(9 years, 8 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
19:02 - Division on Amendment 5 - Ayes: 145 / Noes: 182 - Amendment 5 disagreed.
19:41 - Division on Amendment 20 - Ayes: 87 / Noes: 145 - Amendment 20 disagreed.
Lord Wallace of Saltaire (LD)
My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Deregulation Bill, have consented to place their interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Clause 1: Health and safety at work: general duty of self-employed persons
Amendment 1
Lord Wallace of Saltaire
“( ) After subsection (2) insert—
“(2A) A description of undertaking included in regulations under subsection (2) may be framed by reference to—
(a) the type of activities carried out by the undertaking, where those activities are carried out or any other feature of the undertaking;(b) whether persons who may be affected by the conduct of the undertaking, other than the self-employed person (or his employees), may thereby be exposed to risks to their health or safety.””
Lord Wallace of Saltaire
My Lords, Section 3(2) of the Health and Safety at Work etc. Act 1974 imposes a general duty on all self-employed persons to protect themselves and others from risks to their health and safety, regardless of the type of activity they are undertaking. Clause 1 limits the scope of Section 3(2) so that only those self-employed people who conduct an,
“undertaking of a prescribed description”,
will continue to have a duty under this provision.
A public consultation was conducted by the Health and Safety Executive during July and August 2014. A common concern was that regulations which prescribed only self-employed persons who conducted specified high-risk activities would not be fit for purpose. One of the key concerns expressed by respondents to the consultation was that this would lead to some self-employed persons who pose a risk to the health and safety of others falling exempt from the law. Following the commitment I provided to the House on Report, the Government have now given careful further consideration to the consultation responses and Amendment 1 addresses these concerns.
The amendment sets out the ways in which undertakings may be described in regulations made under Section 3(2) of the 1974 Act to retain duties on self-employed persons. New subsection (2A)(a) covers descriptions based on the type of activities carried out by the undertaking. These descriptions could include a reference to the economic activities that the undertaking engages in, work activities involving a specific hazard, work activities conducted in a specific capacity, or a combination of these things. New subsection (2A)(b) ensures that the regulations could also include a general description covering any undertaking the conduct of which may expose others to risks to their health and safety.
This amendment will therefore enable the Secretary of State to make regulations which not only retain Section 3(2) duties on all self-employed persons who conduct specified high-risk work activities but also retain duties on those self-employed persons who may expose others to risks to their health and safety. This, it is considered, more closely aligns with Professor Ragnar Löfstedt’s recommendation in respect of this provision. Regulations made under this clause will continue to be subject to the affirmative procedure. They will therefore be scrutinised by Parliament at the time of laying to ensure they are fit for purpose before the regulations are brought into force.
The Government acknowledge that assistance will need to be provided to the self-employed to assist with their understanding of this legislative amendment and to limit the possibility of incorrectly assessing whether their work activities may expose other persons to risks to their health and safety. Further to aid this amendment, the HSE will therefore produce guidance targeted at self-employed persons and others to address these issues. It will also signpost them to existing guidance which explains in practical terms what self-employed persons need to do to comply with the relevant law.
Amendment 2 seeks to make it mandatory for the regulations to prescribe all self-employed persons who may pose a risk to the health and safety of others, thereby ensuring that they do not fall exempt from the law. I can provide the noble Lord, Lord McKenzie, with the assurance now that the Government intend to produce a set of regulations that will retain a duty on all self-employed persons who may pose a risk to the health and safety of others under Section 3(2) of the Act. I understand what the noble Lord wants to achieve with his amendment. However, in the light of the assurances I have now provided, and given the safeguards in place for the regulations to be scrutinised further by Parliament before they are brought into force, I hope the noble Lord will not seek to change what the Government have brought forward. I think the differences between us have narrowed considerably although I realise that some very small differences remain about the assessment of potential risk.
Amendment 3 seeks to impose various conditions on the making of regulations before undertakings can be prescribed for the purposes of retaining duties on the self-employed under Section 3(2) of the Health and Safety at Work etc. Act 1974. This amendment requires an independent review to be conducted and considered by both Houses before the regulations can be brought into force.
I hope I can provide some assurances also to demonstrate that this amendment is not necessary. In Committee, the Government amended Clause 1 so that regulations made under the power it creates are subject to the affirmative resolution procedure before they come into force. This provides Parliament with an adequate opportunity to scrutinise and debate the regulations to ensure that they are fit for purpose. The conditions that the noble Lord seeks to impose on the regulations can already be considered by the Houses as part of the affirmative resolution procedure if, indeed, Parliament considers these factors to be relevant. Additionally, the proposed prescribing regulations will contain a commitment for their review and for a report to be published after five years of making these regulations. The report will seek to assess the extent to which the objectives intended to be achieved by the proposed policy have been met.
Given the safeguards already in place, and the consultations undertaken by the HSE, the Government do not consider that a further independent review of the regulations would be of any benefit. Furthermore, the Government have now changed the policy to ensure that all self-employed people who expose others to risks to their health or safety will remain subject to the law. This, I think, is also what the noble Lord seeks to achieve. We have considerably narrowed the differences in the course of our consultations. I thank the noble Lord and other opposition Peers for the conversations we have had with officials in the intervals between the various stages of this Bill. I hope we have provided sufficient assurance. I beg to move that Amendment 1 is made and urge the noble Lord not to press Amendments 2 and 3.
Amendment 2 (to Amendment 1)
Lord McKenzie of Luton
“(b) must be framed so as to include all those whose work activities may pose any risk to the health and safety of any person other than the self-employed persons conducting them.”
Lord McKenzie of Luton (Lab)
My Lords, I will speak also to Amendment 3. I thank the Minister for reverting on this matter at Third Reading, as he promised to do, and for providing some important draft regulations. The issue with which we have grappled throughout this Bill is how Professor Löfstedt’s recommendations might be safely implemented—if indeed they can be—and in particular how it would be possible to deliver the recommendations that those self-employed who pose no potential risk of harm to others should be exempt from the general duties of the Health and Safety at Work etc. Act 1974 without creating unintended consequences.
As we have asserted before, maintaining the status quo for the self-employed is the preferred approach given the minimal requirements that would fall on them in these circumstances and the risk of confusion that could follow any change. However, we accept that this is not where the Government are—hence another attempt to implement the recommendation is necessary. Certainly, the first two attempts to implement a Löfstedt approach fell short. The most recent did not have the support of the professor himself and received substantial criticism when consulted on, not least from the CBI and the EEF, and it is understood that the HSE advised that the last approach should be abandoned. The latest attempt is reflected in the government amendment and in the draft regulations, which I think were circulated on Monday.
As we have heard, this amendment provides a framework for determining who is conducting and undertaking a very prescribed description and, hence, is subject to the general duty. As we have heard, it can be determined or framed by reference to types and locations of activities or any other feature, and, crucially, by whether persons who may be affected by the conduct of the undertaking may be exposed to risk to their health and safety—a very important change.
Although our preference for any exemption from the general duty is that it should be based on everyone being in, subject to exclusions which take people out, rather than the reverse, we see merit in this government amendment. We are comforted by proposed new subsection (2A)(b), which appears to be a substantial change in the Government’s position, as I think the Minister confirmed. It brings matters back to a Löfstedt formulation and therefore we are grateful to the Minister for his efforts in bringing this about, doubtless with the steadying hand of the HSE. It raises questions of how it is to be put into practice and doubtless takes us back to issues around risk assessments, but I was pleased to hear what the Minister said about specific guidance being developed in this regard, as well as use of the existing guidance.
Although comforted, I am bound to say that we are not comforted enough. Our Amendment 2 would simply ensure that, rather than just setting out some of the potential criteria by which undertakings of a prescribed description may be determined—that is, the circumstances which bring a self-employed person under the duties of the 1974 Act—it is mandatory. So regulations determining the self-employed who retain a general duty must always include those who may pose a risk to the health and safety of another person. Indeed, why on earth should that not be the case?
Certainly that approach is what has been provided for in the draft regulations that we have seen. But they are, frankly, only that—draft—and presumably there is no prospect of them being finalised before the end of this Parliament. The Minister may wish to comment on their intended progress. What assurance do we have that the actual regulations will replicate the circulated draft? I understand exactly what the Minister said—that if he were in a position to determine that, that would be the case; it would be the basis on which the Government took them forward. However, we know where we are in the electoral cycle and, come May, who knows who will be in a position to take this forward and on what basis? Is it not the case that the Government of the day could ignore new subsection (2A)(b) in framing any regulations, undoing the good work that the Minister has achieved and reverting to a prescriptive list which bears all the flaws of the earlier version? Changing primary legislation, which could always be done, would be much more difficult.
Incidentally, in determining who is exposed to harm, the Government have discounted the employees of a self-employed person. Accepting that Section 2 of the Health and Safety at Work etc. Act would in any event impose a duty on the self-employed in respect of their employees, can the Minister tell us why that is so?
Our Amendment 3 was drafted before we had sight of the government amendment and it calls for a review of any proposed regulations to see that they are fit for purpose. This still has relevance, although we see that the draft regulations—the Minister referred to this—provide for a review of any regulations within a five-year period. Such a review would clearly be welcome.
On the face of it, the Government’s position represents a significant and welcome change. However, unless we think about locking it down more tightly in primary legislation, it may yet be wasted. I beg to move.
Lord Wallace of Saltaire
My Lords, I thank the noble Lord for his constructive comments, and I recognise that the timing creates some difficulties. I have consulted on whether draft regulations can be finalised, approved and laid before the general election, but I have to say that with the best will in the world that will not, at this stage, be possible. I cannot give the noble Lord a guarantee on the structure, nature and composition of the next Government—I am not sure that any of us can at present. That, of course, has to remain a matter of good will and of the commitment of those who have been involved from all sides in these consultations.
The duties and the question of the employees of the self-employed are covered by the general duty that the self-employed have to consider the interests of others and the risks involved. That seems to me to be fully covered here. We have moved as far as we can and the draft guidance was intended to provide an indication of where this coalition Government would be moving and where we would trust any successor Government to continue in assessing this very delicate balance between where Professor Löfstedt started, which was with the sense that we should try,
“to exempt from health and safety law those self employed people whose work activities pose no potential risk of harm to others”,
and, as he also said in his original review, to,
“help reduce the perception that health and safety law is inappropriately applied”.
That is what we on both sides are attempting to do. I felt that the Government had now moved sufficiently far to assure the Opposition that we were very much pursuing this role and that our proposals would bring Britain into line with other European countries and remove health and safety burdens from the self-employed in low-risk occupations. I hope that that does provide sufficient assurance, but I will see how far we have been able to do so.
Lord McKenzie of Luton
My Lords, I am grateful to the Minister for his response, and I entirely accept his assurance about what he sees as the way forward in circumstances where he and his colleagues were in a position to determine that. It is a great pity that the Government have come a significant way on this but we are just a smidgeon away from locking it down and making it mandatory. I really do not see the problem with doing that. If the Government are happy to provide for that in the draft regulations and happy to take those factors into account as part of their amendment, simply always making it mandatory to feature that provision in regulations seems to me to be quite a small additional step and one that could make a real difference. It is a pity that having come so far the Government cannot just close that gap.
Incidentally, in terms of the employees of self-employed people, I understand that Section 2 of the 1974 Act creates a general duty on all employers, whether they are employees, self-employed, or whatever their status is, so I am not quite sure why they are being excluded here when these arrangements are considered. Perhaps we might reflect on that. This is difficult, because I would like to test the opinion of the House, but I think that the Minister has done his utmost to provide reassurance on the record. That is where we are, and it is probably the best way to leave it today. I beg leave to withdraw the amendment.
Lord Ahmad of Wimbledon
“Short-term use of London accommodation: relaxation of restrictions
(1) The Greater London Council (General Powers) Act 1973 is amended as follows.
(2) In section 25 (provision of temporary sleeping accommodation to constitute material change of use), after subsection (1) insert—
“(1A) Subsection (1) is subject to section 25A.”
(3) After section 25 insert—
“25A Exception to section 25
(1) Despite section 25(1), the use as temporary sleeping accommodation of any residential premises in Greater London does not involve a material change of use if two conditions are met.
(2) The first is that the sum of—
(a) the number of nights of use as temporary sleeping accommodation, and(b) the number of nights (if any) of each previous use of the premises as temporary sleeping accommodation in the same calendar year,does not exceed ninety.(3) The second is that, in respect of each night which falls to be counted under subsection (2)(a)—
(a) the person who provided the sleeping accommodation for the night was liable to pay council tax under Part 1 of the Local Government Finance Act 1992 in respect of the premises, or(b) where more than one person provided the sleeping accommodation for the night, at least one of those persons was liable to pay council tax under Part 1 of that Act in respect of the premises.(4) For the purposes of subsection (2)(b), it does not matter whether any previous use was by the same person.”
(4) After section 25A (inserted by subsection (3) above) insert—
“25B Further provision about section 25A
(1) The local planning authority or the Secretary of State may direct that section 25A is not to apply—
(a) to particular residential premises specified in the direction;(b) to residential premises situated in a particular area specified in the direction.(2) A direction under subsection (1) may be given only if the local planning authority or (as the case may be) the Secretary of State considers that it is necessary to protect the amenity of the locality.
(3) The local planning authority may give a direction under subsection (1) only with the consent of the Secretary of State.
(4) A direction under subsection (1) may be revoked by the person who gave it, whether or not an application is made for the revocation.
(5) The Secretary of State may—
(a) delegate the functions of the Secretary of State under subsection (1) or (4) to the local planning authority;(b) direct that a local planning authority may give directions under this section without the consent of the Secretary of State.(6) The Secretary of State may revoke a delegation under subsection (5)(a) or a direction under subsection (5)(b).
(7) The Secretary of State may by regulations made by statutory instrument make provision—
(a) as to the procedure which must be followed in connection with the giving of a direction under subsection (1) or in connection with the revocation of such a direction under subsection (4);(b) as to the information which must be provided where the local planning authority seeks the consent of the Secretary of State to the giving of a direction under subsection (1).(8) A statutory instrument containing regulations under subsection (7) is subject to annulment in pursuance of a resolution of either House of Parliament.
(9) In this section, “local planning authority” has the same meaning as in the Town and Country Planning Act 1990 (see section 336(1) of that Act).””
Lord Ahmad of Wimbledon (Con)
My Lords, following the publication of the Government’s policy paper on short-term letting in London on 9 February, the Government have laid Amendments 4 and 17 to 19 to include provision for the policy in the Bill.
The Government’s policy paper has taken into account the representations that we received following the discussion document published last year on property conditions in the private rented sector. It has also taken into account our discussions with London’s local authorities and the industry and all the important issues that noble Lords have raised on this clause in previous debates during the passage of the Bill. They have been clear that any relaxation of legislation governing short-term letting in London should be available only to residents, so that they can make their property available when they are away for a limited duration. It will not allow non-residents to use their property for short-term letting on an ongoing or year-round basis. As set out in our policy paper, the Government share this view, and we have put forward these amendments to update the existing legislation and to ensure that we provide an appropriate level of freedom for residents, alongside important safeguards to prevent abuse of these reforms.
The Government have been consistently clear that their aim is to reform outdated legislation from the 1970s that requires Londoners to apply for planning permission in order to be able to let their residential property on a short-term basis. This will enable London residents to benefit from letting out either a spare room or, indeed, their whole house without unnecessary red tape, in the same way as other residents do in the rest of the country. We have also been clear throughout the passage of the Bill that this policy is aimed at helping residents to let their homes while they are away, not at providing new opportunities on an ongoing basis for commercial letting.
Section 25 of the Greater London Council (General Powers) Act 1973 provides that the use of residential premises for temporary sleeping accommodation for less than 90 consecutive nights is a change of use for which planning permission is required. London’s residents face a possible fine of up to £20,000 for each offence of failing to secure planning permission.
The world that we live in today is very different from what it was in the 1970s. The internet has created entirely new ways to do business. It has made it much easier for people to rent out their property, allowing residents to supplement their incomes and offer new experiences for consumers. Last summer, nearly 5 million overseas visitors came to our capital city. Some of those visitors, as well as UK residents, want to experience London as a real local. This means either staying with Londoners or staying in their homes while the Londoners are away on holiday.
Currently thousands of London properties and rooms are advertised on websites for use as short-term accommodation. However, each is potentially in breach of Section 25 as it stands. The current legislation is poorly enforced, which often leads to confusion and uncertainty for householders as to whether their local authority will take planning enforcement action against them for unauthorised short-term letting. The Government’s reforms will provide clarity and give London’s residents confidence that they are able to let out their property on a short-term basis within the law, but without the disproportionate bureaucracy of applying for planning permission.
The Government have tabled these amendments to the Deregulation Bill in order to allow residential property to be let out on a short-term basis without planning permission while providing a number of important safeguards. Indeed, these safeguards reflect some of the concerns that noble Lords have expressed. In order to ensure that these reforms will help residents but not create opportunities for the short-term letting of properties on a permanent basis, these amendments propose to allow short-term letting without planning permission up to a limit of 90 nights in total per calendar year, as well as requiring that the people providing their property for use as temporary sleeping accommodation are liable for council tax. Provision has also been made to empower local authorities to request that the Secretary of State agree to targeted localised exemptions from this new flexibility, either for particular properties or properties in particular areas, but there needs to be a strong amenity case to do so. This will ensure that the provision is used only where clearly justified.
The Government want to enable London’s residents to participate in the sharing economy and enjoy the same freedom and flexibility as others do across the country to temporarily let out their homes without the disproportionate burden of requiring planning permission. These amendments will deliver an appropriate level of freedom and flexibility for Londoners without creating new opportunities for short-term letting on a permanent or commercial basis.
I will now address the substantial issues in Amendments 5 to 16. Amendment 7 seeks to amend Amendment 4 by reducing the number of nights that residents can let their property on a short-term basis without planning permission from the proposed 90 nights in total per calendar year to a maximum of 60, with the number to be specified in regulations. The Government want to deregulate the current requirement to apply for planning permission, and to do so in a way that gives residents real freedom and flexibility. We believe that a limit of 90 nights per calendar year offers an appropriate level of flexibility, while being clear that the 90-night limit means that we are not providing for short-term letting on a year-round basis. The Government believe that a limit of 60 nights, and the ability to prescribe a lower limit in regulation, is unduly restrictive on the way people use their property.
The Government are also keen to enshrine in the Bill the number of nights that property can be let on a short-term basis in order to provide certainty that is currently absent under existing Section 25. As I said earlier, the current legislation is poorly enforced, which often leads to confusion and uncertainty for householders as to whether their local authority will take planning enforcement action against them for unauthorised short-term letting. The proposed ability to vary the number of nights in regulation will add to this feeling of uncertainty.
Amendment 8 seeks to create an additional condition, which is that a property can be let on a short-term basis without planning permission provided that the premises are the principal residence in London of the owner. The Government believe that the limit of 90 nights per year and the council tax liability are sufficient safeguards. We do not want to legislate unnecessarily for how the new rights should apply to individuals’ use of their property. We want the legislation to remain light-touch, but we also want it to send a strong signal that in order to let your property on a short-term basis legally you must remain within the 90-night limit or risk a local authority taking enforcement action against an unauthorised change of use.
The Government’s amendments, alongside Clause 44, have already provided for the ability to prescribe additional instances where residential property can be used as temporary sleeping accommodation in certain other circumstances that may be specified. Under our amendments and Clause 44, it would therefore be possible to add additional safeguarding measures in future, should it prove necessary.
Amendment 9 seeks to require the provider of temporary sleeping accommodation to notify the local authority in advance of every occasion that they let their property on a short-term basis. One of the major advantages of the internet is the ability to make transactions quickly and flexibly, and we want our reforms to facilitate this. A requirement for advance notice prior to every short-term stay, on a form to be prescribed in secondary legislation, would create a bureaucratic burden on the accommodation provider and potentially limit the ability of hosts to offer accommodation to customers seeking to book at short notice. Let me be clear: the Government are seeking to deregulate the current requirement to obtain planning permission for short-term letting in London. We do not believe that people wishing to let their homes on a short-term basis should be burdened by new red tape, to be set out in future secondary legislation.
Amendment 12 seeks to remove the requirement for the local planning authority to seek the consent of the Secretary of State in order to direct that the new flexibility does not apply to particular residential premises or premises in particular areas. The Government want the Secretary of State and the local planning authority to be able to grant exemptions, but only in exceptional circumstances and where, as I said earlier, a strong case has been made for the protection of the amenity of the locality by the local authority. Otherwise, we want to be clear that our aim is to provide the same rights for all Londoners in all local authority areas.
Lord McKenzie of Luton
Lord McKenzie of Luton
My Lords, in moving this amendment, I will also speak to our other amendments in this group. In doing so, I, too, draw attention to my interest in the register. We consider that this is an integrated group of amendments that stand together, should we decide to test the view of the House. I trust that that is agreed.
The issue of short-term lets has generated considerable controversy since it has been proposed that there should be some relaxation of the London provisions, but it has also focused attention on what is now happening in the market and why the status quo cannot be sustained. Currently, the letting of residential accommodation for temporary sleeping accommodation in London for a period of less than 90 consecutive nights constitutes a change of use for which planning permission is required. Notwithstanding that there is the possibility of a fine of up to £20,000 for failure to secure permission, we know that short-term letting is extensively carried on without permission being available.
We have covered in earlier debates the problems that can arise and the issue is helpfully dealt with also by the briefing we have received from London Councils for this debate. It concerns the potential loss of residential accommodation to the lucrative short-let market, increased problems with noise and anti-social behaviour, loss of community identity, increased crime and fire safety risks, and significant challenges on continual enforcement. We know that other cities around the world are experiencing similar problems. There is clearly a market for this activity and business opportunities have been created, particularly via the internet, which are different, as the noble Lord said, from those of the 1970s. According to the Government’s own figures, there are currently thousands of London properties and rooms advertised as used for short-term lets, each potentially in breach of the law. That is an untenable situation.
The amendments that I am speaking to have the support of the noble Baronesses, Lady Hanham and Lady Gardner of Parks, and the noble Lord, Lord Tope, who have each added their names. Indeed, we have worked together across our party divides to come up with a package of measures that, building on the government amendments, would enable home owners who wish to let their homes on a short-term basis to do so unless there is detriment to the amenity of the locality and to do so within a system where there is proper notification to local authorities and where enforcement is enabled. Like the Government, we do not see this as providing new opportunities for large-scale commercial lettings. These amendments, too, are about providing safeguards for the local community.
Our amendments cover five issues. First, there must be provision in regulations for those letting properties on a short-term basis to have an obligation to notify the local authority. Our amendment is not prescriptive as to form and content and it need not be overly bureaucratic. The Minister rather set his face against that in introducing his contribution, but there is no reason why this could not be dealt with very straightforwardly via some web- based approach. It is not prescriptive, but it would give an opportunity for the local authority to gain an understanding of the scale of activity in its area. It would also aid local authorities in their enforcement role, which we know is a challenge at the moment, and of course could potentially be an encouragement to tax compliance.
Secondly, we consider the number of days in the calendar year that accommodation should be available for short-term letting should be 60 rather than 90, as the Minister recognised, with regulations enabling this to be reduced. We consider that to be a more reasonable constraint and protection on local amenity. But even that would allow a four-month back-to-back letting across a year end. The Minister simply asserted that 90 days was more appropriate. I am not sure that that assertion, frankly, carries more weight than one for 60 days.
The concept is that short-term letting should be allowed effectively for someone’s home. It appears that the Government are seeking to define that by liability to council tax. We think that that is inadequate. Would not a liability to council tax arise for somebody letting residential property on a commercial basis, for example, between tenancies? Limiting the relaxation to someone’s principal residence in London would better target the deregulations.
Fourthly, we welcome the provision that the Government are seeking to make for local authorities to disapply the regulation for certain properties or areas, but oppose this right being subject to the consent of the Secretary of State. Local authorities are better placed to make the judgment about the impact of short-term lettings in their boroughs. Surely, that must be the case. We agree that they should not be able to do this in an arbitrary manner and protection of the amenity of a locality is a fair yardstick. However, we believe that a desirable hurdle rather than one that is necessary is considerably fairer. Indeed, the necessary hurdle could give rise to substantial and fair challenges on the local authority.
Finally, there is the issue of enforcement. In their policy document of February this year, the Government stated that:
“To protect amenity and address concerns over nuisance, the Government proposes that the new flexibility should be able to be withdrawn from particular properties after just one successful enforcement action against a statutory nuisance”.
In his contribution, the Minister said that there was provision elsewhere for this to be effective, but I am not sure where it is. The Government were clear in their policy document that that was what they wanted to happen. Our amendment provides that regulation should make such provision but is potentially more flexible than the “one strike and you’re out” approach.
These amendments are designed not to undermine the Government’s position, but to strengthen the safe- guards, and also, in the spirit of localism, to recognise that local authorities and not the Secretary of State are best placed to determine whether the scale of short-term letting is destroying the amenity of their areas. I beg to move.
Baroness Hanham (Con)
My Lords, my name is also on this amendment, and I would like to draw attention to the declarations I have made in the past of being a joint president of London Councils and also a former leader and member of the Royal Borough of Kensington and Chelsea, which will be affected by this legislation.
The noble Lord has set out very clearly the amendments that we think are necessary to make this legislation tenable. London has a particular problem. I drew attention on Report to a phrase in the policy document which said that London needed to be brought into the 21st century over the renting and letting of property. I said then and I say now that I think that London is already and has been in the 21st century for a very long time. There is enormous pressure on property in London. There is probably more renting now in London than anywhere else. There is a hugely transitory population, so that we now have great areas where we know that people are not resident. The properties are not used; they are investment properties. London has a dichotomy. It is an area where people want to live but now cannot, largely because it is getting so expensive. Where there is investment, the people who have invested in property are not from this country but from abroad. Where there is a lot of very new property on land which perhaps could have been used for local people, it is now largely empty.
The temptation to let is enormous. To make sure that there is no abuse of the proposals which the noble Lord has brought forward, we have tabled these amendments. Before saying more about that, I want to mention some other things that I am concerned about. The Government—of whom I have been a great supporter —are all in favour of devolution, of passing powers to different parts of the country and to different parts of England. We have just done it with Greater Manchester. There is more devolution. London has had devolution through its ability to put forward Private Members’ Bills to deal with the issues that affect London. These Private Members’ Bills are not put forward in isolation: they have to be put forward with the agreement of all the London boroughs. That process has been deficient, at the very least, in terms of what has happened here. I saw a representative of London Councils here today in Parliament and, as far as I am aware, London Councils has been solidly against this proposal since it was first brought forward. By definition, that includes the London boroughs.
For some reason, the Government have chosen to try to override what London wants. They may not think that London figures very greatly within this category in relation to the rest of the country. One of the rationales for making the change is to enable London to do what other parts of the country do. But London is different. It has very different pressures, as I have tried to suggest.
In these amendments we are trying, first, to query whether people really do go on holiday for 90 days. I think we would all be jolly lucky if we managed to get that amount of time off. That suggests that if people want to let for 90 days they might not be quite as altruistic as they might appear to be at first sight. Is it not reasonable to suggest that people might like to go on holiday for a lesser number of days?
Secondly, the amendments are trying to ensure that somebody will at least know that the letting is likely to take place. We have not specified what that process should be other than that people should notify their local authority that they want and are likely to let their properties on a holiday-let basis. If that does not happen and something goes wrong or difficulties occur in those properties—I think that my noble friend Lady Gardner will go into this in more detail—no one will know why or how the properties have been let, or to whom they have been let, and the local authority will have no real powers of intervention. I think that that matters. I am all for deregulation but I also think that because of the whole problem of renting in London, a little more grip needs to be kept on this.
Lord Clement-Jones (LD)
My Lords, I would like briefly but very strongly to support the amendments which have been so well introduced by the noble Lord, Lord McKenzie, and my noble friend Lady Hanham. I may have been a somewhat sporadic attendee for this particular part of the Deregulation Bill, but it certainly has been visible to the naked eye that the goalposts seem to have been shifted somewhat in this area as we have moved from Second Reading in July to Committee in October, with an enormous gap between Committee and Report. The initial assumption was made, as far as I could see, on Second Reading and right up to Committee that the Government were going to completely deregulate in this area. We then discovered that new regulations will be introduced. Some consultation took place, and the policy paper was published. Then, on Report it was clearly understood that we were going to have a set of regulations, which were continuing to be consulted on, which would make changes to Section 25 of the Greater London Council (General Powers) Act 1973 at a later date. And yet we now find ourselves at Third Reading with a very comprehensive new clause setting out the Government’s view. It has been like a slow-slow-quick process and completely the reverse of the usual march that one would expect in these circumstances. I think the provisions contain great dangers, and that is why I very strongly support these amendments.
My noble friend the Minister made great play of the benefits to the tourism industry and I want to speak from the perspective of tourism hospitality. However, I believe that the boot is very much on the other foot. Of course, as we all know, tourism and hospitality businesses are a very important part of local communities in London and of the London economy. It is not that the tourism and hospitality industries are against new models; indeed, they believe that they are an important way of introducing new ways of delivering to tourists. The most recent newcomer—the Minister used this phraseology—is the sharing economy: the sharing model which offers guests the ability to pay to stay in someone’s residence on a night-by-night basis.
We have seen that many of those who let their properties this way are essentially running businesses, but they do not act as responsible hospitality providers and undertake the necessary precautions to ensure health and safety in the same way as more traditional tourism businesses. They have been described as “pseudo-hotels”. If they are allowed to spring up, they pose a real danger not only for their guests but in respect of noise and nuisance for nearby residents. We need to have safeguards to monitor and limit the use of these residences, ensure the rules are followed and quickly deal with any problems that arise. We have seen problems arise in many other cities around the world, and safeguards have been and are being put in to protect communities from the impact of these short-term lets in places such as Paris, New York and Singapore. We need to manage these genuine risks and ensure that safeguards are in place and are enforceable.
These government amendments effectively make it impossible in practical terms to enforce the limits on short-term lets in London. This has been made clear to the Government not only by noble Lords today but by London councils, including Westminster City Council, and by all those bodies that will, in the future, have the responsibility of enforcement. They must surely have a pretty good idea of whether these provisions are going to be enforceable by their own officers. Without local registration, there will be no ability to enforce any safeguards around short-term lets. At a minimum, local councils and the Metropolitan Police should have the transparency they need in the use of these London residences to identify them when they are being used for short-term lets and to ensure that safety and security measures are in place to protect communities.
All the other proposals in the cross-party amendments advocated by the noble Lord, Lord McKenzie, the noble Baroness, Lady Hanham, my noble friend Lord Tope and the noble Baroness, Lady Gardner, are extremely important from that perspective as well. The scale of fraud and lawbreaking around these short-term lets will otherwise increase and so will the nuisance and noise for residents. Both the tourism industry and local councils have made a very strong case, and we should adopt each one of those points. I was very glad to hear the noble Lord, Lord McKenzie, say that if this is put to a vote, it will be put as a package. The package of amendments is extremely important.
Whatever happened to localism? I thought that we had been debating it for the past few years. What could be more attuned to localism than the amendments that are on the Marshalled List today?
Baroness Gardner of Parkes (Con)
My Lords, I will address the points made by the noble Lord, Lord Ahmad, in his speech. He mentioned that there were 4 million overseas visitors to London last year. I should also start by reminding the House that my interests are on the register and that I am the owner of leasehold flats.
First, the noble Lord talked about the potential breach and the £20,000 fine. Is he aware that no one— but no one—has been asked to pay a £20,000 fine for an illegal letting? Boroughs have not implemented that at all. Then he talked about the 90 days in the calendar year. However, 90 days is three months, and if you choose to let in, say, October, November and December, it is a new calendar year for January, February and March—so you can have six months instead of 90 days, which is why 60 days seems to be a more reasonable amount.
The noble Lord said that disproportionate bureaucracy is involved in applying for planning permission. I agree with that, but local councils are willing to have a 24-hour online notification period. What could be more in tune with modern living and with the idea that, as the travel people say to you, we need to be able to supply someone with accommodation within 24 to 48 hours? If councils are prepared to accept that as a notification, surely that is keeping right up to date with modern practice. Your person could fly in tomorrow, in 24 hours, provided you have notified the council who it is, how long they are going to be there for and who will be responsible for the property. It is not disproportionate bureaucracy; it is a great reduction in bureaucracy.
My fear is that if you give the Secretary of State these powers, you will be loaded with bureaucracy and delay. Nothing is going to happen quickly. What if the threat is a terrorist one? By the time you have gone through the Secretary of State and everything, it will be too late. When I saw what happened in Sydney recently, I found it such a shock and realised that one of these terrorist attacks could happen anywhere in the world. Why should London think it can escape? We have even read in the papers about threats that are coming to us. London is different from other parts of the country: it has a special attraction and is quite a drawcard. Of course a lot of people come. The noble Lord, Lord Ahmad, believes that his amendments will give real freedom and flexibility. I do not agree with that at all. The amendments that we are proposing to his amendment will give much more real freedom and flexibility.
The noble Lord, Lord McKenzie, mentioned the question of a “principal residence”. I know from personal experience that, if a property is empty, the owner is liable for council tax. The day when you could have it empty and unfurnished and no council tax was payable has long gone. Everyone is liable for council tax on a property, and therefore using that as the judgment of whether or not you are suitable to let something is no answer at all. A principal residence has to be a place that you have to be living in some of the time. As we mention, it has to be the “principal residence in London”, as opposed to just a general principal residence. Notification within 24 hours is very reasonable and could be done by all authorities, although we are not insisting that all authorities do it. We believe there should be a flexibility for local authorities, because what is someone’s problem today will be someone else’s tomorrow. These problems move around rather than just staying in one place—conditions change. On Report, I mentioned that Camden was very upset about the huge number of council properties there that were being let on these short lets.
The noble Lord mentioned that he thought the provision relating to previous offenders was unreasonable. I do not think it is at all unreasonable. The fact that you cannot get away with it on a repeated basis is a very good justification for us saying that, if it has happened to you before, then things are slightly different.
The noble Lord, Lord McKenzie, mentioned back-to-back letting. I have mentioned how it can turn your three months into six months. Several speakers have also mentioned localism, and I absolutely agree with every word that they have said. However, unless the local authority has some awareness of who is in a property and for how long, it has no idea of what it is dealing with, and anything could happen.
The noble Lord, Lord Ahmad, mentioned the consultation document. I have mentioned before that I have asked who gave what answers to the consultation and have been denied an answer—not once but three times—when I have tabled that Question to be put before the House. Why are they so frightened to publish the consultation answers? Why has he not said tonight what they are? I find it unbelievable that you can table a Question and it can just be ignored by the Government of the day. That is very strange.
I have seen this short-letting business in practice and in reality—not personally, but it has been reported to the management of the block that I own flats in. Ten people come every fortnight, brought from the airport in a bus, and all of them live in a one-bedroom flat. I believe there should be a limit on how many people can live in a one-bedroom flat. There are three of these flats in a block where there is a communal hot water system—30 extra people in a 15-flat block is a huge drain on the central heating, the hot water and everything else. It is not fair to people. Elderly people living in the block have found it quite terrifying to have strangers coming in who abuse them and push them out of the lift so that they can take over. It is really unbelievable.
Many of them now have keys to the street door, but they do not even need them: they go down, open all the fire doors and leave them open, so there is no protection from anyone coming in from the street at all. Younger women have been threatened in these blocks. I cannot claim to have been personally affected, because my flats are higher up in the block and fortunately are not involved, but the lower floors suffer so badly. It is incredible that this goes on. Moving this into the hands of the Secretary of State would be wrong. It is right that we should have regulations and strange that we have not been given answers to Questions we have asked. I strongly support the amendment tabled by the noble Lord, Lord McKenzie.
Lord Tope (LD)
My Lords, I have also added my name to the other three from both sides of the House. I have no personal interest to declare, other than that I am a resident of outer London, where this is not yet a problem. I stress “not yet” because the issue is growing so fast and exponentially that it is only a matter of time before it becomes so: not just in central London, where it is of major significance now, but elsewhere in London and in other parts of the country, although they are not affected by this legislation.
I spoke about this at Second Reading in July, at greater length in Grand Committee and on Report. The reason was that I learned more and more about the issues that residents of central London experienced daily from indiscriminate and largely unregulated short-term letting. To that extent, all of us are agreed—and agree with the Government—that we have no objections whatever to London residents wishing to sublet their London residence for a short period while they are on holiday or otherwise away. Where it becomes more difficult is when this grows and in many places, particularly in central London, becomes an industry.
I have been helpfully advised by Westminster City Council throughout this process. For understandable reasons, Westminster has experienced this issue hugely. It told me back in the autumn that for some time it has employed between four and six planners solely to deal with the enforcement of this issue of short lets. It has considerable experience both of the problem and of trying to enforce the law as it stands.
To digress for a moment, on Report I quoted what I had been told by the leader of Westminster City Council, who had told me:
“There has been no engagement with this local authority either at a political or an officer level”.—[Official Report, 11/02/15; col. 1306.]
In reply to the debate, in col. 1316, the noble Lord, Lord Ahmad, denied that and said that there had been full engagement with London authorities, specifically with Westminster. A few days later, on 13 February, the leader of Westminster City Council wrote to Lord Ahmad, saying that this was categorically “not true” and there had been no consultation with Westminster at that time. She wrote:
“I should also note that Westminster had no advanced knowledge of the detail of the policy note”,
which had then just been published,
“and would have been left to read about it online or in the newspapers”.
When the noble Lord, Lord Ahmad, replies, does he wish to put the record straight? Like me, I am quite certain that the Minister was speaking in good faith. I repeated what I had been told. I have no doubt that he repeated what he had been told, but he and I now have in writing from the leader of Westminster City Council that he had been misinformed. He may wish to correct that.
Westminster has been helpful in all this. It speaks from experience and it is true to say that it would much prefer us to go for a 30-day limit rather than a 60-day one. Any limit is arbitrary, of course, and we have gone for a compromise. However, the most important issue for Westminster City Council, and any other local authority that has to enforce this, is that it must have some system of registration. To quote again what I have been told by Westminster, without that,
“we simply would not be able to identify where a property was let illegally on a short-term basis”.
Unless there is a registration system and the regulations require it, albeit a quick, simple, online system, which Westminster says they can set up probably in a matter of hours, then all the regulations—whether they comply with our amendments or the government amendments—will, frankly, be unenforceable and meaningless. I hope that the Minister, when he replies, says at least that the Government will require it in regulations.
Lord Rooker (Lab)
I do not want to interrupt the noble Lord, because I agree with everything he has said. When he discussed this with Westminster, I am curious to know whether they discussed the insurance implications—not so much the contents, but one assumes that the owner in a block of flats pays insurance through the service charge. Quite clearly, the lease must be being breached in the sense of the numbers. The insurance companies must have some view about this, because it leaves everybody else liable and may leave the owner of the particular dwelling subject to sanctions by the insurance company. That may be a route to helping to solve the problem.
Lord Tope
The noble Lord asks if I discussed this with Westminster: specifically no, not with Westminster City Council. However, in the course of the many months that this has been going on, my noble friends and I have heard from numerous individuals and organisations involved in this. It is indeed one of the issues that others have raised and the noble Lord is right to draw attention to it. Others have been health and safety, fire regulations and all sorts of issues, which will be helped, to some extent, by whatever regulations are introduced.
I began by saying I wanted to be brief. I think that I am temperamentally incapable of being brief on this issue, but I will try. On registration, which is absolutely critical, I will quote from the letter that the leader of Westminster City Council wrote to the noble Lord, Lord Ahmad, on exactly that point. She concluded by saying:
“Having dismissed the suggestion of a simple, light-touch notification process for those seeking to let out their property on a short-term basis”,
which is what the Minister did at the previous stage, she asks,
“how will a local authority be able to identify and therefore enforce against a property being let for the 91st day within a calendar year?”.
I re-emphasise the point because it is critical. Unless we have some sort of notification and registration process, it is simply unenforceable, whatever else we say and do.
The other issue I want to speak to briefly is how we determine that the property concerned is indeed the residential property belonging to the person letting it. It has been suggested that this is done by the requirement, in the Government’s amendment, to pay council tax. We all know that lots of people pay council tax, but it is not necessarily their residence, let alone their principle residence. It is a bit unusual for a Liberal Democrat to quote Westminster City Council so frequently, but it does have the greatest experience on this. It says:
“This provision would therefore change nothing. The real change would be if the Government stipulated that only principal permanent residences were eligible for short-term letting”.
That is the purpose of the amendment in our package.
We are now at the last possible stage of this Bill in this House, apart from ping-pong, and we need to understand why we are at this stage. I raised this issue—as did others—at Second Reading in July, we had a considerable debate on it in Grand Committee on 30 October and we returned to it in February, one day after the Government finally published their policy guidelines and then only under considerable pressure from the noble Lord, Lord Ahmad, who realised that he would have to reply to the debate. We are now trying to put into the Bill details of regulations that should have been properly and fully consulted over that nine-month period. We should have tried at least to reconcile the differences between the different interests—and they are substantially reconcilable if the Government had ever tried. The one local authority most directly involved and with the most experience states in writing twice that up until a week ago, it had had no such consultation.
We are now at the stage where the Government have understood, as I pointed out on Report on 11 February, that it is too late for the regulations to be tabled to receive their 40-days waiting period to be considered in this Parliament. On Report, that was impossible; it is clearly even more impossible now. For this Government not to give a blank cheque to whomever forms the next Government and whoever is the next Minister, we are now putting in the Bill details that ought to have been in regulations, drafts of which should have been produced months ago, discussed and consulted on so that whatever we are to legislate for was clear—hopefully agreed, but at least we could agree where the differences are. We are at the last possible stage putting in the Bill just what the Government until now said that they would not do, but ought properly to be in regulations that have been consulted on and largely agreed.
Baroness Shields (Con)
My Lords, I put on record my support for the measures being introduced by the Government to reform short-term letting across London. I do that in my capacity as the Prime Minister’s adviser on the digital economy, but also as the chairman of Tech City. Over the recess, noble Lords will have received a report entitled Tech Nation, which detailed the enormous social and economic benefits being generated by the digital economy—across the country, not just in London. The accommodation sector is a prime example of the sharing economy. It is led by a number of high-growth businesses in the UK which are global leaders in their field. They are hiring a lot of people to support those businesses. It also gives individuals the opportunity to leverage an unused asset and to generate income for themselves and their families.
In my role as chairman of Tech City, I have seen the enormous opportunity that that presents to the UK economy. I see five key benefits as a result of that reform. The first is a more optimal use of space by allowing short-term letting for short periods when homeowners are out of town, to utilise existing housing stock in a much more efficient manner. Secondly, it would be a boost to family incomes. The supplementary income derived from short-term letting can help individuals and families to top up their immediate incomes.
Thirdly, the reform will deliver more taxation to the Exchequer. Any earnings accrued via short-term lettings will have to be declared, thereby boosting Treasury receipts. Fourthly, the reform will provide more options for tourists. Many tourists around the world are now opting to rent a home versus staying in a hotel, especially for groups or families who may need a large living space or a garden, which a hotel or bed and breakfast simply cannot provide. Finally, this reform will help to boost local businesses and employment. New hospitality providers are creating large numbers of jobs. In addition, short-term lets often take place outside central areas, so businesses which may not have historically benefited from tourist footfall may now benefit from tourists staying in their area.
Aside from those overarching benefits, the reform will also provide clarity to Londoners who are now facilitating short-term lets and ensure that they take place in a more secure and regulated manner.
I understand and respect the concerns raised by Peers across the House related to unintended consequences of the reform. However, I am satisfied that the Government have now put in place measures which will protect London’s long-term housing stock and residential amenity. Specifically, the reform will be limited to those who are liable to pay council tax. A limit of 90 days in any calendar year for which residents can let out their residence will also ensure that homes are let out only for short-term occasions. Local authorities will also have power to apply to the Secretary of State for specific areas to be exempted from the provisions. In my view, the additional safeguards called for by the amendments are unnecessary and run counter to what we should be seeking to deliver: a proportionate, straightforward and progressive set of rules.
I should like to tackle the issues in turn. First, it is proposed in Amendment 7 that the total number of days in a calendar year for which a resident can let their property should not exceed 60. In my view, that is far too restrictive and fails to acknowledge the working and living patterns of many Londoners today. Other cities have reformed their laws to allow many more days to letters. Paris, France, allows 120 days, Hamburg 180 days, and San Jose, in the heart of Silicon Valley, also 180 days.
Secondly, it is proposed in Amendments 6 and 8 that the reform should be restricted to principal London residences only. I believe that it should apply to all residences. Often, secondary homes are left empty. In my view, from time to time, those homes should be available to let and utilised more efficiently.
Finally, on exemption powers, although I acknowledge the potential need for the Secretary of State to exempt certain areas from the new provisions, that should be the case only in extreme circumstances and where there is sufficient evidence that residential amenity is negatively impacted. The granting of exclusion powers to councils to restrict short-term letting to specific areas would, in my view, result in a regulatory patchwork across London that would provide neither clarity nor consistency for homeowners.
Lord Rooker
Given the assuredness and spirit with which the noble Baroness is speaking for the Government, before she sits down, will she ask the Minister to tell us about the results of the consultation? In the mean time, will she tell us whether she has been privy to the results of the consultation in preparing her speech?
Baroness Shields
I am sorry, I missed that. I did not understand the last question.
Lord Rooker
I am asking the noble Baroness whether, in preparing her speech, she has been privy to the results of the consultation.
Baroness Shields
No, I have come to present the view of my declared interest in this new sector of the economy. I am not privy to that information.
The Government’s proposals aim to allow people to short-term let their residences while they are away, while ensuring that local communities are protected. I believe that the right balance has been struck. That is why I support the reform and urge your Lordships to vote in favour of the government amendment and against the other amendments which have been tabled on the issue.
Lord Ahmad of Wimbledon
My Lords, we are discussing short-term lets, and it is perhaps ironic that we have had a long-term slot when it comes to issues of deregulation. We are talking about London, and people have talked about London specifically. Let me put it into context as someone who was born in London, educated in London, worked in London, lived in London and represented a London council. Unlike my noble friend, who has had a very distinguished career in the London Borough of Sutton, I had the honour and privilege to serve in the London Borough of Merton, which, as we all know, hosts the great event that we know as Wimbledon. Therefore, it is my great honour also to carry it in my title. Perhaps there are people in Wimbledon who currently let their properties on a short-term basis.
It is important that we respond not just to the challenges and concerns that have been expressed today, to which I will come specifically, but acknowledge that this is commonplace not just in inner London; it is experienced, perhaps with a different perspective, in other boroughs across our great capital.
Starting with the noble Lord, Lord McKenzie, first, I put on record his broad support at least for the spirit and principle of what we are trying to achieve. In noting that, I thank him for his constructive discussions. We have not always agreed on the issues, as is clear from our debate on Third Reading thus far, but I have always found him to be someone with whom I can have a constructive and honest exchange. I put on record my deep thanks to all noble Lords with whom I have had meetings since I have taken over this ministerial responsibility, but particularly to my noble friends Lady Gardner, Lady Hanham and Lord Tope, who have always been courteous in their exchanges. To “courteous” I wish that I could add “uncritical”, but clearly they have had concerns, which they have expressed again today. However, I assure my noble friends and all noble Lords that I have taken that in the spirit that it has been well intentioned and reflects noble Lords’ experience in local government.
In talking about the amendments to government Amendment 4, the noble Lord, Lord McKenzie, asked about this being an integrated group of amendments. We agree that we are treating these amendments as consequential.
The noble Lord, Lord McKenzie, and my noble friend Lord Tope also raised issues about notifications to local authorities, as an addition to some elements that the Government have already introduced. Perhaps I may repeat something which have I shared with them at previous stages of the Bill’s passage: we believe that this would be a further burden on the person letting. It is not a restriction which applies elsewhere in England. Part of our principled stand on this is that we are seeking to bring London into line with other great cities around the country.
The noble Lord, Lord McKenzie, and others including my noble friend Lady Gardner also raised the issue of two periods of 90 nights being allowed to run across calendar years. We recognise that it would be possible for 90-night periods to run continuously across the calendar years but we also think it right not to be overly prescriptive about when the 90 nights should take place in the year. I commend my noble friend Lady Shields for her contribution and I congratulate her. When you are standing in your Lordships’ House, there is always the great expertise in what others have expressed—not only others; I pay tribute to her own expertise in this field. She highlighted what numbers of nights some of the other great cities around the world apply.
Several noble Lords asked why we need the Secretary of State’s consent. We believe that the Secretary of State’s intervention will ensure that the provisions are applied appropriately across London and that there is consistency and fairness to them. The noble Lord, Lord McKenzie, asked whether Amendment 4 could be used to disapply exemption from properties where there has been a statutory nuisance. I draw his attention to proposed new Section 25B(2), which allows the Secretary of State or a local planning authority to make a direction where,
“it is necessary to protect the amenity of the locality”.
Indeed, such a direction could be made when there has been a statutory nuisance.
I believe that the noble Lord, Lord McKenzie, also raised limiting council tax liability, and whether that could still be done commercially. The council tax liability test has to be read and taken in conjunction with the 90-day limitation, as I said in my opening remarks. That will make it unattractive to undertake commercial letting on a long-term or continuous basis.
The noble Lord, Lord McKenzie, also talked about building on the government amendments. As I said at the outset of my closing remarks, I welcome the spirit in which our discussions have taken place. One of the contributions today alluded to the fact that Governments change positions, or that the Bill today is not where it had been. My noble friend Lord Clement-Jones raised a specific question on this. In my time as a Minister responding from this Dispatch Box, I find that you are in one of those situations where if you do not change, you are accused of being terribly rigid and not flexible in listening to your Lordships’ House. However, when you change you are told, “This is not what was presented to us initially”. Perhaps some answers on the back of a postcard would be welcome. I jest, of course, but the important point here is that the Government have listened carefully to the concerns and expressions that have been raised across Parliament, both here in your Lordships’ House and in the other place. We have sought to provide a correct balance in what the Government are presenting.
Several concerns were expressed by my noble friends Lady Hanham, Lady Gardner of Parkes and Lord Tope about the consultation. I regret that my noble friend Lady Gardner feels that the responses I have given in this respect have not answered her question. I gave my latest response only yesterday, as I believe she acknowledged. I wrote to my noble friend on the details of the consultation but in the interests of the public record let me reflect on the public consultation held last year, in which local authorities were asked the question. As noble Lords will know, including the Corporation of London there are in total 33 local authorities across London. Fifteen London authorities responded in total. Eight authorities opposed reform of the legislation. They were—I will feel a bit like a train announcer here—Haringey, Enfield, Camden, Westminster, Newham, Redbridge, Lambeth and the City of London. Seven were not opposed to a review, which included Lewisham, Sutton, Southwark, Hammersmith & Fulham, Harrow, Islington and Greenwich.
I also wish to set the record straight on the issue of Westminster. My noble friend Lord Tope is correct that I have received a letter from the leader of Westminster Council—indeed, I have responded to her—but I want to put officially into the record what has happened. In addition to taking full account of the written representations we have received, officials in the Department for Communities and Local Government have met a number of local authorities, including Westminster Council, on 20 June and 7 October 2014 and 26 February 2015. A further meeting with Westminster was also scheduled for 3 March. I hope that these specific dates give some reassurance to my noble friends, given the concerns they expressed.
I think that I have covered the concern about the Government changing position which my noble friend Lord Clement-Jones posed, but on transparency for police and local authorities, let me assure my noble friend that we believe that our measures will offer the assurance to Londoners that they can do what they like with their homes, as with anywhere else in the country. However, the police and local authorities do not have this power anywhere else. This does not affect the police and local authorities in acting against any antisocial behaviour, or in tackling the genuine concern about terrorism. My noble friend Lady Gardner raised that concern and talked of Sydney, but it is a tragic fact that we have been victims of terror attacks right here in our great capital city. Nothing is proposed in the Government’s amendments which seeks to lessen the importance or priority that they are giving more generally to tackling that. I know that that sentiment is shared by all noble Lords across the Chamber.
My noble friend Lady Gardner also raised the issue of the £20,000 fine for short-term letting. Enforcement action is of course taken at the discretion of local authorities. What is significant—this is what the government proposals are about—is that authorities still have the ability to take action, which acts as a disincentive and deterrent to anyone considering breaking the law. That will continue.
Lord Rooker
For the avoidance of doubt and so that it is on the record, when the Minister read the list of authorities out earlier he said that 15 replied. He mentioned that seven did not disagree; I take it that eight disagreed. Can we get it on the record that the majority of local authorities which responded to the consultation disagreed? Do I have that correct?
Lord Ahmad of Wimbledon
When the noble Lord referred to the 15 and the seven, I thought, “I hope I have got my maths right”, so I am glad that we said that there were eight and seven. He is quite correct. I mentioned those authorities which did not want the review to happen and, subsequently, the seven which did not object. To clarify that point, I say that the noble Lord is quite right. I hope that I am being clear. I am being detailed in my response so, while I am not expecting it, I at least hope—and one should never give up on hope—that I shall carry the House in certain elements of what I am saying, and that there will nevertheless be clarity in covering the issues that have been raised.
My noble friend Lord Tope also raised council tax liability as a way of demonstrating residency. We believe that this provision distinguishes between private and business premises because it requires liability for council tax, which means that if a property was used as a residence, a hotel or a hostel, it would be liable for business rates. Combined with the 90-night limit, we believe that this provides an appropriate safeguard against short-term letting on an ongoing basis.
I welcome the interventions of the noble Lord, Lord Rooker, as I do those of all noble Lords. I listened to him attentively. He raised the issue of insurance. It is of course a matter for landlords to enforce, and for tenants to abide by, the terms of the lease and any insurance policies. Our amendments relate to the need to apply for planning permission and do not affect issues under an existing lease or indeed an insurance policy.
I hope that I have addressed most, if not all, of the issues raised in the hour and 10 minutes that we have had on this group of amendments. This is an important area, and I assure the House again that the Government have listened to the concerns expressed during the passage of the Bill. We believe that what is in front of us today, and what we are proposing more generally, is a balanced approach, with the objective of updating a law that would work for the benefit of ordinary Londoners wishing to let their homes in a legal way.
I hope that noble Lords will accept the reassurances that I have given again today: we are proposing amendments to seek to prevent the loss of housing stock by allowing the short-term letting of homes for a maximum of 90 days without the need for planning permission. I stress again that there are safeguards in the Bill to check that the added freedom will apply only to those people who are providing their homes and paying council tax; and we are providing local authorities with the power to apply to the Secretary of State where exceptions may be and where local amenities need to be protected.
I believe that the Government have listened and present a balanced perspective on where we are today. If I may, I end with the words of the song:
“Maybe it’s because I’m a Londoner
That I love London Town”.
I believe that what the Government have proposed does just that.
Lord McKenzie of Luton
My Lords, this has been an extensive debate. I am grateful to all noble Lords who have spoken in support of the amendments: the noble Baronesses, Lady Hanham and Lady Gardner, and the noble Lords, Lord Clement-Jones and Lord Tope. I hope they will forgive me if I do not pick up each of the very strong comments that they made.
To the noble Baroness, Lady Shields, I say simply that no one is saying that there should be no opportunity to boost family income or to use a property when someone is abroad—indeed, it might lead to interesting opportunities for tourism—but this is a question of balance and the protection of the local community as well. Just because something can be accessed digitally does not mean that you should disregard other issues, particularly around enforcement.
The Minister is right that over the months we have perhaps narrowed the gap. He asserts that the Government and he himself continue to listen, and I am sure that he does. However, I hope he will respect when I say that on this occasion they have not listened enough. I wish to test the opinion of the House.
“( ) Regulations under subsection (1) must include provision corresponding to section 25B of that Act.”
Baroness Hanham
Baroness Hanham
My Lords, I do not think that I need to delay the House too long on this, but I want to draw attention again to an issue that involves overriding what London is doing, which is becoming quite a concern. It relates to how waste disposal penalties are going to be put forward. London has been running its own waste penalty system since the London Local Authorities Act 2007; it has its own system set up and runs a very tight way of dealing with this, which is the forerunner of what is being proposed for the nation as a whole.
Lord Harris of Haringey (Lab)
My Lords, I am grateful to the noble Baroness, Lady Hanham, for bringing this amendment back. I did not have the benefit of attending the meeting that she had with the noble Lord, Lord De Mauley, but presumably his explanations of why the Government were doing this crazy thing were not sufficiently compelling to persuade the noble Baroness not to bring back the amendment.
The Minister has to answer some very simple questions if he is to persuade anyone that this is a good idea. The first is: what is the problem that the Government are trying to solve? What is wrong with the scheme under the London Local Authorities Act 2007? What is failing in that scheme? What is the evidence that that is not working or that people are being unnecessarily penalised for a first-time offence? It looks as if the Government have brought forward a Deregulation Bill and have decided not to deregulate something in London but to complicate the regulatory process by introducing extra stages, processes and bureaucracy. If I thought I understood anything about what this Government were trying to do, it was that they believed in simplifying red tape and eliminating wasteful form filling and processes. However, the Government’s proposal makes this area more complicated, not less. The Minister needs to explain why that is the case and why this is an additional regulation Bill rather than a Deregulation Bill.
The Minister needs to explain another thing. I thought the Government believed that localism was another important principle, but the London local authorities have come together and developed a scheme which is working well—unless the Minister can produce evidence at this 11th hour of a whole series of problems of which nobody else was aware. However, we now have an example of the heavy-handed bureaucracy of the Department for Communities and Local Government, and the Minister’s right honourable friend Eric Pickles saying, “I want to put the dead hand of central government authority on to London local authorities”. How does this square with the Government’s policy on localism? I suspect that this measure was dreamt up for reasons of simplicity without anyone looking at the details, and now nobody is prepared to admit that they got it wrong. However, the reality is that it imposes additional regulation, goes against the principle of localism and we will end up with more bureaucracy and problems to solve a problem which does not exist.
Lord True (Con)
My Lords, I apologise to the House for not having been able to take part in previous discussions on this matter, but I speak as leader of a London local authority and I consider that it is my responsibility to draw the House’s attention to the way this measure is perceived by a leader of a London authority. I am also by training a historian of Byzantium. I think that very few Byzantine emperors would have devised such a system for their capital city.
On the previous amendment, the Minister on the Front Bench argued very strongly against increasing bureaucracy and extra red tape. He also argued that London needed to be deregulated. However, I anticipate that, just a few minutes later, the Minister now on the Front Bench—my noble friend Lord De Mauley—will tell us the opposite of that and, as the noble Lord, Lord Harris, suggested, will tell us that we need more complication and further regulation. I simply do not see the logic of that and I do not know of another leader of a London authority who shares the Minister’s view.
We heard the representations made by London authorities on a previous amendment. It is important to realise that this is not some bone-headed resistance from a bureaucratic body. People who are talking to government, or who wish to talk to government and advise them, have authority and the responsibility of satisfying the people of London on a day-to-day basis that their streets can be kept clean and be competently administered. I believe that they are clean and competently administered in most cases. We have a non-criminal system that was recently established with general consent and which I do not believe needs to be tampered with. If the Government really believe in deregulation and devolution, there is no rationale whatever in changing the London system.
My authority is a keen promoter of recycling. We pass all the Pickles tests. We do weekly collections and even collect from side alleys. We do not have bin snoopers but we do have the opportunity to impose a light-handed touch of regulation. In five years as leader I have not had a single call, letter or email complaining about this system. There is no evidence base that I am aware of to justify imposing a more complex system on London.
I suspect that at this stage the Government are not prepared to change their mind. That is a pity in the light of the arguments in the record that I have read and those that I have heard. Of course, it would be perfectly possible to proceed with two parallel systems. In fact, it would be interesting to see whether the Government’s more bureaucratic system outside London was more effective than the less bureaucratic system inside London. That could be a sensible way to test public policy. Even at this late stage, I urge my noble friend to consider whether the Government could not leave London well alone. That would not stop anything that is planned for the rest of the country in terms of decriminalisation. That is the considered view of experienced people in London based on their experience of doing the difficult job of trying to administer London and at the same time reduce staffing in local authorities and not take on extra bureaucrats to implement ever more complex systems. I hope that my noble friend will reflect on that when he comes to reply.
Lord Tope
My Lords, I am the fourth current or former London borough council leader to speak in complete agreement with my colleagues—indeed, my former colleagues. The essential point has been made: what is wrong with the London legislation passed in 2007, which applies across London and was supported by all the London boroughs—it has to be supported by the London boroughs—that we now need Clause 57, at the end of five pages in the principal legislation, specifically deleting the provisions for London, and a four-page schedule, Schedule 12, implementing them?
There must be a pretty serious problem in London that needs fixing. It is supposed to be such a serious problem, but neither a current London borough council leader nor three former leaders from different parties and different parts of London are aware of any problem at all. The London legislation largely meets the Government’s intentions either specifically in decriminalisation or certainly in intent and purpose. The differences between the schemes are relatively minor, certainly not such as to require nine pages of principal legislation to deal with.
We ask, I think in my case for the third time during the passage of the Bill, what is so wrong with the London legislation that it requires this Bill to change it. What are the problems? What are the issues? There is no record of people being incorrectly or inappropriately prosecuted. Indeed, there is hardly any track record of people being prosecuted at all, so that is not really the object of it. The object is to encourage people to recycle and to comply, not to penalise them. It has a very well tested appeals system, albeit not tested in waste collection, which has not been a problem. It is the same appeals system as is used for parking appeals, which is certainly well tested in London.
We have a good system that has been in legislation for just about eight years. We have a good appeals system and a waste collection system that works. What exactly are the Minister and his colleagues trying to fix with this legislation?
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley) (Con)
My Lords, I hope noble Lords would accept that there appears to be broad agreement that a fair system of penalties, as established in Clause 57, should apply to household waste collection in England. Clause 57 would remove the criminal sanctions currently available under the Environmental Protection Act 1990. It would ensure that people are treated fairly and consistently by offering individuals a fair chance to represent themselves and by introducing a “harm to local amenity” test.
Local authorities will have the power to issue fixed penalties of between £60 and £80 if a householder does not comply with household waste collection requirements, and this causes a nuisance or is detrimental to the locality. In practice, this could be when waste causes obstruction to neighbours, attracts vermin, unreasonably impedes access to pavements, or is an eyesore. Through Schedule 12, we seek to amend the London Local Authorities Act broadly to mirror the changes to the Environmental Protection Act. Under both pieces of legislation, civil sanctions would apply when a householder’s failure to comply causes a nuisance or is detrimental to any amenities of the locality. Householders would receive warnings before being issued with a penalty and the level of fines would be the same.
I turn now to my noble friend Lady Hanham’s amendments, Amendment 20 and Amendment 36. I thank her and my noble friend Lord Tope for discussing these matters with me between parliamentary phases. I very much hope that the noble Lord, Lord Harris, was invited to the meeting by my officials; I asked them to invite him. I appreciate my noble friends’ concerns and those expressed by noble Lords this evening about changes to the waste collection system currently operating in London. Indeed, in following London’s lead we recognise that a decriminalised approach, as is used in London, is more proportionate than a system based on criminal sanctions. We want the approach used throughout England to be based on this type of system, with additional safeguards in place to ensure that people are treated fairly.
Before turning to points of detail, I would like to make a general point. The Government are firm believers in localism. This is, of course, not just about the powers available to local authorities, but about empowering local communities, neighbourhoods and individuals. Our proposals seek to reduce a regulatory burden that currently affects householders.
Lord Harris of Haringey
My Lords, can the Minister explain how much of a nuisance the regulatory burden is in London?
Lord De Mauley
My Lords, I am trying to get there.
In our view, legislation should not provide for people to be issued with, or threatened with, financial penalties the first time they make a mistake. That is why we want local authorities to give householders a written warning. The requirements on people are not always obvious, particularly when they move to an area where a different collection system applies. It is right that people should find out what they have done wrong and should have the opportunity to rectify mistakes before they are asked to pay a penalty. People in London have as much right to this opportunity as anyone else in England.
Based on what we have heard from local authorities, we do not believe that this will add significant burdens compared with how the current arrangements operate. We know that many authorities already communicate well with their residents and seek to educate them if they are having difficulties with collection requirements, but if we do not amend the London Local Authorities Act, this legislation would still allow someone making a mistake for the first time in London, but not elsewhere in England, to be penalised. We do not believe that that is fair or right.
I am aware that some noble Lords consider that the system we propose is bureaucratic. Indeed, my noble friend described it as byzantine. She used the words “long and protracted” and mentioned our five-page schedule. Let me explain why I do not believe that we are introducing significantly more bureaucracy compared with the current London system.
London Councils produced a 22-page guidance document in December 2013 on the current system operating under the London Local Authorities Act. According to this, London authorities issue householders with a penalty charge notice. I quote from the guidance:
“Depending on each local authority’s policy, a verbal or written warning may be given before escalating”,
to a penalty charge notice. The householder then has 28 days to make representations to the London authority. If representations are made, the authority then has 56 days to make a decision. If it rejects the representations, a notice of rejection must be served. The householder may then appeal to an adjudicator before being required to pay the penalty. All that is under the current system in London.
Under our proposed system, London local authorities will first issue a householder with a written warning. The next time a householder makes a mistake they may issue a notice of intent. The final notice can then be issued after 28 days, taking account of any representations made. The householder may then appeal to an adjudicator before being required to pay the penalty. Is our proposed system really adding bureaucracy, compared with the current system?
As well as reducing the regulatory burden on householders, our proposals seek to ensure that the level of penalties is proportionate. Given the broad agreement that making a mistake related to household waste collection should not be a criminal offence, it would not seem appropriate for the penalty to be higher than for a criminal activity. The penalty under the London system for a breach of the rules about presentation of waste is currently set at £110, yet a shoplifter committing a first offence may be issued with a £90 penalty notice for disorder. Under our proposals, councils in London would be able to set the penalty between £60 and £80.
We believe that this range is proportionate, but understand that some noble Lords consider that it will not act as a deterrent. We should remember that for many people in London, as elsewhere, an £80 financial penalty is certainly significant. For people who consider that £80 is insignificant, I ask whether they really consider £110 such a radically different amount that they will treat it as a significant penalty. We believe that £60 to £80 is the right level and that householders in London have as much right to be treated fairly and proportionately as anyone else in England.
Also, I suggest that it would not be right for a “harm to local amenity” test to apply everywhere in England except London. Under the Environmental Protection Act, we propose that householders should be issued with a fixed penalty only if their behaviour actually causes problems in their local neighbourhood. They could receive a penalty for leaving bin bags on the street for days on end, but not for leaving a bin lid open. If we kept the London system as it is, we would be in the anomalous position where the legislation allows local authorities to issue penalties to householders who make any sort of mistake in this area if they live in London, but not if they live anywhere else in England.
We intend to work with local government to produce advice to help local authorities implement the test with confidence. My officials are of course also happy and available to talk to representatives from London Councils and others about the practicalities of operating this system if that would be useful.
This clause and schedule, as they stand, will introduce a proportionate approach, providing appropriate safeguards for householders throughout England, including London. I therefore ask my noble friend to withdraw her amendment.
Baroness Hanham
My Lords, I think I said on Report that I felt really sorry for the Minister having to respond, because it is clearly not an easy clause or schedule to respond to. There is absolutely no rationale to it whatever. The fact is that whatever the Minister has been told to say, this is a much more protracted procedure than is going to go ahead nationwide. Most local authorities will deal sympathetically with people who make a mistake by putting something out in a way that they should not. As I understand it, it does not require another offence to trigger the next stage. It can be the same offence that has not been acknowledged —so the warning of an offence, then a letter of intent, then perhaps a penalty charge notice, then an appeal, then to a tribunal, because under the England procedures you can continue on down the line. I totally fail to understand why London should be encumbered with this.
I did not make the point in my opening remarks about the level of the penalty. I worry that this is being presented by the Minister as a penalty appropriate to shoplifting. In London the penalty for this offence, as he has rightly said, would be in the region of £130, but then so is a parking ticket. London is a bit more expensive in what it does and a shoplifter would probably go to court anyway rather than have a penalty charge notice. Indeed, if people spit chewing gum on to the pavement, we are still looking at the same sort of penalties.
I think this is a daft bit of legislation and I wish to test the opinion of the House.
Lord Wallace of Saltaire
“( ) In section 43 (remand centres and young offender institutions), as it has effect on and after the day on which section 38 of the Criminal Justice and Courts Act 2015 comes into force, in the Table in subsection (4)—
(a) in the entry for “Young offender institutions”, in the second column, for “Sections 28 and 37(2)” substitute “Section 28”;(b) in the entry for “Secure training centres or secure colleges”, in the second column, for “, 28 and 37(2)” substitute “and 28”.”
Lord Wallace of Saltaire
My Lords this group of amendments makes minor and technical changes that clarify and improve the drafting of the Bill. Amendments 21 and 22 relate to Clause 83 which will remove the requirement that prison closures are made by order. It does this, in part, by amending Section 43 of the Prison Act 1952. The Criminal Justice and Courts Act 2015, which received Royal Assent on 12 February, at Section 38 substitutes Section 43 of the Prison Act with a new Section 43 which permits the Secretary of State to make provision for the detention of young persons in young offender institutions, secure training centres and, additionally, secure colleges. These minor amendments provide for the removal of the requirement that prison closures are made by order both in respect of Section 43 as it is now, and in its revised form once the provisions in Section 38 of the Criminal Justice and Courts Act 2015 are commenced.
Amendment 27 relates to Clause 88, which will remove the current requirement that providers carrying out children’s social care functions on behalf of local authorities should register with Ofsted. In consequence of the removal of that registration requirement, subsection (2) provides for various references to providers of social work services in the Care Standards Act 2000 and in the Children and Young Persons Act 2008 to be omitted. This amendment would provide for the omission of a further reference in Section 30A(6)(f) of the Care Standards Act 2000 which had previously been overlooked.
Schedule 13, Part 3, will repeal Part 11 of the Local Government and Public Involvement in Health Act 2007 and allow joint waste authorities to be established by secondary legislation. The schedule outlines a number of consequential amendments needed to be made in other legislation as a result of these changes. Amendments 37 to 40 are merely further consequential amendments that take account of legislative changes made since the Bill was introduced, including removing references to the joint waste authorities in other legislation.
Schedule 19 makes significant amendment to the Poisons Act 1972. In particular, it creates new offences. Amendment 43 corrects the form of words for the maximum fine that can be applied to offences in the new Section 8 of the Poisons Act 1972 inserted by paragraph 10. In subsection (1)(b)(ii), the reference to,
“level 5 on the standard scale”,
should instead be a reference to “the statutory maximum”. This brings the penalty in line with the usual practice for financial penalties for more serious offences.
Amendments 29, 30, 44 and 45 change the extent of two provisions in Schedule 21. The provisions relate to the repeal of the Mining Industry Act 1920, the Fisheries Act 1891, which I think was probably before all Members of this House were taking part in its business, and the British Fishing Boats Act 1983. The changes are required due to timing and resource problems with getting a legislative consent Motion in place in Scotland during the passage of this Bill. I beg to move.
Lord Wallace of Saltaire
Lord Wallace of Saltaire
“CLC practitioner services bodies
(1) Section 32 of the Administration of Justice Act 1985 (provision of conveyancing services by recognised bodies) is amended as follows.
(2) In the heading, after “conveyancing” insert “or other”.
(3) In subsection (1)—
(a) in paragraph (a), after “bodies” insert “or CLC practitioner services bodies”;(b) in paragraph (b), for “such bodies” substitute “conveyancing services bodies”;(c) in paragraph (b), for the words from “undertake” to the end substitute “undertake—(i) the provision of conveyancing services,(ii) the exercise of a right of audience,(iii) the conduct of litigation,(iv) probate activities,(v) the administration of oaths, or(vi) the provision of relevant legal services not covered by sub-paragraphs (i) to (v);”;(d) after paragraph (b) insert—“(bza) prescribing the circumstances in which CLC practitioner services bodies may be recognised by the Council as being suitable bodies to undertake—(i) the exercise of a right of audience,(ii) the conduct of litigation,(iii) probate activities,(iv) the administration of oaths, or(v) the provision of relevant legal services not covered by sub-paragraphs (i) to (iv);”;(e) in paragraph (ba), for the words from “bodies” to the end substitute “bodies to carry on—(i) the exercise of a right of audience,(ii) the conduct of litigation,(iii) reserved instrument activities, where the recognised body is a conveyancing services body, (iv) probate activities, or(v) the administration of oaths;”; (f) in paragraph (c), after “requirements” insert “, including requirements about the carrying on of activities which are not reserved legal activities,”.(4) In subsection (3)(e), after “those bodies” insert “(including information about disciplinary measures taken)”.
(5) In subsection (3C), after paragraph (a) insert—
“(aa) conditions restricting the kinds of CLC practitioner services that may be provided by the body;”.(6) For subsection (8) substitute—
“(8) In this section—
“administration of oaths” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);“CLC practitioner services” has the meaning given by section 32B;“CLC practitioner services body” has the meaning given by section 32B;“conduct of litigation” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);“conveyancing services body” has the meaning given by section 32A;“probate activities” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);“relevant legal services”—(a) in relation to a conveyancing services body, has the meaning given by section 32A; and(b) in relation to a CLC practitioner services body, has the meaning given by section 32B;“reserved instrument activities” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);“right of audience” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act).”(7) After subsection (8) insert—
“(8A) Nothing in this section affects section 13 of the Legal Services Act 2007 (entitlement to carry on a reserved legal activity).”
(8) After section 32A (definition of “conveyancing services body”) insert—
“32B CLC practitioner services bodies
(1) For the purposes of section 32 a “CLC practitioner services body” means a body (corporate or unincorporate) in respect of which—
(a) the management and control condition,(b) the services condition, and(c) the authorised person condition,are satisfied.(2) The management and control condition is satisfied in the case of a partnership if at least one of the partners is a licensed conveyancer or a licensed CLC practitioner.
(3) The management and control condition is satisfied in the case of an unincorporated body (other than a partnership), or a body corporate which is managed by its members, if at least one of those members is a licensed conveyancer or a licensed CLC practitioner.
(4) The management and control condition is satisfied in the case of any other body corporate if at least one director of the body is a licensed conveyancer or a licensed CLC practitioner.
(5) The services condition is satisfied in respect of a body if—
(a) the body is carrying on a business consisting of the provision of—(i) CLC practitioner services; or (ii) CLC practitioner services and other relevant legal services; and (b) the body does not provide conveyancing services.(6) The authorised person condition is satisfied if the licensed conveyancer or licensed CLC practitioner by reference to whom the management and control condition is satisfied, or one of the persons by reference to whom that condition is satisfied, is an authorised person in relation to any reserved legal activity involved in the CLC practitioner services that are provided by the body.
(7) For the purposes of this section—
(a) a reference to CLC practitioner services is a reference to services involving the carrying on of such of the following as are reserved legal activities in relation to which the Council is designated as an approved regulator—(i) the exercise of a right of audience;(ii) the conduct of litigation;(iii) probate activities;(iv) the administration of oaths;(b) a reference to designation as an approved regulator is a reference to designation as an approved regulator—(i) by Part 1 of Schedule 4 to the Legal Services Act 2007, or(ii) under Part 2 of Schedule 4 to that Act;(c) a person has an interest in a body if the person has an interest in the body within the meaning of Part 5 of the Legal Services Act 2007 (see sections 72 and 109 of that Act).(8) In this section—
“administration of oaths” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);“authorised person” means an authorised person in relation to an activity which is a reserved legal activity (within the meaning of the Legal Services Act 2007);“conduct of litigation” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);“probate activities” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);“relevant legal services”, in relation to a body, means—(a) CLC practitioner services, and(b) where authorised persons are managers or employees of, or have an interest in, the body, services such as are provided by individuals practising as such authorised persons (whether or not those services involve the carrying on of reserved legal activities), except for conveyancing services;“reserved legal activity” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);“right of audience” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act).””
Lord Wallace of Saltaire
My Lords, these new clauses fulfil the commitment made by the Government on Report on 5 February in response to a series of amendments tabled by the noble Baroness, Lady Hayter.
Provisions in the Administration of Justice Act 1985 and the Courts and Legal Services Act 1990 place a restriction on the Council for Licensed Conveyancers, which effectively means that it can authorise a body or person only if that body or person is licensed to provide conveyancing services. This is a restriction that none of the other legal services approved regulators has. The purpose of the amendments is to remove this restriction. This is being done by amending Section 32 of the Administration of Justice Act 1985 and Section 53 of the Courts and Legal Services Act 1990.
The amendments also include amendments to Section 32 of the Administration of Justice Act 1985 to cover the full range of reserved legal activities for which the council is an approved regulator or for which the council may in the future be an approved regulator, if it were to be further designated. Any such further designation would require a recommendation of the Legal Services Board and an order under the Legal Services Act 2007. I remark in passing that I think that when my noble friend Lord Smith of Clifton asked his Question this afternoon, I do not think he had in mind the idea of private but approved regulators as part of his universe of regulating agencies.
The proposed second new schedule in these amendments will make amendments to the Administration of Justice Act 1985, which will enable the council to carry out its role as an approved regulator and licensing authority more effectively and efficiently. For example, amendments are made to change the venue for appeals from the High Court to the First-tier Tribunal. I beg to move.
Baroness Hayter of Kentish Town (Lab)
My Lords, I rise briefly to support these amendments, to which I have added my name. As the Minister said, they rather improve the wording which was accepted in principle in my amendments on Report. They are important because they take forward the intention in the Legal Services Act to increase the availability of legal services. As the Minister said, the CLC—an approved regulator for reserved activities, probate and the administration of oaths—has now been accepted to be the regulator for a wider range of legal services. However, it became apparent a bit belatedly that the Act which created the CLC and set out its powers actually restricts it from the enlarged role which it, the Legal Services Board and the MoJ had envisaged. It was then found that the powers in the Legal Services Act were also not sufficient to make the changes. Without these amendments, the CLC would be able to regulate only conveyancers, which means that a lawyer would have first to train as a conveyancer before being regulated by the CLC for other activities.
The other changes which have been mentioned are to simplify appeals so that any appeals against the CLC’s appeals and discipline committee can be heard by the First-tier Tribunal rather than the High Court, and to allow the CLC itself to appeal against determinations. There is also a provision to allow the CLC to suspend the licences of practitioners to protect the public while they await the outcome of disciplinary actions.
As for the CLC’s own governing council, the current requirement is that the number of lay members must exceed the number of professional members by exactly one. That means that if one of the professional members leaves for any reason, the council cannot continue its work. The amendments would allow for the lay majority to be at least one, which will get over that hurdle. Finally, instead of putting the time that the CLC has to determine applications in statute, in future it will be in regulatory rules. These are sensible and welcome changes. I thank the Government for bringing them forward and their work on this excellent drafting.
Lord Wallace of Saltaire
“Licensed CLC practitioners
(1) Section 53 of the Courts and Legal Services Act 1990 (the Council for Licensed Conveyancers: authorisation of individuals to carry on reserved legal activities) is amended as follows.
(2) In subsection (2), omit “only if the person is a licensed conveyancer”.
(3) In subsection (3)—
(a) for “a licensed conveyancer” substitute “a person”;(b) for “the licensed conveyancer” substitute “the person in respect of that activity”.(4) In subsection (4), for “Any such” substitute “If the person granted a licence under this section is a licensed conveyancer, the”.
(5) After subsection (4) insert—
“(4A) If the person granted a licence under this section is not a licensed conveyancer, the licence may be granted as a separate licence or as part of a composite licence comprising that and any other licence under this section which the Council may grant to the person.
(4B) A licence under this section granted to a person who is not a licensed conveyancer ceases to have effect if the person becomes a licensed conveyancer.”
(6) In subsection (9)—
(a) in the opening words, after “respect to” insert “persons who apply for, or hold, an advocacy, litigation or probate licence and”;(b) in paragraph (c), for “licensed conveyancer” substitute “person”;(c) after paragraph (d) insert—“(da) any case of an individual who describes himself or herself, or holds himself or herself out, as a licensed CLC practitioner without holding a licence in force under this section;”;(d) in the words following paragraph (f), after “respect to” insert “persons who apply for, or hold, a licence under Part 2 of the Act of 1985 and”.(7) After subsection (9) insert—
“(9A) The modifications mentioned in subsection (9) may differ depending on whether the person applying for, or holding, an advocacy, litigation or probate licence is or is not a licensed conveyancer.
(9B) Subsection (9) does not apply to section 34 of the Act of 1985 (modification of existing enactments relating to conveyancing etc).”
(8) After subsection (10) insert—
“(11) In this section—
“advocacy licence” means a licence issued under this section by which the Council authorises the person concerned to exercise a right of audience;“CLC practitioner services” has the same meaning as in section 32B of the Act of 1985;“licensed CLC practitioner” means a person, other than a licensed conveyancer, who holds a licence under this section;“litigation licence” means a licence issued under this section by which the Council authorises the person concerned to carry on activities which constitute the conduct of litigation;“the practice of a licensed CLC practitioner” means the provision by a person, as the holder of a licence under this section, of CLC practitioner services in accordance with the licence; and“probate licence” means a licence issued under this section by which the Council authorises the person concerned to carry on activities that constitute probate activities.” (9) In the italic heading preceding section 53, after “conveyancers” insert “and licensed CLC practitioners”.”
“CLC practitioner services: consequential amendments
Schedule (CLC practitioner services: consequential amendments) contains consequential amendments relating to sections (CLC practitioner services bodies) and (Licensed CLC practitioners).”
“The Council for Licensed Conveyancers: other amendments
Schedule (The Council for Licensed Conveyancers: other amendments) contains other amendments relating to the Council for Licensed Conveyancers.”
Lord Wallace of Saltaire
“section 30A(6)(f);”
“( ) This section does not apply to the following—
(a) Professional Standards Authority,(b) Human Fertilisation and Embryology Authority, and(c) any persons exercising a regulatory function with respect to health and care service that the Secretary of State specifies by order.( ) An order under this section must be made by statutory instrument.
( ) A statutory instrument containing an order under this section may not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament.”
Baroness Hayter of Kentish Town
My Lords, with the leave of the House I will move Amendment 28, which was tabled by my noble friend Lord Hunt of Kings Heath. Our concern is about the impact of the economic growth clauses on these health regulatory bodies and the risk of a negative impact on their overriding responsibility to protect the public. On Report, the Minister denied that that would happen and stated that the economic growth duty would sit alongside the other factors that a regulator must consider. However, “sitting alongside” suggests that it has some—or even the same—weighting and therefore cannot be ignored. The Minister also quoted the draft guidance, but the guidance adds to our concern. It states:
“The growth duty does not automatically take precedence over or supplant existing duties held by regulators”.
The term “not automatically” implies that it is entirely possible that it will take precedence, and that must put the protection of the public at risk.
The two health regulators, the Professional Standards Authority and the Human Fertilisation and Embryology Authority, were debated on Report. They are the subject of Amendment 28. My noble friend Lord Hunt questioned whether the Professional Standards Authority is indeed a regulator, given that it oversees nine statutory regulators, including the GMC, but is not itself a regulator. We say that there is no need for it to be covered in the Bill. Can the Minister confirm that the Government do not consider that the PSA is covered by the economic growth clauses because it is not such a regulator?
The HFEA performs a crucial and difficult task. We worry that the economic growth duty could make its task even more challenging. On 24 February this House had an excellent debate on mitochondrial donation and agreed the regulations. However, we did so only on the basis that the HFEA’s regulatory processes were robust. The HFEA—which, as we know, is highly respected as a model for the regulation of fertility and embryology treatments and research—has acknowledged on its website that it is not an economic regulator. Perhaps the Minister will confirm that that is so. However, I hope he will go further and address our concern that any growth duty could impact on the HFEA’s ability to regulate effectively. There is no requirement in the HFE Act to consider growth, thus the new duty could upset the delicate balance on embryo research which has served this country well.
At the centre of the balance is a settlement between science and society which involves a clear set of rules that enable scientists and clinicians to experiment while maintaining public confidence. The existing regime has enabled growth. Surely it is no accident that the UK is the first country in the world to allow mitochondrial donation; it is a by-product of a thriving bioscience sector combined with intelligent regulation. Good rules, flexibly applied, can foster growth. Ironically, the growth duty could upset that balance and even hinder growth in the sector. It risks HFEA decisions being judicially reviewed. For example, those who are against embryo research might argue that the HFEA will favour research because of the growth duty and challenge it on that basis; science-based companies might argue that if it fails to consider growth, it will be failing the growth duty.
I have some questions for the Minister. Do the Government accept that our bioscience sector has thrived and that HFEA regulation has contributed to that success? If so, what is the point of making the growth duty apply to the HFEA? Can the HFEA decide to ignore the growth duty if it is inappropriate in particular cases, for example in respect of patient safety or for new treatments such as mitochondrial donation? Can the Minister assure the House that the HFEA will not be more likely to be judicially reviewed because of the growth duty? Will statutory guidance make this clear so that the HFEA can refer to such guidance if challenged in court? Will the Government commit to exempt the HFEA from the regulation?
Perhaps I may also mention the relationship between the economic growth duty and the EHRC, an issue that has featured not only in this Bill but in the Small Business, Enterprise and Employment Bill. The Minister will be aware of the argument that the EHRC enjoys an A status as a national human rights institution. It is therefore right that the Government should always be crystal clear that it is not appropriate to apply general regulations to the EHRC. The A status is awarded by the UN International Coordinating Committee, which regularly reviews the EHRC’s compliance with the Paris principles, which require the EHRC to be independent. We have to avoid the perception—or the reality—that there is interference in the commission’s ability to perform its functions, and ensure that it is always independent. If that independence were jeopardised, it would jeopardise the A status which is vital to the UK’s international standing.
Last night, in response to these sorts of arguments in this House, the Minister, the noble Baroness, Lady Neville-Rolfe, agreed to look again at provisions regarding the EHRC in the Small Business, Enterprise and Employment Bill. Will the Minister agree to do the same thing with these two regulators in this Bill? I beg to move.
The Earl of Lindsay (Con)
My Lords, I speak to the amendment moved by the noble Baroness, Lady Hayter, from my perspective as a member of advisory bodies that advised the previous Government on better regulation—the Better Regulation Commission and the Risk and Regulation Advisory Council. I am also a member of a body that advises this Government on regulation—the Better Regulation Strategy Group.
I say immediately that if the growth duty compelled either the PSA or the HFEA, or indeed any other regulator, to pursue growth at the expense of undermining the protection of sensitive sectors or sensitive activities, I would have sympathy with this amendment. However, that is not the case. The growth duty does not compel the HFEA or other regulators, as suggested in the amendment, to pursue growth at the expense of undermining protections in the area that they regulate. What it does do is require regulators to consider the economic impact and any unnecessary, disproportionate or excessive bureaucratic burden that they might be imposing on those whom they regulate when carrying out their regulatory processes, producing guidance and so forth.
From my experience of better regulation, better regulators and better enforcement of, or compliance with, regulation, I can see absolutely no reason why the HFEA cannot consider the burden it is imposing on the businesses and organisations it regulates while continuing to ensure that patient protection remains its primary objective.
The growth duty is not a duty to achieve or pursue economic growth. Therefore, it is not a duty that would require the HFEA to drive growth in the fertility sector, for instance. Nor does it dictate that a regulator must attach a particular weight to growth. Therefore, the HFEA, or any other regulator obliged to have regard to the business and bureaucratic experience of being regulated, may reasonably decide that it will attach little or no weight to business factors in relation to a particular decision and that it must attach more weight to its other duties. In the HFEA’s case, prominent among those other duties would be patient safety. Therefore, the growth duty will not undermine or override regulators’ primary responsibilities in delivering protection.
Applying the growth duty to the HFEA will not affect its robustness as a regulator, and it will not affect its ability to protect the public, which was one of the concerns expressed by the noble Baroness. In that sense, the title of the Bill is, I think, misleading, in that the growth duty is more about better regulation than deregulation. It does not loosen regulation; nor does it remove any regulatory duties or responsibilities. Rather, it enables their delivery and enforcement, when and where appropriate, to be more sensitive and more user-friendly.
Also of relevance to this amendment is the fact that the HFEA is already within the scope of another of the better enforcement programme measures—namely, the Regulators’ Code—as it was with its predecessor, the Regulators’ Compliance Code. The Regulators’ Code is a clearly defined, simple and principles-based framework of good practice for regulators in engaging with those whom they regulate. To my thinking, the HFEA would apply the growth duty in a way that complements the existing requirement to which it is already subject through the Regulators’ Code. More importantly, it would, and can, do so without compromising its rigour as a regulator.
I can understand why exceptions might be made in requiring regulators to adopt this duty where it is an irrelevance to the way they regulate or to the areas they regulate, but I cannot see any sense in exempting the HFEA from the growth duty.
Lord Wallace of Saltaire
My Lords, on Report I committed to giving further consideration to whether the Professional Standards Authority, the PSA, and the Human Fertilisation and Embryology Authority, the HFEA, should be within the scope of the growth duty—that is, whether they should be required, in the exercise of their regulatory functions, to have regard to the desirability of promoting economic growth.
Since Report, officials from the Department for Business, Innovation and Skills have met with the Department of Health and the PSA to explore whether the functions carried out by the PSA meet the definition of “regulatory function” at Clause 106 of the Deregulation Bill. Officials have also considered the nature of the PSA’s regulatory role as oversight body for the nine statutory regulators of health and social care professionals.
Following those discussions, the Government have concluded that, while the PSA exercises functions that fall within the definition of “regulatory function” as per the Deregulation Bill, its specific role means that the PSA’s regulatory functions are far removed from individual businesses. The PSA would have limited economic impact on business even if it were to apply the growth duty. In the course of taking this Bill through the House and on a number of other occasions, I have learnt to respect the immense diversity of regulatory functions and regulatory bodies, and that is one of the things that the very helpful and positive speech of the noble Earl, Lord Lindsay, took us a little further into. Anything that attempts to apply an overview to the vast mass of regulatory bodies is likely to be wrong. The Government therefore do not currently propose to bring the PSA in scope of the duty but will review this decision in the future should the PSA’s regulatory role change.
Moving on to the HFEA, I start by saying that the Government understand that there are aspects of the HFEA’s role that are ethically sensitive and unique, as we have recently debated in this House. Therefore, perhaps I may offer a number of preliminary reassurances and commitments to noble Lords, which I hope will reassure the Opposition Front Bench. I should say that we had an extremely positive and constructive discussion with the noble Lord, Lord Hunt of Kings Heath, and others earlier in the week.
The growth duty is not a duty that would require the HFEA to drive the growth of one of the industries that it regulates—for example, the fertility sector—and it is not a duty to achieve or pursue economic growth at the expense of patient protections, such as those involved in the sensitive sectors regulated by the HFEA, as the noble Earl, Lord Lindsay, has already set out.
I take this opportunity to repeat once again that the growth duty will not impede the independence of regulators and will give them discretion in how to apply the duty. It is certainly not the Government’s intention that the growth duty should weaken the HFEA’s regulatory role. I also assure noble Lords—especially the noble Lord, Lord Tunnicliffe, who is not here at the moment but has had helpful meetings with a number of Ministers to discuss this policy—that the duty is about reducing, for example, the regulatory burden of bureaucracy on business. It is not a duty that loosens or undermines important duties of protection. Statutory duties concerning the protection of vulnerable women and men in seeking help in this sector remain of fundamental importance.
The duty requires regulators to have a regard to the desirability of promoting economic growth among those they regulate when they carry out regulatory processes and make regulatory decisions—for example, writing guidance, planning or changing intervention strategies, designing or revising processes, and carrying out inspections of those who are regulated.
The Government commit to continuing to work with regulators, including the HFEA, to ensure that the statutory guidance is fit for purpose, robust and principles-based to assist them in avoiding the risks of challenge. We are all aware of the problem of judicial review and that the HFEA has already been subject to a number of challenges via judicial review. We will therefore make particular efforts to ensure that the guidance is as clear as possible. It will be clear that regulators can have regard to the growth duty, balance it against their other statutory duties and decide not to afford any weight to growth where it is not appropriate or relevant.
I can also give noble Lords the commitment to publish a revised version of the guidance on GOV.UK before or at the time the guidance is laid in draft before Parliament. I should point out that the Government commit also to lay the draft guidance and the draft order, listing the functions to which the duty will apply, before Parliament at the same time for informed debate. Both these, as noble Lords are aware, will be subject to the affirmative resolution in both Houses. There will be continuing engagement with stakeholders to help regulators consider how the duty can be applied, which we hope will help regulators to decide what weight, if any, they should apportion to the growth duty when considering it alongside their protection duties.
Since the Report stage debate, BIS officials have met with the HFEA and the Department of Health to discuss how the growth duty might apply to their specific regulatory role. I am grateful to my noble friend Lord Howe for his commitment that the two departments should continue working together and with the HFEA to address any concerns on specific issues as we move forward. I know that some strong concerns were raised on Report about the HFEA’s role in regulating some of the extremely high fees being charged by some fertility clinics. The noble Lord, Lord Winston, talked of a lady, approaching her forties, who went to a clinic in London and was quoted the extremely large sum of £11,000 for three months of fertility treatment.
Having explored the powers that the HFEA has as a non-economic regulator, we found that it has no power to regulate the prices charged in IVF clinics. I understand that the HFEA does want to do more. It has recently decided to provide patients with a feedback mechanism on its website where patients can say whether the costs they actually paid were as originally advertised. I know from discussions with the HFEA that it recognises that costs are a key concern for many patients. However, at present it can only act within its powers. I want to assure the noble Lords, Lord Hunt and Lord Winston, and noble Lords here today, that the Government will work with the Department of Health to explore further the matters raised.
As I said, officials from BIS and the Department of Health have met with the HFEA to consider its statutory regulatory functions which are taken from the Human Fertilisation and Embryology Acts 1990 and 2008, and other legislation. It is the Government’s view that the HFEA could have regard to growth when exercising these regulatory functions in a way that would not weaken its regulatory role. It could apply to the HFEA in its general course of operation, such as licensing, inspections or the information that centres are required to provide for them. For example, in the HFEA’s overall licensing and inspection of clinics, if it decided to implement a new licensing process, the growth duty requires a consideration of the importance of exercising such regulatory functions in a way which ensures that regulatory action is taken only when it is needed and that any action taken is proportionate. This would encourage the HFEA to consider the impact that this change may have on those it regulates.
The HFEA, as an expert in its respective and expanding field, will decide what weight, if any, to afford growth as part of its decision-making process in each case. In some circumstances it may be appropriate that the HFEA, in making a particular decision, has regard to growth, but makes a reasonable decision not to give it any weight in its decision-making. For example, while exercising its licensing and inspection functions the HFEA may find that a clinic’s ability to provide a safe service was in question. The clinic may have breached the Human Fertilisation and Embryology Act 1990, its licence conditions or the HFEA’s code of practice to the extent that it is at risk of the suspension of its licence or even having its licence revoked. In this circumstance, where patient safety is clearly an issue, the HFEA may, in considering the facts before it and weighing up its various statutory duties, make a reasonable decision not to apportion any weight to growth in considering whether to continue to license or close the clinic.
It may also be helpful to draw on an example from the pharmaceutical sector to further illustrate the type of mischief that the growth duty seeks to resolve. A pharmaceutical business used an alcohol spray product in bottles which had certification to say it was safe to use for three months. However, the inspector told the business that once opened, it must throw out bottles after 24 hours. Despite the business pointing out the certificate and the three-month agreed safe lifespan, the inspector refused to read the material and imposed the requirement that the company throw out the spray every 24 hours. This clearly placed an unnecessary financial burden on the business, due to the cost of the product. It could no longer afford to use the product or manufacture a particular pharmaceutical product. The growth duty would have required the inspector to have regard to the economic impact of its decision on the business. It would also have ensured that regulatory action was taken only when needed and that the action taken was proportionate. In neither of those cases would the issue of safety have been jeopardised in any way.
The Government are committed to creating a positive business environment right across the economy and applying a growth duty to regulators across a broad range of sectors that will contribute to this. It is, thus, the Government’s view that the HFEA should continue to be included within the scope of the growth duty. I hope that I have clarified the scope and intent of the duty and provided the necessary reassurances on this front.
Finally, in addition to excluding the PSA and the HFEA from the scope of the growth duty, the amendment seeks to give the Secretary of State the power to list by order,
“any persons exercising a regulatory function with respect to health and care service”,
and in that order to exclude them from the scope of the growth duty.
The Department of Health feels that excluding health regulators from the growth duty would be at odds with other departments and inconsistent with the Government’s intent. I hope that I have provided the assurances that the Opposition and others were looking for in this complex area, and I hope that that will enable the noble Baroness to withdraw the amendment.
Baroness Hayter of Kentish Town
I thank the Minister for a very thoughtful response, and for all the work and meetings that have clearly taken place. I particularly welcome the fact, if I have his words right, that the Government do not propose to bring the PSA into scope.
Turning to the HFEA, funnily enough I agree with virtually everything that the noble Earl, Lord Lindsay, says, except that I do not agree that it is against the amendment in front of us. I think that he is arguing for better regulation and for not putting unnecessary burdens on those being regulated, be they hospitals or laboratories. All the talk about better regulation, not having undue costs and not throwing away bottles after 24 hours is, to me, better regulation and not the same as the growth duty. I think that we are not very far away from that.
I welcome very much the recognition by the Minister that the HFEA is not an economic regulator, his words that it will not be required to drive or pursue economic growth, his willingness to continue this discussion and to use new guidance to try to help avoid the risk of challenge, and his words that the HFEA will decide for itself not to afford that duty in certain cases. We are probably fairly close on this, and the discussions and the new guidance will be helpful. On that basis, I beg leave to withdraw the amendment.
Lord Wallace of Saltaire
Lord Wallace of Saltaire
“(5A) The following provisions come into force on such day as the Lord Chancellor may by order made by statutory instrument appoint—
(a) sections (CLC practitioner services bodies) and (Licensed CLC practitioners);(b) section (CLC practitioner services: consequential amendments) and Schedule (CLC practitioner services: consequential amendments);(c) section (The Council for Licensed Conveyancers: other amendments) and Schedule (The Council for Licensed Conveyancers: other amendments).”
“(8A) The Lord Chancellor may by order made by statutory instrument make such transitional, transitory or saving provision as the Lord Chancellor considers appropriate in connection with the coming into force of sections (CLC practitioner services bodies) to (The Council for Licensed Conveyancers: other amendments) and Schedules (CLC practitioner services: consequential amendments) and (The Council for Licensed Conveyancers: other amendments).”
Lord Wallace of Saltaire
“in subsection (2B), omit paragraph (a);“in subsection (3), omit “(ba),”;”
“(29) If paragraph 4 comes into force before the coming into force of the repeal of the Audit Commission Act 1998 by section 1(2) of the Local Audit and Accountability Act 2014, Schedule 2 to the Act of 1998 is to have effect (until the repeal comes into force) as if in paragraph 1, paragraph (ma) were omitted.
“( ) In the Energy Act 2013, in Part 3 of Schedule 9, in the definition of “local authority” in paragraph 14(3), omit paragraph (b).
“( ) In the Local Audit and Accountability Act 2014, in Schedule 2, omit paragraph 25.”
Lord Wallace of Saltaire
“CLC practitioner services: consequential amendmentsAdministration of Justice Act 1985 (c. 61)1 The Administration of Justice Act 1985 is amended as follows.
2 (1) In section 16 (conditional licences), subsection (1) is amended as follows.
(2) For paragraph (b) substitute—
“(b) when conditions under this section have been imposed on a licence under this Part previously issued to him;(ba) when conditions under paragraph 5 of Schedule 8 to the Courts and Legal Services Act 1990 have been imposed on a licence under section 53 of that Act previously issued to him;”.(3) In paragraph (c), after “Part” insert “or a licence in force under section 53 of the Courts and Legal Services Act 1990”.
(4) In paragraph (ca), after “24A” insert “(including that section as applied by section 53 of the Courts and Legal Services Act 1990)”.
(5) In paragraph (d), after “26” insert “(including that section as applied by section 53 of the Courts and Legal Services Act 1990)”.
(6) In paragraph (ea), after “22” insert “(including that section as applied by section 53 of the Courts and Legal Services Act 1990)”.
3 (1) Section 26 (proceedings in disciplinary cases) is amended as follows.
(2) In subsection (2)—
(a) in paragraph (a), after “licence” insert “under this Part”;(b) in paragraph (b), for “a licence under this Part” substitute “any relevant licence”;(c) in paragraph (c), after “licence” insert “under this Part”. (3) After subsection (8) insert—
“(9) In this section “relevant licence” means—
(a) a licence under this Part, or(b) a licence under section 53 of the Courts and Legal Services Act 1990.”4 (1) Section 28 (revocation of licence on grounds of fraud or error) is amended as follows.
(2) In subsection (1)—
(a) after “a licence” insert “under this Part”;(b) for “the licence” substitute “all of the relevant licences held by that person”.(3) For subsection (2) substitute—
“(2) Where a person has had any relevant licence which was held by him revoked because of fraud on that person’s part, the person may not be issued with a licence under this Part except on the advice of the Committee given to the Council as the result of an application made by the person to the Committee.”
(4) In subsection (3), for “a licence under this Part” substitute “any relevant licence”.
(5) After subsection (6) insert—
“(7) In this section “relevant licence” has the meaning given by section 26.”
5 (1) Section 33A (administration of oaths by licensed conveyancers) is amended as follows.
(2) In the heading, after “conveyancers” insert “or licensed CLC practitioners”.
(3) In the section, after “conveyancers” insert “or licensed CLC practitioners”.
6 (1) Section 34 (modification of existing enactments relating to conveyancing etc) is amended as follows.
(2) In subsection (2), after “a recognised body” insert “which is a conveyancing services body”.
(3) In subsection (2), after “conveyancer or” (in the second place it occurs) insert “such a”.
(4) In subsection (3), after “body” insert “which is a conveyancing services body”.
(5) After subsection (3) insert—
“(4) In this section “conveyancing services body” has the meaning given by section 32A.”
7 In section 39 (interpretation of Part 2), in subsection (1), at the appropriate place insert—
““licensed CLC practitioner” means a person, other than a licensed conveyancer, who holds a licence under section 53 of the Courts and Legal Services Act 1990;”.8 In Schedule 3 (the Council for Licensed Conveyancers: supplementary provisions), in paragraph 2 (constitution of the Council), in sub-paragraph (1)(a)—
(a) omit the “or” at the end of sub-paragraph (i);(b) after sub-paragraph (i) insert—“(ia) licensed CLC practitioners; or”.9 (1) Schedule 6 (bodies recognised under section 32: supplementary provisions) is amended as follows.
(2) In paragraph 3 (preliminary investigation by the Investigating Committee etc)—
(a) omit the “or” at the end of sub-paragraph (1)(a)(ii);(b) after sub-paragraph (1)(aa) insert—“(aaa) it is alleged that a manager or employee of a recognised body who is not a licensed CLC practitioner has failed to comply with any rules applicable to him by virtue of section 32; or”.(3) In paragraph 3A (orders made by the Investigating Committee), in sub-paragraph (1)(b)—
(a) after “3(1)(aa)” insert “or (aaa)”;(b) for “that paragraph” substitute “paragraph 3(1)(aa) or (aaa) (as the case may be)”. (4) In paragraph 4 (orders made by the Discipline and Appeals Committee), in sub-paragraph (2A)—
(a) after “3(1)(aa)” insert “or (aaa)”;(b) for “sub-paragraph (ii) of that paragraph” substitute “paragraph 3(1)(aa) or (aaa) (as the case may be)”.(5) In paragraph 14 (examination of files), in sub-paragraph (1), after “(aa)” insert “, (aaa)”.
Courts and Legal Services Act 1990 (c. 41)10 The Courts and Legal Services Act 1990 is amended as follows.
11 In section 75 (judges etc barred from legal practice), in paragraph (c), for “or licensed conveyancer” substitute “, licensed conveyancer or licensed CLC practitioner”.
12 In section 119 (interpretation), in subsection (1), at the appropriate place insert—
““licensed CLC practitioner” has the meaning given in section 53;”.13 (1) Schedule 8 (licensed conveyancers) is amended as follows.
(2) In the heading, after “conveyancers” insert “and licensed CLC practitioners”.
(3) In paragraph 1 (general)—
(a) for the definition of “advocacy licence” substitute—““advocacy licence”, “litigation licence” and “probate licence” have the meaning given by section 53;”;(b) omit the definitions of—(i) “litigation licence”, and(ii) “probate licence”.(4) In paragraph 4 (issue of licences), in sub-paragraph (3), for the words from “with respect” to “as they” substitute “with respect to—
(a) any application under paragraph 3 for an advocacy licence and any advocacy licence in force under section 53;(b) any application under paragraph 3 for a litigation licence and any litigation licence in force under section 53; and(c) any application under paragraph 3 for a probate licence and any probate licence in force under section 53 (as the case may be),as they”.(5) In paragraph 5 (conditional licences)—
(a) for sub-paragraph (1)(b) substitute—“(b) when conditions under this paragraph have been imposed on an advocacy, litigation or probate licence previously issued to him;(ba) when conditions under section 16 of the Act of 1985 have been imposed on a licence under Part 2 of the Act of 1985 previously issued to him;”;(b) in sub-paragraph (1)(c), for “a licence of that kind” substitute “an advocacy, litigation or probate licence or a licence under Part 2 of the Act of 1985”;(c) in sub-paragraph (1)(d)—(i) after “1985” insert “(including section 24A(1) as applied by section 53)”;(ii) after “that Act” insert “(including section 26(1) as applied by section 53)”;(d) in sub-paragraph (6), omit the “or” after paragraph (a);(e) in sub-paragraph (6)(b), at the beginning insert “in the case of an applicant who is a licensed conveyancer,”;(f) after sub-paragraph (6)(b) insert “; or(c) for requiring the applicant to take any specified steps that will, in the opinion of the Council, be conducive to his carrying on an efficient practice as a licensed CLC practitioner,”;(g) in sub-paragraph (6), after “paragraph (b)” insert “or (c)”.(6) After paragraph 6 insert—
“Register of licensed CLC practitioners6A (1) The Council must establish and maintain, in such form as the Council may determine, a register containing the names and places of business of all persons who for the time being hold an advocacy, litigation or probate licence and are not licensed conveyancers.
(2) The Council may make rules specifying the further information, including information about disciplinary measures taken, to be recorded in the register in relation to a person.
(3) The Council must cause the appropriate entries and deletions to be made in the register on the issue and termination of advocacy, litigation and probate licences; and where any licence held by a person is for the time being suspended by virtue of any provision of Part 2 of the Act of 1985 as applied by this Act the Council must cause that fact to be noted in the register against that person’s name.
(4) Any change in a licensed CLC practitioner’s place or places of business must be notified by that person to the Council within the period of fourteen days beginning with the date on which the change takes effect.
(5) The Council must provide facilities for making the information contained in the entries in the register available for inspection in visible and legible form by any person during office hours and without payment.
(6) A certificate signed by an officer of the Council appointed for the purpose and stating—
(a) that any person does or does not, or did or did not at any time, hold an advocacy, litigation or probate licence, or(b) that any licence held by any person is or was at any time either free of conditions or subject to any particular conditions,is, unless the contrary is proved, evidence of the facts stated in the certificate; and a certificate purporting to be so signed is to be taken to have been so signed unless the contrary is proved.”(7) For paragraph 8 and the cross-heading preceding it substitute—
“Effect of suspension or revocation8 Where a relevant licence ceases to be in force because of—
(a) a direction under section 24(5) of the Act of 1985, or(b) an order under section 26(2)(a) or (c) of the Act of 1985,any other relevant licence in force with respect to that person at the time shall cease to have effect to the same extent as the licence in question.”(8) Omit paragraph 9 (removal of disqualification from holding an advocacy, litigation or probate licence).
(9) Omit paragraph 10 (revocation on grounds of error or fraud).
(10) In paragraph 21 (power to examine files)—
(a) in sub-paragraph (1)(a), after “conveyancer” insert “or licensed CLC practitioner”;(b) in sub-paragraph (1), for “the licensed conveyancer” (in both places where it occurs) substitute “the person complained of”.(11) In paragraph 22 (interest on clients’ money), after “conveyancer” insert “or licensed CLC practitioner”.
Legal Services Act 2007 (c. 29)14 The Legal Services Act 2007 is amended as follows.
15 (1) Section 104 (prevention of regulatory conflict: accounts rules) is amended as follows.
(2) In subsection (2), after “conveyancer” insert “or licensed CLC practitioner”.
(3) After subsection (2) insert—
“(3) In this section “licensed CLC practitioner” means a person, other than a licensed conveyancer, who holds a licence under section 53 of the Courts and Legal Services Act 1990.”
16 (1) In Schedule 5 (authorised persons), paragraph 11 (rights during transitional period: licensed conveyancers) is amended as follows.
(2) After sub-paragraph (1) insert—
“(1A) During the transitional period every individual, not being a licensed conveyancer, who holds a licence under section 53 of the Courts and Legal Services Act 1990 is deemed to be authorised by the Council to administer oaths.”(3) In sub-paragraph (2), after “(1)” insert “or (1A)”.
(4) In sub-paragraph (3), in the opening words—
(a) after “and every” insert “conveyancing services”;(b) after “provide conveyancing” insert “or other”.(5) After sub-paragraph (3) insert—
“(3A) During that period, every CLC practitioner services body recognised under section 32 of the Administration of Justice Act 1985 is deemed to be authorised by the Council to administer oaths.”(6) In sub-paragraph (4), after “(3)” insert “or (3A)”.
(7) For sub-paragraph (5) substitute—
“(5) In this paragraph—“CLC practitioner services body” has the meaning given by section 32B of the Administration of Justice Act 1985;“conveyancing partnership” means a partnership at least some of the members of which are licensed conveyancers, but does not include a CLC practitioner services body;“conveyancing services body” has the meaning given by section 32A of the Administration of Justice 1985.”(8) In sub-paragraph (6), after “licence” insert “or a licence under section 53 of the Courts and Legal Services Act 1990”.
17 In Schedule 24 (index of defined expressions), at the appropriate places insert—
“CLC practitioner services body | paragraph 11 of Schedule 5”; | |
“conveyancing services body | paragraph 11 of Schedule 5”; | |
“licensed CLC practitioner | section 104(3)”.” |
“The Council for Licensed Conveyancers: other amendments1 The Administration of Justice Act 1985 is amended as follows.
2 (1) Section 15 (issue of licences by the Council for Licensed Conveyancers) is amended as follows.
(2) In subsection (3)(b), for the words from “the period” to “the Council” substitute “the period prescribed under subsection (3A)”.
(3) After subsection (3) insert—
“(3A) The Council must by rules prescribe the period that applies for the purposes of subsection (3)(b).”
3 (1) Section 18 (suspension or termination of licences) is amended as follows.
(2) After subsection (2C) insert—
“(2CA) Where the power conferred by paragraph 6(1) or 9(1) of Schedule 5 is exercised in relation to a recognised body by virtue of paragraph 10(1)(a) of Schedule 6, the exercise of that power shall operate immediately to suspend any licence under this Part held by a person who is a manager of the recognised body.
(2CB) Where the power conferred by paragraph 6(1) or 9(1) of Schedule 5 is exercised in relation to a recognised body by virtue of paragraph 10(1)(d) of Schedule 6, the exercise of that power shall operate immediately to suspend any licence under this Part held by a person who is—
(a) a manager of the recognised body, or(b) an employee of the recognised body.(2CC) Where the power conferred by paragraph 3(1) or 8(1) of Schedule 14 to the Legal Services Act 2007 is exercised in relation to a licensed body by virtue of paragraph 1(2)(d) of that Schedule, the exercise of that power shall operate immediately to suspend any licence under this Part held by a person who is—
(a) a manager of the licensed body, or (b) an employee of the licensed body.(2CD) At the time when the power referred to in subsection (2CA), (2CB) or (2CC) is exercised, the Council may direct that subsection (2CA), (2CB) or (2CC) (as the case may be) is not to apply in relation to a particular licensed conveyancer.
(2CE) The Council may give a direction under subsection (2CD) in relation to a licensed conveyancer only if—
(a) the Council is satisfied that the licensed conveyancer did not fail to comply with the rules applicable to the recognised body by virtue of section 32, or contribute to the body’s failure to comply with such rules, in a case where the Council acts by virtue of paragraph 10(1)(a) of Schedule 6,(b) the Council does not suspect the licensed conveyancer of dishonesty, in a case where the Council acts by virtue of—(i) paragraph 10(1)(d) of Schedule 6, or(ii) paragraph 1(2)(d) of Schedule 14 to the Legal Services Act 2007,(c) the Council is satisfied that the licensed conveyancer was not a manager of the recognised body when the conduct providing the basis for the exercise of the power in paragraph 6(1) or 9(1) of Schedule 5 took place, in a case where the Council acts by virtue of paragraph 10(1)(a) of Schedule 6,(d) the Council is satisfied that the licensed conveyancer was not a manager or employee of the recognised body when the conduct providing the basis for the exercise of the power in paragraph 6(1) or 9(1) of Schedule 5 is suspected of having taken place, in a case where the Council acts by virtue of paragraph 10(1)(d) of Schedule 6, and(e) the Council is satisfied that the licensed conveyancer was not a manager or employee of the licensed body when the conduct providing the basis for the exercise of the power in paragraph 3(1) or 8(1) of Schedule 14 to the Legal Services Act 2007 is suspected of having taken place, in a case where the Council acts by virtue of paragraph 1(2)(d) of Schedule 14 to that Act.(2CF) At the time when the power referred to in subsection (2CA), (2CB) or (2CC) is exercised, the Council may direct that such of the licensed conveyancers concerned as are identified in the direction may continue to act in relation to any matter specified in the direction as if their licences had not been suspended by virtue of subsection (2CA), (2CB) or (2CC) (as the case may be), subject to such conditions (if any) as the Council sees fit to impose.”
(3) In subsection (2D), after “(2A)” insert “, (2CA), (2CB) or (2CC)”.
(4) In subsection (2G), for “High Court” substitute “First-tier Tribunal”.
(5) Omit subsection (2H).
4 (1) Section 19 (register of licensed conveyancers) is amended as follows.
(2) After subsection (1) insert—
“(1A) The Council may make rules specifying the further information, including information about disciplinary measures taken, to be recorded in the register in relation to a person.”
(3) In subsection (2), omit “accordingly”.
5 In section 20 (rules as to professional practice, conduct and discipline), omit subsection (2).
6 (1) Section 24 (preliminary investigation of disciplinary cases) is amended as follows.
(2) In subsection (10), for “High Court” substitute “First-tier Tribunal”.
(3) In subsection (11), for “High Court” substitute “First-tier Tribunal”.
(4) Omit subsection (12).
7 (1) Section 24A (determination of allegations by the Investigating Committee) is amended as follows.
(2) In subsection (8), for “High Court” substitute “First-tier Tribunal”.
(3) In subsection (9), for “High Court” substitute “First-tier Tribunal”.
(4) Omit subsection (10).
8 (1) Section 26 (proceedings in disciplinary cases) is amended as follows.
(2) For subsection (7) substitute—
“(7) Where the Discipline and Appeals Committee make an order by virtue of subsection (1)—
(a) the person against whom the order is made, or(b) the Council,may appeal to the First-tier Tribunal, and on any such appeal the First-tier Tribunal may make such order as it thinks fit.”(3) In subsection (7A), for “High Court” (in both places where it occurs) substitute “First-tier Tribunal”.
(4) Omit subsection (8).
9 In Schedule 3 (the Council for Licensed Conveyancers: supplementary provisions), in paragraph 4 (appointment of persons to Council), in sub-paragraph (2), omit “by one”.
10 (1) Schedule 6 (bodies recognised under section 32: supplementary provisions) is amended as follows.
(2) In paragraph 3A (orders made by the Investigating Committee)—
(a) in sub-paragraph (8), for “High Court” substitute “First-tier Tribunal”;(b) in sub-paragraph (9), for “High Court” substitute “First-tier Tribunal”;(c) omit sub-paragraph (10).(3) In paragraph 6 (appeals against orders of the Discipline and Appeals Committee)—
(a) for sub-paragraph (1) substitute—“(1) Where the Committee make an order by virtue of paragraph 4(1) or (2A) or 5(1)—(a) the person as regards whom the order is made, or(b) the Council,may appeal to the First-tier Tribunal, and on any such appeal the First-tier Tribunal may make such order as it thinks fit.”;(b) in sub-paragraph (1A), for “High Court” (in both places where it occurs) substitute “First-tier Tribunal”;(c) omit sub-paragraph (2).”
Lord Wallace of Saltaire
Lord Wallace of Saltaire
Baroness Hayter of Kentish Town
My Lords, I use this opportunity for a brief moment to pay tribute to my noble friend Lord Stevenson, who, from our side, has guided and marshalled our many Front Bench colleagues, including my noble friends Lady Thornton, Lord Tunnicliffe and Lord McKenzie, through what has been called a “Christmas tree Bill”. Of course, we do not think it is quite such a Bill because it is not full of goodies, but I thank my noble friend Lord Stevenson and, I have to say, our brilliant legislative adviser, Muna Abbas; this was her first such Bill. We think that it has ended up a little better than it arrived.
I thank the Minister and his sometimes expanding, sometimes reducing ministerial team. I also thank the other members of the Bill team who have helped negotiate, redraft, debate and discuss throughout the process, including the setting up of a large number of bilateral meetings, some of which have dealt with some very complex issues. They now deserve a very good holiday, so I suggest that before too long we have a general election so that they may have one.
Lord Stoneham of Droxford (LD)
My Lords, on behalf of these Benches, I thank my noble friend Lord Wallace for seeing us through this Bill. When we started, we thought that this would be a complete nightmare, but his skill, perseverance and patience have helped that not to be so. I thank also the opposition Benches for their part in seeing this legislation through, and our colleagues in our own office, Giles Derrington and Elizabeth Plummer, who supported us through the business of this Bill.
Lord Wallace of Saltaire
My Lords, this is almost the end of the Gardiner-Wallace double act for this Parliament. The kinder definition of this Bill is “a portmanteau Bill”, I think. I am particularly grateful to the Bill teams for the way in which they have coped with what has unavoidably been a matter of negotiation across Whitehall, dealing with different Whitehall departments, in pursuit of what the noble Earl, Lord Lindsay, would like to call better regulation rather than deregulation.
When I look across the currently empty Benches, I am always conscious that there are those who believe that the only regulations imposed on Britain are imposed by Brussels. Many of our discussions here have been about the necessity of regulation for many different parts of the British economy, British society and British science, and we are going to continue, for the rest of our careers in this Chamber, to discuss many of these issues about risk, regulation, the market and how one balances all those very difficult issues.
There are many others whom one could thank. I almost feel that I should thank the noble Lord, Lord Rooker, for agreeing that, having chaired the pre-legislative scrutiny, he would not take further part in this Bill because he felt that he had had enough. He is far too sharp otherwise to have missed a number of things that we have been struggling with. It has been a very large Bill. We have managed to repeal or amend a number of early 19th-century Acts and statutory instruments, and we have now come to the end. I am extremely grateful to all those who have co-operated in this, including the Opposition Front Bench and their researchers, as well as our magnificent Bill team.