Grand Committee
Consumer Rights Bill
The Deputy Chairman of Committees (Baroness Fookes) (Con)
My Lords, I shall make the usual statement that if there is a Division in the Chamber while we are sitting, the Committee will immediately adjourn for 10 minutes.
Amendment 103
Lord Stoneham of Droxford
“Communications services: change of service provider
In section 3 of the Communications Act 2003 (general duties of OFCOM), after subsection (2)(f) insert—“(g) the maintenance of processes that promote the consumer interest and competition, to include a switching regime that is led by the receiving provider”.”
Lord Stoneham of Droxford (LD)
I rise on behalf of my noble friend Lord Clement-Jones, who has a conflicting commitment this afternoon.
This amendment—I thank the noble Baroness, Lady Hayter, and the noble Lord, Lord Stevenson, for their support for it—is designed to ensure that consumers experience a consistent, simpler and quicker switching process when seeking to switch communication provider, led by the receiving provider.
UK consumers, now more than ever, depend on a range of communication services. Ofcom research has shown that 94% of all UK adults own a mobile phone and that 15% of UK consumers live in a mobile-only household. It is therefore vital that the communication market works well for UK consumers. However, the current switching processes, not just for mobile phones but across the communication sector, are complicated and slow, working against consumers and distorting fair and open competition.
Recent reforms mean that banking and energy customers are able to switch by contacting their new provider—a system known as gaining provider-led switching. However, mobile, pay TV and broadband customers must contact their original provider before switching.
Under current legislation, communications providers operate a losing provider-led switching regime, which forces consumers to contact their current provider to terminate their old contract before being able to switch to a new provider. Not only is this time-consuming and can lead to breaks in service or periods of double-billing when switching between providers but it has a negative impact on competition and pricing.
Consumers who threaten to switch are usually offered preferential deals in order to stay. The retention offers made to these consumers are effectively subsidised by the supplier’s remaining customers, who pay higher prices. Competitive offers are often reserved for new customers or those who attempt to switch, with existing customers often losing out. The existing complicated switching regimes across the communication sectors are leading to real consumer harm. For example, Ofcom data show that of the 9 million UK mobile customers who switch annually, as many as 1.2 million are double-billed or experience a total loss of service. The hassle and confusion for consumers deters them from switching provider. By contrast, the car insurance market has a switching level of 38%, compared with 9% in the mobile and broadband market and just 3% in digital television.
Forcing customers to contact their original supplier often leads providers to operate poor retention practices. The best deals are hidden away and are available only to those who can play the system. This means that the vast majority of UK consumers, including the inactive, the out of contract and the vulnerable, face higher prices while only a minority of savvy customers, willing or able to game the system, get the best deals. A gaining provider-led system forces operators to place their best deal on the open market, accessible to all.
When Ofcom attempted to introduce the gaining provider-led switching system in 2007, it was subjected to appeals from the major mobile networks. Ofcom, in its 2010 strategic review of switching in telecoms, concluded that gaining provider-led switching systems perform better than those led by the losing provider, they are easier for customers to navigate and they are more likely to support competition, yet there has been no progress since then. This amendment would free the path for Ofcom to achieve the outcome it sought as long ago as 2007.
By contrast, last year Ofcom mandated a gaining provider-led switching process on BT’s Openreach network, which supports the services of BT, Sky, TalkTalk, the Post Office and EE’s broadband. This will be in place by June 2015, meaning that customers will need to contact only the provider they are moving to, not the one they are leaving. This will simplify switching for landline and broadband services and will also apply to BT’s Sport TV. In fact, the gaining provider-led system has been acknowledged by both government and the regulator as the best switching system.
In July 2013, DCMS published Connectivity, Content and Consumers, which set out its plans for the communications sector. In it, the department supported a move to gaining provider-led system switching across all communications services. It said:
“We recognise that switching processes work better for consumers when only one call needs to be made to the company the consumer wishes to switch to for the switch to happen, and there is no need for consumers to contact their existing provider … Working with Ofcom, we will do everything we can to move towards a system of gaining provider-led switching across the board. Consumers are increasingly buying services in bundles, for example, phone, broadband and pay TV. This can make switching providers more difficult as there are different switching processes attached to each component of a bundle. We will legislate to give Ofcom a duty to ensure a consistent and effective experience for consumers switching between bundles”.
Given that Ofcom has consulted extensively on switching processes, the Government's subsequent reluctance to legislate is frustrating and baffling for all concerned. On behalf of consumers, Which? has confirmed that it agrees and supports this amendment precisely because it would introduce gaining provider-led switching across all telecommunications markets, drive forward competition and significantly improve the consumer switching experience, enabling people to switch with greater ease and convenience.
This amendment would bring communications providers into line with other markets—including energy and personal current accounts—which operate a gaining system. It would force companies proactively to offer best deals on the open market, rather than withholding the best offers to retain customers threatening to switch. Having a single gaining provider-led switching regime across the whole sector would alleviate confusion around the process of switching, and would help give consumers a consistent experience when switching. Increasingly, consumers view broadband, landline, TV and mobile as complementary services.
If consumers did not have to contact their existing provider before switching, there would be more incentive for suppliers to focus on retaining customers at all parts of the journey rather than at the end point. This would result in more competition and better- value deals for all consumers, with prices harmonising across customers of the same supplier. Gaining provider-led switching in communications markets is already standard practice across most other EU countries, where it works well. I hope that the Government will support this amendment and get this policy moving in the interests of consumers.
Lord Stevenson of Balmacara (Lab)
My Lords, I am sure that I saw the noble Lord, Lord Clement-Jones, only a few moments ago, asking questions in the Chamber, so his conflicting engagement is extremely irritating because we were looking forward to his contribution here. Of course, we now have his parasitic packaging analogue who is gradually inhabiting all of his previous positions on matters to do with this, and we should not complain, because he once again has managed to introduce a very complicated and not very easy to grasp topic with exemplary clarity, and I thank him for that.
We on this side support the amendment in the name of the noble Lord, Lord Clement-Jones; indeed, we signed up to it for very much the same reasons as those just explained by the noble Lord. It is a huge gap in the telecoms area that there is no simple and easy switching regime: such a regime would be the foundation of ensuring a competitive market that would drive down prices, while at the same time empowering consumers. Who could be against that?
The problem we have at the moment is completely the reverse, because in the mobile industry—but also in broadband and pay TV—there are very complicated switching processes. These are huge disincentives to consumers to changing provider and this can lead to very real consumer harm in the form of either double bills—which have been well reported in recent days—or a loss of service when providers are switched, because of the difficulty of making all the ends join up.
We think that the gaining provider-led system across the communications sector will make a huge difference. It puts the customer in charge of the process; it prevents competitors in the market using different and complicated switching processes—which, as the noble Lord said, creates hassle and confusion; and it will make it much more competitive.
At the heart of the issue is an irony that does not happen in many other sectors, such as banking. If you force customers who wish to switch to contact their original supplier, you often get problems and disincentives built in, because it is not in the best interests of the supplier who is losing the customer to ensure that that egress is smooth and uncontested. That inevitably means that consumers get a raw deal, possibly do not get good price comparisons and have a lot more hassle than they otherwise would. I am happy to support the amendment.
Baroness Jolly (LD)
My Lords, a requirement for the switching of communications providers to be receiving provider-led—RPL—is part of the EU Connected Continent package. The European Parliament’s First Reading version would amend the universal services directive to require RPL switching. I assure noble Lords that the UK is engaging actively in those discussions to ensure the best outcomes for UK consumers.
The Government have considerable sympathy for RPL switching in the UK. In the Connectivity, Content and Consumers paper published last year, we emphasised that we want that across the board. I am very pleased to say that, as my noble friend said, RPL switching already operates for fixed-line voice and broadband services delivered over the BT Openreach network, although it does not yet operate for mobile services or for pay TV.
Ofcom has the power to mandate RPL switching for all communications services. In July 2014, it called for inputs from stakeholders on consumer switching. Ofcom announced that it is considering mandating RPL switching for mobile services and bundles of services, including pay TV and services over the Kcom network. The Ofcom work is essential to ensure that we get any new rules right first time, so I welcome my noble friend’s interest in consumer switching but, given the good work done so far, Ofcom’s ongoing consultation and the response to it to be published before the end of the year, I ask him to withdraw his amendment.
Lord Stoneham of Droxford
My Lords, I am encouraged by the news of Ofcom’s consultation nearing completion. I should point out that Ofcom has been trying to do that since 2007. There is a danger that Ofcom and the Government are hiding behind each other. However, I accept what my noble friend said, I am grateful for the support that I have received, and I am happy at this stage to withdraw my amendment.
Baroness Howe of Idlicote
“Duty to provide an internet service that protects children from digital content
(1) Internet service providers must provide to subscribers an internet access service which excludes adult content unless all the conditions of subsection (3) have been fulfilled.
(2) Where mobile telephone operators provide a telephone service to subscribers which includes an internet access service, they must ensure this service excludes adult content unless all the conditions of subsection (3) have been fulfilled.
(3) The conditions are—
(a) the subscriber “opts-in” to subscribe to a service that includes adult content;(b) the subscriber is aged 18 or over; and(c) the provider of the service has an age verification policy which meets the standards set out by OFCOM in subsection (4) and which has been used to confirm that the subscriber is aged 18 or over before a user is able to access adult content.(4) It shall be the duty of OFCOM to set, and from time to time to review and revise, standards for the—
(a) filtering of adult content in line with the standards set out in section 319 of the Communications Act 2003;(b) age verification policies to be used under subsection (3) before a user is able to access adult content; and(c) filtering of content by age or subject category by providers of internet access services and mobile phone operators.(5) The standards set out by OFCOM under subsection (4) must be contained in one or more codes.
(6) Before setting standards under subsection (5), OFCOM must publish, in such a manner as they think fit, a draft of the proposed code containing those standards.
(7) After publishing the draft code and before setting the standards, OFCOM must consult relevant persons and organisations.
(8) It shall be the duty of OFCOM to establish procedures for the handling and resolution in a timely manner of complaints about the observance of standards set under subsection (4), including complaints about incorrect filtering of content.
(9) OFCOM may designate any body corporate to carry out its duties under this section in whole or in part.
(10) OFCOM may not designate a body under subsection (9) unless, as respects that designation, they are satisfied that the body—
(a) is a fit and proper body to be designated;(b) has consented to being designated;(c) has access to financial resources that are adequate to ensure the effective performance of its functions under this section; and(d) is sufficiently independent of providers of internet access services and mobile phone operators.(11) In this section, internet service providers and mobile telephone operators shall at all times be held harmless of any claims or proceedings, whether civil or criminal, providing that at the relevant time, the internet access provider or the mobile telephone operator—
(a) was following the standards and code set out by OFCOM in subsection (4); and(b) acting in good faith.(12) For the avoidance of doubt, nothing in subsections (1) and (2) prevents providers of internet access services and mobile phone operators from providing additional levels of filtering content.
(13) In this section—
“adult content” means an internet access service that contains harmful and offensive materials from which persons under the age of eighteen are protected;
“harmful and offensive materials” has the same meaning as in section 3 of the Communications Act 2003 (general duties of OFCOM);
“material from which persons under the age of eighteen are protected” means material specified in the OFCOM standards under section 319(2)(a) of the Communications Act 2003 (OFCOM’s standards code);
“opts-in” means a subscriber notifies the service provider of his or her consent to subscribe to a service that includes adult content.”
Baroness Howe of Idlicote (CB)
My Lords, I am pleased to move Amendment 104, which requires internet service providers and mobile phone operators to provide default adult content filtering that can be removed if the service user opts in to adult content, demonstrating, as they must, that they are aged 18 years or over.
This is a matter that I have raised before, not least through my Online Safety Bill. As ever, I begin by recognising that progress has been made and that the Prime Minister’s intervention in relation to the big four ISPs has helped to move us forward. However, given the importance of the issue, I must say that, having been initially encouraged, I find myself increasingly disappointed by the Government’s approach. The truth is that children continue to suffer, but there does not seem to be the political will to move beyond the deal that the Government negotiated on filtering with the big four ISPs: a status quo that is simply unacceptable, for reasons that I shall set out.
Lord Alton of Liverpool (CB)
My Lords, in the very best parliamentary traditions, my noble friend has been persistent, dogged, assiduous and determined. I have been privileged to support her on earlier occasions when she raised this issue. I will speak briefly in support of her excellent amendment today.
All of us, especially those with teenage children, know how important the arguments are that she has advanced to the Committee today. Her three basic arguments are incontrovertible. First, it cannot be right to say on the one hand that default-on is an important protection for children and yet to settle for an arrangement where over 10% of households are serviced by ISPs that are not party to the agreement and where some are completely opposed to that form of protection. Those ISPs that object simply will not introduce a protection unless they are obliged to do so by law.
That recalls an argument I had in the 1990s, when a Member of another place had promoted legislation to protect children from video violence. During a meeting with the then Home Secretary and his civil servants, I was pretty shocked to hear one of them say, “Really, this legislation will affect only a small number of people”, as though those people did not really matter. My noble friend made the point that 10% of children will not be covered by the current arrangements. Can the Minister say, when she comes to reply, how many families that means and how many children the Government estimate that 10% represents? If there was only one uncovered household left in this country with children in it, surely it would be our duty to protect those children.
Secondly, it cannot be right that we settle for a form of age verification that is not age verification at all. Anyone seeking to opt in to access adult content and to disable adult content filters must obviously be age verified before doing so, as mandated by this amendment.
Finally, if we care about children and protecting them, we must afford them protection through the law, backed by sanctions. As my noble friend said, it is absurd to have protections offline but not online; there has to be some logical consistency in the way we view these issues. If this issue is important—and it clearly is—we must bite the bullet and place the obligations on ISPs and mobile phone operators to provide default adult content filters that can be lifted subject to prior expeditious age verification on a statutory footing. We do not allow a child to buy an 18-rated DVD offline, so why do we afford them less protection online?
The Lord Bishop of Truro
My Lords, I support the amendment and am grateful to the noble Baroness for providing a comprehensive and excellent introduction to it. I do not want to repeat the important points that have already been made; I simply want to underline one particularly important point.
These days, we all have a responsibility to take child protection and safeguarding very seriously. Your Lordships may or may not be aware that you cannot be made a bishop in the Church of England unless you have had statutory safeguarding training. The most reverend Primate the Archbishop of Canterbury has made that very clear in all that he has said and done, and that seems absolutely right and proper.
It strikes me that, of all areas, this is one where we should do all that we can to protect our children. I sometimes worry about the matters that we are not worrying about now. I fear that in 20 years’ time we will look back and say, “Why on earth didn’t we do something about this?”. I often think back to the days when I would have got in a car and not been bothered that I was not wearing a safety belt. It strikes me that this is an issue that we can take seriously. We are of course dealing with the Consumer Rights Bill and I am concerned that we spend a lot of time worrying about rights but do not think about responsibilities. We have a responsibility to care for and protect our children.
I declare an interest as chairman of the Children’s Society. At every board meeting, we have a representative number of children and young people. I can tell your Lordships that at every single meeting those young people teach me something about the internet and the world wide web which I did not have a clue about. They are far savvier than I will ever be and allegedly I am not as old as some of my colleagues.
Therefore, I very much support the amendment and I stress that we have responsibilities as well as rights. The word “safeguarding” and the fact that we take child protection very seriously do not undermine in any way the important points that have been made. The imbalance between what happens offline and online seems quite extraordinary. Surely this is an area where we should have legislation that regulates and protects all children.
Lord Morrow (DUP)
My Lords, I commend the noble Baroness, Lady Howe, for coming back to this matter and for bringing forward the amendment. The question, “What is more important than our children?”, has already been asked in this debate. The answer to that is surely that nothing is more important. If that is the case, it seems logical that we should adopt the amendment. I implore the Government to consider the amendment carefully and I urge them to adopt it. As far as our children in particular are concerned, safety cannot be overdone. Today, there are many pressures on children and parents. I believe that one day every parent will rise up and thank the Government for including this amendment in the Bill. I thoroughly commend it to the Committee.
Baroness King of Bow (Lab)
My Lords, the Government clearly believe that default-on internet filtering is the best approach to protect children. Common sense tells us that they are right but, as the noble Baroness, Lady Howe, pointed out in her powerful speech, if they are right on this point then they are wrong to take a non-statutory approach. Such an approach leaves possibly 1 million children unprotected and, as the noble Lord, Lord Alton, said, it boils down to the question, “Do the 10% matter or not?”. Do those children matter or not?
The background context to this is well rehearsed: the digital age gives our children more opportunities than they have ever had before, but on occasion it also puts them at grave risk. The NSPCC says that 24% of nine to 16 year-olds in the UK saw sexual images in 2012-13 online or offline. Some 80% of those were worried by what they saw. A recent survey by the Asda Mumdex found that 82% of mums in this country want the Government to tackle child protection online. On top of that, Ofcom reports that over half of parents with children at home do not use parental controls, and I am sure that we are convinced that in the other half of those households the kids would be able to get around those controls in any case.
On a related issue, the blacklisting of child abuse terms by Google and Microsoft was indeed a step in the right direction, but the Government must ensure that police are resourced to deal with child abuse imagery. This cannot be only a voluntary approach when child safety is at risk. It is not only about child safety today; it is about adult behaviour tomorrow. We do not want a generation brought up to think that violent pornography is the norm. That is why we on these Benches support this amendment to require all internet service providers to provide default-on internet filters. Those filters should use British Board of Film Classification standards to define age-inappropriate material. This was the substance of Labour’s Opposition Day debate last summer in the other place.
We recognise that the online world shifts daily, but one thing is for sure: young people today spend more and more time online. Ironically, though, as the noble Baroness, Lady Howe, and one of the other speakers pointed out, the protection that they receive online is less than the protection that they receive offline in the real world. While it would be quite hard for a 12 year-old, say, to buy a pornographic DVD from a shop, it would be relatively easy for that same 12 year-old to buy or download it online, and that is what the average 12 year-old would prefer to do these days. Why are we helping them to damage themselves?
We seem to have a protection regime that is a bit of a nonsense. It has been set up by digital dinosaurs such as ourselves and it provides digital natives—our children—with less protection online than offline. The result is clear. Unfortunately, the Government have been too slow to tackle internet child safety. Their rhetoric, however, particularly that of the Prime Minister, has been off the scale in its attempts to pacify parents. I cannot help but quote the PM’s words that we heard earlier from the noble Baroness, Lady Howe; he said that it was about “protecting childhood itself”. He went on to say:
“That is what is at stake, and I will do whatever it takes to keep our children safe”.
No, he will not. He will not even make default internet filtering a statutory duty. Come on; that is what it takes. It is not asking the earth. As we have heard, in this country everything under the sun can be a statutory duty, but not, it seems, the critical issue of online protection for our children.
Moreover, the protection that the Government have sought to put in place via the ISPs makes digital natives laugh out loud. A 12 year-old trying to access pornography on their parents’ computer will be delighted to find that they do not have to verify that they are over 18 before secretly accessing adult content. This is because the self-regulatory approach championed by the Government has not forced ISPs to introduce proper age verification for those wishing to disable default filters. I should add that there are many areas where I agree with the self-regulatory approach; it is just that online protection for children is not one of them. The risks are too great and the dangers too apparent.
I admit that I remain baffled by the Government’s approach on this issue. I trust that they will not be baffled if and when they lose a vote on this amendment on Report. I thank the noble Baroness, Lady Howe, for tabling this important amendment and I look forward to supporting her on Report.
Baroness Jolly
My Lords, I reassure the noble Baroness, Lady Howe, that the Government remain committed to improving the safety of children online and have a strong track record of working with the internet industry to drive progress. I thank her for her continued interest in this area. I am aware that this amendment is drawn from a Private Member’s Bill and that similar provisions were debated earlier this year as part of the Children and Families Bill. Speaking as a parent and grandparent, this issue is close to my heart. I know that many noble Lords will feel similarly and I am pleased to update the Committee on recent progress in this area.
The Prime Minister’s speech in July last year set out a series of measures, to which he asked the industry to commit, to help parents to limit their children’s access to age-inappropriate and potentially harmful material. We have seen excellent progress in all these. As the noble Baroness said, the four major ISPs, which cover almost 90% of the UK’s broadband market—BT, Sky, TalkTalk and Virgin Media—have delivered on their commitment to provide parents with the ability to easily filter content. They all now present new customers with an unavoidable choice about whether to use free, family-friendly network-level filters. Existing companies are making good headway with the rollout of these provisions. Smaller providers are also stepping up: for example, KC launched a free parental control service for its broadband customers last month. This has been a huge and complex undertaking, but it has seen results.
The noble Baroness might be interested in public wi-fi providers. The six major providers, covering more than 90% of the market, now provide family-friendly public wi-fi wherever children are likely to be. This summer, the Registered Digital Institute launched the Friendly WiFi logo, giving parents the assurance that a particular business, retailer or public space is filtering out inappropriate material.
Three of the UK’s four major mobile network operators already automatically provide adult content filters for pay-as-you-go and contract customers, with the remaining provider, Three, committed to doing so by July 2015. This means that the great majority of mobile customers are already covered by default-on filters. The Government have also been working with mobile virtual network operators to ensure that they are doing the same. These measures could not have been achieved as quickly through legislation, given the pace of change in this complex environment.
I thank the noble Baroness for setting out the reasons why she feels that further action is needed. The Government are of course open to considering different options and it would be appropriate if we had a meeting between now and Report.
Lord Alton of Liverpool
The Minister will recall that I asked her specifically how many people are not currently covered by this legislation. How many families and children do the 10% represent?
Baroness Jolly
I have many answers here to the noble Lord’s questions. It is vital to understand the full implications of any actions that we take and whether they are likely to be effective. I am sure that the noble Baroness will agree that it is vital that we encourage parents to talk about these important issues with their children. Parents told us that they do not always feel aware of the risks that their children face when online. This is why, in May, the four major ISPs launched Internet Matters, a multimillion-pound campaign aimed at helping parents to understand filters and a range of issues related to online safety.
Education is key in all this and we are doing more to educate children. Since the start of the school year in September, the new computing curriculum has included information for five to 16 year-olds—key stages 1 to 5—about how to stay safe online. Some schools are also promoting child safety at special events for parents. As the noble Lord said, children are often savvier than their parents. Ofcom is monitoring progress in this area. Its latest report, published in October, showed that nine in 10 parents mediate their child’s access to the internet in some way, with most parents using a combination of approaches.
Lord Alton of Liverpool
I was just about to ask the noble Baroness that very thing. If she would be good enough to write to Members of the Committee telling us exactly how many families and how many children the Government estimate will not be covered by these arrangements, that would help to inform the debate before we get to Report.
Baroness Jolly
That is a fair point. However, the noble Lord is suggesting that more than 10% of ISPs are opposing child protection, but the four major ISPs cover pretty much 90%. We have also heard that KCOM, which is quite a large player in this market as well, now offers child protection. We are working on it; we are picking off all these ISPs one by one. Perhaps the noble Baroness could let us know which provider sees it as a badge on honour not to do this; that would be useful. However, it certainly is not the case at all that 10% are against this. That is not a fair statement. For the moment, I ask the noble Baroness to withdraw her amendment. We would be more than happy to sit down and talk with her to see where we could meet.
Baroness Howe of Idlicote
My Lords, I thank all noble Lords who participated in the debate, particularly the Minister for her reply. I acknowledged in my speech the progress that has been made, which the Minister not surprisingly emphasised. I do not deny that there has been progress; I was simply trying to highlight the ongoing shortcomings as a means of addressing those shortcomings that still remain. The fact that our online safety provisions might be better than those in some other countries—or even most of the countries in the world—does not and should not release us from an obligation to address the ongoing shortcomings, especially if there is a means for doing so. I heard what the Minister said about the new regulations that pertain to video on demand.
I turn now to the commitment made earlier in the year: I welcomed it then and I welcome it now. Unless, however, the plan has changed, this is a commitment to require age verification on websites based in the UK that are live-streaming R18 material. That is welcome, but it is a quite different proposition from what I advanced in my amendment, which addresses all adult content regardless of whether it is live-streamed video on demand or, crucially, whether it pertains to websites based in this country. The Government’s plan pertains to R18-rated material and depends on whether the websites in question are based in this country or in any other country in the world. This final point is hugely important, since the vast majority of R18 material is live-streamed from websites based outside the UK.
I was slightly surprised that the Minister mentioned Tesco, where there was a little failure on a previous occasion, which I mentioned in March, the last time I spoke of this. I am certain that it will have learnt a bit of a lesson from having had a complaint made about it. Nevertheless, I suspect that it and Starbucks have other things to attend to and perhaps are not paying as much attention as they should to this important matter.
I am sure that other noble Lords who are interested would be delighted to have a meeting on the subject with the Minister before Report, to try to pinpoint what more action could be undertaken. I fear that, in the mean time, I must beg leave to withdraw the amendment, but I think that I shall be back again later.
“Service contracts relating to students: complaints
In cases where there is a contract under Chapter 4 of Part 1 to supply a service between a student (as the consumer) and an institution (as the trader), the following are qualifying institutions for the purposes of Part 2 of the Higher Education Act 2004, insofar as any complaint under the provisions of the 2004 Act relates to that service contract—(a) an institution granted specific course designation by the Secretary of State pursuant to regulation 5 of the Education (Student Support) Regulations 2011 (SI 2011/1986) and section 22(1) of the Teaching and Higher Education Act 1998; and(b) an institution granted degree awarding powers under section 76 of the Further and Higher Education Act 1992.”
Baroness Hayter of Kentish Town (Lab)
My Lords, Amendment 105, in my name and that of my noble friend Lord Stevenson of Balmacara, would widen the scope of the Office of the Independent Adjudicator so that it can include students at alternative providers. This would extend existing rights of redress and review to students who are publicly funded but are at non-university higher education colleges.
The Office of the Independent Adjudicator, which reviews student complaints, was designated under the Higher Education Act 2004. Membership of the scheme is compulsory for qualifying institutions, which basically means universities and their constituent colleges. However, it does not include all higher education institutions receiving public funding, whether from HEFCE or via their students from the Student Loans Company. Because of recent changes to the higher education funding system, student loans are now available for far more students; it is a route for public subsidy of higher education on a much wider basis than was the case when the 2004 Act was passed.
Some non-university private providers of higher education therefore now get public money via students through the Student Loans Company. However, although these private higher education institutions can join the Office of the Independent Adjudicator voluntarily, they do not have to and many do not. Their students are therefore excluded from being able to take their complaints to the adjudicator. We probably all agree that effective complaint-handling is an important part of safeguarding the quality and reputation of the student experience. Happily, the vast majority of students never need to bring a complaint, but the system needs to be accessible to those who feel that they have been let down by their institution.
Part of the success of the OIA is that it provides a single, consistent and independent point of last-resort adjudication for students in higher education. It has considered about 10,000 complaints and appeals since it was set up, with about one-quarter being found justified or partly justified or being in some way settled. This demonstrates the demand for an independent complaints scheme, because, despite the best endeavours of universities, things occasionally go wrong.
Without this amendment, many students would have nowhere to take their cases, such as the following, which the OIA had to find ineligible as their colleges did not happen to belong to the scheme: a student seeking a refund of fees after their course was cancelled; a student complaining that the institution had not followed the UK visa and immigration requirements properly so that he could not follow the course that he had paid for; and the student who complained about timetabling and support on an undergraduate course. These are examples of the sort of situations where, if the higher education institution is not a member, the OIA cannot hear a claim.
Universities UK supports Amendment 105. The Government’s 2011 White Paper, Students at the Heart of the System, included a commitment to bringing these private and alternative providers into the OIA scheme. That welcome commitment would, as they and we both want, create a level playing field between public and private institutions, in addition to extending this right of access to a redress scheme—it is a consumer right, after all—to all higher education students who are in some way in receipt of public money. The Government said that they intended to bring forward legislation to make that change, but they have failed to do so. The Bill therefore provides the opportunity for them to make good their promise. I beg to move.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Neville-Rolfe) (Con)
My Lords, higher education in this country rightly enjoys an excellent reputation, and we want to continue to ensure that all higher education students enjoy a high-quality experience. The vast majority of students report that they do: the 2014 National Student Survey shows that 86% of students are satisfied with their course, which is up on 85% last year. Statistics support the points that the noble Baroness made.
I, too, think that it is important that effective arrangements are in place for students to raise concerns and formal complaints in the relatively small number of cases that go wrong. Of course, it is absolutely right that responsibility for handling student complaints rests, in the first instance, with the autonomous and independent institutions that deliver education. I reassure the Committee that we have taken steps to ensure that all providers of higher education, including alternative providers, have a complaints policy. This is one of the expectations of the course designation process which permits students to access student support.
Institutions will want to respond to feedback from their students, including complaints. This enables the speediest resolution of issues and helps the institution to improve quality generally—feedback is very important. Where complaints remain unresolved, a good, well established service is offered by the Office of the Independent Adjudicator for Higher Education, to which the noble Baroness referred.
These arrangements were put in place in 2004 and in my view have served the sector very well. They provide students at universities in England and Wales with access to a dispute service and so to an alternative to the courts. However, as the noble Baroness rightly points out with her telling examples, they do not apply to the newer providers now offering education courses. I will reflect on the views expressed today and think very carefully about the arguments that have been put forward. In the mean time, I ask the noble Baroness to withdraw her amendment.
Baroness Hayter of Kentish Town
I hope that those words are as warm as my colleague is suggesting they are. We were, I think, hoping that the Government were going to go a little further and ask us to withdraw so that they could bring forward their own alternative. The numbers of students who would have been caught by this in the year after 2004, when it was brought in, was just over 3,000; it has now gone up to 12,000, so it has become a big issue. Can the Minister perhaps go a little further than she indicated?
Baroness Neville-Rolfe
I confirm to the noble Baroness that my words are extremely warm. We will obviously return to this issue and, if need be, have a discussion with her, but I would be grateful if she would withdraw the amendment on that warm basis.
Baroness Hayter of Kentish Town
I think that I will take my jacket off because of the heat in here. With those words of reassurance, I beg leave to withdraw the amendment.
The Lord Bishop of Truro
“High-cost short-term credit: unsolicited marketing
The Secretary of State must make regulations to prevent the sale of high-cost short-term credit through unsolicited marketing calls.”
The Lord Bishop of Truro
My Lords, Amendment 105C is in my name and those of the noble Lord, Lord Mitchell, and the noble Baroness, Lady Bakewell. I declare an interest: I am chair of the trustees of the Children’s Society, which has co-ordinated this amendment as part of its campaign—of which I am very proud—on the impact of debt on children and families. We produced a report entitled The Debt Trap earlier this year.
In September this year, the Children’s Society launched another report, entitled Playday not Payday, which looked at the effects of the advertising of payday loans on children, and in particular at the telemarketing of payday loans. The report identified a gap in the regulations which allows payday loan companies to use unsolicited marketing calls to offer people payday loans through phone calls and texts. For mortgage products, this type of unsolicited marketing is completely banned by the Mortgage Conduct of Business rules. The Financial Conduct Authority, which regulates payday lenders, said:
“Cold calling can expose consumers to high pressure sales tactics which mean they can end up with an inappropriate or over-expensive product or service. Our investment and mortgage financial promotion rules therefore ban cold calling … unless certain conditions are met”.
Why, therefore, does the Minister feel that this ban should apply only to mortgages and not to other forms of credit such as payday loans? According to a poll by the charity StepChange, a third of its clients have received an unsolicited marketing call offering them a payday loan. The average client said that they received an average of 10 calls per week. Calls at that frequency, if aimed at certain vulnerable parents and families, can have a detrimental effect on a person’s mental health and well-being.
The Children’s Society found that of those parents who had never taken out a loan, only 7% said that they were receiving calls from payday loan companies more than once a day. That increased to 42% for parents who had previously taken out a payday loan. Given that we know that young parents are more likely to take out a payday loan, I share the society’s concern that this suggests that young parents who are already in financial difficulty are receiving the brunt of those calls. Anecdotally, we hear stories of payday loan companies sending “I miss you” texts to parents who have not taken out a loan after a period of time. I am sure that the Minister agrees with me that that kind of behaviour is unacceptable.
I understand that the Department for Culture, Media and Sport has recently launched its long-awaited consultation on nuisance calls, which will also cover unsolicited telemarketing calls. The proposal to make it easier to prosecute and fine firms that break the nuisance calls rules is of course welcome and will in the long term help reduce the number of unsolicited payday loan marketing calls. However, I am concerned that this does not go far enough to protect consumers. An outright ban, similar to that applied to mortgage products, would almost guarantee protection for vulnerable families from harassing and persistent calls from payday loan firms. Will the Minister commit to looking at this issue ahead of Report to consider using the Bill to further protect vulnerable families?
Lord Deben (Con)
My Lords, I support this amendment. It is true that we have already complained about this constant nuisance. However, it is particularly true that many parents of vulnerable children are not at work, and therefore are present when the phone rings on a constant basis to offer people money in this way. It is intolerable, and an insult to family life. I do not understand why we have taken so long to deal with the overall nuisance, which most of us recognise in our own homes and our own places.
On those occasions on which we happen to be at home during the week, there is no doubt that the telephone rings on a regular basis to offer us all kinds of services, none of which we may want. There is no way of stopping them—in particular that annoying habit of a machine talking to you, so you do not even have the chance to be unfairly rude to the person who has rung you up. I try to be polite to the real people at the other end, because it is not their fault—that is the job they were given. However, it is extremely difficult, because this is an intrusion which modern life has not applied itself to. Why should we have the disadvantages of the telephone without doing something to compensate for them?
In general, this is a scandal, and in general it is fair to say that Governments of both parties have been very slow to deal with it. However, in particular what the right reverend Prelate has brought forward is a crucially important problem. Once a family has taken out a payday loan and has paid it off, they are very vulnerable to a repeat performance. These people go on and on at them, and the children are very much affected by that. It is one of those habits that people have to get out of. If they are trying to get out of it, the telephone call is intended to bring them back within the thraldom of the payday loan.
We should be much tougher about payday loans, right across the board. We should be doing a lot more to encourage the provision of the much more respectable and sensible means of people taking small loans and being able to pay them back in proper ways. Credit unions, and the extension of those credit unions, are very important. That is the positive side, but the negative side is that we have to take this seriously. I have tried very hard but I cannot for the life of me think of any logical reason for opposing these amendments.
I hope that my noble friend will not put forward the argument that we are consulting on something else. I have been in politics and in Parliament for 40 years, and I do not believe that argument. It is always used by civil servants who do not want their Minister to listen to the argument; they want them to put it off. Therefore, I hope that my noble friend will not raise that point. If she is able to find another point, I shall be thrilled, because I have not been able to find one myself. If she is either unable to find another point or unwilling to raise the usual answer, perhaps she will be kind enough to say yes to the right reverend Prelate.
Baroness Wilcox (Con)
My Lords, there are far too many of us in this Room who have been through this issue. I look across and see “credit unions” written right across the noble Lord’s forehead. It is a more difficult situation than we are making it sound. First and foremost, we know that we must be very careful not to push people into illegal borrowing or illegal credit. If we do that and they get into trouble, there is no way that we can get at them to save them. The issue of when to lend money to people has always been difficult. You can see that some of them will get into trouble, but at least you can see them and they can come to you for help. Credit unions are a wonderful idea. They are a gathering of people who come together to save money and, when they have done so, they can then take out the small loans that they need—because it is their money; they put it in there.
This is not about payday lending, which is for borrowing quickly when your child needs a pair of football boots, which every other boy has and without which he cannot play in the football match. This issue is not as simple as it sounds. I tried to tackle it, as did the Minister who followed me, and I am sure that this Minister will try again now. I remind us all that, in the best of all possible worlds, we would not want these telephone calls to happen. However, I urge us to be careful in seeing what the Minister can or cannot do because, if it is that easy, the Labour Government—a socialist organisation—would have done a lot more about it when they were in power—and they could not do it, either. I wish the Minister the best of luck today with this one.
Lord Stoneham of Droxford
My Lords, my noble friend Lady Bakewell is unable to be here today, but I am sure that she would like me to associate us with the right reverend Prelate’s amendment. There are two questions that we have to ask ourselves. First, if the selling of mortgages over the phone is banned, why should these loans not be banned as well? Secondly, there is a problem with existing debtors—principally, I suspect, because the company selling the loans has phone information. Given how vulnerable these people are, they are likely to be very mobile in terms of their telephone accounts, and therefore this is particularly dangerous for them. For that reason, the Government have to act. I accept the points that the noble Baroness, Lady Wilcox, very sensibly raised. This is something which seems to have been overlooked and needs action.
Lord Kennedy of Southwark (Lab)
My Lords, I support these amendments. I very much agree with the comments of the right reverend Prelate and the noble Lord, Lord Deben, in particular. There is a real problem here. People are at home, unemployed and quite vulnerable, and they are being harassed over the phone by these people who are offering them all sorts of deals to sort out their problems. We have to deal with that: it is a really serious problem.
I am a big supporter of the credit union movement. It is not the solution to payday lending but is part of a suite of measures to deal with it. We have to deal with this, and it is right that the Government should act. It is not right that we leave people in this situation, which is completely wrong and intolerable. People can be driven into the hands of very unpleasant organisations that lend them money and allow them to get into a mess. They then offer more deals to round it all up, with a “special offer this week”, and so on. We here are very lucky that we are not in that sort of mess. Some people are having a very terrible time and I think that the Government need to take action against the people responsible.
Baroness Hayter of Kentish Town
My Lords, most of the other amendments in this group are in my name and that of my noble friend Lord Stevenson, and I would like to speak to them. Obviously I endorse the first amendment, but I would perhaps widen it to all nuisance calls. Basically, I feel that enough is enough. I am sorry if we made excuses when we were in government; we have to put a stop to it now.
I do not know how many instances we need before we do something. The right reverend Prelate the Bishop of Truro has indicated the size and effect of the calls about payday loans—but, as the noble Lord, Lord Deben, said, there are also claims management companies talking about non-existent car crashes, or missold PPI or some other dubious sale on the phone at all hours, to such an extent that some people do not even answer their phone any more; we know of elderly people who do not. I have seen someone in this House phone for three rings, put the phone down, phone again for three rings and put it down again. I wondered what they were doing, and it was because their parent would not answer the phone until that code had happened. I think that that reflects a real breach of consumer law.
We know that the Information Commissioner’s Office has received 160,000 complaints about unsolicited calls and texts. MPs tell us that it fills their postbag. Ofcom says that it is its number one complaint, averaging over 3,000 a month. Given that most of us would never think to complain to Ofcom, that must be the tiniest tip of the iceberg. Indeed, it is very hard to know where to take a complaint. I looked at my phone bill and on the back, 60 lines down in immensely small print—my noble friend reckons that it is 8-point—there is a heading, “Commitment to our customers”. You then have to work out that that is what complaints come under. It says that you should complain to the provider, BT, and that if you are still unhappy you can go to the ombudsman service. Another 10 lines down it gives the address of Ofcom, though not its phone number, but without saying that you could take the complaint there. So if Ofcom is getting 3,000 complaints a month, that must be a tiny proportion of those who would like to complain.
What is more, Ofcom research shows that it is vulnerable people who are especially at risk, as we have heard, with one-quarter of customers getting at least 10 calls a week. My fear is that there are more than that—but, even worse, some people do not realise that these are scam calls; if anyone says that they have not had a call, I really worry about their likelihood of falling for one. A BT survey found that nuisance calls ranked above queue jumpers, noisy neighbours and rude commuters as the most irritating aspect of their daily life. About half the respondents found these calls so intrusive that they raised their stress levels. About seven in 10 landline calls receive live marketing calls, and that adds up to 7.8 billion a year.
Furthermore, three-quarters of the landlines are registered with the telephone preference service, which shows that that system is not working. Indeed, those on the telephone preference service list still get about 10 nuisance calls a month—my own experience is that it is probably higher than that—and we know that over half the people on the list are not satisfied with what it does. However, for some reason or other, telephone companies remain reluctant to act, despite the fact that we continue to have to pay them to have our phone line, even when we are unwilling to answer a call from it in case it is not from a friend or family.
So we have had reports, recommendations and complaints but no action. The Commons Culture, Media and Sport Committee reported on nuisance calls and recommended legislation to proscribe the unfair process of personal contact data, including telephone numbers, and asked the Information Commissioner to act against companies that call people who have signed up to telephone preference. The All-Party Parliamentary Group on Nuisance Calls, whose work on this I commend, called for a lower threshold for Information Commissioner action, which is particularly relevant after the commissioner lost a case because the appeal tribunal did not consider that substantial distress had been caused.
The Government have said that they will take action, but they seem to be taking their time. In March, the DCMS nuisance calls action plan set out plans to consult on lowering the threshold before the Information Commissioner can act. It took seven months—that is, until last week—for the consultation to be launched, and even then it was only about lowering the threshold from “substantially distressing” to “annoyance, inconvenience or anxiety”. We should remove not only the threshold but the need to show repeated annoyance to allow the Information Commissioner at least to proceed to take a judgment on the issue.
The Government should also ask the telephone providers to play their part. It is a bit like what we have just heard about the internet: the Government seem reluctant to say to the people who could do something, “Do it”. What we are asking for would put an onus on the telephone companies to do something. I was recently contacted by Ian Moss, who told me that for a year after she had a car accident, his wife was getting five to 10 telephone calls a day about it. Nevertheless, even if the threshold is lowered, he would still have to prove that the caller deliberately or negligently breached the Data Protection Act for the ICO to act.
We want to get rid of the threshold and let the Information Commissioner decide on a case-by-case basis. That is what Amendment 105H would do. However, as I said, we should not just leave it to the Information Commissioner, who was set up to do quite a different job. Increasingly, calls come from machines that dial every available number, so it is not even a matter of selling on information collected for some other purpose. We need to look at who is doing the calling, rather than ask some other intermediary to act. We should make it illegal for them to try to sell to people who have not given them permission to phone.
As a first stage, we should ensure that people know who is calling them. Partly, that helps them to know whether to lift the phone at all, but it is also important for stamping out the practice, as it would reveal who is calling, so complaints could be made. Amendment 105G would mandate caller line identification—in other words, knowing who is calling—for non-domestic callers doing any sort of marketing. We also ask that telephone operators make the facility to be able to read the number available free to subscribers. That does not seem much to ask.
When I was young, or even when I was middle-aged, we had to buy a telephone answering machine to add to our phone; now it comes automatically in the phone. So should this; it is what telephone providers should do. It is, after all, the telephone line which is being misused, so providers must stop avoiding their responsibility, take action against those who misuse the lines and help innocent customers avoid those calls.
At the moment, according to trueCall Research, 44% of nuisance calls arrive without caller line identification, so it is impossible even to make complaints about them. Although a quarter of them may be from abroad, even showing that they are from abroad—unless you have a student child roaming the world and wanting money from time to time—you will know that if it is an international number it is probably not for you. Others simply show up as number withheld—and it is that, with a few exceptions, we would outlaw.
The Culture, Media and Sport Select Committee supported proscribing withheld caller identifications, as did the all-party group. Alun Cairns put it so well in moving his 10-minute rule Bill last year in the other place. He said that nuisance calls,
“could be compared to someone knocking at the door wearing a mask or a balaclava. Would we answer the door to such an unknown caller? Of course we would not. Why, then, do we allow the same thing to happen over the telephone?”.—[Official Report, Commons, 28/2/13; cols. 158WH.]
Finally, as we have seen from the numbers I have given, the telephone preference service, which acts on an opt-out basis, clearly is not working. Amendment 105F would make it an opt-in system, so that consumers who want to receive calls should opt in to receive them. Jo Connell, chair of the Communications Consumer Panel, strongly supports the amendment calling for this opt-in for consent to direct marketing, as well as mandating caller line identification and the provision of that facility for free, as it is a service provided by the telephone companies but paid for by consumers that is being abused. Indeed, the panel was surprised and concerned that that was not already the case. As she has said, caller line identification can help report nuisance calls to regulators, as well as enable people to block and filter certain calls.
Ofcom welcomes Amendment 105H, as it would make it easier for the Information Commissioner to take enforcement action, and Amendment 105G, which would make caller line identification mandatory for non-domestic callers. I hope that the amendment in the name of the right reverend Prelate will be accepted, but I hope in due course ours also might be.
Baroness Neville-Rolfe
My Lords, I am very glad that we have been joined by the right reverend Prelate the Bishop of Truro. I will, rather rudely, come to his amendment at the end, because there are some general points that are relevant to that amendment.
Nuisance calls are an important issue; I want to make it very clear that the Government take it seriously. The calls are a scourge to consumers and I think everyone in this room has been troubled by them. We have therefore been working closely with regulators, consumer groups, parliamentarians and industry to take action. Our wide-ranging approach was set out in the Nuisance Calls Action Plan, published in March by my honourable friend Ed Vaizey, the Minister for Culture and the Digital Economy. I can circulate copies if noble Lords have not seen it, because it represented a major step forward.
Amendment 105F would require consumers to opt in to receiving marketing calls, rather than, as under the current system, being required to opt out by registering with the Telephone Preference Service. I am sure that many noble Lords have done that. While nuisance calls are certainly a problem that needs to be addressed, we also need to consider the benefits that can accrue to consumers and to balance the right of business to conduct legitimate direct marketing. Marketing calls can prove to be financially beneficial for many consumers; for example, calls on improved deals or tariffs can potentially save them money. The direct marketing industry provides employment opportunities, particularly in the regions and in support of our economy. The Direct Marketing Association estimates that its industry supports 530,000 jobs, so it is a significant economic operator. Equally important, it enables charities and voluntary organisations to generate essential funding.
Which?, which has contributed a great deal to the work on nuisance calls, agrees with our view that an opt-in system should not be sought, not least because there are many legitimate reasons why such calls might be made. They might be made, for example, by the emergency services, medical practitioners, or companies with whom the recipient has a genuine relationship. If an opt-in system were introduced, it is likely that calls of this nature might not be permissible.
The National Autistic Society, in its response to the CMS Committee, said that the telephone is,
“the single most successful way that—as a charity reliant on public donations—we raise money from individuals”.
Baroness Hayter of Kentish Town
I ask the Minister to check that quote. I checked with the chair of that organisation, which did not expect it to be used in this way.
Baroness Neville-Rolfe
I thank the noble Baroness and, of course, we will check on it. I suppose that the general point is that phone marketing is more successful than street, doorstep, direct mail, and so on. Changing an opt-in system can diminish a charity’s income, and that is our concern. Charities are subject to the same rules as those applying to marketing companies. That point may be of concern to my noble friend Lord Deben, who spoke with such energy on this subject.
Calls to consumers who are registered with the Telephone Preference Service, provided they have not given explicit consent to receive such calls, are already outlawed under the Privacy and Electronic Communications Regulations. The Government’s view is that those breaking the law by calling consumers registered with the Telephone Preference Service are just as likely to ignore any new law that is introduced, regardless of whether the system is opt-in or opt-out. Tackling marketing calls would, in our view, be better addressed in focusing on better enforcement, and we are taking action in this area. We have ensured that the monetary penalties, which the Information Commissioner’s Office and Ofcom can use, have been increased and issued more frequently to those breaking the regulations. Since January 2012, more than £2 million in monetary penalties has been issued by both regulators.
We have also made it clear that regulators need to continue to take strong action to send a signal that those who flout the rules will be caught and punished. Persistent offending companies are now named and shamed on the Information Commissioner’s Office website, so that those who make those marketing calls are made known to the public. Informed consumers are safer consumers.
The noble Baroness, Lady Hayter, said that it was very hard to know how to complain. Ofcom’s website, as she may know, has been revamped to provide comprehensive information for consumers on where to go about nuisance calls. I have talked to Ed Richards about this because he realises how important it is. Ofcom has found that most people go to their service provider in the first instance, which in turn passes them on to Ofcom. There is now much more collaboration between regulators sharing their knowledge and expertise to improve compliance.
Changes have been happening as the Bill has progressed. I mentioned the action plan, and on 25 October Ed Vaizey launched a consultation on lowering or removing the legal threshold for fining firms who make unsolicited marketing calls. The efforts of the Information Commissioner’s Office to impose penalties are currently frustrated by the legal requirement to demonstrate that nuisance calls cause substantial damage or substantial distress—especially given the volume of calls, mentioned by the noble Baroness, Lady Hayter. I am slightly surprised by her comments because, while there are two options in the consultation, which we have to take into account before making a final decision, the Government’s preference is to remove the threshold and give the commissioner the greatest scope to take action. This will help to solve the commissioner’s current frustrations. The consultation ends on 6 December and we expect the secondary legislation to implement the resulting changes to come into force in February—a more rapid avenue than in this Bill.
Amendment 105G would require businesses and other persons making unsolicited calls for direct marketing purposes to provide caller line identification. We are sympathetic to this amendment, as the noble Baroness knows, because we have discussed it, and agree that the current situation can be very frustrating when callers deliberately fail to provide their CLI. Unfortunately, however, mandatory CLI is not permissible under EU law. The EU privacy directive provides that callers, both individuals and businesses, must be allowed to withhold CLI. The directive allows for limited exceptions for the specific purpose of tracing calls, but that would not apply to this amendment, which covers all businesses and individuals making unsolicited calls for direct marketing purposes.
Baroness Hayter of Kentish Town
While we are talking of trying to find reasons not to take action about victims of domestic violence, the Minister will notice that in our amendment we allowed for Ofcom to be able to look at categories, either individual domestic callers or groups of them, that could be exempt, exactly in order to cover women’s refuges and things like that—if we are talking about grabbing excuses. The important issue, though, is that our understanding of the European directive on privacy was that it was about individual privacy, not about corporations, and that the individual within a company or an individual subscriber could be protected. I would be happy if the Minister could clarify that in writing.
The other issue is that no one tells you to go to the Ofcom site, which is not advertised, so there really is no way of being able to complain, particularly if you do not have the caller’s identification number. I ask the Minister to spell out for us why it is not reasonable to ask for all non-domestic callers making marketing calls to have to identify their number. I do not think that she has actually answered that.
Baroness Neville-Rolfe
Perhaps I could try harder; we will have to return to it if I cannot persuade the noble Baroness. The difficulty is that if, for example, someone rings up a domestic violence helpline and that number is public, it will then appear on the bill, so other members of the household will then know that people in their household have been ringing that number. This sounds like a detailed issue, although I think that our hearts are in the same place. My understanding is that this was debated at great length in Brussels at the time of this directive, and that these were the problems that came up. I thought that it was right to share that background with the Committee. I will go away to see whether the point that the noble Baroness has made about individual versus corporate stands; I think it is a legal point that I would need to take advice on. That is the difficulty; it was a combination of behavioural and legal points that reflected the concerns the EU had when it was talking about this, when obviously it was trying to do the right thing.
I turn to Amendment 105C. The Government share the concern of the right reverend Prelate and the Children’s Society about payday lenders using unsolicited calls to market inappropriate products to vulnerable consumers. Indeed, we had a long debate earlier in this Committee on the whole issue of payday loans. Such practices must not be allowed to occur, as the noble Lord, Lord Deben, said. I reiterate that the tough measures that I outlined as part of the nuisance calls action plan will capture the practices of payday firms, among other industries. Such firms will no longer be able to target consumers as they have previously been able to.
The right reverend Prelate asked why, as mortgage calls were banned, payday lenders’ calls could not be banned. I am afraid I must take that question away; I was not aware of the ban on mortgage calls, and I will investigate and write to the right reverend Prelate to see if that provides some new avenue into the debate.
To conclude, the Government take the issue of nuisance calls very seriously, and I have set out a number of ways in which we are tackling the problem and the way in which we have speeded up. The Government will continue to work with consumer groups, regulators and of course industry, which need to make changes to find effective solutions. The work outlined in our action plan is under way—new things are happening all the time—and this will help to contribute towards achieving more long-term solutions to deal with nuisance calls. I have outlined a couple of points of follow-up, which we will pursue before we get to the next stage of the Bill, but in the mean time, I ask the right reverend Prelate to withdraw his amendment.
The Lord Bishop of Truro
I am grateful to the Minister for her response, and I thank all noble Lords who took part in the debate. Clearly, unsolicited calls struck a nerve with most noble Lords here. It was therefore ironic that we should have our own version of an unsolicited call when the Division Bell rang to empty this Room.
By way of response, I thank the Minister very much for the offer of a letter on the point about mortgages, which, as was reinforced in the debate, is a significant issue. I will stress and underline a point on my amendment. I understand entirely the strength of feeling in the Room about the way in which we are affected by unsolicited calls, but I want noble Lords to imagine what it must be like if you are leading a chaotic life in a vulnerable situation, where bizarrely, the phone ringing might be seen as a good thing rather than a bad thing—as many of us would see it. In view of some of the amendments we will come to later, there is almost an addictive quality. Some of these payday loan firms will buy into and hook into these people, who do not have the resilience to resist in the way that I suspect we can. We can joke about it. It might be a nuisance for us—we might be able to shout down the phone at a machine—but for some of the people that we represent in the Children’s Society those strategies are just not available. This is therefore very important. I am grateful to the Minister for her assurance of a letter, and I beg leave to withdraw the amendment.
Lord Kennedy of Southwark
“Public communications by sellers in the high cost consumer credit market
Lenders in the high cost consumer credit market shall not target public communications about their services at people who are engaged in gambling.”
Lord Kennedy of Southwark
My Lords, I will not detain the Committee too long in moving my amendment today. There are a number of other excellent amendments on the Marshalled List. I am particular conscious that the next one is in the name of my noble friend Lady Kennedy of Cradley, who also happens to be my wife, so I will be very brief.
We have discussed many times in Grand Committee and your Lordships’ House the issue of payday lenders, and their practices have come under a lot of scrutiny. I am pleased that the Government finally took some action to curb some of the worst excesses, although they did not do that voluntarily; rather, they were forced to react to a wholly unacceptable situation. The most reverend Primate the Archbishop of Canterbury, other noble Lords, many Members of the other place and campaigners are to be congratulated on the work they did on this, forcing the Government to finally act.
However, my amendment seeks to deal with a particular problem. On some gambling websites there are adverts from payday lenders, which make it possible that while you are gambling you can log on to a payday lender and borrow more money when you may not be in the best frame of mind to do that. You could have lost money and think, “I can win it back in the next game. All I need is a hundred more pounds, but I’m still two weeks from pay day and I’m already overdrawn at the bank”. In front of you is a little thing flashing in the corner telling you to log on and get a payday loan. My amendment seeks to stop gambling websites from accepting payday lender adverts on their sites—it is as simple as that. That is a real problem. I look forward to hearing the Minister telling the Grand Committee what the Government will do to deal with this issue, which needs to be resolved.
Before I conclude, I should have mentioned in the previous amendment that I have a meeting with the Economic Secretary to the Treasury in a couple of weeks’ time. We all hear reports in the media about all these dreadful practices that financial companies get up to, and the Government keep fining them. That is very good; the Government fine them hundreds of millions of pounds. All the money goes to what is called the Consolidated Fund—it is tipped in, disappears, and is never seen again. I am trying to persuade the Government to use a small amount of that money to support the credit union sector, debt counselling, money advice, or maybe an advertising campaign to show that there are alternatives to payday lenders. We would need a tiny amount, perhaps £10 million, rather than it disappearing into that fund. I therefore hope that I will get some positive news from the Government in a couple of weeks’ time, and I will bring that back further on. I beg to move.
Lord Stevenson of Balmacara
I endorse what my noble friend Lord Kennedy has said on this matter. These are new examples of the pernicious behaviour that is often adopted by petty lenders and similar types. It is not just them; it is also other high-cost credit providers. As the Minister indicated, we had a very good discussion on this at our last session, and many of the points there will have resonance for what is being said today.
I have two questions left in my mind after hearing what the noble Lord had to say. First, how did he know about those flashing lights at the corner of the screen? I know that his wife is present so he would not wish to reveal undisclosed secrets, but I think we ought to be told at some point. More seriously, why does it always seem to take pressure from within this House to get movement on this? If the practice were stamped on very quickly, a serious harm would be removed. I hope the Minister, when she comes to respond, will indicate the Government’s willingness at least to investigate this, to assess whether it is something they want to do. Hopefully, they will say that it is something they do want to do.
Baroness Wilcox
I will just add a word at this stage. I am very interested to hear what the Minister says about what the noble Lord, Lord Kennedy, has described, with the money all going into a fund somewhere else and people not getting their hands on it. I winced slightly, because I thought, “The Minister is listening to somebody talking about ring-fencing here”. I wondered how she was going to respond to ring-fencing money like this; I am not quite sure. The Financial Conduct Authority, as I understand it, is this big, new strong regulator that the Government brought have in, so I wondered if the Minister was going to tell us the result of the consultation paper they put out fairly recently. I have not heard too much about that since.
Baroness Jolly
I am grateful to the noble Lord, Lord Kennedy, for raising the issue of payday lenders’ advertisements targeted at people engaged in gambling. The noble Lord, Lord Stevenson, asked how he knew about these things. The answer could be that he had inadvertently fallen into the debate on the gambling Bill, where this sort of thing was raised. We can therefore tell the noble Baroness that there was nothing untoward going on.
As I have outlined previously in this Committee, the Government are fundamentally reforming regulation of the payday market through the Financial Conduct Authority’s new, more robust regulatory system. In January, the FCA will introduce a cap on the cost of payday loans, to protect consumers from unfair costs. The Government are determined to tackle abuse in the payday market wherever it occurs, including in the marketing of these loans. We strongly agree with the noble Lord that it is unacceptable for payday lenders to deliberately target vulnerable consumers with their advertising material. However, it is clear that a robust set of measures is already in place to protect the vulnerable from such practices.
We have heard about the FCA, but payday loan adverts are also subject to the Advertising Standards Authority’s strict content rules. Those apply to broadcast, as well as online, advertising. The ASA enforces the rules set out by the UK code of broadcast advertising. The BCAP code requires that all adverts are socially responsible and that vulnerable people are protected from harm. The social responsibility requirement prohibits lenders from deliberately targeting vulnerable people such as problem gamblers. The ASA has powers to impose scheduling restrictions if it deems it necessary. It also has powers to ban adverts which do not meet its rules, and has a strong track record of doing so: since May 2014, the ASA has banned 12 payday loan adverts. Just today, the ASA banned a payday advert because it encouraged consumers to take out loans to fund frivolous spending. The FCA has introduced tough new rules for payday adverts, including the introduction of mandatory risk warnings and the requirement to signpost to free debt advice. The FCA also has power to ban misleading adverts that breach its rules.
To conclude, there is in place a tough package of measures to ensure that vulnerable consumers are protected from inappropriate advertising and communications from payday lenders. I hope that that gives the noble Lord some comfort. To pick up on a point made by the noble Baroness, Lady Wilcox, the consultation paper on the cap will be published next week, before Report. I hope that the noble Lord now feels able to withdraw his amendment.
Lord Kennedy of Southwark
I first raised the issue of payday lending in 2010, soon after I entered the House, in a Question to the noble Baroness, Lady Wilcox. I remember that when I left the Chamber after that, a Conservative Peer said to me, “That is outrageous. No one ever charged me 4,000% for a loan. How dare you say that in the House? It is wrong”. He had a right go at me. I said, “I’m sorry”. I then sent him the link to the advert, and he came back to apologise. He has since become a good friend. He was shocked that anyone would charge that sort of money. That is how I felt about gambling websites. I could not believe that you can play a lot on those sites and have a sign saying that the money is there. The problem is that the advert may not be misleading; it may just give the name of the company and say that it gives payday loans. That is a matter of fact.
We say that we are trying to protect problem gamblers. How do you know that the person on the computer is a problem gambler? You are sitting there getting desperate, losing money and needing more, and the offer is in front of you. The Government are not going far enough on this. There is a big issue here, which we should look at. Of course I will withdraw the amendment today, but I will probably bring it or a similar amendment back at Report.
On ring-fencing, these companies are being fined a tiny amount—£10 million or £11 million. Hundreds of millions of pounds are going to the Consolidated Fund. I hope that no Minister will be too worried about the amount I am talking about when I get to see them. With that, I beg leave to withdraw the amendment.
“Airline passengers: allergies
(1) When a consumer enters into a service contract under Part 1 of this Act to travel with an airline, the airline must give the consumer an opportunity to state whether they have any allergies about which the airline should be aware.
(2) If the consumer states that they do have an allergy, the airline must take reasonable appropriate steps to avoid the consumer having an allergic reaction while travelling with the airline.”
Baroness Kennedy of Cradley (Lab)
My Lords, many of us are nervous of flying; imagine how nervous of flying you would be if you had an allergy caused by something as common as nuts and you knew that your allergy was so severe that any contact with the allergen would cause you a life-threatening reaction. Although you have done everything that you could to keep yourself safe on the flight—you have your Epipen, your medication and your letter from your GP, and you are even carrying your own food—the airline you are travelling with does nothing to try to reduce your risk of having an allergic reaction. Why? I cite British Airways as an example because it is our flag-carrying airline. It states that that it cannot guarantee an allergen-free environment. Because it cannot guarantee an allergen-free flight, it does little to help to reduce its passengers’ risk.
There are no guarantees for any of us when we travel by road, rail or air, but that does not stop Governments or other authorities putting in place measures to keep us as safe as possible. I know that when British Airways were asked by a passenger with a severe nut allergy to stop giving out nuts on his flight, it refused and therefore directly increased his risk of a life-threatening reaction.
A few weeks ago, the media reported that the father of a young girl with a severe nut allergy felt bullied into leaving a British Airways flight after it had refused to make an in-flight announcement about his daughter’s allergy. In-flight announcements cannot guarantee an allergen-free flight but they can be part of a package of measures to reduce the risk. What was highlighted by that father’s story and by my experience is that there is confusion about the British Airways policy to deal with passengers at risk of severe allergic reactions. At first, they told the father that they would make an in-flight announcement but, once they were on board, the cabin crew refused.
On 16 August this year, British Airways staff told me that passengers,
“can mention to the cabin crew about a nut allergy and the crew can make an announcement on board the flight”.
However, 10 days later they said they were wrong to give that advice and withdrew it. British Airways states on its website:
“We use the recommendations of the International Air Transport Association … for allergen sensitive passengers to make sure your flight is as comfortable as we can make it”.
The problem is that the IATA recommendations say very little. As far as I can see, they only refer to meeting the general standards in terms of first aid kits and cabin crew first aid training. There is no mention of any of the practical operational steps that some airlines carry out, such as in-flight announcements. The policy and practice around how an airline supports a passenger with a severe allergy is therefore completely up to that airline. This policy vacuum leads to a lack of action on the part of some, and confusion for the many airline passengers and staff.
This is despite the huge and growing number of children and adults affected by allergies. According to the European Academy of Allergy and Clinical Immunology, allergies affect more than 100 million people in Europe. One out of every three children has an allergy, and it expects allergies to affect more than 50% of all Europeans in 10 years’ time. We know that for those at greatest risk, the tiniest trace of a food allergen can trigger severe symptoms and, in some cases, fatal or near-fatal symptoms. According to the Food Standards Agency, in the UK about 10 people die every year from food-induced anaphylaxis. Allergies and fear of a severe allergic reaction affect the daily lives of millions of children and adults. It is a growing problem that deserves some attention, especially when a person with a severe allergy is in a closed environment like a plane, where escape is impossible and the medical help you need is not available because you are trapped 35,000 feet in the air. Thankfully, anaphylactic shock on a plane due to an allergy is rare, but it does happen.
Noble Lords may have read over the summer about the case of the little girl, aged four, who went into anaphylactic shock and lost consciousness on a plane due to a severe allergic reaction to nuts. She was saved thanks to an ambulance worker on board who responded to the cabin crew call for medically trained passengers. In this case, Ryanair did make an in-flight announcement—in fact, it was reported to have made three in-flight announcements—but one passenger ignored the warnings, and his actions caused the girl a severe life-threatening reaction.
The two media reports that I have mentioned highlight a number of important issues: the risk of a life-threatening allergic reaction is possible and not as rare as we may think; airlines’ policies vary to a great extent; there is confusion among airline staff on the policy positions held by that airline; and there is a significant lack of passenger awareness of the risks posed to some passengers from allergic reactions, which means that in-flight announcements alone are not a complete solution.
I recognise that no airline can guarantee an allergen-free flight, but the amendment I have tabled today does not ask airlines to give a guarantee; it asks them to take reasonable steps to decrease the risk to flyers with severe allergies when the airline has been informed that an at-risk passenger is aboard. It asks the airlines to help create as safe an environment as possible, and would lead to the development of a set of recommended guidelines that airlines operating in the UK would adopt to help reduce the risk to allergen-sensitive passengers. This would protect not only the at-risk passenger but the airline and all the other passengers on board.
Many airlines are already taking action. For example, some airlines have removed peanut snacks altogether. Others will remove nut-based snacks when notified in advance. Some airlines have introduced a buffer zone—seats around the passenger with an allergy, which they keep as allergen-free as possible. Some airlines allow passengers to pre-board so they can wipe down the seating area. Some advise customers when the aircraft is cleaned, so that passengers can book travel when the aircraft is at its cleanest. Some, as I have stated, make in-flight announcements to ask passengers to stop eating nuts. Because airline meals pose a particular risk for allergy sufferers, some airlines do more by letting passengers know what the meals are in advance—for example, at the time of booking. If some airlines can take steps to mitigate the risks to their passengers, why cannot they all? I think that they can, and should. The amendment asks them to do that.
I hope that the Government will agree and support the amendment, and that they will facilitate a discussion with the Civil Aviation Authority, the International Air Transport Association and any other appropriate authority to develop coherent guidelines on this important matter. I beg to move.
Baroness Wilcox
My Lords, I promise that this is my last intervention but I could not resist this one. Some years ago I was asked to chair a Select Committee on aircraft travel and health and deep vein thrombosis. It was an unusual piece of work because it was based on anecdotal evidence that people were coming off planes and were in hospital shortly after. It was unusual because most of the evidence that we took was from the general public, and we then got the reaction of the airlines, et cetera. So this is an area that I know very well indeed. As to whether it is relevant to this Bill right now I do not know, but at that time, the answer was that you could tell people that you had something wrong with you—the flu, or an allergy, although I am not sure that everybody thought so much about allergies in those days. There was great use of hyperfilters, which are still relied on. The air exchange is so quick and so localised to you that, generally speaking, you are safe because you are only within the range of one or two people. I advise the noble Baroness to get a copy of the Bill because it is quite possible, having listened to her today, that she might want to take this forward herself.
It was interesting to hear her speech. I have no doubt that the Minister has a wonderful answer, but as far as I know all the big airlines used the hyperfilter system and air exchange, which was so fast that it was pretty well the best they could do at the time. Things may have moved on since then. I do not know whether it is relevant to this Bill at this time, but it was excellent to hear the noble Baroness speaking about it. It is the first time I have had an exchange with her and I have enjoyed it, so thank you.
Lord Mendelsohn (Lab)
My Lords, I congratulate the noble Baroness, Lady Kennedy, on introducing this amendment and on her very thoughtful and persuasive speech.
I have an interest to declare. Two of my sons have severe nut allergies. I can still recall when the elder of the two suffered his first anaphylactic shock. He was almost five years-old and had never been diagnosed with an allergy. I think it is almost certainly the case that were it not for the fact that it occurred on a cruise liner with appropriately trained staff available and with the right supplies, our son would have died. My personal experience tells me how fortunate you can be.
The amendment does not ask airlines to guarantee a peanut-free or nut-free flight—no airline could or would ever give such a guarantee—but it does ask airlines to provide a reduction in the risks and to provide safe alternatives. The amendment addresses the key issue of the risk of a major incident on board, and what can be done to minimise that risk.
Let me set out the considerations and context for our views on this issue. First, this is an appropriate measure to be under consideration. We are, naturally, in favour of airlines being responsible and taking reasonable and proportionate steps to protect passengers. Secondly, we also consider that the amendment, while referring to allergies in general, is particularly focused on a distinct and significant area. Most allergic reactions present with mild or moderate symptoms. However, anaphylaxis is a severe allergic reaction that is potentially life-threatening. It is a medical emergency that requires immediate treatment, hospitalisation and observation for up to six hours.
Thirdly, there are very significant increases in diagnosed allergies and the trend line is continuing to rise. Surveys showed that an increase was initially seen in countries such as the UK, Europe and USA, but can now be found in all countries undergoing industrial development. The pattern of allergy is also changing and the distribution of those facing severe allergies is becoming increasingly widespread. I would be grateful if the Minister had some data she could share on the prevalence in the UK—especially in comparison with other OECD countries and how the Government project the likely incidence of such allergies and the trend line towards the future.
Fourthly, there is a clear and distinct problem with air travel. The very nature of the reaction and the treatment requirements mean that an anaphylactic incident is likely to cause a flight to change its route to meet the medical emergency. In the recent incident referred to by my noble friend Lady Kennedy, the flight to New Jersey was compelled to return to Dublin to ensure that proper medical attention was received. The elevated level of risk caused by being airborne means that air travel should be considered as distinct from other environments. I would be grateful if the Minister could provide us with any information the Government have on the number, severity and location of incidents; whether they have had any discussions with other countries on providing an exchange of information; and whether they have any information on the costs associated with plane diversions, or the department’s assessment of the performance of airlines in dealing with incidents.
Fifthly, there are risks that, while they can never be eliminated, could be managed better and where public policy expressed through legislation could help to encourage this. More can be done to ensure that allergy sufferers are not put at risk by particles, or even though the provision of food on the airline. Reasonable management measures and appropriate provision of meals and the like are deliverable. Providing obligations would mitigate the mistakes that can sometimes occur, both with ingredients and provision, in the way that airlines currently treat this condition.
Sixthly, the current advice and guidance places great burdens on passengers, who do have a responsibility—and I suspect that were it not for their vigilance we would be conscious of many more incidents. Advice and guidance are inconsistent between airlines and in particular in airlines’ implementation. There are a number of useful guidance notes and codes, but implementing simple data-capture arrangements, amending contracts with suppliers and introducing compliance checks within the existing oversight of food suppliers—as well as arranging for the effective management of the cabins and the provision of alternatives—seems to be proportionate, readily implementable and not highly fiscally challenging. The fact that some airlines do some of these things already would suggest that they are all able to do so. Can the Minister provide us with more details on how the airlines and her department view the deliverability and affordability of such changes?
I would also be grateful if the Minister could provide the department’s assessment of the guidance notes that are available and in use, and what evaluation or commentary there has been on their continuing practicality or previous effectiveness. Has the Minister’s department held any recent discussions on how they might be improved? What evidence have they received from third parties on their strengths and weaknesses?
Finally, there are already some moves towards legislation and regulation in other parts of the world. I understand that the US Department of Transportation started to look at banning nuts on planes in 2010 and has commissioned, or has called for, peer-reviewed scientific data on these matters. Have the Government discussed this with other international parties—specifically the US Department of Transportation—and have they independently sought and reviewed scientific data on these matters? Do they have any more thinking on the current position in America and on the current thinking of the Department of Transportation? In addition, the New Jersey Senate passed a resolution concerning nuts on planes. Has the Minister any information on the measures it has introduced and on any evaluation on their effectiveness?
It would also be very helpful to know what other authorities, experts and models the Government consider it would be appropriate to consider, and, in addition, whether such moves in countries where incidence is lower than our own is a strong indicator that action and acceptance of the amendment would be appropriate now.
Baroness Neville-Rolfe
My Lords, I, too, am grateful to the noble Baroness, Lady Kennedy, for raising this issue and for tabling the amendment. I am delighted to be able to welcome the noble Lord, Lord Mendelsohn, who I have known for some years, to his maiden contribution at the Dispatch Box, and thank him for bringing his expertise and family experience to this important debate on this very important subject. He is most welcome to our deliberations.
I am very sympathetic to the intention of the amendment in the name of the noble Baroness, Lady Kennedy, which seeks to relieve the suffering of those with allergies. As she said, allergic reactions can be very distressing to those who experience them, not least in the confines of an aircraft cabin, where it can be particularly scary. I know that no carrier would wish that to occur on its services. I am also grateful to the noble Baroness, Lady Wilcox, for sharing her experience on another troubling issue, deep vein thrombosis, and her knowledge of travel filters and air exchanges, which are an important technological part of the debate that we are having today.
I assure the Committee that industry practice is for carriers to request passengers to pre-notify prior to travel if they have any medical conditions, including allergies, and that most passengers do so. Most airlines will then take all reasonable measures to prevent passengers from having an allergic reaction while on board the aircraft. I know that, where given prior notice—and that is an important duty for us as passengers—airlines take steps, such as broadcasting requests to passengers not to eat nuts.
For some allergies, a carrier is unlikely to be able to guarantee an environment totally free of the trigger substance. For example, an aircraft may have been used by another carrier only hours previously, other passengers may bring their own food with them which can contain a trigger substance, or a passenger may be accompanied by an assistance dog, which may be a source of allergic reaction for some people.
I note that the amendment is specific both to airlines and to allergies. While I appreciate that there is a distinction, which the noble Lord has explained, the amendment would place a duty on airlines that is not placed on operators of any other modes of transport such as trains, ships, buses or taxis, or the airport operator responsible for the airport environment. However, there may well be steps that operators in those modes could take to reduce the risk of a person with an allergy having an attack during their journey. Furthermore, there may well be conditions other than allergies where an operator could take reasonable steps to reduce the risk of an attack during the journey—for example, photosensitive epilepsy. Moreover, the majority of airlines already do what the amendment would create a duty for them to do.
I am grateful to the noble Baroness for bringing this issue to our debate, but I do not think that we can justify the addition of this regulation to the Bill. I will ensure that the remarks made on the subject today are conveyed to my right honourable friend the Secretary of State for Transport, and that the points that have been made are considered. I shall also ask the department to pass the comments to British Airways because of the examples that she cited. I know from my own extensive experience of travelling that the company always seems very keen to provide a good service. As the noble Lord said, good management systems make a very big difference in these sorts of cases.
I was interested in the good practice outlined by the noble Baroness and, as I said, in the experiences of my noble friend Lady Wilcox, and in the international developments that have been mentioned, which I was not aware of. I also commend to the Committee the advice that the charity Anaphylaxis Action gives on its website to those with allergies when they travel by air. That advice includes stating their needs to carriers, discussing their proposed flight with their GP or specialist and, if concerned, taking their own food and medication, such as antihistamines or an adrenaline auto-injector, when they fly. In the circumstances, I ask the noble Baroness to withdraw the amendment.
Baroness Kennedy of Cradley
I thank all noble Lords who have spoken today, particularly the noble Baroness, Lady Wilcox, for her intervention. I was very interested to hear about the fast air exchange; I shall take her advice and look it up. I do not see that the fast air exchange helped the little girl aged four who became affected by a passenger who ate nuts a few rows behind her, but it could be that that is not a technical solution that is available to all airlines. I will certainly go and investigate that. Presumably, that is one of the reasons why buffer zones have been created by many airlines, such as Delta Airlines, to create a space where the passenger can sit and feel risk-free from their allergy.
I thank my noble friend Lord Mendelsohn for his contribution and his list of questions, which the Minister did not address. Actually, I was quite disappointed with the Minister’s reply. She said that most airlines do this. Most airlines do but not all of them, and that is the central point of my amendment. We need to ensure that there is a level playing field across the airlines in relation to security. There is good practice but there is also bad practice; there are good initiatives but there are also no initiatives; actions are taken but there is also a refusal to take action.
“Credit broker fees
(1) The Consumer Credit Act 1974 is amended as follows.
(2) In section 160A (credit intermediaries), after subsection (4) insert—
“(4A) Persons engaged in credit intermediary activity under this section or credit brokerage under section 145 shall not charge or take any fee from a debtor in respect of these activities until such time as an introduction results in the debtor entering into a relevant agreement.””
Lord Stevenson of Balmacara
My Lords, I declare my interest as the retiring chair of StepChange, a debt charity which is the UK’s leading independent debt advice and solutions service. StepChange offers free-to-client debt management plans, and the charity estimates that it is administering over a quarter of the total number of DMPs that are currently in place.
We know that people who face unmanageable debt often delay, sometimes for as long as a year, before seeking help. By that stage, they are often so desperate for help that they will enter into a plan with the first provider they happen upon, whether it is telephone or web-based, or whether they have just read about it in the newspapers. In a previous debate, attention was drawn to the volume of marketing calls or texts offering fee-charging debt management services. Of course, there is also the scourge of daytime advertising of such products on television and radio.
In its 2010 review of the debt management plan sector, the OFT concluded that commercial debt management companies,
“are not giving the advice or offering the solution that is in the best interests of the consumer but instead that which is most profitable to them”.
That is quite a serious accusation but, compared with what charities such as StepChange offer all its clients, which is the best independent advice with the client at the centre of the discussion, it is fair to point out that in many cases commercial debt management firms simply do not have the expertise to help resolve people’s debt situations in their best interests even if they want to do so. For instance, out of the hundreds of debt management firms that exist, the Insolvency Service lists only four as able to set up a debt relief order—one of the key tools to help debtors on lower incomes. In contrast, StepChange spends about £2 million a year on DROs for its clients.
The October 2014 report on this sector produced by the newly formed Competition and Markets Authority says:
“We consider that there is … a case for the FCA to conduct a more broadly-based review of the activities of lead generators”,
including,
“the role of fee-charging brokers ... possibly timed to take place during the authorisation process ... that is now getting underway”.
It is estimated that there were about 600,000 DMPs at the start of 2012. Of these, about 350,000 were with commercial fee-chargers. In 2010, the OFT estimated that debt management firms were making some £250 million profit from these plans—from clients who were, by definition, already over-indebted. It must be obvious to all concerned that, if fees are charged by commercial debt management companies to people who are suffering from unmanageable debt problems, the consequence will be that the extra costs taken will divert funds away from the creditor to the fee-charging DMP provider, and that will ensure that the time taken to repay the debt is extended. That cannot be good for consumers. It cannot be good for the creditors, who will wait longer and get less, and it is not good for the economy because it is a drag on GDP and will slow the recovery.
In this Committee we have discussed the role of the FCA and other sectors of the credit market, and have raised similar concerns in other Bills, not least the one that originally set up the FCA. Although I think highly of the FCA and respect the intentions of senior staff I have come across, it is becoming clear that there is a fundamental problem with the way it is established. Although its paperwork states and its staff will assert that the consumer is at the centre of its thinking, in practice the FCA has a different objective, which it takes as a surrogate for consumer welfare but which is not correct. It ensures that, across the financial services sector, markets are functioning well.
This means that we get perverse results. Almost irrespective of the consumer detriment or harm, the FCA appears to be content if a smaller number of well capitalised firms are trading, such that they are making reasonable profits—which I suppose means reasonable in relation to the capital employed. That is why cleaning up the payday loan market will not in fact eliminate payday lenders or other high cost credit operators, and why its tougher, more proactive regulation of the debt management market—while long overdue and very welcome—will not remove the problem of commercial DMP providers. If, for example, the FCA determines that the DMP market is functioning well, the FCA will be happy—even though the existence of fees will make it much harder for clients to repay their debts, and it will take them longer to do so.
A good example of this is the cap the FCA has introduced on charges in the DMP sector. We think fees should be abolished altogether on the ground that all clients’ money should be utilised to repay their debts. However, the cap has been set at a relatively high level: firms can charge a maximum of 50% of a customer’s repayments, although that must decrease once set-up costs have been recovered. Thereafter, however, monthly management charges—as distinct from set-up fees—can be charged at a flat percentage of customer repayments. Most of our clients pay about £200 to £250 per month into their DMP. If 50% of the early payments, and let us say 10% of the rest, go to a commercial operator, you can see how the impact will work out. This is absurd. It means that a client of a profit-seeking debt management company with £20,000 of debts will typically pay hundreds of pounds in set-up fees and thousands of pounds in monthly management fees over the term of the plan—money they cannot afford, which should be being paid to their creditors. Compared with a free debt management plan, this will extend the time it takes to pay down debts by as much as several months, and sometimes more than a year. There is substantial consumer detriment here in this market, and it is hard to believe that such a high level of charges is consistent with promoting good consumer outcomes. Our amendments would ban upfront fees for credit brokerage, and clean up DMPs.
Finally, I will touch on one other issue. As a result of FCA regulation, commercial debt management companies are starting to exit the market, and under the amendment, this would accelerate. There will be some transitional problems; for example, when a fee-charging debt management company closed its doors earlier this year, StepChange Debt Charity was on hand to pick up the pieces—and that was good. It was able to support over 400 people, but it is important to note that in so doing, the charity found that more than half of those people had been sold a debt management plan which was not suitable for their circumstances. As the FCA authorisation process starts to clear out the worst operators in this market, it will be up to charities such as StepChange, working with the regulator, to pick up the pieces and help rebuild people’s lives. That will be a significant amount of work. I have written to the FCA to suggest that a plan needs to be put together with the creditors, StepChange and others in the charitable sector to ensure that clients whose DMPs fold under them can be offered a free DMP or other appropriate debt solution. I hope that the FCA will take up that offer to engage. I beg to move.
Baroness Jolly
My Lords, I thank the noble Lord for raising such an interesting and critical point on this aspect of consumer credit, and I acknowledge the excellent work of StepChange. The Government have fundamentally reformed regulation of the consumer credit market. Consumer credit regulation transferred from the Office of Fair Trading to the Financial Conduct Authority—FCA—on 1 April 2014. The Government have ensured that the Financial Conduct Authority has robust powers to protect consumers. It has a broad enforcement tool-kit to punish breaches of its rules, there is no limit on the fines it can levy and, crucially, it can force firms to provide redress to consumers. The FCA also has flexible rule-making powers to take further action if it is deemed necessary to protect consumers.
Turning to Amendment 105K on the issue of credit brokers, it is clear that there is a real risk in this market of consumer detriment being caused by unscrupulous brokers. FCA rules already require credit brokers to disclose their status and any fees payable before the consumer enters into a brokerage contract. The FCA has made clear that disclosure must also cover the consumer’s right to a refund if no credit agreement is entered into within six months following an introduction. The FCA requires credit brokers to comply with the high-level principle of “treating customers fairly”. However, the Government share the noble Lord’s concern about the continued bad practice in this sector. The Government and the FCA are currently jointly considering what further action is needed to protect consumers, and will provide an update in the coming weeks.
Turning to Amendment 105M on the issue of debt management companies, the Government are concerned about the potential for detriment to occur to vulnerable consumers using debt management plans. Our focus is on comprehensively reforming regulation of this sector, as part of our wider reform of consumer credit regulation. Consumers participating in debt management plans are far better protected under the new FCA regime. The FCA has introduced a range of binding rules designed to protect consumers; it has made it clear that fees should not undermine the customer’s ability to make significant payments to the creditors throughout the duration of the debt management plan.
The FCA is thoroughly assessing every debt management firm’s fitness to trade as part of the authorisation process—a process that is already under way. Firms that do not put their customers’ interests first and comply with the FCA’s threshold conditions will not be authorised. The FCA is also undertaking an in-depth thematic review of the debt management sector. The Government therefore firmly believe that the new FCA regime will deliver—and is already delivering—a cleaned-up debt management market that is able to meet consumers’ needs in supporting them to deal with their debts.
The noble Lord suggested that the FCA review lead generators for debt-management providers. The FCA is undertaking this in-depth review of the sector, including looking at how use of these lead generators may be affecting consumers, so that is all part of the mix. I would be very grateful if the noble Lord would consider withdrawing the amendment.
Lord Stevenson of Balmacara
I thank the Minister for her very considerate response. It is a very complicated area, one that is in much flux, but I do not think that that should just be taken as a given, because the pressures, the pain and the anxiety that all this causes to vulnerable consumers—and also to ordinary people who are not necessarily too vulnerable in the conventional sense—are very substantial. We must always think of them as well as of the broader points that have been made in response to the amendments.
My central point, which, with respect, I think the Minister did not mention, is our increasing concern about the difference between saying that consumers’ interests are at the heart of the operation—which I absolutely accept is like a piece of rock built right through the FCA; you cannot have a conversation without it saying how much it puts consumers at the centre of it—and the reality that the measures that it uses in its day-to-day work are about market efficiency and fairness. I am not saying that that is wrong: I am just saying that I am not entirely sure that this is a one-to-one fit. Establishing a market involving payday lenders that is efficient and fair, may not remove the detriment that the remaining payers will be caused. I do not think that there is an easy answer to that; it is just something that we all should bear in mind when we think about how we regulate these matters.
“Practices of rent-to-own companies
(1) This section applies to credit agreements and consumer hire agreements taken out in respect of household goods specified in rules by the Financial Conduct Authority.
(2) The rules under subsection (1) shall—
(a) include a requirement on lenders to include in pre-contractual information adequate explanations and information allowing prospective customers to compare both the cash price of goods and the total cost of the credit agreement to a representative retail price for those goods;(b) prohibit lenders from requiring customers to take out insurance sold or brokered by the lender as a condition of obtaining credit;(c) set out specific steps lenders must take before taking action to enforce the agreement or recover possession of goods; and(d) set out the steps lenders should take to check that the agreement is affordable and suitable for prospective consumers.”
Baroness Hayter of Kentish Town
My Lords, this House has done much important work in tackling high cost and exploitative credit, thanks largely to the most reverend Primate the Archbishop of Canterbury and my noble friends Lord Mitchell, Lord Stevenson and Lord Kennedy of Southwark.
Amendment 105L concerns a new, unregulated and somewhat exploitative form of loan that has sprung up in the high street—along with other high-cost credit, mostly in low-income or deprived areas. It is known as rent to own: one well known example being BrightHouse. It works by having consumers rent products, which can be from household essentials, such as washing machines and beds, to games consoles, with the rent being eventually used to pay for the product. However, because it is deemed to be rent, there are none of the safeguards that would cover a loan to buy the product—for example, hire purchase or a straight bank loan. There are no checks on the ability to repay. There are no rights over the property. There are no safeguards against the property being repossessed because, until the final payment is made, it is only being rented, not owned by the people in the house. So, although the consumer is theoretically renting the product—in their minds, they are of course in the process of buying it—any failure to meet a payment can lead to it being immediately repossessed. There is evidence that such stores show little forbearance over mispayment and are unwilling to accept a breathing space or to negotiate payments where personal circumstances change. That is despite the fact that the consumer may have already paid well over the true value of the goods—sometimes, several times over.
There also appears to be a degree of heavy-handedness when it comes to repossession, with customers rarely informed of their rights and, in some cases, intimidated. There is no protection for the consumer, who is legally neither the owner of the product nor a borrower of a loan, so none of the normal protections associated with hire purchase apply. Protections apart, let us look at the prices. They far exceed the normal purchase price, even including any interest from a bank, which, if one were buying it with a bank loan, would then be added on to the price. The products include a washing machine. If you bought a washing machine from BrightHouse, a not unrepresentative example would leave you paying £1,404 for the machine, which could be bought somewhere else for £535.70—by monthly instalments in both cases, so I am comparing like with like. That means you are paying almost three times the price. However, if you get the games console rather than the washing machine, you end up paying more than three times the initial price. Buying an Xbox console bundle—I admit that I do not know what that is but I am assured that people buy them—elsewhere would cost you about £400. At BrightHouse it is £1,500 over a 130-week period. The APRs are between 60% and 90%. These are not my calculations; they are from BrightHouse’s own catalogue, where buying an HP Platinum Pavilion touch screen laptop would cost you £1,560, paying an APR of 94.7%. So adding up these so-called rents amounts to far more than the full list price, even adding on the interest if you bought it with a bank loan.
Furthermore, the company—I mention this one because it is the only one that I have found time to go and visit—often stocks absolutely top-of-the-range products, despite its shops being in deprived areas and its business model being aimed at those who want to pay weekly. On top of that, BrightHouse adds in compulsory and expensive insurance, even though the goods still belong to the company as they are being rented, so insurance is probably not needed. Then, just to add insult to injury, the marketing of the goods uses every trick of behavioural economics to tempt in the buyer, highlighting the price per week rather than the total cost or the length of repayment. The laptop that I just mentioned costs £15 per week but the catalogue does not tell you how many weeks you will need to pay off the price of £1,560. As we discussed in Committee last week, this is “drip pricing”, where the first number you see—in this case, the weekly amount—gives little indication of the full price. We know from research that consumers tend to overvalue a benefit that they will receive now, which in this case is a small weekly payment and immediate possession, while underestimating the impact of deferred costs.
Amendment 105L would require such a company to include information about the price of the good; an indication of the price the customer might pay elsewhere; the cost of the credit agreement, which should be in money terms, not percentage terms; and clarity about possible repossession, including any allowance for a breathing space or renegotiation of payment. It would ban making insurance compulsory, as I am sure the insurance itself adds more in cost than it does in value, and you have to pay the interest on it because it is part of the weekly charge. The amendment would also require the lender to check on the consumer’s ability to pay the full price.
This is not an attack on any weekly payments system, which can help those on lower incomes with their household budgeting. However, the business model used by companies like BrightHouse is so stacked against the customer that it is little short of exploitation. I therefore hope that the Government will accept this measured approach, which does not ban this form of credit but introduces greater transparency alongside adequate safeguards. I beg to move.
Baroness Jolly
My Lords, I hope that I shall be able to shed some light on this. Again, we share the noble Baroness’s concern about the risk of consumer detriment in the hire purchase credit market. The rules for the consumer credit market, put in place by the FCA from 1 April this year, were made with the stated aims of, first, ensuring that firms lend only to borrowers who can afford it; secondly, increasing borrowers’ awareness of the costs and the risks of borrowing unaffordably; and, thirdly, ensuring that consumers have access to support if they have financial difficulties.
The noble Baroness suggests that some organisations show little forbearance and are heavy-handed. The FCA specifically requires firms to adhere to debt collection rules, including in treating customers in default or arrears difficulties with forbearance and due consideration; provide pre-contractual explanations and information in line with European requirements, including the total amount payable; assess creditworthiness and affordability, including the potential to impact adversely on the consumer’s financial situation and their ability to make repayments as they fall due; and, where firms sell insurance products, do so in line with the FCA’s requirements around assessing consumers’ eligibility to claim on a product, and the high-level principle of “treating customers fairly”.
The Government believe that the tough and decisive action being taken by the FCA, following its detailed rule-making process, will ensure that consumers are far better protected under the new regime. The Government also recognise the importance of affordable credit, which is why they are supporting the credit union movement, including through investing £38 million through the expansion project. Given the new regime, I wonder whether the noble Baroness would feel her way to withdrawing the amendment.
Baroness Hayter of Kentish Town
I think that the Minister has completely misunderstood. This is not about a loan—this is about credit, not debt. The proposal is completely outwith that regime because it is not a loan. It does not come under the FCA, it is rent. These people are renting the television—if they rent it for three years, they will then be given it and own it. It is not covered by the affordability test, by forbearance or by anything that she is talking about.
Baroness Jolly
I apologise for the misunderstanding. I think that we will probably need to have a conversation fairly urgently.
Baroness Hayter of Kentish Town
That will be helpful. It is called “rent to buy”. You rent the item and own it only at the end, when it is given to you. You are renting it, and there is absolutely no hire purchase agreement or anything like that. In the light of that, and assuming that it will be possible to discuss this to clarify the issue, I beg leave to withdraw this amendment.
Baroness Howe of Idlicote
“Direction by Gambling Commission to block financial transactions of person or organisation without remote gambling licence
In section 33 of the Gambling Act 2005 (provision of facilities for gambling), after subsection (5) insert—“(6) The Commission may give a direction under this section if the Commission reasonably believe that—
(a) a person or organisation who does not hold a remote gambling licence is providing remote gambling services in the United Kingdom; and(b) failure to give such a direction would deprive consumers of remote gambling services in the United Kingdom of the protection afforded by the licensing objectives in section 1 of this Act.(7) A direction under this section may be given to—
(a) a particular person operating in the financial sector,(b) any description of persons operating in that sector, or(c) all persons operating in that sector.(8) A direction under subsection (6) may require a relevant person not to enter into or continue to participate in—
(a) a specified transaction or business relationship with a designated person,(b) a specified description of transactions or business relationships with a designated person, or(c) any transaction or business relationship with a designated person.(9) Any reference in this section to a person operating in the financial sector is to a credit or financial institution that—
(a) is a United Kingdom person, or(b) is acting in the course of a business carried on by it in the United Kingdom.(10) In this section—
“credit institution” and “financial institution” have the meanings given in paragraph 5 of Schedule 7 to the Counter-Terrorism Act 2008;
“designated person”, in relation to a direction, means any of the persons in relation to whom the direction is given;
“relevant person”, in relation to a direction, means any of the persons to whom the direction is given.””
Baroness Howe of Idlicote
My Lords, there cannot be a more basic aspect of consumer rights than protecting British consumers from unlicensed providers. This is particularly the case where gambling is concerned, because of the sad reality of problem gambling and the need to protect the vulnerable from providers who are not subject to the social responsibility conditions associated with securing a UK Gambling Commission licence.
The imperative to properly protect British consumers from unlicensed gambling providers is yet further compounded in the context of online gambling because of its association with higher problem gambling prevalence figures than gambling generally. The 2010 general problem gambling prevalence figure was 0.9%, but it was more than 9% for online on an annual basis and more than 17% on a monthly basis.
When the Government introduced the Gambling (Licensing and Advertising) Bill in another place a few years ago, the point was soon made that it lacked any credible means of enforcement. The Bill proposed a new arrangement whereby online gambling operators based anywhere in the world would, for the first time, be able to access the UK market and advertise here so long as they secured a Gambling Commission licence. The difficulty was that the Bill contained no credible provision for preventing unlicensed gambling sites accessing the UK market. There was, and is, consequently a very real concern that its principal effect will be to allow companies that currently cannot advertise in the UK to do so but without introducing any mechanism to prevent unlicensed providers from accessing the UK market.
Lord Stevenson of Balmacara
My Lords, we should all pay tribute to the amazingly long and trenchant campaign that has been waged by the noble Baroness. I have sat through most of her attempts during the past three or four years to get movement on this. Her arguments grow with every year and add new dimensions. Often, as she has done today, she offers a lifeline to the Government if they want to take it. It is always sad that they do not seem to be able to see the points that she is making or act on them. It occurred to me when she was speaking that it is a big pity that the Bill is arranged as it is. She ought really to appear at Halloween as an eerie ghost rattling her chains and saying, “Remember the financial transactions blocking”. Ministers would all shake and shiver in their shoes and be unable to respond without fear and trembling. I realise that that might apply to us if we are so lucky as to win the next election; she may come back to harass my noble friend or even me if we are in a similar position, so perhaps I shall wipe that away.
This is serious stuff. I recall being given the hope by the Minister in charge of the gambling Bill, when we were pursuing similar lines, that such a measure would be the right approach. The noble Baroness is absolutely right to bring it back at this stage; that is entirely in line with what was said then and the advice that was given.
The gambling Bill was a small, modest measure which was not expected to take up much time in the House or to carry much weight. It was deliberately sold to us as a measure that would be of great advantage to all concerned if it could slip through quickly because it was dealing with the particular issue of bringing back onshore the gambling bodies that had moved offshore. They were offering offshore opportunities for people to gamble; if they were onshore, they would be subject to the regulatory process.
Of course, we were happy to support that, but we were also able to make it a bit better by adding a few things during the process. It was clear in that process that the Bill was largely doing an awful thing that occasionally occurs in government: willing the ends of policy but not the means. The end of the policy is that we do not want people who are not regulated and not operating according to the rules within this country still to reach out to gamblers in United Kingdom. To achieve that, obviously there must be some mechanism by which we can pursue them. That is either by blocking their internet activities—these people operate in small foreign territories without fear of being pursued, so that is completely fanciful—or by ensuring that the financial arrangements, which are the lifeblood of their operation, can be blocked.
It is a matter of some irony that only yesterday we were discussing—in this very Room but on a different Bill—those who have had their intellectual property traduced by other companies in the internet world, otherwise known as copyright theft. We were investigating the best way of ensuring that those who owned intellectual property and had it stolen could seek remedies through the courts to make sure that the abuse was stopped and damages paid. It turned out that there were two pieces of statute that were possible to use. One was brought in long before the internet was as widely used as it is now—the Copyright, Design and Patents Act 1988 —and the other was the not yet fully implemented Digital Economy Act 2011, of great memory. This had specific clauses for regulations to be brought forward to allow the courts to block internet sites that were abusing copyright.
I would argue, on the basis of that experience, that this is something that is coming. Here we have a situation where, we are told, more than 40 blocks of this type were made last year. The Minister who responded to the debate was very proud of the fact that the Government had a mechanism in place to deal with internet abuse of the type specified in relation to copyright. This could be read across to those engaged in illegal or unregulated activity relating to gambling in the UK. Why is it not possible to use the experience that has been gained through this process to answer the questions of the noble Baroness, Lady Howe, about how to make sure that we are able to provide the means of delivery for the desirable policy aims included within the gambling Bill?
Baroness Jolly
I thank the noble Baroness for the amendment. We have met before on this issue, and her involvement and advice on this matter has helped us to make progress, which I am going on to explain. This amendment relates to the enforcement of the Gambling (Licensing and Advertising) Act 2014, which also has consumer protection as its primary focus. The issue of enforcement was extensively debated during the passage of the Act. I wholeheartedly agree that effective enforcement is essential to deliver the consumer protection aims of the 2014 Act.
Earlier this year I announced in the House that the Gambling Commission had reached agreement with major payment systems organisations—MasterCard, Visa and PayPal—to work together to block financial transactions with unlicensed operators. It is worth teasing some of this out for noble Lords, because MasterCard, Visa and PayPal cover the vast majority of relevant financial transactions. The noble Baroness mentioned the others but, although they might not appear in the list, the other payment service providers also use Visa and MasterCard. The branding might not be there but, behind the system, the actual infrastructure will be Visa or MasterCard. Reputable and legally compliant payment service providers are unlikely to have any greater interest in facilitating unlawful activity than the major providers have.
The noble Baroness raised a point about organisations being legally obligated in common law not to process transactions of any illegal provider. The terms and conditions of Visa, MasterCard and PayPal require that all transactions must be legal in all applicable jurisdictions. I hope that that has clarified that issue.
Since then, the Act has come into force, but only a few days ago on 1 November. I am able to confirm that the arrangements for disrupting illegal financial transactions are now in place. We believe that these arrangements offer the best solution and will disrupt revenue to unlicensed operators selling into the British market. They enable the Gambling Commission to take swift action against illegal operators; outside of a rigid legislative framework, these arrangements can adapt to tackle the very latest developments as technology changes.
The Government believe that working in partnership with those organisations towards a common goal of tackling illegal activity is the most appropriate way to proceed. No payment system organisation wants or can afford to be associated with illegal activity. I am sorry if the noble Baroness does not remember that from the previous Bill but it was certainly something that I was aware of; I am almost certain it was mentioned in Committee or in the Chamber on Report. However, we are not complacent on this issue and it is right that it is kept under scrutiny. The Gambling Commission will provide in its annual report to Parliament, which will be tabled each July, an assessment of the effectiveness of these arrangements in enforcing the 2014 Act. That will enable the Government to ensure that the Gambling Commission continues to have all the enforcement tools that it needs.
I thank the noble Baroness for her extensive input on this important issue, but, given the action taken and my reassurances, I ask her to withdraw her amendment.
Baroness Howe of Idlicote
My Lords, I am very grateful to the Minister and the noble Lord, Lord Stevenson, who spoke so eloquently on the background to this issue. I am glad to hear that a lot more has now taken place. I am equally glad that the focus has been not just on the three main financial transaction providers. It is quite clear that we need a legal requirement. I think I am being told that that really does exist and will work. I am delighted to hear it. We will perhaps have to wait a little to see. I will have a further look at the situation and reflect on what has been said. Although I am happy to withdraw my amendment, I cannot promise that I will not be back again at another stage.
“Protection of tenants against retaliatory eviction
In section 21 of the Housing Act 1988 (recovery of possession on expiry or termination of assured shorthold tenancy), after subsection (7) insert—“(8) The Secretary of State must issue guidance on how tenants can be protected from retaliatory eviction through the service of a notice under this section.
(9) For the purposes of this section, “retaliatory eviction” is defined as when a landlord unreasonably issues a notice under this section as a result of the tenant seeking protection of their rights under this Act.””
Baroness Hayter of Kentish Town
My Lords, Amendment 105S, which stands in my name and that of my noble friend Lord Stevenson, seeks to protect tenants who, having made a complaint about their landlord, face being evicted by a Section 21 notice, effectively deterring any tenant from tackling their landlord over any bad practice. We seek not to outlaw the practice of evictions altogether but to require the Secretary of State to issue guidance on how tenants can be protected from the use of Section 21 notices for retaliatory evictions. Sadly, representatives of Citizens Advice and of tenants cite too many examples of threats of retaliatory evictions for this to be a rare occurrence. Indeed, some 200,000 renters have been evicted or served notice because they complained to their local council or to their landlord about a problem. Certain groups are more likely to suffer retaliatory eviction: those in high-demand areas; up to 14% of families in London; and 10% of BME families.
In preparing its report, Creating a Better Private Rented Sector, the relevant all-party group heard witnesses’ fears about this, which inhibited tenants from expressing their concerns. Indeed, one in eight renters failed to ask their landlord to make repairs because of their fear of being evicted. The particular worry for tenants about any complaint leading to eviction is the fact that it is not illegal. Ministers have given this matter their attention, following the report of an industry-wide group in connection with the introduction of the minimum energy efficiency standard, which was causing some of the same issues, and the right to request energy-efficient improvements.
The all-party parliamentary group’s report asked that Ministers keep the operation of Section 21 notices under review. We would like the Government to go one step further and issue guidance to help tenants avoid this disreputable practice. We know that the Government want to take action in this area. After all, they have given their backing in principle to a Private Member’s Bill in the other place to stop the minority of rogue landlords who, rather than meet their legal duty to keep their properties to a reasonable standard and remove health and safety hazards, instead evict tenants simply for asking for essential repairs. Shelter, from the evidence of those it helps, has campaigned on revenge evictions, which the Government undertook to outlaw, ensuring that tenants do not face the prospect of losing their homes simply because they have asked for such essential repairs.
In committing the Government to support the Private Member’s Bill, Communities Minister Stephen Williams said that there were a minority of spiteful landlords, and that he wanted to ensure that hard-working tenants were not afraid to ask for better standards in their homes. If the Government want to see progress, our amendment offers them a useful first step. I beg to move.
Baroness Neville-Rolfe
The noble Baroness’s amendment seeks to deal with the problem of retaliatory eviction. This occurs when a tenant is evicted by the landlord when they report problems with the property. Landlords may then use Section 21 of the Housing Act 1988, otherwise known as a no-fault eviction. The latest evidence suggests that retaliatory eviction affects about 2% of all tenants, so it is a big figure. That figure rises significantly for some groups, with 10% of black and minority ethnicity households and 14% of London families affected by retaliatory eviction.
We have been proactive in this area. In February this year we published a discussion paper on improving property conditions in the private rented sector. We specifically sought views on how to tackle retaliatory eviction and remove the fear that many tenants have about making a legitimate complaint. The Government announced on 11 September their support in principle for the Tenancies (Reform) Bill, a Private Member’s Bill designed to outlaw retaliatory eviction. This Bill will have its Second Reading in the other place on 28 November.
We do not think that more guidance, as proposed in this amendment, is the right solution as we do not believe that the existing law provides tenants with sufficient protection. Our How to Rent guide, which was published in June this year, makes it clear to tenants that if a property is in an unsafe condition and the landlord will not repair it, they should contact their local authority, which can make the landlord deal with serious health and safety hazards. In addition, the industry-led voluntary code of practice, which was published on 11 September, makes it absolutely clear that the sector itself recognises that the practice of retaliatory eviction is unacceptable.
We therefore agree with the need to tackle the problem of retaliatory eviction. We believe that the Tenancies (Reform) Bill will provide the solution, and I ask the noble Baroness to kindly withdraw her amendment.
Baroness Hayter of Kentish Town
I thank the Minister for that response. It seems rather disappointing, perhaps, that something could not be put into the Consumer Rights Bill. Part of the problem with what is happening at the moment is that we are still not sure that tenants know about or are helped in avoiding those evictions. As we said before, this is the Consumer Rights Bill, so it seems a shame that the right for tenants not to be evicted for exercising their own right to ask for repairs is not embedded in a Consumer Rights Bill. We nevertheless welcome the Government’s support for the Tenancies (Reform) Bill and hope that they will push it along rapidly. We will have to see whether we still feel that some reference should be made in this Bill but, for the moment, I beg leave to withdraw the amendment.
Baroness Neville-Rolfe
Baroness Neville-Rolfe
My Lords, as this Committee draws to a close, I will move some technical amendments, beginning with Amendment 106. I start by expressing my gratitude to the Delegated Powers and Regulatory Reform Committee, which scrutinised the Bill earlier this year and which does such a good job for us in this House. Amendments 106 and 107 give effect to one of its recommendations. Amendments 108 to 111 are technical amendments. Between them, they support the implementation of the Bill and are necessary to reflect earlier amendments regarding lettings.
As I may not speak again, I take the opportunity to thank our various Chairmen, the Members of the Committee, the doorkeepers and the Bill team for all their hard work and participation. This has been my first Committee as a Minister and I have been struck by the quality of the debate. It has been wonderful to have both very experienced noble Lords—some of whom are not here with us now—and newer noble Lords, who bring expertise from elsewhere. I have really enjoyed the examples: the beautiful made to measure suit of the noble Baroness, Lady Hayter, the bathrooms, the kitchens and the digital games. Even today there were the graphic examples of nuisance calls and of allergic reactions—very important issues.
I am very pleased with the progress we have made and obviously look forward to further debate on Report. In the mean time, I beg to move Amendment 106.
Baroness Hayter of Kentish Town
My Lords, the Minister says these amendments are technical. I have 74 questions here about them which I would just like to go through if the Committee could hold on. In fact, we are very content with these amendments—that was just my excuse to join the thanks to the Bill team and, indeed, to the Ministers, who have been very willing during this process to meet with us and discuss the Bill. I also want to thank noble friends who have been a tremendous assistance, particularly my noble friends Lord Stevenson, Lady King and Lord Mendelsohn from the Front Bench, as well as my noble friends Lord Harris and Lady Crawley, who have done sterling work. I will just take a moment to talk to them directly—it ain’t finished yet.
Baroness Neville-Rolfe
Baroness Neville-Rolfe
(2) The Welsh Ministers may by order made by statutory instrument make transitional, transitory or saving provision in connection with the coming into force of Chapter 3 of this Part in relation to Wales.”
Baroness Neville-Rolfe
“(2A) Chapter 3 of this Part extends only to England and Wales.”
Baroness Neville-Rolfe
“(1A) Those provisions are—
(a) section 48(5) to (7), (b) Chapter 3 of this Part in so far as it confer powers to make regulations, (c) section 86(5) to (9),(d) this Chapter, and(e) paragraph 12 of Schedule 5.“(1B) Chapter 3 of this Part comes into force—
(a) in relation to England, on such day as the Secretary of State may appoint by order made by statutory instrument;(b) in relation to Wales, on such day as the Welsh Ministers may appoint by order made by statutory instrument.”
House of Lords
Work Capability Assessment
(10 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McAvoy
To ask Her Majesty’s Government how many people were awaiting a Work Capability Assessment on the latest date for which figures are available.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud) (Con)
As of 30 September 2014, there were around 580,000 cases awaiting work capability assessments at Atos Healthcare, down from 616,000 at the end of August. These figures do not include cases where the claimant has yet to return the claimant questionnaire.
Lord McAvoy (Lab)
My Lords, will the Minister confirm the number of disabled people who are waiting for their first work capability assessment? The figures show that the suffering of hundreds of thousands of disabled people is being increased on a daily basis by a Government who are failing in their duty of care. The Minister is quite keen to say how he is clearing up this mess. Does he not also owe an apology to the people affected?
Lord Freud
The service that we provided is not where we want it to be—we have been clear about that. We are pulling down the backlog; it is down by 20% since February. We announced in March that Atos would be leaving the contract, and we were able to announce last week that Maximus Health and Human Services is taking it up from that date.
Lord German (LD)
My Lords, we now have a new supplier of these work capability assessments. Most of the staff are being transferred using the transfer of undertakings. May I and the House be reassured that the transfer of undertakings will not include a transfer of working practices? In particular, perhaps my noble friend can tell us whether he agrees with the recommendation from the Government’s own assessor of this policy, Dr Litchfield, that less emphasis should be placed on the number of points attained in the test and that the calculation should be used,
“simply to determine whether the threshold for benefit has been reached”.
Surely that is a much fairer way of doing these assessments. Does the Minister agree?
Lord Freud
We are not changing the actual assessments, but we are improving the quality of those assessments; expanding the number of medical professionals, particularly in mental health; understanding how fluctuating conditions work, and so on.
Lord Alton of Liverpool (CB)
My Lords, in his reply to the noble Lord, Lord McAvoy, the Minister said that the new contract between Maximus and the DWP had now been signed. In view of the phenomenal sums of public money which are involved in this, can the Minister tell us when that contract will be placed in the public domain, whether it will be possible properly to scrutinise it and whether it will be possible for the public to see the operating systems and all the other issues involved, in contrast to way in which the Atos Healthcare contract was administered?
Lord Freud
Details of the new contract will be published on Contracts Finder by the end of November.
Baroness Uddin (Non-Afl)
My Lords, only recently, almost half of work capability assessment appeals were successful. New leaked papers tell us that even where eligibility is conceded and faulty work capability assessment decisions are reversed, employment and support allowance is providing less support to disabled people. Can the Minister rule out an announcement of new cuts to ESA in this Parliament?
Lord Freud
If the noble Baroness is referring to a newspaper story about 50p, I can assure her that that is not government policy.
Earl Attlee (Con)
My Lords, what progress is being made in getting more disabled people working, which is so important for their self-esteem?
Lord Freud
We have seen 116,000 disabled people return to the workforce this year. That is a 4% increase and is faster than the 2.6% rate of increase which is the average.
The Lord Bishop of St Albans
My Lords, great concern has been expressed by some people about how work capability assessments are being carried out and whether those undertaking them have the right skills and expertise. Indeed, in one anecdotal case, the health professional who undertook a complex mental health assessment was a physiotherapist. If that is the case, surely it cannot be right. What are Her Majesty’s Government doing to ensure that those undertaking the assessments have the right skills and experience to be able to do them properly?
Lord Freud
The important thing about doing these assessments is that someone assesses correctly in terms of capability of performing functions and capability of working; that is, what people are able to do. As I said earlier, we have more specialist professional support going into the system to make sure that those assessments are done accurately.
The Countess of Mar (CB)
My Lords, is there any foundation to the report in the Independent last week that some 6,000 people with diseases such as Parkinson’s, multiple sclerosis and severe CFS/ME have been put into the work-related activity group? If that is the case, how many of those people have been got into work? What is the point of putting them in the WRAG if they are not going to get better?
Lord Freud
Clearly, I am not able to respond on specific people going into specific places. The whole point of the assessments is to focus on functional capability or needs at the point of assessment.
Baroness Hollis of Heigham (Lab)
My Lords, 40% of people appeal against their assessment, some of them terminally ill. The DWP has added an extra stage to the appeals process, mandatory reconsideration by the department, but—and this is key—there is no time limit for staff to meet. Tiny numbers of appeals are being processed; the rest are being seriously delayed by six months or more. What is the Minister doing to speed up those appeals?
Lord Freud
The noble Baroness is quite right that the rate of appeals has fallen very steeply, by 92% in the latest quarter compared with a year earlier. It is too early to tell the definitive reasons for that. It may well be due to many of the changes that have gone through—75 recommendations have gone through—or to mandatory reconsideration so that we look at it early. However, when you look at the backlog of mandatory reconsiderations, you see that the pure numbers do not seem to be a huge influencing factor in this fall in appeals.
Baroness Manzoor (LD)
My Lords, looking at the number of people who will be moved across under TUPE, can the Minister say what percentage of new staff will be introduced to ensure that we have a faster and more effective service?
Lord Freud
All the providers within Atos were retested in 2013, so those will transfer. Maximus will bounce up the numbers—the precise numbers are not available yet—to do this particular contract.
Ticket Touting
Lord Moynihan
To ask Her Majesty’s Government what assessment they have made of the level of criminal activity related to ticket touting in the United Kingdom.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Neville-Rolfe) (Con)
My Lords, ticket touting is a criminal offence when tickets are sold for a designated football match. This is set out in the Criminal Justice and Public Order Act 1994. Arrests for ticket touting are recorded per season. There were 104 such arrests during the 2013-2014 season. Prosecutions are recorded annually, and there were 40 prosecutions in 2013. Your Lordships will be glad to know that 35 of those prosecuted were found guilty and sentenced.
Lord Moynihan (Con)
Will my noble friend confirm the figures from the DCMS following the Olympic Games that there were around 1,000 known professional groups involved in ticket crime? Does she also accept last year’s National Fraud Authority report, which estimated that 2.3 million people fall victim each year to online ticket fraud, resulting in losses of £1.5 billion? Will the Government consider, as a matter of some urgency, providing greater protection for theatre and concert-goers and sports fans?
Baroness Neville-Rolfe
My Lords, the Olympics and Paralympics were a fantastic achievement. It took an enormous enforcement effort to police the resale of tickets at that event, which we cannot do for every event. Since my appointment, I have taken a great deal of interest in this issue. I have had meetings with event organisers, including the Rugby Football Union, the England and Wales Cricket Board and UK Music, with online marketplaces and with consumer groups, to hear how the market is working. At present, we have broadly the right balance between consumer protection, with a number of regulations and allowing the market to operate, but I am considering new evidence as it becomes available.
Lord Clement-Jones (LD)
My Lords, my noble friend mentioned the Olympics. Will she take the opportunity of commending the report from Operation Podium of the Metropolitan Police, which so valuably made a number of recommendations about ticket fraud and abuse? Does she agree with its conclusion that self-regulation is unlikely to be successful, given the current lack of transparency, and unscrupulous practices by some? Is the Consumer Rights Bill not the ideal vehicle for reform in this area?
Baroness Neville-Rolfe
My Lords, Parliament has debated this issue for more than 10 hours on the Consumer Rights Bill alone, and we have legislated and produced guidance. New regulations came into force this year in June, which ensure that consumers get the information they need. We have included specific guidance on how the regulations apply to tickets. In terms of the police, consumers are protected by the Fraud Act. Action Fraud is now the single national reporting centre for fraud, and since 1 April, responsibility for that has moved to the City of London Police. They are making good progress.
Lord Hughes of Woodside (Lab)
My Lords, does the Minister accept the figures given by the noble Lord, Lord Moynihan?
Baroness Neville-Rolfe
My Lords, my noble friend Lord Moynihan brings a great deal of expertise to our discussions. It has been very helpful during the discussions on the Consumer Rights Bill to have his knowledge of this subject. There is an issue, but there are also things being done by the Government to tackle what is wrong and make sure that this is a good market for consumers, and that fraud is not allowed to flourish.
Lord Mawhinney (Con)
My Lords, if I understood my noble friend’s original Answer correctly, she told your Lordships that about one-third of those who were arrested for ticket touting at football matches were found guilty. Is that a percentage that my noble friend finds satisfactory?
Baroness Neville-Rolfe
My Lords, I should be careful about moving on to the turf of the criminal justice services. What I will say is that this was a narrow question about ticket touting, which is regulated under the Criminal Justice and Public Order Act, which was specifically set up to help with the terrible problems in football. I think that everyone feels that it has had some success. Clearly, our discussions have been wider, covering what we are doing for the consumers on the general question of ticket touting and how we can make sure that this is a good market, where people can buy tickets and be sure that they are not getting defrauded, while also ensuring that the consumer gets a good deal and can attend sport, the theatre and pop concerts. That is what we all want.
Lord Stevenson of Balmacara (Lab)
My Lords, Operation Podium argues, and the Government need to accept, that ticket fraud is usually,
“committed by organised criminal networks … creating legitimate-looking websites, taking payment for event tickets and then failing to supply them.”
That is the fact, but what is perhaps not realised as often is that many people who suffer from that ticket fraud then discover they are also subject to a scam which means that their credit card details are used again and again, so they are doubly hit. What sort of balance does the Minister find in that?
Baroness Neville-Rolfe
The noble Lord is right to express concerns but I think the House needs to understand that we have brought in new regulations as recently as June, and we have been working with the online marketplaces so that consumers are protected. The four main resale sites now go way beyond what they used to do. They are refunding or replacing unusable tickets and working with the RFU and all the other sporting bodies to make sure that things are okay. I saw the RFU yesterday and was very impressed by the action it is taking for the 2015 Rugby World Cup in using anti-forgery designs and a ballot system. We have to make progress in the real world, where consumers want to get tickets and attend games and concerts.
Lord Foulkes of Cumnock (Lab)
My Lords, will the Minister confirm that the statistics she gave in her original Answer were for England and Wales? What discussions is she having with her counterparts in Scotland—which thankfully is still part of the United Kingdom—about co-operation and exchanging experience?
Baroness Neville-Rolfe
My Lords, I have so far not had discussions with Scotland on the Bill but I am very willing to engage and to do so. I thank the noble Lord for raising that excellent point.
Baroness Heyhoe Flint (Con)
My Lords, perhaps I could ask my noble friend the Minister about secondary selling—that is the posh term for ticket touting, in case people were wondering. Touting nowadays is not carried out on street corners with somebody waving a wodge of tickets in front of you. It is a £1 billion global business. Does the Minister not agree that with this online business, which is taking money out of the game of sport itself, the Government should ensure that the voluntary guidance is being followed?
My noble friend asked for further information. Today, on one of the well known online ticket agency sites, there are 400 tickets listed for the Ashes cricket test match in Cardiff next July. Among those 400, there is not one with any ticket detail. People within the governing bodies of sport and entertainment are looking for a kitemark of assurance that, in future, all ticket purchases will be transparent and responsible.
Baroness Neville-Rolfe
My noble friend shares my passion for this subject and for cricket. We are certainly looking at those sorts of details in the discussions that we have been having.
Unmanned Aerial Vehicles
Lord Lee of Trafford
To ask Her Majesty’s Government what plans they have to encourage the development by British companies of unmanned aerial vehicles for civil and commercial purposes.
Lord Lee of Trafford (LD)
I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare a shareholding in Concurrent Technologies plc, 6% of whose turnover goes into electronics for unmanned vehicles.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Neville-Rolfe) (Con)
We are focusing investment on regulation and technology that will put the UK supply chain in a good position to be successful in the global market for unmanned aircraft. For example, through Innovate UK, we are investing £10.3 million in developing technology and supporting UK business to research the safe integration of these aircraft into our airspace.
Lord Lee of Trafford
My Lords, the burgeoning technology of UAVs has a vast range of global applications in archaeology, agriculture, communications, exploration, firefighting, surveillance of pipelines and piracy, and indeed in many forms of delivery systems. It may even be possible to develop a delivery system for Focus leaflets, which I should have thought would be very much appreciated by these Benches. Paul Cremin, the head of aviation safety at the Department for Transport, said recently:
“I hear of a new one—
civilian application—
“almost every day”.
He said that it will lead to a revolution in the way we shop, observe and are observed. Is my noble friend satisfied that UK plc—the Government and the private sector—is sufficiently focused on the huge commercial opportunities for UAV systems, an area where we seem to be well behind the Israelis and the Americans?
Baroness Neville-Rolfe
My Lords, all that we are doing will help the UK to be at the forefront of this emerging sector and I very much like the examples that my noble friend has given. We are already investing £1 billion, matched by industry, in the Aerospace Technology Institute. Its latest £25 million competition is open to projects from a range of civil aerospace technologies, including the unmanned aircraft sector.
Lord Clark of Windermere (Lab)
My Lords, do the Minister and the Government fully accept that there is much use for unmanned vehicles in policing? Will she discuss with the various police authorities the possibility of them working together to provide some cover to give constant monitoring of sensitive sites in the fight against terrorism and in other issues such as emergencies? There is a tremendous opportunity for using drones. I trust that the Government are pursuing this and will encourage the police to work together on it.
Baroness Neville-Rolfe
My Lords, I very much agree with the noble Lord that there is great potential in this area. For example, police searches for missing people can be helped enormously by this sort of technology. We are working with the police, the defence sector and with industry to take forward this important technology.
Lord Glenarthur (Con)
My Lords, I welcome the opportunities that are afforded by unmanned aerial vehicles and acknowledge that my noble friend referred to the regulatory regimes that are going to be necessary to ensure that this can be managed safely. Will she bear in mind that both United Kingdom and European airspace is crowded, both at the lower and the higher levels, and it will require very careful design and enforcement not only by the European Aviation Safety Agency but also by our own Civil Aviation Authority to ensure that these vehicles are safely used and monitored.
Baroness Neville-Rolfe
My Lords, yes. I take great comfort from the fact that unmanned aircraft are closely regulated by the Civil Aviation Authority and are treated in the same manner as equivalent manned aircraft. As with all other aircraft, they need to be safe to be flown and flown safely—an important principle. We recognise, of course, that more needs to be done to make the rules clear, particularly for small, unmanned aircraft, and to help address this the CAA is launching a publicity campaign, “You Have Control, Be Safe, Be Legal”.
Lord Davies of Oldham (Lab)
My Lords, the House will be delighted by the progress that is being made by the industry, but the question of regulation goes far beyond just airspace. There is a question about privacy, the safety of the individual and the extent to which drones, which can be purchased at present for quite small sums of money—under £1,000—have wonderful technology for activities that many of us might find completely reprehensible.
Baroness Neville-Rolfe
My Lords, I agree that operators of unmanned aircraft must comply with privacy laws, which have significant penalties. Of course, in the wrong hands, these things can be damaging. We are working continuously, as is the CAA, to assess threats and make sure that we do not have the problems described. Obviously, government policy on some of this cannot be divulged, but privacy and taking great care in relation to terrorists and so on are very much on the mind of those developing this important technology.
Baroness O'Neill of Bengarve (CB)
Does the Minister agree that if privacy as well as security is to be maintained it is essential that any unmanned aircraft or drone has an identifier so that people can know whose drone it is and have a comeback?
Baroness Neville-Rolfe
My Lords, all of these unmanned aircraft are subject to the air navigation order and appropriate rules are in place.
Mediterranean: Refugees and Migrants
(10 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Roberts of Llandudno
To ask Her Majesty’s Government what plans they have to restore migrant search and rescue facilities in the Mediterranean.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, the UK has had no involvement in Mare Nostrum, the Italian search and rescue operation in the Mediterranean. Given that search and rescue is a competence of individual member states, the Government have no plans to call for the restoration or replacement of Mare Nostrum. Instead, we will continue to work with the EU and with countries of origin and transit to address the causes of illegal migration and combat people smugglers and traffickers.
Lord Roberts of Llandudno (LD)
Does the Minister agree with Amnesty International, which says that stopping search and rescue in the Mediterranean is causing the loss of thousands of lives? How many men, women and children need to drown before the Government change their policy?
Lord Bates
I reiterate that we are talking about the Italian Government. It is their decision, which they have taken. We all share a concern about the situation and the safety of people in the Mediterranean. We need to take a long, hard look at the organised crime gangs who are trafficking people, pushing them out to sea with very little protection, in unseaworthy vessels, and giving them the telephone number of the Italian coastguard. That is the regrettable and appalling thing about this whole situation.
Lord Hylton (CB)
Do the Government appreciate that it is likely to take months, and even years, to stop the traffickers, to prevent violence both by states and by Islamists, and to provide work for migrants in their countries of origin? Does this not make it essential to have search and rescue now?
Lord Bates
There is a two-pronged approach to this. First, there is Operation Triton, which the Italians started on 1 November; it is different but will tackle a lot of that. Secondly, there is the work that we are doing with our EU partners under the Rabat process and the Khartoum process, trying to tackle and head off the migration in the first place.
Lord Anderson of Swansea (Lab)
My Lords, it is surely immoral not to rescue those in peril of drowning if we have the capability to do so. Yet at the same time we need a coherent and ordered immigration policy, and cannot offer an open door to anyone who reaches our shores. Has an effort been made to tackle this matter at source by reaching deals with the riparian countries on the south of the Mediterranean, to pay them to destroy the ships and prosecute the traffickers? At least then we can try to deal with this matter at source.
Lord Bates
I agree with the noble Lord that it would indeed be immoral and, of course, not to help someone in distress would be in contravention of our obligations under the UN convention on safety of life at sea. The Khartoum and Rabat processes, to which I referred, and the EU mobility partnerships that we have with Tunisia and Morocco, are trying to tackle exactly the issue that he raises.
Lord Avebury (LD)
My Lords, does my noble friend note the comment made by the UN special rapporteur on migrant rights that it is appalling to bank on a rise in the number in people who drown acting as a deterrent? Does he think that the EU views a steep rise in the number of people killed with complacency, if not with satisfaction, because more people are drowning and acting as a deterrent?
Lord Bates
It is certainly not the case to say that the Government have been passive on this. My right honourable friend the Home Secretary had meetings with her Italian counterparts last month, and will meet them again this month. We have extended our offers of support and of course we have looked at the countries from which most of these migrants are coming, namely Syria and Ethiopia. We are putting large sums of money—£700 million in the first instance, £360 million in the second—to try and help people to give themselves a proper life at home.
Lord West of Spithead (Lab)
My Lords, there is a long-standing commitment that mariners have always had to look after mariners in peril at sea, as the Minister says. It is very difficult to see how those in the vicinity can do anything other than help them, whether the ship happened to be British, Italian or whatever. For those who are actually based down there, surely—by UN law—they actually have to give assistance.
Lord Bates
Absolutely, and there is no change. The obligations are there for any military ships or vessels in the vicinity. They know what they have to do in terms of contacting the maritime rescue co-ordination centre and they will be directed to take those people to a safe port or to have those people passed into safe hands.
Lord Elystan-Morgan (CB)
Can the Minister recollect that last Thursday he gave me a very forthright answer to a question as to what the attitude of the commander of a British naval vessel would be if he was aware that there was a refugee ship in peril within range of his ship? I was told indeed that he would most certainly lend all assistance in accordance with the law of the sea and the highest traditions of the Royal Navy. In the light of that most honest answer, what is the point of giving any impression on the part of the Government that we are gibbing in relation to search and rescue?
Lord Bates
The noble Lord is absolutely right that we need to be clear. There is a grave information message we need to get out here that of course there is no change in our humanitarian obligation. The only thing which is changing is that we are putting more money and resource behind it, but those obligations from a humanitarian point of view remain, in the proud tradition of this country and of seafarers.
Baroness Hussein-Ece (LD)
My Lords, my noble friend the Minister mentioned the increase in refugees from, for example, countries such as Syria. In statements that I have seen, Ministers have said that we encourage those people to stay in their own country. The surrounding countries have taken millions and millions of refugees. Turkey took 250,000 Syrian refugees in one week, more than the EU has done in four years. Is it not time that we stepped up to the plate and set an example, and not let people drown in this way?
Lord Bates
That is so, and we have introduced the Syrian vulnerable persons relocation scheme, which is taking some of those—not enough—but of course the EU can do more. We are donating additional funds into that area but there needs to be more done to tackle the instability which is the cause of migration in the first place.
Modern Slavery Bill
Serious Crime Bill [HL]
(10 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Williams of Trafford (Con)
My Lords, these technical amendments relate to the rights of appeal in Scotland against decisions on seizure and forfeiture of substances used as drug-cutting agents. In Scotland, the appeal from the decision of a sheriff under Clause 60 is to the sheriff principal. The Scottish Parliament has recently passed the Courts Reform (Scotland) Act 2014. Among other things, that Act establishes a new right of appeal from the sheriff to the Sheriff Appeal Court and, in the process, abolishes the current right of appeal from a sheriff to the sheriff principal.
Amendments 1 to 5 to Clause 61 accordingly update the avenue of appeal. The consequential amendment, Amendment 10, to Clause 74 is a transitional provision. As it is not known for definite when the Courts Reform (Scotland) Bill will come into force, this amendment provides a mechanism to refer to an appeal to the sheriff principal, if circumstances arise where this is necessary. I beg to move.
Lord Bates
Lord Harris of Haringey
“Protection of children from sexual communications
After section 12 of the Sexual Offences Act 2003 (causing a child to watch a sexual act) insert—“12A Protection of children from sexual communications and from communications intended to elicit a sexual response
(1) A person (“A”) commits an offence where A intentionally communicates with another person (“B”) in the following circumstances—
(a) A is aged 18 or over,(b) either—(i) B is under 16 and A does not reasonably believe that B is 16 or over, or(ii) B is under 13,(c) the content of the communication is sexual or intended to elicit a response that is sexual, (d) subject to subsection (3) below, A’s purpose in sending the communication or seeking a response is sexual.(2) The communication may be in any form including verbal, written or pictorial (which may include still or moving images) and may be conveyed by any means whatever.
(3) A does not commit the offence in subsection (1) above where the purpose of the communication is for the protection of the child to which the communication is sent.
(4) For the purposes of subsection (3), a person acts for the protection of a child if he acts for the purpose of—
(a) protecting the child from sexually transmitted infection,(b) protecting the physical safety of the child,(c) preventing the child from becoming pregnant, or(d) promoting the child’s emotional well-being by the giving of advice and not for a sexual purpose.””
Lord Harris of Haringey (Lab)
My Lords, on Report I posed the question of whether it would be an offence for an adult to elicit from a child a sexual photograph or to send a sexual message to that child. I posed the example of a young girl in her bedroom on her smart phone, sending messages to her friends, one of whom was someone purporting to be a boy who was in love with her who was actually a man 30 years her senior. I asked whether, if she was encouraged, cajoled and coaxed into sending a sexual image of herself, that would be an offence committed by the older man. I posed that question because it was clear that it would be an offence in Scotland but much less clear that it would be an offence in England, Wales and Northern Ireland.
We had a useful and helpful discussion during Report. The Minister made several points during that debate when he stated that he believed that the offence of an adult sending a sexual message to a child was already covered by existing legislation. He stated, for example, that those convicted of an offence under Section 127 of the Communications Act,
“can be made subject to a sexual offences prevention order”.—[Official Report, 28/10/14; col. 1117.]
In reality, it is a little bit more complicated than that. If someone was convicted under the Malicious Communications Act or the Communications Act, the sexual offences prevention order would have to be applied for as a separate process. To apply for it, the prosecution would have to prove that the defendant posed a significant risk of serious harm. The Court of Appeal has had several cases in the past year in which it has criticised the use of sexual offences prevention orders in a number of sexual cases because the threshold of significant risk was not met.
It is not difficult to foresee a situation in which an adult is communicating sexually with a child and that threshold of serious harm has not yet been met. In the early stages of grooming—for example, when an adult may send a sexual message to a child—it is unlikely that he has actually met that threshold of serious harm. That is what the new clause that I propose today is all about. It is about trying to prevent harm before it is caused to the child.
The Minister made reference to the Obscene Publications Act 1959. The hint is in the title—it is the 1959 Act, which would potentially fail to cover a great deal of verbal communications through systems such as telephone, mobile telephone or Skype. Additionally, as new technology advances, new forms of electronic communication will no doubt further supersede what is dealt with in the Act. Reliance on the Obscene Publications Act would result in a person sending a text being potentially guilty but a person talking over the internet not committing the offence.
The Minister asserted that, under Section 10 of the Sexual Offences Act, it is an offence for a person over the age of 18 to cause or incite a child to engage in sexual activity. However, there are many cases where a charge of incitement may not be met. The question is: what is sexual activity and what is being incited?
Baroness Hamwee (LD)
My Lords, as I did on Report, I support the principle of this amendment. Listening to the last example given by the noble Lord—“Honey, you look hot in your bikini”—if I were a mother with a young teenage child who had received that message and I went to the police, showed them the message and was told, “There’s nothing wrong in law here”, I would have less confidence in our legal system.
I am not convinced that a new offence is not needed, as has been argued. I have not looked at Section 78; indeed, I have not done as much detailed work as perhaps I should. Listening to the noble Lord, however, I find quite a difficulty in a “sexual communication” that comes from someone and “sexual response”. It seems that a sexual response is needed for these offences, but that of course that is not at all how the child sees it. Yes, we are accustomed not to seeing but to knowing that there are a lot of photographs around with people topless on beaches, often celebrities seeking to attract attention. I am not sure that I would like to go down the route of trying to analyse their motives.
If there is to be an amendment, it must be right. The worst thing would be if there were inherent problems within it. I do as I did before and I hope it does not provoke teasing from the noble Lord; I assure him that I am trying to be supportive in this. I thank the NSPCC, with which I had the opportunity to meet briefly at the beginning of the week. I understand that it is consulting more widely on this. I do not want to refer to all the points that I have made, either in the previous debate or with the NSPCC, but I am glad to see that it is now suggested that the offence should be put into the Sexual Offences Act 2003, because that gives the context for penalties. I am not sure that there are penalties attached to this amendment.
I see that the words in proposed new subsection (4) come from Section 73 of that Act. I am not sure whether repeating them in a slightly different way in this amendment does not cause a bit more difficulty. In Section 73, they are a defence against aiding, abetting and so on. I think they may be interpreted there not as an exhaustive list, but there is a question in my mind as to whether in this amendment they are an exhaustive list.
Finally, in the context of online grooming, the terminology of “reasonably believe” in proposed new subsection (1)(b) causes me some concern about the evidential problems. Something like “making reasonable endeavours” to establish whether B is 16 or over would better lend itself to giving evidence to the court.
What all this amounts to is not opposition but urging us to get this right. Whether we get it right today or, as I said on Report, by an amendment during the Commons stages of this Bill, I hope that we end up with something that is workable, acknowledges current technology and is not simply defensive of the offences that are on the statute book at the moment. I am usually the first to say that if there is already something that covers this, we should not be looking for something else, but with this issue we should be looking for something else.
Baroness Benjamin (LD)
My Lords, I rise to speak in support of the amendment in the name of the noble Lord, Lord Harris. As we have heard, the amendment is supported by the NSPCC, with which I have had several discussions. The NSPCC believes that the amendment is wholly necessary because it specifically proposes that a new offence be brought in so that it is always illegal for an adult intentionally to send a sexual message to a child because this is another form of child sex abuse. This proposed new clause seeks to protect children from sexual communications.
I spoke in support of the amendment on Report and I remain committed to making it—I repeat—always illegal for an adult to send a sexual message to a child. We have to understand that the current law, a stand-alone offence as part of the Sexual Offences Act 2003, is inadequate in protecting children from online abuse. What is needed is to ensure that the law is absolutely clear that intentionally sending a sexual communication to a child is illegal. This will help prevent abuse escalating and keep children safe online in this new and dangerous world in which they are being brought up. We have to put all the necessary protections in place for every eventuality. We must make absolutely sure that there will be no place for perpetrators to hide.
The Minister’s response on Report perhaps focused too much on adults possessing indecent images of children. That is not what this proposed new clause is concerned with. My noble friend the Minister was correct to assert that if an adult incites and comes to possess an indecent image of a child, legislation such as Section 160 of the Criminal Justice Act would cover the possession of those images. However, this misses the purpose of this proposed new clause. Section 160 of the Criminal Justice Act makes it an offence only to possess indecent photographs of a child. For instance, it would not be illegal for a 40 year-old adult to send a message to an 11 year-old child saying, “I’d like to see a photo of you in your underwear”.
With regard to other legislation, under the Communications Act, whether a message would be deemed indecent or not is a subjective judgment. If an adult sent a message to a child describing in sexually explicit language what they fantasised about doing together, this would clearly be considered indecent and therefore illegal. However, if an adult sent messages such as, “Send me a photo of yourself, honey”, it is not clear that this could be deemed,
“grossly offensive or of an indecent, obscene or menacing character”,
as described in Section 127 of the Communications Act, but, in context, this clearly has a sexual intent. This is the gap that the proposed new clause attempts to fill. Its purpose is to catch offenders before the child has shared an indecent image because when, and if, a child is persuaded to send an indecent image of themselves, it could have devastating consequences for that child. They can become suicidal, start to self-harm and have low self-esteem, and be made to feel ashamed and dirty. This is what the NSPCC has found. I am sure that my noble friend and noble Lords across the House will agree with me about the risks a child faces once an image has been shared online, for it can be spread ever more widely at great speed without the child’s knowledge. We should do everything that we can to stop this behaviour before it happens.
The noble Lord, Lord Harris, has dealt with how the offence is not captured by various other legislation. Rather than restating his points, I will address the Minister’s belief that the Crown Prosecution Service does not currently feel that there is a gap in the law. In 2012, Phillip Pirrie was convicted for arranging to meet and sexually abuse a 13 year-old girl whom he had first contacted online. During the trial, it was revealed that he had previously contacted a 14 year-old girl through an online game. He sent that girl sexual messages. Luckily, these were found by the girl’s father, who took his concerns to the police. Sadly, no further action was taken as a meeting had not taken place between Pirrie and the girl. Under this proposed new clause, Pirrie could have been prosecuted and convicted in respect of the first victim, the 14 year-old. As a result he could have been placed on the sex offenders register and had a civil prevention order put in place. More importantly, this could have prevented him offending against the second victim, the 13 year-old. Think of the pain and suffering that this could have saved.
As I previously stated, last year ChildLine saw a 168% increase in contacts relating to online sexual abuse. This confirms that online sexual abuse is a new blight on our children’s well-being. Clearly we must do more in this area to enable action to be taken against offenders earlier and keep children safe online. What will we do to safeguard and protect our children in this modern world? I look forward to the Minister’s response on that point.
Baroness Howarth of Breckland (CB)
My Lords, I rise briefly to support the amendment of the noble Lord, Lord Harris. I will not go through all the arguments that have been made already. The Minister can easily read the NSPCC submissions, which are extremely pertinent. I will make three very different points.
I know that the Minister is extremely concerned about child abuse generally, and child sexual abuse and its prevention in particular. We are about to embark on a huge inquiry. We have discussed whether an inquiry looking at past abuse might obscure what is happening today. What we must do—I am repeating this and will continue to do so—is spend our time preventing abuse now. The lessons that we can learn from the past will help us, but it is crucial that we prevent abuse now.
I declare an interest as the vice-chair of the Lucy Faithfull Foundation, where grooming was first defined and understood. In relation to grooming, any of the experts will tell you that the perpetrator clears a number of hurdles to reach the full stature, if you like, of a paedophile. The first thing that they do is test whether they can gain the confidence of a child just through kindness, relationship and involvement. As I understand it, none of the current statutes would intervene at the point where a perpetrator sent a message saying, “I am really fond of you, I would like to see you topless or in your underwear”, or “I would like you to talk about sexual things”, or, as in one recent case, “I would like you to do something to your sister in front of me, so that I can see and understand how your relationship is going”. It gets worse as time goes on. As the perpetrator finds that they can cross one hurdle, they then discover that they are enabled to cross the next one, and the next one, until they are meeting children, and until they are fully abusing larger numbers of children. That is the history of grooming; it is how grooming works.
If we are serious about prevention, we need to prevent at that very first point. What the Minister will hear from the police—I am quite sure that he is in discussions—is that they find it quite difficult to sort out how they move forward among the enormously confusing entanglement of present legislation. I simply hope that the Government will have a look at this. I am not a lawyer; I only know what I experience in my day-to-day contact with the Lucy Faithfull Foundation, the NSPCC and other children’s organisations. They feel that not enough is being done, that one single law is needed to make it absolutely clear that we are serious about protecting our children, and that we should have an amendment—if not this one, something like it—to be able to act at the very first point.
Baroness Butler-Sloss (CB)
My Lords, there appears to be a gap in child protection for the reasons that the noble Baroness has just given. I do not want to repeat them because everything she said was entirely accurate and always worrying. One has only to look at the stories that we have been getting around the country, not of historical abuse but of current abuse and abuse in the recent past—not just in the north but in other parts of the country. Sexual communications and the opportunity to encourage children to behave in a way that they think that they are doing to their peer group, is something that really needs to be sorted. I am no expert in this area of criminal law but if this area is not covered, as I understand to be the case, it is a serious matter that should be covered. I therefore ask the Government to look again, whether by means of this amendment or amendment of other legislation. It is not a matter to push into the long grass; it is urgent. If it is not covered, then it is urgent to cover it.
Another matter arises when a child finds that an adult is involved. If, say, this is stopped and the child finds that they were communicating not with a friend but with a grown-up, the embarrassment and distress to the child of having shown a tantalising photograph of herself or himself—remember boys are also vulnerable —has led children to commit suicide.
Baroness Smith of Basildon (Lab)
My Lords, those who have a sexual, and therefore illegal, interest in children know the law. They know the gaps and complexities in the law and rely on them, given the difficulty and lack of clarity, to set themselves on a path that may not start with, but certainly ends in, abuse. After a typically thoughtful, understated and well argued case from my noble friend Lord Harris of Haringey, I was rather surprised that the Government did not bring back an amendment today, following the meeting with him.
However, today the point was made with absolute clarity across the House: there is a gap in the law; a point is missing. The noble Baroness, Lady Howarth of Breckland, referred to communications between young people. On Report, I referred to a case of which I was aware, in which an 11 year-old girl was communicating with someone she thought was another 11 year-old girl, and sharing the kind of confidences that 11 year-old girls share when embarking on and discovering their own sexuality. However, she found out later that it was a 30-plus year-old man who was communicating with her when the relationship was developed.
There clearly is a gap in the law, which needs to be changed. It needs to catch up with what is happening today. The noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth, made the point that abuse is happening now and there is an opportunity here to make changes to the law and do something that will make a difference and protect children today, tomorrow and the day after. I am disappointed that we do not have a new government amendment before us, but I hope that either the amendment from my noble friend Lord Harris will be accepted or we will hear a commitment from the Government to bring something back that addresses this problem, as the noble and learned Baroness said, very quickly indeed.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I thank the noble Lord, Lord Harris, for the way in which he introduced this amendment and, too, noble Lords for their contributions to this debate. In many ways, I thought that this characterised many of the debates we have had, in that—as I am sure my noble friend Lady Benjamin would accept—there is genuine willingness and desire to make sure that all possible loopholes are tightened, and that we take this opportunity to afford every possible protection to the most vulnerable in our society, by sharing information and evidence. I have read the NSPCC’s report and we have talked to the Crown Prosecution Service and to the national policing lead about cases being brought. We will seek to move things forward. If I can, I will comment for the record in response to the very helpful meeting that we had last night with the noble Lord, Lord Harris, and the noble Baroness, Lady Howe. As I am doing so, I will try to touch on some of the points that have been raised.
As the noble Lord, Lord Harris, knows, there is no difference between us in that we agree wholeheartedly that we need to ensure that we have a robust body of criminal law to tackle predatory sexual behaviour by adults against vulnerable children. As I said on Report, this House rightly remains united in its condemnation of the sexual abuse of children. What is more, it is determined to do something about it. I also paid tribute on Report to the National Society for the Prevention of Cruelty to Children, which has proposed this new offence and brought its concerns to this debate.
I shall not repeat the description that I gave last time of all the offences that might be relevant in dealing with this type of behaviour. The House would not thank me for that, because the point is understood. There is a clearer point that the noble Lord, Lord Harris, raised today. However, it may be helpful if I address more specifically a couple of concerns raised on Report by the noble Lord, Lord Harris, and the noble Baroness, Lady Howe.
The noble Lord was keen that anyone seeking to persuade a child to send a naked image of himself or herself should commit an offence. As the noble and learned Baroness, Lady Butler-Sloss, pointed out, this issue affects both male and female children. He was concerned that naked photographs of children might not be caught by the definition of “indecent”. I now have had the chance to look into that particular matter and am pleased to say that the noble Lord’s concerns may be misplaced. Section 10 of the Sexual Offences Act 2003 provides that it is an offence to cause or incite a child to engage in a sexual activity. The noble Lord quoted Section 78 of that Act and that telling word in law, about which, as a non-lawyer, I am trying to get up to speed, although it is a well known test: what could be considered in the eyes of a “reasonable” person, or what people could reasonably conceive of, as sexual intent. Clearly, by any stretch of the imagination, a request to send a photograph of a child would fall within that category of reasonableness. The noble Baroness, Lady Hamwee, also referred to that.
The definition of “sexual” is contained in Section 78 of the 2003 Act. That provides that an act is sexual if,
“it is because of its nature sexual, or … because of its nature it may be sexual and because of its circumstances”,
in which it takes place,
“or the purpose of any person in relation to it … it is sexual”.
In other words, the context is crucially important. Therefore, it is entirely open to the court to conclude that, if a middle-aged man is sitting in front of a computer urging a child to send him a naked photograph—which was an example that the noble Baroness, Lady Smith, gave—or to pose naked before a webcam, his purpose makes the sending of that image by the child sexual, even if the child is not pictured undertaking any overtly sexual activity. The offence can be committed whether or not the victim complies with the request. The courts have convicted on that very basis and imposed substantial sentences of imprisonment; we discussed one case, which was actually a sentencing appeal, where the individual had been sentenced to three years in prison for precisely that offence under the order. In the process, the offender may also commit offences relating to the taking or making of indecent photographs of children.
I repeat my undertaking that the Government are going to take this very seriously. Despite all the legislation that we already have in place, none the less a gap needs to be filled. In particular, we need to explore further how best to deal with contact between a predatory individual and his victim where the messages are sexual in nature but where the victim is not being asked to respond in any particular way. Again, I want to get that wording precisely on the record because I think that is something that we all recognise.
I was particularly interested in the contribution of the noble Baroness, Lady Howarth, who of course through the Lucy Faithfull Foundation does tremendous work in this area. She pointed to the way in which paedophiles prey upon their victims and pass certain stages, and therefore how important it is to be able to tackle things as early as possible. Earlier in the Bill we discussed clauses relating to protection orders and the possession of a grooming manual being an offence. It shows that the direction of travel is recognising that we need to move further upstream in intervening at an earlier stage.
As part of that consideration, the noble Lord, Lord Harris, was kind enough to come to see me yesterday afternoon, together with the noble Baroness, Lady Howe. I was accompanied by my noble friend Lady Williams. I think they will agree that we had a useful discussion, and they have given us much food for thought as the Bill goes to another place. I agreed at that meeting, and I am happy to repeat it here on the Floor of the House, that officials would arrange a further early meeting with the NSPCC to discuss this issue further. The noble Lord is welcome to attend that meeting. We will also explore with the national policing lead and the CPS what additional guidance could be given to the police and prosecutors on the options open to them in tackling such predatory behaviours. My noble friend Lady Benjamin mentioned some scepticism, perhaps, about where the CPS was on this, but it will attend that meeting and I am very happy for her to attend as well. I accept the point that was made; an example was given where the police did not intervene as they could and perhaps should have done in the first instance, which then led to a more serious offence, which is precisely the type of circumstance that we are trying to prevent, and we are united in that. We are very aware of the need to look at this.
We are grateful to the NSPCC for the work it has done in bringing this to our attention. We will have that further meeting and of course there will be that other opportunity, as the Bill progresses through another place, for legislation to be introduced if needed. Of course, this is something that we will be coming back to time and again, particularly as the inquiry gets under way. Without in any way prejudging what it might recommend, it is clear that there is going to be some tightening of the law, probably, in the light of new technology and new evidence that comes to mind.
I say again that I am very grateful to the noble Lord, Lord Harris, for introducing the amendment. As this is possibly the last time I will speak on the Bill, I also pay tribute to all noble Lords who have contributed to its passage, particularly the noble Baroness, Lady Smith, the noble Lord, Lord Rosser, and, of course, the noble Baronesses, Lady Hamwee and Lady Walmsley, who contributed to a reshaping of the Bill.
The large number of government amendments which have been brought forward shows that we recognise the seriousness of this and we are united about it. We want to tackle the issues raised. We are listening and we are responding, and we will continue to do so in this very important area. With that, I wonder if the noble Lord might feel able to withdraw his amendment.
Lord Harris of Haringey
My Lords, I am grateful to all noble Lords who have contributed to this debate. I should express my gratitude to the noble Baroness, Lady Howe of Idlicote, who signed the amendment. She would have spoken to the amendment but she was, as we spoke, moving an amendment to the Consumer Rights Bill. We agreed that I would do this and she would do that, as we both have an interest in the same Bills. I am also grateful to the noble and learned Baroness, Lady Butler-Sloss, to the noble Baronesses, Lady Howarth of Breckland and Lady Benjamin, and even to the noble Baroness, Lady Hamwee, who—despite her desire always to go through the minutiae of an amendment—indicated quite clearly that she supported the principles behind this. I am of course also grateful to my noble friend Lady Smith of Basildon for her support.
I pay particular tribute to the Minister, to whom I am very grateful for the way in which he has approached this. He has shown courtesy, and willingness to listen and to have a dialogue. That bodes well not only for the Bill before us today, but also for other Bills which may come before us with—no doubt—great frequency, given that we are talking about the Home Office. The essence of his argument is that, given what we have at the moment, it is open to the courts to say that the sorts of things we have been talking about are in fact sexual. However, I still hope that some form of words can be found, because I am concerned that if we leave things as they are it will create some lack of clarity as to what is or is not permissible.
Under those circumstances, that may mean that the Crown Prosecution Service—or, perhaps, the police, before they even take it to the Crown Prosecution Service—may set themselves a higher threshold for deciding whether or not they should take action. The noble Baroness, Lady Benjamin, gave us the example of the police having clearly made a judgment that something had not passed the threshold, yet it was on an escalator which could lead to all sorts of other things. In my view, the wording which has been identified as possibly covering these circumstances is convoluted, and it is quite difficult to follow. I would have thought it better for all concerned if the law was clear—which is always a good principle—and made it always illegal to communicate with a child in a sexual fashion or in a sexual way, or to elicit such a sexual response.
However, I am grateful to the Minister for indicating that the Government will take this seriously, and for the commitment that before the Bill progresses through another place there will be further discussions with the NSPCC and the Crown Prosecution Service, involving Members of your Lordships’ House if we are available. I hope that there would also be some involvement of the police, because this may not be an issue only for the Crown Prosecution Service. It may be the issue that has been identified beforehand.
The objective should be clear. We need to be satisfied that the law is clear enough; that people are able to act on it; that they understand what it means; and that it shifts upstream the ability to intervene, so that it is possible to intervene before harm is caused to the child. On that basis and on the basis of the commitment made by the Minister, for which I am grateful, I beg leave to withdraw the amendment.
Baroness Williams of Trafford
My Lords, these drafting amendments simply seek to split Clause 67, which, as amended on Report, now deals with two distinct, albeit related, issues; namely, the extension of the extraterritorial reach of the offences in the Female Genital Mutilation Act 2003 and conferring lifelong anonymity on the victims of FGM.
I look forward to hearing what the noble Baroness, Lady Smith, has to say about her amendment before responding to it. I also understand that the noble Baroness, Lady Meacher, would like to put on the record some further observations about her proposed new offence of encouragement of FGM. For now, I beg to move.
Baroness Smith of Basildon
My Lords, I am sorry not to hear further from the Minister about her amendments. We had a very helpful and productive debate on Report, where it was clear that your Lordships’ House was united in a desire to tackle FGM. The government amendment was welcomed, but it was agreed that the issues raised by our amendments, which I have again tabled today, were both valid and reasonable. There was no policy disagreement; the difference was one of approach and what would be most effective in achieving the aims that we all share.
The noble Lord, Lord Lester, emphasised the need to use civil law and family courts. The noble and learned Baroness, Lady Butler-Sloss, agreed with him and said:
“I would like to see what is good in each set of amendments put together”,
and expressed the hope that,
“the Opposition and the Government will get together … and thrash out what would be the best of everything and get that into one list that could go into Third Reading”.—[Official Report, 28/10/14; col. 1092.]
That explains why we have retabled our amendment here at Third Reading. We felt that the House would want to hear what progress we have made in those discussions.
There were two issues of difference between us and the Government. I say “difference” rather than “disagreement”, as the whole approach on this matter has been consensual. Our intention in tabling amendments is to ensure that the legislation, and its application, is the best it can be. That is why we sought advice not just on policy but from leading practising lawyers in this area. I put on record my thanks and appreciation to Kirsty Brimelow from Doughty Street Chambers and the Bar Human Rights Committee and Zimran Samuel from 42 Bedford Row Chambers. Their considerable practical experience and expertise have been of enormous assistance in understanding all the implications of the proposed legislation. We are grateful to them also for attending the meeting we had with the Minister and her officials. I am also grateful to Catherine Meredith of Doughty Street and Dexter Dias of Garden Court Chambers. I am not a lawyer, but I felt that I needed to be absolutely clear on the implications of the amendments before us—not just how they would be implemented in theory but how much difference they would make in practice. There is old saying: in theory, theory and practice are the same, but in practice they are often different.
As legislators, we must be concerned about practice— the very point made by the noble Lord, Lord Lester, and the noble and learned Baroness, Lady Butler-Sloss— when debating the use of civil law. There are two issues of difference, both relating to the Female Genital Mutilation Act 2003. We welcomed the Government’s support for our calls for FGM protection orders and were grateful to them for bringing forward their own amendment on Report. The issues of difference that merited further consideration were highlighted by the Bar Human Rights Committee, whose members proposed such an order in the first place and are experts in this area.
The first issue relates to where the orders sit in relation to civil and criminal law, and which Act the amendment relates to. It might seem just an academic argument, but if that were that case, I would not raise it today in your Lordships’ House. The 2003 FGM Act, which the government amendment seeks to amend, is a criminal statute and not necessarily familiar to family law practitioners. The Family Law Act 1996, on the other hand, is their first port of call. Forced marriage protection orders, which are used all the time in the family court, are in the Family Law Act and have been successful. Having FGM orders also in the Family Law Act would mean that they would sit beside and complement the existing regime for the protection of children in the Children Act 1989.
I appreciate that the Government’s proposal remains a civil order, but it is a civil order within criminal legislation. Those who are involved in family courts told us of the practical reasons why not all family court lawyers would know, understand or appreciate that they should also look to criminal law statutes for civil measures.
There is the issue of the deterrent factor for those whom we want to come forward, when a civil measure lies within criminal law. The difference may be understood by criminal lawyers or across the Dispatch Box in your Lordships’ House, but it is not necessarily understood by those whom the orders seek to protect.
I totally understand that from the Government’s point of view it makes policy sense to have all the legislation relating to FGM in one place. It sounds logical. But when those who will use this law, and who really care that we get it right, tell us that it could make application for and gaining of an FGM order harder and therefore less likely, I feel obliged to take their views and experience into account. What matters is what works in practice.
The second issue is about the definition. As I explained in Committee, the government amendment uses the definition in the 2003 Act. The Government believe, as was the intention when we reintroduced the legislation in 2003, that this covers reinfibulation. I am not going to test your Lordships’ House again with an exact explanation of what is involved. Last time, “Today in Parliament” put out a warning before I spoke, and gave the programme a G certificate, standing for guidance. I think that is the first time that that has happened, but it does convey some of the brutality and horror of what we are talking about.
The law was intended to include reinfibulation. Any definition or interpretation should include reinfibulation, which involves unnecessary and non-medical restitching to reclose the female genital mutilation following childbirth. However, the Bar Human Rights Committee and Doughty Street lawyers tell us that there is some misinterpretation. That is why we use the World Health Organization definition instead. That would ensure that our law is consistent with recognised international standards and understandings and clarifies any existing confusion around offending conduct such as reinfibulation.
I was reassured on Report by the willingness of Ministers to discuss this further and, as a result, I agreed to withdraw our amendments. The lawyers who advised us attended the meeting with the noble Baroness and her officials. We were looking forward to the meeting, and we were optimistic that we would make the kind of progress that the noble and learned Baroness, Lady Butler-Sloss, and others, had wanted us to make. However, I have to tell your Lordships’ House that we are very disappointed with the outcome. It appeared to us in that meeting that the Government were not prepared to take on board any of the points raised by us or, more importantly, by the barristers who deal with this issue on a regular basis. On the issue of definition the Government are now concerned that such clarification as we have called for could affect any existing or current cases. I am surprised that that was not mentioned on Report. That assessment is questioned, including by senior lawyers who we have spoken to. Perhaps the noble Baroness and I could pursue that at another time.
No one is suggesting that the law is wrong; there is a problem with interpretation. When the Royal College of Midwives and the Royal College of Obstetricians and Gynaecologists say that the definition does not include reinfibulation, that seems to me to be an excellent case for clarification. Despite the clear will of your Lordships’ House that such discussions should take place with the intention of ensuring that whatever was brought forward works well in practice, I deeply regret that I do not consider that we had productive discussions. The Government clearly have no intention of making any modifications or improvements in this area.
I do not intend to press the amendment to a vote. The government amendments are not wrong, but they could be better. We believe that this is a lost opportunity, and I ask the following questions.
First, can the Minister tell us what the Government will do to raise awareness among practitioners and the public that these orders exist? Secondly, will she agree to report to Parliament on the number of orders that have been made after, for example, one year of operation —although that might of course be under a different Government—so that the effectiveness can be considered? Thirdly, will she clarify the legal aid position? My understanding is that legal aid will be made available because these are civil FGM orders, even though they sit within criminal legislation. Without such legal aid, these orders would fail. How does the Minister intend to make that clear, or is my understanding of legal aid wrong? Fourthly, will the Government consult on the interpretation of the definition of FGM?
While we are disappointed that we do not have the best outcome, we feel that we have done all we can to make the case. The proposals from the Government are important, they are a significant improvement and we want to see them be as effective as possible.
Baroness Meacher (CB)
I am most grateful to the Minister for tabling Amendment 7, which enables me to speak briefly about the need to create an offence of encouragement of female genital mutilation, which we discussed on Report. I want to thank the Government for agreeing to have further discussions about the new amendment, drafted by Dexter Dias QC, and about the new evidence from our QC adviser. To be frank, that evidence is extremely powerful and it is a pity that we did not have access to these arguments earlier in our debates. I hope the Government will table the Dias amendment, or something very like it, in the other place, but I understand that they are in no position to make any commitment of that kind at this stage.
I will not repeat the arguments we rehearsed on Report in favour of focusing attention upon those who encourage the practice of FGM rather more than upon the families who practice this appalling form of child torture. I want to put on record only that the Dias amendment would provide an effective legal intervention because it is modelled on what is known to work: comparable powers used to combat the dissemination of encouragement to commit acts of terrorism. FGM is of course an entirely different crime from terrorism but the model for the two types of crime is similar.
The Dias amendment recognises the awful social pressure that parents are placed under by some communities. In traditional societies, which are intensely hierarchically structured, elders and preachers exert enormous influence. I think that most of us are not familiar with that or have not experienced it. We believe that the encouragement amendment will complement the important community work being done to dissuade preachers from encouraging FGM.
Mr Dias QC refers to our international obligations, which more than justify the creation of an offence of encouragement of female genital mutilation to cover anyone who makes a statement that is likely to be understood by some or all of the members of the public to whom it is published as direct or indirect encouragement or other inducement to them to mutilate the genitalia of a girl. That is the essence of his amendment. These international obligations include: the Convention on the Elimination of All Forms of Discrimination against Women of 1979; the UN Convention on the Rights of the Child of 1989, under which the UK has positive obligations in international law to ensure that children are not subjected to cruel, inhuman or degrading treatment; and, finally, the UN Convention Against Torture of 1984, which has been ratified by the UK.
Mr Dias presents four pages of powerful arguments in support of the amendment he has drafted, which I hope very much that the Government will consider most seriously, as I have indicated. I will not repeat all these arguments here today—this is, after all, Third Reading—although I believe that your Lordships’ House would find them extremely persuasive. The only remaining point I want to make is that I am advised that our strong international obligations justify overriding Article 10 of the Convention on Human Rights, the right to freedom of expression. This is a very important point, particularly because we all wish to preserve that right whenever it is appropriate. All that we are saying is that in this very specific case, it is appropriate to override it.
Again, I give my thanks to the Minister for providing this opportunity for me to reiterate certain points. I hope that the Minister can confirm to the House today the Government’s agreement to have further discussions on this important issue.
Baroness Butler-Sloss
My Lords, had the noble Baroness, Lady Meacher, tabled this amendment I would have put my name to it. I do not want to take up time at Third Reading to repeat what the noble Baroness has said, but I ask the Minister to be in touch with those in the Home Office who will be dealing with the Bill in the other place, and not to disregard what she has said. It is really worth having a further look at this serious matter. There are communities which, as the noble Baroness, Lady Meacher, has said, are different from most of us and where there is a degree of not just influence but power among certain elements of those communities. That leads to this appalling FGM taking place on children in this country. I am also supportive of what the noble Baroness, Lady Smith, said. This is a good part of the Bill and the Government are to be congratulated on it. However, they could do better.
Baroness Hamwee
My Lords, the Government have made enormous progress in addressing the legislation so well, to the extent that a Government can in practice respond to FGM. Like others, I encourage the filling of a gap which seems to have been identified. I do not want to say more this afternoon but I wanted to put on record my support for the noble Baroness and my admiration for her keeping going on this issue.
Baroness Williams of Trafford
My Lords, I thank all noble Lords who have taken part in the discussions to enable the progress mentioned by my noble friend Lady Hamwee to take place. I think we all want the same thing; there is a slight difference of opinion in how we get there. I thank specifically the noble Baronesses, Lady Smith and Lady Meacher, and my noble friend Lady Hamwee for the time they have taken in the discussions.
The noble Baroness, Lady Smith, raised two substantive points. The first concerned whether there would not be advantages in placing the provisions in respect of FGM protection orders in the Family Law Act 1996 rather than in the FGM Act 2003 and the second concerned whether the statutory definition of FGM should be updated expressly to refer to reinfibulation. I will take the two points in turn. I am very grateful to the noble Baroness and her advisers for discussing with me the issues she raised on Report. On the first point, I believe that the noble Baroness accepted that the Government’s provisions would allow proceedings for FGM protection orders to be heard in the family court or in the family division of the High Court as family proceedings with the full range of the court’s powers. However, she was concerned that civil or family law practitioners might not be able to find the FGM protection order provisions in a criminal statute and that victims would be deterred from availing themselves of them.
As its Long Title indicates, the FGM Act 2003 restates and amends the law relating to FGM. It is not exclusively a criminal statute nor do I think that is a particularly helpful label. We remain of the view that is sensible to have all the provisions relating to this area of the law in one place—that point was made on Report. We will work with the legal profession and others to ensure that the FGM provisions in the Bill are widely publicised when we come to bring them into force. I think this is crucial because it is not just the law but the reinforcement and the engagement with communities that will be so important.
With regard to the definition of FGM, I also had a helpful discussion with the noble Baroness, Lady Smith, and her advisers on whether there should be an explicit reference to reinfibulation in the FGM Act 2003. I have tried to persuade the noble Baroness of the Government’s firm view, which I set out on Report and reiterate today, that reinfibulation is already covered by the wording of the 2003 Act. As infibulation is an offence under that Act, so is reinfibulation. That reinfibulation or resuturing is an offence is clearly stated in the multi-agency practice guidelines on FGM and in the guidance of almost all of the relevant royal colleges. There may of course be a need to communicate this point to practitioners more effectively—I think there will be—but we do not accept that there is currently any need to clarify the law.
The noble Baroness also asked about the legal aid position. The Government are giving this further consideration and will clarify the position on legal aid in due course. The noble Baroness also asked whether there would be a report to Parliament on FGM protection orders after one year. We expect that the provisions of this Bill will be subject to post-legislative scrutiny in the normal way. We will ensure that our report on the working of the Bill gives figures as to the number of FGM protection orders made. I think that will be very important. It will, of course, be open to any Member of your Lordships’ House to table a Question at any time seeking such information.
I will now respond to the points made by the noble Baroness, Lady Meacher. Again, I am grateful to the noble Baroness for the constructive way in which she has pursued her and the Local Government Association’s campaign for a new offence to outlaw statements that encourage the promotion of FGM. As I indicated on Report, the Government remain to be persuaded of the case for such an offence. The Government believe that the provisions added to the Bill at Report stage are a far more targeted, and therefore more effective, way of dealing with the problem.
Of course, as well as this now strengthened body of criminal and civil law, there is more that can and should be done to overcome the culture and attitudes that allow FGM to persist. That is why, at the Girl Summit in July, we launched a declaration condemning FGM, signed by more than 200 faith and community leaders from all major religions. The faith leaders have declared that FGM is not required by their religions and is a form of child abuse. The declaration has it made clear that all religions will work together to end FGM for good. The support from faith leaders has been overwhelming and the Government are committed to turning these signatures into further action through education and community engagement, which, as I have said, are crucial. Our aim must be for all these powerful voices from authoritative and respected local leaders to drown out the minority, to whom the noble Baroness referred, who advocate and encourage FGM.
Finally, we have real concerns about the necessity and proportionality of an offence of encouraging the promotion of FGM, given that it would engage Article 10 of the European Convention on Human Rights which protects freedom of expression. None of us would condone such statements, but it does mean that we have to tread carefully before introducing what amounts to a speech crime. The noble Baroness has briefly touched on these points and has referred to the advice she has recently received from Dexter Dias QC. I am ready and willing to meet both the noble Baroness and Dexter Dias to discuss these issues further. I hope that the offer of a further meeting will go some way to reassure the noble Baroness that we will continue to explore the issues she has raised, although I hope she will understand that I cannot offer her any commitment to bring forward a government amendment on this matter during the remaining stages of the Bill.
I say again that the whole House is united in seeking to eradicate the vile practice of FGM both from this country and across the globe. Your Lordships’ House is sending the Bill to the Commons with a powerful suite of new measures to help achieve that objective. I hope that, having heard the Government’s reasons for the approach we have taken, particularly as regards FGM protection orders, the noble Baroness, Lady Smith, will not press her amendment—as she has stated she will not—and will join me in commending the government amendments to the House.
Lord Bates
Lord Bates
“( ) Before the day on which section 103 of the Courts Reform (Scotland) Act 2014 (abolition of appeal from a sheriff to the sheriff principal) comes into force—
(a) the reference to the Sheriff Appeal Court in subsection (3)(b) of section 61 is to be read as a reference to the sheriff principal;(b) the references to the court in subsections (5) to (7) of that section are to be read as including references to the sheriff principal.”
Lord Bates
Lord Bates
Infrastructure Bill [HL]
(10 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
17:11 - Division on Amendment 86A - Ayes: 195 / Noes: 235 - Amendment 86A disagreed.
Lord Adonis
“National Infrastructure Commission
There shall be an independent National Infrastructure Commission.”
Lord Adonis (Lab)
My Lords, I thank Sir John Armitt for his excellent work in leading the independent review for the Labour Party on long-term infrastructure planning. I also thank Robbie Owen of Pinsent Masons for his invaluable work in preparing a draft national infrastructure Bill since the publication of the report. We have been consulting on the draft Bill and have received a positive response from across the infrastructure sectors. The draft Bill runs to 26 pages. Rather than propose all 26 pages as amendments, the House will be grateful that I have purposefully kept this proposed new clause concise and to the point. However, if the Minister tells us that he is prepared to accept the principle of an independent infrastructure commission, we would be delighted to discuss the provisions of the draft Bill with him with a view to subsequent legislation on a cross-party basis.
The case for an independent infrastructure commission is clear. The UK has historically, over many decades, underinvested in key infrastructure, which is why the World Economic Forum ranks the UK 27th for the overall quality of infrastructure in its 2014-15 Global Competitiveness Report. Our long-term infrastructure planning is weak. There is far too much stop-start decision-making and investment, and forging a political consensus in key areas such as airports and energy has proved notoriously difficult. The role of an independent commission would emphatically be not to replace Government, Parliament and the democratic process, but to inform and strengthen them. Under the Armitt plan, an independent national infrastructure commission would carry out an evidence-based assessment of the country’s infrastructure needs over a span of 25 to 30 years, focusing on nationally significant infrastructure —as defined by the Planning Act 2008—and consulting relevant stakeholders. The key economic infrastructure sectors—energy, transport, water, waste and tele- communications—would be considered in parallel, allowing the interdependence between sectors to be thoroughly examined. Projections of economic growth, population and technological change would inform this cross-sector approach. Environmental issues and obligations would be respected and recommendations made by the commission would need to be consistent with achieving the UK’s long-term climate change targets. The result of the commission’s considerations would be a national infrastructure assessment submitted to the Chancellor, who would have a statutory duty to bring it before Parliament within six months, accompanied by any amendments that the Government might propose. We anticipate that the first assessment would be produced within three years of the establishment of the commission.
The national infrastructure assessment would therefore come forward with the Government’s full authority. Ministers would not be bound by the independent commission but changes made by the Government to the commission’s assessment would be clear and transparent and subject to full public and parliamentary debate. The plan would be fully updated every 10 years but it would be open to the Government or a new Government to seek earlier reconsideration, again on an open and transparent basis. The assessment would be debated and voted upon in both Houses. If approved, there would then be a 12-month period in which individual government departments would be required to produce sector infrastructure plans outlining the specific schemes and projects that the Government would promote to meet the needs identified in the assessment. Proposed sources of funding, timeframes for project implementation and preferred delivery vehicles will be required in the plans in order to provide real delivery momentum, credibility and confidence for investors.
Before a vote on each sector plan in Parliament, the commission would provide a statement commenting on the consistency of the Government’s proposals with identified infrastructure needs, highlighting areas where departmental sector plans fell short, which together with the 12-month deadline for producing the plans would act as a significant new discipline for Government to get on with implementation and delivery. Together these sector plans would form a national infrastructure plan for the UK—not a wish list like the current national infrastructure plan, but a statement of priority national projects with key milestones, delivery targets and vehicles and sources of funding set out in each case.
We have shown in recent years that we can deliver on major national infrastructure. The Olympics were delivered on time and on budget and the Crossrail project continues to progress well. Financial institutions are generally keen to invest in British infrastructure so long as risk and return are well balanced, but in key areas decisions have not been timely and investment has been poorly planned, inefficient and inadequate. To take just transport, the history of the railway system and airports in the south-east of England over the past 50 years is a running commentary on the failure of long-term strategic planning. There is a real danger that energy, water and flood prevention infrastructure could soon become so. The problem clearly lies with the quality and timeliness of planning and political decision-making as much as with the delivery. The current Davies commission on airports is a kind of mini-infrastructure commission, set up precisely because of the failure to resolve airport capacity issues in south-east England over the past 15 years under both this and the last Labour Government. We are proposing a similar approach applied more broadly.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Lord Ahmad of Wimbledon) (Con)
My Lords, first, I thank the noble Lord for his amendment, which allows us to outline again the Government’s position on national infrastructure. I must admit that when he started talking about the Armitt review, I was concerned for a moment, as I was settling down, as to whether the word was Armitt or Ahmad. That threw me a bit—but we are clear which report we are talking about here.
We believe that the national infrastructure plan already delivers unparalleled levels of investment. The Government recognise—and the noble Lord acknowledged this—that infrastructure projects have been delivered on time and on budget. He referred to the Olympics. It is noteworthy that the person responsible for delivering the Olympics on time and on budget is the current Minister for Infrastructure in our Government, my noble friend Lord Deighton. I believe that all noble Lords will agree that he has great expertise in this area.
Of course the Government recognise the importance of the long term in looking at infrastructure investment. Investing in infrastructure is a central part of the Government’s long-term economic plan to build a stronger and more competitive economy. For this reason, the Government have introduced the national infrastructure plan, which has brought together our approach to investing in energy, transport, telecoms, water and waste networks into one place. This has brought a step change in delivering UK infrastructure. We are introducing an ambitious new energy strategy to incentivise additional electricity capacity for the UK and support low-carbon electricity generation. In road and rail networks, we are seeing new investment at rates not known for several decades. Our plan provides sound justification for infrastructure projects that have secured buy-in from a broad range of stakeholders.
We have set out long-term capital settlements to align with the national infrastructure plan. These commitments have led to new investment out to 2021, in sectors such as roads and flood defences, and long-term funding plans for projects such as High Speed 2. This has all helped to ensure stability and continuity of infrastructure investment in the decades to come.
I turn to the issue of the independent infrastructure body. The Government disagree with this amendment and have reservations about introducing an independent body without a clear understanding of the impacts of the change. Failure to understand this would create greater uncertainty and risk the successful delivery of UK infrastructure. We believe that resourcing requirements to support a commission have not been fully established or costed. Establishing a new authority for infrastructure would involve significant complexities and would distract from the business of providing the infrastructure that the country needs now and in the future.
It is essential that the Government focus on delivery. The central issue is to ensure that the UK has a robust plan to address the challenges facing our networks in the future. The Government have developed a strategy to meet current and future demand through the renewal of existing infrastructure and to grow a global economy with modern infrastructure networks. In doing this, we have sought to address climate change and energy security. This investment is vital for future economic growth. However, it is not clear how introducing a national infrastructure commission would address these pressing issues.
The Government already have a strong track record in major infrastructure delivery. While a national infrastructure commission is an untested and, as yet, unproven idea, the Government take delivering infrastructure extremely seriously. The latest infrastructure pipeline shows that £383 billion of investment is planned for infrastructure networks over the course of the next Parliament and beyond. The noble Lord mentioned specific transport projects. We have had 45 major road and local transport projects since 2010, and the start of construction on flagship projects, such as Northern Hub and the Mersey Gateway Bridge, as well as substantive progress on Crossrail, provides good examples. In addition, more than £45 million has been invested in electricity generation networks between 2010 and 2013 and contracts have already been signed under the electricity market reform, with a further allocation currently under way. The UK is rated as the most energy-secure country in the EU and is fourth in the world.
I believe that we are in a good place when it comes to infrastructure and investment in infrastructure for the current, medium and long term. With the reassurances I have provided, I hope that the noble Lord is minded to withdraw his amendment.
Lord Adonis
My Lords, I am grateful to the Minister for his response. He offers me a tantalising prospect that, if we were to rename the Armitt report the Ahmad report, then he might be prepared to accept the amendment. I offer him that potential deal across the Dispatch Box, though Sir John Armitt might want some hybrid name attached to the report in consequence.
I am disappointed by the response of the noble Lord. In many other areas, such as fiscal and competition policy, we have independent bodies which advise Ministers. Looking at the history of this country over the last two generations, it is clear that we have had serious problems in the planning of our national infrastructure. This is not just in bringing objective evidence to bear on the debate, but in the establishment of cross-party consensus in areas of high priority. We believe that a commission of this kind could significantly contribute to the process.
The area I know well—transport—is a testimony to the problems of failure to address long-term infrastructure planning on an independent and consensual basis. Airports policy has been a yo-yo since the 1960s. There has been stop-start on Maplin, then at Heathrow, and it has taken 15 years to make decisions about increased airport capacity in the south-east of England. Electrification of the railways has been delayed for the best part of a generation because of the lack of any long-term plan. The noble Lord mentioned HS2 and I am glad that a cross-party consensus has been reached on it. However, it was only five years ago—a generation after most of continental Europe and large parts of Asia started to develop high-speed rail networks—that we even started to consider the potential for high-speed rail in this country because there was no medium and long-term planning.
The Minister mentioned roads and the roads programme. As many noble Lords with major road developments in their areas know, this is a classic case of stop-go. Every time there is a downturn, there is a massive slashing of projects, only for them to have to be revived again a few years later at significant additional expense because there is no agreed medium-term plan. In 2010, when the present Government came in, there were huge reductions in the roads programme for strategic roads, which have since had to be partly reinstated. A system of national infrastructure planning of the kind that we propose could only strengthen the bringing to bear of objective evidence, strengthen cross- party consensus and give a louder voice to capital spending and infrastructure projects within the government machine itself.
The noble Lord referred to the resourcing requirements of the commissioners, but they would of course be a fraction of the cost of the projects themselves and there are already significant staff who develop infrastructure in individual departments. This would enable them to be pulled together to operate more effectively with some clear central direction.
It is only a matter of time before a commission of this kind is established. As I said, in so many other areas of critical policy, the bringing to bear of expert advice reporting to Ministers and Parliament to provide a basis on which decisions can be taken has been a course that has been followed. I believe it will be followed in due course in the case of infrastructure. I would therefore like to test the opinion of the House.
Lord Adonis
“National infrastructure projects: new towns
(1) The objects of a development corporation established for the purpose of creating a new town shall be to secure the physical laying out of infrastructure and the long-term sustainable development of the new town.
(2) In this section, “sustainable development” means managing the use, development and protection of land and natural resources in a way which enables people and communities to provide for their legitimate social, economic and cultural wellbeing while sustaining the potential of future generations to meet their own needs.
(3) In achieving sustainable development, development corporations should—
(a) positively identify suitable land for development in line with the economic, social and environmental objectives so as to improve the quality of life, wellbeing and health of people and the community;(b) contribute to the sustainable economic development of the town;(c) contribute to the cultural and artistic development of the town;(d) protect and enhance the natural and historic environment;(e) contribute to mitigation and adaptation of climate change consistent with the objectives of the Climate Change Act 2008;(f) promote high quality and inclusive design;(g) ensure that decision-making is open, transparent, participative and accountable; and(h) ensure that assets are managed in the long-term interest of the community.(4) In this section “infrastructure” includes—
(a) water, electricity, gas, telecommunications, sewerage and other services;(b) roads, railways and other transport facilities;(c) retail and other business facilities;(d) health, educational, employment and training facilities;(e) social, religious, recreational and cultural facilities;(f) green infrastructure and ecosystems;(g) cremation and burial facilities; and(h) community facilities not falling within paragraphs (a) to (f); and“land” is defined as including all the matters set out in the definition of “land” in Schedule 1 to the Interpretation Act 1978, and also housing including (where the context permits) any yard, garden, outhouses and appurtenances belonging to, or usually enjoyed with, the building or part of building concerned.”
Lord Adonis
My Lords, the building of new towns and major urban extensions is a critical national issue in the face of Britain’s acute housing shortage. The designation of Ebbsfleet as a new town and the recent Wolfson Prize competition for a new town scheme demonstrates the enthusiasm and capacity that there is for developing the concept in modern conditions. All three of the major parties in the House are committed to new town or garden city developments, and I take these to mean the same thing, given the importance of green and sustainable development as part of any new town or urban extension.
This amendment intends to capture the spirit of the post-war rebuilding of the country that was spurred on by the original New Towns Act 1946, creating places that today are part of the fabric of our country, such as Milton Keynes, Stevenage and Welwyn Garden City. However, although previous new town legislation provided powers to deliver new towns, the towns that were built did not always conform to the highest design and quality standards. The objectives set out in this amendment update the existing legislation in the New Towns Act 1981—which has barely been used—to ensure protection for the natural and historic environments, to require high-quality and inclusive design and to contribute towards a low-carbon future. The aim is that no part of a new town will be eligible for the Carbuncle Cup, an annual award from Building Design magazine for the ugliest building in the United Kingdom completed in the last 12 months.
Developing places in which people love to live is a topic gathering increasing attention as we look to substantial new settlements. The winner of this year’s Wolfson Prize, David Rudlin, proposes a six-point “social contract” for the development of garden cities. The participative decision-making proposed in this amendment is reflected in Mr Rudlin’s winning entry, which proposes that existing towns and cities should be able to bid for new garden city status to build substantial high-quality and sustainable urban extensions. This includes not only high quality standards, but the requirements that new garden cities include major institutions of learning; that they be well connected by public transport and cycleways; and that for every acre of land developed, another will be given back to the city as accessible public space, including forests, lakes and country parks.
When my noble friend Lord McKenzie of Luton raised in Committee this issue of promoting sustainable and liveable communities in new towns, the government response was odd. The noble Baroness, Lady Stowell, said it was “absolutely essential” that good-quality design and the other key elements of the amendment—open decision-making, cultural and artistic development, and enhancement of the natural and historic environment—be built into new town development, but the Government were worried that to say so explicitly in statute would be “unhelpful”. But how can it be unhelpful to specify things that are so essential but are not in fact contained in the New Towns Act 1981? If they are not specified, that could lead to what David Rudlin calls “mere dormitory suburbs”.
When the Government say it is unhelpful to specify essential features of new towns, I believe they are confusing being concise with being brief. Being concise shows an excellent grasp of the issue, while being brief can demonstrate a lack of understanding of an issue. This amendment clearly and concisely prescribes the factors that development corporations should consider to achieve sustainable development, from environmental considerations to economic ones. The amendment is therefore helpful, not unhelpful. If the Government are to object on the grounds of brevity, I ask them: which factors set out in the amendment do they think should not always be considered when building sustainable new communities? I beg to move.
Lord Jenkin of Roding (Con)
My Lords, I will be brief. The two amendments—the one we have just voted on and the one just moved by the noble Lord, Lord Adonis—are starred amendments. It is treating this House with contempt to raise two serious issues at the very last moment for consideration in today’s business. I am not in the least surprised that in the previous debate only the noble Lord and my noble friend Lord Ahmad spoke. No one had a chance to consider what it was about and take advice. Now we have another one.
This is an important issue. As a former Environment Secretary, I dealt with planning matters, and have lived near some of the post-war new towns. I will not weary the House by repeating what I said in Committee about the appalling mistakes made, for instance in Harlow, which turned out to be a byword for the misery of large numbers of citizens who moved from the city centres out to a town that was full of lakes, parks and everything but failed to have any sense of community at all—certainly for decades. I do not in any way underestimate the need for substantial improvements in the system, and I like to think that in recent developments there have been considerable improvements; we have not had a repetition of those experiences.
However, these are important matters and one has to ask oneself: why did the noble Lord leave it until only yesterday to table this amendment and asking my noble friend to give a considered view of the matters that he raises in it? I say again: it is treating this House with contempt.
Lord Adonis
I should point out to the noble Lord that this amendment was tabled and debated in Committee.
Lord Jenkin of Roding
Why leave it until the last moment on Report? Why did he not put it down it a week or 10 days ago, when most of the other amendments were tabled, so that people would have a chance to look at it and consult? That is my complaint. I have great respect for the noble Lord’s ability, but sometimes he gives the impression that he walks on water.
Lord Ahmad of Wimbledon
My Lords, I thank my noble friend for his intervention and the noble Lord for his amendment. I feel somewhat spiritually awakened by my noble friend’s final comment about walking on water. I hope I can provide clarity on why the Government are not in a position to accept the amendment at this time.
I shall start with our common ground. I agree wholeheartedly with the noble Lord, Lord Adonis, that creating well designed, sustainable communities should be at the heart of any new development. In Amendment 86B, tabled by the noble Lord, two main objectives are proposed for a development corporation to be established for the purpose of creating a new town and for the physical laying-out of infrastructure and long-term sustainable development of the new town.
However, I do not think that prescribing the objects of a new town development corporation in detail would help to achieve that objective in a way that allowed for sufficient flexibility locally. There is much to be said for the simplicity of the current objective of new town development corporations, as indeed set out in statute: to secure the laying out and development of the new town.
The amendment proposes that sustainable development should be included in the objects of new town development corporations. Let me emphasise that the Government strongly support the principle of sustainable development. Indeed, that principle is central to the document National Planning Policy Framework, which provides a clear view of what sustainable development means in practice. We believe that creating an additional statutory definition of sustainable development could serve to reduce that very clarity.
I note that no new town development corporations have been created since 1970. However, I am clear that any future new town development corporations, as well as urban development corporations, such as the one the Government are proposing to establish at Ebbsfleet, should have a strong focus on securing sustainable development in a way that reflects local circumstances and needs. I look forward to Her Majesty’s Opposition supporting the creation of the new town at Ebbsfleet, as we seek to establish it in another Bill.
I hope that the clarity I have provided, with brevity, gives the noble Lord sufficient comfort to withdraw his amendment.
Lord Adonis
My Lords, I am grateful to the noble Lord for putting on record the Government’s commitment to sustainable development and high-quality design, which is of key importance.
If I may, I shall respond further to the noble Lord, Lord Jenkin. The amendments were tabled on Monday, which was the day before yesterday, so there was certainly time for noble Lords to engage fully with the issues—and, indeed, for the noble Lord to have read the Armitt report, which was published some months ago. It is not a recent document, by any means.
Lord Ahmad of Wimbledon
They say, “Once a Whip, always a Whip”. We are on Report, and no other interventions would be appropriate.
Lord Adonis
I was very willing to give way to the noble Lord, because I did mention him. I think that I had a right of reply to his points, given that he said there had been almost no notice of these amendments.
Amendment 86B was tabled by my noble friend Lord McKenzie in Committee—it is exactly the same amendment. The reason we regard it as so important that the law takes account of the issues specified in the amendment, that sustainable development should,
“contribute to the cultural and artistic development of the town … protect and enhance the natural and historic environment … promote high quality and inclusive design … ensure that decision-making is open, transparent, participative and accountable … and ensure that assets are managed in the long-term interest of the community”,
and so on, is precisely because of the point that the noble Lord, Lord Jenkin, raised: our last experience of developing new towns in this country was not wholly happy. There have been many very positive elements to the new towns and most of them now function extremely well. However, in some cases the quality of the initial design was not high enough. The Minister said that no new town development corporations have been set up since 1970, but we are just about to begin the process of developing new towns and major urban extensions again. The Government have named Ebbsfleet as the first. It is very likely that others will follow, given the need at least to double the rate of national housebuilding. Therefore, it seems to us, and probably to most people in the House, that having a proper set of criteria for the development of new towns is timely. If it cannot be done in this Bill—and we do not intend to press this amendment today—it should be done before we embark on the next new era of garden city development. I beg leave to withdraw the amendment.
Baroness Whitaker
“Sustainable development and design
In section 10(3) of the Planning Act 2008 (sustainable development), omit the words “the desirability of”.”
Baroness Whitaker (Lab)
My Lords, Amendment 87 is in my name and those of the noble Lords, Lord Jenkin of Roding and Lord Tyler, and the noble Earl, Lord Lytton, who regrets that he is unavoidably absent. I am also honoured to have the support of the Town and Country Planning Association and the Royal Town Planning Institute. We think that this amendment is crucial to realising the aspirations of the national policy statement, which lie behind and above infrastructure development, and to furthering public consent to the essential provision of new transport and energy infrastructure.
First, I welcome the many revisions in the strategic highways company draft licence, in particular paragraph 5.22, which says:
“The Licence holder must have due regard to relevant principles and guidance on good design, such as those set out by the Commission for Architecture and the Built Environment (Cabe) and the Design Council, to ensure that the development of the network takes account of geographical, environmental and socio-economic context”.
I salute the Minister on this progress. I hope it is not churlish to do an Oliver Twist act and ask for more. Oliver Twist did, after all, ask for more necessary sustenance. The problem is that the licence does not carry nearly the same weight as the statute. It is the national policy statement that is the critical decision-making document. My plea is for explicit recognition of the crucial role of design on the face of the relevant statute, in this case the Planning Act 2008, where it sets out the obligations of the Secretary of State in preparing the national policy statement. The change that we propose is a modest one. While it strengthens and simplifies the obligation with regard to climate change—extremely important, too—and good design, it makes no change to the overarching and heavily qualified obligations in Section 10(2) that govern the section I propose to amend.
We need to look back to see why this amendment is so important. We need to remember those miles of urban highway that have created lasting problems, which my noble friend Lord Adonis referred to, by dividing communities, by ignoring the beauty element and by despoiling some of our most cherished landscapes; these include the M8 in Glasgow and the M3 in Belfast. Closer to the present time, we can think of High Speed 2’s path through the National Trust’s Hardwick Hall. Although this will be dealt with by the hybrid Bill, the issue illustrates the enormous concern we must have to ensure the right design outcomes for infrastructure with a life of many decades.
The purpose of the amendment is in a non-prescriptive way to ensure that design issues are taken more seriously by decision-makers in the preparation of policy. It does that by strengthening the Planning Act 2008’s obligation to consider good design and adaptability to climate change in the achievement of sustainable development. The 2008 Act says only that the Secretary of State must,
“have regard to the desirability of … mitigating, and adapting to, climate change”,
and “achieving good design”. We think that the words “the desirability of” must go. They make good design desirable rather than necessary, which is a misreading of the function of design. The obligation already includes a significant degree of flexibility, because of the words “contribute to” in the primary obligation of achieving sustainable development.
Lord Jenkin of Roding
My Lords, I am very happy indeed to add my name to the amendment tabled by the noble Baroness. This is partly because I have long had an admiration for the persistence with which over many years she has pursued this objective of achieving better design for our buildings and structures in this country. She deserves our support.
I referred briefly in my previous intervention to the time when I was Environment Secretary, and as such found on my desk a number of very major projects. Not all of them would have been described as infrastructure, but nevertheless one was very conscious indeed of the enormous importance of design as a criterion for desirability and for making sure that something was going to last. Indeed, there was a view in the department at the time that if a building was really bad, it would not last more than 50 years. However, 50 years is more than half a lifetime—perhaps it is less than that now, but it was then. One needs to do one’s best to avoid those bad buildings.
One particular decision with which I have always been rather pleased—which was not infrastructure except in the broadest sense of that word—concerned what is now the Sainsbury Wing of the National Gallery. That decision turned entirely on the design that had originally been proposed, which was so memorably castigated by His Royal Highness the Prince of Wales in a remarkable speech. I must say that it made me very angry at the time, because this planning decision was sitting on my desk and yet I received no advance warning at all that he was going to say anything about it.
When I then had to deal with it, I tried to see whether he was right. I came to the conclusion that, yes, of course he was right. That design was deplorable, as the recent account published by the National Gallery itself has indicated. As a result, we got an entirely new initiative from the Sainsbury brothers, and the Sainsbury Wing is now a very considerable adornment to that part of Trafalgar Square and to the National Gallery itself, based entirely on design. I therefore attach very great importance to this.
One of the important points made by the noble Baroness in her speech concerned the very limited extent to which the criterion of design has been imported into the national planning policy statements. She said that some of them gave the impression of having been cut and pasted, because they simply took the same words. If one looks, for instance, at the National Policy Statement for Ports about this, it really does not add anything to what has been said before about other forms of development. There is nothing specifically regarding ports. From time to time, I have found myself sailing past the Felixstowe dock, which is a tremendous container port. It is actually rather a fine structure when seen from the River Orwell. Then you go further up the River Orwell and there is a perfectly lovely bridge, the Orwell Bridge. We are perfectly capable of choosing first-class designs, but it needs to be at the centre. Sharpening up the obligation to put design at the heart of the planning system and planning criteria, which the amendment moved by the noble Baroness, Lady Whitaker, would achieve, seems to me a very valuable thing to do. I support her amendment and I hope that she will continue to bang away at this issue. She has made great progress in other quarters and she needs to do it in this one as well.
The Earl of Clancarty (CB)
My Lords, I support Amendment 87 in the name of the noble Baroness, Lady Whitaker. As she said, good design is not just desirable but necessary.
The noble Baroness talked about beauty and despoliation of the environment. They are aesthetic concerns which are aspects of wider cultural concerns, themselves a significant and necessary component of good design. I would therefore go further in paragraph 5.22 of the draft licence which the noble Baroness quoted, because I think that the absence of the word “cultural” is an omission. The relevant wording might then state that “the development of the network takes account of geographical, environmental, cultural and socio-economic context”. However, I acknowledge the work that the noble Baroness and others have put in to get as far as they have with the wording as it stands.
This is not about function, operation and maintenance versus culture or design. The precise function or functions of our highways, road networks and the built environment are themselves cultural issues. For instance, if we take into consideration initiatives very different from the norm in this country such as shared space schemes, which are intended to encourage more co-operative rather than competitive spaces, it becomes more objectively clear how form and function reflect each other in a very particular cultural sense. Good design needs to be thought of as central to planning and not as an add-on, not least because there needs to be a wider discussion about what good design is and means in relation to the precise nature of the changes which we have made and continue to make to our environment.
Lord McKenzie of Luton (Lab)
My Lords, I am very happy to support my noble friend Lady Whitaker’s amendment and to support those other noble Lords who have spoken in favour of it. Like the noble Lord, Lord Jenkin, I am a great admirer of the way in which my noble friend Lady Whitaker has persistently championed the cause of good design and always the enlightened approach to planning.
As I understand it, the change in wording that is proposed is quite modest, but its impact could be quite profound. The 2008 Act, rather than stating that,
“the Secretary of State must … have regard to the desirability of … achieving good design”,
would state that “the Secretary of State must have regard to achieving good design”. The former, as my noble friend said, suggests that good design is somehow optional. The amendment would make sure that it was not. I hope that the Government are able to accept this small but important amendment.
Lord Mawson (CB)
My Lords, I, too, support the amendment. When I arrived in the East End of London 30 years ago this year, I was very conscious of the poor quality of design of large infrastructure. As you spent time in one of the most challenging housing estates, you saw the effect of some of that on ordinary people’s lives. At the Bromley by Bow Centre, we began to challenge that logic of poor-quality design. When we built the first integrated health centre in Britain, we did so from hand-made bricks—like those used at that time at Glyndebourne opera house. There followed a beautiful cloister facing a park and bringing together health, education and enterprise in what is now a rather beautiful environment, in the middle of a housing estate, that has affected many things around it.
I have noticed over the years how people are the environments that we live, work and play in. If you create certain sorts of environment, you get certain sorts of human behaviour. In our park on the housing estate, we do not have any cameras; local people have taken a lot of ownership of it. We have probably one of the few wooden playgrounds that are not burnt every night. If you put numbers around all that, you see that the value of it to people and the Exchequer is considerable. We are following similar principles in the Olympic Park—where I am a director and sit on the planning committee—and trying to ensure that we do not repeat the tacky stuff that has gone on before but build a very beautiful environment that begins to have a major catalytic effect on the quality of design that is starting to happen in the lower Lea Valley. It is interesting to watch how local people and others, and children running through the beautiful fountains, respond to all that. If one looks at the quality of what is being built and the lack of graffiti and other things, one gets a sense of how these things affect human life and their financial implications.
Yes, I suspect that it is difficult to measure in numbers terms; it is difficult to know which box you tick; but my 30 years of experience suggests that quality of design has a massive impact. I suggest that we ignore it at our peril.
Lord Ahmad of Wimbledon
My Lords, I, too, acknowledge the work that the noble Baroness has done in this respect. I agree with what she said about good design being necessary. While she acknowledged the steps that the Government have taken in this regard—for which I thank her—she cited Oliver Twist and said that she might be perceived as being churlish in asking for more. I would never accuse the noble Baroness of being churlish. I recall that the response to Oliver Twist asking for more was, “Do you want more?”. That will certainly not be my response at this juncture, but I wish to set out the Government’s position. I also thank other noble Lords, including my noble friend Lord Jenkin, for their contributions.
I should stress from the outset that the Government are committed to tackling issues such as climate change and the mitigation of, and adaptation to, the impacts of such change, as well as good design for new developments. Where I suspect we will differ is on the extent to which this amendment would bring any discernible change if an infrastructure project was brought forward for consent under the Planning Act.
Part 2 of the Planning Act sets out the legislative requirements where a Secretary of State brings forward a national policy statement. National policy statements form the prime basis for deciding whether a project should be granted development consent. Given this very important role, such statements, as noble Lords will know, are scrutinised by Parliament and subject to public consultation before being finalised. This process of scrutiny provides the most appropriate means of ensuring that matters such as design and climate change are appropriately covered in a national policy statement.
All national policy statements that have been prepared to date have taken into account the issues set out in Section 10 of the Planning Act. Parliament has been given the opportunity to help shape these before they were finalised. That process of scrutiny will continue when new policy statements come forward and existing ones are reviewed. The final version of the policy statement on national networks will be designated soon and the next policy frameworks to be produced will be after the Davies commission has reported in 2015. I therefore suggest to the noble Baroness that the best place in which to seek the changes and improvements that she proposes is in the wording of national policy statements when they are subject to parliamentary scrutiny before they are designated. With those assurances and the clarity that I have provided, I trust that the noble Baroness will be minded to withdraw her amendment.
Baroness Whitaker
My Lords, I am extremely grateful to all noble Lords who have supported this amendment and indeed adding the concept of culture, which was implicit in our amendment but ought to have been explicit. I am grateful for the kind words of the noble Lord, Lord Jenkin, and his encouragement. I am half reassured by the words of the Minister. I can see that the close-woven tapestry of the structure that he has outlined could indeed offer opportunities to push the importance of design. I think that that is not as good as having it on the face of the Bill, but let us suspend judgment until we see the next version of the national networks statement. In the mean time, I beg leave to withdraw the amendment.
Lord Ahmad of Wimbledon
“(A1) The Housing and Regeneration Act 2008 is amended in accordance with subsections (1) and (2).”
Lord Ahmad of Wimbledon
I beg to move Amendment 88 and shall speak also to Amendments 89 to 95 and Amendment 121. Maximising the release of surplus public sector land is critical to supporting the Government’s ambitions to reduce the deficit, increase the number of houses being built and help to drive economic growth. The new public sector land programme from 2015-16 will mean transferring a significant amount of surplus and developable land from government bodies to the Homes and Communities Agency for onward disposal.
Clause 21 is intended to speed up the transfer of land from arm’s-length bodies to the Homes and Communities Agency by allowing sites to transfer directly using a single transfer scheme, rather than transferring first to the parent department in a separate scheme. However, the Homes and Communities Agency no longer has a remit to operate in London without mayoral delegation. The Greater London Authority therefore has a pivotal role in delivering housing and economic growth in the capital, and we have been working with it to consider how its expertise can best be utilised in the disposal of surplus government land. The GLA has been clear that it wishes to carry out the Homes and Communities Agency’s former functions in London with regard to the disposal of developable land. The Greater London Authority Act 1999 allows for the transfer of central government land to the authority but, as with the Homes and Communities Agency, land from arm’s-length bodies can transfer only via the parent department and not directly in a single scheme.
In Committee, my noble friend Lady Kramer agreed to consider an opposition amendment to enable direct transfers of land from arm’s-length bodies to the GLA. Following our constructive dialogue with the GLA over the past few months, we are now satisfied that there is strong potential for the GLA to have a role in disposing of surplus government land in London. This amendment, which will allow land to be transferred directly to the GLA and its subsidiaries, will help to reduce bureaucracy in the longer term. We are therefore tabling a government amendment to effect this change. Our amendment adds three new sections to the Greater London Authority Act 1999 to allow schemes to be made transferring land to the GLA and for regulations to be made naming the bodies which will be able to transfer land and setting out the tax position for transfers.
We introduced Clause 22 to ensure that appropriate development may happen quickly by bringing the powers of purchasers of land from the Homes and Communities Agency, the Greater London Authority and mayoral development corporations into line with those presently enjoyed by the purchasers of land from local authorities and other public bodies involved in regeneration and development. We have tabled this amendment to ensure that the powers will be fully available in relation to the GLA.
The bulk of GLA land is held and managed by GLA Land and Property Limited, a wholly owned subsidiary of the authority. We need to make sure that the amended powers will apply to land which the subsidiary holds or disposes of in the same way as they will apply to land which the HCA, GLA or an MDC hold or dispose of. These amendments clarify that the powers will be available in relation to land which the subsidiary owns or disposes of, provided that it has been carrying out housing and regeneration functions for the GLA in relation to that land.
Amendment 121 refers to new subsection (12) of Clause 22. Clause 40 is concerned with the territorial extent of provisions. Although Clause 22 is effective in England only, there is only one legal system covering England and Wales, and that system will operate in relation to Clause 22. The legal systems in Scotland and Northern Ireland will not operate in relation to the clause. I beg to move.
Lord Tope (LD)
My Lords, Amendment 93A is in my name. In speaking to his amendments, the Minister referred to an opposition amendment in Committee. The amendment was in my name and, while I understand that the Minister may occasionally feel that I am in opposition, I mostly support the Government in this House and therefore perhaps we could correct that. It was not an opposition amendment; it was an amendment on behalf of the Greater London Authority, moved by a Liberal Democrat Member on the government side of the House.
Lord Ahmad of Wimbledon
My Lords, for the record, I fully acknowledge my noble friend’s contribution in that regard.
Lord Tope
My Lords, I am grateful and my pride is restored. When I received the open-door response from my noble friend Lady Kramer on that occasion, I think I predicted that the two-word amendment which I moved in Committee would come back at this stage of the Bill as a two-page amendment. I did not anticipate that it would run to eight or nine amendments over five pages, but I am grateful to the Minister and his officials for their work to try to correct what we all recognise was an anomaly.
The Greater London Authority is happy with the amendments to Clause 21 and with Clause 21 when amended, but there are still concerns about Clause 22. The Government’s proposals are welcome, but they do not go quite as far as they need to in order to correct what the Government intend. That is because the protection afforded by the new clause does not completely cover historic disposals. We are trying to correct an omission from the Housing and Regeneration Act 2008. It is the view of the GLA that to be legally robust and clear to prevent unnecessary blocking of planned strategically important developments, the legal operation of the changes made by Clause 22 needs to be retrospective and to cover historic disposals. My Amendment 93A to Clause 22(11) would ensure that the changes in the clause cover relevant developments in London from the time that Section 11 of and Schedule 3 to the Housing and Regeneration Act 2008 came into force, which was 1 December 2008. That would mean that all relevant land left unprotected by the defective provisions of that Schedule 3 would be covered by the corrections made by this amended Clause 22. It would also cover the appropriate corresponding provision that applied to the London Development Agency prior to its abolition.
That is entirely consistent with the Government’s intentions. I hope that the Minister will be in a position today to accept Amendment 93A. If he is not in a position to do so today, I hope that he will give a commitment to look at this point, which the Greater London Authority rightly feels to be important, and to correct it at a later stage, preferably at Third Reading in this House so that I can tie up the loose ends, but if that is too quick, then at a further stage of the Bill.
Lord McKenzie of Luton
My Lords, we are grateful for the explanation provided by the Minister today and in the letter of 30 October. It follows a commitment made by the Minister when we discussed an amendment from the noble Lord, Lord Tope, which called for the GLA to perform the role of disposal agency in London. This parallels the role designated for the HCA outside London, whereby land from arm’s-length bodies can be transferred directly rather than via the parent department. We support these amendments.
We also support the amendment just spoken to by the noble Lord, Lord Tope, about the cut-off point and the date from which these provisions apply. That anomaly was pointed out in Committee. I hope that the Minister is able to give a positive response.
In Committee, we also probed the prospect of one or more local authorities adopting a similar role, particularly given the prospect of releasing substantial sums of publicly owned land to support housing development. This appeared to find some approval from the Minister, who undertook to explore further. Given that we do not have an amendment from the Government on this point, is this issue still under active consideration?
Lord Ahmad of Wimbledon
My Lords, first, I thank my noble friend for his amendment and I thank the noble Lord, Lord McKenzie. After the various bilaterals that we have had in advance of Report, I also put on record my thanks for their attendance and for the discussions that we have had across a variety of issues. We may not agree in some cases but it has always been done in a spirit of having constructive ways of moving forward on various elements of the Bill.
I turn to the two non-government amendments. Amendment 92A would make provision in Clause 21 to allow land to be transferred directly from the ALBs of central government to the HCA, reducing bureaucracy and accelerating development. Amendment 93A is in the name of my noble friend Lord Tope. I do not believe that it is necessary to amend Clause 22(11) to allow powers to override easements to transfer to sites that have already been disposed of. Our clause aims to accelerate development; the proposed amendment from my noble friend would not help to facilitate this any further. Developers have bought land and entered into agreements clearly aware of what powers were available to them. The conditions that the land was sold with and the price paid will have reflected this. We are satisfied that where the land has been leased but the GLA, HCA and MDCs retain the freehold, the existing powers to override easements already apply and will continue to do so. That is sufficient to support development on most of the sites disposed of. Changing the law now to apply to sites that have previously been sold would be an unusual approach and may have unintended consequences.
I accept that in a small number of cases which I am aware of the freehold may have been disposed of, meaning that the power does not apply. However, there are alternative mechanisms available to address this such as taking out insurance, negotiating with easement owners and making references to the Upper Tribunal Lands Chamber. Given the mechanism already available and the small number of sites that would be affected, we do not believe that this is sufficient to warrant a legislative amendment which may well cause unintended consequences elsewhere.
The noble Lord, Lord McKenzie, talked about local authorities. In our meetings, we said that the situation with local authorities was somewhat different. Beyond the discussions that we have had, the Government are certainly not in a position to provide any further detail or to accept any amendments in that regard.
Lord Ahmad of Wimbledon
“(8) This section and section 53B do not have effect in relation to property, rights or liabilities comprising the whole or any part of the Public Forest Estate.
(9) The Public Forest Estate comprises all the land, property, rights and liabilities acquired by the Minister under section 39 of the Forestry Act 1967, including all such land not needed, or not used, for the purpose of afforestation or any purpose connected with forestry.”
Baroness Royall of Blaisdon (Lab)
My Lords, in moving Amendment 90A, I must thank the right reverend prelate the Bishop of St Albans for his support. He is following in the footsteps of Bishop James, the former Bishop of Liverpool, who did so much to safeguard the future of our woods and forests.
We now turn to concerns that powers within Clause 21 would allow the transfer of land from public bodies to the Homes and Communities Agency and could therefore allow the Government to transfer parts of the Public Forest Estate to the HCA for development. The Public Forest Estate is a precious asset providing us with beauty, space for recreation, space in which to walk and breathe, an environment for flora, fauna and wildlife to flourish and a means of preventing floods and slowing the effects of climate change. For those of us whose home is in a forest, they are part of our culture and heritage. They sustain livelihoods and support our local economy; they are the lifeblood of our communities. That is why I am passionate about protecting the Public Forest Estate.
The Lord Bishop of St Albans
My Lords, I am glad to speak in support of this amendment proposed by the noble Baroness, Lady Royall. I am also glad to pay tribute to her persistence on this matter which I, too, believe is crucial. When the discussions about the future of the forestry estate have come before the public they have made their views absolutely clear that trees, woods and forests are a vital part of the make-up of the English countryside. Although they now cover only 9% of the land area of England, trees have an iconic place in our relationship with the landscape. Whether living in towns, cities, villages or hamlets, many people express affection and deep regard for the well-being of trees in the locality. Protecting the Public Forest Estate will bring many benefits to the public and the environment. I will mention three of them briefly.
First, exempting the Public Forest Estate from development and making that clear in the Bill will help secure some of the timber needs of the UK. We need our woods. They are practical things. Secondly, it would help to ensure continual public access and amenity uses. Forests and woodlands are not just places of access and recreation to be consumed but are places of relaxation and renewal, offering an opportunity to reconnect to the natural world in all its diversity. For Christians, this is part of God’s gracious provision for the well-being of humans and wildlife and should be respected as such. For many individuals, whether Christians or not, trees, woodlands and forests play a deep part in their spirituality, offering a sense of peace or well-being. They form a background to the tapestry of everyday life, from creating meeting points or landmarks for navigation to providing shade and improving the view. Whether in a cityscape or landscape, they contribute significantly to the improvement of life. Thirdly, this protection would also contribute to climate change. Trees are vital for the future of the planet in carbon sequestration—one of the things we are going to come to in Amendment 108.
I believe this is not just a peripheral thing. It is fundamental to the thriving of our communities and the environment in which we live. I shall press the Minister further to honour the commitment made following the report from the Independent Panel on Forestry. Will the Minister agree to consult with interested parties prior to Third Reading and consider including an amendment to bring forward legislation to establish that new public body to hold the Public Forest Estate to account?
Lord Clark of Windermere (Lab)
My Lords, I apologise to the House that I have not participated in the debate on this Bill so far but I have been indisposed. I am now back healthy and prepared to enter the fray once again. I support this amendment from the noble Baroness and the right reverend Prelate because I think it is critical. It also brings back memories. Although I understand that the Minister is very committed to this Bill and to forestry, the coalition does not have the best of records in this respect. I remember this issue being debated during the Public Bodies Bill and the concern that was expressed. I remember the campaigns when thousands of people expressed their views. I do not know what has happened to the signatures that 38 Degrees collected. There is deep concern about forests for the very correct reasons the right reverend Prelate mentioned. I want to pay tribute—like virtually everyone in the House—to James, the former Bishop of Liverpool. He did a tremendous job of re-engaging politicians with the people out there and their love of forests.
I understand that there is a need for the transfer of land, especially for big infrastructure and housing. It would be foolish to deny that. I support this amendment because having read the Bill I am convinced of the intention of the Ministers and have no doubt about their sincerity, but I am not convinced completely that this Bill backs up their intentions. They may not be prepared to transfer land from the Forestry Commission to the HCA, but the Bill, I believe, gives other Ministers, future Ministers and future Governments the powers so to do. It may be a point of dispute or of interpretation. If it is, the amendment from my noble friend Lady Royall makes that quite clear.
As I understand it, one of the assurances that Ministers are giving us is that the forest land is not surplus land, but there is some difficulty with the issue of surplus. When I was chair of the Forestry Commission, I sold quite an amount of forest land, but I did so because I was reshaping the forest estate. In my mind, some of the forest in deep rural areas could be disposed of quite happily to the private sector, which would manage it just as well. On the other hand, we could use the money received to create new forests near the centre of population for reasons such as health, recreation and conservation, as well as for timber. I was very proud that in the time I was there we planted more than 1 million trees in Wigan, more than 1 million trees in St Helens and more than 2 million tress in Warrington because we were reshaping the estate. The argument about surplus is very difficult to define. If we rely on that to safeguard our forests, we could run into difficulties. For that reason, I am very keen to support the amendment proposed by my noble friend this evening.
Lord Phillips of Sudbury (LD)
My Lords, I, too, support the amendment moved so clearly and effectively by the noble Baroness, Lady Royall of Blaisdon, and supported so strongly by the right reverend Prelate. I declare an interest as a patron of a charity in Coggeshall, Essex which runs a large forestry estate. Indeed, I am lucky enough to have a piece of ancient woodland. What has been said about public concern regarding this aspect of this Bill cannot be overestimated. I dare say many Members of the House have had a huge amount of correspondence from people really anxious to get the public forestry estate and, I believe, forestry charities excluded from the Bill as was successfully done during the passage of the Public Bodies Act 2011. They want to do that not because they view the Homes and Communities Agency as a malignant body but because they know only too well that large bureaucracies can lose touch with public feeling and opinion. Indeed there is a march going on at this very moment down in the West Country in the Forest of Dean about this Bill and the potential people think it brings for despoliation. People are deeply anxious in our wonderful country, which seems little by little to be being concreted over, developed and exploited, that we preserve and give special status to what forestry and woodland is left. I think that is at the root of this.
As a talisman of so many people who have written in, I will read a sentence from a letter written by Brian and Michelle Jones, who run an animal charity in the Forest of Dean. They say a good deal, including:
“For your average Brit, the freedom to roam on the beaches, by the lakes and, especially, in the forests, is sacred. It is what being British is all about”.
That would be a pretty universal sentiment.
Lord Judd (Lab)
My Lords, the right reverend Prelate referred to the importance attached to this issue and the strength of feeling within the church. That is significant. What was so impressive the last time this issue was being discussed, while the church played a critical part in the deliberations, was not only the size of the response to the Government’s proposal but the spontaneity and strength across the community as a whole. This was something about which people cared passionately in our society. It is hardly surprising that, in a country that is so increasingly pressurised in material terms, people take very seriously the balance that is needed for creativity, thought, reflection, and spiritual and physical regeneration.
My point is quite simple. My noble friend has said that the Minister has given assurances and that she respects him. I may also respect the Minister—and I do. However, I never understand this point. The Minister and his Government will not be there for ever. If the assurances on something which is crucial, and on which the Minister feels able to give assurances, mount, why on earth should we not put it in the Bill so that it is there as the clear expression of Parliament for future Governments as well as the present one?
Lord Jenkin of Roding
My Lords, I will be brief because I sense that the House wants to reach a decision. In my former constituency of Wanstead and Woodford was quite a large part of Epping Forest. I entirely share the views that have been expressed around the House, by the right reverend Prelate and others, about the extent to which this forms an enormously valuable part of people’s lives and, indeed, is part of their being.
When Winston Churchill fell ill, went into hospital and lost his job—of course, he had a job and therefore had to give up his seat—he ended that chapter of his biography:
“And so I found myself without an office, without a seat … and without an appendix. I came to rest amid the cool glades of Epping Forest”.
Of course, he became the Member for Epping; I inherited part of that constituency.
I listened to the noble Baroness with great interest because I, too, had read the Statement made by my noble friend and published in Hansard on 4 November, and I took comfort from it. However, I have to say to my noble friend that this is what worries me: a Statement, however formally issued, is not the same as an Act of Parliament. The example quoted by the noble Baroness about the particular part of the Forest of Dean, which I had not heard before, has raised doubts in my mind. Whether this or another amendment is necessary to place the intention of the Statement firmly on the statute book, it seems to me that this amendment has a good deal to say for it. I shall listen to my noble friend’s response to this debate with considerable interest.
Lord Berkeley of Knighton (CB)
My Lords, I missed the opening of this debate because I was upstairs at a meeting of the APPG on arts and health, at which a series of experts in mental health said how important people’s surroundings—whether they were in the East End or the countryside—were to their good health and the well oiled working of society. As someone who has the privilege of living a lot of the time in the country and working with foresters, I feel that the transcending quality that people feel the countryside, and forestry in particular, affords them is not something with which we should play fast and loose.
The noble Lord, Lord Clark of Windermere, made some very fair points in recognising what the Government probably want to do here, but I do not think that this is an area where we can take any risks. From what many Members of the House have said, it seems that there is a huge risk attached to the Bill as presently framed, and therefore I would like to support the amendment.
Lord Greaves (LD)
My Lords, I apologise for not having spoken previously on the Bill; at the time, I was out of action as far as the House of Lords is concerned for various reasons. I should remind the House of my registered interests in the areas of local government and countryside recreation.
I was involved in what became the Public Bodies Act, to which I will refer in a minute because there is something about it that is important here. I was very pleased that I tabled the amendments that removed on the forestry commissioners’ clauses from the then Bill. Since then, the Independent Panel on Forestry—to which the noble Baroness, Lady Royall, referred—has made its recommendations and the Government have accepted the recommendation for a new body to look after the forestry estate. That was taken forward within Defra. In particular, my honourable friend David Heath, when he was a Minister there, played an important role in ensuring that happened. It has not been taken forward in legislation in this Parliament, and I think people can come to their own conclusions about why that is the case and the priorities of one of the parties—the Conservative Party—within the coalition. All I can say is that the Liberal Democrat manifesto at the coming election will include a commitment to such a body. I am not saying that is a 100% guarantee that it will happen but if other parties did the same, it would be very helpful.
At Second Reading my noble friend Lady Kramer said that these powers,
“will not be used by bodies such as the Forestry Commission”.—[Official Report, 18/06/2014; col. 840.]
The question is whether it is “will” or “can”? If it is “can”, someone else perhaps could in the future, and people out there certainly think that is a problem. I want to refer to the forestry commissioners. In the then Public Bodies Bill, the forestry commissioners were treated very differently from all the other public bodies mentioned. Those who remember with pleasure debating that Bill three or four years ago will remember that there were pages and pages of schedules that were lists of organisations. The forestry commissioners were not there. They had to have their three separate clauses and be treated differently. If you look at the Forestry Commission website, it says:
“The Forestry Commission is both a Government Department and a statutory body with a board of Commissioners”.
So that sounds as though it is the same. It goes on:
“The board consists of a Chair and up to 10 other Forestry Commissioners”—
I think there are about half a dozen—
“who are appointed by the Queen on the recommendation of Ministers”.
It was very clear that the commissioners were there by some kind of royal appointment or charter, and were different from other public bodies. My question, which I ask the Minister in all honesty and seriousness, is: does this Bill apply to the forestry commissioners or not? When we dealt with the Public Bodies Bill, we were told that they were different and they had to have these separate clauses, so does this apply to them or not? If the Government can say that it does not apply to them, we can all go home.
Finally, why have the Government got themselves into this silly political mess? We, the Government and the Opposition are all saying that we do not want the land that comes under the forestry commissioners—the forestry estate—to be dealt with in this way as a means of transferring it to the Homes and Communities Agency. Everyone is saying that they do not want to do it, so why have the Government got into this? All Governments get into this silly political mess where they write something in legislation and then cannot make simple compromises in the face of opposition when it comes. I think it is institutional stupidity on the part of this Government. It affects all Governments in this way, in that they cannot back down and say they have got something wrong or that they have to clarify it. We all actually agree, so we should put something in the legislation that says what we all agree on and then we can all go home happy.
Baroness Parminter (LD)
My Lords, I thank the noble Baroness for tabling the amendment and for the opportunity to discuss this issue. There is a clear consensus around the House in opposition to the sale of our public forestry estate. I say that as someone who lives in the most wooded county in our country, which I suspect is somewhat surprising to some noble Lords—the county of Surrey.
It is a great disappointment that the promised draft legislation for a new body for the public forestry estate has not yet been provided. That is contributing to the genuine concern, to which my noble friend Lord Phillips referred, that is being articulated by the hundreds of constituents around the country who feel unsure about the Government’s intentions. In the early days of the coalition Government, when there was no Liberal Democrat Minister in Defra, it was a great shame that the possibility of selling off the public forestry estate was proposed. It was a great credit to the campaign in which many noble Lords participated that that was overturned. I should be grateful if the Minister could state what the Government’s position is now because in 2013 we had the Government’s forestry and woodlands policy statement.
In Committee, the Minister clearly set out the settled position of the coalition Government that the forestry estate is not for sale and that we will not transfer the public forestry estate to the HCA. That is the clear intention of this Government. However, future Governments could bring in new pieces of legislation and no one can speak for future Governments. Like my noble friend Lord Greaves, I know that so far the Liberal Democrat party is the only party that has committed to make developments in this area in the future.
In conclusion, I am not entirely persuaded of the need for the amendment. I can see why a belt and braces argument works in one sense, but my worry is that if we accept the amendment there will be a perception among the general public out there that this House does not believe the Government’s intentions for the public forestry estate. Although I am very happy not to agree with my Government and not to accept their position on many, many issues, I feel that on this issue they are acting in good faith. I would therefore be unhappy if the House sent out that message to the general public. Like my noble friend Lord Jenkin, I will listen very carefully to the remarks of my noble friend the Minister and hope that he can reassure us about the intentions of the Government and reassure us that this amendment is not necessary.
Lord Ahmad of Wimbledon
My Lords, first, I thank all noble Lords who have participated in this important debate and thank the noble Baroness, Lady Royall, for tabling the amendment.
The public sector land programme is about bringing disused land currently owned by central government back into productive economic use, supporting homes and jobs, an objective to which I am sure all noble Lords adhere. Where land is no longer needed by government, it will be transferred to the Homes and Communities Agency, which will prepare the land for release to the market and work with local planning authorities to ensure that the land is used in a way that best benefits the community—for example, by supporting local housing needs. We have had many debates, and I am sure that we will continue to have them, about the importance of housing and housebuilding to boost economic growth.
Better reuse of disused land will in turn support our desire—I make it clear that it is the Government’s desire—to protect the green belt and amenity land, such as forests, woodlands and open spaces. Disused government land can and does already transfer to the HCA, but the process is often more bureaucratic than is necessary. This clause is simply about increasing the rate of delivery and efficiency by streamlining internal government procedures.
Let me be clear. The intention behind Clause 21 is not to sell off the nation’s forests. You know what—I have been to a forest or two and I enjoyed a woodland or two as a child, and I want my children to continue to enjoy those very things, as I did. I have made this clear repeatedly, in my meetings with noble Lords—with the noble Baroness in particular—and most recently in a Written Ministerial Statement, published yesterday. I assure all noble Lords that the Government have no plans to dispose of the public forest estate and the powers contained in Clause 21 of the Infrastructure Bill do not present a threat to the future of the estate in public hands. The estate is not surplus, and it is not owned by an arm’s-length body. The Homes and Communities Agency’s objectives are to work with the Government and other public bodies to unlock and accelerate the release of surplus public land for the creation of new homes and employment opportunities, in line with designated government policy. The aim is to make best use of previously used and brownfield land, protecting green belt and amenity land that create and support great places to live.
Lord Greaves
I have been listening very carefully to what the Minister said, but did he say that the estate was not owned by an arm’s-length body? I wonder whether, at some stage, he will answer the question that I asked. Does Clause 21 apply to the forestry commissioners and the forestry estate, or does it not?
Lord Ahmad of Wimbledon
Several questions were raised, and I know that the noble Lord, Lord Greaves, although he has tabled some other amendments, said that we could all go home once I had answered that question. Perhaps that means that he will not move his other amendments. However, he has asked the question again, and let me put the matter to rest. The Bill applies to public bodies. He asked whether it applied to forestry commissioners. The forestry commissioners do not own any land and the PFE is owned by the Government. I trust that that point is clear.
Lord Greaves
This is extremely important. The public forest estate is owned by the Government, but the question I am asking is whether Clause 21 applies to the public forest estate.
Lord Ahmad of Wimbledon
I would ask my noble friend to allow me to finish. Once I have concluded my remarks, his question and other questions may have been answered.
Much of the public forest estate is already protected. Many of the sites are, for example, in national parks and the estate contains almost 200 sites of special scientific interest as well as more than 800 scheduled ancient monuments. However, the Government recognise the strength of people’s concerns about the future security of the public forest estate. Indeed, I know that my honourable friend Mark Harper and the noble Baroness, Lady Royall, hosted an event recently about the Forest of Dean. That is why we have made the following commitments, which I shall reiterate. The Government will not transfer any part of the public forest estate to the Homes and Communities Agency. We are amending our guidance to departments on the transfer of public land to make it clear that the public forest estate is exempted from transfer to the Homes and Communities Agency. We will not include the new public forest estate management body in any future regulations specifying which bodies can transfer land to the Homes and Communities Agency.
I hope that that clear public commitment by the Government provides a degree of certainty and reassurance to noble Lords. Having made these commitments, I must also be clear that the intention of Clause 21 of the Infrastructure Bill was simply to allow the direct transfer of land from central government arm’s-length bodies to the HCA. The noble Baroness asked about the list of arm’s-length bodies. I would be happy to share that with her and the rest of your Lordships’ House. The public forest estate is not owned by any arm’s-length body and, as such, is not covered by the aims or purpose of this policy.
Various questions were asked and my noble friend Lord Phillips raised some specific questions. If I may, in the interests of brevity and to move issues on, I shall write to him specifically on the issues that he raised.
I have listened very carefully to what has been said in the Chamber today and listened attentively to the sentiments expressed by your Lordships’ House. It has become increasingly clear to me during the course of the debate that there is still strong feeling in the House that this is an important issue on which the Government need to reflect further. Therefore, I shall seek to bring an amendment back to the House at Third Reading that will seek to exempt the public forest estate from transfer to the Homes and Communities Agency. I hope that, with that assurance, and the faith that the noble Baroness has in me, for which I am grateful, she will be minded to withdraw her amendment.
Lord Phillips of Sudbury
I thank the Minister for that very conciliatory answer. Will he be as good as to confirm that if, on reflection, he comes to the view that it is not clear that charitable woodland and forests are excluded from the Bill, that too will be covered by the Third Reading amendment?
Lord Ahmad of Wimbledon
My Lords, I feel that I have charity in abundance myself, personally. I gave an assurance to my noble friend about a detailed answer and perhaps we can take that up in the letter. If he has any concerns after that letter, I shall be happy to speak to him.
Baroness Royall of Blaisdon
My Lords, I am extremely grateful to the Minister for listening. As he knows, words are simply not enough. I hold him in good faith, and I know what he wants to do. I look forward to him coming back to put an amendment in the Bill that ensures the protection of the public forests. I am extremely grateful to the Minister.
Lord Ahmad of Wimbledon
Lord Ahmad of Wimbledon
“(3) The Greater London Authority Act 1999 is amended in accordance with subsections (4) and (5).
(4) After section 333D insert—
“333DA Transfer schemes
(1) The Secretary of State may at any time make one or more schemes for the transfer of designated property, rights or liabilities of a specified public body to—
(a) the Authority, or(b) a company or body through which the Authority exercises functions in relation to housing or regeneration.(2) In subsection (1) “specified public body” means a public body which is for the time being specified, or of a description specified, by regulations made by the Secretary of State.
(3) On the date specified by a scheme as the date on which the scheme is to have effect, the designated property, rights or liabilities are transferred and vest in accordance with the scheme.
(4) In this section—
“designated”, in relation to a scheme, means specified in or determined in accordance with the scheme;
“public body” means a person or body with functions of a public nature.
(5) This section and sections 333DB and 333DC bind the Crown, but do not have effect in relation to property, rights or liabilities belonging to—
(a) Her Majesty in right of the Crown,(b) Her Majesty in right of Her private estates,(c) Her Majesty in right of the Duchy of Lancaster, or (d) the Duchy of Cornwall.(6) The reference in subsection (5) to Her Majesty’s private estates is to be construed in accordance with section 1 of the Crown Private Estates Act 1862.
333DB Further provisions about transfer schemes
(1) A transfer scheme may—
(a) create for the transferor interests in, or rights over, property transferred by virtue of the scheme,(b) create for a transferee interests in, or rights over, property retained by the transferor or transferred to another transferee,(c) create rights or liabilities between the transferor and a transferee or between transferees.(2) A transfer scheme may provide for the transfer of property, rights or liabilities that would not otherwise be capable of being transferred or assigned.
(3) In particular, a transfer scheme may provide for the transfer to take effect regardless of a contravention, liability or interference with an interest or right that would otherwise exist by reason of a provision having effect in relation to the terms on which the transferor is entitled to the property or right, or subject to the liability, in question.
(4) It does not matter whether the provision referred to in subsection (3) has effect under an enactment or an agreement or in any other way.
(5) A certificate by the Secretary of State that anything specified in the certificate has vested in any person by virtue of a transfer scheme is conclusive evidence for all purposes of that fact.
(6) A transfer scheme may contain provision for the payment of compensation by the Secretary of State to any person whose interests are adversely affected by it.
(7) A transfer by virtue of a transfer scheme does not affect the validity of anything done by or in relation to the transferor before the transfer takes effect.
(8) Anything which—
(a) is done by the transferor for the purposes of, or otherwise in connection with, anything transferred by virtue of a transfer scheme, and(b) is in effect immediately before the transfer date,is to be treated as done by the transferee.(9) There may be continued by or in relation to the transferee anything (including legal proceedings)—
(a) which relates to anything transferred by virtue of a transfer scheme, and(b) which is in the process of being done by or in relation to the transferor immediately before the transfer date.(10) Subsection (11) applies to any document—
(a) which relates to anything transferred by virtue of a transfer scheme, and(b) which is in effect immediately before the transfer date.(11) Any references in the document to the transferor are to be read as references to the transferee.
(12) A transfer scheme may include supplementary, incidental, transitional and consequential provision.
(13) In this section—
“enactment” includes subordinate legislation within the meaning of the Interpretation Act 1978;
“transfer scheme” means a transfer scheme under section 333DA;
“transfer date” means a date specified by a transfer scheme as the date on which the scheme is to have effect.
333DC Tax consequences of transfers under section 333DA
(1) The Treasury may by regulations make provision for varying the way in which a relevant tax has effect from time to time in relation to—
(a) any property, rights or liabilities transferred in accordance with a transfer scheme, or(b) anything done for the purposes of, or in relation to, or in consequence of, the transfer of any property, rights or liabilities in accordance with such a transfer scheme. (2) The provision that may be made under subsection (1)(a) includes, in particular, provision for—
(a) a tax provision not to apply, or to apply with modifications, in relation to any property, rights or liabilities transferred;(b) any property, rights or liabilities transferred to be treated in a specified way for the purposes of a tax provision;(c) the Secretary of State to be required or permitted, with the consent of the Treasury, to determine, or to specify the method for determining, anything which needs to be determined for the purposes of any tax provision so far as relating to any property, rights or liabilities transferred.(3) The provision that may be made under subsection (1)(b) includes, in particular, provision for—
(a) a tax provision not to apply, or to apply with modifications, in relation to anything done for the purposes of, or in relation to, or in consequence of, the transfer;(b) anything done for the purposes of, or in relation to, or in consequence of, the transfer to have or not have a specified consequence or be treated in a specified way;(c) the Secretary of State to be required or permitted, with the consent of the Treasury, to determine, or to specify the method for determining, anything which needs to be determined for the purposes of any tax provision so far as relating to anything done for the purposes of, or in relation to, or in consequence of, the transfer.(4) In this section—
“enactment” includes subordinate legislation within the meaning of the Interpretation Act 1978;
“relevant tax” means income tax, corporation tax, capital gains tax, stamp duty, stamp duty land tax or stamp duty reserve tax;
“tax provision” means a provision of an enactment about a relevant tax;
“transfer scheme” means a transfer scheme under section 333DA.
(5) References in this section to the transfer of property, rights or liabilities in accordance with a transfer scheme include references to—
(a) the creation of interests, rights or liabilities under the scheme, and(b) the modification of interests, rights or liabilities under the scheme, (and “transferred”, in relation to property, rights or liabilities, is to be read accordingly).”(5) In section 420 (regulations and orders)—
(a) in subsection (7) (instruments subject to annulment in pursuance of a resolution of either House of Parliament) after the entry for section 243(7) insert—“section 333DA(2);”, and
(b) after subsection (8) insert—“(8A) A statutory instrument which contains regulations under section 333DC shall be subject to annulment in pursuance of a resolution of the House of Commons.””
Lord Ahmad of Wimbledon
Lord Ahmad of Wimbledon
“(12) The reference in subsection (11) to land disposed of by the Greater London Authority does not include land disposed of to a company or body through which the Authority exercises functions in relation to housing or regeneration.”
Lord McKenzie of Luton
“(3) This section shall not come into force until the Secretary of State has laid a report before both Houses of Parliament on the effects of the transferral of responsibility for local land charges to the Land Registry, and the report shall include—
(a) an implementation plan;(b) an assessment of the impact it will have on local authorities.”
Lord McKenzie of Luton
My Lords, Amendment 95 would preclude Clause 23 coming into effect until a report had been prepared and submitted to both Houses of Parliament on the effects of the proposed transfer of responsibilities to the Land Registry. In doing so, I shall say more widely why we consider the proposals for the local land charges register to be misguided. We do not object to government Amendments 97, 98 and 99, which are yet to be moved, and we support Amendment 95B tabled by the noble Lord, Lord Greaves.
When we debated the issues of local land charges in Committee, it was very much in the shadow of a parallel proposition concerning a new delivery company for the Land Registry which was widely believed to be a step along the way to the privatisation of the service. The proposals for local land charges were seen as part of a strategy to fatten up the Land Registry to make it a much more attractive commercial proposition. However, just before our Committee deliberations, the Government announced that the Land Registry model would not be changed “at this time”. In the words of the Minister, there would be no change,
“for the rest of this Parliament”.—[Official Report, 15/7/14; col. GC 242.]
We accept this assurance, but it does not go very far; it takes us until only next May.
While our analysis of why the Government are misguided in their proposals for local land charges stands separate from this thread, we would be foolish to disregard the revival of that privatisation risk, should the coalition get its chance. We note that the departure of the current Chief Land Registrar has been announced. What can the Minister tell us about successor arrangements: does a change of leadership signal a different approach? Will the Minister share with us the terms of the job advert and whether it will be part of the role of the appointee to lead a privatised service? Is the aspiration to appoint someone with a background in the Land Registry or, like the departing chief, with privatisation experience? When is the new appointment expected to be made?
That aside, what the Minister has proposed is that, as part of acquiring wider powers, the Land Registry should take over statutory responsibility for holding and maintaining a composite local land charges register. It would be the sole registering authority for local land charges in England and Wales and the sole provider of local land charge official search results. Unofficial searches would continue as now to be provided by personal search companies. The Government’s rationale for the change includes the supposed benefits of standardisation of fees and format of results, improving processing times and our international rating for registering properties and supporting the Government’s Digital by Default agenda.
The Government have consulted on these proposals and have drawn significant opposition. This has come from the Law Society, the Chartered Institute of Legal Executives, the Local Government Association, the District Councils’ Network and the Local Land Charges Institute, as well as from private search companies from the SME sector. An important consideration is that the Government are arguing the benefits of a centralised approach, but they are actually creating further fragmentation.
Local authorities currently have responsibility in respect of two local searches— the local land charges searches and what is known as CON29. The former is divided into 12 parts and includes registering charges or encumbrances to property arising from such matters as planning conditions, Section 106 agreements, tree preservation orders, listed buildings and the like. The information on these charges is included on the register as and when the documentation which creates the charge arises. Such charges might originate in a range of council departments and it is the job of local land charges staff to update the register as soon as notified. Staff also help resolve queries where, for example, property descriptions are imprecise.
CON29 searches have been in operation for about 50 years. They are a non-statutory list of questions agreed between Government, local authorities and the Law Society. They cover a wide range of matters which may affect a potential purchaser of property, such as any pending planning applications, whether the area is about to be declared a conservation area, or if the access road is adopted. These are prospective matters which might affect somebody’s enjoyment of a property. There is no register as such but responses are provided when requests are made. Information may be held in a number of different council departments or, in the case of two-tier authorities, in different authorities.
The task of the local land charges staff is typically to peruse local information sources, including council reports, to keep abreast of developments. Local knowledge is vital and the District Councils’ Network has expressed particular concern that insufficient weight has been given to this. At present, there are 20 million entries on the local land charges register, with 65,000 changes being made each month. We also know that, for some 92% of searches, the inquiry is in respect of local land charges and CON29 searches together. The proposition is for the local Land Registry to receive updates from some 350 local authorities for incorporation on to their sole register—covering only local land charges. CON29 searches would be left as now, with local authorities. It was the intention that the Land Registry would take over both elements but, as the Local Land Charges Institute pointed out, years of trying to work out how this could be accomplished have apparently proved fruitless—unless the Minister could tell us by when these proposals could proceed. It is expected that CON29 searches will be undertaken by the Land Registry. What work is currently being undertaken to this effect?
As far as local land charges are concerned, we have no knowledge as to how often the information received from local authorities will be incorporated on to the register, the process for doing so and the format in which the information is to be supplied. What consideration has been given to data cleansing? When will there be a delivery plan for what the Government propose? What are the expected transitional arrangements in respect of local land charges? In arguing for centralisation, the Government have made much of the varying state of digitalisation of the land charges provision of local authorities. A range of different systems is apparently used by local authorities. Have all these to be standardised—presumably to a new system—before there is any transfer of the local land charges register to the Land Registry? Who is to bear the cost of this? Will it be a new burden on local authorities? Will local authorities be recompensed for investment made to date? Should they put on hold any planned new investment to digitalise their system? How is the Land Registry to cope with all this when they are in the throes of instigating complex online applications and automated processes in respect of their existing business?
The Government have also made much of the variable response times and charging arrangements of local authorities. Responding to the Government’s consultation, the Law Society stated that solicitors were broadly satisfied with the process of obtaining local land charges and other search information. They suggested that there were other issues—for example, consistent processes for discharging charges—which might be more beneficial to conveyancing arrangements.
As for lawyers’ irritation with turnaround times, they point out that the research related to the entire conveyancing process, not just the local land charge information. They say that variation in turnaround times will obviously be affected by the number and the nature of queries in each case. Of course, there will be no overall impact on turnaround times in circumstances where the later piece of the jigsaw is the CON29 process. A recent survey indicated that turnaround times for 96% of local land charge-only searches is less than 10 days, with three-quarters being returned in five days. There may be those outside this range, but surely the focus should be to help the minority of councils improve rather than turn all existing arrangements upside down. As for the variation in the level of charging, it is difficult to believe that it is the most important issue in the conveyancing process, but in any event there was a standard charge until the mid-2000s and there is no inherent reason why that could not be reconsidered for the future.
Where does this leave local authorities? The LGA expressed its opposition to this because it will leave councils with the expense of adjusting systems, breaking existing contracts and paying redundancy costs. The LGA is concerned that the longer-term cost to councils of compiling, checking and verifying data has not been properly accounted for. Of course, some local land charge staff have other duties as well, such as electoral registration, and the knock-on costs of staffing issues need to be considered. As part of this, it is planned to uplift all the existing local authority land charges register to the Land Registry for free, at a time when the Land Registry is seeking wider powers to market services. Has any value been placed on the local authority databases?
Unless there are clear plans to encompass the CON29 process into the arrangement, and there seems to be no prospect of that, all that is on offer from this proposition is a worse service and disruption to the existing arrangements. While there is always room for improvement—and the service has improved, on the testimony of those who use it and know best—why on earth fix something that is not broken and for which there is no support?
Despite the engagement of some local authorities in pilots to see the how this might work—seemingly Merton has not volunteered for this—it is obvious that there is no clear implementation plan and no comprehension of what this will mean for local authorities. These proposed changes to a vital service—vital to the health of the property market—should not proceed unless and until these matters are sorted out. I beg to move.
Lord Greaves
My Lords, I tabled amendments in this group on Monday. Had the noble Lord, Lord McKenzie of Luton, put down his amendment a day earlier, I would simply have added my name to that because it covers the issues.
My interest in local land registers is very recent—a matter of days. This part of the Bill was drawn to my attention by my council officers and particularly by Richard Townson, the democratic and legal services manager, who gave me a quick tutorial. I am not terribly upset that I did not become an expert in the subject a lot earlier, but needs must. I have a number of questions that the Minister may not be able to answer today, but if he cannot, I would be grateful for a reply in writing. I am aware that I should have made this speech in Grand Committee, but as I said earlier today, I was not available for House of Lords duties at the time.
The national Land Registry deals with the register of title—ownership issues—and does not go beyond that. We are told that it is run extremely efficiently and that is certainly my experience of using it. There are then local land registers that tell you that charges on a particular parcel of land exist. Those charges may be a requirement to pay money to someone, but most of them nowadays are constraints on the use of the land due to planning decisions or highways decisions.
Lord Ahmad of Wimbledon
My Lords, I thank the noble Lord, Lord McKenzie, for his support for the government amendments. I turn specifically to Amendments 95A, 95B and 99A, which impact on Clause 23 and Schedule 4, and the questions raised. Clause 23 and Schedule 4 provide for Her Majesty’s Land Registry to maintain a single digital local land charges register for England and Wales. There has been a good deal of discussion on the merits of the government proposals and the perceived drawbacks. I will come to those in a moment, but first we should be clear that maintaining the status quo is not an option.
Many of those noble Lords who have—as I have—served in local government know that some local councils provide a very good local land charges service today. I pay tribute to their staff’s efforts and, as my noble friend Lord Greaves said, to the local expertise that they possess. However, many local authorities continue to operate a system that is wholly, or in part, reliant on paper records. Over time, those records will decay and we need to ensure that these are replaced or the information they contain will be lost. What is the solution? The question is not, “Should the current system change?”; it must do so. The question is whether there should be 348 different changes to develop 348 different digital systems that perpetuate the current inconsistencies in levels of service and cost for the public.
In some authorities a digital service is already available. Bolton Council holds a fully digital register and returns searches within one day. Its aim is to provide an,
“end to end process where every customer has the same experience and that is what we now offer”.
The Land Registry ran a successful year-long prototype with seven local authorities. There is no need to rely on the Government’s word that the prototype was a success. Liverpool City Council has been clear that:
“Together we demonstrated that this could work and that if Land Registry were to roll this out then there could be benefits to the conveyancing process in the UK”.
One need only look at the data currently published by local authorities themselves—for example, Bath and North East Somerset and Castle Point currently quote up to a 20-day turnaround time on their websites for a full search—to see that there is scope for improvement. Customers expect to be able to access government information online without delay or complication. Therefore, the Government are committed to meeting those expectations, and creating a single, digital local land register would be another step towards doing so.
Various questions were raised. I fully understand noble Lords’ interest in how the Government’s proposal would affect local authorities and what the implementation plan would be. I am happy to provide some details this evening.
We have recognised the need to ensure that the new system takes account of local authorities from the start. That is why we have been working with a small number of local authorities, as I have already illustrated, throughout the programme, including prototyping the service with seven of them last year. While I can set out the steps the Government are taking to phase implementation and help local authorities to manage the impact, I reassure your Lordships’ House that those local authorities we have been working with are content with the steps we have taken, as can be seen from the comments by Bolton Council and Liverpool Council, which I quoted a few moments ago.
Turning to the steps we are taking to help local authorities manage the impact, it is important to understand the service they offer at present. Local authorities, we know, will remain best placed to be aware of any changes to charges on land within their area. That is why, under the Government proposals, they will continue to be responsible, as my noble friend Lord Greaves asked, for entering information into the single register and keeping it up to date. They will no longer need to provide the searches, however. There will be no loss of local knowledge under our proposals, simply a more modern, efficient process to help members of the public access that local knowledge. None the less we recognise that there may be some costs that arise because of these proposals, and—to answer a question asked by the noble Lord, Lord McKenzie—the DCLG is in conversation with local authorities on how these are best met.
Turning to the implementation plan—again the noble Lord, Lord McKenzie, asked what the Government’s intention is here—implementation will be phased. For each local authority, the first step will be collating the data it holds and checking that they are accurate. The checked data sets will then need to be transformed into a digital format before being transferred into the central land registry that will be created. The local land charges service will transfer from individual local authorities to the Land Registry only once this process has been completed and is functioning.
Lord McKenzie of Luton
My Lords, I thank the Minister for his reply and the noble Lord, Lord Greaves, for his contribution. I say to the noble Lord, Lord Greaves, “Welcome to the world of local land charges”. He has mastered his brief on that subject, as he normally does, and asked an entirely pertinent series of questions. We have had answers to some, but not all, those questions. The noble Lord stressed local knowledge, which is absolutely key to this.
I do not think that the Minister dealt with the key point that what is proposed to happen will be a fragmentation of a service. We know that currently most people undertake searches of CON29 and local land charges together. It is proposed to peel part of this off to the Land Registry, while the rest stays with local authorities. That seems to me to be the makings of a worse service, not a better one. We await very important information, certainly around the value of the database that local authorities have, which is to be taken over. The noble Lord reiterated the point about privatisation but did not deal with the point about the remit of the successor to the current chief of the Land Registry, the process for which is now under way. Clearly, if it is intended that the service be privatised, the service will be looking for someone with different qualifications from someone who will just administer the register as it is.
There is a beguiling issue about it all being digitised and all on one platform. That looks aside from the complexities of how it will be done and whether it is possible to get there with 348 authorities undertaking their daily work with some 60,000 entries each day. That really has not been addressed. We know that the process is struggling and has effectively given up on trying to take in CON29 as part of it. There are many unanswered questions. I am sure that the Minister will, as usual, be very diligent and look at the record and follow up where we have not had answers tonight. In the mean time, I beg leave to withdraw the amendment.
Baroness Kramer
“(4) Sub-paragraphs (5) and (6) apply to the function of the Lord Chancellor under section 14(1) of the Local Land Charges Act 1975 as amended by this paragraph so far as it relates to the power to make rules for prescribing fees and the manner of payment of fees (“the new function”).
(5) The new function is to be treated as having been transferred to the Welsh Ministers by—
(a) the National Assembly for Wales (Transfer of Functions) Order 2004 (S.I. 2004/3044), and (b) Schedule 11 to the Government of Wales Act 2006, in the same way as the equivalent function of the Lord Chancellor under that section as it had effect apart from this paragraph (“the old function”).(6) A provision made by that Order or that Act in respect of the old function continues to apply to the new function.”
(a) ”
(b) in relation to the operation of any other statutory provision by virtue of which any matter is registrable in the local land charges register,”
Health and Social Care Act 2008 (Regulated Activities) Regulations 2014
(10 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I am glad, but not surprised, that the noble Lord, Lord Hunt of Kings Heath, has shown such a keen interest in the importance of providing protection for users of health and care services. I thank him for bringing this issue to the Floor of the House. Naturally I am disappointed to understand from his amendment that he feels that the new fundamental standards are not satisfactory and undermine protection of care home residents. I seek to reassure him that that absolutely is not the case.
I begin by emphasising that the Government are serious about improving the protections offered to health and adult social care service users, both through the legislation that we have before us and through the system of regulation of health and adult social care carried out by the Care Quality Commission, of which these regulations form a part. I am sure that noble Lords will agree that the CQC has made enormous strides forward over the past two years, supported by many of the changes that we debated in this Chamber a year ago during the passage of the Care Act. Under the leadership of the three chief inspectors, the CQC’s specialist teams of inspectors are holding providers to account more thoroughly than ever before. The CQC’s inspections now look beyond mere compliance with registration requirements to provide ratings for each provider against five key questions. Are services safe? Are they caring? Are they effective? Are they responsive? Are they well led?
The first of these ratings is now being published. I am sure that noble Lords will agree that the new system provides much valuable information to patients and service users and commissioners, as well as to providers themselves. However, it is axiomatic to say that the key purpose of a regulator is to regulate—to take action where standards of care fall below acceptable levels. The regulations that we are discussing are central to this. They set the requirements for registration with the CQC, the fundamental standards that all registered providers must meet and against which the CQC can use its enforcement powers to protect patients and service users from the risks of poor care.
I will outline briefly how the new fundamental standards are an improvement on the existing registration requirements, before moving on to the detail. We are changing the regulations in order to address the issues raised by Sir Robert Francis, in his inquiry into Mid Staffordshire NHS Foundation Trust. He highlighted that the legislative basis on which the CQC was operating was undermining the effectiveness of the regulator. He criticised current regulations for being “overly bureaucratic” and said that they failed to separate the “essential” from “the merely desirable”. He recommended the introduction of fundamental standards which set the line below which care must never fall. He recommended that there be regulatory consequences for providers who fail to meet these standards, including the possibility of prosecution where breaches result in serious harm.
The new regulations set the following fundamental standards. Patients must receive safe care that meets their needs and reflects their preferences. Patients must be treated with dignity and respect, be properly fed, their views listened to, and be protected from abuse. The environment in which they are cared for must be clean, safe and secure. Care organisations must be well run, properly staffed, and be open with people about their treatment.
In my response to the noble Lord, I seek to reassure him that the fundamental standards do not dilute the current regulations, remove protections or leave people at greater risk of abuse or harm. In fact, they provide much stronger protection for service users from abuse, neglect and unsafe care than the current regulations. They explicitly state that care must be provided in a safe way, that people must be protected from abuse and improper treatment, that care must not be degrading and that is it unacceptable to disregard someone’s need for care and treatment. The requirements covering degrading care and significant disregard of needs are completely new and not covered by current regulations. It will be an offence to breach these standards in a way that causes avoidable harm or presents a significant risk of such harm occurring, and the CQC will be able to bring prosecutions against providers for such breaches without issuing an advance notice, something that is not possible at the moment. This is a major improvement that provides extra protection for patients and service users.
I want to discuss one of the key fundamental standards recommended by Sir Robert Francis: the statutory duty of candour on providers. It is a little over a year since I brought forward an amendment to the then Care Bill that placed an obligation on the Secretary of State to include in the requirements of registration a duty on providers to inform patients and service users where there were failings in care that resulted in harm—the duty of candour. These regulations fulfil that obligation in respect of the NHS by placing a duty of candour on NHS bodies.
In the debate on the duty of candour a year ago, noble Lords made two key challenges: first, that we should give serious consideration to the threshold for the duty of candour; and secondly, notwithstanding any such threshold, that the regulation should enshrine the general principle of being open in all cases. I hope noble Lords will agree that we have met both these challenges. I shall take the second challenge—openness —first. Regulation 20 sets out the duty of candour, its first line setting out the general requirement of candour:
“A health service body must act in an open and transparent way with relevant persons in relation to care and treatment provided to service users in carrying on a regulated activity”.
This is a general duty to be open in all dealings with patients, service users and their representatives. Where a provider does not meet this duty, the CQC will have the power to use its civil enforcement powers. However, a failure to meet this general requirement will not be an offence.
The remainder of the regulation sets out the steps that providers will have to take when a “notifiable safety incident” occurs. Noble Lords were quite right in saying that the key issue here is defining the harm threshold for such an incident that would engage the duty of candour formal notification procedures. The Government took expert advice and gathered a wide range of views before setting this threshold. We asked Sir David Dalton and Professor Norman Williams to lead this work. They published their findings in March, and the department subsequently consulted on draft regulations based on their recommended harm threshold.
In the regulations, a notifiable safety incident is defined as any unintended or unexpected incident that has, appears to have or could still result in death or severe harm, moderate harm or prolonged psychological harm. By following the recommendations of the Dalton-Williams review, I believe we have struck a sensible balance between the need to respond formally to patients when significant things go wrong and the need to keep reporting burdens within manageable proportions.
Building on this work, the regulation sets a series of specific steps that an NHS body will have to take where a notifiable safety incident occurs. These are: to notify the relevant person that the incident has occurred, to advise them what further inquiries will be made, and to apologise. A failure to take these steps will be an offence. This verbal notification then has to be followed up in writing.
This new duty of candour will support and underpin the Government’s ambition to transform culture across the NHS and support openness and learning, both between staff and organisations and to patients and service users. We will extend the duty to all health and adult social care providers from next April. Over time, the duty of candour will contribute to safer care. Noble Lords will also be pleased to learn that this week the General Medical Council and the Nursing and Midwifery Council have published for consultation draft guidance on the professional duty of candour, a measure that complements the statutory duty of candour on providers.
I finish by touching on the other new registration requirement that we are introducing—the fit and proper persons test, a requirement for directors of organisations registered with the CQC. The responsibility for providing safe and acceptable care will always rest with providers themselves. The tone and culture of an organisation is set by those people at its head. No matter how effective, regulation cannot be a substitute for good leadership at a provider level. All too often, individuals at the head of an organisation have been out of reach, even where they have overseen the most shocking standards of care. These regulations put an end to this, giving the CQC new powers to remove directors who are responsible for poor care. For the first time, the regulations place a legal requirement on NHS bodies registered with the CQC to ensure that their directors are fit and proper to fulfil their role. By next April, we plan to extend this requirement to all providers of health and adult social care registered with the CQC. This new measure, alongside the ability to bring prosecutions where failures in care harm patients and service users, will greatly increase the ability of the CQC to hold corporate bodies and their senior officers to account.
Effective regulation of health and adult social care is essential to protect patients and service users from the risks of poor care. The fundamental standards will support the Care Quality Commission in holding providers to account for the quality of care that they provide. Taken as a whole, these regulations improve the legal protections offered to service users, underpin and support a more effective regulatory regime, and champion openness and transparency across the NHS. I beg to move.
Amendment to the Motion
Lord Hunt of Kings Heath
At end insert “but that this House regrets that they undermine the protection of care home residents by removing current requirements in respect of complaints procedures, emergency procedures and choice of food”.
Lord Hunt of Kings Heath (Lab)
My Lords, I should say right away that, overall, I welcome the thrust of these regulations. I am going to raise a number of points covered by my amendment to the Motion. I do so on the basis of broadly accepting the point raised by the Minister in relation to the CQC’s role and the way in which it is performing. However, there is particular concern about residents in care homes and the impact of the regulations which I would like to put to the Minister. My real concern is in respect of the three areas mentioned in my amendment in that, far from enhancing quality and public safety, the regulations actually reduce current protections in relation to complaint systems, food and emergency procedures.
I listened with great care to the Minister. He prayed in aid the remarks of Sir Robert Francis, and I will come back to them in a moment, but can the Minister also confirm that, in a sense, the regulations are a victim of the Government’s desire for lighter-touch regulation? The CQC clearly has a critical role in protecting some of the most vulnerable citizens in our country. This is not the moment for lighter-touch regulation. On any count, knowledge of the complaints system is important, particularly in view of concerns about standards of care in the health service and in many care homes. The current regulation states that the registered person must,
“bring the complaints system to the attention of service users and persons acting on their behalf in a suitable manner and format”.
The regulation goes on to require that,
“service users and those acting on their behalf,
are provided,
“with support to bring a complaint or make a comment, where such assistance is necessary”.
My understanding is that the Minister’s department is briefing that the new regulations are more outcome-focused and less specific about processes. However, if being less specific about processes means not telling people about them, it meets that test, I suppose. I also understand that his department is briefing that having an accessible and open culture is the same as having a specific duty to inform people about the complaints procedure.
However, the point I should like to put to your Lordships is that most residents and relatives have little idea of what to expect from a care home. Surely it is a relief to relatives and advocates when they are informed about these rights. It makes it easy for them to raise questions about care, knowing that that the regulations have the force of law and the matter cannot simply be left to local discretion. Few people comparing the two sets of regulations on rigour about complaints could argue that the proposed replacement is an improvement.
If one considers the tragic case of Winterbourne View—which I suspect a number of noble Lords will refer to—and other reports and the reports of the Health Service Commissioner, they continually emphasise that many providers’ stances on complaints are not fit for purpose. We know in relation to NHS complaints that there are continuous problems about people wondering whether they really can use them effectively. Almost all recent major care scandals have had their roots in people not being listened to or not knowing that they can complain. That is the basis of my major concern about these regulations.
Having emergency procedures in place seems pretty important, too. I do not understand the logic of deleting this important regulation. It may be that the Minister will say that it is covered by the new Regulation 17, but that states merely that, as part of good governance, the provider must establish systems or processes which enable the registered person to,
“assess, monitor and mitigate the risks relating to the health, safety and welfare of service users and others who may be at risk which arise from the carrying on of the regulated activity”.
That could easily be interpreted by providers to mean the normal, day-to-day risk assessments that they are required to carry out. I remind the Minister that care homes are pretty fragile organisations, often with very few qualified staff, and a significant proportion are without managers in place. That is why it would be much better to be absolutely explicit that emergency procedures should be in place.
Baroness Barker (LD)
My Lords, the Minister, the noble Baroness, Lady Greengross, and I have a fair degree of form on this subject, going back over a number of years. Indeed, as I listened to the Minister introducing this matter to the House tonight, my mind wandered back to the dreaded days of the NHS Redress Bill, when the noble Lord, Lord Warner, sought to assure those of us who, in those days, sat on the other side of the Chamber that all would be well in the NHS and there was no need for a duty of candour because a new culture of openness was going to work its way through the NHS.
I have to say that things have changed because back then the professional bodies representing the staff of the NHS fought that duty of candour tooth and nail, so it is rather pleasing to have the news this week that they now have changed their minds and are willing to accept that they should uphold the duty of candour. They are moving to a point of discussing with their members not whether, but how, they do that.
I agree with the Minister that the CQC in its present form is a long way from CSCI and its predecessors in their various guises. It is properly constituted, far better resourced and has a focus to its work. Albeit that it works across a far bigger canvas than it ever did in the past, it is already performing to a much higher degree than before.
However, I return to the point the noble Baroness, Lady Greengross, and I made during the passage of the Care Bill. In that legislation, in relation to care homes and incidents where vulnerable adults may be thought to be at risk of abuse, this House fell short in its legislative function in that it did not give a power of entry to people or bodies who suspected that there might be abuse taking place. It is with that deficiency in the law sitting in place that we have to judge all the regulations and guidance such as this that come before us and ask ourselves whether, if a person was being abused or maltreated in a care home, it would be detected.
Therefore, the noble Lord, Lord Hunt, is right to focus, as he has done, on the issues of complaints procedures and emergency planning. I accept that within the overall framework service providers are now required not only to provide their services but to report on outcomes for individuals and standard of care, but nonetheless, there is something slightly amiss. For me, it goes back to the issue of power of entry. It goes back to the point at which a concerned relative has the power to override things.
I would also like to ask the Minister for a point of clarification. It seems that Ministers are quite clear that the introduction of new basic standards rectifies what was clearly an unsatisfactory position whereby one could not prosecute a provider unless and until an improvement notice had been issued. That was clearly wrong, and a number of providers got off the hook on that technicality. Will the Minister clarify, if he can, that under these regulations a breach of fundamental standards is still not in and of itself a reason to trigger a prosecution and that a reason to trigger a prosecution is a breach of the regulations? I would like to know how the department sees that working in practice to cover the deficiency to which I alluded a moment ago.
Finally, I welcome the fit and proper person test. It is long overdue. It is a good job that it is coming to the statute book as quickly as it is.
Viscount Hanworth (Lab)
My Lords, the quality of the provision in old people’s care homes varies widely. In the best of them, the residents are treated with respect and solicitude. In the worst of them, as we have witnessed recently, they are treated callously and brutally by underpaid and badly trained staff.
The increasing longevity of our population is leading to a rising demand for the provision of care for the elderly. Until recently, the implications of these developments have been ignored by all but a few concerned parties. The matter was brought forcefully to the attention of the public at large by the financial collapse of the Southern Cross enterprise, which was responsible for at least 20% of the national provision of residential places in care homes. It was running 752 homes when it collapsed in 2011 with losses of £300 million.
Southern Cross had been acquired by the private equity firm Blackstone Capital Partners for £162 million in 2004. Thereafter, it expanded rapidly. Through acquisitions, it tripled the number of homes that it was managing. The directors became multimillionaires. Inspections that were conducted during the period of its expansion raised grave concerns over the provision of care by homes within the Southern Cross portfolio. Indeed, the enterprise was warned about failing standards in its homes as it prepared to float on the stock market.
A more dramatic instance of the failure of care was provided by the scandal of Winterbourne View, a public-funded private hospital. A “Panorama” investigation broadcast in 2011 exposed the physical and psychological abuse suffered at the hospital by people with learning disabilities and with challenging behaviour.
The problems besetting care homes have been due, in part, to the inadequacy of their regulatory oversight. They have also been due, in large measure, to the increasing financial stringency under which they are operating. The income received by the homes from fees has been falling. Those fees have been paid on behalf of the great majority of residents by local authorities. Their income has been driven down by the Government’s austerity measures. At the same time, their costs have increased through factors outside their control, such as rising energy prices.
Another adverse condition is that the borrowing of the care home sector averages 75% of its net assets. This abnormally high level of indebtedness has been a result of the borrowings that were linked to the spate of acquisitions that preceded the general financial crisis of the sector. It has been pushed even higher by trading losses. This will expose the sector greatly to the widely anticipated rise in interest rates in the not too distant future.
The Government have reacted to these problems in a manner that many people regard as inadequate. They have not sought to improve the financial circumstances of the care homes. Instead, they have sought to improve the regulatory framework affecting the care homes via amendments to the secondary legislation associated with the Health and Social Care Act 2008, which will come into force in April 2015.
According to the testimony of the Minister of State for the Department of Health in the Commons on 16 October, the new regulations will,
“bolster the power of the regulator to take enforcement action, including bringing prosecutions against providers of poor care”,
and issuing penalty notices.
He remarked that, under the existing regulations,
“a notice had to be served first before moving to prosecution. If the provider complied with the notice, nothing could be done”.—[Official Report, Commons, Sixth Delegated Legislation Committee, 16/10/14; col. 4.]
The essential purpose of the new regulations is, therefore, to encourage improvements in the quality of care by strengthening the sanctions for failures.
Baroness Howarth of Breckland (CB)
My Lords, I will be brief, as I always am. I do not want to repeat what has been said before, much as I would love to be led down the path of talking abut the problems faced by care homes in the present financial climate. I must first declare an interest as a trustee of Livability, which provides a large number of care homes for disabled people and for other groups. I am therefore, as a trustee, in the role of a provider. I also want to speak very briefly on behalf of families and carers.
First, I say to the Minister that I welcome the regulations. I was interested in his spirited defence of them, and I know his great belief in them. There are aspects of the new regulations that strengthen the potential to hold care providers—such as my organisation—properly to account. That is all positive, but I simply want to address myself to the issues around the amendment on the Order Paper, because there is an issue and I would very much like the noble Earl to think about it.
We have been approached by a number of organisations which said that families and residents are very concerned about these three aspects of the regulations. I have looked at the old wording and at the new wording, and I found that the new wording is more elegant but much more obscure for ordinary people to relate to. It is terribly important that ordinary folk in a care home—both the providers and those receiving the service—understand that they have a right to be told about complaints procedures.
Clearly, that is there already. I disagree with those who say it is not. All of it is to be found within the regulations and the follow-up documents by those who actually dig through them. I believe that the noble Earl hoped—as he listened to all the hours of discussion of these issues—that this would be absolutely crystal clear. If these issues are clear, they also help leadership and management. It is much easier for providers to tell their staff how to take things forward if the words are absolutely clear, and if there is some sense of being given flexibility or whatever the expectation is.
When it comes to proper planning for emergencies, providers have an absolute responsibility to ensure not only that they have those plans, but that in the interests of health and safety everybody understands them throughout. Not only the providers but the residents themselves must understand. It is possible to have a great discussion about these issues among those who are receiving care. It is possible to discuss complaint procedures, choice of food and what happens if there is a fire and people can only be got out of certain areas by particular routes.
What I am saying is much simpler than the rest of the discussion. I would like the Minister to look at the wording, because in my opinion this is about language rather than intent. We have excellent regulations but, if families and users are concerned about these three areas, the Government have a responsibility to listen. I know we have a listening Minister.
Earl Howe
My Lords, I am grateful for the questions and comments raised by noble Lords. I will do my best to answer them in the time available. Perhaps I may begin with the issues raised by the noble Lord, Lord Hunt. The noble Lord expressed his regret that certain phrases no longer appear in the regulations, and those concerns were echoed by the noble Viscount and the noble Baroness, Lady Howarth. I should like to reassure the House that, although the regulations do not include express references to the three things highlighted in the amendment tabled by the noble Lord, Lord Hunt—informing service users about complaints procedures, having emergency procedures in place, and offering choice of food—nevertheless providers must still demonstrate to CQC that they are doing those things.
This is possible because the fundamental standards work in a different manner from the current regulations. They set the outcomes about quality and safety that must be met, rather than just the processes that must be in place. They set out the ends, rather than merely the means. Because we describe these outcomes in regulation, we no longer need to spell out a long list of processes in regulation as well. However, all the areas highlighted by the noble Lord nevertheless fall within the scope of the new regulations. For example, planning for emergency procedures is covered by the new safe care regulation, which requires providers to ensure that care is provided in a safe way, and that they do all that is reasonably practicable to mitigate the risks of unsafe care. A provider that had no plans in place to deal with emergencies such as floods or staff shortages could not claim to be meeting the regulation, because they would not be doing all that is practicable to mitigate the risks to the health and safety of service users from emergency situations. In practice, not having a plan in place for emergencies will therefore be a breach of the regulations.
The obligation to offer a choice of food and drink falls within the new person-centred care regulation, and the newly drafted nutrition regulation. We have introduced a new person-centred care regulation which requires that a person’s needs must be met, and that their preferences must be taken into account and, where possible, met. I emphasise that this applies not only to food preferences, but to all other aspects of care as well. This is a significant step towards greater person-centred care, advocated by many over recent years.
In addition, the nutrition regulation states that a person’s nutritional needs must be met, and it will be a criminal offence to fail to meet this regulation in a way that causes avoidable harm or significant risk of such harm. These two regulations work in tandem to require that a person’s individual nutritional needs are met and their individual preferences are reflected wherever possible. This is a stronger position than merely requiring that people be offered a choice. Such a requirement could be met by offering a person a choice of two things that are neither desired nor suitable. On the issue of complaints, the new complaints regulation states:
“The registered person must establish and operate effectively a system for identifying, receiving, recording, handling and responding appropriately to complaints, and requests for action to be taken, by service users and other persons”.
A provider who does not make patients and service users aware of their complaints system could not claim to be making it accessible, or claim they had an effective means of identifying complaints. Therefore, they would be breaching the regulation. CQC’s draft guidance about compliance with the regulations, which is currently subject to consultation, includes more information about all of these areas. It is this guidance that sets out in more detail what CQC will look for when checking whether providers are meeting the regulations. If noble Lords are in any doubt or have anxiety after this debate and after what I have said, I assure them that I would be happy to feed in the concerns which have been raised this evening in the context of the guidance that is now in preparation.
The noble Lord, Lord Hunt, described the regulations as light-touch, and the noble Viscount, Lord Hanworth, suggested that the Government were somehow pursuing a deregulation agenda by introducing these regulations. I must say to the noble Viscount in particular that that is a complete misreading of these regulations. Indeed, his speech indicated to me that he is labouring under a number of serious misapprehensions. Past experience has shown that there are limitations to prescriptive regulation. It is very difficult to make regulation exhaustive. The list might come to be the upper limit of what is provided, rather than the floor below which care should never fall. For example, the old national minimum standards for care homes included very specific requirements that set out the minimum bedroom sizes in square metres. In practice, this minimum became the default normal size for rooms.
The guiding principle behind the fundamental standards is that they set an overall outcome that must be met. The responses to our consultation showed that the vast majority of respondents agreed with this, and thought that the regulations were clearer as a result. I hope that that reassures the noble Baroness, Lady Howarth, in particular. Importantly, this approach allows the CQC to take a more rounded look at quality and safety as it inspects, rather than taking a tick-box approach to inspecting done solely against prescriptive regulations.
Lord Hunt of Kings Heath
My Lords, I am grateful to all noble Lords who have taken part in this short but very interesting debate. I say to the noble Baroness, Lady Barker, that I agree with her on the importance of the duty of candour. We do not really have time to discuss this in detail, but alongside a statutory responsibility on duty of candour there is a need to address culture, particularly within the National Health Service. I am not convinced that the current regulators are helping the duty of candour. I think that we have a blame/risk-averse culture currently operating in the health service which is often driven from the centre. Alongside a duty of candour, we have to look at the need to change the culture to one which is far more collaborative in support of organisations dealing with very difficult issues.
I agree with the noble Baroness, too, on power of entry. Her point on prosecutions being based on breach of regulations was important, which is why the language is so important.
The Minister said that this was not a deregulatory measure. I presume that he is saying that the Department of Health is not chalking it up to the Cabinet Office as an example of deregulatory action. However, we have all had experience of deregulatory approaches taken by Governments and I have to say that some aspects of these regulations seem to have been influenced by a deregulatory approach—I know that the Minister rather chided my noble friend on this point. In the end, some regulations are essential and sometimes advice and guidance alone are simply not sufficient. The noble Baroness, Lady Howarth, acknowledged that there are strengths in the regulations, and I do not disagree with her about that. Sometimes there is a need to use regulations to be absolutely clear to those who are providing services and those receiving them. That is the case when it comes particularly to issues around food choice, emergency procedures and complaints.
The Minister explained why the Government have gone for what they describe as an outcome-based approach—I understand that—and he then quoted to us Regulation 17(2)(e), which states that the providers must,
“seek and act on feedback from relevant persons and other persons on the services provided in the carrying on of the regulated activity, for the purposes of continually evaluating and improving such services”.
That is elegantly written, as one would expect from his department, but it does not say to me that residents are going to be told how to make complaints. Let us think not about the chains but about the individually owned care home. I really doubt whether that would be very clear to the people in charge. It would have been better if it were explicit in the regulations.
I was going to ask the Minister if he would ensure that the CQC read the debate, but I am grateful to him for already giving us that assurance. I hope that when CQC inspectors go into care homes, they are clear that the regulations mean that there should be a proper choice of food, people should have complaints systems signposted to them, and there should be an emergency procedure in place.
This has been a very useful debate. I will withdraw my amendment. I wish the regulations godspeed. I support the CQC in its approach, but, when it comes to care homes, the CQC needs to be explicit both to the homes and the inspectors about the basic standards that need to be provided.
Infrastructure Bill [HL]
(10 years ago)
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Lord Ahmad of Wimbledon
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Lord Ahmad of Wimbledon) (Con)
My Lords, I will also speak to Amendments 101 to 107, 122, 126, 127 and 132, which provide for the off-site abatement of carbon to apply to Wales.
Welsh Ministers share this Government’s desire to reduce carbon dioxide emissions from buildings and have requested that we table amendments to extend the application of Clause 26 to new buildings in Wales. Noble Lords will no doubt be aware that the powers to make building regulations under the Building Act 1984 in Wales are transferred to Welsh Ministers. Clause 26 confers new powers to make building regulations for England on the Secretary of State, but these powers for Wales would not be conferred on Welsh Ministers in the absence of these amendments.
In its 2012 consultation on changes to the energy performance requirements of the building regulations, the Welsh Government recognised the technical and economic limits to reducing carbon emissions through on-site measures only in new buildings. The Welsh Government recognise the potential for off-site carbon abatement as a useful tool in the armoury for tackling emissions in the existing building stock and for supporting investment in renewable energy. Any proposals to use this power would be subject to public consultation in Wales and the Welsh Government have committed to a review of the current energy performance requirements of the building regulations in Wales in 2016. The Government have therefore tabled an amendment allowing for the Secretary of State to make separate commencement of the changes to the Building Act in England and Wales. This recognises that the two Administrations could adopt different timelines for implementation depending on the outcome of the review in Wales in 2016 and allows each to introduce the policy at the appropriate times.
Reducing carbon emissions from the built environment is a challenge that all Administrations must face if the UK is to meet its overall climate change targets. Applying the provisions to Wales will enable the Welsh Government to also introduce cost-effective, flexible legislation to meet their objectives. I beg to move.
Lord Ahmad of Wimbledon
Lord McKenzie of Luton
“( ) The provisions in section 1(1A)(d) of the Building Act 1984 regarding action to be taken as a result of the building’s contribution to or effect on emissions of carbon dioxide shall apply to—
(a) all buildings and developments consisting of ten or more properties, or(b) from 2018 all buildings or developments of any size.”
Lord McKenzie of Luton (Lab)
My Lords, this amendment seeks to limit the small sites exemption to two years from 2016 and to abolish it thereafter and to require the threshold in the interim to be sites with fewer than 10 properties. The Government have sprung their small sites exemption on us with little or no consultation, although they are now consulting on the matter. In the mean time, it remains unclear what is meant by small sites or by the exemption. We were hoping to have some clarity on these issues in time for today, but, alas, no. I thank the Minister for his letter of 3 November, where he said that the Government had endeavoured to publish the consultation document and the government responses on the zero-carbon consultation for the House of Lords Report stage, but were, however, still working on the document. It would be helpful if the Minister could say more about when we will be able to see that.
As we debated in Committee, the rationale for any exemption from the zero-carbon homes standards is a bit thin. The Government have already lowered these standards. If there is any justification for a time-limited exemption for some sites, it is that, having announced it, it might be argued that some time is needed to move back to the single standard. However, the longer the uncertainty about the detail of the exemption continues, the less valid that point is. The Government have argued that the exemption will be of help to small builders who have more difficulty in responding to new regulations. While I am sure that we all wish to encourage small builders, this is not the best way to do that.
We have recently had the benefit of the report from Michael Lyons, covering a whole raft of interesting stuff on housing. Within the package of support for SMEs that he recommends, for example, are these points:
“Legislative change to permit ‘redline’ outline planning applications on smaller sites of fewer than 10 homes. Local authorities should identify small sites in public ownership in local plans, and work with … public landowners to make them available for purchase and development by SMEs. Local authorities and their New Homes Corporations, working with lead developers should offer more packaged … opportunities for serviced sites to help SMEs access the market, including in Housing Growth Areas”.
Therefore, there are other ways in which to help small builders. In any event, it was pointed out in contributions to our debate that it is assumed that only small builders build on smaller sites and that larger builders would not seek to parcel sites to take advantage of the small sites exemption. It is also the case that a significant number of homes are provided on smaller sites.
The Lord Bishop of St Albans
My Lords, in speaking to Amendment 108A, I should like to thank the noble Lord, Lord Berkeley, for co-sponsoring it. I bring forward this amendment out of concern that the standard proposed in the Bill is significantly lower than that already agreed through cross-industry consensus. I fear that an excessive focus on off-site carbon savings will undermine the effectiveness of the proposals and that an exemption for small sites will create confusion by causing the emergence of a two-tiered regulatory system. It is essential that housebuilders meets the carbon compliance standards that have already been agreed through cross-industry consensus. This was endorsed by the Government back in 2011 and strongly supported by around 70% of those responding to their consultation. I am therefore troubled by the proposal of a new on-site energy performance standard for zero-carbon homes that is lower than the one already agreed. It is not clear why this reduction is necessary. The proposed exemptions from the standard for homes built on small sites and for starter homes would also serve to undermine the main purpose behind the zero-carbon standard: namely, that of prioritising carbon reduction. It is to address the lack of measures necessary to realise the Government’s stated commitment to carbon neutrality that I have tabled this amendment which requires the previously agreed carbon compliance standard to be met on-site before allowable solutions can be undertaken. It also requires all homes to meet that standard, ensuring that no exemptions are allowed.
First, I will address zero-carbon standards. Your Lordships’ House will be aware that the zero-carbon homes standard was originally created by the Zero Carbon Hub set up by the previous Government. This involved the green technology industry, developers and the Government. Together the decision was taken to set the standard based on what was technologically available back in 2010-11. As this Bill is addressing homes that will be built after 2016, what is technologically achievable will be far greater than the minimum standard set out back in 2011. The cost and viability of these technologies will have improved along with their accessibility and reliability. It is therefore difficult to see on what basis the Government have drawn their conclusion that the previously agreed standards are now unworkable. Surely standards must be set at the optimal point, which has been previously agreed through intense cross-sector scrutiny, and must be consistent across the board. There should be a common standard regardless of the size of the development.
It is essential that these agreed standards apply to all homes, especially starter homes where tight budgets are more likely to squeeze out energy-saving measures. The proposed exemptions for small sites are problematic as such sites are much more likely to be in rural areas that are off the gas grid and therefore expensive to heat. We must not allow this Bill to be a means of compounding the desperate situation of those households already struggling with fuel poverty. As we have already heard, there is currently a lack of clarity over what comprises a small site. A consultation on small sites was promised before the summer but has yet to take place. It would be very helpful if, in his summing up, the Minister could tell the House when the consultation can be expected. As many as 12.5% of homes a year could come under the small sites exemption if these sites are classified as 10 units or fewer.
It is also as yet unclear which parts of the zero-carbon policy the exemption refers to. Does it refer only to the allowable solutions flexibility mechanism, which can be used to top up the carbon savings from code level 4 to level 5, or will developers of small sites be exempted even from the code level 4 on-site standard? The proposed reduction to code level 4 is in itself damaging and unnecessary. Three of the country’s largest housebuilders have recently shown that code level 4 compliance can be achieved primarily through improved efficiency of the building fabric, in the form of insulation and glazing, and not requiring any expensive renewable energy technologies. Furthermore, these developers have stated that they expect to be able to build these code level 4 homes, when delivering at scale, to the same price as it currently costs to build to the 2010 code level 3 building regulations.
In the immediacy of economic pressures, we must not lose sight of the overriding purpose for which the zero-carbon standard was designed. The recently published IPCC report reiterated the very real dangers of anthropogenic global warming and the concurrent impact on humanity across the world. Carbon reduction is essential to climate change adaptation and mitigation.
Briefly, and in passing, I am also glad to say that my own church, the Church of England, is playing its part. Vicarages and other properties are now normally being built to the highest green standards and more than 400 of our church buildings, many of them medieval, now have some form of renewable energy.
In conclusion, the Bill would lead to confusion in the supply chains and among house buyers, a two-tier regulatory environment and greater fuel poverty. Moreover, the large-scale exemptions signal a retreat from a full-blooded commitment to reducing carbon emissions, the goal on which the future flourishing of our country as part of the global community depends.
Baroness Maddock (LD)
My Lords, I have a great deal of sympathy with the comments of the right reverend Prelate the Bishop of St Albans. I spoke on these issues in Committee. As has been said by both previous speakers, we managed to get such agreement across the building sector and all the organisations that care about these issues as to what the standard would be. When we came in as a coalition Government, we stuck to that. For some reason, we changed our minds. I would really like the Minister to explain what made us question the agreements we had and the standards we had wanted.
I know that two of my honourable friends who have been Liberal Democrat Ministers in the department have pushed to row back from where we were going, and we have now gone forwards again. However, we have not managed to get any farther. We are owned an explanation from the Minister tonight of why we have ended up in this position when we had such a good agreement back in 2010.
Lord Teverson (LD)
My Lords, I welcome both these amendments; indeed, they are very similar to amendments I tabled in Committee. I am grateful to both the noble Lord and the right reverend Prelate for pushing these further to see what response we get from my noble friend the Minister.
I will try not to repeat everything that I said in Committee. On the minimum number of houses to which this would relate, the Bill takes everything the wrong way. It is absolutely clear that smaller builders—whom this clause does not target very effectively, as the noble Lord, Lord McKenzie, said—are more capable of building better-quality homes than the large builders. They are in no way constrained by technology. The clause somehow conveys a government view that small-scale builders are merely jobbing builders with no skills. That is absolutely wrong and sends completely the wrong message. They can deliver a high standard of homes as well as any other building business.
I agree with the right reverend Prelate. I certainly live in a very rural area. A number of the developments there are small scale, and they are all off the grid. I am off the grid. Local developments in villages around me are off the grid. We therefore have the problem that we institutionalise for another 50 to 100 years, or whatever the life expectancy of the property is, potential fuel poverty for those who live in those houses—that or we have an expensive retrofitting programme in the future, which we are already struggling trying to make work. In fact, DECC’s own figure for the cost of retrofitting the current housing stock to get it up to a proper level is £60 billion. That is quite a big sum. We should not be starting to add to that figure.
I welcome the proposal to keep a minimum number of houses; I suggested five in Committee, but 10 is quite reasonable. I welcome that fact that my noble friend the Minister, judging by our conversations, does not see the figure being any greater than that. Clearly, we are having a consultation process at the moment and I am sure that he cannot be specific until that is closed, but I welcome the fact that the Government have recognised that that number cannot be too large. We certainly need a sunset to this clause. I hope that that will come out of this as well.
My noble friend Lady Maddock has gone through the questions surrounding the standards for zero-carbon homes very well, and how that issue appears to have moved backwards and forwards and backwards. I look forward to enlightenment in that area. I again come down to what the right reverend Prelate said about allowable solutions. I am not at all against them in concept, but wherever possible the targets need to be met within the building itself or very close to it. Once again, if we do not do that, the people who live in those houses will have increased energy bills for as long as they live there. We might neutralise carbon emissions globally—ensuring that is much more difficult on allowable solutions than actually on the property itself—but then you still have the problem that that property requires more energy to heat it and to keep it to the right standards.
Lord Ahmad of Wimbledon
My Lords, first I thank all noble Lords who have participated in this debate, and in particular the noble Lord, Lord McKenzie, and the right reverend Prelate for their amendments, which have allowed us to discuss this important issue again.
I am conscious that Amendment 101A has already been discussed in Committee. I am of course happy to revisit the subject because of its importance, and in doing so I ask noble Lords to excuse me if I cover points we have covered before. From our previous discussions, and as my noble friend Lord Teverson has alluded to, I know that a clear consensus was emerging that in designing the zero-carbon homes policy we must ensure that smaller builders are protected from increases in costs that may make it more difficult for them to compete. In seeking to limit the scope of the application of off-site carbon abatement measures to developments of 10 or more dwellings, the amendment recognises that important principle. On that basis it is well intentioned and in line with the Government’s thinking on the issue.
With regard to the Government’s thinking, I am conscious that noble Lords would have expected a consultation paper to have been issued by now and in advance of this debate. Indeed, in various meetings that I have held in advance of this stage of the Bill, this was something we discussed. At this point I can only apologise for the delay which has occurred. I assure noble Lords in that apology that the Government are working very hard on the consultation paper, and we are very aware of the interest on this issue and the need to set out our thinking as soon as possible.
We recognise that achieving the zero-carbon standard could be particularly challenging for small builders. Smaller developers face extra costs in terms of land acquisition and purchasing. They also rely on an ability to identify and redevelop small sites or to assemble small parcels of land into larger opportunities. Research recently published by the National House Building Council on improving prospects for small housebuilders suggests that the availability of suitable small sites—which they indeed prefer—is declining. It also indicates that any extra regulatory costs can impact on the viability of development. We are concerned that if the costs of zero carbon lead to fewer small sites being brought forward, this will further hinder the prospects for small housebuilding firms.
Therefore, while welcoming the intention behind the amendment, it cannot be supported, principally because it would not provide the flexibility that we need on this issue. Putting a rigid exemption in primary legislation would not be the right way forward. There must be flexibility to respond to changing market circumstances and to listen to those people with the main interests in this area, the homebuilders and environmental groups. Our intention therefore is first to seek the views of those interested parties on how the exemption should work. Only after that consultation would we legislate, setting out the scope of the exemption through the building regulations and providing supporting guidance in that respect. Primary legislation is not required to exempt small sites. Section 3 of the Building Act allows for building regulations to make different provisions or to exempt prescribed classes of buildings from the requirements of building regulations. However, I recognise that the key point of the debate is the threshold to be applied.
The amendment proposes an exemption based on sites of fewer than 10 units. I mentioned during Committee that this was one of the options being considered. I say “options”, because we must leave room for respondents to offer up different options or evidence for consideration. We will also consult on the timeframe that should apply to any exemption. It is this area in particular where flexibility is a paramount consideration. What may be right at the time of designing the exemption may not be right further down the line, and the Government must have the ability to review the operation of the exemption appropriately. I hope that it is helpful to clarify these important points and that doing so provides some further reassurance in advance of the consultation being published. We do, of course, welcome noble Lords’ considered opinions and views as part of that consultation exercise, and I assure your Lordships’ House that they will receive a copy at the earliest opportunity.
The noble Lord, Lord McKenzie, asked about a response on allowable solutions from the Government that was published in July and provided to noble Lords ahead of Committee. I am not sure whether there has been a response, or if it did not reach the noble Lord. I specifically asked for it, and was assured that a hard copy was also sent to the noble Lord in this respect. If, again, he requires a further copy of that, I shall be happy to forward it on.
I now turn to Amendment 108A, in the name of the right reverend Prelate. As I said during the discussion on a similar amendment in Committee, this amendment will result in significant problems by prescribing energy performance levels in the Bill. We all share the desire to see energy-efficient homes built that help to reduce carbon emissions and fuel bills. We should not forget that this Government have made significant progress towards delivering on the commitment made by this and the previous Government to ensure that zero-carbon homes are built from 2016 onwards. Since we confirmed our commitment to the 2016 target for new homes to be zero carbon, we have further strengthened the requirements of the 2006 building regulations in 2010, and again in 2014, achieving a 30% total reduction. In fact, the most recent changes we made to the building regulations in 2014 will help to save homeowners an average of £200 on their fuel bills, compared to new homes built before we came to office.
Of course, we are not stopping here. As I have said, we have confirmed that from 2016 all new homes will have to meet even higher standards for on-site measures to be set out in building regulations. These will be set at a level equivalent to that required for a home built to the code for sustainable homes level 4 standard and will save homeowners on average £700 more annually when compared to a typical existing home. The right reverend Prelate talked of building to code 4. This can be done, which is why we think it is a reasonable standard to set. However, as shown by the Zero Carbon Hub’s as-built performance gap programme of work, there are challenges. We should set a realistic and achievable target, not one which pushes the industry to a point where it cannot deliver in practice.
To change the energy requirements for new homes, it is always necessary to consult carefully those affected. We should not forget that we are talking about a technical area that impacts across the whole construction sector. Additionally, the industry reports on building types that this amendment ignores and does not address, such as high-rise flats, because more work is needed. The categories listed in the amendment contain different building types and a rigid standard to cover them all. This may not work in practice. It may, but it is important to take the time to work through it in consultation with the industry. It would not be workable to deliver the proposed standard within six months. Even if it were, it may not be prudent to have such a rigid timeframe for delivery in primary legislation.
The independent Zero Carbon Hub recognises that further technical modelling is required. If, in the light of consultation, even slight adjustments were needed we would not be able to make them without new primary legislation. I assure noble Lords that the Government will strengthen standards and deliver zero-carbon homes from 2016. That is and remains a clear commitment on which we will be held accountable if we do not deliver. Between now and 2016 we will consult widely as to how the new proposed carbon compliance standard can be met. We will share that consultation with noble Lords.
My noble friend Lord Teverson and the right reverend Prelate the Bishop of St Albans asked about exemptions. The number of smaller housing developers competing in the market is significantly lower than it was prior to 2008. Smaller developers often face greater set-up and purchasing costs, compared to larger developers. New regulatory requirements often hit smaller developers earlier, as there are shorter lead times to starting development. With all this in mind, it is vital that the Government give the sector the support it needs, and exemption from the full cost of the carbon requirements is one way of doing so.
Let me also reassure the right reverend Prelate that we work closely with partners such as AIMC4 that have shown that it is possible to build homes to meet a higher level of energy efficiency. The work of that group has helped the Government in deciding to set the on-site requirement at around code level 4, as this should be affordable and achievable for the majority of developers. It is important to recognise that this work was limited in scope and did not extend across the full range of buildings such as flats.
The point was made that the setting of on-site standards could result in a watering down. We worked closely with the Zero Carbon Hub, whose work was hugely influential in helping the Government decide what further action to take from 2016. The hub did not recommend an on-site level for high-rise apartment blocks, recognising that further specialist work was required.
My noble friend Lady Maddock asked some specific questions about rowing forward and rowing back, as she described it, and said that some explanation was needed. I am sure she will appreciate that there are discussions taking place. I hope that my comments have somewhat reassured her that the commitment of the Government to achieve our objective when it comes to zero-carbon homes and to the policy that we have agreed from 2016 remains a priority.
I hope that my responses have been sufficient to reassure noble Lords of the Government’s position on both these amendments and that the approach I have outlined here, as well as in Committee, has demonstrated why these amendments may prove problematic in terms both of increased demands on the home building industry and of the mechanics of delivery. On the basis of these reassurances and accepting that we are still working towards the issuing of the consultation on zero-carbon homes, I hope there is sufficient to encourage the noble Lord, Lord McKenzie, and the right reverend Prelate not to press their amendments.
Lord McKenzie of Luton
My Lords, I thank the Minister for his response to my amendment. I think we recognise that putting material in the Bill reduces flexibility. The point is well made that these things will need to be dealt with in secondary legislation. The purpose of an amendment such as this is to get some debate and discussion going, as the Minister is well aware. He suggested that Amendment 101A, with its recognition of sites of fewer than 10 properties, was an acceptance of the policy. That was certainly not its intent. The key part of that amendment was that there should not be any exemption after 2018.
The consultation that I was probing was the one that was dealt with in the Minister’s letter of 3 November, which was the consultation on the exemption for small sites. If I made reference to allowable solutions it was not my intention. That was the consultation—knowing when it will happen and, more importantly, what is in it.
Baroness Kramer
“(5A) Building regulations made by the Welsh Ministers may make provision for the use, in relation to action taken in respect of a building in Wales, of a register administered by, or by a person acting on behalf of, the Secretary of State.
(5B) Building regulations made by the Secretary of State may make provision about the use of such a register for that purpose.”
“(7A) Building regulations made by the Welsh Ministers may make provision for a payment or payments in respect of a building in Wales to be made to a fund administered by, or by a person acting on behalf of, the Secretary of State.
(7B) Building regulations made by the Secretary of State may make provision about the use of such a fund for that purpose.”
“(6) The reference to the Building Act 1984 in article 2(a) of the Welsh Ministers (Transfer of Functions) (No 2) Order 2009 (SI 2009/3019) is to be treated as referring to that Act as amended by this section.”
Lord Teverson
“Determination of planning applications
(1) In circumstances where planning permission for a development has been granted pursuant to section 70(1)(a) of the Town and Country Planning Act 1990 (determination of applications: general considerations), any building work remaining to be carried out as part of that development after the expiry of six years from the granting of planning permission shall no longer be permitted to be carried out in compliance with the Approved Document Part L in force at the time when planning permission was granted, but shall instead be required to be carried out in compliance with the Approved Document Part L in force at that time.
(2) For the purposes of this section—
“building work” has the meaning given in regulation 3(1) of the Building Regulations 2010 (meaning of building work);
“Approved Document Part L” means a document issued in pursuance of section 6 of the Building Act 1984 (approved documents) for the purpose of providing guidance with respect to the requirements of Part L of Schedule 1 to the Building Regulations 2010 (conservation of fuel and power).”
Lord Teverson
My Lords, this continues a similar theme. I tabled an amendment in Committee to try to get more rigour into ensuring that the building regulations that we have are met and complied with. There is very little point in our legislating if those standards are not met in practice. I quoted the Government’s own adviser, the Committee on Climate Change, which stated that there seemed to be a big gap between what should be happening with the thermal efficiency of homes and what was actually happening. I was not completely reassured by that, but I accept that that is mainly a role of local government.
I am trying move on to address the fact that it often takes—and certainly has over recent years—a long time for a planning permission to become a built-out and lived-in development. We have the situation—I look on it as an anomaly or rather a loophole—whereby the building regulations to which builders must build relate to the date of the planning permission rather than when the development is constructed and completed. If that is only within a couple of years, it makes no difference whatever. We have, however, a number of developments—at certain times more than others—when that stretches over a considerable period. I realise that planning permissions themselves have a shelf life. After three years, if they have not been used, they go into abeyance. However, I remind noble Lords that under that system, as long as you do a certain amount of work—you do not have to complete it—that planning permission remains live. That is something that is done very regularly to make sure that planning permissions are not lost.
I was very impressed by the Minister’s figure of £200 that would potentially be saved per annum by the moving up of building regulations by the Government. Of course, that illustrates very well the extra cost to residents of houses that do not meet those standards—either because they have been exempted under the small development regime that we talked about in the previous amendment or because houses are being built under building regulations that are several years old.
It seems to me that this is something that needs to be fixed—for consumers and certainly for the government strategy on fuel poverty and zero-carbon homes. So I am putting forward an extremely modest proposal that is a longstop: if developments have not been completed within six years of gaining planning permission, at that point they must comply with the building regulations of that time rather than those when the planning permission took place. I have tried to make this amendment as clear as possible. I hope it says that. I very much hope that it is in line with government policy and that this is something of a loophole that we would like to close—particularly when we have periods when building and construction developments take a particularly long time.
Indeed, I would ask whether there is a temptation sometimes to get planning permissions early. Where we have land banks, it perhaps means that construction is delayed but it almost gives a benefit to developers to hang on to undeveloped land. I would like to see this very sensible measure used as an incentive for building, particularly of dwellings when we have such a national housing shortage, to be started and completed within a reasonable period. I beg to move.
Lord McKenzie of Luton
My Lords, we should be grateful to the noble Lord, Lord Teverson, for raising a very important and interesting point about developments that are not completed within six years of the granting of planning permission. As we have heard, it requires the development to be carried out in accordance with current building regulations relating to conservation of fuel and power. This is an attempt to address the very serious point that we have delays in the completion of developments, particularly housing. Given the housing crisis we face in this country, the objective should be to encourage sites with planning permission to be built out as soon as possible.
This is one of the issues that the Lyons report addressed for us. Although this is not the occasion for an extensive discourse on that report, one of the interesting points it makes is that some 80,000 unbuilt homes have planning permission from 2010 or earlier. Some of these will be built to 2006 standards, and so be eight or more years out of date. One of the issues that this amendment raises is how practical it is retrospectively to amend the applicable building regulations. There will obviously be issues around homes that are partially constructed at the cut-off point. Getting homes built earlier is good for obvious reasons, although, of course, it does not necessarily do anything to raise the standards of applicable building regulations.
I might resort to going back to the Lyons report. Obviously, not all these recommendations are yet, or will become, policy, but under the heading “Use it or lose it”, it suggests that,
“the life of a planning permission should be reduced to two years with higher fees applying for renewal of expired permissions”.
That would present an alternative mechanism whereby people have to go back and face updated building regulations. Certainly, more substantive work should be required to count as the commencement of development. That is a problem the noble Lord identified. The report also suggests that,
“councils should have powers to levy a charge equivalent to council tax if land allocated in a plan with or without permission is not brought forward within five years”.
Compulsory purchase powers could be strengthened and streamlined to make it easier for public bodies to acquire land where it is not brought forward and where it is a priority for development, so there are alternative ways to encourage developments to take place and perhaps to realign the nature of those developments with updated building regulations. The noble Lord has raised a very interesting point which I am sure will get a full response from the Minister. One hopes that something could actually flow from this.
Lord Ahmad of Wimbledon
My Lords, I thank my noble friend Lord Teverson for tabling this amendment. I also thank the noble Lord, Lord McKenzie, for his comments.
I should say at the outset that I share the sentiments expressed on the objective of ensuring that more homes are built, and built according to better standards and in line with standards. My noble friend’s proposed amendment sets a six-year time limit on a development being built to the energy performance requirements in building regulations in force at the time that planning permission was granted for the development.
I should start by pointing out that, as noble Lords may be aware, it is not the grant of planning permission that is the trigger for the application of building regulations’ requirements but the submission of a plans application or a building notice, or an initial notice to the building control body. During my time in local government, I remember many applications that were challenging in that regard. Therefore, we think that the amendment as drafted may lead to confusion about what happens under planning as opposed to what happens under building regulations.
However, setting to one side the issues that may arise from the drafting of the amendment, there are important practical considerations about how new building regulation requirements apply to developments already under way at the time that the new regulations are introduced. It can take a long time to plan, design, finance and build a development, as noble Lords know. It is therefore correct that the building regulation provisions in force when the building regulations application is made remain those with which the development must comply. To provide otherwise would lead to unreasonable disruption, perhaps delay, and increasing financial burdens as there would be uncertainty about construction standards and a risk of disruption to the supply chain part way through the development.
For example, large developments such as the famous “cheese grater” building in Leadenhall Street, London, will take many years to build and complete—often longer than six years. If accepted, this amendment would mean that the technical requirements of those developments would need to be changed part way through construction. Forcing a development to change from one set of building regulation requirements to another half way through a project would cause real problems for builders, as I am sure my noble friend would recognise.
However, in saying that, I put on record that I totally understand and appreciate my noble friend’s concern that developers may play the system by submitting a building regulations application and then doing nothing or delaying the development and not having to meet any more up-to-date requirements that may have been introduced in the mean time. From my experience, I have seen that happen, too. The Government have recognised this issue and so building regulations generally require that whenever any changes are made to building regulations, building work in respect of any applications made before the coming into force of the new requirements must commence at the latest within 12 months—otherwise, the new requirements will apply.
This requirement was introduced in 2006. Before then, as noble Lords will know, the time limit was three years. This time limit is set in the building regulations. This gives the opportunity to adjust the time limit in light of the circumstances when new regulations are introduced. If we were to rely on changes to primary legislation, we would then lose the flexibility to respond. If we stated the time limit at an inappropriate point, we could cause real problems for housebuilding, as I have already outlined. It will be for the Government dealing with building regulations changes for 2016 to consider what time limit may be appropriate. I am sure that they will read this debate very carefully to see the issues raised and the views expressed. I believe that my noble friend recognises that the amendment as it stands focuses only on one specific area of building regulations, the energy performance requirements. The time limit which I have just described applies in respect of any change to the standards in the building regulations. Therefore I am sure that my noble friend recognises that it may lead to confusion for developers if different time limits apply to energy performance requirements than to other requirements of building regulations.
The amendment from my noble friend, as the noble Lord, Lord McKenzie, has said, raises an important issue. However, as drafted, it would not work for the practical reasons that I have outlined. I hope that I have set out in some detail the time limit which already operates in building regulations to tackle the risks of developers who seek to just get regulations in place for the sake of it. There will be an opportunity in the consultation on the 2016 regulations for energy performance requirements to be looked at. I hope that, in the light of the assurances and clarifications that I have provided, my noble friend will be minded to withdraw his amendment.
Lord Teverson
My Lords, I thank the noble Lord, Lord McKenzie, for his support and his very good response to the concept that we are discussing. I look forward to the Labour Party developing that policy further. I particularly thank my noble friend the Minister for a very good and useful reply to my thoughts on this. I will read all that he has said very carefully. I bow to his knowledge of this area, which is much more excellent than my own, and which he has both through practical experience and through government. I hope that this might be the start of a further dialogue in this area—one which I will take an interest in, particularly regarding the use of that flexibility that is already there within the legislation. On that basis, I beg leave to withdraw the amendment.
Baroness Worthington
Baroness Worthington (Lab)
My Lords, I begin by apologising to noble Lords for the late tabling of this amendment. It was down to a misunderstanding as to when this group of amendments would be taken.
We now turn to Part 4 of the Bill, concerning energy, and to the community electricity right specifically. Although we discussed this in Committee, the purpose of tabling the amendment is to press the Government again on it. We were not satisfied with the response in Committee and we feel that this needs a considerable rethink in terms of how it is presented in the Bill. I also look forward to debating the amendments that we will come to later today.
The clause heading is “The community electricity right” but it quickly becomes clear from subsection (1) of the clause that this is about not electricity but a subset of electricity that is defined as renewable. That is the point we want to probe. We live in a world where energy markets and the energy system are changing and we are seeing a higher degree of decentralisation of energy, not just in renewable energy but also potentially in gas, both in terms of generation and the extraction of local sources of fossil fuels. Our main concern is that we should not single out a particular group of technologies for what is, in effect, an inflexible proposal from the Government when a much more holistic approach to the issue of community involvement in these projects is needed. There have been examples of local communities being unhappy with proposals for their localities, but there have been many more examples of communities embracing proposals and finding great benefit from the jobs and income that flow to those communities from development in their area.
Although we are fully supportive of the idea of community involvement, we are not necessarily persuaded that a single approach should be applied when considering how to engage communities or help them to benefit from development. The Government’s proposals are restrictive in that sense. Our main concern is that we do not make presumptions about what is going to work in every part of the country. In some parts of the country, rights to buy and ownership stakes will be the interesting issues; in other parts, there may be a simpler formula that enables people to have lower bills for electricity in their local area. We all know that a voluntary approach is being explored to try to identify the best way forward. We will come on to debate the need to allow for a good process and for enough time to come to conclusions before rushing into regulation.
This amendment is not about that but it tries to explore why it is necessary to qualify electricity generation with the word “renewable”. It is defined in law but covers a subset of all types of electricity generation that might attract community involvement and interest. We have seen under the capacity mechanism new development coming forward involving capacity market payments, such as in the small-scale, sub-20 megawatt gas generators that are bidding for 15-year contracts. They may well be located close to communities, which may feel that they would like to have a stake in those projects.
There is an issue here. We fully support more community involvement and better community integration in order to produce much more positive engagement with decentralised electricity production. However, I do not see why the Government have come forward at this time with a narrow proposal applying to a subset of technologies. What is the rationale for this provision relating only to renewables and not to a broader range of technologies that communities might be interested in being involved in or having a stake in? I beg to move.
Lord Jenkin of Roding (Con)
My Lords, I very much share the concern of the noble Baroness. I have an example that I raised at a meeting with the Minister. I am grateful for the trouble she has taken to allow us to engage with her and her officials. I made the point, as the noble Baroness, Lady Worthington, has done, that there are many other worthy forms of community involvement in energy.
The example that I gave at the time was the Plymouth Ovo Energy project—the Plymouth Energy Community, which even contains the word “community”. I was struck by the reply I received from one of the Minister’s officials. Both my noble friend and the official realised that perhaps I deserved a rather fuller reply. I am pleased to say that I received one in a letter from the official, written on the same day. Perhaps I may quote from it because it begins to give an explanation regarding the question that the noble Baroness has just asked. The letter states that there are,
“strong examples of ways in which the community energy sector is innovating, growing and maturing. However, I would say that they focus on different areas of community energy. The Community Electricity Right concentrates on new renewable electricity generation schemes and involves communities as investors”.
Never let us forget that we are talking about the statutory scheme, not the current voluntary arrangements. It is the statutory scheme that is in the Bill. The letter continues:
“On the other hand, Plymouth Energy Community mainly focuses on the supply of electricity from existing schemes and principally involves communities as energy consumers”.
My immediate reaction is: why is this so narrow? The letter goes on to explain:
“Energy supply and generation are dealt with quite differently within the regulatory and policy framework. As such, it would not be appropriate to include the Plymouth Energy Community directly within the scope of the Community Electricity Right”’
The letter then makes what is really the most important point:
“I would just like to add that DECC is taking separate measures to promote local supply. For example, we have formed a dedicated Local Supply Working Group formed of DECC officials, Ofgem, Academics, Local Authorities and community energy groups to explore the regulatory barriers limiting local supply. They will be reporting to the Secretary of State in March next year”.
As I said a moment ago, that goes some way to meet the concern that I expressed. However, I then have to go on and ask my noble friend the Minister this question. What other forms of community involvement are being considered? Here I refer to the task force’s report, which we had only on Monday. On another occasion I expressed my displeasure that it had all come so late, two days before we have to debate the whole subject. That report has a lot to say about various forms of community sharing. They are described in annex A of the report, although at this hour of the night I would not dream of reading it all out.
We must remember that we are at this stage, and the task force is concerned solely with the voluntary system. It had nothing to say—I suspect because it felt that it was outside its terms of reference—about the statutory power for which power is being taken in this Bill. The main point on this amendment is: what other forms are being considered? Yes, the letter is referring to the supply side. The noble Baroness asked about cheaper electricity. When winding up the debate in Committee, I referred to the McAlpine schemes and their proposals to offer cheaper electricity to communities within the reach of the particular scheme that was being developed. It is a very familiar concept in many other areas of the world—notably, nuclear power stations in France. They gained popular consent by being generous with the prices that they charged.
That leads me to my final point. There is no doubt that large parts of the renewable energy industry are dead against any form of statutory straitjacket being imposed on them. They would much rather continue with and demonstrate the success of the voluntary scheme with which they are engaging. I had a very strong statement from the Solar Trade Association. It says that the task force report is an interesting starting point but that,
“it must be given time to be put into practice”.
I think later on we shall say that we have won that argument—we have got more time. Secondly, it says that,
“Government and the community energy sector need to be flexible and proactive in supporting this and in establishing an evidence base”.
Thirdly, it says that,
“no evidence has been provided by the Government that the extensive yet unspecified powers within the proposed Bill are needed or will lead to increased investment”.
Similar points have been made by other parties that have been advising me.
Echoing the noble Baroness, one has to say: what other forms of community involvement are being considered? Will the Government recognise that what they have said is intended to be a backstop provision only if the voluntary system is seen not to be working? Is that still very much their approach on all this? There is no doubt that the provisions of the Bill have worried the industry.
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Baroness Verma) (Con)
My Lords, I thank the noble Baroness for tabling the amendment and my noble friend for his contribution.
The amendment seeks to extend the scope of the community electricity right provisions to include all electricity generation. I listened very carefully to what the noble Baroness said about also looking at different models. I hope I will be able to lay out clearly that what we are trying to do, in the first instance, is to take the positive step of focusing on community-shared ownership of renewables but our drive really is to increase that shared ownership as a positive step in enabling people to take some stakeholding in their local communities and to drive forward a voluntary approach, as has been worked through the Shared Ownership Taskforce.
We have made it very clear that we are not excluding other forms of energy; we are just saying that within the renewables sector we are concentrating on wind and solar, which are two mature sources and therefore it is easy to demonstrate their benefit to local communities. We are absolutely clear that this legislation should apply only to renewable electricity technologies. There are two key reasons for this.
The noble Baroness said that some communities embrace renewables and others do not. We want to bridge that disconnect between national and local benefits for renewable electricity schemes. What we have seen often is that nationally there is great support for the renewables sector but that is not always reflected when it becomes a local issue, where the impacts are felt directly by communities.
What we want to do through this legislation is to seek to redress the imbalance by ensuring that communities have the opportunity to get much more involved and can develop a real sense of ownership of local schemes being developed on their doorstep. This is about promoting decentralised energy generation that is happening in people’s homes and in local communities right across the country.
Renewable electricity generation, particularly from technologies such as wind and solar power, is now well established. This typically translates into lower risk profiles for community investors, which is an important safeguard. It is important to remember that shared ownership is still very much a developing concept in this country. The Shared Ownership Taskforce published its final framework on Monday, and I very much take on board the point my noble friend made that it came a little later than expected. The members of the taskforce have worked long and hard to develop a framework which both developers and local communities can work with. This has been a challenging task, even for the most established renewable technologies where there are successful case studies working on the ground.
To say simply that we need to extend the concept of shared ownership to all forms of electricity generation, without proper consideration of the inherent issues that each faces, therefore makes little sense to me when the voluntary approach on shared ownership to date has been solely developed for, and has focused on, those particular renewable sectors. It is right that, if these powers were ever exercised, we would expect them to focus specifically on established and mature renewable electricity generation technologies, such as solar and onshore wind.
I would like to reassure the noble Baroness again that this is the first step in increasing community shared ownership of renewables. If it is successful, there is nothing to stop us considering extending it to other technologies, because we want lessons to be learnt and to do the proper consultation that everybody would expect to take place when we extend this.
In responding to a couple of questions that were raised by my noble friend, we are encouraging local electricity discount schemes and recognise that they are a valuable initiative which we wholeheartedly support. However, we must remember and recognise that offering reduced-price electricity is giving a gift to the community, not providing the community with the chance to invest in schemes such as community electricity. There is a slight difference there, which we need to be able to recognise.
Lord Jenkin of Roding
A moment ago my noble friend said that there was absolutely nothing to prevent the scheme being extended to other forms of community involvement. However, the word “renewable” is in the first paragraph of the first clause of the part of the Bill which deals with energy. Will extending it to other forms require further primary legislation?
Baroness Verma
It would require proper consultation. We would have to go through the proper consultation processes to ensure that, having seen what has worked or not worked with these initial schemes, when going forward on including other schemes we are able to respond to the needs of those technologies. That is what local communities will ultimately have to face. It is not about primary legislation; it is about looking at how we would be able to add those new schemes through consultation. We have said very clearly that we are not stopping or excluding other provisions of electricity supply. We would have this opened up but we are starting with the focus on the renewable sector. I hope that I have been able to make that a little clearer to the noble Baroness. If I have not done so, I will repeat what I have already stated: these provisions would apply only to renewable electricity schemes. To clarify my noble friend’s point, we would have to readdress it in primary legislation.
Baroness Worthington
My Lords, there we have it. This does not feel to me like appropriate primary legislation. If we have the potential for bringing in new definitions of what these schemes apply to, perhaps we should put it in a schedule or in secondary legislation and have this slightly less draconian in order to give us that flexibility. The Minister has made it clear that this is quite a new thing; it is not tried and tested. I find it quite surprising that this is coming from an anti-regulation Government, and that we should be imposing this quite bizarre new set of regulations on an industry that is growing and developing and delivering great economic benefit to the regions. Yet here we are, imposing this ownership requirement from on high. Although it is obvious that the Government have consulted the industry, it is none the less really unhappy about this—that goes certainly for the solar industry. It does not see the right as something that will help it boost investment; rather, it sees it as an impediment to increasing investment. I am afraid that I am not persuaded.
On which technologies are mature, we have been using various forms of renewable electricity for many decades, including hydro, energy from waste and biomass, but these are excluded. The Government have chosen just two technology types, which happen to be, coincidentally, a little bit contentious politically, and have decided that they are going to impose this ownership right on them.
It is not appropriate to be rushing this measure through with primary legislation at this stage. I have not been persuaded that the definitions are clear. I suspect that this will be an issue that is returned to when this Bill passes to another place. However, at this stage, I do not feel inclined to divide the House, and I am happy to beg leave to withdraw the amendment.
Lord Jenkin of Roding
“( ) Before making regulations under—
(a) subsection (1)(a), the Secretary of State, or another person with the consent of the Secretary of State, must conduct a progress review of voluntary shared ownership and stakes offered to communities, and the Secretary of State or that person must set out the results and conclusions of the review in a report to Parliament.(b) subsection (1)(b), the Secretary of State, or another person with the consent of the Secretary of State, must appoint a panel of experts to review and advise on community stakes and engagement in offshore renewables, and the Secretary of State or that other person must set out the results and conclusions of the review in a report to Parliament.”
Lord Jenkin of Roding
My Lords, that was a very interesting and revealing debate, because we have not always kept clear in our minds the distinction between the innovating and expanding voluntary sector and what would inevitably have to be, on the basis of the Bill, a very rigid, defined and inflexible sector. One has to make it quite clear that we are dealing here with two different approaches to this whole problem. We have all agreed that community involvement is a very good thing; it is simply a question of how.
In the first of these three groups of amendments we have dealt with what is included, and we have had a very interesting answer on that. The second group, which we come to now, poses the question: how? How will the regulations be introduced? The third group, which we shall come to later and to which I think there will be a happier answer, concerns the “when?”.
The previous amendment considered the “what?”. In this group, we debate the whole question of the process and say straightaway that the Bill appears to have nothing whatever to say about any form of review of the developing experience of the voluntary approach. Happily, the task force’s report offers some valuable advice and comment on that. Indeed, in its chapter 5, it talks about implementation and monitoring, and devotes nearly a whole page to the review process. It makes it perfectly clear that in any development of this policy there must be proper reviews at regular intervals, and it suggests in the first place six months from the original report and thereafter annual reviews.
However, one question which is not answered to my satisfaction in the task force’s report is who should do the reviewing. It assumes that it will be itself; that it will be continued either in its current form or as a monitoring group which it would set up. I have had some very firm representations that, if there is to be a different group, it should be the department itself. The argument is put that the task force seems to be wholly committed to one form of participation; namely, shared ownership. I think that we have already established that there can be other forms of community participation which have the same value of promoting community support for a development and giving a community a feeling of involvement in what is going on in its area.
My first amendment in this group, Amendment 109, suggests that the reviews should be carried out either by,
“the Secretary of State, or another person with the consent of the Secretary of State”.
I must ask that, when Ministers publish their formal response to the task force’s report, they make two things absolutely clear. They should make clear, first, that there will be regular reviews of how the voluntary approach to community involvement is evolving and, secondly, who will conduct these reviews.
Lord Wigley (PC)
My Lords, I rise belatedly on the Bill and in today’s debate as well, as I have not had much opportunity since Second Reading to participate in debates relating to these matters. In the context of the amendments that have just been moved and spoken to, I want to put on record the considerable interest in community electricity and voluntary schemes that exists in Wales. I am glad that in speaking to his first two amendments the noble Lord, Lord Jenkin, referred to the need for consultation with Ministers in Wales, particularly on Amendment 110. Indeed, so much interest is there that some have raised the possibility of a Community Energy Wales being created to be somewhat similar to Community Energy Scotland, which already exists.
I plead with the Government that in any development of these schemes, the way in which they are reviewed and the initiatives that are taken centrally, the maximum possible flexibility should be given for initiatives to be encouraged in Wales. We have had a wide range of community efforts in Wales. I see the noble Lord, Lord Bourne, is in his place; he will be very much aware of that from his home area in Ceredigion. Very often, the energy of the people who can be brought together to get such schemes to move forward should be harnessed. I therefore hope that the maximum freedom can be allowed for those in Wales involved in this—at National Assembly level and at community level—and that this will be taken on board in looking at the review procedures for these purposes.
Baroness Worthington
My Lords, it is very late and I do not wish to detain the House. However, I want to add my strong support for the amendments tabled by the noble Lord, Lord Jenkin of Roding. They seem very sensible. I am absolutely convinced that we need to ensure that there is a proper consultation process. It is absolutely right that we should be stipulating that this should not have a retrospective element. I hope that the Minister will be able to put our minds at ease by at least helping us to understand that this should not apply retrospectively. I have looked carefully at the schedule, but it does not seem to be explicit there and it needs to be clear. Should there be any doubt over that, it would set a difficult and unwelcome precedent so we are supportive and we look forward to the response.
Baroness Verma
My Lords, I thank my noble friend for tabling these amendments. The first part of Amendment 109 seeks to include a requirement on government to conduct a progress review of the voluntary approach and report the findings to Parliament before regulations may be made in respect of onshore facilities. The second part seeks to require government to appoint a panel of experts to review, advise and report on community stakes in relation to offshore renewables before regulations may be made in respect of offshore facilities.
To start with the first element of the amendment, as I mentioned in an earlier discussion, the Shared Ownership Taskforce published its final framework on Monday. I appreciate that there has not been much time to consider it, so I will set out today the relevant commitments that the taskforce has made in relation to reviewing and reporting progress. In doing so, I hope to demonstrate that there is already a clear process in place for reviewing and reporting. As such, there is no need to include these additional requirements in the Bill, as my noble friend proposes.
The taskforce intends to set up a monitoring group to ensure that progress is evaluated and reported. It proposes six-month and 12-month reviews and will report its findings to my department. As set out in the Community Energy Strategy, the Government will conduct a review of progress next year. The findings from the taskforce’s progress reviews will be critical to this. The Government wholeheartedly support the work of the taskforce. We will be formally responding to its report early in the new year. In it, we intend to endorse its monitoring and reporting process and confirm that this process will feed into the Government’s review next year. Both the Shared Ownership Taskforce and the Government will be monitoring and evaluating the success of the voluntary approach prior to backstop powers coming into force in line with the Government’s Amendment 129, which we will debate a little later.
Turning to the second part of the amendment on offshore renewables, our focus now is on increasing community shared ownership for established onshore technologies such as onshore wind and solar. These are the technologies covered by the Shared Ownership Taskforce’s voluntary framework. Having said that, the community electricity right powers provide future flexibility to include offshore technologies, but we have been very clear from the start that this would be on a longer timescale. This is not to say that we would not encourage offshore developers to offer a stake to communities where they choose.
The suggestion that my noble friend Lord Jenkin makes in Amendment 109 is sensible. If the Government were ever to consider exercising these powers for offshore renewables, I agree it would make sense to set up a panel of independent experts to provide advice on offshore renewables in advance. This would be a similar approach to the one we have taken for onshore renewables with the Shared Ownership Taskforce, which is comprised of experts from the renewables industry and the community energy sector. However, at this stage our focus is firmly on onshore renewables. It is not our intention to establish a voluntary process for offshore renewables right now. As such it would be premature to commit to this and to restrict ourselves at this point to the wording that my noble friend has proposed. We should therefore wait and consider the option of a panel of offshore experts when we have a clearer position on whether this is needed, and if so, what any panel might look like and report on.
Amendment 110 seeks to introduce an obligation on the Government to consult a range of interested parties in advance of exercising the community electricity right provisions and developing any secondary legislation. I completely agree that consultation is essential to ensure that the Government hear the views of all relevant stakeholders and take them into account before deciding the best course of action. These views will also be critical to the formation of secondary legislation that is fit for purpose and can be implemented successfully. However, I do not believe the amendment is necessary. In Grand Committee I made it clear that the Government intend to conduct a formal consultation before exercising the powers. That position has not changed. The consultation would be open to everyone, including the parties listed by my noble friend in Amendment 110, such as community groups, developers, the Scottish and Welsh Governments and Ofgem. My noble friend’s amendment includes some of the very organisations and bodies that we would expect and encourage to contribute to a public consultation given their clear interest, knowledge and understanding of this area.
I will provide a single response to Amendments 111 and 112 as they are inextricably related. I recognise that this is an extremely important aspect of the provisions, particularly in terms of providing future certainty to the renewables industry. The community electricity right provisions would apply to new renewable electricity projects coming forward in the development process. I confirm that the provisions would therefore not apply retrospectively nor to projects that have already received planning consent. The Government have always been clear that this is our policy intent. For example, the Explanatory Notes to Clause 28(5) explain that this provision ensures that the regulations would not apply retroactively and would apply only to facilities that have not, at that date, reached a specified point of development.
While I am keen to provide these reassurances in the House, it would not be right for me to commit to include in primary legislation a qualification that the regulations may not apply to projects that have applied for, but not yet received, planning consent. That may be an appropriate approach to take, but as I am sure my noble friend will understand, the Government would wish to consult on this matter before making a final decision. In doing so we would look closely at the experiences of successful shared ownership schemes including lessons learnt from the voluntary approach. In conclusion, I hope that I have provided noble Lords with enough reassurance about the Government’s position on these matters and, on this basis, I hope my noble friend Lord Jenkin will withdraw his amendment.
Lord Jenkin of Roding
My Lords, I was grateful for the support of the noble Baroness, Lady Worthington; I hope that she will share my view that we have got almost all that we want. The amendment has not been agreed, but my noble friend on the Front Bench has gone as far as one could possibly expect to say, “Without actually accepting your amendments, we are going to do pretty well everything in them”. It will be for the other place to decide whether that is sufficient or whether it would like to see these included in the Bill. As I explained at the end of my speech, that was the purpose of moving the amendments on Report. Having said that, I thank the Minister for what she said and take much pleasure in begging leave to withdraw the amendment.
Lord Jenkin of Roding
“( ) Sections 27 and 28 and Schedule 5 come into force at the end of the period of two years beginning with the day on which this Act is passed.”
Lord Jenkin of Roding
My Lords, we can deal with this much more briefly. My amendments in this group address when regulations might be introduced. From Second Reading onwards, I was asking for two years. The government amendment has now suggested what is, in effect, 18 months. I have already given a message to the Minister through her department that I am extremely pleased with that. I feel that the argument has been worth while. We now have time to make sure that the reviews really can be reviews of the way in which the voluntary system is working, without the immediate threat of legislation.
The Government have made it clear that this is a backstop power. Sometimes I get the impression from the way in which Ministers speak that they regard the introduction of regulations as inevitable. I certainly do not. The industry certainly hopes not. It hopes that it can satisfy the Government that progress is being properly made, that it can be extended much more flexibly through the voluntary system and that regulations may in fact be unnecessary. Therefore, when Ministers refer to introducing regulations, they should always say “if necessary”, not “automatically”.
I thank my noble friend again, who has brought a substantial concession in answer to the question of when. I beg to move.
Baroness Worthington
My Lords, briefly, I again support the noble Lord’s amendment and welcome the government amendment which will indeed delay the “when” aspect of this question. There remain considerable questions about why these provisions have been brought forward, given that the voluntary approach is moving forward. I still think that we are unfairly singling out two technologies relative to other forms of electricity generation. However, I am happy that we now have more time to think. I absolutely echo the words of the noble Lord, Lord Jenkin, that this should be seen as a backstop power, which we hope should not need to be enforced.
Baroness Verma
My Lords, I am grateful to my noble friend and the noble Baroness for their contributions. We listened carefully to my noble friend in Committee and I have very much taken on board all the views that were expressed on that matter, including those of my noble friend, industry stakeholders and the Shared Ownership Taskforce. I am pleased, in response, to bring forward government Amendment 129 which revises the date of commencement of these provisions to 1 June 2016. That ensures absolute clarity on the minimum amount of time the Government intend to allow for the voluntary approach to take effect. It means that the Government could not exercise these powers before 1 June 2016 at the very earliest. This date allows just over 18 months from the date on which the Shared Ownership Taskforce published its voluntary framework, earlier this week, to when the powers may be exercised. I hope that by bringing forward this amendment I shall allow my noble friend to go home feeling satisfied with his input, which—as much as is possible—is always my intention.
Lord Jenkin of Roding
I am grateful for my noble friend’s graciousness. She has gone a long way to meet us but, as has been indicated in the original amendment tabled by the noble Baroness, Lady Worthington, I think there is a lot more exploration that will need to be done in the other place. In the mean time, I beg leave to withdraw.