that has to be ticked or does it place a positive duty or burden on the police to do something? No doubt the affected landowner would like the police to go and search for the owner of the horse. Certainly, that is what I have asked my local police to do on behalf of my farmers and owners of fields who have had their grazing land trespassed upon by these ponies. Like the local authority, my police force does not have endless resources.
Julian Sturdy
The intention is to allow people who have legitimately lost their horse, or whose horse has broken free from land it has been grazed on—paddock land and so on—and has strayed, to log that with the local police force. If the police have that information, they can then respond accordingly so that the shorter period of detention does not impact on those legitimate horse owners.
Sir Edward Garnier
That is extremely helpful; I am most grateful to my hon. Friend. That releases my hon. Friend the Minister from having to deal with that point, which has now been dealt with comprehensively. That is the advantage of having a chap who knows what he is talking about introducing the Bill.
All that needs to be said has been said by my hon. Friends and I will therefore curtail my remarks, apart from two general points. First, if the Bill is to work, it is essential that we collect evidence of ownership and tighten up the means by which we identify the owners of horses. It is well said in the document “Stop the Scourge”, which was produced by a number of bodies interested in the subject whose concerns are well set out, that if we do not improve the way in which we identify horse owners, there will be a lot of tears before bedtime. The existing identification system needs to be strengthened.
Secondly, we need to make sure that the balance of resource is properly distributed. I fear it is a matter of practicalities. We are unlikely to recover much money from the errant horse owners. There will therefore be a competition, or the absence of a competition, between public authorities over who should have to pay for all this. I urge my hon. Friend the Minister to have some intense discussions with the Home Office and the Department for Communities and Local Government on how we distribute the burden of sorting out what is an obvious problem.
As I said a moment ago, I have had any number of constituents bring to my attention the problems they face as a result of having horses unlawfully on their land. I have had a number of meetings with the Market Harborough branch of the National Farmers Union, a number of whose members have been physically threatened, and indeed physically assaulted, by the owners of those ponies and horses. It is extremely frustrating for them, as law-abiding, tax-paying, farming citizens, to have to watch those people stick two fingers up at them as the horses trample on their crops, predate on their grazing and cause them endless trouble.
I thank my hon. Friend the Member for York Outer for introducing the Bill and wish him every success with it, not least with his amendment to introduce the aspect of private land ownership. I urge all parties in the House to allow him the triumph that he well and truly deserves.
Angela Smith (Penistone and Stocksbridge) (Lab)
I begin by thanking the hon. Member for York Outer (Julian Sturdy) for bringing forward this important private Member’s Bill. His comments demonstrated a clear understanding of the issues relating to fly-grazing, such as the impact on horse welfare, the burden that this illegal habit places on local authorities and why it has been increasing in recent years. He has a long history of campaigning on the issue and, as the hon. Member for Romsey and Southampton North (Caroline Nokes) pointed out, he has worked hard to secure Government support for the measures being debated today. He underlined the cross-party support for the Bill, which I will talk more about later.
I also thank the other Members who have spoken, the hon. Member for Romsey and Southampton North and the hon. and learned Member for Harborough (Sir Edward Garnier), who both highlighted the problem in their constituencies. I also want to put on the record our thanks to the organisations that have campaigned long and hard to get this issue on the national political agenda, including the RSPCA, Blue Cross, World Horse Welfare, HorseWorld, the British Horse Society and Redwings. They all came together recently to produce a damning report entitled “Left on the Verge: In the grip of a horse crisis in England and Wales”, which the hon. Member for York Outer referred to. It catalogues the appalling neglect and animal welfare abuse all over the country, including in his constituency.
In short, this problem affects all parts of the UK—I want to emphasize that point—and it is growing. The hon. Member for Romsey and Southampton North rightly indicated the extent of the problem in her area, in Hampshire, and, in particular, in Surrey. The hon. Member for York Outer also pointed out that it is a big issue in north Yorkshire and in places such as Doncaster. Although Doncaster is governed at local level by a metropolitan local authority, it does not have the significant resources required to deal with such problems. We should not be using local authority money to deal with these illegal activities. We need to deal with the problem, which affects the whole UK.
The hon. and learned Member for Harborough also referred to “Stop the Scourge”, the booklet recently produced to indicate the depth and scale of the problem and what needs to be done. What is pleasing about that report is that the RSPCA and the Countryside Alliance are on the same page—something we do not often see. That indicates the strength of feeling on this issue across the country, and the strength of the consensus about how to deal with it.
It is important to point out that there are many good horse and pony owners, including many in the Traveller community, for whom responsible horse ownership and trading is an integral part of their way of life and culture. However, there is also a minority of people who, for many reasons, are not responsible. Those people do not care about animal welfare and frequently put horses at risk, never minding the damage and dangers that they create for others with their irresponsible actions. The incident on the A64 highlighted those dangers perfectly.
Illegal fly-grazing is a complex issue with many aspects. The dumping of horses is often a consequence of over-breeding and the drop in the value of horses. There is a lack of passporting and micro-chipping to enable easy identification of horse ownership, as has been clearly illustrated by all the examples that have been laid before us. It is to do with the complexity of outdated legislation, which allows unscrupulous owners, at great taxpayer expense, to dance around the authorities and enforcement regimes. It is also about criminality.
Labour Members believe that this issue needs urgent attention, and we therefore support the Bill and hope that it makes good progress. That is not to say that we are completely happy with it, or that it will not benefit from improvement in Committee, as the hon. Member for York Outer acknowledged. We believe, like him, that it could be improved in some areas.
Before I move on to our concerns about the Bill in its current form, I would like to comment briefly on the lack of action by the Government. In contrast to Labour in Wales, which has grappled with this issue and already brought forward legislation to deal with it, Ministers in this place have dithered and done nothing while the problem grows. As my hon. Friend the Member for Ogmore (Huw Irranca-Davies) recently stated, the Government could have introduced amendments to existing legislation, such as the Animals Act 1971, to improve the situation, but they have chosen not to act.
Alternatively, Ministers could have brought forward a simple Bill, as did the Welsh Government, that would have given local authorities and other agencies the powers they are asking for to deal with this issue—powers relating to proof of ownership, to removal, and to the ability to dispose of animals removed in such a way. Instead, we have seen nothing, and now, perversely we see the problem growing in England after Wales has acted. In short, parts of England are being seen as the softer option, and Wales’s problem is being exported to add to the existing problems that we have in England.
We do absolutely welcome the Bill. However, one major difference between this Bill and the legislation introduced by the Welsh Assembly is that it covers only public land, as the hon. Gentleman pointed out. That, in our view, is a major weakness. Without the inclusion of private land, enforcement would be difficult, if not impossible in many cases, and that is unacceptable. For the Bill to be effective, all types of tenure of land need to be included. We believe that private land needs to be added to its provisions, and we would support its strengthening accordingly. I note the hon. Gentleman’s comments about the use of an instruction by way of a motion for the House to consider. We will support any motion of that kind in order to get the Bill into the right form. I hope that the Minister will say the same, and that we can all continue to work together on this on a cross-party basis.
The RSPCA has seen a 20% rise in calls relating to tethered horses, and over the past few years there has been a huge rise in incidents of fly-grazing reported to local authorities. The impact, therefore, is not just on local authorities, whether they are large or small and whatever their resources, but on big charities such as the RSPCA, which is feeling the pressure because it has to deal with the issue.
Our outdated and ill-fitting legislation and enforcement powers are allowing criminals to pirouette through their responsibilities and evade justice while horses suffer and landowners, whether they are public or private, find themselves enmeshed in a cruel and unnecessary tragic farce.
We wish the Bill well as it passes through its perilous parliamentary journey, which could be made much easier with Government backing. There is every indication that they do back it, and I look forward to hearing the Minister’s comments and hope we can get the Bill through the House and the legislative process. We will continue to offer our support, so long as the Bill deals with the issue in its entirety. However, let me make one thing clear: if this Bill fails to make it to the statute book or, indeed, if it remains too weak to be able to tackle this most serious of issues, we will legislate to stop this practice, if we form the next Government.
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (George Eustice)
I welcome this opportunity to set out the Government’s approach to tackling the issue of fly-grazing. Before I begin, perhaps I ought to declare an interest: I am a member of the Flicka Foundation, which is a horse and donkey sanctuary based in my constituency. As part of my membership package, I think I adopted a donkey called Tabitha.
My hon. Friend the Member for York Outer (Julian Sturdy) has long championed this issue. As he said in his opening remarks, he first held a debate in Parliament on this issue as long ago as 2012. I am happy to tell him that, sometimes, persistence pays off in this place, because I am delighted to confirm that the Government will support this simple but important Bill, which we believe could have a significant impact on helping people deal effectively with the issue of fly-grazing.
Many hon. Members will have had large amounts of correspondence from their constituents on this important issue. Animal welfare charities have done a great deal to highlight some of the challenges, including by producing reports such as “Left on the Verge”, to which the shadow Minister, the hon. Member for Penistone and Stocksbridge (Angela Smith), referred. As some hon. Members have said, it is estimated that there are some 3,000 stray ponies and fly-grazing horses in Wales and another 2,500 or so in England, so this is a serious problem.
As my hon. Friend the Member for York Outer has pointed out, this is not the first time we have debated the issue. Indeed, last November, about a month into my appointment as the Minister responsible for farming, we had a debate that had been secured by my hon. Friend the Member for East Hampshire (Damian Hinds). During that debate, we heard about the many problems caused by people fly-grazing their horses, and we have heard more about that today. In some parts of the country, significant numbers of horses are being fly-grazed and such incidents appear to be occurring more frequently. There have been incidents of fly-grazing horses straying on to the highways and, as my hon. Friend the Member for York Outer noted in introducing the Bill, in at least one case that has led, sadly, to the death of a person in a road accident.
Since the November debate, there have been many calls on the UK Government to replicate for England the provisions in the Control of Horses (Wales) Act 2014. We have been watching developments in Wales with interest. My hon. Friend said that he was reluctant to seek inspiration from Wales on this issue. As a Cornishman, I have no such reluctance: we western Celts have much in common and often learn from one another.
During last November’s debate I set out the approach we have taken in England to date, which has been to encourage all relevant local interests—local authorities, police, farmers, landowners and animal welfare charities—to co-operate to tackle the issues on the ground using the existing legislation. It is worth remembering that that there are four key relevant Acts, including the Animals Act 1971 and the Animal Welfare Act 2006, which is relevant to the issue of horses in distress. I also highlighted during the November debate the potential for the Anti-social Behaviour, Crime and Policing Act 2014 to give us stronger powers to deal with fly-grazing; I will return to that later. Finally, there is the Highways Act 1980.
Since the debate in November, we have given the issue more consideration. I can tell the House that my noble Friend Lord de Mauley has done a lot of work on it. He has met welfare charities, as well as my hon. Friend the Member for York Outer, to discuss what can be done. The Government now recognise that making small amendments to the 1971 Act would go a long way to ensure that the provisions work better for those trying to deal with fly-grazing. The amendments would bring the legislation up to date, and make the process more efficient and less burdensome.
The debate in November brought out the fact, which has been highlighted again today, that there have been several changes since 1971. The first change is the introduction of microchipping and horse IDs. As I noted in the previous debate, since 2009 it has been a legal requirement that horses be identified with a microchip and passport. We know that many people who fly-graze horses do not do that, which has created two problems that we did not have in 1971. First, it makes it very difficult to identify and tackle the owners. Secondly, it makes it all the more expensive for local authorities and others to deal with the issue. Once they have detained a horse, they have to microchip and passport it themselves before selling it, which places added costs and burdens on them.
Another development since 1971 has been the change in the mode of sale or disposal of fly-grazed horses. Under the 1971 Act, a detained horse can be disposed of only through sale at market or auction. In 1971, when the Act was drawn up, animals fetched a good price at auction, and fewer horses were fly-grazed. My hon. Friend’s Bill proposes to amend the 1971 Act to provide a more flexible set of options, including euthanasia, sale or gifting to a charity.
The reality is that horses often have little or no monetary value today. There have even been cases of the owner of a detained horse buying it back at a knock-down price at auction, after it had been microchipped by the person who detained it. The fly-grazer was therefore able to gain a legally compliant horse at little cost, which cannot be fair. We need to address that matter, and my hon. Friend’s Bill does just that.
We have listened to the animal welfare charities. They have strongly argued for a mechanism whereby fly-grazed horses can either be re-homed or, in some cases, put down. Sadly, there is so little demand for horses and so much demand for re-homing that charities such as the RSPCA, World Horse Welfare and Redwings have all reported that their re-homing centres are full of unwanted horses.
Bob Stewart (Beckenham) (Con)
Is there a direct correlation between the increase in fly-grazing and the fact that the value of horses has dropped so much? People just do not care any more: as horses have no value, they might as well fly-graze them.
George Eustice
From listening to the animal welfare charities, we know that part of the problem has undoubtedly been a lot of irresponsible breeding of horses. Horses are being bred for whom there is no market. Sadly, they are then abandoned by people who, frankly, are not fit to own horses in the first place.
I want to move on to the central feature of my hon. Friend’s Bill, which is the length of time that an animal must be detained before it can be sold. One difficulty created by the 1971 Act is that it requires the person who detains a horse to look after it for up to 14 days. During that time, they are responsible for its welfare and for preventing it from straying, and they are liable for any costs incurred. The Bill would permit the disposal of horses after the equivalent of four working days, rather than the present 14 days. We think that four working days strikes a good balance: it is lower than the figure of seven days that applies in Wales and, to respond to the point made by my hon. and learned Friend the Member for Harborough (Sir Edward Garnier), it will significantly reduce the cost to both local authorities and landowners of intervening in such cases, because they can sell or dispose of an animal after only four working days.
There are consequential amendments that must be made to the 1971 Act, one of which relates to the point that was put to me by my hon. and learned Friend the Member for Harborough about the requirement to give the police notice that one has detained a horse within 24 hours. In addition to the point that was made by my hon. Friend the Member for York Outer, it is worth pointing out that currently, notice must be given within three days. We think that it is proportionate to reduce the deadline to 24 hours, given that we have condensed the period of detention. There is a requirement to give notice to the police so that if they receive a report of a horse going missing, they can reconcile it with the report of fly-grazing, and thereby reunite ponies and horses with their legitimate owners who have just managed to mislay them.
Sir Edward Garnier
I am grateful to the Minister and my hon. Friend the Member for York Outer for clearing up the point about the police. When the Bill becomes an Act, would it be worth issuing guidance to local authorities and police authorities on informing local hunts of the existence or whereabouts of detained horses, because they have facilities to help with the removal of horses, dead and alive?
George Eustice
That is something that may be considered when the Bill is, I hope, enacted.
The animal welfare codes recommend that a horse that is being kept should be tended to at least once a day to check that its welfare needs are met. We feel that the 24-hour notice period is reasonable because the legitimate owner of an animal would realise that they did not have the animal quite quickly. If the police are notified within 24 hours and there is a four-working-day period of detention, it will enable them to reunite the legitimate owners of a horse with their animal.
In common with the 1971 Act, when a detained horse is sold and there is money left over from the sale, any excess money, after the costs of the sale and of keeping the horse are deducted, can be claimed by the horse owner. For the most part, the horses that we are talking about will probably be of such low value that it is unlikely that there will be any money left after the sale.
The final element that I want to touch on relates to the concerns of welfare charities about the ambiguity of the definition of “stray” horses. Although the position has never been tested in the courts, the Bill seeks to address the concern that the 1971 Act is not designed to deal with deliberately placed horses. Clarifying the definition by making it clear that it includes horses that are there without legal authority is an important step forward.
Mr Mark Spencer (Sherwood) (Con)
I hope that consideration will be given in Committee to areas such as Exmoor and Dartmoor, with which the Minister is familiar, where there are wild ponies. How will one distinguish between animals that are being fly-grazed and wild herds?
George Eustice
My hon. Friend may well have the opportunity to raise those points as the Bill progresses.
The Bill represents an important step forward in promoting more responsible standards of horse ownership. It will uphold the need for owners to pay proper attention to their horses’ welfare and to avoid the burdens that fly-grazing imposes on public safety and private and public property.
I want to return to a point that I raised in the last debate on this subject. We must not lose sight of the potential to use the Anti-social Behaviour, Crime and Policing Act 2014 to deal with this issue. In addition to the changes that the Bill will make to the 1971 Act, it is possible for local authorities to use a more streamlined antisocial behaviour measure under the 2014 Act, which came into force only this week. Local authorities and the police can issue a community protection notice against fly-grazers without having to apply to the courts. As my hon. Friend the Member for York Outer said, we recognise that in most cases the owner of the fly-grazing horse would have to be known, and in many cases that is not possible to establish without some form of investigation. To return to the point that my hon. and learned Friend the Member for Harborough made, however, it is important that we do something about owners who abdicate their responsibility and neglect their horses. The Bill will give local authorities the ability to pursue irresponsible horse owners. Two prolific and persistent fly-grazers have recently been issued with antisocial behaviour orders under the old-style measures, so although we accept that there are difficulties, we still believe that we should act.
Finally, I return to the extension of the Bill’s provisions to private land, which several Members have mentioned. Bearing in mind the significant effect of fly-grazing on private land, the Government support such an extension, which would be consistent with the scope of the 1971 Act. It will require the approval of the House for amending the scope and long title of the Bill, but given the importance of doing so, the Government are happy to support that on this occasion. Such amendments would give private landowners and occupiers the benefits of the changes to the 1971 Act that local authorities will gain in respect of public places. I can confirm that we will therefore table a motion to direct the Public Bill Committee that it can consider amendments to the Bill that would enable its provisions to apply on private land.
I believe that the changes will be welcomed by local authorities, landowners and the animal welfare charities that have done much to highlight the issue in recent years. I congratulate again my hon. Friend the Member for York Outer, who looks set to be more successful with his private Member’s Bill than I was with mine some years ago. I am happy to confirm the Government’s support for the Bill, and I wish him the very best of luck in taking it through Committee.
Question put and agreed to.
Bill accordingly read a Second time; to stand committed to a Public Bill Committee (Standing Order No. 63).
Local Government (Review of Decisions) Bill
Mr Mark Spencer (Sherwood) (Con)
I beg to move, That the Bill be now read a Second time.
This is an important Bill for solving the problem of health and safety interfering with small charities and community groups that are trying to do the right thing in their community but sometimes get bogged down in the bureaucracy of local government. The Bill will make local authorities accountable for health and safety decisions that they take about events, and it will offer citizens a route of redress when the local authority cancels events or when members of the public consider that the local authority’s conditions on an event going ahead are over-zealous, unreasonable or disproportionate. In particular, it will give members of the public the right to a review of a negative decision.
The Bill also makes specific provision for the local government ombudsman to treat complaints related to health and safety decisions about events differently from how it responds to other complaints. It provides for the possibility of a fast-track process to allow the ombudsman to examine those decisions and overturn them or recommend that they be reviewed rapidly—hopefully within 14 days. It is also intended that the Bill will go some way towards halting or even reversing the risk aversion that seems to have developed in our local authorities over recent years. That risk-averse culture is what makes the Bill so necessary.
The inspiration for the Bill comes from Lord Young of Graffham’s 2010 report, “Common Sense, Common Safety”, which was produced after a Whitehall-wide review of the operation of health and safety laws and the growth of the compensation culture. In his forward to the report, the Prime Minister expressed clearly the genesis of the Bill when he wrote that newspapers were reporting even more examples of senseless bureaucracy that gets in the way of people trying to do the right thing. He said that we should put a stop to senseless rules that get in the way of volunteering, and that we need a system that is proportionate, not bureaucratic, that treats adults like adults, and that reinstates some common sense and trust. Treating adults like adults and not letting bureaucracy get in the way of communities coming together to hold events, celebrate local anniversaries or mark a special event in the national or local calendar is one aim of this Bill.
I am sure everyone knows a story about health and safety, or a decision taken by a local authority that could politely be described as over-zealous. I have a couple of examples with which I hope you will allow me to indulge the House, Mr Deputy Speaker. A pancake race was held on pancake day in St Albans, but health and safety officials decreed that because it had rained in the morning, competitors would be required to walk rather than run. Apparently the announcement was met with playful and friendly banter from the crowd, but one can only imagine how people will have responded on that occasion. There are examples of a ban on sparklers. Anyone who is planning on celebrating bonfire night in the near future will know how charming and decorative sparklers can be—indeed, I suggest they are almost an integral part of bonfire night, unless someone happens to be at a display in Newcastle, Gateshead, Manchester or Lambeth, where sparklers have been banned. One presumes that hot soup and sizzling sausages might also be banned on account of their danger.
Finally, a recent example of just how far the culture of an over-zealous, disproportionate application of an unbalanced approach to health and safety has spread can be found at a village cricket team in Norfolk—the county where the Minister has his constituency—which has been forced to relocate after the council introduced new rules banning the use of cricket balls on its pitch. I suffer at home because my wife has banned the use of cricket balls in the house—my son and I have both been disciplined for that—but a cricket pitch is probably a reasonable place to expect to use a hard cricket ball.
The Bill tries to redress some of those issues, and proposed new section 22A(2) to the Local Government Act 1974 states that if a local authority in England prohibits or restricts in some way an event on health and safety grounds, it must give written notice of the decision, and the reasons for it, to the applicant or event organiser. Local authorities should already be doing that; it is not unusual and we would expect that to happen, but it does not on every occasion. Proposed new section 22A would also require local authorities to carry out a review of the decision if requested, and reply within 15 days explaining whether it is to be confirmed, withdrawn, replaced or varied, and the outcome of that decision must be provided in writing. Once again, one would expect a local authority to do that already, but that is not the case in every circumstance. The Bill is silent on the mechanics of such a review, which allows local authorities to determine for themselves what process to go through and how it will work, so that they can design their own systems and the most cost-effective way of responding to applicants.
If local authorities behave as they should, there will be no extra cost whatsoever. The system will work perfectly well, and the current system of inspecting health and safety and ensuring that our constituents and local charities are safe will carry on as it always has. If they behaved as they should, a review would not be needed. Any local small charity that was holding an event would apply for a licence and be given permission, with no over-zealous constraints, so that the event could run as planned.
If an issue could not be resolved locally, a complaint could be made to the local government ombudsman. If the complainant considered that they had suffered an injustice arising from maladministration of that decision, they could forward it to the local government ombudsman. Clause 2 would amend section 28 of the 1974 Act to give the local government ombudsman power to adopt different procedures for different categories of any case, including a fast-track procedure for certain cases—so what I am proposing would be legally possible. The expectation is that the ombudsman would use the fast-track procedure to deal with complaints arising from decisions of local authorities to ban or restrict events on health and safety grounds, so that if the recommendation by the ombudsman were that the decision be revisited, the authority would have the opportunity to do so before the event took place. That is important. If someone is faced with such bureaucratic nonsense, the ombudsman would have the opportunity to step in to allow the local authority to rethink its decision and for the community event to continue as planned. Unfortunately, the ombudsman does not have the power to overturn a decision, but it can recommend that a decision be revisited. If that is not possible, the ombudsman does have the power to recommend compensation. If the time scale does not allow the event to go ahead, but the ombudsman finds in favour of the applicants, compensation could be paid for their losses.
The Bill would not affect the important and necessary health and safety legislation that exists to protect employees and the public in the streets. We need to curb the over-enthusiastic and over-zealous implementation of health and safety legislation without putting members of the public in any danger. If someone were to propose letting members of the public dive off a high board into 12 inches of water, common sense would say that that was dangerous and pretty daft. Health and safety legislation has a role in looking after our constituents, but when it gets to the stage of making the players of a game of conkers wear goggles so that they are not injured by flying sections of conker, we have gone from conkers to bonkers.
Occasionally, there is less to a story than gets reported, but the stories do seem to keep coming. The Health and Safety Executive has even set up a myth-busting section on its home page. I commend that website to Members and the public to educate themselves. Anyone who thinks that the health and safety culture is a myth should consider such examples as the library that instructed borrowers not to take books into the toilet, the school that banned a sports day morning session because of dew or the village hall that ruled that washing up after events could not be done by hand but a dishwasher had to be used. Those stories, and hundreds like them, make a compelling case that this is a serious issue.
Communities should not be dissuaded from coming together, whether it is to raise money or celebrate a local or national anniversary. The health and safety culture puts extra barriers in the way of those communities who want to get involved and support each other. The Bill should help to block the actions of some of the over-zealous members of our local authorities. It would not only make local authorities more accountable for their decisions but encourage them to think more carefully about them. It would give applicants and event organisers a means of redress when events are cancelled by an authority on health and safety grounds, if they consider the restrictions unreasonable, and, crucially, help to halt the risk-averse culture that has developed in our authorities.
I hope that in Committee we can examine how the Bill might effectively address issues that have arisen over the years and that small charities, women’s institutes and others will be able to hold community events without some local authority staff being overzealous in their application of the licensing procedures. It is a simple Bill, with not many lines to amend, and I am hopeful that the Government will support it. I thank the Minister and his team for their support so far and other Members who have pursued this matter, not least my hon. Friend the Member for Dover (Charlie Elphicke), who first raised it, and my hon. Friend the Member for Christchurch (Mr Chope).
Lord Young’s 2010 report, “Common Sense, Common Safety”, which followed a Whitehall review of the operation of health and safety laws and the growth of the compensation culture, made recommendations on the compensation culture, low-hazard workplaces, raising standards, insurance, education, health and safety legislation and local authorities:
“Officials who ban events on health and safety grounds should put their reasons in writing… Enable citizens to have a route for redress where they want to challenge local officials’ decisions. Local authorities will conduct an internal review of all refusals on the grounds of health and safety…Citizens should be able to refer unfair decisions to the Ombudsman, and a fast track process should be implemented to ensure that decisions can be overturned within two weeks. If appropriate, the Ombudsman may award damages where it is not possible to reinstate an event. If the Ombudsman’s role requires further strengthening, then legislation should be considered.”
The Government accepted these recommendations, and the Bill addresses all of them, so I hope we can move forward with it.
The Bill would insert new provisions into the 1974 Act requiring local authorities to provide the event organiser or person applying for a decision with written notification of a decision when the authority stops an event or imposes conditions or restrictions on health and safety grounds. It also provides that the applicant or event organiser can request a review to be completed within 15 days and that the Local Government Ombudsman may identify categories of complaints and require that these be investigated faster than others. On finding that the process to arrive at the decision involved maladministration, the local government ombudsman can recommend that the authority undertake to pay compensation.
This is a timely Bill; indeed, it probably should have been brought forward a little earlier. Obviously, Government business has not allowed it to come to the fore hitherto. I hope that, with Government support and the support of my colleagues, we can move forward and put the Bill on to the statute book to allow those community groups to continue to do the good work they do in raising money for charities, marking anniversaries and celebrating the sort of community events that hold our society together. I commend the Bill to the House.
Emma Reynolds (Wolverhampton North East) (Lab)
It is a great pleasure to speak again on this very active Friday and to congratulate the hon. Member for Sherwood (Mr Spencer) on coming so high up in the private Members’ ballot, on tabling the Bill and on proposing its Second Reading.
I seem to be having a rather disquieting day in that I have to admit that I am agreeing with Conservative Members rather more than I am accustomed to! The Minister and I did not trade blows on housing earlier this morning; rather, we had a useful discussion on the first private Member’s Bill we considered. I fear that there is going to be another reasonable, balanced and consensual discussion about this Bill, too.
Let me present the Opposition’s position on the Bill. I understand that its purpose is to introduce a right of rapid appeal when a local authority proposes to prevent an event from being held or indeed seeks to impose restrictions on such events on health and safety grounds. The Bill places on local authorities a requirement for a written justification for such a refusal.
In common with the hon. Member for Sherwood, I am keen on community events—especially if they take place in my Wolverhampton North East constituency, but I support them in different parts of the country as well. Some of the examples given in the hon. Gentleman’s opening speech are indeed worrying. It is also true to say that local authorities, as he acknowledged, have a duty to their communities in preserving health and safety and ensuring that people are always safe. The hon. Gentleman provided an example at the other extreme—about diving boards and a lack of water—and we would of course not want to see that happen. This debate is interesting in that the most difficult decisions taken by local authorities are not often at either of those extremes, but either somewhere in the middle or at the margins.
Difficult decisions need to be taken by local authorities, sometimes in unusual circumstances. In my constituency and across Wolverhampton, for example, we have a healthy and vibrant Sikh community. One year, the local council cancelled the annual Vaisakhi event, literally on the very morning it was due to take place. It takes place every year on the first Sunday in May. I attend it every year. It was cancelled on the basis of very high winds and appalling weather, and I think the council was right to do that, as it looked pretty dangerous. A local authority does not take lightly its duties to protect health and safety; it takes them seriously.
The Bill would not affect those sorts of cases, as it attempts to strip out what the hon. Gentleman calls the most over-zealous applications of health and safety legislation. I understand his reasoning. We need to strike a balance between protecting the health and safety of those whom we represent and for whom local authorities work, and ensuring that community events are allowed to go ahead when there are no substantial risks
Mr Spencer
I hope that if the Bill is passed it will never actually need to be used, because a local authority and the organiser of a community event will have gone through the process of discussing health and safety before the point is reached at which someone would step in to stop the event. That is what causes the most frustration: a community group has advertised an event to the public, and then someone steps in and stops it at the last moment.
Emma Reynolds
I understand that. In the example that I gave, extreme weather conditions prevented a community event from taking place. In such circumstances, it is difficult to give any warning. However, the examples given by the hon. Gentleman made clear that decisions are often made too late, and events have to be cancelled after a great deal of work has already gone into publicising and marketing them. Sometimes it is difficult to let everyone know that an event has been cancelled. The Opposition are sympathetic to the idea of fast-tracking the appeal mechanisms that the hon. Gentleman wants to introduce, because we think it right to give communities and those who organise community events more certainty and a better process to follow. We are keen to scrutinise the Bill in Committee to ensure that the appeal mechanisms are appropriate and proportionate.
I urge the hon. Gentleman and the Government to consult carefully with the Local Government Association, which I hope they are already doing. The association has made known its views on the Bill, and has asked for Government assistance. The hon. Gentleman says that the Bill will not require any taxpayers’ money, but—I am being devil’s advocate here—the association contends that it may end up doing so if spurious claims are brought against local authorities. I know that the LGA is particularly nervous about the Bill. I think that the hon. Gentleman and the Minister, and his Department, should do some more detailed work to ensure that authorities are allowed to make the right decisions in the right way without finding themselves having to disburse what they say could be significant sums as a result of spurious claims. I am sure that that point will arise in Committee.
The Bill is intended to change the culture and try to introduce a more common-sense approach to the way in which decisions are made, and that is welcome. Sometimes, in difficult and extreme circumstances, local authorities have to change arrangements or refuse to allow events on the basis of health and safety. They will still be able to do that, but the Bill requires them to present a written report explaining their decisions. In fact, they are probably already doing that internally, but it seems right for event organisers to have access to a local authority’s justification, and, if they feel that it is not good enough, to be able to appeal.
We broadly welcome the Bill, although some of the details will need to be scrutinised in Committee. I must say that I hope this does not start some kind of case-by-case cross-party agreement with the Minister, because I think that that would make our lives in Parliament a bit boring. However, it is sometimes good when we agree because we are then able to get down to the nitty-gritty, and it is in that spirit that we will support the Bill’s Second Reading.
The Minister of State, Department for Communities and Local Government (Brandon Lewis)
I am not quite as surprised as the hon. Member for Wolverhampton North East (Emma Reynolds) that we agree; I always knew she would come round to our way of thinking eventually, and long may it last.
On a serious note, I would like to begin by thanking my hon. Friend the Member for Sherwood (Mr Spencer) for his excellent work on this Bill, the aims of which are wholly supported by the Government. I want to make it very clear what this Bill does not do before moving on to the drivers of the Bill—why it is needed—and its intended effect, because I do not want there to be any misunderstanding or confusion about the provisions in the Bill, their intended effect or what the Government are supporting. The hon. Lady is right that there will be things to talk through in Committee and the LGA will want to feed into it, although I would point out to the LGA that while local government is building up reserves of some £20 billion to £21 billion it should be focused on the savings it can make by not needing to have health and safety inspectors trawling around taking up too much time—and it will probably find there is a potential saving there as well.
We do need to make sure health and safety is taken seriously and addressed sensibly, however, so let me be very clear: this House will not weaken the very necessary and important health and safety arrangements that rightly exist to protect employees and the public health and safety regime in place nationally. The public, employers, authorities and enforcement organisations do have an important role to play in ensuring that not just our workplaces but our streets and recreational spaces are safe.
Proper and proportionate management of risk is, I think we can all agree, important, and where it is done properly it is to be commended, and in most of the country most of the time that is the case. We have no problem with adequate safeguards or with the proper and proportionate management of risk, nor will this place an unreasonable increased demand on the local government ombudsman’s resources, who also provides a valuable service, considering complaints from members of the public who consider they have suffered an injustice arising from maladministration in councils and other bodies.
The Bill does not change the remit of or impose extra burdens on the local government ombudsman, so what does it do? To begin with, it may be useful to reflect for a moment on the drivers for this Bill—on why it is necessary. My hon. Friend has outlined some of them. It could be said that the Bill has its origins in the rise of the risk-averse culture. By this I do not mean tall tales of health and safety gone mad—although, worryingly, it can be impossible to tell in some cases what is tabloid exaggeration and what is an actual decision about health and safety at an event that we could describe as an over-enthusiastic application of the health and safety culture. Rather, I mean the spread of a risk-averse culture where councils are taking decisions on the grounds of health and safety that either prohibit events from taking place altogether or place such heavy restrictions on them that the event is effectively prohibited from taking place.
These concerns were crystallised in Lord Young of Graffham’s 2010 report, “Common Sense, Common Safety”. The review found inconsistency across local authorities, with the rules on health and safety not being applied with a view to a proper risk management approach.
Mr Spencer
We are also talking about some of these events being prevented not for health and safety reasons, but for other reasons, where health and safety is cited as the purpose for blocking the event. Sometimes people use health and safety just as a reason from nowhere to try to block an event that they do not want to support or have not had the time to consider. It is those types of excuses, as it were, that I want to try to stop with this Bill.
Brandon Lewis
My hon. Friend makes a very good point. If health and safety is used as an excuse to stop an event happening, rather than an organisation being honest about whether it wants something to happen or not, that does a disservice to the entire world of local government and health and safety because it dilutes the very important role health and safety can play in our lives.
The review also found that in some instances inspectors were giving poor advice to organisations and individuals who were in turn prevented from running an event, such as a school fete, when there was no legitimate health and safety reason. Currently, there is no requirement to put the reasons for these prohibitive decisions in writing, and the specific grounds for the decision are not required to be made transparent. That is where part of the problem my hon. Friend outlined is clear. There is also currently no system for appeal or redress when an event is banned or curtailed; event organisers are simply required to accept the decision and not go ahead with the event as planned.
Where does that leave us? It leaves us with organisers discouraged from planning such events for fear, or out of an expectation, that a local authority official will not allow it. That leaves us with communities frustrated in their attempts to come together to celebrate national events or local events, or to raise money for good and charitable causes. Today, we can start to bring an end to that situation. We can put a stop to the spread of this culture.
This Bill is not just about making councils put decisions about health and safety at events in writing—they should be doing that in any case. It is also not just about providing those organising the event with a right of appeal when they disagree with a council decision—again, councils should be doing that. The Bill is about making councils think—about reasonable risk and about a proportionate assessment of health and safety—before they act. The Bill’s aims are simple. Its provisions would require local authorities to give written notification of a decision relating to health and safety at an event and to undertake a review of that decision, if requested. The intention is that those measures will rightly lead authorities to give health and safety issues careful consideration, bringing an end to bans or restrictions on activities that are a result of a risk-averse culture rather than a balanced and informed assessment of risk. Quite simply, the Bill should put a stop to rash decisions based on a risk-averse culture and lead to local authorities making well informed and sound decisions.
The provisions of the Bill, and the need for the local authority to provide reasons for its decision in writing, would bring transparency and accountability to the decision-making process in a way we have not seen before, and would do away with the culture of decisions behind closed doors. Local authorities are accountable to their electorates in the decisions they make. It is right that members of the public should be able to see how a decision has been arrived at as well as why. If a local authority’s decision is informed and sound, there should be no reason for an applicant or events organiser to seek a review of the decision through the ombudsman and, therefore, seek recourse to the mechanism that the provisions in this Bill will provide. The Bill is as much about changing behaviour about local authority health and safety decisions as it is about ensuring the decisions are sound and well informed.
Mr Spencer
Does the Minister recognise that as a society we seem to have lost the ability to rank risk and understand risk? Members of the public sometimes obsess about things that show no risk at all. When we drive to a community event we probably put ourselves in more danger than we do at the event itself. We sometimes wrongly prioritise and misunderstand the proportions of risk.
Brandon Lewis
My hon. Friend makes a good point. Let me give him a very good practical example of what he is talking about. As hon. Members will know, I always like to refer to the fantastic area of Great Yarmouth, where I live and which I represent. We recently held an event there in September, extending the tourism season, called the Out There festival, and I want to describe one of the most fantastic things in it, which was the crescendo and which almost brought everything to a close. The media loved it, as did the public; we had a fantastic atmosphere. It was a party where everybody anywhere in Great Yarmouth got covered in paint. It was the most phenomenal colourful exhibition of fun and of a community coming together, despite the fact that everybody probably had large cleaning bills afterwards. It was fantastic, but it is exactly that kind of event that, with the wrong attitude, could easily have been stopped. That event was an amazing way of not only improving our tourism economy for the year, but bringing the community together, raising the profile of our area and bringing people together to have fantastic fun. Such events are important to our communities. Where there is risk we should be aware of it, but it should not necessarily stop a good event, good fun and sensible times being had by all.
We have all heard of incidents in which it is fair to say there have been questionable decisions about events—we have all heard our own stories—but we need to be fair. It is perhaps advisable to question the veracity of health and safety stories that occasionally appear in the press—for instance, about festive events involving reindeer being cancelled due to the threat of snow—where the reporting may have erred on the side of being enthusiastic, or where the true origin of a story, perhaps schoolchildren being banned from playing conkers unless they are wearing goggles, as mentioned by my hon. Friend the Member for Sherwood, has more to do with individuals being over-enthusiastic in ensuring playground discipline than any local authority decision.
Indeed, there are so many stories about ludicrous health and safety decisions being made based on a risk-averse culture that the Health and Safety Executive, as has been said, has an area of its website dedicated to myths. It started in 2012 and showed 325 cases by the start of this October, the latest of which is about passengers not being able to board an aeroplane while carrying hot beverages. It really is recommended reading if anyone is ever in any doubt whatsoever that there is an over-cautious approach to health and safety in local government and beyond.
A few highlights—or lowlights, some people may argue—include the case of the scouts who were not allowed to have an allotment. Apparently, a troop of scouts under the supervision of a leader was advised by the chair of its local allotment community gardens site that they could not have a plot for health and safety reasons. The scouts were keen to grow their own veg, and an allotment would have been ideal for a small group to get started with. The HSE’s site usefully includes its view of the case, and it strongly believes that this was an excellent opportunity for scouts to become involved in growing food and getting physical exercise.
I am afraid to say that this is not the only case of children being discouraged when attempting to grow their own veg. A pre-school that used a garden managed by the local parish council and a designated public open space was told that it could not leave pots of flowers and vegetables grown by the children in the garden, claiming health and safety reasons, and asked for them to be removed. The pots were placed by posts holding up a small patio area and on slabs surrounding a shed. The pre-school had been told that someone might trip over the pots and sue the parish council. It has removed the pots, but it is unhappy because the children no longer have the learning opportunity that the growing of plants and vegetables would have allowed.
The HSE’s safety supremo was far from impressed and claimed that it is potty—yes, I am sorry about the pun—to impose a blanket ban on those standard garden items. These are everyday risks, and the parish council appears to be risk-averse in case it is sued. If there are real concerns about people tripping over pots, the council should discuss them with the pre-school staff, instead of depriving youngsters of the opportunity to learn by growing their own food and flowers.
Then there is the case of council bureaucrats banning donkey rides for children at a village fete because of health and safety concerns. If we ban donkey rides, most of our seaside resorts are in big trouble. Of course, nothing in health and safety law stops children enjoying a holiday donkey ride or requires them to wear helmets to do so. The HSE was very keen to set the record straight and for this and future generations to continue to enjoy the traditions of the summer fete and the seaside holiday.
To continue the seaside theme—as MP for Great Yarmouth, people would expect me to do no less, I am sure—let us move on to chips. We have fantastic chips in Great Yarmouth market square. I highly recommend them to all visitors.
Mr Spencer
Before my hon. Friend moves away from donkeys, I should draw the House’s attention to the fact that this could be the first time that donkeys have featured in debates on two consecutive Bills. I wonder whether the fact that we are prevented from bringing hot beverages into the Chamber is a health and safety issue, or whether it prevents Members from having our own little picnic and not concentrating on the business of the day.
Mr Deputy Speaker (Mr Lindsay Hoyle)
I can assure the hon. Gentleman that that is not the case.
Brandon Lewis
Thank you, Mr Deputy Speaker. My hon. Friend’s desire for a hot toddy late on a Monday evening is one that I will leave him to debate with the relevant authorities in due course.
Let us move specifically on to chips not being served in a paper cone—something that would ruin my Friday afternoons most weeks when I am not here. When ordering chips from a chip shop to take away, a customer asked for her chips to be just put in paper and wrapped in a cone, rather than having them served in the normal plastic tray, so that they would be easier to eat and carry as she walked round the shops. However, she was told by the lady serving behind the counter, “We can’t do that. It’s against health and safety, in case you burn yourself on the chips.” She was advised that once they served them to her, she was more than welcome to remove the tray and wrap them up herself.
The Health and Safety Executive is obviously no stranger to how best to enjoy this traditional treat. I should say that that did not happen in Great Yarmouth. We are very good at looking after our customers, as my Yarmouth Greats campaign has shown, with our great chip shops. The HSE considered that the customer made a perfectly sensible request and there was no health and safety reason that would prevent the shop proprietor from doing as requested. It concluded that such cases of poor customer service need to be wrapped up and thrown in the bin—I am sorry, but I could not resist that.
Fancy a swim to work off those chips, as some Members might argue I should do more often? Just make sure you take all your own equipment. A poster at a public swimming pool stated:
“Due to health and safety regulations, we are unable to lend floats, goggles or woggles.”
I leave Members to look up the meaning of “woggle”. The Health and Safety Executive was having none of this. It was clear that no health and safety regulation prevents the loan of goggles and flotation devices at public swimming pools. Many public swimming pools continue to provide these aids to swimmers without a problem.
Then there was the case where a council managed to use not only health and safety but planning as an excuse to annoy the very community that it should be serving. As the planning Minister, I found this example astounding. A council planning department asked the public not to remove out-of-date planning notices in public areas. The public were doing this in an understandable effort to clean up their community, proud of the area in which they lived. The tone of the Health and Safety response can be described as indignant. Stopping these community-spirited people makes no sense at all, it wrote. The council should cut through some of its own red tape and support well-meaning local volunteers. Removing redundant planning notices as part of a community clear-up poses no significant health and safety risks and should not be an issue.
Finally, there was a case that illustrated not health and safety gone mad, but a sensible approach to a problem which, by the way, turned out to have nothing to do with health and safety. A borough council hung bunting carrying 20,000 small knitted Tour de France jerseys on lamp posts, but the county council asked for the bunting to be taken down owing to concerns about the structural integrity of the heritage-style lamp posts. It appeared that the problem in this case was not the use of bunting, given that the council was distributing quite a lot of it, to its own design, but the use of wire under tension to attach it to heritage-style lamp posts. Given that the lamp posts were seen to be leaning under tension, it was probably a good idea to remove the bunting. The solution lies in suggesting alternative means to display the magnificent work of the locals in creating their own tribute to the tour.
These cases demonstrate that the risk-averse culture extends beyond local government. If reports are to be believed, it can even extend to our chip shops. We in local government and central Government set a trend. We have the ability to set the tone and the direction of travel for others so that they understand the need for common sense, but it is clear that councils have proved particularly adept at banning or prohibiting things on the grounds of health and safety. What the Health and Safety Executive’s replies show, and it should know about these things with the experience it has, is that we can and should trust people to get on with things and look after their own lives. There is risk, and there is also reasonable risk. People should be free to enjoy gardening, donkey rides and hot snacks served in newspaper, should they so choose.
Simply put, this risk-averse culture must be halted, and if by means of the Bill we can introduce measures that will halt it in councils, we will have made an excellent start. Councils have authority. When they set a bad example, it is easy for others to follow. Let us encourage them to set good examples, to let children do gardening and to let their own public-spirited residents remove out-of-date planning notices if they want to. The story of the knitted jerseys in particular illustrates reasonable risk prevention. It was not the fantastic bunting that was the issue, but the decision to suspend the bunting using tension wire. One can understand why a local authority may take issue with suddenly being famed for its leaning lamp posts, but a simple solution was to use a different type of wire.
Reasonable risk, communities coming together, enjoyment and celebration without frustration—that is what the Bill seeks to achieve. It is true that there are stories about councils banning activities on health and safety grounds that, on closer inspection, turn out to have more to do with the desire to publish a good story than with what might actually have taken place. But what does the story about the council that required a pancake race to be held at walking pace tell us about health and safety? It sounds much less plausible than the story about a killjoy council stopping children enjoying a donkey ride, but it is true—that actually happened—and it is not the only example.
In short, there is a culture of local authorities making decisions about events based on the over-enthusiastic application of a risk-averse health and safety culture. Those decisions have a real effect on people and our communities. We have a great tradition in our country of communities coming together to celebrate, have a good time and raise money for good causes while doing so. It is wrong for councils for no good reason to prevent community celebrations and events that draw communities together.
The problem is this: local authorities have become overly cautious in respect of health and safety; not in all cases—let me be clear about that—and not all over the country, but certainly on too many occasions. Where health and safety is used as an excuse to stop an event taking place, or to place restrictions on it, it is right that such decisions should be transparent and challengeable.
As my hon. Friend the Member for Sherwood mentioned, and as I have made clear, the Bill does not seek to ensure that the very sensible health and safety regulations that apply to the workplace, to public areas, to our streets and to our recreation spaces are disregarded. Rather, we want to ensure that on the occasions when health and safety is used as an excuse to ban or restrict an event—when the application of health and safety concerns is over-zealous or disproportionate, or when the restrictions on the event are unreasonable, either by requiring a fee or restricting an activity—the authority must first justify its decision and then, if required, review it. That process should bring accountability to health and safety decisions and, in so doing, result in minimal recourse to seeking to review a health and safety decision.
The proposals are straightforward, sensible and proportionate. The Bill requires authorities to undertake certain actions when they ban or restrict events on health and safety grounds. In particular, it requires that if an authority decided to prevent an event from being held, or imposes restrictions or conditions on it, it must put the reasons for such a decision in writing, electronically or otherwise. That written notification of a ban or restriction must be sent to either the person who made the application or the organiser of the event if no application was made. The written notification must be sent on the day the decision was taken or, if that is not possible, the first working day thereafter.
The requirement to issue written notification extends not only to a ban that prohibits an event, but to restrictions that might be judged so unreasonable as to amount to a ban. If the person who made the application, or the organiser of the event, is unhappy with the authority’s decision to ban or restrict the event on health and safety grounds, they may request that the authority reviews the decision. The authority must complete an internal review as soon as reasonably practicable after it receives a request for a review and, in any case, within 15 days of receipt of the request, and on completion of the review it must give written notification, in electronic form or otherwise, to the person who requested it. The outcome of the review is that the decision may be confirmed, withdrawn, replaced with another decision or varied, but only varied so far as the decision could have been one reached in the first instance.
Local authorities are accountable to their electorates for the decisions they make, so it is not unreasonable for us to expect an authority to put its reasons for refusing or restricting an event on health and safety grounds in writing for the people affected. That is the sort of good practice that authorities should be following—many already do—in bringing transparency to their decision-making process. True localism is about embracing the wishes of local communities. The provisions in the Bill put in place a framework that will allow localism, and not a risk-averse culture, to flourish.
Briefly, on the role of the local government ombudsman, we consider that it is right that local issues should be resolved at a local level, without a member of the public needing to have recourse to a national body such as the ombudsman.
Mr Spencer
I am sorry to interrupt the Minister when he is in full flow, particular as he is agreeing with me so wholeheartedly, but I wanted to put on the record the fact that, as I am sure he recognises, most people who work in local authorities have the best intentions and want to support community groups, and it is only in a very small number of these cases that decisions need to be controlled and overturned.
Brandon Lewis
My hon. Friend makes a good point. He reminds me that I should have made it clear, for the benefit of all Members, that I am sure the Committee— the shadow Minister outlined her view that it should look at this thoroughly—will want to ensure that the Bill enables his wife, Mrs Spencer, to use health and safety measures quite widely to ban his internal cricket matches at home, which sound as though they may bring his cricketing judgment into question. I am sure that his family can deal with him appropriately when he gets home.
This Bill will ensure that local authorities do not make rash, unsubstantiated decisions. The provisions that require a local authority to set out its reasons for a decision, and allow a decision on health and safety grounds to be challenged, should lead to a more informed, sound decision-making process and ensure that matters can be resolved, where they should be so resolved, at a local level by local people accountable to their local communities.
However, if things cannot be resolved at a local level and the authority is at fault, it is right that the public have a right to redress through the local government ombudsman. I stress again that we are not changing the ombudsman’s remit. We are giving the ombudsman the ability to fast-track such investigations, at their discretion, so that where they do arrive at a decision that finds maladministration, the local authority is given the opportunity to review the decision to enable the event still to take place. The Bill therefore makes specific provision for the ombudsman to treat this particular class of complaint differently from other classes.
These provisions do not change how the ombudsman currently operates in relation to local authority complaints. We expect local authorities to comply with the recommendations of the ombudsman. The objective of the ombudsman is to secure, where appropriate, satisfactory redress for complainants and better administration for the authorities. If, following an investigation, the ombudsman determines that there has been maladministration in a local authority, the ombudsman can make recommendations for redress— for instance, an apology or payments of compensation —or recommend that the local authority undertake some remedial action or provide a service.
The ombudsman can already recommend financial settlements, where appropriate, to put right an injustice. The ombudsman recommends paying compensation in a very small number of cases. While the ombudsman has discretion in the remedies that are applied where a complaint has been upheld, a financial remedy is applied only where it is felt that this is the appropriate remedy to put right an injustice. It is true that the Bill’s provisions will allow the ombudsman discretion to award damages where it is not possible to reinstate an event. However, given the mechanism to accelerate a decision on health and safety grounds so that the local authority can still look to reverse that decision on review, it is highly unlikely that the ombudsman will need to seek recourse to this remedy. Indeed, I would go further and add that the threat of a remedy, including a financial remedy, should ensure that local authorities think very carefully about decisions on health and safety grounds.
As I have said, this Bill is as much about common sense, and changing the behaviour of local authorities in the way that a decision is arrived at, as about putting in place a mechanism for allowing a member of the public to seek redress when a decision is viewed as disproportionate and unreasonable. If we do this right, and the Bill goes through all its stages, its most vital aspect will be in changing people’s attitudes and getting us get back to trusting people to make decisions for themselves and their communities.
We consider that the provisions will perform a valuable function. It is right that if an authority takes a decision to stop or to impose restrictions on an event on the grounds of health and safety, it should put its reasons in writing. It is right that there should be an appeal mechanism where the decision is a negative one. It is right that the local government ombudsman should be able to fast-track complaints about such decisions, meaning that they can conclude an investigation before the event is due to go ahead and so facilitate that event. The provisions should put an end to the days of organisers being deterred from planning an event in the fear, or expectation, that some local authority official will not allow it. I therefore commend the Bill to the House as a common-sense, proportional measure.
Mr Spencer
I will take 30 seconds to once again thank the Minister, his officials and the official Opposition for supporting the Bill. I look forward to it going through Committee so that people can get on and raise funds for great causes such as tackling breast cancer. I hope you will not call me out of order, Mr Deputy Speaker, for pointing that today is “wear it pink” day and I am wearing my pink tie for breast cancer awareness. Many good causes will need this Bill to stop health and safety getting in the way of their excellent work.
Question put and agreed to.
Bill accordingly read a Second time; to stand committed to a Public Bill Committee (Standing Order No. 63).
Illegal Immigrants (Criminal Sanctions) Bill
(10 years, 1 month ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Philip Davies (Shipley) (Con)
I beg to move, That the Bill be now read a Second time.
I am very pleased to have this surprising opportunity briefly to set out the Bill promoted by my hon. Friend the Member for Christchurch (Mr Chope). I should like to make sure from the start that we give all the credit to him: this is his Bill and it is superb. Members will only be disappointed that he is not here to propose it himself, because he could do so with much more skill and panache than I am able to muster. While I give him full credit for the Bill, I certainly take full responsibility for the poor quality of the speech proposing it on his behalf.
We do not have enough time to go into any great detail, but I want simply to set out what the Bill does and why it does it. It makes it a criminal offence to be an illegal immigrant in this country. At the moment, people can come here with impunity: they can come into this country as an illegal immigrant, try their luck and do their best to give it a good shot. Unfortunately, as we have seen in recent years, far too many people are successful at giving it a shot. They come into the country and if they get caught the worst thing that can happen to them is they will be kicked out, but, given all the human rights legislation we have, they would have to be particularly unlucky for that to happen. There is absolutely nothing in place to give any real, meaningful deterrent to prevent people from giving it a go in the first place. My hon. Friend is trying, rightly, to provide a real, proper, meaningful disincentive for anybody who tries to come into this country illegally by making it a criminal offence that can carry a sentence of imprisonment.
I am not naive enough to imagine that this Bill will, at once, clear up the mass problem this country has with illegal immigration. There is an awful lot we need to do. We need to get ourselves out of the European Union for starters and get back control of our own borders. We need to have much better controls over who is coming into the country, including knowing whether they have any criminal convictions. We also need to get rid of all the human rights legislation that stops people being deported when they are illegal immigrants.
My hon. Friend’s modest Bill makes it clear that being an illegal immigrant in this country should be a criminal offence and that a meaningful deterrent of a prison sentence should go with it. That may play a small part in deterring people from trying to enter this country illegally, and on that basis I commend the Bill to the House.
The Parliamentary Under-Secretary of State for the Home Department (Karen Bradley)
I genuinely feel that this a Radio 4 moment: I will speak for just over a minute—that is all the time I have—without repetition, deviation or hesitation. [Interruption.] I will try my best not to deviate.
It is very important that we in this House think carefully about the matter of immigration, which, as we all know from our time on the doorsteps, our constituents care about. It is an issue of integral importance to the people we speak to and represent, so it is vital that we take their concerns seriously.
Philip Davies
The Minister has less than a minute left to speak, so may I help her by suggesting that, rather than just waffling on about the subject of immigration more generally, she explain succinctly why the Government think it is wrong that being an illegal immigrant should be a criminal offence?
Karen Bradley
I fear that we are getting into repetition. I want to talk about the important work of our Border Force. I was at Heathrow airport last week.
Mr Kevan Jones (North Durham) (Lab)
To help the hon. Lady, may I ask her whether one of the consequences of the Bill would be that we have to build many jails in this country to house the armies of illegal immigrants with whom the hon. Member for Shipley (Philip Davies) suggests there is a problem?
Karen Bradley
The hon. Gentleman makes an important point. That is clearly a matter for the Ministry of Justice, not the Home Department, so I do not wish to comment on the number of prisons that may be needed. We should pay tribute to our Border Force teams—
Business without Debate
Hon. Members
Object.
Bill to be read a Second time on Friday 7 November.
Personal, Social, Health and Economic Education (Statutory Requirement) Bill
Motion made, That the Bill be now read a Second time.
Hon. Members
Object.
Bill to be read a Second time on Friday 27 February 2015.
EU Membership (Audit of Costs and Benefits) Bill
Motion made, That the Bill be now read a Second time.
Hon. Members
Object.
Bill to be read a Second time on Friday 7 November.
Wild Animals in Circuses Bill
Motion made, That the Bill be now read a Second time.
Jim Fitzpatrick (Poplar and Limehouse) (Lab)
On a point of order, Mr Deputy Speaker. Last Friday, I wrongly accused the Deputy Chief Whip of being responsible for blocking the Second Reading of the Wild Animals in Circuses Bill, which stands in my name. I wish to apologise to him for misleading the House, and to apologise to the House for getting that wrong. The hon. Member for Shipley (Philip Davies) has exercised his right to object to the Bill today. The Bill was objected to last Friday and the Friday before that by the hon. Member for Romford (Andrew Rosindell). They acted as individuals, and I apologise to the Deputy Chief Whip for saying that he was responsible for something that was clearly nothing to do with him.
Mr Deputy Speaker (Mr Lindsay Hoyle)
That certainly clarifies the situation and sets the record straight.
Christopher Rochester
(10 years, 1 month ago)
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Mr Kevan Jones (North Durham) (Lab)
This is the fourth Adjournment debate that I have secured on the case of Christopher Rochester in the past 13 years. I and his family wish that it was unnecessary, after 14 years, to raise the case again.
Christopher Rochester, a 24-year-old constituent of mine from Chester-le-Street in North Durham, died in the Andreas Papandreou hospital on the island of Rhodes in Greece following a fall from the apartment complex in which he was staying on holiday. Despite falling from a balcony on to the concrete patio below, he survived, but he was allowed to die a slow, painful and lingering death due to the negligence of doctors at the Andreas Papandreou hospital in Rhodes.
Christopher’s mother, Pam Cummings, and her family have fought a long and persistent campaign to secure the truth about the events that led to his death in 2000. This fight finally led to three doctors being found guilty of manslaughter through neglect. That was clearly down to the tenacious way in which Mrs Cummings and her family pursued the case. I again want to put on the record my admiration of their tenacity in having pursued the case to find out the truth about his death.
Unfortunately, that was not the conclusion of the case. The family have not been able to get closure because of a separate issue about what happened to Christopher’s kidney once he had died. When his body was returned to the UK for burial, it was discovered that one of his kidneys had been removed and was missing. At the time, Mrs Cummings contacted my predecessor Giles Radice—now Lord Radice—to ask why that was the case. He, with the help of the Foreign and Commonwealth Office and the British consulate in Rhodes, got the Andreas Papandreou hospital to send the kidney back to the UK via the consulate. I thank the Foreign and Commonwealth Office and its staff for their work on this case because, over the past 14 years, they have been helpful in trying to move things on. They do not often get thanked, so I would like to put my thanks on the record.
For some unexplained reason, Mrs Cummings was convinced that the kidney that had been sent back from Rhodes was not that of her son Christopher. She therefore asked for the DNA to be tested. That was done by NorthGene, which is a leading genetic research agency in the north-east of England. To her horror, her suspicions proved to be correct. The DNA test confirmed that the kidney that had been sent from Rhodes was not Christopher’s.
Representations were made to the Greek authorities. Their ludicrous suggestion was that the British consulate in Rhodes had somehow mixed up the kidney and returned the wrong one. I am not sure how many kidneys the consulate in Rhodes deals with on a daily basis, but clearly that was a ludicrous suggestion. I pressed the case, with the help of the Foreign and Commonwealth Office, and the Greek authorities finally suggested that an independent test should take place in a third country to verify the facts surrounding the kidney that was returned to the UK. The family agreed to that and it was decided that Belgium would carry out the test.
The Greek authorities then insisted that in order to get a DNA sample from Christopher, his body would have to be exhumed, despite all the leading experts arguing that it was not necessary. That included Professor John Burn, who is not only one of the UK’s leading experts on genetics, but a world-renowned expert. I thank Professor Burn for his assistance with the case. It has been greatly appreciated by the family. Clearly, this was yet another tactic on behalf of the Greek authorities to put more pressure on the family. I also think the Greek authorities thought that the family would not agree to it.
It was a difficult decision for Mrs Cummings and her family, but they agreed that Christopher’s body should be exhumed. That took place on 27 June 2011 in the presence of officials from the Greek Ministry of Health. At this point, may I put on the record my thanks and the thanks of the family to Durham police for their assistance, in particular DS Ken Donnelly and DI Steve Murray, who assisted the family throughout the process? DNA samples were recovered from the body and sent to Belgium. Durham police also took samples from the body, which they still retain as part of the evidence in the case. Likewise, samples of the kidney that was sent to Durham were sent to Belgium for analysis.
A common problem in this case has been the length of time the family have had to wait for any kind of information. They had to wait another year, until May 2012, before receiving any news on the results, which they only received following a letter that I wrote to the Greek ambassador in London and representations from the Foreign and Commonwealth Office to the Greek Ministry of Foreign Affairs. The Foreign Office was simply advised by the Greek Ministry of Foreign Affairs that the DNA analysis supported the conclusion that the kidney almost certainly belonged to Christopher. That is completely at odds with the tests that have been carried out in this country and with the review of Professor John Burn of the analysis of the kidney that was sent back, which showed that it was clearly not that of Christopher Rochester.
On 18 June 2012, the Foreign and Commonwealth Office was advised by the Greek Ministry of Foreign Affairs that a full report could be obtained only if an application was made by the family to a Greek court. Professor Burn has offered to have a look at the report and see what tests were carried out. However, making representations to a Greek court would clearly involve huge expense for the family, so they are unable to do so.
On 10 March this year, I wrote to the public prosecutor’s office in Rhodes and to the Greek Ministry of Justice with a signed letter of consent from Mrs Cummings authorising me to act on her behalf. Despite two follow-up letters, I have had no response to date. On 25 July, I wrote separately to the Greek ambassador in London, asking him to ask the prosecutor’s office to respond to those letters. The embassy confirmed by telephone that it would make representations, but to date we have heard nothing from it.
The case raises serious questions about how a British family can get legitimate answers to questions about the death of one of their loved ones in a fellow European country. Without a copy of the report of the DNA test that took place in Belgium, which Professor Burn has agreed to look at, the family cannot draw this sad case to a conclusion. I am not quite sure what the Greeks have to hide by not producing that report for the family, but will the Minister make representations to the Greek authorities about the issue? Will he also raise it directly with the Greek Ministry of Foreign Affairs and separately with the Greek ambassador in London? I have tried to do so through faxes, letters and e-mails, and I seem to get no answers. As I said, a common thread throughout the 13 years I have been dealing with the case has been that they seem not to reply to any representations on behalf of the family.
This is obviously a very sad case, but it also demonstrates the persistence and courage of a loving mother who will not let the case go despite the objections and obstacles that Greek officialdom puts in her way. I assure Mrs Cummings and her family that I will continue to do what I can to get them the justice that they deserve, so that they can have final closure on this very sad case.
The Minister of State, Foreign and Commonwealth Office (Mr Hugo Swire)
I congratulate my old friend the hon. Member for North Durham (Mr Jones) on securing the debate, and I pay tribute to him for the strong support that he has given Mr Rochester’s family over what is now a long period. As he said, his predecessor Lord Radice did the same before him.
The hon. Gentleman has rightly raised a number of issues relating to the case with the Foreign and Commonwealth Office, and I thank him for expressing his gratitude to officials for all the work that they have done over the years. I know I would have done precisely what he has done—at least, I like to think I would—had I been in his position. This is an extraordinary and unsatisfactory case. My right hon. Friend the Minister for Europe has taken a close interest in it and met the hon. Gentleman on a number of occasions to discuss it. I welcome this opportunity to respond on his behalf and on behalf of the Foreign and Commonwealth Office.
First, may I restate our deepest condolences to Mr Rochester’s family, who, as the hon. Gentleman explained, have lost someone dear to them in tragic circumstances? The death of a loved one is painful under any circumstances, but I am conscious that when a death occurs overseas, the cultural differences, the language barrier and the systems used by foreign authorities can be difficult to comprehend, making the grief felt by the bereaved family all the more acute.
As the hon. Gentleman set out in detail, the loss and grief suffered by Mr Rochester’s family have been compounded by the challenges that they have faced, not only in their pursuit of justice against those they see as responsible for contributing to his death, but through the damaging confusion over the repatriation of one of his organs. I would like to take this opportunity to confirm for the record the sequence of events as we understand them and the consular assistance that we have provided to the family.
After a series of court cases, both Greek and British authorities agreed that Mr Rochester did not receive adequate medical treatment following his fall. That was confirmed following the retrial in Rhodes on 5 February 2008 of the medical staff who treated Mr Rochester immediately before his death. As the hon. Gentleman is aware, the court found one of the medical assistants guilty of homicide by negligence and sentenced him to 15 months’ imprisonment, suspended for three years. The other two accused were acquitted.
When Mr Rochester’s body was repatriated, the post-mortem examination in the UK found that he had been returned without his left kidney. At the family’s request, staff at our consulate in Rhodes helped to arrange the kidney’s return to the UK by liaising with all the relevant authorities, and funding its safe delivery to Dryburn hospital in Durham. On its return to the UK, however, the DNA testing requested by the family threw into doubt the identity of the kidney. I cannot begin to imagine the additional distress that that must have caused Mr Rochester’s family at that time.
Consular staff urgently sought clarification, and at the suggestion of the hon. Gentleman and Mr Rochester’s family, in 2002 the Greek authorities agreed on an independent DNA test to be carried out by a third country at the National Institute of Criminalistics and Criminology in Belgium. In order to complete that test, the Greek authorities stated that three samples were required, including one from Mr Rochester’s remains, as the hon. Gentleman has said.
Despite our representations on behalf of the family to explain their distress, Greek authorities remained firm on that point. They did not accept that it would be possible to determine once and for all the identity of the kidney unless the sample was taken from the exhumed remains. They would not accept skin samples that had been previously taken from Mr Rochester for an unrelated reason in the UK some time before his death, and they would not take samples from a next of kin.
It is testament to the fortitude of the family that, despite their concerns, they agreed to the exhumation of Mr Rochester’s body. The DNA test could then proceed, and in May 2012 a summary of the results was passed by the Ministry of Foreign Affairs to the Foreign and Commonwealth Office and the office of the hon. Gentleman and the family. The summary stated that the kidney that was originally repatriated on 14 August 2000 did, with almost certain probability, belong to Christopher Rochester. The Greek authorities had initiated a criminal case based on the Greek organ trading Act, following reports that the kidney did not belong to Mr Rochester, but the case was then closed.
As the hon. Gentleman has said, the family have since made it clear—quite understandably—that they would like to see a full version of the results to assure themselves that they are valid. Our understanding from the Greek authorities is that those results would be disclosed in full only to someone with a vested legal interest in the case, such as a family member as next of kin, or their appointed lawyer in Greece. That would mean a family member either travelling to Greece, or appointing a legal representative there.
I appreciate that the hon. Gentleman has a signed letter from Mrs Cummings authorising him to act on her behalf, but as I have said, my understanding is that that can be done only by a legal representative in Greece.
Mr Kevan Jones
What the Greek Ministry of Justice has been asked for is a Government document. Will the Minister make representations to his Greek counterpart to see whether there is some other method? This family is not in a position to get the finance together to do what has been suggested by the Greek authorities, but without that, and without a full copy of the report, as I have said, they will not get closure.
Mr Swire
The hon. Gentleman is right—of course they will not get closure until they see the whole report. However, the Greeks are standing firm on this matter and have said that the results can be disclosed only to a next of kin or legally appointed representative. We will raise the case again although I suspect we will not get very far on that particular point.
It is not for the Foreign and Commonwealth Office to interfere with Greek law on this point. But it is right that the Greek authorities should respond to the hon. Gentleman directly, and I am more than happy to write to the Greek ambassador. I am incredulous that the ambassador has not replied to the hon. Gentleman and I can only think that it is the result of an oversight that I am sure the ambassador will wish to right at the earliest opportunity. I shall point out to him as soon as possible that the hon. Gentleman still awaits a response. I will also ask our embassy in Athens to press the Rhodes public prosecutor’s office for a response to the hon. Gentleman’s letter and, of course, we can provide updated details for lawyers in Greece if that would be helpful.
Once again, may I say that my deepest sympathies go out to the family? It is only natural and understandable that they should seek closure on what must have been a terribly distressing period of uncertainty over Mr Rochester’s body—an uncertainty that has gone on for far too long. The Foreign and Commonwealth Office will continue to give all appropriate support to the family as they pursue this, and we will also give what support we can to the hon. Gentleman, who has been so dogged in his determination to get justice for his constituents.
Question put and agreed to.
Written Statements
(10 years, 1 month ago)
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Shale Oil And Gas Sites
(10 years, 1 month ago)
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The Parliamentary Under-Secretary of State for Communities and Local Government (Kris Hopkins)
I am today announcing the start of a consultation on draft regulations to implement 100% local retention of business rates on shale oil and gas sites.
We believe shale oil and gas may hold potential for adding to the UK’s energy sources, helping to improve energy security, create jobs and meet carbon targets. To ensure shale development is safe there are robust rules in place to ensure on-site safety, prevent water contamination and mitigate seismic activity and minimise air emissions.
We also believe that local councils and communities should share in the economic opportunities and benefits of shale oil and gas. The draft regulations we are publishing today will ensure that local councils that host shale oil or gas sites can benefit from millions of pounds in business rates paid by site operators. The measure could be worth up to £1.7 million for a typical site and will be funded by central Government.
The draft regulations define the sites on which 100% retention of business rates will apply and set out the arrangements for sharing that revenue between the different tiers of local government. Consultation will allow us to ensure we have correctly defined shale oil and gas sites and that the regulations, once made, will give local government the certainty they need over future business rates income.
Once we have considered responses to the consultation we will lay the regulations before Parliament with a view to them coming into force by 1 April 2015. I have placed a copy of the consultation document and draft regulations in the Library of the House, and the consultation document is also available at;
www.gov.uk/government/consultations/business-rates-retention-and-shale-oil-and-gas-technical-consultation
HMS Victory (Wreck Site Management)
(10 years, 1 month ago)
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The Secretary of State for Defence (Michael Fallon)
HMS Victory, the flagship of Admiral Sir John Balchin, sank in the English Channel in 1744; the wreck site was found in 2008. In 2010 the Ministry of Defence and the Department for Culture, Media and Sport conducted a joint public consultation on options for the management of the wreck site. A summary of the responses and the Government’s proposed way forward were published on 19 July 2011:
https://www.gov.uk/government/consultations/hms-victory-1744-options-for-the-management-of-the-wreck-site.
Following the consultation, the wreck was gifted to the Maritime Heritage Foundation (MHF) in January 2012. Since then the site, which is at risk of damage from fishing vessel activity, natural erosion, and illegal salvage, has been regularly monitored. In parallel, the Government have worked with MHF to develop a phased approach to the management of the site through a Project Design that conforms with the archaeological principles of the Annex to the UNESCO Convention on the Protection of Underwater Cultural Heritage (“the Annex”), the agreed Key Management Principles, and with the Government’s heritage policies. These are set out in the “Protection and Management of Historic Military Wrecks outside UK Territorial Waters” guidance: https://www.gov.uk/government/publications/protection-and-management-of-historic-military-wrecks-outside-uk-territorial-waters.
We have been assisted in this work by an Advisory Group, consisting of representatives of the National Museum of the Royal Navy, English Heritage, the Receiver of Wreck, and the Marine Management Organisation (MMO); and the Advisory Group has been supported by an expert panel of independent specialists from various fields of the marine historic environment and maritime heritage management. The Government are grateful to all those involved.
Following consideration of the detailed information and assurance provided by the MHF I have given consent for MHF to proceed with the next phase of the agreed Project Design. This decision is supported by the Minister for Culture and the Digital Economy. Specifically, MHF has been granted permission to recover at-risk surface items from the wreck site in accordance with the Project Design once the necessary licence has been issued by the MMO.
Consideration of any further phases of work would be made in light of progress reported by MHF.
All artefacts recovered are to be declared to the Receiver of Wreck in accordance with existing legislation to determine ownership. Artefacts transferred under the Deed of Gift that are recovered and accessioned from the wreck and the associated archive, including site plans, drawings and photographs, will form the “Victory 1744 Collection”, which will be managed and curated in line with the Museums Association’s Code of Ethics for Museums.
The Government have previously committed to publishing more information about this project, including the set of Key Management Principles that MHF has agreed to. This information and reports documenting the pre-disturbance work completed as part of Phase 1 and Phase 2 of the Project Design are now available at: www.victory1744.org. Additional information will be made available as the project progresses.
The Government are satisfied that the project will be managed in accordance with best practice and will ensure that important artefacts from this unique part of our maritime history remain together for the future appreciation and education of all.
Service Family Accommodation
(10 years, 1 month ago)
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The Minister of State, Ministry of Defence (Anna Soubry)
The Government remain committed to ensuring that our service personnel and their families have access to good quality accommodation at a price that is substantially subsidised compared to civilian options. Our programme of investment in service family accommodation has delivered significant improvements since 2010; last financial year alone, we invested £90 million in upgrading existing stock and £150 million buying over 700 new service homes. We now plan two key changes to the way in which we deliver and manage service family accommodation which together will ensure that the aspects of greatest importance to our personnel continue to improve through further targeted investment.
The first change is a new contract for maintenance and support services. This will effectively incentivise delivery partners to ensure a step change in the service provided to our personnel. They will significantly improve the customer experience, with an expanded electronic service establishing a one-stop shop for all accommodation issues. We have also imposed far stricter performance targets, demanding a quicker response to problems and repairs with more on-the-spot investment to resolve them and a “fix first time” culture. This contract will come into effect on 1 November 2014 in Scotland and Northern Ireland, and on 1 December 2014 for the rest of the UK.
The second change is a major reform of the charges paid by personnel for the houses in which they live. This is part of the new employment model, which aims to put in place an affordable and sustainable package of employment, remuneration and support that will enable the recruitment and retention of sufficient capable and motivated service personnel.
The current system for determining accommodation charges is no longer fit for purpose. It uses out-of-date methods that are no longer relevant to modern living. It is also so complex and subjective that it is difficult to achieve consistent and regularly updated assessments. As a result, despite the investment in recent years, assessments of a large number of properties have not been updated or graded accurately. More than half of our properties are not being charged at the appropriate rate, meaning that rents have fallen significantly behind the rising standards of military accommodation. Various reviews, both internally and by the Armed Forces Pay Review Body (AFPRB) have strongly recommended reform. This Government will now introduce a modern, objective system that will enable our personnel to see exactly how their charges are calculated and what they get for their money. We will continue to look to the AFPRB for their recommendation on overall accommodation charge rates.
The new charging system will be introduced for service family accommodation in April 2016. Over the next 18 months, a survey programme will provide underpinning data to allow every property’s accommodation charge to be reassessed against the new criteria and updated accordingly. This will change charges so that they accurately reflect the quality of the home provided. We are not proposing to increase the top charge rate: indeed, far fewer personnel would pay it. Many of those currently paying charges at the lower end of the scale, particularly where they live in upgraded, better quality properties, would see charges gradually increase over a number of years but will rise at a set annual rate that is scaled according to rank and property type (we expect this to be limited to about £20 to £30 a month for other ranks).
All additional rental receipts will be reinvested into military accommodation. From April 2016, no service family living anywhere in the UK will be allocated a property that does not meet the Department for Community and Local Government’s decent homes standard. A programme of investment in energy efficiency over the next five years will also mean that every service family in UK military accommodation should face energy bills significantly lower than the national average.
The new charging system is simpler, fairer and will help to put our service accommodation on a sound, long-term financial footing that will enable enhanced future investment.
House of Lords
Medical Innovation Bill [HL]
(10 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Turnberg
“Provision of advice by registered medical practitioner
(1) This Act applies only to decisions made by a registered medical practitioner to advise a patient for whom he has assumed a professional responsibility for the provision of advice with regard to the choice of treatment for—
(a) a cancer which in the reasonable opinion of the practitioner is affecting the patient and is likely to cause the patient’s death without the provision of effective treatment;(b) such other conditions as may be prescribed by regulations made by the Secretary of State.(2) A condition to which this Act applies is referred to as a “relevant condition”.”
Lord Turnberg (Lab)
My Lords, this is a rather omnibus group of amendments. I will do my best to try to speak to all of those to which my name is attached as well as to serve the others.
I should say at the outset that in setting out my amendments my purpose is to try to make sure that any Act that comes out is both sufficiently safe for patients and practicable so that the innovative practice that everyone wants to see is achievable. However, I would hate to see the opening up of a bureaucratic and legal nightmare that Sir Robert Francis tells me he still has problems with.
I would also like to correct a couple of possible misapprehensions. The first of these is that I want in some way to inhibit innovation in medical practice. I find that particularly galling when I have spent much of my life in clinical practice trying to introduce innovations. In my own field of gastroenterology I constantly tried novel treatments for Crohn’s disease, for example, and, indeed, published in journals the results of the research that I carried out. I say as an aside that at that time I did not feel the need for a Bill of this sort to allow me to innovate when I already had ethics committees’ approval and the informed consent of my patients. I fear that I am not alone in wondering whether the Bill is necessary. When Action against Medical Accidents, for example, and a number of important medical bodies express doubts about the need for it, one begins to wonder. I will not reiterate the Second Reading arguments as I want to concentrate on trying to make the Bill workable. However, I reiterate that innovation has been part of my very being and I still want to do everything that I can to encourage it.
The other misapprehension seems to be that there have been no advances in the treatment of cancer since the Middle Ages. That is patently not the case for many cancers—for example breast cancer, where there have been remarkable improvements, and in the leukaemias, where many, especially in children, have been cured. Now we see remarkable possibilities emerging for melanomas and a number of other carcinomas. However, it is certainly the case that no major advances have been made in the treatment of some cancers of the pancreas or the ovary, for example. That is terribly sad but true. It is also true, however, that no one anywhere has come up with a breakthrough for any of them—not in the USA, Japan, Oxford, Cambridge or anywhere—despite enormous effort by many researchers across the world. I declare my interest as a trustee of the charity Ovarian Cancer Action. We support a fascinating range of research into potential cures and keep a very careful eye on any advances in the field through our international band of distinguished researchers and advisers, who are often mainly based in the USA, so the idea that someone somewhere has a wonder cure that we have not heard about seems somewhat remote. I fear that we may have some way to go to find a cure but we at the charity have heard recently of some fascinating research in Oxford that we are supporting. However, we have some way to go.
I have tabled these amendments as I fear that the Bill’s wording leaves open to too great a degree the potential for harm by unorthodox, unregulated practitioners. Amendment 1 seeks to make it clear that we are talking about registered medical practitioners and that for the moment we should limit the innovative treatments to patients with cancers that are likely to kill them. The idea here is that this would narrow the field of endeavour a little and give time to consider whether, after the Act is in operation and has been shown to be valuable, it could be expanded and consideration be given by the Secretary of State, taking advice from reputable sources, as to whether other conditions should be included. After all, cancers are among the most high-profile cases where patients are constantly seeking new and better treatments and are willing to try almost anything.
It is under those circumstances that my Amendment 7 is absolutely critical, as it is for precisely these vulnerable people, desperate to try anything, that we have to have in place processes and mechanisms to protect them from unethical practitioners who may take advantage of their vulnerability. We have to face the fact that there are practitioners out there using all sorts of weird and wonderful treatments that have no basis whatever. So, in Amendment 7, I set out in some detail the conditions under which a doctor may prescribe such an innovative treatment. He or she should be the doctor with responsibility for that particular patient’s care. He should have reached,
“an honest and responsible opinion”,
that it will be more effective than orthodox treatment and that it is in the patient’s best interests. He should make sure that other doctors looking after that patient who have an interest in that patient will agree with him and he should have the agreement of another expert in the field. He should have not just consulted that person but obtained their agreement—not just to take account of that person’s views, as in Amendment 12 of the noble Lord, Lord Saatchi—and it should all be put down in writing in the patient’s record. I like the way in which Amendment 14, tabled by the noble Baroness, Lady Masham, sets out the requirement for patient consent, and hope that that can be incorporated. I hope that the noble Lord, Lord Saatchi, will agree that this will make his Bill a safer Bill and that he will accept this amendment or something very like it.
My Amendment 15 also proposes, first, that all the considerations that have gone into reaching the decision to innovate, together with the type and nature of the innovation, should be recorded in the patient’s record and, secondly, that the results of such innovation should be available in some public format. Here I have suggested that it should be available within six months. I am not wedded to that time limit, only to the principle that others should be able to learn from someone else’s innovations. I know that the noble Lord, Lord Saatchi, has the agreement of Oxford University that it will act as a repository for this information. However, as I understand it, there is no compulsion on behalf of the innovating doctor to report to Oxford. We need something in the Bill that makes it not just desirable but essential. My Amendment 19 also makes that point clear.
Amendments 21 and 32 refer to research. Here I want to make the Bill absolutely clear that those engaged in research involving clinical trials will not be subject to even further stringent requirements than they already labour under. After all, these innovative treatments which we are all so desperately seeking are entirely dependent on high-quality research in clinical trials. However, there is a fear out there in the Association of Medical Research Charities—in which I express my interest as scientific adviser—the Medical Research Council, the Wellcome Trust and so on, that the stringent requirements under which researchers operate, involving clinical governance, research ethics committees, informed consent by patients and so on, will be added to by the conditions set out in the Bill. No one, least of all the noble Lord, Lord Saatchi, I suspect, wants his Bill to act as a further deterrent to clinical trials of new treatments. I therefore hope that he will find these amendments helpful.
Lord Saatchi (Con)
My Lords, I am grateful to the noble Lord, Lord Turnberg, for opening this Committee. I am greatly respectful of all he has said. In speaking to his Amendment 1, I will speak also to Amendments 8, 9, 11, 12, 16, 20, 25, 26 and 27 in my name; Amendments 7, 15, 19, 21, 24, 32 and 33 in the name of the noble Lord; Amendment 10 in the name of the noble Lord, Lord Pannick; Amendments 13, 17, 22 and 30 in the name of the noble Lord, Lord Winston; and Amendments 14, 18 and 34 in the name of the noble Baroness, Lady Masham.
In winding up the Second Reading debate—at which I was grateful, as I am today, for so many of your Lordships’ attendance, and for all that was said; it was an excellent debate—I gave an undertaking that there would be an opportunity to consider whatever amendments were suggested as a result of the study by the NHS medical director, Sir Bruce Keogh, commissioned by the Secretary of State. I suggested that it might be possible to leave those amendments to be considered in the House of Commons, but a number of your Lordships made it clear to me that there was a desire to consider these important matters in this House so that we can, I hope, send the Bill to the other place in a form that represents the consensus not just of myself and the Government but of all noble Lords who have taken such a helpful and serious interest in the Bill.
I and the Government have listened to these representations. I can testify to the seriousness with which the Government have paid attention to all that has been said. I have witnessed it with my own eyes. I am very grateful to my noble friend the Chief Whip for facilitating the Committee for the purpose of considering the amendments which were settled by Sir Bruce Keogh and which stand in my name. I hope that after today it will be possible for the Bill to make swift progress into the House of Commons so that it has a reasonable chance of becoming law before the general election. There will of course be an opportunity for the issues considered in this House, and perhaps others as well, to be considered in a Public Bill Committee in another place.
I do not propose to give a lengthy, detailed description of each amendment in the group; I have been warned not to attempt a Second Reading speech of any kind. To some extent the amendments are self-explanatory—they build on the safeguarding themes already in the Bill on introduction—but let me give a brief introduction to the purpose and effect of the amendments, which are now known as the Keogh amendments. I will do my best to answer any questions noble Lords have.
The key amendment that addresses the safeguards in the Bill is Amendment 12, which replaces Clause 1(3) of the Bill. The most significant features of the new list of safeguards are as follows. First, proposed new Clause 1(3)(a) requires the doctor to,
“obtain the views of one or more appropriately qualified doctors in relation to the proposed treatment”.
I suggest that that must be read with Amendment 16, which inserts proposed new Clause 1(4) into the Bill, to the effect that,
“a doctor is appropriately qualified if he or she has appropriate expertise and experience in dealing with patients with the condition in question”.
Proposed new subsection (3)(b) requires a doctor to take full account of those views in a way that a responsible doctor would be expected to do. That ensures that a doctor cannot ignore views or give them minimum weight unless there are reasonable grounds for doing so. The proposed new clause provides a critical safeguard in ensuring that there is expert peer review of the doctor’s proposal and that the doctor acts responsibly in taking account of that view. We have all been concerned to ensure that the Bill cannot be seen as giving comfort to quacks or cowboys. This provision will hopefully give additional comfort to the noble Lord, Lord Turnberg, and to other noble Lords that the Bill does not do so, and, as I said at Second Reading, that it provides a statutory benchmark of good practice that will act as an effective deterrent to quacks and charlatans.
Proposed new subsection (3)(d) requires the doctor to consider a number of factors relating to the proposed treatment, including a requirement to consider,
“the risks and benefits that are, or can reasonably be expected to be, associated with the proposed treatment”,
other accepted treatment,
“and not carrying out any of those treatments”.
The proposed new subsection no longer requires a doctor to notify their responsible officer about the proposed treatment. The responsible officer may not have expertise relating to the condition in question and it may be difficult for a doctor to notify them in advance in all cases.
These replacement provisions are not designed to alter the fundamental purpose of the Bill as I explained it on Second Reading, which is simply to bring forward the Bolam test to the point of treatment, so that doctors can be reassured in advance that they are innovating in a manner that the law will regard and uphold as responsible. They would not have to wait or speculate about the possibility of litigation or disciplinary proceedings before finding out whether their action is considered reasonable. By giving certainty we help doctors to innovate with confidence. We help the thousands of patients who wish to benefit from innovative treatment and do not wish the doctor to be scared off or institutionally discouraged by the mere possibility of later litigation.
A number of the amendments proposed by Sir Bruce Keogh are designed to emphasise or clarify aspects of the Bill, rather than to change its legal effect. I shall therefore mention them only briefly. Amendment 8 amends Clause 1(2) to emphasise that the protection offered by the Bill applies to the doctor’s departure from the existing range of accepted treatments for a condition, not just to his decision to do so. Amendment 9 emphasises that the Bill applies only to medical treatment. Amendment 11 amends Clause 1(2) to provide that a doctor’s departure from the existing range of accepted medical treatments for a condition is not negligent where the decision to depart is taken responsibly. This applies an objective test of responsibility to the doctor’s decision and prevents a doctor who acts irresponsibly from relying on the Bill. Amendments 20, 25, 26 and 27 are minor and consequential.
Amendment 1 would limit the Bill to terminal cancer and other conditions prescribed by the Government. I have considerable sympathy with this. As your Lordships are aware, the Bill is aimed in particular at the horror of cancer and terminal or extreme conditions. However, the principle is a general one: that doctors and patients are entitled to clarity and certainty at the point of treatment. That is its main aim and purpose. I understand completely that some Peers dislike the idea of the Bill being used for cosmetic surgery, for example. I would certainly consider an amendment later—subject to the views of the Minister, who I am sure will speak to this—either in the Lords or the Commons, to exclude cosmetic surgery if the House feels that that is important. That might well be possible, subject to discussion with the noble Lord, Lord Turnberg, and with the agreement of Sir Bruce Keogh and the Secretary of State. In the mean time, I ask the noble Lord not to press the amendment.
I turn to Amendment 7, to which the noble Lord, Lord Turnberg, gave great importance. I believe that it is similar to my amendments in the sense that they both replace the existing conditions for the operation of the defence to negligence under the Bill with an alternative set of conditions. I understand that the noble Lord is trying to find a set of conditions that limit the opportunity for the Bill to be misused by quacks. As I have said, my amendments, proposed by Sir Bruce Keogh and the Secretary of State following consultation, have the same purpose. I hope that the noble Lord, Lord Turnberg, will therefore feel that those amendments address the fundamental concerns addressed by Amendment 7 and that he may feel able not to press it.
Amendment 10 inserts a reference to reasonableness and proportionality in the conditions for application of the test under the Bill. I agree that reasonableness and proportionality are key requirements of that test. I believe they are already provided for in the Bill as drafted and in the amendments standing in my name. In the interests of preserving a single coherent package of amendments as prepared by Sir Bruce Keogh, and on the understanding that reasonableness and proportionality are inherent to that package, I hope that the proposers will feel able not to press the amendment.
Amendment 13, in the name of the noble Lord, Lord Winston, is similar to my amendments in the group in that it replaces the existing conditions for the operation of the defence to negligence under the Bill with an alternative set. I understand that the noble Lord is trying to find a set of conditions that limit the opportunity for the Bill to be misused. My amendments were proposed by Sir Bruce Keogh and the Secretary of State for exactly the same purpose. I hope that the noble Lord will feel that those amendments address the fundamental concern of his amendment and that he will feel able not to press it.
I absolutely understand the aim of the noble Baroness, Lady Masham, in Amendment 14, which is to amplify the existing set of patient safeguards in the Bill. I hope that the noble Baroness will accept that the package of safeguards prepared in consultation with the profession by Sir Bruce Keogh and set out in my amendments deal with the concerns reflected in her amendment. I welcome the opportunity to discuss these issues with the noble Baroness in more detail. In the mean time, I hope that she will feel able not to press Amendment 14.
Amendment 15, in the name of the noble Lord, Lord Turnberg, would require the results of innovation carried out in reliance on the Bill to be registered or recorded. This is a most important amendment and I can certainly assure the House that I have great sympathy with its aim—it has been our aim from the beginning. I explained at Second Reading that we strongly believe that the Bill should be used to generate useful data about innovation. We agree completely with what the noble Lord, Lord Turnberg, said: if the Bill were successful in its aims and encouraged innovation, what would be the point if no record of the innovations was kept in an open, transparent and fully disclosable way to show that the claims that we make—that the Bill will advance scientific knowledge—were true.
Lord Pannick (CB)
My Lords, I have tabled a number of amendments in this group and I thank the noble Lord, Lord Saatchi, for his helpful responses to them. The purpose of my amendments is to ensure the protection of vulnerable and often desperate patients and their families. Amendment 10 seeks to introduce a test of reasonableness and proportionality. The noble Lord, Lord Saatchi, said in his comments that reasonableness and proportionality are central to the objectives of the Bill. Perhaps I may explain my concern.
The Bill uses the concept of “responsible” innovation. Clause 1(3), along with Amendment 12 in the name of the noble Lord, Lord Saatchi, which he has rightly described as crucial, would define responsible innovation by reference to process; that is, obtaining and taking account of the views of others, considering the risks and benefits, and securing transparency. My concern is that this is insufficient because it says nothing about the substantive content of the decision of the doctor to innovate. Amendment 10, which has the support of the noble Lords, Lord Winston and Lord Turnberg, would provide that innovation is lawful only if it is “reasonable and proportionate” in a substantive sense. It must be reasonable in the sense that the course of innovative treatment should be based on a reasoned decision, that in the light of some evidence the treatment has some prospect of success, and proportionate in the sense that in the patient’s case and taking into account the existing available treatments, the innovative treatment is not likely to cause pain and suffering that is unjustified by the prospects of success. Plainly, this is going to depend, and will necessarily depend, on the circumstances of the individual case.
At Second Reading, the noble and learned Lord, Lord Mackay of Clashfern, who I am pleased to see is in his place, said at col. 1457 that in the context of innovation, it is very difficult to see how you can assess the “reasonableness” of treatment. With respect, I do not accept that. You assess the reasonableness of an innovative treatment in a substantive sense by asking whether there is some evidence to suggest that the treatment will or may have a positive result. I think that reasonableness and proportionality are as important in the context of terminal illness as they are in any other context. Unreasonable and disproportionate medical treatment can cause pain and suffering and it can of course blight the remaining time that patients have with their families.
Lord Winston (Lab)
My Lords, this is a surprisingly complex Bill, and indeed the various amendments that have been tabled in the first group conflict with each other. As a consequence I will concentrate on only a few of them in order to get some clarity. The noble Lord, Lord Saatchi, talked about clarity and certainty when he introduced the Bill, but I feel that the whole of this Bill will increase lack of clarity and promote uncertainty on the part of patients, which is something that really concerns me. I must also say that, as it stands, I believe that the Bill is quite dangerous. I say that with great respect to the noble Lord, Lord Saatchi, to whom we are grateful for introducing something of this kind.
I should say to the noble Lord at the outset that all of us who work as medical practitioners and scientists want to see innovation. No one could doubt that, as my noble friend Lord Turnberg pointed out. My entire career in the health service spanning 40 to 50 years has been a constant series of innovations, and I have to say that never once have I looked over my shoulder and thought that there might be a risk of litigation as a consequence of my innovating. That seems to be the reasoning behind the purpose of this Bill, but I believe that the noble Lord is mistaken in his view that practitioners are concerned about litigation because of innovation. They are certainly concerned about litigation, but they are not concerned because they are trying to do things which they can clearly claim are in the interests of their patients. That is a really big problem.
Had the noble Lord, Lord Saatchi, along with his noble friend the Minister of health, decided to focus on certain other aspects, I would have argued that some of the permissions for research ethics would have been a very important issue to look at. They are increasingly inhibitory. I would also cite some of the problems that have arisen out of the Human Tissue Act 2004, which was introduced by a Labour Government. There is a number of other issues that could have been looked at, such as the fitness to practise regime of the GMC, which the noble Lord mentioned.
However, let me concentrate on the Bill. I will start with Amendment 17. The noble Lord, Lord Pannick, introduced some of the questions and I want to deal with those in a bit more detail. I must suggest that anybody who has a sensitive disposition leaves the Chamber at this stage because I am going to describe personal experiences, which, I have to tell your Lordships, are unpleasant. I can give endless examples but will confine myself to two cases of maternal care. In doing so, I declare an interest as the chairman of the Genesis Research Trust at Imperial College and, of course, as a formerly practising gynaecologist.
When I was in training in a district general hospital in Essex, I was confronted in the middle of the night with a woman who started to bleed torrentially after birth. The blood went completely over the obstetric ward floor and then started to leak out under the sill of the floor into the corridor beyond. It was very clear that no matter how fast we transfused this patient with all the blood we had available, and eventually with O negative blood, this woman was going to exsanguinate and there was absolutely nothing one could do about it. I tried an innovative procedure with that uterus that was not described in the literature but had I not done so, that patient would have died.
I have to say to the noble Lord, Lord Saatchi, that, unlike him, I have tangled with innovation throughout my life. I have had sleepless nights; I have had trembling hands when facing patients who might die because I knew that I had to take a decision on the spur of the moment that might make the difference between life and death. Amendment 17 is partly concerned with that, and if we do not press it today, I think we will need to reconsider it on Report.
I will tell the noble Lord another story. This is pretty graphic as well. I was called in the middle of the afternoon to a case in the casualty department of the district general hospital where I was working as a registrar in training with about five years’ experience. There was a woman—barely a woman; a girl, really, just out of her teens—who was lying virtually unconscious on a trolley in the emergency department. There was no relative with her, there was no history with her; there was no way of knowing what was the problem.
When I examined her very quickly, I noticed that her breasts were somewhat active and her abdomen was distended, and it became likely that she might have a pregnancy but of course there was no way of verifying that. There would not be time to do a test because this woman was lapsing into unconsciousness; indeed, as I was examining her, she became unconscious and her blood pressure dropped to unrecordable levels. I put her on a trolley and ran down to the operating theatre with it. I had asked them to call an anaesthetist to help me. When the anaesthetist arrived, who was a much more senior doctor than I, he refused to have anything to do with the treatment of this patient. He was not prepared to consider anaesthesia for this woman because he felt that that would not be appropriate for somebody who was already unconscious.
I do not say this out of any sense of pride or because I am being all-powerful but this is simply how one acts in an emergency. Without scrubbing up—with unclean hands, simply with gloves on—I took a knife and opened her abdomen briskly and tied off the bleeding point. It was an ectopic pregnancy and once we had removed the bleeding point her blood pressure immediately became recordable. That woman left hospital seven days after the procedure.
Had we gone through any of the procedures that are described in the Bill, I have absolutely no doubt that that unmarried 21 year-old girl would have died there on the table, and I would have been haunted by that had I not innovated in a way that was appropriate. It was only when the abdomen was open and the blood was welling out that my anaesthetist put a tube down her throat and assisted me with the anaesthesia. He was not frightened of litigation; he just thought that the patient was going to die.
In Amendment 17 I have delineated a few of the examples in medical practice where there is a real case for not innovating. I could argue—I notice the noble Lord, Lord Kakkar, is in his place and I hope he will agree with me—that every single one of your Lordships in this Chamber will have different anatomical variants in your abdomen. For example, if you are undergoing a hernia operation, the skill of the surgeon in trying to decide what the variant might be is something that he needs to tackle immediately and without consent of either an ethics committee or a group of doctors who might give him permission to do so. It is a nonsense to suggest that a surgeon needs to do that sort of thing in the process of innovating in surgical care. That is also true for neonatal care, where of course we do not have very good chances sometimes of deciding when a very small baby is on the point of death. There are many other examples. I would just argue that there is one rather exceptional case, which I have alluded to, which is in reproductive medicine.
In my view, that is a different situation. The risk is that if we encourage innovation, as we are inclined to do and as is happening in private practice at the moment for quite large fees, there is a real risk in the long term. For example, this week two companies have offered to freeze the eggs of their employees to try to delay their childbearing. It sounds a very humanitarian thing. It is not, it is a purely business proposition. What they are doing, of course, is trying to manipulate their female employees by doing this. But the doctors who are prepared to charge substantial sums of money for this freezing have not considered the real success rate that even young women who freeze their eggs have. In the United Kingdom, around 7% of patients who have had their eggs replaced actually have a pregnancy, and we do not even know how many of those pregnancies go on.
During that treatment, there are different ways of freezing eggs which are innovative, which have not been properly tested and which may, for all we know, have epigenetic effects 50 years on, when there may be a risk of high blood pressure, heart disease, osteoporosis or dementia. Indeed, we now know from some animal experiments that there are genuine incursions into the human embryo and the human egg, which in animals certainly cause very interesting but rather alarming changes in the central nervous system as a result of what is happening innovatively in humans. Of course, we cannot prove it in humans because we have to wait for a long time. I argue that Amendment 17 is essential but I suspect that more aspects of medicine will need to be covered in the Bill.
I support completely the amendment of the noble Lord, Lord Turnberg, who started the debate this morning. If he decides to press that amendment, I will certainly join him in a vote. The problem I will have, of course, is that part of that amendment, and certainly some of the implications of it, conflict with my Amendment 30, which argues that we should have clinical ethics committees. In my view, there is a strong reason to do that. I know that the Minister is very unlikely to accede to that request but there is a real issue about having better supervision of clinical treatments. We have research ethics committees but they are totally different. They do not cover routine practice. It is not a matter of simply leaving it to the General Medical Council. That is really not adequate. It needs to be dealt with locally and by the people who are concerned with the particular population with which they are involved.
I do not intend to go on at great length about the amendments in detail but there is no question that we will need to come back to some of them; others we may even wish to divide the House on this morning. But for the moment, I think I have said enough about those amendments.
Baroness Masham of Ilton (CB)
My Lords, my Amendments 14, 18 and 34, on safeguarding, are in this group.
Since the previous stage of the Bill, the deadly Ebola infection in Africa has hit the headlines and the need for fast-track innovative medicines and vaccines has become vital, as has the need for countries to come together to help support and educate suffering populations. In addition, last Tuesday the “Panorama” programme showed the innovative research being done on the spinal cord to enable paralysed people to walk. It is encouraging to see experts across countries working together.
Lord Giddens (Lab)
My Lords, I am neither a medical specialist nor a lawyer and it is pretty near impossible to follow a speech such as that given by my noble friend Lord Winston. However, I am a sociologist and we deal in unintended, or what we often call perverse, consequences. Therefore, to me it is highly important that this Bill, which itself is an innovation, covers the question of whether perverse consequences could arise and whether the Bill could therefore end up subverting some of its own intentions.
With this in mind, I ask the noble Lord, Lord Saatchi, to think again about Amendments 13, 15 and 17 and perhaps to be a bit less dismissive of them than he was in his speech, because I think they would enrich the Bill. A clinical ethics committee would be a more robust way of affirming decisions than the existing way in the Bill. Amendment 13 spells out procedure to be followed. More importantly, it also insists that written records are kept. Critics say that it would add to the bureaucracy but there is no reason why such a committee could not be quite small and have a limited brief.
I regard Amendment 17 as very important. It is crucial that if it becomes law the Bill applies to very specific and limited circumstances. Especially important in my view, and I again speak as a lay person with no direct expertise, are the clauses limiting the legislation to drug treatments and excluding surgery and conditions involving acute trauma. It is important to spell these things out and I do not think they in any way undermine the Bill. They could contribute to what I think should be a key concern of noble Lords to close any avenues to perverse consequences that could arise, especially with legislation dealing with vulnerable people. We all know the issues here are twofold—what do you do about reckless doctors and how do you make sure that vulnerable patients are not exploited? The more loopholes we can close, the better for the progress of the Bill.
Baroness Finlay of Llandaff (CB)
My Lords, I have added my name to Amendment 15 and I hope that the Minister will give it due consideration. It is really important that the process laid out in the Bill is recorded in the patient’s clinical record. That is the one way that you can verify that things have been done properly. It is also important that there is notification to the central register, as referred to by the noble Lord, Lord Saatchi.
I also hope that the Minister will be able to give due consideration to the situations already mentioned by the noble Lord, Lord Winston, and others. It is very important that we do not make it more complicated than it is already for clinicians to be able to treat patients as they feel appropriate. It is also important that patients have the appropriate safeguards in place. While quite a lot will go into guidance, there is merit in having emergency treatment actually in the Bill as a situation where the Bill would not apply and that treatment in the best interests of the patient in an emergency can proceed by whichever means appear to be best at the time.
Lord Kakkar (CB)
My Lords, I declare an interest as Professor of Surgery at University College in London and as a member of the General Medical Council. I welcome the interventions of my senior clinical colleagues, the noble Lords, Lord Turnberg and Lord Winston. They have helped us to understand that, although it is hard, this is a vitally important Bill to drive forward the practicalities of innovation in clinical practice. I hope that it will also drive forward a positive culture of putting innovation at the heart of all clinical thinking. However, there must be safeguards to ensure the protection of vulnerable patients. A number of amendments in this grouping try to address that issue. When this Bill was first made available for public comment some years ago, I was initially anxious about the fact that there were insufficient safeguards. The approach that I wished to adopt was one that I know has been considered but has been also dismissed. I have, however, become reassured by the process under the supervision of the Medical Director of the NHS, Sir Bruce Keogh. He has consulted widely among the profession and I believe that the amendments in the name of the noble Lord, Lord Saatchi, particularly Amendments 12 and 16, bring us to a place where appropriate safeguards have now been introduced. I hope that they will be judged sufficient to provide the protection that all responsible and reasonable clinical practitioners would want in a Bill of this nature.
There are two other amendments being considered in this group that I believe to be vital, Amendments 15 and 19, dealing with the registration and reporting of the results of innovation. There is no doubt that if this Bill is to achieve what it hopes to, the innovations that are provided as a result of having this provision available to us in clinical practice must be reported widely and be available for other clinical practitioners to consider. I know that, at this stage, the view is that other mechanisms are available that provide the opportunity for that reporting to be made, but I wonder whether the Minister might consider during the further passage of the Bill how very powerful a provision of the kind suggested in the two amendments would be in securing the greatest benefit for the largest number of patients.
Another question to have been raised on this group of amendments is that of being certain that the Bill does not apply to situations of emergency care and does not in any way interfere with the mechanisms available for ethical and appropriate clinical research. A strong research governance structure supported by strong legislation is available in our country, and this Bill should not be seen to impinge on that in any way. I am reassured by the noble Lord, Lord Saatchi, saying that the Bill does not relate to the conduct of research and should not be confused as doing so, nor does it in any way interfere with what are, as the noble Lord, Lord Winston, said, acute and deeply stressful decisions that have to be taken in the situation of providing emergency care. I hope that the Minister will be able to reassure us that other legislation, guidance and mechanisms exist to ensure that the Bill does not impinge on those two areas.
Baroness Gardner of Parkes (Con)
My Lords, I strongly support the Bill and hope that we will be able to reach agreement on important points today. It is essential that patients should feel safe, so all the safeguards being put forward are welcome, but patients also want to feel hope. When I think of Les Halpin, referred to by the noble Baroness, Lady Masham, I recall his rapid deterioration with motor neurone disease. When he first launched the idea of doing something, it was hard to detect that there was anything wrong with him. Within no time at all, it seemed—but probably it was about a year—he could not stand; he was in a wheelchair; and he had to have his head supported. It was unbelievable. What he wanted, not only for himself but for others, was hope.
The noble Baroness, Lady Masham, referred to Ebola, where they are trying things, irrespective of whether they know they are right, and in many cases they are probably working. It is hard to know. When I was chair of the hospital that has the Ebola clinic here in the UK, we had a case and the man recovered. In those days, there was no treatment other than just isolation and patients relying on their own strength to pull through. The noble Lord, Lord Winston, related a story about an ectopic pregnancy. It was interesting to see there how there was a conflict between two highly qualified medical practitioners. If he had not bravely taken that action, irrespective of any action that might be taken against him, that woman would not have survived. We do not want to make the procedure so enormously complicated that, by the time you have the result, it is too late for the person that you are aiming to help. On the other hand, I think that everyone agrees that the recording of the information, referred to by the noble Lord, Lord Turnberg, in speaking to his amendments, is essential. Unless it is recorded and open for use by everyone, it might help one individual, but no one will know what happens and how to help any others afterwards on a wide scale.
I think that everything that can be said on this Bill today will be said. I remember at Second Reading that the noble Lord, Lord Winston, was worried about people being sued for failure to innovate. I feel that that is only a remote prospect and should not be worried about too much. If all the safeguards are put in place, I believe that that will not happen. I strongly support the Bill and hope that the Minister will assure us that we will be able to proceed with it.
Lord Cormack (Con)
My Lords, my noble friend Lady Gardner is right to talk about hope. It has been said that the real poor of the 21st century are those without hope, but there is a worse condition and that is to have false hopes. There was a very moving article earlier this week in the Times by Melanie Reid, writing from her wheelchair. Those of us who read her columns from time to time can only admire her courage, resilience and sense of reality. She was writing in the context of the gentleman in Poland who has been given some form of locomotion as a result of brave, innovative surgery.
We are all very conscious of the background to today’s debate, which is different from that to the Second Reading, because, since then, we have had, as has already been mentioned, the Ebola outbreak and the need for untried and untested treatments because they are the only things that might conceivably offer some hope. We have also had the extraordinary affair of the young boy taken to Prague for treatment that he was not apparently able to have in Southampton, and we had the grotesque spectacle of his parents being put in jail. It was the most dreadful story.
Those remarks are merely in preface because I strongly support the aims and objectives of my noble friend. He has done this House a service in bringing this Bill forward, but he has done more than that, because since the Second Reading, he has clearly listened. He has had long conversations with Sir Bruce Keogh, the Secretary of State and others, and has striven to make his Bill much better than it was at Second Reading. We are all very much in his debt for that.
I readily acknowledge that we have heard some powerful speeches today from people who truly know what they are talking about. I readily concede that this Bill is not perfect now. I believe that if we are to legislate on this front we need to get the best possible Bill to become an Act of Parliament and speed must not be the only criterion we take into account when we are legislating on such a complex issue.
It was very moving to hear what the noble Lord, Lord Winston, said about some of his own experiences. The account given by the noble Lord, Lord Turnberg, of the surgeon at 30,000 feet also brought home to us how incumbent it is upon those with medical and scientific knowledge to be able to react quickly. The whole purpose of science and medicine is to innovate, otherwise people are merely being repetitious, and if you are merely repetitious then you cannot make true progress.
I think that there is a way forward on the legislative front this morning. I hope that we can today accept the amendments that the noble Lord, Lord Saatchi, has thoughtfully and helpfully tabled, and I believe that there should be another stage, a Report stage, where in the light of the amended and improved Bill, people such as the noble Lord, Lord Winston, whom I admire greatly, and the noble Lord, Lord Turnberg, who has done so much himself, can sit down with the noble Lord, Lord Saatchi, and further improve the Bill, so that when it goes to another place it has the benefit of that vast reservoir of medical talent and experience which is unique to this Chamber.
If ever anything justified the existence of this Chamber, it is a debate such as we are having this morning, where people who have really achieved great things in their chosen field are able to bring the benefits of their experience to our counsels.
I hope that this morning we can accept the amendments of the noble Lord, Lord Saatchi, and that he will then consult the noble Lords, Lord Winston, Lord Turnberg, and others, so that when we have further amendments on Report, we can make the Bill as foolproof and comprehensive as possible. It can then go to another place, where I hope that they can expedite its progress to the statute book.
Lord Winston
My Lords, perhaps I may intervene briefly before the noble Lord, Lord Cormack, sits down. He refers to the Ebola virus and to proton beam or carbon beam therapy—I am not sure which it was—and the boy who eventually went to Prague, I think it was. In the case of carbon beam or proton beam therapy, there is extensive medical literature about the treatment, so it is not innovative in the context of the Bill. I suggest to the noble Lord that with regard to the Ebola virus, although a very experimental vaccine has been given that has not been tested, there has been extensive discussion in all sorts of circles, including the New England Journal of Medicine, which is one of the leading journals in the world of medical practice, of whether such plasmas or vaccines should be given. That is fundamentally different from the Bill. I thought that the subject of Ebola might well come up, and I just wanted to make it clear that that threat is a very different issue and would be outside the scope of the Medical Innovation Bill.
Lord Cormack
As that was meant to be an intervention, I suppose that I had better respond. I was merely mentioning things that had happened since Second Reading; I did not begin to suggest that they were relevant to the Bill. I mentioned them by way of background, but of course I take the graciously worded rebuke and entirely accept what the noble Lord, Lord Winston, just said about the scientific background to both those examples.
Lord O’Donnell (CB)
My Lords, like the noble Lord, Lord Giddens, I am not a medic. I rise to speak because I think that this issue creates all sorts of problems and challenges in which my experience in public policy and economics can help. To me, what determines innovation is essentially economic. Economists have studied for a long time precisely how you get innovation in systems. I will not lecture noble Lords on the medical side. It is important that we operate with our heads, not our hearts, in this, so you will not get any emotional stories for me; I will be boringly analytical. I think that this is an issue about evidence-based policy.
We know that markets will not solve the issues that the noble Lord, Lord Saatchi, raises in the Bill. The incentive structures are such that the pharma companies will go for those areas where they can sell large amounts of drugs. Rare cases will be problems. One issue I have as someone who cares enormously about evidence-based policy—I gave a lecture at the Royal Statistical Society earlier this week on this, when I went on at length, which I will not repeat—is how you generate the right amount of data to handle this problem. I received a briefing from the BMA which said that there was no evidence to support such things. Of course there was no evidence; that is the whole point. We have to find ways to generate evidence.
I strongly support the Bill. In that, I am with Sir Michael Rawlins, president of the Royal Society of Medicine and former head of NICE, who knows about the analysis, so I take the medic side as given. I am very pleased that the noble Lord, Lord Saatchi, has accepted the safeguards. If you believe, as I do, that the really important part of this is the generating of evidence, we need something in the Bill to state that we will record evidence and register it correctly. That makes a lot of sense, but as a good former civil servant, I look forward to hearing the Minister’s reply and hope that he will reassure me that there is an equivalent way to do that. If that is true and is as solid, I will accept that; but in its absence, we need to make sure that we learn, that we get every innovation documented so that we build up the evidence base. That is what this is about—innovating safely and successfully.
Lord Kirkwood of Kirkhope (LD)
My Lords, I am pleased to follow the noble Lord, Lord O’Donnell, whose experience in the area of public policy is well known. I have come late to consideration of the Bill. Regrettably, I could not make the debate at Second Reading. My interest in the subject was generated by a four-year period on the General Medical Council, which ended at the end of 2012. I was deeply sceptical about the Bill when I first read that the noble Lord, Lord Saatchi, was proposing it. However, I pay tribute to those colleagues who have thought about the amendments and presented them. I am not a medical doctor; I trained as a pharmacist; but this has been a very good, easily understood, high-quality debate about the issues. I pay tribute to the noble Lord, Lord Saatchi, because he has obviously been listening very carefully. He may even win my support, subject to one or two points that I will raise in a moment.
As a former business manager, I am prepared to accept the Saatchi-Keogh package, as it were, but I would not want to take a final decision on some of the other important amendments. I might support some of them on Report, but I do not think that this morning is a good time to do anything other than take a step forward with the amendments of the noble Lord, Lord Saatchi, with the help of Bruce Keogh. That would be in the best interests of the consideration of the Bill. I warmly accept the noble Lord’s change of heart, if that is not too strong a way to put it. The Bill is much better dealt with in this House than along the Corridor, because I have been along the Corridor and I know what happens there. This is a much better context in which to get the Bill as good as it can be before we send it there. I recognise that that was a big decision for him.
I would be much happier to vote for this package in its entirety if the noble Lord paid attention to five amendments. I have listened to the careful way in which they were presented this morning. The Turnberg Amendments 15 and 19 are very important for me, and the noble Lord, Lord O’Donnell, made an important case. If we do not capture the benefits, the Bill is not worth having. At the top of my Christmas list of five amendments are Amendments 15 and 19. Given the tone of the debate in the House, the noble Lord, Lord Saatchi, may reflect that if he does not concede something in that direction he will find it difficult to persuade me that the Bill is worth having at all. Second on my list is Amendment 10, tabled by the noble Lord, Lord Pannick, because I think reasonableness and proportionality are necessary in the Bill. The noble Lord made a concise and compelling case. The noble Lord, Lord Saatchi, dismissed it rather lightly, so I ask him to think again about Amendment 10. Amendment 17 concerns restrictions. I am very nervous about the Bill being applied to mental health, and I corroborate and underscore comments made by other colleagues. Lastly, Amendment 22, in the name of the noble Lord, Lord Winston, would make it absolutely clear that there is no duty to innovate. That may seem irrelevant but it is important for the protection of doctors—and I say that as a former member of the General Medical Council.
Baroness O’Neill of Bengarve (CB)
My Lords, I am sorry to say that I am another non-medic. Indeed, I am a philosopher by trade and training but I would like to make three points. First, I was puzzled at Second Reading and again this morning by a certain divergence of vision among those of our medical colleagues with surgical experience and those who are not surgeons. It seems that, on the whole, those with surgical experience are quite happy with current legislation. They feel that they must innovate and that the non-standard anatomy, which I have learnt that we all enjoy, means that they cannot go in there with a rule book and just stick to it. I have not heard quite the same uniformity from our clinical colleagues who are non-surgeons. I hope that we could be a bit clearer about whether surgical procedures should be in here at all.
Secondly, the question of unintended consequences has already been raised by the noble Lord, Lord Giddens, and others. Some quite process-heavy amendments have been proposed which deserve rather more picking apart than they have already received. We do not wish to put in so much process that we successfully stifle the very innovation that it is the purpose of the Bill to achieve. I hope that we can come back to those amendments.
Finally, and with trepidation as I am standing right behind the noble Lord, Lord Pannick I say that, there is a bit of a difference between reasonableness and proportionality. They tend to come as twins. I am entirely in favour of reasonableness but proportionality suggests that you have at the back of your mind enough data to say what is proportionate and what is not. I fear that introducing requirements for proportionality may actually wreck the possibility of innovation in areas where part of the objective is to obtain the data, because they are not yet there. I would have thought that from a patient’s point of view it is reasonable to go for a treatment for which there are not yet complete data, and therefore no judgment of proportionality can be made, but which nevertheless is reasonable because the other options are dire.
Lord Mackay of Clashfern (Con)
My Lords, I had not intended to take much part this morning but, my name having been mentioned, I am stimulated to respond. The Bill is about innovation. Therefore, if a doctor is attacked for some failure in respect of innovation, the ordinary rules of defence that are presently available do not seem appropriate. Our colleagues who are excellent innovators have managed to avoid the necessity for litigation as a result of their innovations. However, if by any chance any of them were challenged, how would they go about their defence?
I make this basic point in answer to my colleague the noble Lord, Lord Pannick. He quoted what I said at Second Reading. It will not surprise your Lordships if I happen to hold still to what I said then. The point is that when there is an innovation, there is not much material on which to judge whether it is reasonable or proportionate. If there were in the existing practice, it would not be an innovation. The problem is therefore that the ordinary formulations of reasonable and proportionate with which lawyers are very familiar—I am enough of a lawyer to be familiar with them—are not really appropriate. I believe that the test which my noble friend Lord Saatchi’s Bill originally had, and which is preserved among all the innovations that have taken place since, is in Clause 1(4)(a):
“Nothing in this section … permits a doctor to administer treatment for the purposes of research or for any purpose other than the best interests of the patient”.
That is a simple test which the doctor must face at the time of innovation and, so far as I am concerned, elaboration with the familiar legal phrases that are very dear to lawyers is a mistake. I therefore adhere to what I said at Second Reading.
I should perhaps say that I am not entirely without experience in this area for when I was in practice in Scotland, which is now a long time ago, I did quite a lot of work in the Medical and Dental Defence Union of Scotland area. My very first appearance as a counsel in this House was in respect of a doctor’s negligence. My experience was over quite a long period; it may not have been very good but it was certainly extensive. I very much support the Bill and hope that we need not get around to voting on it today. There is plenty of scope for discussion about these matters and a good deal of substance in many of the amendments. We should discuss them further and, if necessary, have votes on Report.
Baroness Wheeler (Lab)
My Lords, on behalf of these Benches I welcome the commencement of the Committee stage of the Bill. At Second Reading we underlined the necessity for close scrutiny by this House, and we are pleased that the opportunity has been presented to us. In that debate there was both strong support for and strong reservations about the Bill, with many questions and issues to be addressed. We have moved on since then, but despite acknowledged progress made on safeguards for staff and patients contained in the amendments from the noble Lord, Lord Saatchi, there remain crucial reservations and concerns from key parts of the medical profession and from patients’ organisations, as we continue to discuss today.
We commend the work that the noble Lord has undertaken on the Bill, and feel that the changes on patient and staff safety signify improvements to it. It is reassuring that his proposed amendments have the backing of Sir Bruce Keogh, the NHS medical director, and the Government, and that the common-law Bolam test would remain unaffected by the Bill. The noble Lord, Lord Saatchi, knows that there is strong support for the principles and the intent of what he is trying to achieve. Labour has always strongly supported efforts to put innovation at the heart of the NHS and to bring innovative treatments to patients faster.
After Second Reading, the Minister for Health, Dr Daniel Poulter, responding to a Parliamentary Question in the Commons from Labour on the progress of the Bill, acknowledged the Government’s support for the principles of the Bill but emphasised that the amendments were necessary,
“to ensure it does not: put patients at risk; deter good and responsible innovation; place an undue bureaucratic burden on the National Health Service; or expose doctors to a risk of additional liabilities”.
These four key tests are what we should keep firmly in focus today, and I hope that the noble Lord, Lord Saatchi, and the Minister will address whether they consider that the tests have been met in the revised Bill in their responses to the issues that have been raised today.
I will limit myself to speaking on just some amendments in this group. Like other noble Lords, I look forward to hearing from the noble Lord, Lord Saatchi, and the Minister on the key issues raised by the many experts in this field who have spoken today. On patient safety, as I have stressed, we welcome the efforts made by the noble Lord, Lord Saatchi, in his amendments to address widespread concerns that the overall Bill would encourage reckless rather than responsible innovation and put patients at risk. We support the new emphasis on reasonable and responsible innovation contained in amendments in the next group, as well as the reference in Amendment 10 in this group from the noble Lord, Lord Pannick, and my noble friends Lord Turnberg and Lord Winston, to the doctor needing to act in a manner that is both reasonable and proportionate. The new provisions in Amendments 8 and 9 are important because we recognise that they are designed to provide that a doctor’s departure from the existing range of accepted medical treatment for a condition is not negligent where the decision to depart is taken responsibly.
We also welcome the deletion of the references in the previous Bill to the doctor’s responsible officer and appropriately qualified colleagues in respect of the staff to be consulted about the proposed treatment. These caused much confusion among both supporters and people with concerns about the Bill, and the new reference in Amendment 16 to the need to obtain the views of one or more appropriately qualified doctors in relation to the proposed treatment is clearer—although it is a critical area that will also need to be developed under guidelines, codes and/or regulations. It needs to be clear who is an appropriate qualified doctor. The new definition of a doctor being,
“appropriately qualified if he or she has appropriate expertise and experience in dealing with patients with the condition in question”,
is also an improvement to the Bill, although the question of the independence of the doctor whose opinion is being sought is a critical one.
My noble friend Lord Turnberg addressed this earlier with much force under Amendment 7. Key stakeholders have stressed that requiring the doctor to have regard to the opinions of other professionals responsible for patients’ care, together with the requirement for written consent to be sought from at least one other doctor who is independent of the responsible doctor, would be a welcome step in providing more clarity to the process.
There is an extremely worrying potential for conflict of interest here—for example, in the supporting doctor’s involvement in the development of the drug or treatment in question—and clear guidelines and rules of engagement will be essential. Sir Robert Francis QC points to the problem that arises from the choice of the appropriate qualified doctor to consult resting entirely with the doctor wanting to offer a new treatment. He or she is free to choose someone in his own partnership or laboratory, or someone with a commercial interest in promoting or selling the treatment. It is less than clear who is the final judge of whether the individual is appropriately qualified. There is also concern among a number of stakeholder groups that pharmaceutical companies could put undue pressure on doctors to try out potentially dangerous treatments, and this concern will also need to be addressed.
Concerns remain that the involvement and consent of patients to untested innovative treatments are not more explicitly in the Bill. Amendment 14 from the noble Baroness, Lady Masham, addresses this issue by specifying the need to obtain informed consent in light of the aims, processes and risks. I look forward to hearing further from the noble Lord, Lord Saatchi, on how he considers the Bill can address this, as this point has been raised by a number of noble Lords in the debate.
Lord Turnberg
My Lords, I hope that I am not out of order in responding to some of the comments from the noble Lord, Lord Saatchi, about my amendments. I am grateful to him for his comments and I listened with care to what he had to say. I am also impressed by the noble Lords, Lord Cormack and Lord Kirkwood, and indeed the noble and learned Lord, Lord Mackay, that further discussions may be possible before Report, which I would very much welcome.
On Amendment 1, I note that the noble Lord, Lord Saatchi, is not very keen on the idea of limiting the scope of the Bill at the moment to cancer, but my point here was to start with that and expand cautiously in the light of experience. I note that the noble Lord, Lord Kirkwood, also urged some caution in the way in which we introduce the Bill. The amendment also impacts on Amendment 17, whose lists of exclusions, if we went along the line of limiting the Bill to cancers, would not be quite so necessary.
My Amendment 7 and Amendment 12 from the noble Lord, Lord Saatchi, overlap to a considerable extent, and I am grateful for that. The main difference is that his concentrates largely on taking account of the views of another expert, while mine suggests that we should obtain the agreement of at least one other expert, which should be recorded in the note. I think that that strengthens his amendment, and I hope he will think about that rather carefully.
On Amendment 15, a number of other noble Lords have referred to the need to have any innovations recorded in some form of register but also in the patient’s records. I listened carefully to whether the noble Lord, Lord Saatchi, had accepted the idea that the record should be in the notes as well, and I hope he will accept that too.
Amendments 21 and 32 talk about research. I am pleased that the noble Lord agrees with the principle that this Bill should not interfere with research; I do not think that anyone feels that it should. However, there are many in the research world who are concerned that the Bill might have that unexpected consequence. Something in the Bill along the lines that would exclude the possibility would therefore be extremely helpful.
Similarly with Amendment 24, which talks about emergency care, it is true that the Bill may not cover emergency care, but there are people involved in accident and emergency departments who are concerned that the Bill may somehow, in some way, inhibit them. It would be a shame if the impression left by the Bill inhibited that sort of emergency innovative practice, hence the reason to have something in the Bill.
I do not intend to divide the Committee today on any of these amendments, and I am very grateful for the informed debate on many of them. I hope we will have a chance to come back to at least some of them on Report.
Lord Winston
Does my noble friend agree that one of his amendments tends to limit the Bill almost entirely to cancer treatment? There is a problem even there, however, because, as the noble Baroness, Lady O’Neill, said, surgery is an important part of cancer treatment. It is absolutely certain—I am not a cancer surgeon but I have watched many cancer operations, and perhaps other surgeons in the Chamber will support me on this—that cancer surgery is often the most innovative surgery, and you cannot possibly take a decision with the sorts of permissions that are usually required beforehand, because you do not know exactly what you are going to encounter. There is a problem there with the structure of the Bill as it presently stands.
Lord Turnberg
I accept entirely what my noble friend has said. The surgical aspects of the Bill are quite tricky.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, this large group of amendments, all in their own separate ways, seek to ensure that patients are protected against negligent or irresponsible treatment. As we have heard, these amendments take many different approaches in seeking to achieve essentially the same goal. The Government are absolutely committed to safeguarding patients. That is why my right honourable friend the Secretary of State for Health asked Sir Bruce Keogh, the medical director of NHS England, to work with the medical profession to devise a package of amendments that would make this Bill safe for both patients and doctors. Like my noble friends Lord Kirkwood and Lord Cormack, I take this opportunity to commend my noble friend Lord Saatchi for listening to concerns and agreeing to table the amendments recommended by Sir Bruce Keogh in full.
I now address the amendments themselves. On Amendments 1, 7, 17 and 33, the Government do not feel that there is anything to be gained by restricting the scope of the Bill in the way proposed. To set out specific medical treatments or circumstances that would or would not be covered by the Bill would make it complicated for doctors to follow and less flexible to individual patients’ circumstances. That was well exemplified by the exchange that we have just heard. This might limit the Bill’s usefulness to patients and doctors alike. I say to the noble Lord, Lord Turnberg, that there is no question of the Bill applying to unregulated practitioners: it applies to doctors. In answer to the noble Baroness, Lady Wheeler, about what constitutes an appropriately qualified doctor, we believe that to define the required level of experience and expertise would create an overly burdensome requirement on doctors looking to innovate responsibly. A requirement that a doctor is appropriately qualified provides a sufficient safeguard to patients. New Clause 1(3)(b) requires the doctor to take full account of the views of an appropriately qualified doctor in a way in which a responsible doctor would be expected to do.
The provisions in Amendment 7 outlining the process that a doctor must follow to reach a responsible decision are largely addressed by my noble friend Lord Saatchi’s Amendment 12. The provisions in Amendment 7 which require doctors to consult a specified range of other doctors are too restrictive and would make the Bill complicated for doctors to follow. My noble friend’s amendment for doctors to take full account in a responsible way of the views of one or more appropriately qualified doctors in relation to the treatment is less burdensome and is a better equivalent to the existing law.
The noble Lord, Lord Pannick, raised concern that a responsible decision under the Bill is defined as relating to the process rather than the substance of the decision. I listened very carefully to that point. The steps that a doctor has to take under new Clause 1(3) include taking account of substantive factors as well as process. This includes taking full account in a responsible way of the views of one or more other doctors about the proposed treatment. In addition, the doctor must consider the risks and benefits of the proposed treatment as compared to other treatments and to not carrying out any treatments at all. This strays outside the realm of process.
The Government’s view is that it is not necessary in this Bill to require doctors to record their innovation in medical records as set out in Amendments 7 and 15. The General Medical Council’s Good Medical Practice guidance already sets out requirements on doctors to record their work clearly in clinical records, including clinical decisions made and discussions with patients. On Amendment 19 and the related Amendment 34, the Government believe that requiring doctors to record the results of innovative treatments in order to demonstrate that they have not been negligent is not the right approach. This is too bureaucratic and risks deterring doctors from innovating. As regards the idea put forward by the noble Lord, Lord Winston, that there should be some sort of oversight by a clinical or research ethics committee, that would add a very significant level of bureaucracy. Considering the time it would probably take to receive a response, it would act as a barrier to innovation. As the noble Lord knows, research ethics committees are specialists in considering research proposals and would not necessarily be qualified to comment on innovative clinical practice. They do not necessarily have universal coverage and they would not necessarily have the requisite knowledge to advise doctors on very specialised innovative new practices.
However, I have heard the legitimate concerns of noble Lords today, and I commit on behalf of the Government to explore this issue further and constructively with the relevant professional bodies. It will clearly be helpful to understand, should this Bill become law, what might be useful in terms of record keeping and reporting in relation to medical innovation. Furthermore, I commit to ensuring that any guidance that may be appropriate is developed and made available in a timely manner. I hope the intention to issue guidance will be of help to my noble friend Lord Kirkwood.
Amendments 12, 14, 18 and 21 seek to ensure that consent is sought and that proper consideration is given to the views of the patient. My noble friend Lord Saatchi’s Amendment 12 ensures that to fall within the Bill a doctor must obtain any consents required by law. This amendment also ensures sufficient protection for the views of the patient. Furthermore under the existing law of consent patients already have the right to information about the testing and treatment options available to them.
The noble Baroness, Lady Masham, posed questions about drugs. She asked me whether the NHS would pay for unapproved drugs or whether the patient would have to do so. It is worth noting that nothing in the Bill allows doctors to bypass any processes or requirements set by the trust that they are working for. This would include ensuring that the trust would fund any treatment if it were to be provided within the National Health Service. She was fearful that this could result in a two-tier health system in which a patient would be required to pay for innovative treatment. The Bill does nothing to alter funding arrangements for accessing innovative treatments within the NHS, as I have said. That will be governed by whatever rules apply in the trust concerned. However, the Bill also does not change the ability of patients to pay for private medical treatment, as they are able to do now.
Lord Turnberg
I am sorry to interrupt the Minister’s flow. Does he not think that that is confusing for doctors in an emergency situation, wondering which route to take and about the options at that stage, rather than just getting on with the job?
Earl Howe
Personally, no, I do not—although my noble friend may choose to address that point. I believe that what initially motivated my noble friend to introduce the Bill was a perception on his part that there are doctors out there who are afraid to innovate, and perhaps afraid to innovate even on the spur of the moment, for fear of being litigated against. If that situation were to apply, that doctor could regard the Bill as a useful way forward. I do not think that that poses any confusion, because my noble friend is proposing to bring the Bolam test forward, as he has clearly explained, so that the essence of the principle that the courts look at would apply in whichever course the doctor chose to take.
The noble Baroness, Lady Wheeler, made a point about conflict of interest. The Bill makes it clear that the doctor will be protected from a successful claim in negligence only where they have reached a responsible decision. That includes a requirement to consult with one or more appropriately qualified doctors. In choosing which doctors would be most appropriate to consult, a doctor would need to be confident that their views would enable him or her to reach a responsible decision in order to benefit from the protection offered by the Bill. Just to make the point absolutely clear, I say that the Bill does not change the law of consent in relation to children or people who lack capacity, whereby any treatment provided to them by a doctor must be in their best interests.
Amendment 10 would add a requirement on doctors to act in manner that is reasonable and proportionate. My noble friend Lord Saatchi’s Amendment 11 would ensure that a doctor must be acting responsibly in an objective sense when making a decision to depart from the existing range of accepted medical treatments for a condition. Under the law of negligence, “reasonable” and “responsible” have the same meaning. Therefore, the Government’s view is that Amendment 10 is unnecessary.
Amendment 24 would clarify that doctors would not have to follow the steps of the Bill in an emergency. My noble friend Lord Saatchi’s Amendment 29 ensures that it is for the innovating doctor to decide whether to take the steps set out in the Bill or to rely on the existing Bolam test, as I have just explained. There is no requirement to follow the Bill.
My noble friend’s package of amendments ensures that the Bill comes as close as possible to achieving the policy intent of bringing forward the Bolam test to before treatment is carried out. The amendments would do this in a non-bureaucratic way by avoiding the creation of new approval structures or alteration of the remit of existing groups such as multidisciplinary teams. They provide a critical safeguard in ensuring that there is both expert peer review of the doctor’s proposal and that the doctor acts responsibly. The Bill would not provide any protection to a doctor who carried out an operation or procedure negligently. The Government would not support any Bill that sought to prevent patients who receive negligent treatment from seeking compensation or which sought to remove the requirement of doctors to behave responsibility and in the best interests of their patient.
I will turn briefly to the questions put to me by my noble friend Lord Kirkwood. First, he asked me whether the Bill would apply to pharmacists who dispense medicines. The Bill applies to a decision by a doctor to innovate, which would include a decision to prescribe an innovative medicine. The Bill does not impact on the reliability of a pharmacist who provides a patient with a medicine in accordance with a doctor’s prescription.
My noble friend also asked whether the Bill would apply in Scotland. It would apply in England and Wales but not Scotland or Northern Ireland. Medical negligence law is within the legislative competence of Northern Ireland and Scotland, but not Wales. He also asked me whether there is a conflict between the Bill and the common law. Under both the Bill and the common law a doctor will not be negligent if they have acted responsibly. The Bill, so far as possible, brings forward the common-law Bolam test, as I have explained, to before the doctor offers treatment. There is therefore no conflict between the requirements under the Bill and the common law. The Bill simply offers doctors a way to demonstrate and be confident before providing treatment that they have acted responsibly and thus not negligently.
As regards the cost of implementing the Bill, which my noble friend also asked me about, my reply to him at this stage is that there is not sufficient evidence for us to arrive at a cost figure. The impact of the Bill is by its very nature hard to predict.
I hope that noble Lords will accept my noble friend’s package of amendments in this group—that is to say, Amendments 8, 9, 11, 12, 16, 20, 25, 26 and 27. It is the Government’s view, based on medical and legal advice, that together these amendments do all that is necessary to protect patients, while freeing doctors to innovate responsibly without undue bureaucratic burden.
Lord Saatchi
My Lords, I thank all noble Lords who have spoken on this group, which was initiated by the noble Lord, Lord Turnberg. Many interesting points have been made on ethics, law, science and medicine. I am sure that we will all agree that the Minister has dealt with them all admirably. He certainly put the points better than I could have myself, and I hope that he has covered most of what was said.
What can I add to what my noble friend has said? I do not want to descend into anecdotage, but if any noble Lord sensed a reluctance on my part in relation to these amendments, perhaps this will help. I was taught the importance of what the noble and learned Lord, Lord Mackay, and the noble Baroness, Lady O’Neill, said as regards trying to maintain the simplicity of the Bill in an exchange with the noble and learned Baroness, Lady Butler-Sloss. At an early stage Daniel Greenberg, the Parliamentary Counsel, who has been the draftsman of the Bill throughout, showed her the first or second draft and said, in effect, “What do you think?”. She replied, “Make it shorter”.
Over the course of the last two years we have tried very hard to keep the Bill in a state which I think the noble and learned Baroness and the noble and learned Lord, Lord Mackay, would approve of. I learnt from her that the courts want to have an Act of Parliament that is absolutely crystal clear in its intent, so that there is no doubt and confusion at all in the mind of the court about what Parliament intended with this or that clause, phrase or wording. We have tried very hard to do that. I reassure your Lordships that if that has in any way given the appearance of reluctance on my part, I am deeply apologetic.
I would certainly welcome following up the suggestion of the noble Baroness, Lady Wheeler, and those of many other noble Lords. The noble Lord, Lord Kirkwood, had an excellent wish list of following up Committee today—with your Lordships’ approval—with discussion between now and Report to see where we can get to. I am trying only to deliver to the noble and learned Baroness, Lady Butler-Sloss, and her fellow judges in the courts, an Act of Parliament that is simple, completely straightforward and totally clear, and which does what it is supposed to: provide clarity and certainty at the point of treatment both to the doctor and the patient. As noble Lords can see, I am resisting the enormous temptation to revert to a Second Reading speech, so I will now sit down, after a long group of amendments, so that we can go on to the next group.
Lord Turnberg
My Lords, I am very grateful to the noble Lord, Lord Saatchi, and to the Minister for their comments and their acceptance of many of the points that we made in these amendments and in Amendment 1. I commented earlier on many of the points that have been made. I am somewhat disappointed that the Minister does not like the idea of ensuring that agreement in writing is put into the patient’s record—I thought that that would be quite a useful thing to have. However, perhaps we can talk about that at a later date. Meanwhile, I beg leave to withdraw my amendment.
Lord Pannick
Lord Pannick
My Lords, Amendment 2 refers again to the concept of “reasonable” innovative treatment. I will be very brief on this. First, I am reassured by the comments just made by the Minister that as a matter of law, “responsible” and “reasonable” in this context have the same meaning. Secondly, I am persuaded by the noble Baroness, Lady O’Neill of Bengarve, that we do not also need a criterion of proportionality in this context.
Thirdly and finally, the noble and learned Lord, Lord Mackay of Clashfern, pointed out that in this context of innovation there is of course by definition a limited amount of information already available. That is why innovation is required. My concern is that to justify the innovative treatment, especially if it causes further pain and suffering, it needs to be based on some evidence or at least on a rational judgment that there are some prospects of success. I should also mention Amendment 4, which would leave out the concept of “reckless” treatment. I note that the noble Lord, Lord Saatchi, has added his name to a similar amendment: Amendment 5. I beg to move.
Lord Saatchi
My Lords, I think that the Minister has answered this point, and I do not know what I can add. The Bill at the moment focuses on “responsible” and “irresponsible”, and it is very pleasing to hear that the noble Lord, Lord Pannick, might accept that the Bill concentrates on that distinction, and that to introduce a reference to “reasonableness” or “proportionality” might risk causing confusion. Therefore, perhaps this is a topic on which he can satisfy himself in the discussions that follow Committee.
Lord Turnberg
My Lords, I strongly support Amendment 2 in the name of the noble Lord, Lord Pannick, for inserting the word “reasonable” for all the cogent reasons that he has given. Amendment 3 follows on from my earlier Amendment 1, which defines “relevant condition” and does not need further discussion here. I am very pleased to see that we have the agreement of the noble Lord, Lord Saatchi, that the word “reckless” will disappear from the Bill.
Baroness Butler-Sloss (CB)
My Lords, I strongly support the Bill as it is drafted. I am relieved that the noble Lord, Lord Saatchi, produced a short Bill; I hope that the House does not think that it was a bad idea to suggest that a short Bill might be more attractive than a longer one. For that reason I am not at all happy about the various amendments that were in the first part of our discussions today.
I do have reservations about the words in brackets in Clause 1(1), and I take the view that the noble Lord, Lord Pannick, is probably right to say that they should be excluded.
Baroness Finlay of Llandaff
My Lords, I added my name to the amendment deleting “reckless” because I felt quite strongly that it detracted from the overall intention of the Bill. This is not about reckless innovation; it certainly must deter irresponsible innovation, but it is about encouraging responsible innovation. I also added my name to Amendment 3, on treatment for the “relevant conditions”, because many of these patients who are seriously ill will have multiple co-morbidities and may have many things happening to them. This Bill is aimed, as far as I have understood, at the principal condition—the condition for which patients are often desperate for some innovative treatment. It should not inadvertently allow lots of other strange things to be presented to patients to cope with many of the other co-morbidities that they may have.
My feeling about that comes particularly from my own specialty, which the House knows is palliative medicine, where we see time and again patients who are very emotionally vulnerable, psychologically fragile and potentially in despair, so they are unable to make sense of what is going on. In that state, they are quite vulnerable to people presenting all kinds of strange treatments with false claims. I will give a specific example from my own practice. We came across a group of patients on a ward who all had small crystals by their bed, and we discovered that a member of staff strongly believed that holding on to these crystals would shrink the patients’ cancers. The evidence for it was absolutely zilch; I think that the patients had paid to have the crystals given to them. That type of so-called experimentation is completely outside the scope of the Bill—and must be outside its scope. That is why it struck me that the wording about the relevant medical condition should feature in the Bill, because of the potential for exploitation otherwise.
Earl Howe
My Lords, this group of amendments seeks to alter the purpose clause of the Bill. Under the law of negligence, the words “reasonable” and “responsible” have the same meaning, as the noble Lord, Lord Pannick, reminded us. As such, the addition of “reasonable” is not necessary and risks creating confusion. Existing clinical negligence law commonly refers to a responsible body of professional opinion. The addition of “reasonable” may suggest that the test under this Bill differs from the existing Bolam test.
The noble Lord, Lord Pannick, asked me whether the Bill required a rational judgment of success. Proposed new subsection (3)(d) in Amendment 12 requires the doctor to consider a number of factors in relation to the proposed treatment. This includes a requirement to consider,
“the risks and benefits that are, or can reasonably be expected to be, associated with the proposed treatment”,
other accepted treatments, or,
“not carrying out any of those treatments”.
In weighing this up, the doctor must apply an objective standard as to what could reasonably be expected in relation to those treatments. This provides a further safeguard for patients in ensuring that a doctor may not offer an innovative treatment in accordance with the Bill unless he has acted in an objectively responsible way. I hope that that helps the noble Lord, Lord Pannick.
My noble friend’s Amendment 11 seeks to ensure that a doctor must be acting responsibly in an objective sense when deciding to depart from the existing range of accepted medical treatments.
On Amendment 3, the Government do not feel that there is anything to be gained by restricting the scope of the Bill in this way. To set out specific medical treatments or circumstances that would or would not be covered by the Bill would make the Bill complicated for doctors to follow and less flexible to individual patients’ circumstances. This might limit the Bill’s usefulness to patients and doctors alike.
On Amendments 4 and 5, the Government support the amendment to remove the reference to deterring “reckless irresponsible innovation” from the purpose clause. Recklessness has a very specific meaning in criminal law, and the term is out of place in a Bill about the law of negligence. Furthermore, the substantive provisions of the Bill focus on how a doctor can demonstrate that he has acted responsibly. This amendment therefore ensures that the purpose clause better reflects the focus of the Bill. I hope that noble Lords will accept Amendment 4, which brings clarity to the purpose of the Bill.
Lord Saatchi
My Lords, I thank my noble friend the Minister for what he said. I think that there is a consensus on Amendment 5 in my name, that of the noble Lord, Lord Turnberg, and that of the noble Baroness, Lady Finlay, to remove the word “reckless”. I think that we are agreed on that. My noble friend dealt with the point under Amendment 3 from the noble Baroness and the noble Lord. We understand the wish to exclude certain treatments and types of surgery, and perhaps that is something that we can discuss between now and Report.
I share the Minister’s wish to accept Amendment 4 from the noble Lord, Lord Pannick, which removes the reference to deterring quackery from the purpose clause. We are agreed on the view that, if the noble Lord, Lord Pannick, believes that it is important to confine the purpose clause to the positive, we should not insist on the inclusion of both limbs—positive and negative—since as a matter of law the negative flows naturally from the positive in any event. If the noble Lord, Lord Pannick, presses that amendment, I shall support it.
Lord Pannick
Lord Winston
“( ) For the purposes of this Act, “innovation in medical treatment” means—
(a) the use of a medical procedure, treatment, therapy, device or instrument which has not been subjected to a randomised clinical trial or equivalent clinical validation, or for which there is no published evidence of its risks or benefits in peer-review medical journals;(b) the prescription of a drug which has not been licensed by the UK Medicines and Healthcare Products Regulatory Agency and the European Medicines Agency;(c) the prescription of a licensed drug for a treatment, condition or therapy not recommended by the manufacturer; or(d) the use of a device or instrument which has not been regulated under the Medical Devices Regulations 2002 (S.I. 2002/618) for the purpose of that particular treatment.”
Lord Winston
My Lords, one issue that crops up again and again in this Bill is that we have not defined what is meant by innovation. This amendment tries to detail where something would be innovative—for example, a drug that has not been recommended by the manufacturer or a device or instrument that might be used in the course of infiltrating a patient’s body in some way. It may be a telescope or a plastic tube, or any therapy, device or instrument that has not been subjected to randomised clinical trials or published in a peer review journal. I have probably said enough about this amendment. It is very clear that, although the Minister says that we are trying to complicate the Bill unnecessarily, I think that sometimes the Bill needs more complication—it is not that simple—and certainly in my view the definitions of innovation are essential, because that is what the Bill is about.
Lord Blencathra (Con)
My Lords, I say, for the record, that I have been here throughout but below the Bar of the House, so I am not suddenly intervening in the debate.
Inevitably, the Bill of my noble friend Lord Saatchi has been driven by terminal cancer care, and we understand the motivation. As regards the discussions on the first group of amendments, I agree with the noble Baroness, Lady O’Neill, that we have heard from some of Britain’s most distinguished “scalpel” experts but we need to hear a bit more from physicians who have responsibility for long-term and chronic care. That is why I totally support my noble friend’s Bill and the amendments he has proposed but I also support Amendment 6 proposed by the noble Lord, Lord Winston. I support it but I hope that it may not be necessary and that my noble friend Lord Saatchi will see that it is already taken care of in the Bill. However, I would like to flag up in this debate that it is important that the Bill covers innovative drug treatments, including drugs which are not necessarily authorised or approved in this country.
One does not want to get into describing personal medical things—it is a bit grubby. However, as an enthusiast for the Bill, who has experience of innovation approved by medical authorities in this country and has participated in some innovative treatments not approved in this country, I think that the House should hear from the users at the sharp end, so to speak.
I was diagnosed with MS in 1996. It is slow, progressive and each year it slightly tightens its grip. I would say to our distinguished lawyers, as I said at Second Reading, that when one goes to see one’s consultant, one does not go with a lawyer in hand to see whether the consultant makes mistakes and one can sue him. I suspect that, like me, a hundred thousand other MS sufferers and those with Parkinson’s and motor neurone disease all go along to ask, “What is new? Have you seen the latest research? What have you got? Is there anything that will work?”. We know that at the moment there is no cure for MS, although I think that researchers are getting pretty close to finding one, but we want to get palliative care.
As I say, I do not want to go into details but some of the side-effects of increasing MS are pretty nasty and, frankly, life is not worth living unless those side-effects are dealt with. For many MS sufferers, as the nerve endings die, particularly in the legs and feet, the feet drag. No problem there, as one loses some strength in the legs, one can have a wheelchair. But many people suffer a complete loss of bladder control. If one has to go to the loo every 10 minutes, life is just not worth living. An innovative treatment was developed by the Swiss, which was then experimented by the National Hospital in London. Those Botox injections directly into the bladder were not a life-saver but they made life worth living again. Without going into details, I fought my way through to become patient No. 51 in the clinical trials. That treatment has now been approved by NICE after all these years.
I am not saying that I am typical of patients with this sort of slow, progressive disease but I suspect that I am typical of many who will try any innovative treatment. I am 16 days into a treatment with a new drug, Fampridine, which is approved for use in this country but only, I think, in the national neurological hospital in the wonderful Queen Square. I believe that in clinical trials of the drug, 40% of people experienced a 40% improvement in their ability to lift their feet a tiny bit. However, lifting one’s feet a quarter of an inch when one is walking is very beneficial as it stops one tripping over every dead fly on the carpet.
As I say, at the moment there is no cure for MS but these innovative treatments are making life better. After just 16 days of my experimental treatment, I certainly feel a marginal improvement—at least I am not declining further. That may be the only hope one can offer many people—not that we can fix them but we will make the quality of their lives better for the long term and we will try to hold the disease at bay. Therefore, the provisions of Amendment 6 are absolutely apposite.
In October or November of last year, an American research institute, the Scripps Institute, reviewed about 10,000 drugs currently approved in the United States for various conditions and treatments. The staff there discovered, partly by accident, that there was one drug prescribed for Parkinson’s which seemed to repair the myelin sheath, certainly in their laboratory animals suffering from MS. I understand from my research that American doctors have slightly more power to prescribe off-label treatments than do British doctors. If it is in the patient’s best interests, they are entitled to prescribe a medicine which is not authorised or approved for that condition. British doctors do not seem to have that same flexibility or freedom, except perhaps if a drug is prescribed for adults and a child has those same symptoms, they may off-label prescribe a quarter of a pill or half a pill, like half an aspirin given to children with an illness. As I say, British doctors do not seem to have that freedom or flexibility.
The vast majority of people do not have the benefits I have of contacting an American doctor and managing to get my hands on some of those pills. They are prescribed in this country for a certain condition but no doctor can prescribe them for MS patients at present. It will be another five or 10 years by the time all the trials are conducted. I appreciate that this Bill is not about laboratory experiments or turning us into lab rats, although I am happy to go much further than the terms of my noble friend’s Bill and be a lab rat for some of these things. However, unless physicians treating long-term chronic illnesses can prescribe off-label treatments, which they think are in the best interests of the patients, this Bill will have failed. I hope that we can include off-label treatments.
I am obviously not an expert but I am deeply interested—I declare that interest as a patient—in the cocktails of drugs that seem to be available. For many treatments—it is the same for HIV and many others— there is no magic pill about to come on the market that will fix them. However, doctors have discovered that a combination of drugs, cocktails of various things, may have palliative or curative effects. I am on various cocktails of drugs, involving daily injections, weekly pills and various tablets. I can say that most of these are approved in this country but some are not. I am not taking illegal drugs but tablets and pills that have not been approved by NICE but which I, unlike the vast majority of patients in this country, can acquire from abroad. So I hope that if the Bill goes through and if the treatments mentioned in Amendment 6 are automatically included I will, one day soon, able to try those drugs without having to acquire them from doctors in New York. I hope that that would apply to many other patients in this country.
I am supportive of all the contents of Amendment 6 but if my noble friend says that it is not necessary, I am happy to go along with that.
Lord Kakkar
My Lords, I have some concerns about the wording of Amendment 6. Is it intended, for instance, to restrict the use of an agent or intervention that has been tested in a completely different situation—there may be some peer-review publication or some clinical validation in a completely different situation—but where it is proposed to use the treatment for another condition? One will recall that Gleevec was an agent developed principally for the management of patients with chronic myeloid leukaemia; it was an interesting biological compound that targeted a specific mutation in a signalling pathway in cells in that form of leukaemia. Many years later, it was noticed that that signalling pathway mutation was also seen in a particularly rare form of tumour, a gastrointestinal stromal tumour. Those who were innovating decided to use the drug because the genetic mutation appeared to be the same for treating that particular type of tumour to great effect. Would the description of innovation in the amendment have prevented that happening?
Proposed new paragraph (d) of the amendment deals with the question of devices or instruments. What happens if they have been developed and regulated for a particular intervention, and then an innovator decides to use them for a completely different condition? They will have been made available for regulated use but not for the condition in question. Would this amendment therefore restrict that type of innovation?
Lord Winston
I do not think that it restricts anything at all but actually makes the Bill of the noble Lord, Lord Saatchi, workable. We need some kind of definition of what an innovation is. That is all the amendment tries to achieve. It is not in any way restrictive. Of course, if one decides to put a plastic tube that is normally used to infiltrate the trachea into another organ, this amendment will permit that to happen, when currently it would not be allowed.
Lord Giddens
My Lords, the noble Lord, Lord Saatchi, knows that I support the thrust of the Bill but there are issues around some of these amendments that the noble Lord might at least listen to.
As I have mentioned previously, one of the core things about this legislation, given its sensitive nature, is that we have to comb through it all the time for possible perverse consequences. At the risk of sounding like sociology 101, unintended consequences are different from perverse consequences. Unintended consequences can be good or bad; perverse consequences undermine good intentions and reach the opposite result of what an individual needs to achieve. For example, strong rent controls were introduced in New York City to help poor people; in fact, they adversely affected them because they could not find places to live. The noble Lord says that the Bill is crystal clear in its intent, but that is not enough because there is a massive difference between intent and consequence. I therefore feel that as a general principle we should comb through the whole Bill to try to spot possible perverse consequences.
On the whole, with the reservations that have been noted, I support Amendment 6 because it might help to block off some of those reservations. We surely must know what innovation actually means in the context of clinical practice. Without such specification, one can see that various perverse consequences could occur. What would happen, for example, if a doctor was accused in court of failing to innovate because he or she did not try some eccentric form of treatment that was available? One could block off that perverse consequence by specifying, in the way that Amendment 6 tries to do, what actually counts as innovation.
I feel strongly that as the Bill proceeds through Parliament we must tighten every loophole that could lead to a situation in which, to some degree, the Bill undermines what it is actually supposed to achieve—helping vulnerable patients in a situation in which they are often desperate by bringing innovations to them that they would not have had available before. However, I fear that some of those things could happen if one was not aware of the minefield of perverse consequences. If we do not examine it all carefully, there could be consequences that, to some degree, undermine the purest of intentions with which the legislation is introduced.
Lord Pannick
My Lords, I added my name to Amendment 6 because I agree with the noble Lord, Lord Winston, that it would improve the Bill to provide a definition of the core concept of innovation. As the object of the Bill is to provide greater clarity for medical practitioners, it is surely perverse not to include any definition of that core concept in the Bill. No doubt Amendment 6 needs improvement, perhaps for the reasons given by my noble friend Lord Kakkar, but I could not be persuaded that it is beyond the very considerable skills of the draftsman of the Bill, Daniel Greenberg, to provide a definition of innovation.
Lord Mackay of Clashfern
My Lords, the word “innovation” is a straightforward word in the English language. I am not sure that clarity is necessarily brought by multiplying it by how many in this amendment. Apart from anything else, one of the possibilities of innovation is for a doctor to say, “The standard treatment for this is a particular course of operation and chemotherapy. My belief is that that would not ultimately save you; it would subject you to a lot of pain and suffering and so on. The best thing, as far as I am concerned, is that you should not have any further treatment”. I am not sure whether that comes under the definition in Amendment 6, but if we want simplicity, we should go for perfectly clear English words. “Innovation” is one of them.
Baroness Masham of Ilton
My Lords, I support what the noble Lord, Lord Blencathra, has said. The use of drugs seems much more flexible in the private sector than in the National Health Service. I ask the Minister to look very closely at the funding of these drugs if they are to be accepted in the Bill.
Baroness Wheeler
My Lords, I am pleased that Amendment 28 has been grouped with the amendment of my noble friend Lord Winston and the noble Lord, Lord Pannick, as we have considerable sympathy with their attempts to define innovation. I understand that it is a probing amendment. We consider that the Bill would benefit from a clearer understanding of what we mean by innovation and indeed of some of the exclusions that would apply that were referenced in the earlier comments on Amendment 19. I am grateful to my noble friend Lord Giddens. His perspective on that was helpful. I look forward to the response on that.
Amendment 28 is also a probing amendment and underlines that medical innovation and the adoption of new treatments require the whole NHS to make both research and innovation its business. The Secretary of State, the NHS regulators and all the key NHS bodies have a clear responsibility and the authority that they need; they need to use it. We have had many debates in this House that recognise the scale and pace of innovation taking place across the NHS and the frustrating barriers that prevent innovative treatments being adopted.
The noble Lord, Lord Saatchi, considers that doctors’ fear of medical litigation or disciplinary proceedings is a key factor that,
“reinforces a culture of fear and defensive medicine in the NHS”.
Whether medical litigation evidence supports that or not, we need to keep emphasising that it is just one of a number of barriers that have to be overcome. I know that the noble Lord recognises this as the context for his Bill. As Sir Robert Francis QC puts it:
“The real obstacles to responsible innovation are not to be found in the Bolam test but in the minefield of regulation and bureaucratic inertia which doctors presumably have to surmount, not to mention the reluctance to fund innovative treatment”.
The contribution of the noble Lord, Lord Blencathra, underlines that we are far too slow in this country to introduce new treatments.
The Health Research Authority is still yet to make a real impact on speeding up the painfully slow, complex and bureaucratic process of getting innovation in care and treatment adopted in the NHS. There is huge frustration across the NHS that existing pathways and mechanisms are not being fully used, such as the single portal of entry and single application procedures for clinical trials. NHS trusts’ slow implementation of the UK life sciences strategy, Innovation, Health and Wealth, and the very low level of awareness and action that they have taken on that strategy are continuing causes for concern.
Most important too is the role of Health Education England in ensuring that innovation and research are incorporated into the education and training of key medical and other health staff. The excellent vision report from the Association of Medical Research Charities, which my noble friend Lord Turnberg takes every opportunity to raise and endorse, showed the huge challenges we face in building support among doctors and patients for participating in research that leads to innovation.
As research and innovation go hand in hand, we were keen to include reference to research and innovation in our amendment, but I hear what has been said by the noble Lord, Lord Saatchi, and the Minister on this. I note that the Medical Defence Union, while now supporting the changes the noble Lord, Lord Saatchi, has made to the Bill, also makes the point about the importance of research being included because that is where most innovation takes place. It is concerned on this issue because it feels that many doctors are likely to be uncertain about whether the Bill would apply to innovation they are contemplating. This may hold up a proposed treatment or procedure while they check the position. In most cases, the Bill will not apply. Even where innovation arises out of a research project, doctors are likely to want to ensure that information gathered in treating the patient contributes to overall research in that area, and the MDU is concerned that the wording of the Bill may prevent that. I would be grateful for comments on this point from either the noble Lord, Lord Saatchi, or the Minister.
Our amendment seeks to place the Bill in the context of the duty of the Secretary of State and the key bodies of the NHS to support responsible innovation in medical treatment and makes it clear that that is the overall purpose of the Bill. I would welcome a response from the noble Lord, Lord Saatchi, on whether, despite his desire to keep the Bill short, he considers that a clear definition of the core concept of innovation, as the noble Lord, Lord Pannick, said, could be incorporated into the Bill as a reference to its overarching purpose. I would also appreciate the Minister’s comments on this.
Baroness O'Neill of Bengarve
My Lords, before the noble Earl responds, I would like to know whether other noble Lords think that this attempted definition of “innovation” does not perhaps inadvertently classify some entirely traditional medical treatments as innovations simply because they have been around for much longer than randomised clinical trials with equivalent clinical validation, and there will be no published evidence of their risks and benefits in peer-reviewed medical journals. I have in mind such homely treatments as prescribing the drinking of a lot of water, taking the waters or dietary advice. Many such things seem to be medical treatments but have probably not been documented in the journals.
Baroness Butler-Sloss
It seems to me that if one is going to have Amendment 6, instead of saying that it “means”, it should say that it “includes”. That would then leave open everything else that might come in as medical innovation.
Earl Howe
This group of amendments seeks to define innovation and the scope of the Bill. This is a uniquely difficult task as innovation is, in essence, about constant improvement, change and progression. It is essential that in the act of defining we do not inadvertently limit responsible innovation. I ask the Committee to take on board the point neatly made by my noble and learned friend Lord Mackay.
Amendment 8 to Clause 1(2) in the name of my noble friend Lord Saatchi limits the scope of the Bill to situations where a doctor departs from,
“the existing range of accepted”,
medical treatments for a condition. This will be well understood by doctors, who are best placed to know whether they are following accepted treatments. This amendment also ensures that the Bill applies only to medical treatment.
A further provision, Clause 1(4)(a), ensures that the Bill applies not to research but only to the care of individuals. This exclusion of research is sufficient to achieve the same effect as Amendment 6 in the name of the noble Lord, Lord Winston. I hope that that clarifies that point for the noble Baroness, Lady Wheeler.
The Bill’s definition of innovation allows for situations in which doctors choose to carry out no treatment in the best interests of the patient. The definition of innovation in medical treatment proposed by the noble Lord, Lord Winston, would exclude that. I hope that that point, if no other, will give him pause when he decides what to do with Amendment 6.
There is another basic point to make here. Defining innovation on the face of the Bill would restrict the application of the Bill and could risk uncertainty for doctors as to whether the protection offered by the Bill would extend to the treatment that they are proposing. It is important that the scope of the Bill is clear to the medical profession.
Moving on to Amendment 28, the Government do not believe this to be necessary. The Government are already fully committed to promoting innovation which can save and improve lives. The Committee may be aware that NHS England has a full programme of initiatives to unblock innovation and disseminate the benefits to the NHS and beyond—something that the Government fully support. These include Innovation Connect, a programme to help innovators in the health service and industry to realise their ideas, embed them into clinical practice and exploit new opportunities in international markets, NHS innovation challenge prizes to encourage, recognise and reward front-line innovation and drive the spread and adoption of these innovations across the NHS, and the NICE Implementation Collaborative, which supports work streams by providing essential support to overcome identified barriers to innovation. Those are just some examples.
My noble friend Lord Blencathra asked in particular about off-label treatments. Without repeating the answer that I gave earlier to the noble Baroness, Lady Masham, on a similar issue, the Bill sets out a series of steps which doctors can choose to take when innovating to give them confidence that they have acted responsibly and with the intention of reducing the risk to doctors of successful claims of clinical negligence. With that threat diminished, the intended effect is that doctors will be confident to innovate appropriately and responsibly. That applies in full measure to off-label treatments. I would say as an aside that the cancer drugs fund, which has enabled access to a number of novel medicines, including off-label treatments, has benefited more than 55,000 patients since September 2010. So the decision on whether to prescribe unlicensed or off-label medicines will remain a matter for the doctor or prescriber who has clinical responsibility for the patient’s care, taking into account their individual clinical circumstances.
In response to the noble Baroness, Lady Masham, about funding, I should make the simple point that the Bill does not add any extra funding for drugs. Funding may be a consideration in certain circumstances, but the Bill does not affect the situation one way or the other.
I hope that noble Lords will take into account the Government’s view that innovation is best defined as a departure from the standard range of existing medical treatments, and that on reflection the Committee will not accept Amendments 6 and 28.
Lord Saatchi
My Lords, as we have just heard, Amendment 6 attempts to make a definition of “innovation”. I myself think that that is quite difficult to do, even though the noble Lords, Lord Pannick and Lord Winston, made it clear that they are trying to provide a definition in order to assist the purposes of the Bill. I find it difficult to do for the reasons given by my noble and learned friend Lord Mackay. The word is clear and the Minister has just defined it even more clearly, which is that innovation is a departure from the standard procedure. I am advised that that definition of the concept is sufficiently clear for doctors, patients and the courts to be able to judge in the light of the circumstances of each case. I am told that the proposed definition also refers to some procedures, so that the legislation may become outdated at some point.
The main point in plain English is that the noble Lord, Lord Winston, himself described innovation elsewhere as being serendipitous; in other words, the term has in it the concept that what is about to happen is unheard of and unknown, and therefore it is a true innovation because it has not been conceived of. It is quite difficult to make a definition, but perhaps that is something we can talk about with the noble Baroness, Lady Wheeler, when we meet before the Report stage.
I wish I could say something more encouraging to the noble Baroness, Lady Masham, about funding. Many people have said to me over the course of the long journey of this Bill that, “This is all very well, but what we actually need is more money. If we had more money, we could have more innovation for every disease”. I really do not know whether that is true because there are completely different views about it. However, the one thing that is certain is that this Bill, as my noble friend the Minister said, does not do anything to increase the UK GDP, nor does it increase the percentage of UK GDP that is spent on health, nor does it increase the percentage of UK health spending that is spent on innovation. As my noble friend has just said, it has no impact on what the noble Baroness is interested in hearing, which is on the subject of funding. It is completely neutral.
I will come to Amendment 28 in a moment. Perhaps at this point I could say that it is wonderful to hear my noble friend Lord Blencathra speak because we are hearing the true voice of the patient, as I understand it. We all say that what we do in this House and in the Department of Health is putting patients first. If that is what we are doing, your Lordships have just heard the true voice of the patient and nobody has ever expressed it better.
Lord Winston
My Lords, I thank noble Lords for their interventions on this amendment. In view of what has been said, I think we need to take these ideas away and think about them and consider the points made by the noble Lord, Lord Kakkar, and others. I thank the noble Lord, Lord Saatchi, for his courtesy in his reply to my amendment. For the moment, I beg leave to withdraw the amendment.
Lord Saatchi
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
I must inform your Lordships that if Amendments 11 and 12 are agreed to, I cannot call Amendment 13 on grounds of pre-emption.
Amendments 11 and 12
Lord Saatchi
“(3) For the purposes of taking a responsible decision to depart from the existing range of accepted medical treatments for a condition, the doctor must in particular—
(a) obtain the views of one or more appropriately qualified doctors in relation to the proposed treatment,(b) take full account of the views obtained under paragraph (a) (and do so in a way in which any responsible doctor would be expected to take account of such views),(c) obtain any consents required by law to the carrying out of the proposed treatment,(d) consider—(i) any opinions or requests expressed by or in relation to the patient,(ii) the risks and benefits that are, or can reasonably be expected to be, associated with the proposed treatment, the treatments that fall within the existing range of accepted medical treatments for the condition, and not carrying out any of those treatments, and(iii) any other matter that it is necessary for the doctor to consider in order to reach a clinical judgement, and(e) take such other steps as are necessary to secure that the decision is made in a way which is accountable and transparent.”
Lord Saatchi
“( ) For the purposes of subsection (3)(a), a doctor is appropriately qualified if he or she has appropriate expertise and experience in dealing with patients with the condition in question.”
Lord Saatchi
Lord Saatchi
Lord Saatchi
My Lords, in moving Amendment 23 I will speak also to Amendment 29 in my name.
Amendment 23 is a paving amendment. The substantive amendment in this group is Amendment 29, which inserts a new clause into the Bill after Clause 1, expanding the existing provision that states that the Bolam test is unaffected by the Bill. It is for the innovating doctor to decide whether to take the steps set out in the Bill or to rely on the Bolam test as at present. The new clause also includes express provision that doctors are not negligent merely because they have not followed the Bill. I beg to move.
Lord Turnberg
My Lords, I am very pleased to see Amendment 29 in the name of the noble Lord, Lord Saatchi. I support it because it allows doctors to continue to rely on the current common-law arrangements based on the Bolam principle and on a body of reasonable medical opinion. It means, however, that there are now three options open to an innovating doctor. He or she can engage in a research clinical trial in which ethics committee approval has been given, the patient has given consent and all the regulatory approvals have been given, he or she can rely on the Bolam principle and take all the precautions that that entails or he or she can go through the processes outlined in this Bill in the belief that this will somehow avoid the fear of litigation under the common law. I just wonder whether that might lead to a little confusion and lead doctors simply to use and rely on the current common-law principle. However, I am happy for this amendment to be approved. I see that it would be a useful amendment to the Bill because it gives the doctors the opportunity to use what they always have done.
Lord Kirkwood of Kirkhope
Perhaps I may expand on the point I made on the first group of amendments. I am grateful for the comment from the Minister, which I understood as far as it went. I agree with what the noble Lord, Lord Turnberg, has just said. This changes how the regulator approaches a complaint, as far as I can see. It would not change the way that the regulator decides whether there is a case to answer but it seems that this clause—which I think I welcome—gives the doctor an option of which defence he uses against the allegations in front of him.
As I know from previous experience, the General Medical Council has very clear, long-established systems for determining how complaints are lodged and how fitness-to-practise procedures are put in hand. It is very carefully controlled. Do I understand that the proposed new clause in Amendment 29 would merely—if I can put it that way—give the doctor against whom the complaint was alleged the choice of one of these channels of defence in relation to any complaint made against him by the regulator? I am still not clear as to whether I understand this properly. I think I am in favour of this amendment but I am not too sure. If anybody can help me understand it better, I will be really pleased.
Baroness Wheeler
My Lords, we have had a very authoritative and detailed contribution on the issues raised by Amendment 29 from the noble Lord, Lord Saatchi. Opinion among noble Lords and indeed the stakeholder medical and patients’ organisations is still divided on: first, whether a change to the law is required or whether the existing law and professional ethics arrangements will allow responsible innovation; and secondly, whether the potential two options/processes—or three as my noble friend now makes it clear will be available if the Bill becomes law—will improve and speed up the administering of innovative treatments or will cause considerable confusion among doctors about which system they should use, lead to more bureaucracy and deter them from embarking on the course?
As we said earlier, we welcome the attempts of the noble Lord, Lord Saatchi, to ensure that with this amendment the Bill does not affect the common-law Bolam test. On the overall Bill he has led a powerful campaign and is reported to have won the support of patients responding to the consultation and the publicity from Cancer Research UK, Marie Curie Cancer Care and other patient organisations. I was pleased that the noble Baroness, Lady Masham, raised a number of questions from Marie Curie about palliative care and the use of drugs arising from issues in the Bill, and I was grateful for the Minister’s very helpful response.
The General Medical Council has now given its support to the amended Bill and the Medical Defence Union has said that the amendments cover the main objections to the previous Bill. However, we have to acknowledge that some key stakeholders maintain that the Bill is not necessary because the existing law already ensures protection for doctors to innovate, and the current law and ethical guidance from the General Medical Council are clear. The Royal College of Surgeons still has strong reservations about the Bill, particularly about it applying to surgery, as we have heard. The Medical Protection Society still believes that it confuses rather than clarifies the law. The Association of Personal Injury Lawyers says that the amendments make a confusing Bill even vaguer. The BMA still strongly questions the necessity and desirability of clarifying or changing the law. Action Against Medical Accidents, one of the leading patient organisations, still says that the Bill is fraught with unintended and dangerous consequences and will create a more bureaucratic system. Sir Robert Francis QC, while considering that the amendments have produced an improvement in safeguards over what was originally proposed, has said that serious problems remain. In particular, he is concerned, as my noble friend Lord Turnberg pointed out earlier, that the Bolam amendment, while restoring a level of safeguard, also has the disadvantage of restating Bolam in different language, leading to a real risk of confusion. His question is: why not just stick to Bolam? I would be grateful for the noble Lord’s comments on that.
Will the noble Lord, Lord Saatchi, and the Minister tell the Committee whether they consider that the amended Bill now meets Dr Dan Poulter’s key test that I referred to earlier; namely, of not placing an undue bureaucratic burden on the NHS or not exposing doctors to a risk of additional liabilities?
I welcome the response of the noble Lord, Lord Saatchi, on the question of convening a round table, which I think will be a very helpful way of going forward. Obviously, it will never be possible to satisfy everybody’s concerns but, if the Bill is to be further supported, what steps will be taken by the Government to engage with stakeholder concerns?
Earl Howe
My Lords, the Government support these two amendments, which ensure that the Bolam test will remain unaffected by the Bill. In practice, this will mean that it is for the innovating doctor to decide whether to take the steps set out under the Bill or to rely on the existing Bolam test. In other words, there would be no requirement for doctors to follow the Bill when innovating.
The amendments clarify that, separate to the existing Bolam test which is applied by the courts, the Bill provides doctors with an alternative option for showing that they are acting or have acted responsibly. Furthermore, subsection (2)(b) of the proposed new clause provides that doctors are not negligent, and thus will not be judged adversely if their actions are later challenged, merely because they have not followed the Bill.
My noble friend Lord Kirkwood asked how the proposed new clause affects how a regulator approaches a complaint or fitness-to-practise procedures. This Bill addresses clinical negligence law and how the courts will assess these cases, not how the regulators will process fitness-to-practise cases.
The noble Baroness, Lady Wheeler, asked whether the Bill was necessary. The Department of Health’s consultation on the Bill revealed that some doctors find the threat of litigation to be a block to innovation, although this view was not universally held. The Bill is aimed at reassuring those doctors who feel unable to innovate due to concerns about litigation. There will also be many doctors who are not afraid to innovate and for whom litigation is not a material concern. Those doctors can continue to act as they have done previously and rely on the existing law of clinical negligence, or, as I have explained, they may choose to take advantage of the Bill instead.
I hope that noble Lords will accept these two amendments, which give flexibility and choice to doctors who want to innovate.
Lord Winston
There is something troubling me here. Let us say that somebody in an emergency or other situation does not have a chance to go through the required tests stipulated by the Bill, consulting other individuals who may be confident about or more experienced in that position. I still do not understand in the context of what the Minister has just said where that individual stands in innovating without those permissions. Is that still part of the Bill? How does that work? Is there a risk of that person being irresponsible in view of his not fulfilling what is required in the Bill when he is innovating?
Lord Woolf (CB)
My Lords, before the Minister replies, perhaps I could just make a comment. I have resisted getting involved in the various excellent speeches that have been made so far. While I am on my feet, I make it clear that I strongly support the noble and learned Lord, Lord Mackay. There is a danger in looking at these as alternatives. If the matter comes before the court—of course, one hopes that it will not—the court’s approach would be to say that there is nothing in the Bill, because of the amendment we are now considering, which prevents the Bolam test being relied upon as it is today, without the Bill.
On the other hand, if the situation is one that enables the Bill to be relied on, that is another matter that the person can rely on. In some situations, such as a state of emergency, it may not be possible to rely on the Bill, but that does not prejudice the doctor involved in any way, because the Bill leaves the Bolam test intact. It is supplementing the Bolam test, and the importance of the fact that it is supplementing it is apparent in the fact that it states that if the doctor can comply with the Bill, he knows that he is safe and does not have to wait until the Bolam test has been applied to find out whether he is in danger. I think that that is understood. Does the Minister agree with my approach, which is that these are not alternatives?
Earl Howe
I completely agree with the noble and learned Lord’s analysis of the situation. I hope that that has been helpful to the noble Lord, Lord Winston. Earlier, the noble Lord cited an example where a doctor was confronted by an emergency requiring innovative practice. Whether the doctor was acting responsibly or not, and the consequences, will depend on a number of factors. It will depend on the extent to which the doctor is confident in his or her judgment, based on experience in previous clinical practice and can, if necessary, show to a court that what he or she did was responsible and, at least in intent, in the best interests of the patient.
The noble Lord asked whether there was a risk of a doctor being found to be irresponsible in some emergency situations where innovative treatment is practised. Yes, there would be a risk if the process outlined in the Bill were not followed—but that situation obtains today.
Lord Winston
Both the Royal College of Surgeons of Edinburgh, of which I am a fellow, and the Royal College of Surgeons in London, absolutely support the idea that surgery should be excluded from the Bill for this very reason: they consider that there might be situations where the courts become unnecessarily involved. That involves extra expenses to the health service because of our current concern with litigation. As the noble Earl well knows, in obstetrics, for example, litigation already accounts for a huge proportion of the expenses devoted to maternal care. There are considerable knock-on effects where litigation may be started because of lack of clarity. It is possible that I am being stupid—I recognise that I am not nearly as intelligent as the noble and learned Lord, Lord Woolf—and I will have to go away to think about this, but there seems to me to be a misconstruction here which is puzzling and, I think, worrying.
Lord Saatchi
I hope that this may help my noble friend Lord Kirkwood. What we have just heard from the former Lord Chief Justice and the Minister is completely clear to me. I will try to explain it in this way: if the doctor feels completely confident that the innovation he is about to attempt will be approved when the Bolam test is applied in a subsequent trial, he will go forward with his innovation. If a trial then takes place, he either will or will not be proved right when the test is applied—that is, if he departed from standard procedure and decided to do it on the basis of his confidence that the Bolam test would make him innocent of negligence.
However, as we all know—this is fundamental to the Bill—if the doctor is obliged to speculate in advance about what might or might not happen in a trial, that raises a very high degree of uncertainty. If it is possible for a doctor to move the Bolam test forward and comply with it in advance, which is what would happen as a result of the Bill becoming an Act of Parliament, that would enable the doctor to move forward with an innovation without the fear that a subsequent trial will find him guilty. I therefore say to my noble friend Lord Kirkwood that what we have here in simple, plain language, is that the Bill is giving the doctor an option if he wants to be certain before he goes ahead with an innovation. It is not a requirement that he does that. If he is confident of the result of a subsequent application of the Bolam test, he does not need the Bill at all. It is a fundamental benefit of the Bill that it gives that option, which I think is a very simple one.
Baroness Gardner of Parkes
Can I seek some clarification? I wonder whether anyone could make clear for the Committee whether, if the doctor says that he does not want to do the innovative treatment, there is a defence in court on the grounds that he thought that it would be unwise or unsatisfactory. I say this because everyone seems concerned about the effect of not doing something innovatory.
Earl Howe
I can reassure my noble friend on that score that a doctor’s clinical judgment not to go ahead with something innovative would be something that the doctor would be able to cite in court, if necessary, as being the most reasonable course to take in the circumstances.
Lord Saatchi
Lord Saatchi
“Effect on existing law
(1) Nothing in section 1 affects any rule of the common law to the effect that a departure from the existing range of accepted medical treatments for a condition is not negligent if supported by a responsible body of medical opinion.
(2) Accordingly—
(a) where a doctor departs from the existing range of accepted medical treatments for a condition, it is for the doctor to decide whether to do so in accordance with section 1 or in reliance on any rule of the common law referred to in subsection (1);(b) a departure from the existing range of accepted medical treatments for a condition is not negligent merely because the decision to depart from that range of treatments was taken otherwise than in accordance with section 1.”
Lord Turnberg
“Code of practice
(1) The Secretary of State may issue one or more codes of practice in connection with—
(a) the process to be undertaken by a doctor before giving advice under this Act;(b) the form in which the agreement required under section 1(2)(d) is to be recorded;(c) the factors which the doctor should take into account in deciding to offer advice under this Act;(d) requirements for making and keeping records required by the Act;(e) such other matters relating to the operation of the Act as the Secretary of State thinks fit.(2) Before issuing a code under this section, the Secretary of State shall consult such persons as he thinks appropriate.”
Lord Turnberg
As we have heard, my Lords, there is a degree of uncertainty surrounding certain aspects of the Bill that we have been trying to clarify. It is on that account that I have tabled Amendment 31, which sets out the need for a code of practice in which the Secretary of State describes in somewhat more detail what the Bill is about and how it should be enacted. I hope that it will be helpful to have that in the Bill.
Lord Hunt of Kings Heath (Lab)
My Lords, this has been a fascinating debate, both in Committee and at Second Reading. We are all very grateful to the noble Lord, Lord Saatchi, for listening carefully and bringing the amendments that he has today, and for agreeing to a roundtable discussion between Committee and Report, which is a very constructive response to some of the issues that have been raised.
I say at once that I am absolutely with the noble Lord on the need to encourage innovation in our NHS, but the more that I have listened to the debate, the more convinced I am that it is not so much a question of the law but more one of actual practice within our NHS. I am afraid that we have to face up to the fact that there is a culture of regulatory processes and funding procedures that often get in the way of introducing innovation. For me, the Act that the Bill will become will be a signal to the NHS.
The noble Lord, Lord Blencathra, raised some interesting points about some of the problems that we have at the moment. He talked about off-label medicines. The Minister responded by saying that the Government are committed to innovation and gave a number of examples, which were welcome, but the point that I would put to him is that we now have a situation where NICE produces technology appraisals of new innovative procedures and drugs that clinical commissioning groups are essentially breaking the law by not implementing. He knows that they are under a requirement to fund the use of those procedures and medicines within three months of the technology appraisal being issued, yet we know from research by patient groups that the actual implementation is patchy. We could do an awful lot in relation to innovation if we insisted that people locally did what they were required to do.
My second point relates to the drug budget, an issue that the noble Lord raised. A few months ago the Government concluded an extremely interesting agreement with the branded drug companies, so that for five years the cost of branded drugs in England, apart from modest rises in inflation, will be fully met by the pharmaceutical industry. This is a very good agreement and one that I very much welcome. We still hear people in the NHS saying that they cannot afford the new drugs, yet the industry has promised to pay back any increase in the cost of those drugs over what they are paying now plus a modest increase in inflation. Here is a wonderful opportunity at last for the NHS to move quickly in widely adopting new medicines, but somewhere in the system someone is stopping it. I have read the NHS England five-year plan and it says nothing about the introduction of innovative new medicines.
I am sorry that this is a little outside the noble Lord’s Bill and I hope that he will forgive me, but this is about innovation. I am genuinely puzzled, and we will come back to this point, about why the Government did not rush to insist that the NHS took advantage of the agreement. In fact very few people in the NHS know about the agreement. My concern is that the rebates that the drug industry is going to give will be used for other purposes, which would be a very big mistake.
I hope that the Minister will agree to the amendment; I strongly advise him to do so, or at least to consider it. It is clear from the speeches that have been made that there is some confusion about the circumstances in which the noble Lord’s provisions are going to be made. Earlier in our debates, the noble Earl essentially said that doctors would have a choice when it came to whether, in relation to a given medical treatment, they would use this Bill’s provisions or rely on the traditional approach, the Bolam test. The noble and learned Lord, Lord Woolf, said that they are not alternatives and, in the circumstances raised by one noble Lord where there was not time to get the advice of the clinicians that is provided for in the noble Lord’s Bill, you would rely on the Bolam test. I am only a lay person, but I suspect that there is a risk of doctors not catching the nuance of that distinction. It is clear from the various letters that we have had from many of the medical bodies that there is some concern about this. I know that the noble Lord will speak and I strongly endorse his amendment on the regulation-making power, but I strongly advise the Government to agree to issuing guidance to the medical profession in this regard. There is a danger of some confusion and such guidance would be useful. If the noble Lord is not able to accept this amendment today, perhaps he will give it some further consideration.
Earl Howe
My Lords, the Government’s view is that it is not necessary to include in the Bill a provision for the Secretary of State to issue codes of practice about the Bill, but I hope that I can reassure the noble Lord, Lord Hunt, on the last point that he made. If the Bill is passed, the Government will work closely with the professional bodies, including the General Medical Council, to help doctors to prepare for the changes to the law. This will include producing any guidance that may be helpful.
I listened carefully to the points that the noble Lord made about the adoption of innovative treatments in the National Health Service. He knows from his experience as a Minister that this issue has been with us for quite a long time. We have silos of innovation and forward-thinking practice throughout the health service. The challenge has been to spread that innovative behaviour more widely and for the diffusion of innovative treatments to become second nature to the health service. It is a cultural issue.
The noble Lord is right to say that in many cases the non-adoption of NICE-approved drugs is a particular feature in parts of the NHS. That is exactly why the document Innovation, Health and Wealth was published some time ago. It is why we now have the NICE implementation collaborative, which is designed to bring together the key players in the system to ensure that NICE-approved medicines are adopted. There is the innovation score card, which helps in this regard. The academic health science networks are there to shine a spotlight on promising new innovative devices and medicines and to spread them at pace and scale throughout the health service. The early access to medicines scheme is another example of where we are trying to give patients access to innovative treatments, even before they have been licensed.
There is on occasion a good reason why a NICE-approved medicine may not be adopted by a particular trust. That is quite simply that for a given condition there are many alternative treatments, many of which have been endorsed by NICE. The Government cannot mandate clinical decision-making by individual doctors. Where there is a choice between one and another NICE-approved medicine available to a doctor, it is open to the doctor to make that choice. Nevertheless, the noble Lord’s basic point is well made and I hope that he will accept that the Government are taking a number of measures in conjunction with NHS England to ameliorate the situation.
I hope that, with the remarks that I made earlier about producing guidance, the noble Lord will be reassured and the noble Lord, Lord Turnberg, will not press his amendment.
Lord Saatchi
My Lords, perhaps we could add this point to the discussions that we are going to have before Report. My noble friend the Minister expresses a modest view of what the Government should and should not do and wants to leave it to the regulatory bodies to make this happen.
I refer once again to anecdote. The noble Lord, Lord Turnberg, said to me at an early stage in this process, in which he has been a great inspiration, “What are you going to do after the Bill becomes law?”. I said, “I am going to go on a very long vacation”. He said, “Oh no you’re not”. I said, “Why not?”. He said, “Your work is only just beginning”. His point, and he speaks as an expert, is that a culture change is contained in this Bill. “Culture change” is a phrase that my noble friend just used, and it was used by Dame Sally Davies, the Chief Medical Officer, many months ago. A culture change is being sought, but it will not happen overnight. It will follow, exactly as the noble Lord, Lord Hunt, says, a great deal of education and discussion in the medical profession.
Not to go on, but the noble Lord, Lord Turnberg, said that this will fall largely not just on the regulatory bodies, such as the GMC and NICE, but on the royal colleges. They will have to be involved in the process of educating people about what this means. This is the beginning of the process and I am rather with my noble friend in not wanting to have the Government set out the rules. I hope that that is acceptable to the noble Lord, Lord Hunt.
Lord Turnberg
My Lords, I am slightly reassured by the noble Earl’s comments that the Government’s intention is to produce some guidance with help from the relevant bodies. I am sorry that he does not think it necessary to have that in the Bill. I wonder why not. He has not explained why the amendment should not be there, because it sets out the need for such a code of practice. Meanwhile, however, I beg leave to withdraw the amendment.
Lord Saatchi
“(1A) Sections 1 and (Effect on existing law) come into force on such day or days as the Secretary of State may by regulations made by statutory instrument appoint.
(1B) Regulations under subsection (1A) may—
(a) appoint different days for different purposes;(b) make transitional or saving provision.”
Lord Saatchi
My Lords, I also speak to Amendments 37 and 38 in my name and Amendment 36 in the name of the noble Lord, Lord Turnberg. Amendments 35, 37 and 38 amend Clause 2 of the Bill on commencement and provide for the Bill to be brought into force by the Secretary of State. I am content with this change proposed by my noble friend, on the basis that it will allow time for the Department of Health and professional bodies to produce any guidance that may be helpful. Amendment 36 would stop the Bill coming into force on Royal Assent and would allow the Government to control commencement. The amendment has essentially the same effect as my amendment and I hope that the noble Lord, Lord Turnberg, will be content not to press it. I beg to move.
Lord Kirkwood of Kirkhope
Not to prolong events, I support Amendment 35, which I think is sensible. It is necessary to make sure that steps are taken so that practitioners are fully advised and informed in England and Wales about the provisions in the Bill. I assume that the answer to my question is yes, but can I have an assurance that the regulators have the full Section 60 power that they would need to implement this? If there is any doubt about the regulators not having complete legal cover, will the department make sure that any Section 60 provisions for those powers are put in place before these statutory instruments are brought forward, to avoid any confusion?
Lord Turnberg
My Amendment 36 has a similar effect to that of Amendment 35. Mine seems somewhat simpler, but I am quite happy to bow to Amendment 35 in the name of the noble Lord, Lord Saatchi.
Earl Howe
My Lords, this group of amendments addresses how the Bill would come into force. My noble friend Lord Saatchi’s Amendment 35 would ensure that the Bill came into force in accordance with regulations made by the Secretary of State rather than on Royal Assent as under the Bill as introduced. This would allow the Government and the medical profession time to prepare for the changes to the law made by the Bill—for example, to produce any guidance that might be helpful. This amendment also enables transitional and saving provision to be made if necessary. My noble friend’s Amendment 35 achieves the same objective as Amendment 36, which the Government therefore do not consider necessary.
The Government also support minor technical Amendments 37 and 38, which clarify that the section in question comes into force on the day on which the Act is passed. I urge noble Lords to accept Amendments 35, 37 and 38, which would ensure a smooth commencement of the Bill, and I hope that my noble friend Lord Kirkwood will allow me to write to him on the question that he posed a minute ago.
Lord Saatchi
Baroness Finlay of Llandaff
My Lords, I will be brief; this will probably turn out to be a probing amendment. We have an interesting situation in Wales because health and healthcare provision is completely devolved. The experience of patients under the Welsh NHS falls completely within the legislative competence of the Assembly. However, if I am right, this relates to the law of negligence, and the Ministry of Justice does not have any devolved functions. The concern expressed to me within Wales has been about the use of resources and the possibility of practitioners being answerable as regards legislation that covers England and Wales, when the provision of healthcare is something for which they are answerable to the National Assembly. I tabled this amendment with a view to seeking clarification over that.
Sadly, we have had experience of extremely strange medical practices sometimes being put forward in the past. The Assembly is particularly concerned that, with its move toward prudent healthcare, which is a whole policy direction for NHS Wales, the Bill should not inadvertently cut across the principles of prudent healthcare, the first of which is, of course, to do no harm. I tabled the amendment with that in mind.
Earl Howe
My Lords, this amendment seeks to ensure the Bill would not apply in Wales unless a legislative consent Motion had been passed. The operative provisions of the Bill relate entirely to modifying the law of tort, which is a reserved matter. The Bill can fairly and realistically be classified as relating to a non-devolved subject, and therefore not within the competence of the National Assembly for Wales. The Government cannot accept this amendment, and I urge noble Lords to resist it.
Baroness Finlay of Llandaff
I am grateful to the Minister for the clarification. I expected that answer, but it is important to have it on the record. I beg leave to withdraw the amendment.
Mutuals’ Redeemable and Deferred Shares Bill [HL]
(10 years, 1 month ago)
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Lord Naseby (Con)
My Lords, noble Lords may wonder why I have become involved in the mutual world. I have to thank Peter Gray, one-time chief executive and chairman of the Tunbridge Wells Equitable and Friendly Society, who revitalised that society in the 1970s and 1980s, and the Association of Friendly Societies. It was he who inspired me to take a real interest and, as a result, I chaired that organisation from 1992 to 2005.
The other inspiration that has caused this Bill to see the light of day comes from the Chancellor of the Exchequer, the right honourable George Osborne, who somehow persuaded the powers-to-be to make in the Conservative manifesto a commitment to mutuality both in the workplace and in the structure of the mutual financial sector. There are broadly five sectors of the mutual financial world. Building societies, credit unions and co-operatives have all been helped by the Chancellor already. However, two of the five have yet to be helped—namely, mutual insurance companies and friendly societies. Why do they need help? It is simply because, unless they can raise additional capital, they will never be able to expand or develop to their true potential. Indeed, unless they are helped, I suspect that they will either wither on the vine or demutualise. So we have today’s Bill, which has been in gestation now for close on two years, helped by the Treasury—and I pay particular thanks to the right honourable Sajid Javid MP and his successor in looking after this Bill, Andrea Leadsom MP, who have also helped it on its way. I have had consistent help from my noble friend on the Front Bench this afternoon.
The Bill refers to two classes of shares—deferred shares and redeemable shares. One of the key hurdles that I and my team have had to jump was to persuade the regulator that both those vehicles meet the requirements of Solvency II and would therefore be eligible for tier 1 capital, which is absolutely vital for development capital. We have been successful with the deferred shares element, but have not yet persuaded all parties that it is possible for redeemable shares as well. I therefore had to make a decision on whether to go ahead now with just the deferred element of the Bill, which goes a long way to help mutual insurers and friendly societies, or whether to persevere to try to persuade the authorities about redeemable shares. I decided, in the face of having only five months left of this Parliament, to drop the redeemable element. I suspect that my noble friend on the Front Bench will do just that in Committee, in moving certain government amendments.
I want to look at the effect of the Bill. Clause 1 gives powers to the Secretary of State to permit the use of a new class of deferred shares. That is on the assumption that the redeemable element was removed. This will affect industrial and provident societies, friendly societies and mutual insurers. Furthermore, holders of shares must be or will become a member of the Society of Mutual Insurers. To maintain the mutual characteristics of the organisation, they will be entitled to only one vote as a member, regardless of the value or number of shares they hold. They will be entitled to only the level of remuneration payable under the rules of the mutual. Deferred shares may entitle the holder only to repayment of their nominal value on the solvent liquidation of the mutual. This removes any risk of carpet-bagging by those interested solely in demutualisation. The power to make regulations under the Act is exercisable by statutory instrument and must not be made unless a draft of it has been laid before, and approved by, resolution of each House of Parliament—that is, the affirmative procedure.
I will not talk about Clauses 2 and 3 because they relate exclusively to redeemables. Clause 4 sets out how regulations may provide for a mutual to issue deferred shares,
“being shares that incorporate a term which prohibits the repayment of any principal to the shareholders save in either or each of the following events … the winding up or dissolution of the … mutual … in circumstances where all sums due from the society or mutual insurer to creditors claiming in the winding up or dissolution are paid in full … the granting of relevant consent by the appropriate authority … The memorandum or rules of any society or constitution of any mutual insurer may exclude or restrict the issue of deferred shares … A society may only issue deferred shares if it is authorised to do so by its memorandum or rules and a mutual insurer may only issue deferred shares if it is authorised to do so by its constitution”.
This means that no shares will be issued until the current members have approved it. However, the key benefit—this is absolutely crucial—is that these shares would, when issued, be classed as tier 1 capital and meet the requirements of Solvency II.
Clause 5 restricts the voting rights of holders of a deferred share and obviously will need amendment to remove “redeemable”. It means that if their only membership is via holding such a share, they may not participate in any decisions concerning amalgamation, transfer of engagements or conversion into a company or, in any case, a proposed transfer or sale of business or property under Section 110 of the Insolvency Act 1986. This is a further safeguard against the motivations for demutualisation.
Clause 6 sets out the proper legal definitions for the various types of mutuals affected by this legislation. Clause 7 is the usual Short Title, commencement and extent.
I would like to spend a few moments explaining why this Bill is so important. It is important because it gives access to new capital, particularly for friendly societies and mutual insurers. First, all mutuals need to be able to play a full part in our economy with diverse corporate ownership. Friendly societies and mutual insurers do not have the ability to raise capital that some co-operatives and building societies do, or indeed public limited companies.
Secondly, without new capital, many mutuals could be driven into inappropriate corporate forms through demutualisation. If more mutuals convert to other corporate forms, consumer choice would be reduced and large numbers of consumers would no longer have non-listed, member-owned options in the financial services marketplace. This both reduces competitive pressure from the operation of different business models in the same market and adds to systemic risk to the economy.
Thirdly, a lack of capital limits mutuals’ growth and the ability to develop new services. The growth rate of a mutual is constrained by its relative inability to add capital through retained earnings.
Fourthly, like all businesses, mutuals need to be able to benefit from the economies of scale available only by growing their business. Mutuals need to gather sufficient capital to serve their members well, extend services to new members, expand their menu of services and achieve economies of scale.
Fifthly, it is important to learn the lessons from the recent financial crisis. If financial services businesses are to build up stronger capital bases, they require the legislative and regulatory agility with which to do so.
Sixthly, there are direct benefits of being able to issue these new shares. Debt, the alternative, is of a lower quality than equity for firms wishing to build their capital base. There is inevitably a limit to the amount of debt that can or should be raised. Mutual shares would therefore present an opportunity for small mutuals to raise funds that they may not be able to do otherwise, and for larger mutuals to raise tier 1 funds that subordinated debt does not provide.
These shares are alternatives to private equity buyout, which shows signs of growing. They are also alternatives to demutualisation, and this is crucial. When one looks back 20 years, the UK mutual insurance sector was the largest in Europe but now accounts for just 2% of mutual insurance premiums in the EU. Mutual insurers in 1994 accounted for 50% of the UK insurance market, and lack of access to capital was largely seen as the key reason for demutualisation. The small size of the market today means that any further demutualisation in the sector could hasten the entire sector’s early demise.
If the Bill goes ahead, mutuals will be able to source external capital without losing their mutual status, and some very specific benefits will follow. They could take part in tactical acquisitions, which will enhance their competitiveness. They could also look at local infrastructure potential. I shall give one example. In 2004, Family Investments friendly society and Brighton Council explored the concept of a city mutual. The idea was that Family Investments would raise a fund from its own capital and via a bond offering to local residents, which in turn would be used by the local council for a range of social housing and employment projects. Your Lordships may remember that on Monday I suggested something very similar for cottage hospitals. In the end, as far as the parties in 2004 were concerned, it was unclear whether the legislative arrangements were in place. This Bill will meet that requirement.
Finally in this area, there are a number of examples in overseas countries of similar mutual shares offerings. Examples from Canada and the Netherlands and across the whole European Union show how mutuals can enlist their members in raising capital through the issuance of new deferred shares. In summary, the benefits offered provide evidence that government support for the Bill would create a viable new opportunity for mutuals to attract new capital and deliver positive outcomes for mutuals and consumers.
The Bill has all-party support. Many colleagues have spoken to me in support of the Bill, and some have been good enough to write, particularly my noble friends Lord Hodgson and Lady Maddock. In the mutual world I have had wonderful support from organisations such as Liverpool Victoria, Royal London, Engage, Family Investments—steered so ably by John Reeve—and particularly Wesleyan Assurance, which is held in such high regard. Add to those the Association of Financial Mutuals, the Association of Friendly Societies and the All-Party Parliamentary Group for Mutuals—chaired by my friend Jonathan Evans MP, who will steer the Bill through the Commons, given the chance—and, above all, Mutuo, with its energetic and knowledgeable director Peter Hunt. I thank them all. I beg to move.
Lord Kennedy of Southwark (Lab)
My Lords, I thank the noble Lord, Lord Naseby, for bringing forward this Private Member’s Bill for consideration in your Lordships’ House. This is the second time that he has tried to deliver these reforms. I very much hope that his Bill has a smooth and easy passage through your Lordships’ House. The co-operative and mutual sectors in the United Kingdom are very grateful to the noble Lord for what he seeks to do. This is a good Bill for a Labour and Co-operative Peer to respond to, and I am delighted to do so.
As the noble Lord said, the Bill in its simplest form will allow mutual societies to raise additional funds while safeguarding their mutual status. Why is that important? As the noble Lord, Lord Naseby, has told the House, the mutual sector faces significant problems in raising additional capital. By their construction they do not have equity shareholders. They were established to serve their members, who would be customers, employees or particular communities. Mutual businesses are strong. They grow patiently over a long time. They are very stable, but can also be said to be a bit risk-averse. It can be said that in some circumstances they struggle to respond to the ever changing needs and demands of their customers.
In large part, mutual organisations have not made major changes to their structures and have quite properly stuck to their founding principles. The Bill will enable them to continue to do so, but also allow them to raise additional capital by creating optional new classes of share through which specified mutuals can raise additional funds, provide defined rights to specified mutual society members and restrict the voting rights of certain members who hold only such shares, so that they cannot participate in any decisions to transfer, merge or dissolve the mutual. That is why the Bill is so important: it modernises the mutual structure, but also safeguards it.
A lot of excellent work has gone on looking at the problems of the mutual sector and also its great strengths. In addition to the noble Lord, Lord Naseby, I pay tribute to my friend in the other place, the shadow Financial Secretary Cathy Jamieson MP, for the work she has done, along with the All Party Group for Mutuals mentioned by the noble Lord, Lord Naseby, which produced an excellent report in September. I also pay tribute to the think tank ResPublica, which, in its report Markets for the Many, looked at how we create financial services that support small business and truly serve the needs of our citizens and communities.
It will be useful to look at the financial services scene to see why the Bill is so important and welcome. As the noble Lord, Lord Naseby, said, we have to learn the lessons. Following the financial crash there have been significant turbulent times and significant legislation has been passed, not least the Financial Services Act 2012 and the Financial Services (Banking Reform) Act 2013. These pieces of legislation are steps in the right direction, but we need diversity of ownership models in financial services to keep the sector healthy and encourage competition.
To diverge slightly, the rush to demutualise building societies in the late 1980s and early 1990s did not help consumers. All those former building societies either failed in their new-found status or were swallowed up by larger financial institutions. We know the names: Abbey National, The Woolwich, Halifax, Bradford & Bingley and many others. In the UK, building societies account for only 3% of banking assets; in many other parts of Europe co-operative and mutual banks have a much large share of the market.
There is a similar picture in our insurance sector. As the noble Lord, Lord Naseby, said, more than half of the UK insurance market was mutual in 1995, but since then, in fewer than 20 years, it has shrunk to 7.5%. In terms of our European neighbours, mutual insurers have a 50% market share in Holland and a 45% market share in Germany. The insurers demutualised in large part because they needed to raise additional capital and improve the products and services they offered to their customers. This process has not been beneficial to customers. ResPublica found in its research that policyholders often saw falling levels of customer service, higher levels of customer complaints and worse claims handling than was experienced prior to demutualisation. For example, Scottish Widows converted to a plc in 2000 and paid out a £6,000 windfall payment to each policyholder. However, prior to demutualisation it paid out £107,000 in 1998 for a 25 year with-profits policy based on premiums of £50 a month. From statistics posted in 2012, this had plummeted to £28,071, which was more than 34% less than the average mutual was paying out.
I do not intend to go on for much longer but I wish to say that this is a good Bill, a forward-thinking Bill and a Bill that seeks to protect our mutual societies, helping them to grow and compete on a more equal footing. It should have the support of the Government.
The Government should also do more to help the sector in general, as it has the potential to do real good in the UK. I like the suggestion that the Government should look at establishing a mutuals expansion project along the lines of the Credit Union Expansion Project. I think that there is a role for mutuals to help reduce financial exclusion, but they need the Government, the FCA and others to see that role for them and then enable them to deliver more financial products to those on lower incomes.
There are in general some very good Private Members’ Bills before your Lordships’ House and it is disappointing how so few of them make any progress. They are all committed to a Committee of the whole House but they then struggle to compete with other Bills in making further progress. Therefore, I ask the noble Lord, Lord Newby, to have discussions with the usual channels and also with the Clerk of the Parliaments about points 8.29 and 8.44 of the Companion. On my reading of those two paragraphs, there is no distinction between government Bills and Private Members’ Bills, and some Private Members’ Bills could be referred to a Grand Committee to deal with technical issues and speed up their consideration by this House. Just because we have never done that before does not mean that it cannot be done.
I will leave that point there and conclude by again thanking the noble Lord, Lord Naseby, for bringing this Bill forward. We are all very grateful to him and I hope that the Government help it to get on to the statute book and become law in this Session of Parliament.
Lord Newby (LD)
My Lords, I begin by congratulating my noble friend on his work in this area over a number of years and on securing a Second Reading for this Bill, on which he has done an awful lot of work and which addresses a very important issue.
As the House knows, access to capital and credit is the lifeblood of any company, and the financial crisis and its ongoing impact have served to highlight this point in very stark terms. Mutuals are no different from other companies in that they need capital to extend into new areas, develop new products and services for their members, write new business or increase their financial resilience. However, the inherent design of mutuals can mean that they face difficulties when it comes to access to external capital, as noble Lords have pointed out. Mutuals are designed to serve their members, who will be customers, employees or defined communities, but they were not designed with capital investors in mind.
In broad terms, mutuals access their regulatory capital from retained earnings and by issuing subordinated debt. However, unlike other businesses, they cannot issue shares, which deprives them of access to the equity markets. They therefore tend to be restricted in how they can raise capital. Any capital for growth must be generated internally and that takes time to be built up. This patient and long-term approach is one of the hallmarks of the mutual sector and indeed one of its strengths. However, it can also limit the sector’s flexibility in adapting to new market conditions, as well as limiting a firm’s abilities to secure maximum investment in the business and to grow through acquisition.
Friendly societies and mutual insurers compete in a highly competitive UK insurance market, and the restrictions on raising external capital can place a limit on their ability to compete on equal terms with their public limited company counterparts. In the recent past, a number of friendly societies and mutual insurers have decided to demutualise, and in some cases the lack of capital was cited as a contributing factor to a mutual contemplating demutualisation. As both the noble Lords, Lord Naseby and Lord Kennedy, pointed out, this has led to a significant contraction of the mutual insurance sector in the UK.
The sector has made the case that current capital constraints are preventing friendly societies and mutual insurers acquiring other businesses that would strengthen the overall offer to members and policyholders. It may also be restricting these organisations in developing new or innovative products, especially if those products require material amounts of regulatory capital to be held. Growth in these areas would potentially be to the benefit of both with-profits policyholders and other members of the mutual.
The proposals put forward by the noble Lord in this Bill have been carefully drafted to provide these mutual organisations with a means to raise external capital in a way that preserves the mutual status of firms. The Bill addresses access to capital for two sectors: friendly societies and mutual insurers, and co-operative and community benefit societies. It provides that the Treasury may make regulations subject to the affirmative procedure to permit friendly societies and mutual insurers to issue deferred shares and to permit co-operative and community benefit societies to issue redeemable shares. The Government agree that the deferred share capital instrument for mutual insurers and friendly societies is a good way forward, and the mutuals have demonstrated a clear need and demand for this instrument. We therefore support these proposals in the Bill.
In respect of the proposed redeemable share instrument for co-operative and community benefit societies, the Government are unpersuaded about the merit of a redeemable share instrument as these societies already have a means of issuing redeemable shares. The Government do not see a clear need and demand for such an instrument, and as we have heard, in discussion with and the agreement of the noble Lord, Lord Naseby, we propose to bring forward amendments in Committee to delete these elements. But with that caveat, I hope that noble Lords will support the Bill today.
Finally, I should like to comment on the two very specific suggestions made by the noble Lord, Lord Kennedy, in his speech. He said that we should look at a mutuals expansion project to mirror that of the Credit Union Expansion Project. It is an interesting proposal and I will be happy to take it back to my colleagues in the Treasury. One of the challenges is how to recreate the conditions under which individuals feel that they want to invest their money in mutuals, take out policies of various sorts and engage in lending from them. I am a strong supporter of doing that.
As far as the way we deal with Private Members’ Bills is concerned, I have a considerable degree of sympathy with what the noble Lord said. I do not believe that the way they are being dealt with is as efficient as the way we deal with government Bills. Although it is far beyond my pay grade to suggest a way forward, I am more than happy to take his comments away. Apart from anything else, there is a real problem at the moment in that many noble Lords can secure a First Reading for their Bills, and then very often they—and more importantly, their supporters—think that those Bills are actually going to make progress. A huge amount of work goes into such legislation. Recently I was involved with a Bill that stood at number 25 or 30 in the list. A poor lawyer had spent months slaving over it. The promoter did not have the heart to tell that lawyer that, as I already knew, it stood zero chance of even getting a Second Reading. That is not sensible, and nor, frankly, are some of the subsequent ways of dealing with these Bills. This is not a matter for the Government but one for the whole House, and I am very willing to take it back, along with his other proposal.
With those comments, and with the caveat I gave earlier, I hope that noble Lords will support the Bill today.
Lord Naseby
My Lords, I thank all noble Lords who have listened to the debate and I want to pay particular tribute to Her Majesty’s Opposition for the support that they gave me during the early stages of the Bill and then right through until today. I will refer to the noble Lord, Lord Kennedy, as my noble friend because he has worked very closely with me on this, and I wish to give him my thanks and appreciation for all the trouble he has taken. Finally, I have to say to my noble friend to whom I have already referred that he is an extremely patient and persistent man. Without that attribute, this Bill would not be before the House today. It remains for me to hope that it will get a fair wind, that people will be conscious of the time limit of five months, and that the processes in both this House and another place—which I know only too well—ensure that this really worthwhile piece of legislation can see the light of day and be put on to the statute book. Without further ado, I hope that the Bill will be given a Second Reading.
House of Lords (Expulsion and Suspension) Bill [HL]
(10 years, 1 month ago)
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Lord Newby (LD)
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the House of Lords (Expulsion and Suspension) Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Baroness Hayman (CB)
My Lords, I express my gratitude to all noble Lords who are to speak in our debate today. Their commitment reflects the seriousness with which this House views the issues raised in the Bill. It is a brief and straightforward measure and I shall try to be brief and straightforward in what I say. But brevity does not mean that it is insignificant in its content.
I have brought the Bill before the House because I believe that by enacting its provisions we could complete the series of reforms that have been made to the House’s conduct, investigative and disciplinary systems since the events of 2008-09, and fill two important lacunae in the sanctions available to your Lordships’ House.
Noble Lords who were Members of the House at the time of the expenses and cash-for-questions scandals will remember all too well the public opprobrium heaped upon us—upon the House, its financial support systems, those who misuse those systems, often those who simply use those systems, and on the House’s enforcement and disciplinary processes. Some will also remember the conflict and confusion with which the House was faced over the existence or extent of powers to take action in the case of wrongdoing.
I am delighted to see the noble and learned Lord, Lord Mackay of Clashfern, in his place today; the whole House owes him a debt of gratitude for his crucial role at that time in clarifying that the House does indeed have powers to suspend Members found to be in breach of the Code of Conduct in particular circumstances, albeit for a limited period, and obviously it is that limited period with which the Bill deals.
Since those dark days, we have in fact made progress in a number of areas. The system of financial allowances has been radically overhauled and made simpler and more transparent. The Code of Conduct has been amended to make clearer the high standards of behaviour expected of Members. We have appointed an independent Commissioner for Standards to investigate cases of alleged wrongdoing. The role of the Committee for Privileges and Conduct has been clarified, and I am delighted that the chair of the Sub-Committee on Lords’ Conduct, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, is to speak in today’s debate. Lastly, the House of Lords Reform Act 2014 has itself made provision for the expulsion of Members who fail to attend the House for a Session or more, or who are convicted of a serious offence entailing a prison sentence of at least 12 months.
My Bill seeks to do two things that would, I contend, complete this raft of reforms. One relates to the issue of suspension. The limitation on the length of a suspension to the remainder of the Parliament in which it is in force is set out in the 2009 report of the Committee of Privileges. As I said, it was based very much on the advice of the noble and learned Lord, Lord Mackay of Clashfern. However, although it has proved helpful that that power exists, there remain problems. The basic problem is that a completely different range of sanctions are open to the House to impose at different stages of the parliamentary calendar. Were a Member to be found to have transgressed at the beginning of a Parliament they could in effect be suspended for four years or more. Were the same Member to commit the same transgression at this stage of this Parliament the possible sanction would be limited to four months or less. That is not logical, I contend, nor is it satisfactory for either the House or the person involved.
My Bill would empower the House to make Standing Orders to enable a suspension to be imposed that would run beyond the end of a Parliament and during that time the right to receive a Writ of Summons would be suspended. The House would also be given the power to enact in Standing Orders the ability to expel a Member in circumstances other than the narrow ones set out in the House of Lords Reform Act 2014—non-attendance or being subject to a prison sentence of more than a year.
Expulsion is obviously a hugely weighty and serious step. I profoundly hope that with this Bill on the statute book and the Standing Orders in place this provision would simply lie unused and there would never be conduct that would provoke the possibility of the House being asked to agree to expel a Member. However, it would be irresponsible not to have such a provision in place when all of us can envisage circumstances—it might be repeat offences against the Code or Conduct or sentences for criminal offences that were less than nine months or were suspended—where the House would wish at least to have the opportunity to consider expulsion and to decide whether it would be the right course of action. In such circumstances, I believe that not having that opportunity would provoke significant public disquiet and criticism of the House. That is not just a belief but based on experience. All noble Lords know that the House has come into disrepute and been criticised for that lack of ability. For us simply to throw our hands in the air and say that there was no option of expulsion open to us would not be satisfactory. We have, in this Bill, at this time, the chance—if I can put it that way—to shut the stable door before the horse has bolted; not to be scrabbling around in the midst of a crisis to see what we could do that was appropriate. I hope very much that the House will take that opportunity.
My Bill is enabling, not prescriptive. It does not lay down in detail the circumstances in which these sanctions would be appropriate or specify the processes the House should adopt in its disciplinary proceedings.
We are lucky in this House to have Members with significant and judicial experience to guide the House in the painstaking task of drawing up the appropriate Standing Orders. That in one sense is a lock: getting the Standing Orders right and those being approved by the House, and making sure that we deal fairly and appropriately with the regime. The second lock is the fact that the whole House would again have to agree to a recommendation from the disciplinary committees of the House that such an expulsion should take place.
This is not a new idea. Provisions similar to those in my Bill were included in the Constitutional Reform and Governance Bill of 2010 but lost in the wash-up and therefore not included in that Act, and in the Government’s own House of Lords Reform Bill of 2012, from which the provisions of my Bill are taken word for word. Equally, and as another guarantee of draftsmanship, the consequences of expulsion laid out in the Bill are taken from the 2014 Bill that was brought in by Mr Dan Byles in another place.
The view was rightly taken that these processes are for the House to lay down after careful consideration. I have no doubt that the House would behave with its customary sense of justice, its care and responsibility, both in drawing up the relevant Standing Orders and in considering any recommendation for expulsion or suspension brought before it under those orders, as it has in the past with recommendations for suspension.
I return to my original words. This is a brief Bill. It could, with good will and a little support from the Government, become law, even within the short time available in this Session. I hope that the Minister will indicate that support today, because this Bill could contribute a small piece of the jigsaw in the painful work of rebuilding trust in Parliament and its institutions.
I end with the words spoken by the noble Lord, Lord Hill of Oareford, last December when bringing in his own reforms to the Code of Conduct. He said that,
“ultimately, the reputation of this House rests in all our hands, which is why I believe that noble Lords will want to support steps to strengthen the sanctions available to us”.—[Official Report, 17/12/13; col. 1143.]
I am introducing this Bill as such a step and I commend it to the House. I beg to move.
Lord Mackay of Clashfern (Con)
My Lords, I wish to support the Bill in both its branches. I shall take the suspension provisions first, although they happen to come second in the Bill, because it is out of that consideration that the first part of the Bill arises. As the noble Baroness said, this matter arose rather prominently some years ago. I was invited by the Privileges Committee to consider the position and came to the conclusion that this House had power to regulate what happened in relation to attending the House during a Session of Parliament. However, the obligation to attend the House sprang from a Writ of Summons issued at the beginning of each Session of Parliament. That power and duty of the Crown to issue a Writ of Summons to those entitled could not be interfered with by any kind of internal action of this House. The most that could be said—there was some question whether even this could be said, as your Lordships will remember—was that the House could suspend Members of the House from attendance during the remaining part of the Session in which the matter came up for consideration. Everyone who has looked at this is aware that that is a serious defect in the balance of the action available. As the noble Baroness said, it looks funny that at the beginning of a Session you can have a long suspension, with it gradually shortening until it becomes vanishingly small as you approach the end.
I am absolutely satisfied that the only way in which this House can deal with that matter is by having statutory power to do so, and that Standing Orders, as prescribed in the Bill, are the correct way to do that. Therefore, I warmly support that part of the Bill.
In addition, we have the question of expulsion. As the noble Baroness said, that is a more serious matter in quite a number of ways, but an important matter from the point of view of how the public look on continued membership of this House. We already have provisions in the statute that my noble friend Lord Steel of Aikwood introduced to deal with that in some circumstances, but not all. It is very desirable that powers of expulsion should exist in the House. That obviously requires statutory power to interfere with the right of a Member to receive a Writ of Summons at the beginning of a parliamentary Session. The Bill provides that that should be dealt with by Standing Orders of the House under the statutory authority of the Bill when it becomes law. It is obvious that the grounds on which such expulsion should be possible will need to be set out. Some may think that that should be set out in the authorising statute. On the other hand, I believe that there is enough need for flexibility as our experience continues to allow for a different method, and that is what the Bill allows: that the conditions for expulsion should be settled by Standing Order.
As the noble Baroness said, expulsion is obviously a more serious matter than suspension. It may be that in considering a Standing Order on that, further thought should be given to the procedure necessary in order that such a recommendation could be put to the House. I am glad that the noble Lord who chairs the sub-committee dealing with these matters is here and look forward to hearing what he has to say. We are extremely fortunate in this House in having a very fully qualified sub-committee to deal with questions such as the Bill would raise if enacted. As the noble Baroness said, it is important that any procedures adopted are seen to be fair and just to the House, to the public and to the individual Member concerned.
I strongly support both branches of the Bill and believe that it provides the best mechanism for reaching the necessary conclusion available in the circumstances.
Baroness Taylor of Bolton (Lab)
My Lords, we have had in the two opening speeches every justification that we might need for agreeing to this Bill. It is indeed a very short and significant Bill and I congratulate the noble Baroness, Lady Hayman, on introducing it. I will be brief because, as she says, in one sense it completes one area of change that became necessary in this House in respect of discipline. It is right that we should move in this way and the work that the noble and learned Lord, Lord Mackay, has done has been incredibly helpful to the whole House. I think that is well appreciated by everyone here.
When we talk about these issues, we should not lose sight of the fact that the discipline which became necessary was because of the wrongdoings of a very few individuals. In both Houses of Parliament, the vast majority of Members are doing their job for the right reasons and in an honourable way. My noble friend the noble Baroness, Lady Hayman, said that she hoped that these powers would not be needed; I think that we all hope that and do not expect them to be required in the foreseeable future. The problem that we have, as politicians in both Houses, is that very significant damage has been done to the reputation of politics itself. I hope that measures of this kind can help to restore some confidence that those of us here are keen to put our House in order.
If I may say one other thing, because the Bill should have a speedy passage and we should all be brief in our comments, more can be done to restore the reputation of this House. Other items of modest legislation, in the same vein as what the noble Baroness has introduced, could make some difference. There are also procedural agreements that we could reach in the House as to how we conduct our affairs, which would enhance its reputation. I remind the House of the debate that we had on 19 June on the document A Programme for Progress. That report, as some may remember, was drawn up by a group of Labour Peers but what was significant about that debate was that the recommendations within that report had support on all sides of the House. There are measures there which could be taken by agreement or with modest amounts of legislation and would do significant good to the reputation of the House. On issues such as appointments, retirements, procedures and conventions I think there is widespread support. We should be considering those more because we could make some serious progress.
I notice that the Minister, who is in his place, is the same Minister who replied to that debate on 19 June. He may recall—if he does not, I have the Hansard reference—that he commented in col. 990 on the level of consensus across the House “on the way forward” and responded to a suggestion by saying that “informal, or perhaps … formal” conversations across the Chamber could be undertaken to try to make further progress. Despite the timescale of the next election, there are things that we could do which could move us in the right direction. I hope that the Minister will take that on board. In the mean time, I congratulate the noble Baroness on the Bill. I hope that it can have a speedy passage. I see no reason why it should not.
Lord Phillips of Sudbury (LD)
My Lords, I, too, thank and congratulate the noble Baroness, Lady Hayman, on bringing forward the Bill. I am sure she will not mind my calling it a modest Bill because she herself acknowledged that. Both she and the noble Baroness, Lady Taylor of Bolton, referred to the context within which we are having this debate, which is one of unparalleled public mistrust. There is mistrust generally but, I am afraid to say, mistrust of Westminster in particular. It is idle for us to pretend that all the mistrust relates to the other place when we are caught up in its tentacles.
If one had a jury of good and honest men and women, unrelated to Westminster, who were to consider what the Bill is doing, they would be amazed that it is not already the law. It seems blindingly obvious, I suggest, that it should already be the regime by which we are here. We are here as an extraordinary privilege; I do not think that there is any greater privilege in this land than to be a Member of this place. We are not like Members of Parliament, who scrimp, save, work and year after year commit themselves to winning a seat in Parliament. When here, we do not labour under a set of obligations to our constituents in the way that they do, because we have none. Being here is an absolute privilege, and there comes with that a commensurate duty to police and regulate ourselves with absolute rigour.
Of course it is difficult—the law says impossible—for a man to judge himself, but we have to do our best, and there is no doubt in my mind that we should pass this measure not only without any reservation but with acclamation. My concern, rather, is that we are not going far enough, but I fully understand why the Bill is limited as it is, because we want to get this through before the election.
We also have to face up to the fact that there are some who do not want us to improve our affairs because they want a stronger case for a more radical reform, including election of this place. There is no getting away from it: they do not want accretional ameliorations. So I think self-reform is vital. This is the very least that we can do and it should be the first of many such measures.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, as your Lordships now know, I have the honour of chairing the Sub-Committee on Lords’ Conduct, which is a sub-committee of the Committee for Privileges and Conduct. In that capacity I greatly welcome the Bill and the logical and highly desirable increments to the powers of the House that it would bring with it.
It may help if I try briefly to summarise where presently we stand with regard to the House’s sanctioning powers. Following the Bill that was variously known as the Byles Bill and the Steel Bill but was of course the House of Lords Reform (No. 2) Bill, which was passed on 14 May this year, a Member sentenced in the United Kingdom to a term of imprisonment of more than one year—notice that it is more than one year and not, as I think was suggested, at least one year—ceases automatically to be a Member of the House. Provision was also made in that legislation for possible expulsion in the event of a foreign conviction and, again, a sentence exceeding one year’s imprisonment.
However, if a Member is sentenced to one year’s imprisonment or less or is given a suspended sentence of imprisonment, although now, by amendments that were introduced in June this year and can be found in the third and current edition of the Code of Conduct, such a person is deemed to have breached the code and is therefore subject to sanction, he cannot be expelled or suspended beyond the duration of the current Parliament. That is the position equally with regard to all other breaches of the Code of Conduct, however seriously they may be viewed. In other words—this has already been made plain in other speeches in this House—assuming that in misconduct proceedings later this month it were thought right to suspend a Member, the longest period for which that could be done would be to the end of this Parliament, now some four or five months away.
I should complete the present picture and add that in January this year the House introduced two new sanctions for breaches of the code: first, denial of financial support—that is to say, the daily allowance and any expenses—for a specified period which can extend for longer than a suspension, meaning that it can extend into the following Parliament; and, secondly, for a similar extended period, denial of access to the facilities of the House, such as dining, parking, the Library and so forth. Neither of these fresh sanctions has yet been imposed. Of course, they were not retrospective.
As your Lordships know, this Bill would enable us to provide in Standing Orders for the House to resolve to expel a Member permanently or to suspend a Member beyond the term of the current Parliament. The precise form and scope of such Standing Orders will, of course, require careful thought, and I certainly hope that our sub-committee would be involved in thinking that through.
I suggest that these clearly are powers that the House should have, and that although, like all these possible sanctions, it is greatly to be hoped that there will be very few occasions when they will need to be exercised, they should be available in order to safeguard the reputation of the House. I strongly support the Bill.
Lord Trefgarne (Con)
My Lords, like all noble Lords who have spoken so far, I support the main thrust of the Bill, but there is a small matter that ought to be taken into account, which was accommodated in the Bill passed earlier this year. It is the case of a noble Lord who is, for example, convicted of, say, spying in a distant country when the charge is brought quite speciously and perhaps for political reasons—or perhaps he was indeed spying, but for us. In those circumstances, there needs to be provision to ensure that he is not removed from this House unnecessarily. I hope that that can be accommodated in the Standing Orders that will be drafted when this Bill, as I hope, becomes law. Indeed, there are provisions in the 2014 Act that allow the Lord Speaker, in certain circumstances, to lift the conviction, so to speak. I hope that these matters can be taken into account, if necessary by amendments in Committee—although perhaps that will not be necessary—or when the Standing Orders are drafted.
Lord Butler of Brockwell (CB)
My Lords, I add my voice to those who have supported the Bill. I do so briefly because I know that at this time on a Friday afternoon your Lordships prefer brevity to expansiveness.
This Bill carries forward what the noble Lord, Lord Steel of Aikwood, acknowledged at the Second Reading of what became the House of Lords Reform Act was unfinished business in that Bill. It gives the House more flexible powers to determine the circumstances in which Peers can be suspended or expelled. I can see no reason why the Government should not support and facilitate this Bill. I hope that the Minister will be able to tell us that the Government will indeed support it. If they do not, I think the only reason can be that they are not willing to facilitate any further reform of the House of Lords until more expansive, more ambitious reforms can be introduced. If that is the attitude of the Government, I deplore it. If the Government wish to put a standstill on further measures of incremental reform, they should also put a standstill on making the position of this House worse by more political appointments between now and the general election.
I do not want to personalise this Bill, but the fact that it has been introduced by the noble Baroness, Lady Hayman, a former Lord Speaker of the House, is a particular reason why the Government should give it significance and support it. I cannot resist saying that many of us in this House supported the right of the Leader of the House to be a full member of the Cabinet. In our debates on this matter, she said that even without that status she would support and champion the interests of the House. If there is resistance in the Cabinet to facilitating the Bill, this is an opportunity for her to fulfil that promise to the House, and I hope very much that she will do so.
Lord Cormack (Con)
My Lords, I am delighted to follow the noble Lord, Lord Butler of Brockwell, and entirely endorse what he has said. Much as I respect my noble friend Lord Wallace of Saltaire, who will be responding to this brief debate, I wish that the Leader of the House were here to do so and to give her full authority to what is said from the Front Bench.
I hope that what will be said from the Front Bench is that the Bill will be supported. It meets all the criteria that the Government have laid down. House of Lords reform should come about as a result of consensus. Well, there is a real consensus. This Bill, like that introduced by my noble friend Lord Steel of Aikwood, came about as a result of a group of us who have now been meeting for 12 years, the Campaign for an Effective Second Chamber, convened by my noble friend Lord Norton of Louth. We founded it together all those years ago, and I have the honour of chairing it. We have discussed this matter many times, and there has been no disagreement on it among Members from all political parties and the Cross Benches, just as there was no disagreement over the measure that my noble friend Lord Steel introduced and Dan Byles took on last year. It is incremental and modest reform, designed to ensure that this House goes in for proper “housekeeping measures”, as my noble friend Lord Steel called them. It in no way prevents a future Government doing other things with this House. I hope that the House will remain appointed, but whether that is its ultimate destiny or not, there is no argument against the modest proposals made so forcefully and eloquently by the noble Baroness, Lady Hayman.
As the noble Lord, Lord Butler, said a few moments ago, the fact that the Bill is being introduced with the enthusiastic support of the first Lord Speaker of this House ought of itself to commend it to all parts of the House. I was delighted that the noble Baroness, Lady Taylor of Bolton, spoke as she did. She introduced that debate in June and, again, there was an enormous degree of consensus, even though that report had been drawn up by Labour Peers.
We have only four or five months left of this Parliament. There is not time to get through sweeping measures, but there is ample time to get this measure through. There is no reason at all why it should not go through with acclamation this afternoon, without amendment in Committee, and be in another place well before Christmas. I hope that that will happen. If it does, we will collectively be giving all those who care for our constitution and our Parliament a good Christmas present.
Lord Haskel (Lab)
My Lords, I, too, support the Bill. As others have said, in the two debates earlier this year—that on the report of the Labour Peers working group, referred to my by noble friend Lady Taylor, and that on the Steel Bill—many people referred to the fact that House of Lords reform would do better to proceed in small steps. The two Bills which tried to deal with the whole of House of Lords reform were both withdrawn because of the absence of consensus.
There are many things on which we can agree, and by taking them one at a time we may be able to achieve reform by accretional amelioration, as only the noble Lord, Lord Phillips, could put it. This Bill is one such step. As the noble Baroness explained, the Bill deals with the expulsion or suspension of Members of this House who have knowingly broken our rules or fallen below the standards that we have set ourselves.
I think that all of us would agree that a strong state demands high standards in public life. Without it, the capacity of Parliament to govern, and our reputation, diminish. Part of upholding those standards is the ability in any circumstances, irrespective of the parliamentary calendar, for this House to remove or suspend Members who have fallen below these standards. I feel that it is more applicable to us than most, because we are an unelected House and privileged, as the noble Lord, Lord Phillips, put it. It would be best if the Bill became law, because if it does not, we will be accused in the press and in the blogosphere of simply looking after our own—and there might be an element of truth in that. Some say that this is really a housekeeping matter. I do not agree. It is serious enough to be put on the statute book.
I finish by thanking the noble Baroness for the Bill. It takes a lot of work to put a Private Member’s Bill through this House; it is time consuming and often frustrating. The workload is also carried by the support staff—my thanks to them. I urge your Lordships to give the Bill a Second Reading.
Lord Dobbs (Con)
My Lords, I support the Bill for many reasons, most of which have already been ably and eloquently put, so I will not repeat them. However, I will spend a minute referring to a wider reason why I support the noble Baroness’s excellent Bill.
There are storms on the horizon; constitutionally we have entered a period of extreme turbulence. Since the referendum in Scotland the cry has gone up that we must have change—new ideas, more forms of government, with more powers. Those who began this paperchase have undoubtedly been considering their arguments carefully over many years before bringing them forward. On the other hand, there seems to be a sudden scarcity of cigarette packets. In these circumstances we need to look ever more carefully at what we do.
It is fair to say that we seek to improve rather than to impede legislation; we advise rather than oppose; we do detail rather than demagoguery; and I hope that we more often look to the wider public interest rather than search for narrow party advantage. Surely those qualities will become increasingly relevant, as all these new constitutional proposals and new powers inevitably threaten confusion and unintended consequences. In those circumstances it would be ever more important to find a means of smoothing rough edges. That means that what will be needed more than ever in this devolved new world that awaits us is this House of Lords—or something so like it as to be indistinguishable.
The Bill will help establish our continuing relevance. However, we need more; we need to be fitter, leaner and more transparent, and we need to bring our numbers down quite drastically. That would involve a painful process of self-denial, not only for political leaders, but most of all for ourselves here. One fundamental principle must guide everything we do: every one of us, individually, no matter how long we have perched here, whatever our plumage or pedigree, is here to serve this House. This House does not exist for our benefit, but we for it. The Bill helps to reinforce that fundamental principle. I wholeheartedly support it and congratulate the noble Baroness on her work in bringing it forward.
Lord Kerr of Kinlochard (CB)
My Lords, I support the Bill and will try to be very brief, because it is a very brief Bill and my support for it is very strong—not least because it is very brief. We all owed the noble Baroness, Lady Hayman, thanks for her services to this House before the Bill; we now owe a bit more to her in the light of it.
It is a manifest absurdity that the maximum penalty that can be imposed on somebody who breaks the rules of this place varies in inverse proportion to the length of the Parliament. It is absurd—the scale of the penalty should reflect the scale of the offence, not the remaining period of the Parliament. It is Alice in Wonderland.
I completely agree with the noble Lord, Lord Phillips of Sudbury. His speech was important, because I feared before this debate that we would hear that this was not the only reform that needed to be undertaken and that we would get into the trap of letting the best become the enemy of the good. I, too, believe that we need to have more reforms of this place, but that should not be an excuse for delaying this self-evident correction of a self-evident absurdity.
I am grateful to the noble Lord, Lord Phillips, for warning against letting the best become the enemy of the good. I hope that what has been expressed from the Liberal Democrat Benches will also be expressed from the Government Front Bench. The noble Lord, Lord Cormack, is absolutely right to say that there is no reason at all why this very sensible, long-overdue, necessary little reform should not be on the statute book before the end of this Parliament.
I am also grateful to the noble Lord, Lord Trefgarne, who raised a point that I believe he has raised before, but in terms that indicated that he realised that it did not require an amendment to this enabling Bill and could be dealt with perfectly well in the Standing Orders that would follow.
I am going to deliver on my promise of brevity. I hope that the discussions in this House will be equally brief and that we will bring this Bill to a successful conclusion before the end of this Parliament.
Lord Norton of Louth (Con)
My Lords, I, too, add my support to the Bill. On the last occasion on which I was the last Back-Bench speaker in a Second Reading debate, I used the opportunity to respond to opponents of the Bill. My role today is clearly different in that I am here to add my support to everyone who has spoken.
As the noble Baroness, Lady Hayman, made clear, the provisions of this Bill are based on previous measures. In the last Parliament, I served on the Joint Committee on the Draft Constitutional Renewal Bill, which became the Constitutional Reform and Governance Act 2010. The provisions for expulsion were lost in the wash-up. In this Parliament, I served on the Joint Committee on the Draft House of Lords Reform Bill. The Labour Government supported the former Bill and the present coalition Government supported the latter Bill—in other words, all three main parties have signed up to the provisions embodied in this Bill. The drafting of this Bill follows that of the previous Bills, especially the House of Lords Reform Bill, so no party with any merit can claim that the Bill deviates from the provisions that they have previously supported.
As the noble Baroness, Lady Hayman, said, the Bill extends our current limited powers and brings us into line with the other place. There is clearly a powerful case for bringing us into line with the House of Commons. The two Houses do not necessarily have to march in step but, if there is a difference, there is a more powerful case for this House to have the power of expulsion. After all, MPs do not enjoy security of tenure; they can be removed by their constituents. They may be removed in between elections in exceptional circumstances, if the Recall of MPs Bill before the House of Commons is enacted.
As my noble friend Lord Phillips of Sudbury said, membership of this House is a privilege, but it is also a responsibility. We have to maintain high standards. We have the code of conduct; that is necessary but it is not sufficient. We lack the powers necessary to enforce it in the event of a major transgression. We can suspend Members, but only for limited periods, as we have heard. That is useful and we have made use of it, but we need the ability in exceptional circumstances to suspend for a greater period than is presently possible or even to expel. It is not difficult to envisage circumstances in which a Member brings the House into serious disrepute without breaking the law.
The provisions of this Bill give us the powers that we need. It is up to the House to provide due process for the consideration of cases. The report of the Joint Committee on Parliamentary Privilege, echoing previous committee recommendations, detailed the minimum requirements for fairness in such cases. These should be embodied in Standing Orders and not in the detail of the Bill—otherwise there is the danger of the provisions coming within the purview of the courts. The Bill in my view gets the balance right. It is a modest Bill, at least in length, but it is a necessary one for the reasons that noble Lords have advanced. Like my noble friend Lord Cormack, I see no reason at all why it should not be permitted to proceed to the statute book and do so swiftly.
Lord Hunt of Kings Heath (Lab)
My Lords, in introducing her Bill, my noble friend Lady Hayman was most persuasive and we on the opposition Benches are very happy to support it and to wish it godspeed through this House and the other place. The Bill’s provisions are very much reinforced by the comments of the noble and learned Lord, Lord Brown, who gave a very helpful explanation of the sanctions currently available and what is missing from the way in which we deal with these matters. My noble friend Lady Hayman was right to say that expulsion from a Chamber of Parliament is, indeed, a significant and major step. I agree with her that, although we hope they may never have to be used, it is good to have an armoury and the ability to do so if the circumstances should arise.
Of course the expulsion of a Member of Parliament can never be undertaken lightly, so it is important that proper safeguards are in place. My noble friend has reassured me on this point. As she said, the House remains in control. It would have to approve the Standing Orders and have to agree to the expulsion of the Member—the two locks, as she described them. I believe that those are sufficient safeguards. I was much reassured on that by the comments of the noble and learned Lord, Lord Mackay of Clashfern. This Bill could become law with government support and we look to the Minister for a positive response.
My noble friend Lady Taylor referred to other matters that could be agreed by your Lordships’ House.
Lord Jopling (Con)
I am sorry to interrupt the noble Lord but he has just indicated that, if the Bill is to go through, it is essential that it be given government time. I think it is the first time that that point has been made in the debate.
My colleagues with experience of the House of Commons will recall that it is extremely difficult to get a Private Member’s Bill through the Commons procedures. As one who has killed off more Private Members’ Bills than most noble Lords who sit in this Chamber, I know that what we need to hear from the Minister is how we can get the Bill through before the general election, if that is what we want. We seem to be totally unanimous on that. The Government support the Bill and we hope that it goes through. However, that is the language of the long grass. The only way that this Bill will go through is if the Minister tells us not only that the Government support it but, more importantly, that government time will be given in another place to get it through.
Lord Hunt of Kings Heath
My Lords, that was an extremely helpful intervention, at least for Members of your Lordships’ House. I suspect that there has never been a more elegant assassin of Private Members’ Bills than the noble Lord. He certainly speaks from great experience, and I hope that we will receive a positive response. It is absolutely clear that we need the Government to fully support the Bill and make sure that there is time in the other place for it to go through. I also hope that the noble Lord will take note of my noble friend’s comments. The report that she produced, which was debated in your Lordships’ House, contained a number of very useful suggestions for modest improvements.
I agree with what the noble Lord, Lord Dobbs, said about retirements and the number of Members of this House. We have to start to make progress in relation to that. I very much support the Bill. I hope that the Minister will respond positively. It will be disappointing if the Government do not say that they will support the Bill.
Lord Wallace of Saltaire (LD)
My Lords, the Government do, of course, remain committed to a broader scheme of Lords reform, as I trust do the Labour Opposition in their turn. There is a consensus on that, at least officially. The Government have no settled view on the Bill at present. All I can promise, and I do promise, is that I will take back the speeches that have been given around the House and the strong arguments that these are essentially housekeeping measures—although I am not sure that expulsion is entirely a matter of housekeeping. Powerful speeches have been made, and then we will have to see what can be done with the House of Commons between now and the election. Time is very short—
Lord Hunt of Kings Heath
The noble Lord says that the Government have no settled view. That is disappointing but it could be taken as a positive response if it actually meant that the Government generally would be prepared to discuss, maybe through the usual channels, with the noble Baroness whether they are prepared to support the Bill. Can he say that the door is at least open to that?
Lord Wallace of Saltaire
My Lords, I am trying to be as positive as I can be but the noble Lord knows as well as I do, having been in government, that getting consensus inside the Government, even in a single party, is not always entirely simple and straightforward. You have to get Ministers to concentrate on the matter in hand. When it is a matter of Lords housekeeping it is not entirely easy. I will do my best. I will take this back very firmly and we will have to look at the House of Commons dimension, and we might be able to make at least very considerable progress on the Bill. I take everything that has been said, although I repeat that the Government remain committed to a broader scheme of reform.
Baroness Taylor of Bolton
I am listening with great care to what the noble Lord is saying and we all know the pressure that we are under towards the end of this Parliament. Will he bear in mind the fact that in the wash-up at the end of the Parliament it is very often easy to get agreement on measures that are as clear-cut as this one?
Lord Wallace of Saltaire
I also take that point and will take it back. We had rather hoped that with a fixed-term Parliament there would be much less wash-up than before, but I suspect that when it comes we will discover that a number of things have been slid in at the last minute that we nevertheless have not quite managed to agree in either House.
Lord Wallace of Saltaire
I entirely understood. Unfortunately, some rather larger dishes may yet be introduced, which the Government may wish to try to push through.
We all hope that these powers would not be needed. We all recognise that we will need to look before the Bill is completed at the sort of things that will need to be in Standing Orders, because this Bill is quite a substantial extension to the power of the House, in spite of the wonderful phrase that the noble Lord, Lord Phillips, used—that it is intended to be merely an “amelioration”. However, I am very happy to talk further with the noble Baroness, Lady Hayman, and certainly take this back to the Cabinet Office to see what is possible.
Before we depart, I say to the noble Baroness, Lady Hayman, that I look forward to her next proposals on accretion or amelioration. I am happy that I hear around the Corridors a number of noble Lords on all Benches discussing the possibility of retirement at the end of this Parliament. That is another useful way forward. We should encourage it. However, perhaps the noble Baroness will, at the beginning of the next Parliament, produce a Bill that will suggest a retirement age by consensus. I look forward to giving her my support, from wherever I am at that point, on that next stage in amelioration.
Lord Kerr of Kinlochard
My Lords, the noble Lord’s tone is encouraging but slightly light-hearted. I regard this as a very important Bill. It may be short but if it is carried by acclamation in this House, as it should be, it will be very odd if the Government do not find government time for it in the other place.
Lord Wallace of Saltaire
My Lords, we appreciate that this is a serious matter. We all understand the question of the House’s reputation and of the public reputation of Westminster as a whole. I have previously said in responding to questions that that is one of the strongest lessons of the Scottish referendum and of the disillusionment of opinion across England with Westminster as such. We all understand that. I will take that away. I happen to be a strong believer in a reduction in numbers by accepting that we should all retire at a certain age. That is part of where we are now moving and it is part of our general responsibilities. I strongly believe that to be a Member of this House is a privilege, not a right.
I hope I have said enough to reassure the House. Conversations will continue off the Floor, as they so often do. We will see what we can do.
Baroness Hayman
My Lords, I am enormously grateful for the support that I have received from all Benches of your Lordships’ House and for the seriousness with which Members have addressed the Bill. I was slightly worried on several grounds when the Minister wound up: at one stage I thought that he was inviting me to retire by the end of the Parliament. I do not think I am minded to do that with so much unfinished business before us, not least in this area.
Lord Wallace of Saltaire
I must congratulate the noble Baroness. She talked about completing a stage of House of Lords reform. What a wonderful phrase—the thought that we might ever complete a substantial phase of House of Lords reform. I suspect I will retire before we have done that.
Baroness Hayman
It is the never-ending story of British politics. However, I turn briefly to two points made by noble Lords. One was made by the noble Lord, Lord Trefgarne. I quite understand his desire that we should not create rules so inflexible that injustices take place. That is less of a difficulty with a Bill that enables the House to make Standing Orders, which can themselves give the degree of flexibility referred to by the noble and learned Lord, Lord Mackay of Clashfern. We then have the next lock of the House itself needing to make a resolution in individual cases. I hope that the noble Lord, Lord Trefgarne, will not feel that it is necessary to try to amend the Bill, but that he will be engaged in the process that several noble Lords have mentioned of drawing up the Standing Orders, the procedures and the processes that would be necessary after enactment, which we all recognise should be taken very seriously.
Several noble Lords referred to the need for other measures of reform. It is well known that I share a desire to reform this House substantially. That does not mean I support an elected House—I do not—but I believe that there is a lot that we can do. I considered bringing the remains of the Steel Bill: an individual Bill on a statutory appointments commission, a cap on the size of the House, and even—dare I say it with the noble Lord, Lord Trefgarne, present—an end to hereditary Peer by-elections. I did not do any of those things because I believed that I should, in these circumstances, bring forward something that was deliverable and that could, in the terms of a Private Member’s Bill, become law and make a contribution.
The Minister said that it might be difficult to get people to focus on Lords housekeeping. I, too, take issue with that designation of the Bill. He might find it easier if he put it to colleagues that it was a Bill dealing with the reputation of Parliament, because that is what I believe it is and I think that the noble Lord, Lord Dobbs, and others made that perfectly clear.
I am slightly surprised that the Government have “no settled view”, to use the Minister’s phrase. They had a settled view when they drew up these proposals and put them in the Bill in 2012. Of course, I am willing to consider and discuss what might be in the Standing Orders but I assume that that work has already been done in government: if it is necessary then it would have been done as the back-up to these proposals when they were put forward in the 2012 Bill.
The advice that the noble Lord, Lord Jopling, gave us was absolutely central. Although the Minister seemed to be willing the ends in a very generalised way, willing the means was not so specific. I shall certainly take up his offer of conversations—he did not say that the door was closed. I hope—and today’s debate has given me encouragement for this because I do not think that anyone expressed any doubt about the importance and necessity of the Bill—that we can deliver it up in good time for it to become law if the Government give it time in another place. That is the simple demand that, with the authority of those who have spoken today, I shall be taking into those discussions. I hope that, in a short period of time, the Government will reach the conclusion that it is in all our interests so to do.