Grand Committee
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Neighbourhood Planning Bill
Monday 6th February 2017
(7 years, 10 months ago)
Grand CommitteeRead Full debate Neighbourhood Planning Act 2017 View all Neighbourhood Planning Act 2017 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 86-IV Fourth marshalled list for Grand Committee (PDF, 105KB) - (6 Feb 2017)
The Deputy Chairman of Committees (Lord Brougham and Vaux)
Good afternoon, my Lords, and welcome to the third day of the Grand Committee on the Neighbourhood Planning Bill. I apologise for the Clock, but the mini-clock that shows the length of speeches is correct. Do not worry about that. There may be a Division in the Chamber. If there is and the Bell rings, we will adjourn and resume after 10 minutes.
Clause 12: Restrictions on power to impose planning conditions
Amendment 28
The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, first, it is good to see the noble Baroness, Lady Bakewell, back and looking in fine fettle. I shall speak collectively about government Amendments 28, 30, 35, 39, 40 to 43 and 50 to 55. I then look forward to hearing from other noble Lords on non-government amendments in the group.
Before discussing the detail of the government amendments, it may be helpful for me to set them in context. Clause 12(1) would introduce new Section 100ZA into the Town and Country Planning Act 1990. This would provide the Secretary of State with a power to make regulations about what kind of conditions may or may not be imposed and in what circumstances.
Planning conditions, when used appropriately, can be an effective tool in ensuring we deliver sustainable development. However, there remain concerns that some local planning authorities are imposing conditions that do not meet the well-established policy tests in the National Planning Policy Framework: that conditions should be imposed only where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects. The purpose behind this power is to help remove costs and delays to the delivery of new development caused by the need to respond to unreasonable planning conditions.
The power will put on a statutory footing the national policy tests for conditions and, by reducing the number of unreasonable conditions imposed and which fail to meet the tests, help get more homes built more quickly once they have planning permission. I emphasise that in the exercise of this power, the Secretary of State must be satisfied that the regulations are appropriate for the purpose of ensuring that any condition imposed on a grant of planning permission for the development of land is, in broad terms, necessary, relevant, precise and reasonable. This will not impact on appropriate protections for important matters such as heritage, ecology and flood mitigation.
As drafted, Clause 12 allows the Secretary of State to exercise this power in respect of any grant of planning permission. This includes planning permission granted not just for a single planning application for a specific scheme, but by an order, which could be granted by the Secretary of State, the Mayor of London, local authorities or neighbourhood planning groups. Development orders can grant planning permission for a particular site or geographical area and for a variety of specified types of development. In the light of responses to the Government’s consultation on this new power, to which a response was published at the end of December last year, we have concluded that it is generally not appropriate to apply this power where planning permission is not granted following the consideration of an individual application in certain circumstances. We therefore seek to amend the clause.
The amendment would restrict new Section 100ZA from applying to order-making powers. Development orders are not granted following an individual application and often grant planning permission to an area. They therefore may need to impose a number of limitations. It is important that a local planning authority or the Secretary of State can set out in an order those conditions that frame the type of development that would be acceptable. This can include a condition that the development, including the change of use, is completed within three years. Such a condition may be unreasonable when imposed following the consideration of a planning application, but not in the very different exercise of granting planning permission by order.
Given this, and in the light of the consultation responses on this issue, we have concluded that the new power to limit conditions should not apply to orders. Consequently, should the amendment be approved, the power will not apply to grants of planning permission in the following: development orders, simplified planning zones, enterprise zones, and development control procedures—that is, where government authorisation is required. This will retain the core benefit of the power in ensuring that planning conditions are imposed only when necessary, while protecting the flexibility afforded to grant planning permissions by these powers. With these arguments in mind, I therefore beg to move the amendment.
Baroness Parminter (LD)
My Lords, I have Amendment 38 in this string of amendments. With one in six homes at risk at present, it is quite clear that homes need to be built which protect residents from increasing flood risk. I have put down this amendment because I noted that the Government, both on Report and in Committee in the Commons, were remarkably un-keen to delete this clause, so my thinking is that there is more than one way to skin a cat. If one feels as I do about the issue of flood risk, there is perhaps the potential for exemptions. I have tabled this amendment because all the evidence from around the UK shows that we need drainage standards and designs for drainage to be agreed up front. If they are not, it is not good for the housebuilder or the local authority, and it is certainly not good for the home owner.
In Scotland there is a legal requirement to have sustainable drainage on any development, but developers are not obliged to engage with Scottish Water on the design and building up front. This results in housebuilders producing their own designs, which Scottish Water then has issues with. The result is that 90% of these drainage systems are not adopted by Scottish Water. In Wales, however, developers have to have an agreement with the sewerage undertakers on a specific design before they start on-site. This system works and does not hold up developments. This shows that the designs for sewerage and sustainable drainage need to be settled at the beginning of the process, and local authorities need the powers to enable that to happen. If the prohibition on local authorities imposing pre-commencement conditions goes ahead, that cannot happen. What then will happen is that developers will not be certain about the drainage, the adoption or the maintenance, there will be commuted sum disagreements, developers will in all likelihood put the arrangements into a private company with no quality assurance on the drainage—it will probably end up being a tank somewhere in the ground rather than a scheme that enhances the environment or the area for the homeowner—and future flooding issues will be left for the local authority and the homeowner to pick up.
The Government have given us no evidence that there is a problem. The examples the Minister sent round in the letter to noble Lords were just a series of quotes, mainly from the annual reports from the housebuilders. I have gone through the government consultation and there is no indication of the scale of the so-called problem, and no single citing of a concrete example. It is therefore no surprise that only a minority—44%—of those who undertook the government consultation supported the proposal to prohibit local authorities from imposing pre-commencement conditions. Therefore, there is not majority support from the Government’s consultation for this measure to go ahead.
Of course, planning conditions imposed by local planning authorities should be reasonable and necessary. However, as the Government themselves said on 24 January in response to the EFRA Committee’s report on flood prevention,
“the robust planning approach in place is the best way to control development so that it does not add to flood risk”.
As such, pre-commencement conditions should be seen as a positive tool to deliver this, as well as to ensure that permission can be granted.
To be blunt, this approach is also putting the cart before the horse. After a battle with noble Lords, Clause 171 of the Housing and Planning Act requires the Government to review planning law on policy relating to sustainable drainage in England. That review by DCLG and Defra is currently under way and is due for completion by April. At this point I must say that I am grateful to the Minister for the offer of a meeting on that issue, which I understand is now scheduled for later this week.
The Government have provided no real evidence that there is a problem. Evidence from Scotland and Wales shows that we need to ensure that flooding conditions are settled up front, and there is a real risk here of pre-empting any decisions following the Government’s own review, which we are expecting in the next few months. On that basis, it is absolutely essential that the Government address the issue, and if they will not go as far as removing the whole clause, they should make exemptions for important issues such as dealing with flood risk; otherwise, we will be putting home owners of the future in real danger.
Lord Kennedy of Southwark (Lab)
My Lords, I will make my usual declarations as we start this the third day in Committee on the Neighbourhood Planning Bill. I am an elected councillor in the London Borough of Lewisham and a vice-president of the Local Government Association.
This first group of amendments is concerned with Clause 12 and Schedule 3. Government Amendments 28, 35, 40 and 42 all seek to add the word “relevant” before “grant of planning permission”. Perhaps the noble Lord can tell us a little more about why this is deemed necessary and it was not in the Bill in the first place. All the amendments tabled by myself and my noble friend Lord Beecham, who will be with us later—he is attending a funeral at the moment—are probing in nature. They seek to understand the Government’s thinking so that we can be clearer on the objectives, challenge the Government and provide alternative solutions.
Amendment 29 tabled in my name and that of my noble friend seeks to put in the Bill a provision for the Secretary of State to allow local planning authorities to make exceptions to the power being taken by the Government in Clause 12(1)(a) to (c). It is becoming clear how inappropriately named this Bill is—it is a complete misnomer. In this clause the Government are again taking more powers to order local authorities to do things. I can see nothing “localist” about that and nothing that supports neighbourhood planning in any way, so Amendment 29 would allow in a small way some discretion for local planning authorities to make exceptions. But of course, the clause is in the Bill because the Government believe that local planning authorities are holding up the planning process with lots of irrelevant conditions. As I have said many times before, I am a member of a planning committee and I have never had a developer come before the committee and say, “The conditions you are attempting to impose on us are holding up the development”. I agree with the noble Baroness, Lady Parminter, that the Government have provided no evidence for this whatever. It is just not the case, and if there are delays, the Government should be looking at how local government can recover the full costs of its fees so that it can afford more resources in its planning departments.
Amendment 31 seeks to remove lines 37 and 38 on page 10 of the Bill. This extraordinary provision again seeks to give additional powers to the Secretary of State. Amendment 21 seeks to add two specific points which are important, in that account should be taken of the public interest and the sustainability of any development. I hope that all noble Lords agree that these are important considerations in making regulations and therefore should be included. Amendment 33 seeks to amend the Bill so that consultation should include local authorities. I am sure the Minister will tell us that of course the Government intend to consult local authorities, and I will be pleased to hear that, but it would be useful if he set out on the record clearly and specifically whom they intend to consult, because leaving it to chance, very broad and off the record is not the best way to ensure that the relevant bodies and organisations can come forward with their views.
These proposals also need some kind of appeals process built into them. This taking of new powers is a considerable step forward on the Government’s part, and an appeals process would allow a local authority to make its case by bringing in relevant local factors, hence my tabling Amendment 34. Amendments 36 and 37 address the need to seek a bridging agreement to pre-commencement conditions. This is a controversial part of the Bill and we are seeking to delete the provision or, if it remains, a way of dealing with the situation when agreement cannot be reached. A determination through a mediation process may be a way forward. As noble Lords will know, mediation is of course an established way to resolve problems. Again, it would be useful if the Minister told us today what he envisions will happen when the authority and the developer cannot reach agreement.
Lord True (Con)
My Lords, I first declare an interest as leader of a local authority—a London borough council. I must apologise to my noble friend the Minister and to other Members of the Committee. I was unable to take part in Second Reading because we had a full council meeting that day and I could not stay until the end of proceedings. I am also afraid that when the Bill was in Committee last week, I was abroad on an unbreakable work engagement and so was unable to take part in the first two days. However, I have read the debate carefully and rise to speak with due humility. Having read the proceedings, I hope my noble friend Lady Cumberlege will not be disinclined to intervene—I enjoyed reading a large number of her interventions.
I say to the Committee how grateful I am to my noble friend the Minister for his openness and, through him, the willingness of his officials to discuss difficult issues. That needs to be put on record immediately. As my noble friend knows, I am a little concerned about where these proposals are intended to go—we could be bringing out a Dreadnought to deal with problems on the local public pond which, frankly, could be sorted out. I am grateful for the elucidation that my noble friend set out, but we need to understand a good bit more about how these regulations might work. For example, there is a requirement that the applicant must give written consent agreement. How many pages of regulations will there be to say in what terms that will be? Will it have to be legally sanctioned? When will it have to be delivered, et cetera? It says also that the Secretary of State must carry out a public consultation before an order is made. How long will that take? With whom will it be? Will it be in an individual area or across the nation?
We all want to get development going more quickly. But my concern is that, in some circumstances—perhaps the noble Baroness opposite pointed to one when she talked about fear of flooding—pre-commencement conditions actually enable development to happen more quickly and with more consent, rather than, as is assumed, every council necessarily trying all the time to deter. I want to look very carefully at the detail of these proposals.
I am puzzled by the statement in subsection (2)(a) of the new section, to which the noble Lord opposite has referred, that the condition must be,
“necessary to make the development acceptable in planning terms”.
Make it acceptable to whom—to the local community, to the neighbourhood, to the people who will be affected or to the planning inspectorate in Bristol?
On the other hand, I cannot follow the noble Lord opposite—even though I understand where he is coming from—in proposing in his Amendment 37 setting up a mediation process. I spoke about this on the previous planning legislation we had before us, in which the Government set up a sort of national arbitration service concept. If one does not define this very closely, there is a risk that everything would automatically go to some sort of statutory arbitrator. That in itself could also clog up the system. With all the good will in the world, it may be that the amendment in the name of the noble Lord opposite is as guilty of causing potential obstacles as overregulation would.
I am not going to support any proposal that this provision be struck out—I see there is an amendment to that effect. I understand the Government’s concern to get development but we have not seen enough evidence. Between now and Report, and perhaps when my noble friend replies, we might get to understand a little better where and when the steel of a Dreadnought will be seen emerging from the department. I am a passionate localist: so much in recent planning legislation is about centralism and making things harder in the guise of getting development. I do not accept the view that local authorities are always against development. I look forward to hearing more from my noble friend, today and between now and Report, on the justification for these proposals.
Lord Shipley (LD)
My Lords, I have serious concerns about Clause 12, particularly about subsections (2), (5) and (6) in new Section 100ZA on pages 10 and 11. The Government are going to have to rethink this very carefully because, as it stands, Clause 12 will cause more problems than it solves. We have heard many reasons for this, but I will go further. What discussions have been held with the Royal Town Planning Institute? I ask the Minister that because it has sent a briefing on the Bill which states, broadly speaking, that there are advantages to pre-commencement planning conditions:
“These have certain advantages to applicants who may not be in a position to finalise details of a scheme but wish to secure a planning permission as soon as possible. They have advantages to local authorities because councils may have in practice limited legal ability to enforce conditions once a scheme is underway. Conditions are useful to the development industry in general because they enable schemes to be permitted which otherwise might have to be refused”.
If they were refused it would take longer and, as the noble Lord, Lord True, said, you may get faster and better planning decisions as a consequence of having pre-commencement conditions. Refusal of planning permission should, in general, be avoided because of all the complexities which are then introduced.
In telling the Committee what discussions the Government have had with the Royal Town Planning Institute, will the Minister explain what consideration they have given to the 15th report of the Delegated Powers and Regulatory Reform Committee, which was written substantially on the subject of Clause 12? It points out that,
“the national policy framework confirms that planning conditions should only be imposed where they meet six tests. They must be: necessary; relevant to planning; relevant to the development to be permitted; enforceable; precise and reasonable in all other respects”.
So that already exists within the National Planning Policy Framework.
Paragraph 12 of the DPRRC report states that,
“the Government want to take this power because ‘there is evidence that some local planning authorities are imposing unnecessary and inappropriate planning conditions which do not meet the tests in national policy, resulting in delays to the delivery of new development’”.
There may well be such examples. If they do not meet the six tests, there is already a legal statutory requirement to demonstrate that the six tests are applied. But in paragraph 26 of the report, the DPRRC asked for,
“specific examples of pre-commencement conditions to help us understand the effect of subsection (5)”—
which my noble friend Lady Parminter talked about—because:
“None appeared to be included in the explanatory material accompanying the Bill”.
The committee had to ask the DCLG to provide a list of,
“details that developers have had to provide to local planning authorities before building works could begin”.
There are nine things on that list. With my long experience in local government, I can see a very good case for all nine of them. I will come back to this, with some practical examples of what goes wrong if you do not have pre-commencement planning conditions. But when I read that,
“installation of superfast broadband infrastructure”,
is not deemed to be required as a pre-commencement condition, I think this is wrong. We ought to have agreement on superfast broadband infrastructure, since within the next few years every part of the country is going to have it.
I will say more about this issue when we debate whether the clause should stand part of the Bill, but it seems to me that if that is the extent of the problem, the things listed are not in themselves significant problems. I am really starting to think that Clause 12 is not a good clause. We will look at this further on Report, but at present I have to say that this clause will cause more problems than it solves.
Baroness Andrews (Lab)
My Lords, I will follow the noble Lord, Lord Shipley, in his masterly demolition of Clause 12. My first point concerns the notion of relevance. Clearly, the committee really struggled with notions of relevance and found itself quoting, in paragraph 13, the memorandum, which illustrated,
“examples of the types of condition that the proposed power would prohibit. They include: ‘those which may unreasonably impact on the deliverability of a development, those which place unjustifiable and disproportionate financial burdens on an applicant, or those which duplicate requirements to comply with other statutory regimes’”.
That could probably cover every single impact of every aspect of development. These are vague and general in the extreme, so no wonder the important conclusion of the committee was that it would be,
“inappropriate for the Government to be given a power which could be used to go well beyond the stated aims of the Bill”.
Were these regulations to be enacted, the committee recommended that,
“the affirmative procedure should apply to the exercise of the powers”.
Do the Government agree that if this clause stands, the affirmative procedure will indeed be adopted?
The Delegated Powers Committee, on which I had the honour to serve for many years, does not make such recommendations lightly. This is a very serious indictment and a very serious conclusion. Do the Government intend to accept that the affirmative procedure should apply in this case?
Lord Judd (Lab)
My Lords, I find these amendments very important and significant. If we are going to tackle the issue of regulation, it is terribly important that we get it right and that we tackle the real problems, not just theoretical problems or those identified by people who are discussing the issues at a rather remote level.
Let me be very direct: I live five miles outside Cockermouth, in the Lorton Valley. There is a tremendous debate going on at the moment about development in Cockermouth. It is not about whether the houses being built are liable to flooding; that is an issue, but it does not seem that they will be. However, people who have suffered terrible flooding experiences more than once in recent years now say that there is a risk that what is being done will contribute to the flooding of other people’s homes, because the drainage arrangements necessary for the number of houses being built are inadequate. This is a real issue and in our approach to it, we need to be careful and the Government need to take the points raised in these amendments seriously. This is affecting people now, and there is real anxiety. That anxiety is accentuated because in Cockermouth and the surrounding area, people are not convinced that the arrangements being made will prevent the repetition of flooding in future years. A great building programme is going ahead before the people directly affected have been assured that arrangements are in hand to meet the challenges that have arisen.
The issues raised this afternoon are crucial. I hope the Government will think hard about whether the clause is necessary and, if they are determined to go ahead with it, ensure that it meets the real issues that are affecting real people in real situations.
Baroness Hodgson of Abinger (Con)
My Lords, I speak with humility because I am not an expert in planning, but I do so because of the concern that this clause does not support the agenda of localism. My understanding is that if this clause stands, building may start before details have been agreed. Will my noble friend tell us what provision there is for local people to object to building once it commences? It seems to me that once building starts it is very hard to stop it rolling on and for local people to really have any input into whether it is acceptable. I also understand that pre-commencement conditions are one way to ensure appropriate design and quality, and that buildings are put in the right places. We have heard about drainage and flooding, but there is also the issue of whether these conditions enhance their local communities. I am concerned that this clause appears to load the dice against what local people may wish and I do not feel this is what we were elected for on our agenda of localism.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who participated in the discussion and debate on these non-government amendments—specifically my noble friends Lord True and Lady Hodgson, the noble Lords, Lord Kennedy, Lord Shipley and Lord Judd, and the noble Baronesses, Lady Parminter and Lady Andrews.
Before I address each of the amendments tabled by the noble Lords, I will make some generalised points about the position regarding pre-commencement conditions. The absence of pre-commencement conditions does not mean that one can start work automatically. The pre-commencement conditions, once agreed—or if there are none—enable the developer, for example, to raise finance and perhaps to put a construction team together with the security of knowing that he is likely to have permission, but it does not mean that the work will begin. Nor do the provisions of Clause 12 prevent local authorities with gumption—which is most of them, and many noble Lords here represent them—from agreeing conditions. It absolutely provides that conditions can be reached by agreement with the developers and this is what would happen in many cases. We make it absolutely clear that this is not preventing agreement between the parties, which I am sure would happen in the vast majority of cases.
Let me deal with the amendments in numerical order, if I may, so that I do not come to that of the noble Baroness, Lady Parminter, until later. I note that Amendment 29 was also tabled in Committee in the other place. The explanatory statement accompanying it explained that the intention, which was also made clear by the noble Lord, is to ensure a local voice in judging local circumstances and the impact of planning decisions. This intention is admirable, and it is absolutely the Government’s aim that the planning system remains centred on community involvement.
Subsection (1) is about ensuring that the well-established policy tests for conditions are adhered to. The proposed power for the Secretary of State to prescribe what kind of conditions may or may not be imposed, and in what circumstances, may only be exercised as provided by subsection (2) where such provision is appropriate for the purposes of ensuring any conditions imposed meet the policy tests in the National Planning Policy Framework. Those tests are reflected in the wording of subsections 2(a) to (d) of new Section 100ZA, which means that the Secretary of State can only use this proposed regulation-making power to ensure that any condition imposed on a grant of planning permission seeks to make the development acceptable in planning terms—in other words, that it is consistent with the National Planning Policy Framework —is relevant to the development and to planning considerations generally; is sufficiently precise to make it capable of being complied with and enforced; and is reasonable in all other respects. In other words, the Secretary of State may make provision in regulations only if such provisions are in pursuit of those policy tests.
For example, as set out in the Government’s consultation on these measures, we are considering prohibiting conditions that planning guidance already advises local planning authorities should not be imposed. These include conditions which unreasonably impact on the deliverability of a development, such as disproportionate financial burdens; which require the development to be carried out in its entirety; and which reserve outline application details. The Government have no intention of using this power to prohibit the use of any reasonable and necessary conditions that a local authority might seek to impose to achieve sustainable development in accordance with the National Planning Policy Framework, including conditions relating to important matters such as archaeology and the natural environment. The Government believe it would be detrimental to the planning process for regulations made under new Section 100ZA(1) to provide for local authorities to make exceptions to the prohibition of the use of certain conditions. To do so would create uncertainty for applicants and additional bureaucracy.
In fact, during our consultation on this measure, local authorities agreed overwhelmingly that conditions should be imposed only if they passed each of the national policy tests. As an assurance for local authorities and other interested parties, subsection (3) of new Section 100ZA includes a requirement to carry out a public consultation before making regulations under subsection (1). It is fairly clear what a public consultation is, and if a national condition is being talked of you would expect a condition on a national basis. If it is more localised—one cannot generalise: cases may differ; they will not all be the same—it will be dealt with according to the law regarding public consultations. I may write to noble Lords to reassure them on how that issue will be addressed, but the Bill makes it clear that, in talking of a public consultation, there is no intention to make this exclusive, and the local authorities will certainly be involved. That will afford the opportunity for local views to be put forward as part of the process of determining how the power will be exercised.
Lord Kennedy of Southwark
Perhaps the Minister is going to deal with this issue later, but nobody here, including me, wants to impose a single unnecessary condition on any planning application. I would not do that, and nor would other noble Lords present. However, the Minister seems to be describing quite a bureaucratic process for the local planning authority, and I wonder whether he is creating more of a problem than the one he seeks to solve. What we have yet to hear from him is the list of all these councils and planning committees throughout the country that are creating all these conditions. I do not know where they are, and if this measure is so needed, I hope he will give us an extensive list of all the offenders and what they are doing. We have yet to hear that from the Minister or any of his colleagues.
Lord Bourne of Aberystwyth
My Lords, I have covered only one amendment so far. I appreciate that the noble Lord is making a central point and I will seek to respond to it, and if there are other points that he wants to bring up towards the end of our consideration, I will be happy to deal with them.
On Amendment 31, I recognise that there are concerns around the impact on sustainable development, which is evidenced by the fact that this amendment was also put forward in Committee in the other place. However, I need to be explicitly clear that the clause is not aimed at conditions that are necessary to achieve sustainable development. I reassure the noble Lord that appropriate protections for important matters such as heritage, the natural environment and measures to mitigate the risk of flooding will be maintained. If the planning authority in question is unable to come to an agreement with the developer it is obviously the case, just as it is now, that planning permission will not be granted. What we are seeking to do is bear down on those conditions that we think are not appropriate and do not need protection.
It may help noble Lords if I give some background to the same issue when it was raised in Committee in the other place by Roberta Blackman-Woods MP, the honourable Member for the City of Durham, who was concerned about a situation where a condition prohibited by the Secretary of State makes the development acceptable in planning terms but makes it unacceptable in social, economic or environmental terms. The purpose of the planning system as set out in the National Planning Policy Framework is to contribute to the achievement of sustainable development. Sustainable development is recognised as being comprised of three distinct dimensions: economic, social and environmental. Each of these aspects is capable of being material in a planning decision. This amendment would remove a key element of new Section 100ZA(2) which ensures that the Secretary of State can make regulations only under subsection (1) in order to ensure that any conditions imposed are necessary to make development acceptable in planning terms. Subsection (2) is important as it constrains the power in subsection (1) so that it can be used only to ensure that any conditions imposed meet the well-established policy tests for conditions in the National Planning Policy Framework. To recap, paragraph 206 of the framework states:
“Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects”.
This, as well as subsections (2)(b) to (d) are key safeguards to ensuring compliance with the policy tests, and I therefore believe that the amendment could run contrary to the noble Lord’s intention.
In addition, if by removing subsection (2)(a) noble Lords are seeking to ensure that conditions cannot be overlooked because they are unacceptable for other reasons, the existing drafting of subsection (2)(d) already adequately provides for this in its requirement for conditions to be reasonable in all other respects. Finally, as noble Lords are aware, before making regulations under subsection (1), as I have said, we are required to carry out a public consultation as set out in subsection (3). I appreciate the point made by my noble friend Lord True and others that perhaps it would be of assistance if I set out in a letter following today’s Committee session exactly how we expect the public consultation to play out, but it will give anyone with an interest an opportunity to be heard and for their views to be considered.
Lord Stunell (LD)
I wonder if either in that letter or perhaps in another one the Minister could set out to what extent the provisions of Clause 12 are or are not simply putting the National Planning Policy Framework on a statutory footing. Could he also set out whether to any extent it either goes beyond the framework or reduces from it?
Lord Bourne of Aberystwyth
I thank the noble Lord, Lord Stunell, for that intervention. Obviously the National Planning Policy Framework stands independently from the Bill and I do not believe that any cross-reference is made in the legislation to the framework, but of course all planning decisions have to be made in accordance with it. I will deal with the point in the letter I will send round, but I think that all of the points which have been raised are covered in the National Planning Policy Framework as far as the Government are concerned and as far as the legislation allows.
Baroness Parminter
I am sorry to question the Minister, but can he confirm that in that consultation only 44% supported going ahead with the proposals? If so, that is a clear minority.
Lord Bourne of Aberystwyth
From memory, I think that the noble Baroness is correct, although that is a majority of those who have a view—there were quite a few who ticked “don’t know”. As I have indicated, it was a majority—admittedly a bare majority—of those who gave a view: more than half offered either complete support or supported the principle. However, I will make sure that a link to that document is available for noble Lords.
I assure noble Lords that I recognise the intention of Amendment 37. We of course have to make sure that where agreements cannot be reached, a sensible solution can be found. However, there are a number of reasons why a dedicated mediation system, as proposed by the noble Lord, Lord Kennedy, is not necessary and, indeed, may be counterproductive. As I have made clear, Clause 12 builds on best practice as set out in our planning practice guidance, which states that applicants and local authorities should engage at the earliest possible stage to come to an agreement on the conditions to be applied on a grant of planning permission. I am sure all noble Lords recognise and appreciate the importance of early and sustained engagement to help facilitate a constructive dialogue on the use of conditions. Let me hasten to underline that that is, I think, what happens in the vast majority of cases. The measures here will help to ensure that this takes place.
Existing routes are available to both local authorities and applicants in the unlikely event that there is disagreement on the conditions proposed. If a developer refuses to agree with a particular condition and the local authority deems it necessary, having considered it against the criteria set out in the National Planning Policy Framework, the authority can, and indeed should, refuse to grant planning permission. Nothing could be clearer, and that is the position the Government wish to stress. That is the intention of the legislation going forward; it is not to alter the basic provision that decisions are reached locally. Provided that they are in conformity with the National Planning Policy Framework, it is appropriate that, if the local authority cannot agree with the developer and there are relevant considerations in the framework, it should turn down the application.
At present, applicants would still have the ability to appeal to the Secretary of State against a decision to grant planning permission which is subject to conditions that they disagree with. Further to this, we consulted on our proposal to specify a default period after which the agreement of the applicant would be deemed to be given. Following the response to this consultation, we are of the view that it would be appropriate to introduce a 10-working-day default period. This could also act as a further incentive for parties to engage earlier in the process and discuss conditions that may be imposed on a grant of planning permission. We must acknowledge that adding a further formal step in the process by way of mediation could cause delays—here I find myself in agreement with my noble friend Lord True. In addition, it could actually discourage effective discussions between applicants and local authorities, who may simply wait, knowing that there is the safety net—as they may see it—of the mediation route as an alternative to meaningful engagement at an earlier stage. I hope noble Lords agree that encouraging local authorities and developers to work together to overcome any barriers to delivering the homes that the country needs is the most important step.
Lord True
My Lords, I will briefly intervene—it will be brief because I am enormously grateful for the very full answer given by my noble friend. I am grateful for what he said about clarifying “public consultation” and I agree with a number of things he said.
This point was made by others on the first day in Committee, and I will not go over it again, but this is a Neighbourhood Planning Bill. It is about getting things built, but built with consent, which is the trick one has to take. My concern is if a developer says, “I am not agreeing to any conditions of that sort—you can us refuse permission and we will see you in Bristol”. That is not empowering local people in any way. As my noble friend Lady Hodgson said, the risk is that that will happen, because if the developer decides that it does not want to agree, it is almost fast-tracked to the inspector whatever the local authority does, and that is not necessarily building consent into the system.
Perhaps the Government can wrestle with this point over the next few weeks. There really does not have to be any form of incentive in the law for responsible developers not to co-operate. For example, many local authorities have to deal with developers which have not discharged previous planning conditions—they have just ignored them and nothing is done. Someone comes along and says, “I am going to build here”. You see these people and say, “You have not discharged your previous conditions, so let us write something in here to make sure that you are okay this time”. They then say, “We are not agreeing, we are not signing on there”, so it goes through, but does the inspector always take account? I beg my noble friend, as he considers these things further, not to rig the system too far.
The second cautionary thing I would say, having listened very carefully to what my noble friend said about the phrase “acceptable in planning terms”—which does trouble me—is that I understand from my noble friend that the Government cannot rock along and say, “We’ll have a 24-hour casino on that site, thank you very much”, and that it is about restricting the proposed ambit of the planning. This seems eminently justiciable because it does not refer to the national framework at all, as my noble friend pointed out. So if a little local campaign group is armed with a neighbourhood plan or the local development plan, and the Government come in and say, “We are putting forward this regulation to make it acceptable in planning terms and, by the way, by that we mean the NPPF”, the Little Ditchcombe Action Group might say, “It is not acceptable in planning terms, or in accordance with what we have in the neighbourhood plan that we have agreed, or what has been put in the local development plan”, and you could find yourself in the courts—I do not mean my noble friend in particular.
We need to be very careful about how this phrase is defined—many a lawyer and many a judge would have a high old time and earn a few bob in deciding what that phrase means. It is only the second cautionary thing I would say and I very much welcome the spirit and terms of the clause. I accept the way in which my noble friend said that the Government were coming at it, but they need to be careful. There should not be too many more eggs in the developer’s basket and there should be as much definition as possible—please—before Report. With that, I will stop detaining the Committee.
Lord Kennedy of Southwark
My Lords, I agree with almost everything the noble Lord, Lord True, has just said. I thank the Minister for his very full response, which is much appreciated. I agree with him—I do not want any conditions imposed, including those he termed “necessary”, “relevant”, “enforceable”, or “reasonable”. I think everybody in the Committee will be in agreement with that—there is no problem there whatever. He also said that these pre-commencement conditions are not necessary. That is good to hear, but I worry that at the end of the day this will all be either so vague that it will not make any difference or so detailed that it will threaten sustainable development. I am not clear about what I have heard from the Minister. I hope he will respond to us in his letter about where we are going because I certainly want to see development take place that is sustainable, that we learn from the lessons of the past and that we get things built properly.
I may have misheard him, but will these discussions between the planning authority and a developer or an applicant take 10 days—someone else may have said that—and if not, how long should that go on for? He is determined but, as the noble Lord, Lord True, said, the risk is that nothing is agreed and that everything goes straight off to the appeals process. That is not delivering development by consent—certainly not sustainable development and not development that is in accordance with the local neighbourhood plan, or the local development plan. I live in London, as the noble Lord, Lord True, does. Certainly, in my own ward we are developing a neighbourhood plan and we are putting hours and hours of work into that. It seems daft that if we agree something, we could then find it all just pushed to one side. I do not know what the Minister can say now, but I certainly look forward to seeing his letter.
In a moment we will debate whether Clause 12 should stand part of the Bill. I look forward to the Minister’s letter because we have still not had the list of rogue authorities. At the moment, I am convinced that the clause is a sledgehammer to crack a nut. We have had one or two problems with plugs and things but these are not massive. If there were these problems, the noble Lord would have listed them in his contribution; maybe they will be in his letter, which I look forward to.
Lord Bourne of Aberystwyth
My Lords, I thank my noble friend Lord True for his response. Yes, it is the intention of the Government and I think we have demonstrated that we are keen on consensus in this area. We want to give power to neighbourhood planning; that is the essence of this legislation. However, we do not want to hamper developers and, therefore, housebuilding—which is central to all our aims—with unnecessary pre-commencement conditions. As I have indicated, it is absolutely right that these conditions can, and in many cases should, be agreed between an applicant and the authority. But we do not want to prescribe from the centre situations where this has to be the case. I will seek to enlarge on that in the letter I am writing. I will also, in relation to the plea from the noble Lord, Lord Kennedy, seek to give further evidence of the unreasonableness of some pre-commencement conditions, because that lies at the root of why we are seeking to bring in these powers. I ask noble Lords not to move their amendments.
Lord Kennedy of Southwark
My Lords, I oppose Clause 12 standing part of the Bill. We have just heard how controversial this clause is. It is nothing to do with neighbourhood planning; it is all about the Secretary of State and the Government taking additional powers at the centre and issuing instructions to local authorities. Nothing I heard in the previous debate changed my mind on that. What lies at the heart of all this? It is a misguided notion that planning departments and planning committees—local authorities—are holding up development, not approving applications and generally being the root of the problem. That is nonsense. As I said before, I have served on a planning committee for many years and our planning department is certainly not sitting there deliberately not approving developments. The Committee has still not been given the evidence of all these problems; we await the letter.
No noble Lord present would dispute that we have a glut of planning permissions already approved in certain parts of the country. This is certainly the case in London and the south-east. I can walk around Lewisham, where I live, and see many applications that I have approved as a member of the committee and very little has happened. Once, in my own ward, nothing happened except a sign going up saying, “Permission to build x houses”.
We do have a problem with land-banking—people holding on to land, looking at its value but not moving forward. Again, I have never known a developer come forward to any committee I have sat on, either in Lewisham or when I was a member of Southwark Council, to suggest that the conditions the council was seeking to impose were somehow going to hold up its development. It was never suggested, in either authority, that we were a hindrance to development. I just do not see that that is the problem that the Government suggest it is. I contend further that some conditions can be positive in enabling things to get under way and agreed quickly, with the local authority and the developer or builder concerned moving forward in a collaborative way.
Baroness Parminter
My Lords, I gave notice of my intention to oppose Clause 12 and I support the words of the noble Lord, Lord Kennedy. Indeed, the response from the Minister to what I thought was a reasonable proposal to bring forward an exemption for conditions that are clearly reasonable has strengthened my resolve to support any move to delete the whole clause.
The reasons for that are twofold. I do not want to repeat what I said earlier, but one thing pre-commencement conditions do is overcome the situation at the moment whereby developers are paying the cost when it comes to pre-commencement conditions but the benefits are borne by other people—normally the local community or the environment, or through biodiversity benefits. Without pre-commencement conditions, of course the developer will say, “We don’t want to bear these costs”. Pre-commencement conditions account for those benefits—those externalities—and allow local planning authorities to ensure that those benefits that accrue to others can be accounted for.
In the Minister’s letter on what the unreasonable pre-commencement conditions are, will he also include a list of what are, in his mind, reasonable conditions? It seems to me that drainage is very much a reasonable condition, given that the benefits are accrued by home owners and the community but the costs are borne by the developer.
The second reason I am now more minded to support the opposition to Clause 12 builds on the point made by the noble Lord, Lord True. The Minister says that we will want local authorities, if they have the gumption, to turn these applications down. But let us consider a housing application for, say, 20 homes in a rural area. Let us say that a fairly reasonable, as I would see it, pre-commencement condition is attached for sustainable draining solutions but the developer does not agree. Those houses have agreement in the local plan and the neighbourhood plan. Is the Minister saying that this Government want local authorities to turn down applications that have the support of the local plan and the neighbourhood plan because they cannot get agreement on a perfectly reasonable proposal —in this case for drainage—that is part of a pre-commencement condition? That is what the Minister said. This is the nuclear option. If the local authority does not get agreement from the developer for sustainable drainage systems, the only option it has is to turn it down. That will increase delays and conflict in the system, which the Bill is rightly trying to stop. If we want to build homes, it seems to me that this nuclear option will not deliver what the Government want. Therefore, I support the proposal that Clause 12 should not stand part of the Bill.
Baroness Cumberlege (Con)
My Lords, I too oppose the question that Clause 12 stand part of the Bill. I have been tedious beyond endurance and I thank the Committee for its patience. At each stage I have tried very hard to ensure that there is a separation between the powers of the Secretary of State and the responsibilities of local authorities, working with their local communities. I share the deep concern of the Delegated Powers Committee, which the noble Baroness, Lady Andrews, and the noble Lord, Lord Shipley, mentioned. It has deep reservations. We must be careful not to brush away the work of that committee and the recommendations it makes, because it is the watchdog for our legislative processes and thoughts and what we bring forward. I was interested that my noble friend the Minister said that he will take real cognisance of what it has been saying and will try to meet those concerns.
One of the things that surprises me in all of this is that the legislation that the Neighbourhood Planning Bill is based on is the Localism Act. We know that this concept has been warmly welcomed by so many who have embraced neighbourhood plans, and we know that there are many more in the pipeline. In reply to an amendment last Tuesday, the Minister told the Committee that the Secretary of State’s,
“current policies for intervention strike the right balance between the national interest and local autonomy”.—[Official Report, 31/1/17; col. GC 176.]
I have to say that in my area the experience was to the contrary. There was no planning issue of national importance and yet the Secretary of State intervened, with devastating results.
However, I am encouraged by my noble friend’s reply to the noble Baroness, Lady Andrews, when the Committee met last Thursday. He quoted his honourable friend Gavin Barwell as having said that,
“as long as authorities have policies to address their strategic housing and other priorities, we want them to have more freedom in the type of plan that is most appropriate for their area. The Government have put local and neighbourhood plans at the heart of the planning system. We put local authorities and communities at the forefront of shaping a vision for their areas and deciding how to meet their development needs. The existing regime reflects the understanding that local planning authorities, together with local communities, are best placed to set out future development for their local area”.—[Official Report, 2/2/17; col. GC 261.]
I say amen to that. That is absolutely what we want. That is what we are trying to achieve through this Bill.
I have referred almost exclusively to the Secretary of State and sometimes the ministerial team. But this is not personal and I want to get on the record how much I appreciate my noble friend Lord Bourne’s approach to the handling of the Bill. He has said he will listen and—I have to say, with great patience—he has. He has said time and again, “We will work with noble Lords in an inclusive way”, and he has and is doing so. He has asked for positive engagement. We are willing. Like Barkis, we are more than willing. I sense my noble friend is also willing to negotiate worthwhile amendments to improve the Bill. I welcome that and I look forward to his useful amendments when we come to Report.
I turn to Clause 12 specifically. As I have previously said, seeking that a whole clause should not stand part of the Bill gives noble Lords an opportunity to see the clause as a whole. My concern with the totality of this clause is that, contrary to what I am trying to achieve and what my honourable friend Gavin Barwell has said in another place, it does nothing to separate the powers of the Secretary of State from the responsibilities of the local planning authorities. My noble friend Lord True, whom I thank for his kind comments, and the noble Lord, Lord Kennedy, said that the clause does not mention neighbourhood planning at all. In addition, the whole clause is about the Secretary of State’s determination to control the work of local planners. The tenor of this clause is therefore that the Secretary of State does not trust the people. He does not trust local planners, who know the area best.
New subsection (1) gives the Secretary of State unlimited powers to waive conditions that may be very inappropriate to particular areas and populations. Again, therefore, we see the heavy hand that continues through nine new subsections, and the point of the Bill is quietly buried; it has nothing to do with neighbourhood planning. Surely the imperative is for local planning authorities to deliver the strategic policies of the Secretary of State, but apparently that is not enough.
I very much respect people who are on local authorities at the moment. When I read about them and look at what they are doing, it seems that they are working their socks off to deliver what is needed. But apparently, this is not enough, and the Secretary of State says that he must come in and tell them what to do and how. Therefore, as the Minister is fully aware, in our area there is total disillusionment with the neighbourhood planning process and fury at the intervention—the interference—in the minutiae of local planning from above.
The Minister went through all the new subsections in Clause 12, and I thank him for his full explanation. However, he did not address the issue: why is this clause necessary? Why does the Secretary of State risk antagonising local planners on a whim, removing planning conditions? Why does this require intervention by the Secretary of State? Planning pre-commencement conditions are important. They ensure the quality of development and its empathy with the local area. The noble Baroness, Lady Parminter, put it so well, saying that this is the essence of planning.
I was involved in a case years ago, in which 171 identical houses were to be built along a snake-like road. We turned that down, fought appeals and won them. We now have a development that has open spaces and all sorts of different housing: bungalows, terraced housing, and detached four-bedroom houses. It is a lovely area, and so different to what it would have been like if we had agreed to the original application. Conditions are important, because those are the ones we put in and which we eventually managed to get.
It is therefore about the quality of development. I pay tribute to the forensic way the Minister took us through the different new subsections. However, it is not good enough. We are losing the whole principle of neighbourhood planning and localism. I very much look forward to the letter that my noble friend will send, and I sense that there is already some rethinking on how this clause and the new subsections need to be amended. However, I urge him to go further. Can he be brave, and in his letter give us some hope that this clause may be deleted altogether? It is irrelevant in the Bill.
Lord Shipley
My Lords, I have come to the conclusion that Clause 12 should be deleted from the Bill. I now see no grounds for it being continued with, because the evidence has not been satisfactorily produced. It comes down to this: developers want to build and sell houses, and residents want to enjoy living in them. Sometimes those two objectives are not compatible because builders can often not do what residents expected of them.
Lord Lansley (Con)
I apologise for interrupting the noble Lord, but I am confused. I thought the Committee was talking about pre-commencement planning conditions—which are required to be discharged before the building commences—not other conditions that may have to be complied with during the course of building.
Lord Shipley
I do not know whether the noble Lord has read paragraph 26 of the report of the Delegated Powers and Regulatory Reform Committee, but it says:
“We wanted to see some specific examples of pre-commencement conditions to help us understand the effect of subsection (5)”.
This was commented on by my noble friend Lady Parminter. The DCLG gave a list, setting out,
“details that developers have had to provide to local planning authorities before building works could begin”,
the first of which is,
“full details of a play area”.
I cannot see what the problem is with a builder telling the local planning authority where the play area will be and what will be on it. Secondly, there is a complaint—
Lord Lansley
It is not my job to defend what the DCLG is saying, but if that is treated as a pre-commencement planning condition then it would be objectionable. If it was simply a condition applied to the consent, to be pursued in the course of building, it would be perfectly okay.
Lord Shipley
As the noble Lord might understand, the problem is that once building has started it is much more difficult to get agreement on some of these details. The point that the Delegated Powers and Regulatory Reform Committee has drawn to our attention is that there is nothing to prevent a builder telling us what the full details of the play area are planned to be. Indeed, if I was buying the property I might want to know that, because I might have children who would be interested in using it.
The details of all lighting on the development, including siting, design and lux levels, are seen as unnecessary pre-commencement conditions. They are not. As I mentioned, the installation of superfast broadband infrastructure is central to a housing development. There are others. I noticed,
“the full details of soft landscaping”.
Yes please: these are important. When a developer has sold all the houses on a site, it is much more difficult to get the soft landscaping put in to the standard that it should be. Also,
“precise location of bin collection points for specific plots”,
is seen to be an unnecessary pre-commencement condition. If you are living there, it may be that no one told you that you would have to take your wheelie bin 50 metres to the collection point because the bin lorry cannot turn round. Some of these are real-life examples. We need to be very careful when criticising local planning authorities for having set conditions that they think matter.
Because this is based on the complaints of housebuilders, will the Minister, when he replies in the letter we will be sent, copy in the replies to the letter the department sent to all the local authorities about these complaints to get their view on whether they felt builders’ complaints were justified? I very much hope that the department has taken on board the views not just of builders, but of the local authorities concerned.
I do not wish to detain the Committee any further, but the case for Clause 12 is no longer proven. As things stand, I do not think this can form part of the Bill any longer.
Lord Lansley
First, I apologise to the Committee: like my noble friend I was unable to attend the Committee last Thursday because I was abroad, but last Tuesday, while noble Lords were meeting here, I chaired a workshop that the Cambridgeshire Development Forum —once again, I declare my position as its chair—held with planning officers from Cambridge City and South Cambs councils. It considered a wide range of issues. I thought it important to talk to planning officers directly, not least to inform some of my contributions to our debates.
I want to speak because built into the structure of Clause 12—I address my remarks in particular to new subsection (5)—is the intention that best practice should be consolidated in a way that is likely to help us in our objective of building more houses more successfully and more speedily. What it comes down to is this: my colleagues on the forum and I spent a lot of time last year finding out some ways the planning process could be improved. Of 30 areas this was just one—it was not necessarily even the most important one, but it was important. There was a recognition among those in the development sector locally that there are issues with the way planning conditions are constructed. Conditions are imposed that are often non-compliant with the test that they should be imposed only where they are necessary and relevant to planning and to the development to be permitted, and where they are enforceable, precise and reasonable. None of us wants to end up with unnecessary appeals because of excessive or inappropriate conditions. That delays everything and increases costs for everybody.
I am prompted also by the speech of the noble Lord, Lord Shipley. He talked about conditions generally. Here we are talking specifically about pre-commencement planning conditions. There is a considerable problem, which I can see in the evidence the Government have given, in that if one has too many unnecessary pre-commencement planning conditions, the risk is that the discharge of those conditions will add to the delay. In fact, when one asks developers, as I have, it is often the issues associated with the discharge of those conditions that create more problems for development than agreement to them in the first place.
However, best practice is very clear. Joint working is what everyone should aim at, so as to reach the point where the committee making the decision can see what the agreement between the developers, the applicants and the local planning authority is likely to look like. It is a necessary part of informing members of the character of the decision they should be making. What we do not want is to allow some of the things that inhibit best practice—arising, for example, from planning officers’ inexperience. It was made clear that inexperienced planning officers simply load in conditions because they think that is the way to cover their backs. Experienced planning officers get their conditions right in the first place, so we want to encourage a process in which experienced officers negotiate and agree conditions with applicants.
We want to encourage applicants, which this legislation would do, to take the initiative and propose draft conditions. Obviously, those conditions should in large measure be standard conditions, and the structure of the legislation will encourage the use of such conditions, which should expedite matters. It will also inhibit the prospect of some of kind of last-minute ambush in the committee, because the conditions must necessarily be agreed with the applicant or the application must be referred back. If they are not agreed they can be refused, so I am not sure I understand the argument that authorities would be hesitant about refusing an application where a pre-commencement planning condition has been sought that is supported by planning policy in the NPPF. Why would they not refuse it when it is their job to pursue the appropriate response to an application that does not meet those criteria?
Baroness Parminter
The noble Lord is challenging my view. There is a real risk that a local authority will not refuse an application for 20 homes in a rural area, to use the example I quoted earlier. It will have the approval of the local plan and the neighbourhood plan, but the sustainable drainage option proposal that it can get the developer’s agreement to is for a weak tank underneath the ground, whereas what it actually wants is a sustainable solution that will enhance the housing development in the way described by the noble Baroness, Lady Cumberlege—one that is to the long-term benefit of the area and will increase biodiversity. The developer will not agree to that; it will agree only to a tank under the ground, which is perfectly reasonable under the standards we have at the moment. The local authority might want to go that step further but it cannot. Should the entire application then be turned down—as I say, it has the approval of the local plan, the neighbourhood plan and local people—because the developer will not agree to the sustainable drainage option? That will increase the delay. Local authorities will not do this because of the risks. They will say, “Okay, we will accept the weaker proposals”.
Lord Lansley
The noble Baroness has constructed her own example, and I understand the point she is making. It seems to me that this legislation does not change the situation at all. At present, if it cannot agree the condition it is looking for with the applicants, it will refuse the application and the applicants will go to appeal. I do not see why on earth the situation will be any different after this legislation is introduced. To that extent, I do not see how the legislation causes any harm. On the contrary, it promotes on the part of the applicants the need to draft planning conditions with a view to seeking agreement. Moreover, this promotes not only best practice, as I said, but an expectation on the part of both the applicants and the local planning authority—both officers and members—that the conditions should be standard and/or drafted at the point at which the decision is made.
Another issue is conditions being drafted after the committee meeting has taken place, which can cause considerable delay. What new subsection (5) is driving towards is for best practice to be encapsulated in legislation and for there to be an expectation via a written agreement that the parties to the application and the local planning authority will get together and produce an agreement to put before the committee. That is entirely laudable and I am very sorry that Members of the Committee want to throw this rather important and useful baby out with the bathwater.
Lord True
My noble friend makes a strong point but I do not agree with him, I fear. I am not going to repeat the points I made on the previous amendment. The problem with new subsection (5) is that it effectively gives a veto to the developer and therefore a power, which may or may not be a good thing.
However, my noble friend made a good point in relation to, for example, a play area. We all understand that the wonderful civil servants who work for my noble friend are trying to do a reductio ad absurdum of what might happen, so they find a council that has said, “Oh yes, the play area has to have one of those spring things instead of a see-saw”. We all know that that would be ridiculous. Maybe it has happened. But there are things on that list, as the noble Lord, Lord Shipley, said, that are actually quite important and germane. Anyone who has been on a planning committee trying to secure development in suburban or rural areas will know that lighting is one of the most fiercely contested things that local residents care about most. It is also one of the most difficult things to control.
No doubt some things on that list are silly. Perhaps my own authority is one of the bad authorities. We have occasionally have had a run-in with the people who want to put in boxes for broadband, not because we are against it but because they come and say, “We want to bang this box right in front of a grade 1 listed building”, instead of agreeing to put it a little further down the road, and they rush off and have dinner with the Chancellor and the Chancellor says, “This is ridiculous. We must have legislation”. This is the way the world works. We all know that.
Somewhere in the middle of all this is a sensible via media. Saying that you cannot develop until you put a Big Ears statue in would be completely ridiculous. But some of these other things are best dealt with at an early stage. Drainage is obviously a good one, as are sustainability and lighting. The problem with this goes back to my analogy right at the start—the old Dreadnought thing. Time and again, we poor local authorities face legislation in the dock—always local authorities, never the statutory undertakings, never the builders with the land banks. Only the local authority is to blame because the local authority is perhaps trying to reflect some of the opinions of its local people by whom it is elected. We are always put in the dock and the Dreadnought is brought out to deal with the silly local authority which says, “I must have a Big Ears statue before I give any permission to 150 homes”. Of course the Government want to deal with that.
I have an open mind on this clause, as I said, although I hear what my noble friend Lady Cumberlege has said and I do care about neighbourhood planning. Surely there must be a way through that is not just nationalising this massive power to deliver for the exceptions that are causing problems. Surely it must be possible between now and Report, with the spirit that my noble friend the Minister has displayed, to find a way to give the Government a power to deal with the authority that wants Big Ears before there can be a development, without actually taking away the ability of local authorities and neighbourhoods to protect what they think is important and have development with consent. That is all I ask for. If Clause 12 can find a way to do that, let us look at it. At the moment, it does need amendment. We will see what happens between now and Report.
Lord Beecham (Lab)
My Lords, I apologise to the Committee for being absent during the discussion of the previous group, and the very beginning of this group. I am afraid I have had to return from a funeral; otherwise, what I am about to say now I would have said in the debate on Amendment 43A, to which I added my name.
As the Committee will recall, Amendment 43A reflects the recommendation of the Delegated Powers Committee in paragraph 22 of its recently produced report, which came out on 27 January, dealing with the way the Government propose to exercise the delegated powers contained in the Bill, as set out in a document published last December under the intriguing title Further Information on How the Government Intends to Exercise the Bill’s Delegated Powers. Five areas were identified in respect of which the intention is to rely on secondary legislation. For this afternoon’s purposes, we are of course dealing essentially with the planning conditions in Clause 12. However, there are other issues: Clauses 1 to 5 are on neighbourhood planning, Clauses 6 to 11 are on local development documents, Clause 13 is on the planning register and Clauses 14 to 36 are on compulsory purchase. Therefore, although the Delegated Powers Committee drew attention to a series of matters, today we are dealing with the relevant provisions under Clause 12, which I suspect is in any event probably one of the more controversial clauses.
As we have heard, the Bill vests the Secretary of State with powers by regulation to prevent authorities imposing particular types of planning conditions in any circumstances at all or only in particular circumstances, as prescribed by the Government, and to stipulate that no conditions at all are to be imposed on particular types of grants of permission. The Government’s explanation of this was that,
“there is evidence that some local planning authorities”—
number and identity not disclosed—
“are imposing unnecessary and inappropriate planning conditions which do not meet the tests in national policy, resulting in delays to the delivery of new development”.
It is of course interesting that the Government make no mention of the hundreds of thousands of houses for which planning permission has been given but of which not a brick has been laid. They concentrate only on other potential problems.
The Government have admitted that,
“the power to prescribe the circumstances where conditions may or may not be imposed and to set out the descriptions of such conditions is wide”.
They concede that, but conclude that a delegation is appropriate. The committee expressed concern that the power would,
“allow the Secretary of State to prescribe conditions in relation to any type of planning conditions when the key aims of the Bill are to facilitate the building of new homes”,
and expressed surprise that no reason for this was given. Some of us would argue that even in respect of new homes it goes too far, but to make it more general and part of any planning permission seems beyond the scope of what the Bill is supposed to be about.
The committee stated at paragraph 16:
“We consider it inappropriate for the Government to be given a power which could be used to go well beyond the stated aims of the Bill”,
and recommended that it should apply,
“only to planning conditions for housing developments”.
It went on to criticise the proposed replacement of the existing power to provide guidance discouraging the imposition of unreasonable conditions with a power to prohibit such conditions completely, without any opportunity for the relevant planning authority to justify those conditions. Furthermore, the Government have expressed their intention to exercise the Bill’s delegated powers, including draft regulations specifying five types of condition that will be prohibited. The committee points out that there would be,
“nothing to prevent the Secretary of State from using the new power to prohibit many more conditions”,
so we are not necessarily just being confined to five areas. This would give carte blanche to introduce further prohibitions in the future.
Unsurprisingly, and in common with so much legislation, including the Housing and Planning Act, which we spent so much time on last year—the fate of which may be somewhat altered, one hopes, by the housing White Paper that is about to emerge—the committee states that,
“the negative procedure is not an adequate level of Parliamentary scrutiny for the exercise of these new powers, which could substantially restrict the ability of local planning authorities to attach conditions to the grant of any type of planning permission”.
It recommends that the affirmative procedure should apply to proposed new Section 100ZA(1).
The committee goes on to express concerns in relation to proposed new Section 100ZA(5) to (7), which deal with pre-commencement conditions: the controversial provisions which forbid planning permission being subject to such conditions without—extraordinarily —the written consent of the applicant. That is a significant change in the law and a significant move away from the local planning authority to individual developers. But no illustrations of such conditions are included in what passes for the explanatory material provided with the Bill. Although, as I understand it, the committee was provided with some at its request. It is extraordinary that in a matter as controversial as this, the explanatory material completely overlooked the issue. Under the Government’s scheme, in only one case will it be possible to impose such a condition: when the applicant fails to reply within 10 days of receiving notice of a proposed condition. The committee was concerned that there is no duty to consult before making regulations in relation to these provisions and said that,
“the Secretary of State should be required to consult not only developers but also local planning authorities and other interested parties”.
It recommends in paragraph 30 of its report that,
“the Secretary of State should be required to consult before making regulations under subsection (6)”.
If the suggested amendment is made, the Delegated Powers Committee will be content with the negative procedure. If not, it recommends the affirmative procedure.
I do not know what the Minister’s response was—I take it this issue would not have been raised in the opening debate—but I understand he has indicated that there will be a further response to the Delegated Powers Committee. However, I hope he is able to take back the view—which I think will be widely shared by this Committee, across any political divide—that it is simply not good enough to rely again on the use of a negative procedure on important matters of this kind. It has happened far too often and has been the subject of many reports, Bills and committees in your Lordships’ House, and yet the Government seem to ignore all the doubts and objections and continue to use—or propose to use—the negative procedure for dealing with highly controversial matters. The Minister is not able, alas, to change this with the stroke of his pen, but I hope he will convey what I think will be the view of many in this Committee, across the political divide, that this is not a satisfactory way to proceed, particularly as we are dealing with a significant change in the planning regime.
I hope the Minister will take back the strong views that have been expressed and that by the time we get to Report, we will see some Government amendments. Otherwise, I envisage that there will be amendments on Report from across the House seeking to test the House’s opinion on whether the Government should be allowed to get away with what many of us consider—and clearly what the Delegated Powers Committee considers—to be an abuse of process.
Baroness Pinnock (LD)
My Lords, this afternoon we have heard a lot of concerns expressed by those who serve or have served our local authorities about the practical consequences of this clause. I want to draw attention to a press release that was on the Planning Portal website, which was published on behalf of the British Property Federation jointly with the Planning Officers Society about this very issue during the passage of the Bill in the other place. I will not read the whole press release because I am sure the Minister will be able to read it for himself, but it draws out some particularly important points, which have perhaps not been reflected in the debate so far.
The press release says:
“The British Property Federation and the Planning Officers Society have advised that current legislative proposals set out in the Neighbourhood Planning Bill do not allow enough flexibility … They have warned that current legislative proposals set out in the Neighbourhood Planning Bill do not allow enough flexibility to account for local circumstances. There is a risk that the measures will delay the planning process further by pushing contentious decisions into the time-consuming negotiation of section 106 requirements”.
The British Property Federation chief executive said:
“Streamlining the use of planning conditions could herald a welcome acceleration for development, and we support government efforts to ensure that their abuse doesn’t pose an unnecessary barrier to delivering the new homes and real estate that are essential to people’s everyday lives. However, clear and appropriate conditions are an essential part of achieving good place making, and developers and planning officers are in agreement that a more flexible approach, with best practice guidance and a clear appeals route, would better serve this objective. With local authority resources already stretched, now is not the time to risk making a time-consuming process even more onerous”.
That sums up the case that Members across the Committee are making. It is being made on behalf of both the developers and the planners—we have heard from Committee Members who see it from a local authority, practical planning perspective. I hope that the Minister will closely reflect on what is being said.
Lord Cameron of Dillington (CB)
My Lords, I hesitate to intervene. I am not an expert on planning and I have never served on a local planning authority, but I have been involved from the other side, the side of the applicant—not big developments but small developments in villages and so on—so I probably see this slightly differently.
I am on my feet because I cannot quite see why all the conditions and the problems that have been mentioned by noble Lords—drainage, lighting and so on—cannot be dealt with, as the noble Lord, Lord Lansley, suggested, in the pre-decision planning conditions. In other words, in the normal planning agreement, you work with the planning authority to determine under exactly what conditions the planning permission will be granted, but surely Clause 12 is not about planning conditions; it is about a situation when all the conditions have to be implemented before the building starts. That is where the delay seems to be, and the clause seems to me quite reasonable.
I realise that the problem is probably the financing of planning departments, which do not have the resources to deal with all the issues prior to giving or not giving planning permission. To some extent, pre-commencement conditions are added after the council has decided on an application because there may not have been the resources to deal properly with the application before that point. The local planning authority also may not have the resources to check during the building of the development that all the conditions that had originally been agreed to are being met. In other words, the only way in which this can be done simply is to do it pre-commencement, so that applicants have to apply before they can start building. It is a cheap route out of a particular problem.
I am not an expert on planning, as I said, but it seems to me that there is a difference between ordinary planning conditions and pre-commencement planning conditions. As someone who has applied, I know that sometimes pre-commencement planning conditions delay the scheme and can be, as the noble Lord, Lord Lansley, described, an ambush—suddenly new conditions are added after the planning conditions and all the terms have been agreed to. However, I am not sure why all noble Lords’ concerns are so targeted against the pre-commencement conditions.
Lord Stunell
My Lords, I would like Clause 12 to be taken out of the Bill. It is unsatisfactory because it is written so broadly. Under subsections (1) and (2), the Secretary of State is in a position to do practically anything as long as it is a prescribed description, but subsection (9) says that,
“‘prescribed’ means prescribed by the Secretary of State”.
So there is no limitation on the Secretary of State’s capacity to change the current planning system, not simply the pre-commencement conditions, although that has been the immediate focus of the debate.
Although the clause is widely drawn, for the Minister it clearly has a much more limited intention. I asked a question to see whether I could establish exactly what that limited intention was. On the face of it, from what the Minister has told us this afternoon, it is intended simply to ensure that the National Planning Policy Framework is the bedrock on which all planning decisions are made; in other words, to make the NPPF in effect a statutory document. If that was his intention, it could have been expressed much more clearly by a clause that would be fundamentally different from Clause 12 and be something we could debate the pros and cons of much more satisfactorily. If, on the other hand, it is intended to inhibit or prevent local authorities imposing conditions that would otherwise be in conformity with the NPPF, he needs to go to greater length to explain why the Government believe the NPPF needs to be trimmed back a bit.
I hope the Minister can see that if the NPPF is the reference, it would be useful if it was referred to in some way in the Bill, particularly in this clause. It is beginning to look as though his letter will be as long as the National Planning Policy Framework, which, incidentally, comes in at 59 pages, two of which are a list of the 44 codes of practice that it supersedes, which themselves were about 1,000 pages long. By the time we have some regulations to say exactly what we mean as a result of Clause 12, we will begin to unravel the NPPF.
There is a fundamental disconnect between what is in the Bill and what the Minister says its intention is. When I saw the Government’s amendments, I thought we were going to see something helpful, but I noticed that five of the amendments in the previous group were to insert the word “relevant” before the phrase “planning conditions”. One wonders a little whether one needed that word added. It is good that it has been, but can we just have the answer to the philosophical intent of the clause relating to planning as a whole and to pre-commencement conditions?
At Second Reading I mentioned that the National Planning Policy Framework—which is now treated as though it had originally been carved in stone at the top of Mount Sinai—had quite a troubled birth, with version one going around the Government for preapproval before it went out to consultation from the Department for Communities and Local Government, in which I was at the time a junior Minister. It came back from the Treasury with red ink all over it. It could not go out until the amendments the Treasury required had been made. Of course, there was uproar when it went public. In particular, the National Trust organised a very vigorous campaign against it. It turned out that the National Trust is the good cause of choice for a large number of Conservative Party members, who proceeded to let their Conservative Members of Parliament know about their dissatisfaction. One way or another, the consultation resulted in a completely different document coming forward, which was very similar to the document that had been drawn up and altered by the Treasury in the first place.
I rather fear that Clause 12 is another NPPF, except that we are at only the middle point, where something quite sensible has been turned into something that is not nearly so sensible and is fundamentally threatening many of the safeguards that the final version of the NPPF established so clearly, in particular the three pillars of sustainability when there is consideration of a planning application. Originally, I thought that the department had had the same experience this time that it had with the NPPF—it had gone off to the Treasury, which had put some red ink on it. But I realise that the current Secretary of State in the Department for Communities and Local Government was in fact the Financial Secretary to the Treasury at the time when the NPPF went on its rounds, so it is possible that the red ink was added at a much earlier stage.
I suggest that the Minister has a quiet word with the Secretary of State to explain to the high proportion of Conservative activists who belong to the National Trust—because he will soon find that out again—how much regard the NPPF has now attracted on all sides as a short, intelligible and easy-to-read planning document, and consider either scrapping Clause 12 completely or introducing a provision stating that local authorities are not permitted to impose conditions which go beyond the National Planning Policy Framework. I would have thought that that would achieve the objective which I think the Minister is seeking. Finally, the Minister should also convey to the Secretary of State the fact that this is a Henry VIII clause that Charles III will be most unhappy about.
Lord Bourne of Aberystwyth
My Lords, I hope that that is many years from now. I thank all noble Lords who have participated in our debate on whether Clause 12 should stand part of the Bill and I welcome the noble Lord, Lord Beecham, to his place. I fully understand the circumstances that kept him away earlier. We did deal with Amendment 43A, but I will endeavour to cover a couple of points on it as we proceed.
As noble Lords will be aware, the need for new housing is paramount to deal with some of the issues we are looking at, although of course I accept that there are many other circumstances we also need to consider relating to the Bill. The Government want to ensure that, once planning permission has been granted, we can move on as quickly as possible with housebuilding. At present this does not always happen because too many planning authorities impose unnecessary pre-commencement planning conditions. I accept that they are the exception, but on occasion they require applicants to take action before any works can commence that unreasonably hold up the start of building supply. This is unacceptable to the Government when we want to address the urgent need to increase the supply of homes. I think that noble Lords realise that there is a balance to be struck and a nuance that needs to be dealt with.
I have sought to indicate that this provision does not give the Secretary of State the powers being suggested by some noble Lords. New Section 100ZA(1) set out in Clause 12(1) does give the Secretary of State the power to make regulations, but it has to be read in the light of subsection (2) which provides that:
“Regulations under subsection (1) may make provision only if (and in so far as) the Secretary of State is satisfied that the provision is appropriate for the purposes of ensuring that any condition imposed on a grant of planning permission for the development of land … is—
(a) necessary to make the development acceptable in planning terms;
(b) relevant to the development and to planning considerations generally;
(c) sufficiently precise to make it capable of being complied with and enforced, and
(d) reasonable in all other respects”.
Subsection (3) goes on to state:
“Before making regulations under subsection (1) the Secretary of State must carry out a public consultation”.
This is not the wholesale provision which some noble Lords have been suggesting would give unfettered power to the Secretary of State. However, I accept that there are material considerations in terms of reaching a balance. I thank in particular the noble Lord, Lord Stunell, who recognised that. I can confirm that, as I indicated in response to the previous group of amendments, all of the issues raised are in the National Planning Policy Framework and so would be appropriate for the agreement of conditions with the developer.
Neither the Government nor any planning authority is in a position to force people to come to an agreement. The idea that we can somehow force either the local authority, as was perhaps suggested by some noble Lords or the developer, who may walk away at the end of the day because he is not happy with what the planning authority is saying, is wrong because we cannot—the National Planning Policy Framework has to be complied with. These are matters of consent and no Government would be able to do that, short of taking wholesale powers away and rewriting the law of contract, which we are not proposing. Indeed, I do not think anyone is suggesting that we should.
I am happy to go away and consider some of the points that have been made, but I come back to the point that we have to deal with inappropriate pre-commencement conditions. That is not to say that they are inappropriate as conditions—they may be quite appropriate as conditions, and many of those cited are—but they are not appropriate as pre-commencement conditions, and that is the point I keep coming back to. This is the intention of the legislation, as demonstrated by the wording of the new section. I do not accept that it is obscure or meaningless. I accept that there are considerations here but, if I may, I refer to the Government’s response to the consultation on improving the use of planning conditions. Admittedly, views were split on this, but it is not the case that all local authorities thought that the idea is a dreadful one. The majority—a bare majority, I accept—thought it was a good idea, with 44% either in complete support or supportive of the principle with reservations about the process. That was a majority in favour of the sort of action we are looking at.
Lord Kennedy of Southwark
My Lords, I thank all noble Lords who have spoken in this debate, which has gone on for well over an hour. I place on record my appreciation of the Minister and the open and collaborative way he deals with noble Lords at all times in Committee, in the Chamber and in our deliberations outside. I get on very well with the noble Lord. I have great respect for him and we work very well together. Our job is to raise points and ask questions and I appreciate the way he comes back to us. However, he has not yet really provided evidence of why the clause is necessary or responded to the concerns he has heard from around the Committee. He needs to do that. His response to Amendment 34 in a previous debate highlighted why the clause is not necessary. He listed a whole load of powers that the Government already have at their disposal. I am sure he will go away and look at that.
I agree with the contribution made by the noble Baroness, Lady Cumberlege, who is a mainstay of the Committee. I agreed with the noble Lord, Lord Lansley, when he talked about unnecessary conditions. I do not want to see any unnecessary conditions being imposed or holding up development. I want to see joint working. Very few applications come before members of any planning committee. Most are done under delegated powers by officers. I do not want to do anything that would hold up development. The noble Lord, Lord True, highlighted real problems with Clause 12, as did other Members of the Committee. I hope that the Minister will come back before or on Report with some way forward.
My noble friend Lord Beecham highlighted the issue with the Delegated Powers Committee. The Minister has said he will address his concerns before Report. The noble Baroness, Lady Pinnock, was right when she talked about good place-making and the call for developers and local authorities to achieve it. We have all learned the lesson from the past that there is no point in not doing that. The noble Lord, Lord Cameron of Dillington, asked whether it was necessary that these were pre-commencement conditions. Once again, we do not want anything to hold up development. The noble Lord, Lord Stunell, may have given the Minister an indication of a way forward in dealing with the clause.
The noble Lord, Lord Bourne, said that there was nothing in the clause to give the Secretary of State any powers that noble Lords have suggested. I respect the noble Lord and the point he is making, but he has to look carefully at the clause and find an alternative way of saying what the Government are trying to achieve. There is genuine concern that it is overbearing and goes too far—that localism is being pushed out of the way and that a lot of people are not going to be listened to. I accept that that is not the intention and I do not doubt for a minute that the Minister will look very carefully at the concerns. My particular concern is that, however well-intentioned, this clause risks local authorities having less influence and less ability to build what they want locally. It risks poorer-quality development and housing and buildings that are not sustainable. I do not think anyone in this Committee wants that. I hope that the Minister will reflect, as he said he would, and come back to us before Report in one of his series of letters. I withdraw my opposition to Clause 12 standing part of the Bill.
Lord Kennedy of Southwark
“Local authorities and development management services
(1) A local planning authority may set a charging regime in relation to its development management services.(2) In setting the amount of a charge under subsection (1), a local planning authority must secure that, taking one financial year with another, its income from charges does not exceed the cost to the authority of delivering the development management services for which the charges are imposed.”
Lord Kennedy of Southwark
My Lords, Amendment 45, which is in my name and that of the noble Lords, Lord Scriven and Lord Shipley, and the noble Baroness, Lady Cumberlege, seeks to add a new clause to the Bill. The purpose of the new clause is to make provision for local planning authorities to recover the costs they incur in delivering their development services. This is needed by local government, which very much supports the proposal, and the amendment draws all-party support. Local government already subsidises this process by well over £100 million per annum, which is not right at any time, but particularly at this time of reduced budgets and pressure on local services. The fact that the Government are allowing councils to increase their council tax by up to 5%, particularly to deal with the issue of social care, shows how unsustainable the present situation is.
Amendment 57 in my name and that of my noble friend Lord Beecham, seeks to ensure that the costs of the new planning duties are calculated and adequately funded. In opening this debate I will leave my remarks there; there are other amendments in this group, which I am sure will be spoken to, and I may also have a few questions for the Minister when I respond. I beg to move.
Lord True
My Lords, before other supporters of the amendment speak, I will briefly signal my view that this matter needs to be addressed. I spoke about it at some length on the previous legislation, and supported the relevant amendments.
As an example, it costs my authority over £1 million a year on a budget of about £150 million, which is a significant amount of money, effectively to subsidise aspirations to development. People want to appropriate an advantage—which is perfectly reasonable in a free society—but impose costs, obligations and sometimes potentially loss on their neighbours. It seems entirely reasonable that this service, which is a good public service and done well, should be paid for by those who by definition can afford it. If you are whacking in a development, whether it is an extension or a major development, you can certainly afford to cover the cost. I ask for no more than the covering of the cost of providing that service. I so much agree with what my noble friend Lord Lansley said earlier. We want good planning officers to enable this thing to happen. Unless we have proper resourcing, it is simply not possible to attract and keep good planning officers.
What is happening here, with all the other pressures on local authorities, is that a sector—those who wish to assert property rights and seek pecuniary or personal advantage by so doing—are being subsidised at the expense of money that is squeezed away from other sectors, whether it is the provision of education, social services, or whatever. I cannot believe that this Government—a Conservative Government—would wish in the longer term to subsidise this small part of the profit-making sector at the expense of broader public social services. Although it is above my pay grade—and although I hope that my noble friend Lord Bourne is immensely influential in the Government, it is probably above his pay grade too—I hope that at some time the cry that this is entirely unreasonable will be heard.
I also have great sympathy with Amendment 57 in this group. Where new burdens are added, please can the costs be considered or covered? Clause 13—to which no amendment is tabled; there would have been one had I been here last week—adds a burden. We had burdens on the housing and planning legislation last year, such as compiling new information and making returns. This means officers being employed—young men and women coming into offices up and down the country, doing time and sending returns to the Government. That is a cost on public funds. I would rather that no additional burdens on local authorities came out of government regulation, but if there are, please can we consider support, particularly in this highly pressed planning sector?
I therefore have sympathy for all the amendments in this group, and I am sure that there will be much give and take about what wording is correct and how it might be done, by whom or when. I beg the Government to allow this service for those who seek to make profit and personal gain and improvement—to which I have no objection in principle at all—to be charged at cost.
Baroness Gardner of Parkes (Con)
My Lords, although my Amendment 48 is in this group, it takes rather the opposite view—or perhaps comes at it from a different angle—than the rest of the amendments in the group. As I see it, the other three amendments in this group all aim to recoup the costs, but not a penny more. That sounds like an admirable situation, but my amendment is about something quite different. We have heard in the Housing and Planning Bill that there are many developers wanting to do some major work who would be prepared and willing to pay for additional services at an extra speed to progress things. I understand from a number of local authorities that this would be welcomed. They could not afford to suddenly be burdened with huge, extra costs because someone was going to do a big development, but they would be quite willing to provide additional expertise if an additional fee could be charged.
When I spoke to the clerk who grouped these amendments, I asked whether it was appropriate for these amendments, which we are linking together, to be the two sides of the same coin. She said that it was appropriate and that, in fact, it might be an advantage for these two points to be considered together. I do not have strong views on this, but I do know it was aired very definitely in the debate on the Housing and Planning Bill last year, and I thought the case was reasonably well made. It seems to me that if it was possible, it would still be up to the local authority to decide whether or not to use that technique. I certainly think it is worth considering.
Lord Scriven (LD)
My Lords, I wish to speak to Amendment 45, to which I have added my name. As it is the first time I have spoken, I would also like to draw the Committee’s attention to my details in the register, particularly as a member of Sheffield City Council.
I have seen the effect of not having adequately funded planning departments and development services. At the moment, most authorities have to subsidise up to 30% and in so doing—particularly in the light of the financial position that local authorities find themselves in—many planning departments are under great stress and many planning officers have far more cases in their case load, which can slow down the planning process and, at times, lead to not the best decisions. That is not because the officers are bad or not looking at detail, but because they are so widely spread that they do not have the time to deal with each particular planning application.
This is not just about local government holding out the begging bowl and asking for these fees. Even the builders and the developers are asking that such money as is suggested in these amendments is allowed to be charged by local authorities. The British Property Federation survey of October 2015 found that two-thirds of private sector respondents would be willing to pay an increased fee which would help keep an effective service. It is not just local authorities but builders and developers who have said that.
As has already been said by the noble Lord, Lord Kennedy of Southwark, in 2015-16, about £195 million has not been recuperated, which is a huge amount for local authorities and planning services. I hope therefore that the Minister will look at this. I think it will help, not just to speed up the planning service but to lead to better and more timely decisions.
Lord Tope (LD)
My Lords, I want to say a few words in support of Amendment 47 tabled in my name. Our debate is either a little too late or a little premature, because we have reason to believe that there is going to be something on this subject in the long-awaited and I believe now imminent White Paper. It may well be that before long we will know what it is, and we will probably then have a more useful debate on the Government’s intentions or, for that matter, their lack of intentions.
The points have been made and all these amendments seek the same thing by more or less similar means. The noble Lord, Lord True, put it very well when he said that there is no reason why local authorities at any time, least of all in the current straitened circumstances, should be subsidising the development industry in the way they do. None of these amendments suggests that local authorities should make a profit out of planning and development control. What one is aiming for, as far as possible over time, is a break-even position.
I discussed this with my local planning authority, of which I am no longer a member, and found that the planning officers are longing for the return of the planning delivery grant, which if I remember rightly lasted from 2007 to 2010. There was actually a lot to be said for it, because the funding it provided for local authorities was based on performance and incentives. What one should perhaps be looking for here is not simply a grant or funding for local authorities, but for a way that is tied to incentives. All of us want to see the housing target delivered, but we know that unless we do something quite serious to increase the resourcing of planning departments and to stem the flow of planning officers from the public to the private sector, where frankly they are a lot better rewarded, we are not going to deliver on the housing targets or, to go back to our earlier debate, on neighbourhood planning, particularly in urban areas, and I speak with knowledge of London.
Incidentally, I was not too surprised to learn that 20% of all planning applications are dealt with by London boroughs, all of which are severely overstretched because they are underfunded—budget restraints affect everybody—the cost of living is so much higher, and the opportunities for qualified planners are greater in the private sector than they are in the public sector. It is reaching crisis point, and if we are to solve the housing problem, this is part of what needs to be done. That is what all these amendments seek to achieve, and we look forward to hearing from the Minister a preview of what is to be in the long-awaited White Paper.
Lord Bourne of Aberystwyth
My Lords, I thank all noble Lords who have participated in the debate, and I appreciate the build-up of the White Paper by the noble Lord, Lord Tope. I will have to be careful about what I say because as he has observed very cogently, this is perhaps premature to the housing White Paper which is expected shortly.
Lord Bourne of Aberystwyth
Yes, it is imminent. Before I respond to the specific amendments in the group, I want first to echo what has been said. The Government recognise the impressive performance of local planning authorities up and down the country. We have certainly asked much of them in terms of getting Britain building, delivering new homes and providing the employment that will drive our economy forward. There is no doubt that we will want still more from local authorities, and that is why this issue is going to be addressed in the White Paper. I think we all agree that this is a matter of great importance and I am pleased that the White Paper will set out how it can best be addressed. I hope that noble Lords will participate in the discussion on it.
I thank the noble Lord, Lord Kennedy, for his introduction, and my noble friend Lord True for talking about the current position, which I understand. Let me turn to my noble friend Lady Gardner’s amendment. As she indicated, it is perhaps slightly different from the other amendments in the group. It seeks to enable local authorities to charge fees that exceed cost recovery in respect of their planning functions. It is an interesting proposal but not one I can imagine would be immediately attractive to the applicant. We are certainly clear that the principles on handling public funds mean that when we set fees, such as those for planning applications, they should be set at cost recovery, and that is what we aim to do. Under the Local Government Act 2003, local authorities have the power to charge for discretionary services up to the level of cost recovery at present. I know many local authorities have chosen to use this power to charge, for example, for giving pre-application advice on planning applications. I think that that deals with those situations.
I turn now to the points raised by noble Lords who spoke to other amendments in the group. The points were essentially the same, but let me say something specific about the new burdens issue, which is slightly different and was picked up in Amendment 57 in the names of the noble Lords, Lord Kennedy of Southwark and Lord Beecham. It seeks a requirement to consult local planning authorities on the burdens imposed by new statutory duties before commencing those measures. This raises an important principle and one I am happy to acknowledge. I recognise it is a priority to ensure that planning departments have resources to provide the service that applicants and communities deserve. As noble Lords will probably be aware, we have a long-standing mechanism in place through the new burdens procedure, which has crossed successive Governments, to consider and make provision for funding to local authorities for any additional work arising from new statutory duties. The approach to new burdens provides that when the Government introduce new responsibilities and statutory duties on local authorities, these must be properly assessed and fully funded.
As a matter of routine we discuss new policies with the Local Government Association and value the insight that it brings to the table. All the measures in the Bill have been considered against this doctrine and we do not believe that the burdens in the Bill, if there are any, are expected to have a significant impact on local authority resources. We are committed to working with local authorities to find ways of securing the finance, people and skills they need to maintain strong planning departments. As I said, this has to be seen in the context of the imminent housing White Paper. I hope noble Lords will recognise that these amendments seek to place in the Bill powers and mechanisms that the Government already have and that these matters will, as I said, be reflected in the imminent housing White Paper. On that basis, I hope that the noble Lord will agree to withdraw the amendment.
Lord Kennedy of Southwark
My Lords, I thank all noble Lords who have spoken in this debate. I very much agree with the comments of the noble Lord, Lord True, that these issues need to be addressed. There is cross-party agreement at local government level that it is important we do that. I hope that the noble Lord, Lord Bourne, both here and outside the Committee, hears that. If costs are not recoverable and the planning officers cannot do their job, then of course all that we are debating here—the desire to move things on as quickly and efficiently as possible—risks coming to nothing or very little. The noble Lord, Lord Scriven, also highlighted the need for these costs to be covered and the issues for local government to be addressed.
The noble Lord, Lord Tope, spoke about the need to keep planning officers, and I very much agree with that. There are many noble Lords in Committee today who are members of local authorities, some in and some outside London. It is the same for planning authorities. I bet the Minister could visit any authority and he would hear the same thing, no matter which party controls or does not control it. There is real pressure on the retention of planning officers and around recovering the costs involved. It is a huge problem. I hope the noble Lord hears what we are saying and will reflect on it. I hope that he can come back to us with something, perhaps on Report.
As always, the noble Baroness, Lady Gardner of Parkes, has highlighted some issues; she understands these matters very well and picks up on them incisively. I hope we can come on to them at some point, but my first concern is getting these basic costs covered. Perhaps we can have discussions in future about whether people want to pay extra to get things done more speedily, but for now the priority is getting these costs covered and getting planning departments to function properly. Having said that, at this stage I am happy to beg leave to withdraw the amendment.
Baroness Parminter
“Planning: duty to have regard to the protection of ancient woodland and veteran and aged trees
In section 197 of the Town and Country Planning Act 1990 (planning permission to include appropriate provision for preservation and planting of trees), after paragraph (b) insert—“(c) to refuse permission for any development which may result in the loss or deterioration of ancient woodland, and the loss of aged or veteran trees found outside ancient woodland, unless the need for, and benefits of, the development in that location are wholly exceptional;(d) to refuse permission for a development in respect of which there is insufficient provision made for the preservation of woodland and planting of trees; and(e) to impose any such conditions and make any such orders as are necessary to protect woodland and trees.(2) The local planning authority must—(a) ensure that all planning applications are compatible with the protection and enhancement of the environment; and(b) ensure that the protection and enhancement of the environment is identified as a strategic priority in the authority’s area under section 19 or 35 of the Planning and Compulsory Purchase Act 2004.(3) In this section—(a) “ancient woodland” means an area that has been continuously wooded since the year 1600; (b) “veteran and aged trees” means trees which because of their age, size or condition are of exceptional value culturally, in the landscape or to wildlife.””
Baroness Parminter
My Lords, I am moving this amendment because of the unavoidable absence abroad of the noble Baroness, Lady Young of Old Scone. The amendment is in my name and those of the noble Baroness and the noble Lord, Lord Judd.
The Bill offers an important opportunity to amend the way the planning system deals with ancient woodland and reduce the controversy created by planning proposals involving ancient woodland, which is often much loved in its locality, thereby reducing the delay that such controversy can cause. Ancient woodlands are important but their importance is still not well understood. They are woods that have remained under continuous woodland cover for at least 400 years, and in some cases for centuries, or even tens of centuries, longer. They are a complex network of species, soil, history and culture and each of them is unique, distinctive and irreplaceable. Once ancient woodland is destroyed or damaged, it cannot simply be planted again; this complex amalgam of ecosystem, culture and history is lost for ever.
However, ancient woodland has a lot less protection under planning policy than ancient buildings. Ancient woodland is increasingly threatened by planning decisions, particularly housing developments, where planners and developers see that the lesser level of protection given to ancient woodland by the National Planning Policy Framework compared with that given to ancient buildings is a reason not to give ancient woodland any protection at all. There are currently 600 ancient woodlands under threat from planning proposals. There is one that I am particularly familiar with in my locality, the proposed development of the Dunsfold Aerodrome, where the proposed access road will lead to the direct loss of ancient woodland. Yet the local plan of my local authority, Waverley, states that,
“the loss of ancient semi-natural woodland will be resisted”.
So clearly the wording in the NPPF gives developers hope that even a pretty strong local plan could be worth ignoring.
We are already at the point where so much ancient woodland has been destroyed that it covers just over 2% of Great Britain’s land surface. The amendment aims to give the same level of protection to this irreplaceable ancient woodland as is currently given to ancient buildings. Ancient woodlands, as my noble friend, Lady Young, said so memorably at Second Reading, are the cathedrals of the natural world.
We know the Secretary of State is not keen to put further protections into the Bill, and we understand that. However, we were very heartened by the words of the Minister at Second Reading that the Government might consider other routes, such as making amendments to the National Planning Policy Framework. Indeed, if the Daily Telegraph is to be believed, then imminently—perhaps even as imminently as tomorrow—we may see a White Paper making such a firm commitment, and we would be delighted to see such a commitment. In the absence of that White Paper today, though, the Bill still provides the potential to give ancient woodlands the protection that they deserve and so desperately need, and which we know local communities want to see. I beg to move.
Lord Judd
My Lords, I rise with great enthusiasm to support the noble Baroness in moving this amendment. I emphasise that I am very involved in the kindred area of national parks, and am vice-president for the Campaign for National Parks.
There is room for hope. As we wait for the White Paper, we hope it will have within it the same kind of undertakings that the Government have given on the national parks regarding their indispensability, their importance to the culture and the values of our society and the recreational and spiritual regeneration of those who are able to take part in what they provide.
I worry often about our highly quantitative society. There is a desperate need to reassert the qualitative dimensions of our society. Woodlands are rich in the heritage and history of our country. There are trees that have witnessed the whole evolution of our democracy and society over centuries. They are a real link with where we are, where we have come from and what we want to be, as our history is indispensable in understanding society and life and its challenges.
Other dimensions make the woodlands so important, particularly the ancient trees. Of course we want to build houses. Of course we want a thriving economy. But for what? Is it just to be able to say that our economy has grown and that people own houses to a greater extent than before? Or is it so that people can enjoy a richer, fuller society? Our young people need to have a sense of imagination and vision. Just think about what imaginative teachers are able to do with young children if they have ancient trees in their midst and can use the experience of the ancient trees in their whole approach to history, understanding and learning.
In my life, I have too often come across evidence of the absence of vision and space for too many of our youngsters in society, who grow up in a restricted material environment that denies them the opportunity to flourish as individuals and to become richer, fuller people. I must not yet again tell the story, which profoundly moved me at one point in my life, about a youngster—a seven or eight year-old—from an inner-city area saying that what was so exciting about being in a youth centre beside Windermere in the Lake District was that she had never seen far before in her life. What do we want our children to be? Automatons or living creatures with imagination? How will we sustain our democracy and our future unless we have people with vision and potential? Trees are crucial to this.
When I saw that my noble friend Lady Young was considering this amendment, with the able support that she has had from our Liberal friends, I felt that I must become involved, because this is an imperative. I hope that the Minister will hear the message and say that the Government will look with good will at the challenge. In a few hours, a whole story with its links and roots in history can be uprooted, thrown away and destroyed—something that has been there for hundreds of years. We must not go down in history as a society that has lost all sense of root, destiny and continuity and is just living in the instant in a material sense. I cannot think of an amendment that is more appropriate to the kind of discussions that we have been having this afternoon.
Lord Cameron of Dillington
My Lords, I would like to add my voice in support of this amendment and to repeat the point made by the noble Baroness about the comparison of ancient woodlands to, say, a grade 1 listed building. I will take an example local to me, which is Wells Cathedral in the county of Somerset. It is irreplaceable. However much money you have, you cannot replace it. If you destroy it, whatever you put in its place could never be the first English Gothic cathedral built on a Saxon minster. That is the real wonder of Wells, apart from its magnificence and splendour as a building. Similarly, we cannot replace an ancient woodland. Whatever is put in its place, it will never be a pre-industrial 500 year-old to 10,000 year-old woodland with all the naturally developed species and habitats that tell the tale of the specific centuries it has lived through. Even if a newly planted woodland were to survive for 500 years in this fast-moving world, it could never be the same as one which may never have been planted at all, but just emerged from the residue of the last Ice Age or the wastelands of a Viking, Saxon or Norman wilderness. Such woodlands are irreplaceable and this amendment needs to be supported.
The Duke of Somerset (CB)
My Lords, I understand that Amendment 46 is not central to the thrust of the Bill but it will definitely improve it, although perhaps as a bit of a side issue. The amendment seeks to do more than just preserve ancient trees, of which we have heard so much about and which are extremely important; in subsection (1)(d) it also provides for new plantings. The need for trees on development sites is extensive in order to improve the otherwise sterile environment that is often found on a new estate.
Trees improve the townscape by breaking up angular building forms. They bring colour in season, they screen unsightly views and enrich biodiversity and habitats. They benefit insects, birds and mammals, and provide a source of nectar for bees which are currently under much pressure from chemicals. They also provide berries for wildlife. Trees conserve energy by providing shelter and shade from the wind and the sun. They absorb pollution and particulates and thus improve air quality, which is an increasing urban problem leading to ill health and sometimes death. Trees can provide educational tools for schools in order to develop environmental awareness and conservation skills. The list of benefits is long and worthy—from the abstract by reducing human stress, to the practical by absorbing and mitigating the risks of flooding and erosion, as we have heard.
However, trees have to be managed and there are health and safety aspects to be addressed. For example, branches can sometimes shed without warning, but these are not too difficult to manage. If we had more trees, children might even rediscover the joys of climbing them and they might learn to respect and not to vandalise their own communities by damaging the young plants. This alone can foster strength in communities and reconnection with neighbours.
If carried, this amendment would add greatly to the Bill in an inexpensive and non-critical way. I commend it to the Committee.
Lord Framlingham (Con)
My Lords, as someone who has lived all his life with trees, I feel that this afternoon’s debate has suddenly taken off. We are talking about buildings and planning, which is interesting but some could think a tad dry from time to time, but trees come into the picture and one wonders why. However, we should be talking about trees and buildings because they should live together. Look at New Palace Yard and the catalpa trees; look at Tate Britain and the plane trees.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in this very important debate on Amendment 46. I would like to thank the noble Baroness, Lady Parminter, and the noble Lord, Lord Judd, who tabled this amendment on this important issue. I know from the considerable work of the noble Baroness, Lady Young—who unfortunately cannot be with us today—as chairman of the Woodland Trust and co-chair of Environmentalists for Europe, that she has a great passion for this subject and I was very pleased to meet with her a few weeks ago to discuss these issues.
I recognise the importance of ancient woodland and veteran and aged trees. We have had some very cogent examples. The noble Baroness, Lady Parminter, gave a powerful example close to her own home and the noble Lord, Lord Judd, who continues to have a distinguished role in national parks, rightly told us of the rich part they play in the heritage and history of our country.
The noble Lord, Lord Cameron, drew the parallel—or hopeful parallel, from his perspective—of Wells Cathedral, which is my favourite of all the English cathedrals. In my faith and integration role in the department, I have been visiting all the cathedrals of England in turn. I have so far visited 11, but Wells Cathedral is coming up shortly and I very much look forward to that. Many people have evoked that powerful, evocative and moving phrase: it is absolutely right that the ancient woodlands are the cathedrals of the natural world.
I thank the noble Duke, the Duke of Somerset, for drawing attention to the importance of the ecology of bees and wildlife, and echoing the educational aspect, as did the noble Lord, Lord Judd. There is another string to the bow of my noble friend Lord Framlingham: visiting prisons and saving trees. I thank him for that really engaging story.
There are number of protections already within national planning policy legislation and guidance. I have listened to the arguments today and on previous occasions from the noble Baroness, Lady Young, and I do recognise the importance of making sure these protections are made absolutely clear. As many noble Lords have said, the White Paper will be published shortly; I hope they will appreciate the aspects of it that indicate the way forward. I have listened carefully and can confirm that the Government do take this issue very seriously. We are talking about a massive asset to the country that we do not want to lose. With that reassurance, and in the light of the imminent publication of the White Paper, I respectfully ask the noble Baroness, Lady Parminter, and the noble Lord, Lord Judd, to withdraw their amendment.
Baroness Parminter
My Lords, in light of the Minister’s reassurance that the Government take this matter very seriously, on behalf of my colleagues, I am very happy to not press my amendment on this occasion. I thank noble colleagues across the Committee who have shown their strength of feeling on this issue; and it is good that the department is listening. I single out the noble Lord, Lord Framlingham, who in many ways represents the best of the House of Lords, in that people come in and speak about what they know. Every time he speaks on an issue, he does so with an expertise and commitment which is valued by all of us. Certainly, on behalf of my Benches—although I am sure on behalf of others as well—I thank all noble Lords who have shown commitment to this issue, but in particular I thank him. I beg leave to withdraw my amendment.
“Retrospective planning permission
(1) Where there has been a breach of planning control, as defined under section 171A of the Town and Country Planning Act 1990 (“the 1990 Act”), the person or body who has caused the breach must make a retrospective planning application for planning permission under section 73A of the 1990 Act (planning permission for development already carried out).(2) In respect of a retrospective planning application, the person or body who has caused the breach of planning control is liable for the payment of fees or charges to the local planning authority in respect of the costs incurred in carrying out the functions connected with the retrospective planning application.(3) The person or body who has caused the breach of planning control is liable for the payment of a significant additional charge, connected to the retrospective nature of the planning application, in addition to the fees and charges the person or body is liable for under subsection (2).(4) In carrying out the functions connected with a retrospective planning application, the local planning authority must consult the people residing in the local area to which the retrospective planning application relates.”
Baroness Gardner of Parkes
My Lords, I feel very strongly about the issue of people constructing buildings without permission. I have twice been affected by this personally and I think there are examples worth quoting.
One example was my home in a country village, a lovely little one in Oxfordshire with stone walls, where I lived opposite Iris Murdoch’s home. When Iris moved and sold the house, the person who bought it sold off the barn. I had a view from my house right down to the centre of the village where some person had bought the field to keep sheep there to retain the village’s history. One day, I looked out and an extra four-foot wall had suddenly gone up on top of the existing wall. Under planning law, you have no right to a view, therefore there was nothing we could do and we were just stuck with it. However, I was so disappointed that the only way you could see that lovely view was to go up to the little attic and look down from there, where it was still visible.
The other experience I had, which is a much worse example, was in London. My home was in central London and backed on to a listed square. They applied to increase their building by one floor by taking what was then a little roof and turning it into a whole floor. All the local residents went to great trouble to make sure that the angle of light was still fine for the rights to light into our house, which was just three stories high. It went up, and it was fine. The next thing that happened, about a year or two later—I lived there for 35 years—was that I suddenly saw another attic being built which was not following the agreed rights to light that all the experts had said were perfect for the situation. The wall was going straight up. I phoned Westminster Council and found that in fact I knew the chairman at the time. I explained to him how awful it was that our rights to light were being taken away. “Oh”, he said. “What a fuss you’re making. Of course it’s being built strictly in accordance with the planning permission”. I thought that was hard to believe. About 18 months later he phoned me: “I owe you an apology. Unfortunately, it was not built in accordance with the planning permission, but the people have moved in and are living in it now, and we don’t feel that it would be fair not to let them stay”.
Over the years I lived there, the whole terrace of these listed houses virtually put on another floor, which always went straight up the wall and took the light away. Just before I moved from that house, about two years ago, the nice man who lived in the last extra floor—the original one, which had the correct rights of light—said, “I’m just going to bring my house into line with everyone else’s”. It would not have made a scrap of difference to where I was living because about three or four of those represented the space that went along my back wall, and he was the only remaining one. However, I found it hard to believe that something could be done and there could be no comeback whatever. When Barbara Castle entered the House of Lords—my history is that I was a candidate against her in Blackburn in 1970—I had an amendment down in whatever Bill it was to this effect, on retrospective permission. She got up and proposed that it should be made a criminal offence. The House was not going to go that far. However, it should be prevented.
I know that there was that case of the man who built a whole house and hid it with a haystack for six years, then thought that it was outside the statute of limitations and that he had got away with it. However, the court ruled that if you had never made it visible to people, this was not right, and I believe he was obliged to take it down. I am not suggesting that we go that far. However, the nitty-gritty point in this amendment— I have been advised so by planning officers who have dealt with many of these cases—is that unless there is a punitive fee for going for retrospective permission, there is no encouragement to go for any permission ever. It will not cost you a penny more, and you will get away with a lot of things.
I understand also from discussions we have had recently that often little changes have to be made when a building is in the process of being constructed. Sometimes a piece does not quite work out because it cannot fit in or for some other reason, and people have to look at that. I am not including that in my idea of what should come under this legislation. However, if you think you can get away with doing something which structurally alters the position for neighbours and other people and which would probably not be approved if it went for planning permission—or it might have, but there was no encouragement to go for it—why would you try to do things in the right way? This is an important issue and I beg to move.
Lord Beecham
My Lords, I entirely sympathise with the objectives of the noble Baroness. However, I found the amendments as drafted not workable. Subsection (3) of the new clause proposed by Amendment 49 calls for a liability for a “significant additional charge” but it does not give any method of calculating that or saying how it might be achieved. On Report, an amendment inviting the Government to create such a structure subject to secondary legislation that in this case would probably be acceptable might be a way forward. In terms of subsection (4), I should have thought that if there is a retrospective planning application, it would have to be made public and subject to consultation in the ordinary ways. This subsection may be unnecessary. If subsection (3) were changed to convey a power to regulate for such a retrospective permission, that would be a way forward. Perhaps the Minister already has that in mind. The objective is right but we have yet to find quite the right wording.
Lord Bourne of Aberystwyth
My Lords, I thank my noble friend Lady Gardner of Parkes, who speaks with great authority on these areas and here with personal experience. I also thank the noble Lord, Lord Beecham, for his contribution. How we deal with unauthorised development is an important issue that concerns many people. The Government are clear that unauthorised development is unacceptable and unfair to the vast majority of people who abide by the rules. However, the retrospective planning application process is there primarily to give those who have made a genuine mistake the opportunity to rectify the situation. There are, of course, such people. It also gives local planning authorities the flexibility to invite a retrospective application where they consider that it is the appropriate course of action.
It is important to note that retrospective planning applications must be determined in exactly the same way as any other application, that is, in accordance with the development plan unless material considerations indicate otherwise. The noble Lord, Lord Beecham is therefore right in relation to subsection (4) of the new clause proposed by Amendment 49. That for which it provides would be the case anyway.
There is no guarantee that planning permission will be granted just because the development already exists. The noble Baroness cited the haystack example and there are many more in which houses have been built that occasionally people find quite acceptable, but which because they did not have planning permission and because of what planning policy indicated, have had to be demolished. Therefore, those who undertake unauthorised development put their development, their investment and perhaps their professional reputation at risk. The sale of properties built or adapted without the necessary permissions may also present considerable difficulties.
Local planning authorities can impose planning conditions on the retrospective grant of planning permission to mitigate the impact of the development. Where unauthorised development proves to be unacceptable, local planning authorities have at their disposal a wide range of enforcement powers with strong penalties for non-compliance. I note that where an enforcement notice is served, as does happen on occasion, and the person appeals on the ground that planning permission ought to be granted, they are deemed to have made an application for planning permission and must pay a fee. That fee is twice the fee that would have been payable in respect of a planning application to the relevant authority seeking permission for the matters stated in the enforcement notice as constituting a breach of planning control. I appreciate that that is only where an enforcement notice is served, but in that situation there is already a double charge. This recognises the additional work involved for the planning department in dealing with both an appeal and an application.
The effect of my noble friend’s amendment would be to make retrospective planning applications compulsory for all breaches of planning control under the Town and Country Planning Act 1990. This would be difficult to enforce and could lead to unnecessary delays where a local planning authority is clear that such an application would be refused and enforcement action taken. Clearly it would be not be helpful to delay effective enforcement action by local planning authorities where it is evident that the unauthorised development is totally unacceptable. That could well be the case in some situations.
My noble friend’s amendment would also introduce a penalty fee in addition to charges in respect of the costs over and above the double charge I have referred to which is incurred by the local planning authority in carrying out its functions connected with a retrospective planning application. This would unfairly penalise those who have made a genuine error and discourage the submission of such an application for proper consideration by the local planning authority. It is a matter which I know previous Governments have considered and to some extent grappled with, but in the interests of fairness have not decided to take forward. I appreciate that this is an important issue and I thank my noble friend for airing it and giving the Government some time to consider it, but for the reasons I have outlined, I would ask her respectfully to withdraw the amendment on this occasion.
Baroness Gardner of Parkes
I thank the Minister for his reply which I will read carefully. I may perhaps come back at the next stage with different wording that might resolve some of the points he has raised. Meanwhile, I beg leave to withdraw the amendment.
“Public land registerRegister of public land
(1) Every local planning authority must keep a register of all public land in its area, for the purpose of identifying land in their area which could be used for development.(2) The register must be kept in such manner as is prescribed by the Secretary of State by regulations made by statutory instrument.”
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, Amendment 49A would create a register of public land. Quite properly, local authorities are required to compile and keep an up-to-date register of brownfield land within their area. This ensures that the land is reused in an orderly manner for housing development. Most of the land is brought into use without too much difficulty, but occasionally it may be contaminated and require additional and expensive work to bring it up to a suitable state for housing. Given the extreme shortage of suitable land and the enormous pressure for housing in the country, it seems sensible to bring all the spare land in an area into use as quickly as possible. Requiring local authorities to compile and keep up-to-date registers of public land within their boundaries would mean that they would have an accurate picture of where the land is and whether it is being used productively or is just lying fallow. They can then work with the relevant agencies to bring the land into use for housing.
I shall give the example of a Royal Marines base not a million miles away from where I live but in a different local authority area. This base has been in the community for some considerable time, but recently the MoD decided to close it and move the personnel elsewhere. Here is a perfect site for housing. All the infrastructure, including water, sewerage and electricity, is in place, as well as a decent internal road system. There is unlikely to be a gas supply, given its location, but I could be wrong. No doubt some of the infrastructure would need to be updated, but the site would be much more preferable to digging up a greenfield area. That is just one example, but there will be others involving other agencies such as the NHS. Some of this publicly held land will not be as visible as a military base, but it could nevertheless be released for housing. Some of these parcels of land will be small, but could accommodate half a dozen houses, while others will be larger and suitable for 300 to 400 homes. The land supply shortage in some areas is so desperate that it really is time that all possible avenues were explored fully.
Local authorities with housing provision responsibilities are the logical and obvious partners to compile and keep up to date a brownfield register in order to be able to act quickly when redundant land becomes available. I realise that this amendment will not find favour in all quarters, but I look forward to the Minister’s response. I beg to move.
Baroness Pinnock
My Lords, the purpose of Amendment 49B in my name is to draw attention to and, if possible, seek a remedy for the significant delays and difficulties in getting some brownfield sites developed.
Brownfield or previously used land is well defined in the National Planning Policy Framework. The definition includes a wide range of previous uses. Some of these sites pose no particular problems or costs for developers. The sites I am concerned with are those that have suffered considerable contamination as a result of an earlier industrial use in a less-regulated age. Remediation of these sites can be very costly and a big disincentive to developers. There are a great number of brownfield sites. The CPRE research in 2016 estimated that these cover an area sufficient for 1.1 million homes. Those figures may be disputed but that is not my point. My point is that there are demonstrably large areas of previously used land available for development, many of them with current planning permissions, but the sites remain undeveloped.
Using brownfield land has a double benefit. It saves greenfield sites from development and uses existing derelict land in urban areas. This derelict land often attracts problems other than the visual depression it can bring to an area. I am probably one of the few people in this Room who actually lives near some derelict land. I can tell you, it is something we have been trying to resolve for years but cannot because it is heavily contaminated. When the Bill was debated in the other place, Andrew Mitchell MP raised this very issue and hoped that it could be addressed before the Bill’s passage was concluded.
The question is: how can brownfield sites be effectively prioritised? The Royal Town Planning Institute report of last year said:
“Previously-developed brownfield land in built-up areas must continue to play a vital role for a range of purposes including housing. But a ‘brownfield first’ policy will fail to deliver its full potential if there is insufficient available funding for the treatment and assembly of land. New proactive remedial programmes are needed to remove constraints on development and to make places where people want to live which are accessible by sustainable modes of transport”.
Unfortunately, the Government are currently providing disincentives for brownfield development. Not only is there a lack of support for remediation but there are incentives for developers to use greenfield sites, such as the five-year housing supply rule, which enables developers to cherry pick greenfield and green belt sites while ignoring brownfield sites.
The further consequence of the costs of land remediation is that when the land is developed, obviously the costs are greater and so developers are able to argue that any planning gain for the local community is not financially viable. Therefore, affordable housing is lost on those sorts of sites—the very sites where, often, affordable housing is needed. I ask the Minister to respond positively to this plea on behalf of areas across the country, including my own, where land values are lower than in the south-east and where, therefore, the costs of remediation can be prohibitive to development.
Baroness Cumberlege
My Lords, I have not put my name to this amendment but I strongly support what the noble Baroness, Lady Pinnock, has said. I ask my noble friend the Minister whether he can think of ways in which we could introduce for developers—which I absolutely understand see that brownfield sites are more expensive for various reasons—some sort of incentive to make sure it is worth their while to develop these sites. I say to my noble friend that this makes such sense given that we have a problem finding sites for development. These are the obvious ones to use, except for the cost. I wonder whether we could build in incentives for developers to come in and use these sites.
Lord Beecham
My Lords, we on this side support the amendment. It is particularly welcome that there is a proper reference to obtaining affirmative approval for any regulations that are required. It is important to address the issue of land that is difficult to develop. My noble friend has just reminded me of the very successful redevelopment at Greenwich, which was a pretty bleak landscape. It required significant investment but it has paid off very well. We certainly need to encourage development there. It does not necessarily have to be private building development for sale. Local authorities and social housing can also be very involved in the process. Indeed, we want to see mixed communities of that kind, but this is not inconsistent with the amendments.
We need to facilitate development here, partly, as has been said, to avoid putting undue pressure on green space—whether it is green belt or not—but also because if they are not developed these sites bring down the quality of life in the surrounding community, of whatever nature that might be. So there is a triple benefit: first, for those moving into the accommodation; secondly, for the surrounding community; and, thirdly, because you are not building on areas that ought to be left as open space for the enjoyment of the community as a whole. We are very supportive of the amendment.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in this debate on Amendments 49A and 49B, particularly the noble Baronesses, Lady Bakewell and Lady Pinnock. The amendments cover two important areas.
On the new clause inserted by Amendment 49A, I agree with the noble Baroness that there should be transparency around land assets held by public bodies. Public bodies must be accountable for the assets they hold, and where land assets are no longer required to support the functions of the body, they should be released so that they can be put to good use, including the provision of much-needed new homes. I can reassure noble Lords that the proposed new clause is not required. A great deal of work is already under way to ensure that this transparency exists, and it may help the Committee if I briefly outline the measures that are either in place or being put in place.
First, information on government land assets is already made available through the Cabinet Office electronic property information mapping service, e-PIMS—that trips off the tongue. This feeds the Government Property Finder website, where anyone can search to obtain a list of government land assets locally, regionally and nationally. Where land is made surplus for development, the e-PIMS system also makes this clear.
Secondly, for land owned by local authorities, the Local Government Transparency Code 2015 requires local authorities subject to that code to publish, on an annual basis, details of all land and building assets, including undeveloped land. In 2016 we consulted on updating the transparency code. We proposed that in addition to the existing data on land and property assets published by local authorities, they should also publish, on e-PIMS, the extent of the land in hectares for each piece of land; whether that land is surplus to requirements; whether there are current or future plans to release the land for housing development; if there are plans to release the land for housing development, what the current planning status is; if there are plans to release the land for housing development, how many homes can be accommodated, and, for properties of 10,000 square feet or larger, the floor area of that property, the number of floors and the number of car parking spaces it has. We are carefully considering the responses we received and will be responding to the consultation in due course.
Thirdly, nearly three-quarters of local authorities in England are now part of the Cabinet Office and Local Government Association’s One Public Estate programme. This is expected to grow to 95% in 2018. The One Public Estate programme brings together public bodies across a local area seeking to unlock the value in land and property assets for better local services, efficiencies and local growth. In doing so, land that is made surplus can then be released. A condition of membership of the One Public Estate programme is that local authorities and their public sector partners must upload their land asset data to the e-PIMS system. Work is already under way to bring central and local land data together in the e-PIMS system. This will make land asset data across the public sector readily available to anyone in a single place, rather than having registers held by individual authorities. I hope that this reassures noble Lords that the Government are committed to ensuring transparency in the use of land assets and appropriate release across the public sector, and that they have a clear plan to make that happen.
Amendment 49B, in relation to brownfield land, is in the name of the noble Baroness, Lady Pinnock, and was spoken to by my noble friend Lady Cumberlege and the noble Lord, Lord Beecham. He cited the example of Greenwich. A development corporation is involved across the river as well—I am sure that the London Borough of Lewisham will have something to say on that, but I will move swiftly on.
I think we all agree that previously developed land, more commonly known as brownfield land, has an important role to play in delivering much-needed new homes. The Government remain committed to ensuring that 90% of suitable brownfield sites have planning permission for housing by 2020. That is our stated policy, but I appreciate that the noble Baroness is looking for more concrete action, and I will be moving on to that.
The Government already have a strong policy framework in place to encourage the reuse of brownfield land. We are also developing further policy measures in regulations, which will help unlock housing being built on suitable brownfield sites and maximise the number of dwellings built on brownfield land. It is an appropriate mechanism, as noble Lords have mentioned, in order not to have to build on the green belt, which of course we do not want to do and is not anticipated. That is why building on brownfield land is so important.
Paragraph 111 of the National Planning Policy Framework asks local authorities to encourage the reuse of brownfield land if it is not of “high environmental value”, and planning guidance reinforces the expectation that local plan policies should reflect the desirability of reusing brownfield land. Furthermore, in December 2015 our consultation on national planning policy sought views on proposals to create a presumption that brownfield land is used unless there are clear reasons why not. This consultation also set out proposals to make more efficient use of land by encouraging higher densities around commuter hubs and to encourage more starter home-led development on brownfield land. We intend to set out our response to these proposals in the imminent housing White Paper.
Our proposed changes to planning policy sit alongside other proposals to bring brownfield land back into use. The list is not exhaustive. We intend to bring regulations into force this spring requiring local planning authorities to publish and maintain brownfield registers, which was part of the Housing and Planning Act 2016. I hasten to say that I do not have personal and direct experience of the legislation, but I believe that that happened through the Act. These regulations will also enable local authorities to grant permission in principle to suitable sites on their registers. We are also committed to widening permitted development to help give new life to thousands of underused buildings, as well as accelerating the disposal of surplus public sector brownfield land for new homes.
I fully recognise that some brownfield sites have more constraints than others, and that will probably be particularly the case where land values are not so high. Greenwich had its challenges but of course the land values were greater there. Some sites may also require additional costs to bring them back into acceptable use. A number of financial measures are in place to bring such sites back into use; for example, £0.4 million has been made available to local authorities during 2016-17 to help with the costs of dealing with urgent remediation cases and, if possible, ongoing remediation projects. We have created a £3 billion home building fund to provide loans for small and medium-sized building firms, custom builders and offsite construction. Some £2 billion of that fund will be long-term funding available to developers to deliver infrastructure to support a strong future pipeline of housing supply and will help unlock between 160,000 and 200,000 homes.
We expect at least half of this £2 billion to be used to support brownfield sites, including land remediation. I am very happy if the noble Baroness wants to engage further with officials on that particular point.
Furthermore, where brownfield sites suffer from contamination, land remediation relief, offered by Her Majesty’s Revenue & Customs for remediating contaminated land, provides relief from corporation tax, comprising a deduction of 100%, plus an additional generous deduction of 50%, for qualifying expenditure incurred by companies in cleaning up land acquired from a third party in a contaminated state. That is also significant. However, we must remember that not all brownfield land is suitable for housing development, and not all our housing needs will be met by building on brownfield land alone. As I have indicated, the Government have a clear plan and vision, but I am very happy to make officials available to explain the detail should noble Lords require more information.
To conclude, the Government are already taking action to support development on brownfield land. I assure the noble Baroness, Lady Pinnock, and other noble Lords that the Government will continue to seek prioritisation of brownfield land for development. That is central to what the Government are seeking to do in relation to housing. Without giving too much away about the housing White Paper, this aim will be reflected in that. I hope noble Lords will forgive the somewhat lengthy explanations I have given in relation to these two amendments, but they are both important. I hope that, with the assurances I have given, the noble Baroness will feel able to withdraw her amendment.
Baroness Bakewell of Hardington Mandeville
I thank the Minister for his very positive response to both the amendments. I am very pleased to hear that the Cabinet Office has a snappily named website where most public land can be accessed and in which most local authorities are participating. I shall go back and check that my local authority is participating. I can understand that some local authorities will perhaps be reluctant to upload exactly what their land holdings are; if I understood the Minister, that is a requirement of membership. However, I am pleased that there is some transparency around public land and that, wherever possible, it is brought into use for other purposes. I thank the Minister for the very detailed response on the issues around brownfield land. I found that very positive. I beg leave to withdraw the amendment.
“ In section 90(3)(effect of deemed planning permission) after “except” insert “section 100ZA and”.”
Lord Beecham
“Review of sustainable drainage
Before exercising his or her powers under section 41(1), the Secretary of State must carry out a review of the impact on communities’ resilience to flooding of planning legislation, government planning policy and local planning policies concerning sustainable drainage in relation to the development of land in England.”
Lord Beecham
My Lords, I will speak to Amendment 56. Some Members of the Committee may recall my account of the surreal experience I enjoyed some 13 or 14 years ago when I was telephoned at home on a Saturday morning by my noble friend Lord Prescott, at that point Secretary of State for the Environment, as York was being submerged by flood waters. He inquired of me as to where sandbags may be obtained for the purpose of dealing with this—surrounded as he was by the cream of the Civil Service, who apparently did not know. That is an extreme example of the then Government’s lack of foresight—I expect it has not entirely gone away—in dealing with what is a growing problem in the context of climate change, about which we have already heard a little this evening. It is imperative that there is a thorough review, not only of planning new development but, in my submission, of the condition of already developed land. Even now, for example, we are finding front gardens paved over in a way that simply contributes to the problem of excess water and, ultimately, places undue pressure on the drainage system in established areas, as well as making it more difficult to develop new homes in particular.
This is not a particularly radical amendment—far from it. It asks only for a proper review by the Secretary of State. I imagine that the Government might not be unsympathetic to that. It is not a matter, I suspect, that we will necessarily want to place in legislation. Of course, it may be one of the little revelations to emerge from the forthcoming White Paper—perhaps the Minister cannot tell me but we will find out in a day or two. If it is not, it should be. If it is not, there is even more purpose in raising the matter this evening. I suspect that the Minister will be sympathetic to this because it is a growing problem in many parts of the country. Alas, even now, insufficient money is being devoted to dealing with flood prevention generally, as well as the more detailed local applications of dealing with the issue in existing properties and developments. In the light of that and looking forward to a warm response to the Minister, I beg to move.
Baroness Parminter
I thank the noble Lord for raising this issue and support him in his call. I am sure the Minister will make reference to the flood review that is currently being undertaken by the DCLG and Defra. Of course, the noble Lord’s amendment not only looks at surface water flooding, which is what the current review is looking at, but puts it, rightly, in the context of the broader issues of retrofitting and other forms of flooding as well. I too hope the Government will be supportive.
Perhaps I might say a few words about the review that the Government are undertaking. Noble Lords will remember that in the Housing and Planning Bill the Government conceded that there would be this review of surface water flooding. I think it is a disappointment to Members that it is only a desk-based exercise, that there has not been a public call for evidence and that therefore engaged organisations have not had the opportunity to input their views. Indeed, no surveys have been undertaken of local planning authorities; it is purely private meetings with particular stakeholders, including the developers.
However, so as not to appear churlish, I reiterate my thanks to the Minister for agreeing to meet me and other representatives later this week to hear the findings of what we believe is the largest survey undertaken in the UK of SUDS. Of the more than 500 responses—including from lead flood authorities, local authorities and even representatives of central government—70% thought that the current planning policies were not sufficient to deliver sustainable drainage solutions. I hope the Government will consider those recommendations before they finalise their review.
Perhaps the Minister might not only comment on the noble Lord’s wish for a full review of the flooding situation but commit to agree to the findings, when we receive them later this spring, of the review of flooding by the Adaptation Sub-Committee of the Committee on Climate Change. I believe it intends to propose a number of recommendations around changes to planning policy, and I hope that the Government might be prepared to accept those. I am interested to hear the Minister’s views on how seriously they will be taking the committee’s recommendations.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Lord, Lord Beecham, for moving Amendment 56, and the noble Baroness, Lady Parminter, for her contribution. I am afraid I will probably have to let the noble Lord down on this occasion. I am not convinced of the need for this.
First, as has been noted, Section 171 of the Housing and Planning Act 2016 includes a requirement for the Secretary of State to,
“carry out a review of planning legislation, government planning policy and local planning policies concerning sustainable drainage in relation to the development of land in England”.
My department had already commenced work on the review prior to this section of the Housing and Planning Act coming into force by order on 1 October last year. The objective of that review is to examine the extent to which planning policy has been successful in encouraging the take-up of such drainage systems in new developments. My officials are working closely with colleagues at the Department for Environment, Food and Rural Affairs and the Environment Agency to gather evidence to inform the review. The first stage of the review—to survey local plan policies related to sustainable drainage systems—has been completed. We are now working towards the next stage of the review—to collect evidence on how sustainable drainage systems are deployed in practice.
Stakeholder involvement is a critical element throughout the review. We have been engaging with a broad range of stakeholders through two dedicated groups set up specifically to support the review. The first is a high-level project steering group comprising members of the DCLG, Defra and the Environment Agency, the Climate Change Committee, the Adaptation Sub-Committee’s secretariat, the Association of Directors of Environment, Economy, Planning and Transport, and the Local Authority SuDS Officer Organisation. A second-tier engagement group, comprising key SUDS-related stakeholders, will function largely as a sounding board of expert advice to be drawn on as the review progresses. This comprises members from organisations including the Institution of Civil Engineers; Water UK; the Wildfowl and Wetlands Trust and the Chartered Institution of Water and Environmental Management. Membership comprises representatives from local planning authorities, professional and statutory bodies, environmental non-governmental organisations, house- builders and other agencies.
We remain committed to working constructively with the Adaptation Sub-Committee of the Committee on Climate Change—an independent, statutory body established under the Climate Change Act 2008—so that the review informs their progress update on the national adaptation plan, due in the summer of 2017. Whenever I hear the mention of sandbags I always think of the organisation which the noble Baroness, Lady Worthington, led so well. She did considerable work on climate change through that particular organisation.
In addition to this review, the National Flood Resilience Review, published in September last year, assessed the resilience of key local infrastructure, such as energy, water, transport and communications, and identified ways to protect it better. The flood resilience review includes an action plan that the water, telecoms and electricity utilities will develop and implement, with long-term plans—where not in place already—for improving permanently the resilience of service provision to significant local communities from the flooding defined by the Environment Agency’s extreme flood outlines. Both of these reviews, when considered together, address the role of planning relating to sustainable drainage and the resilience of local infrastructure in response to a flood incident.
It is in that context that a requirement for a third review is unlikely to add anything new. I am happy to discuss this further with the noble Lord, but I do think it is unnecessary and I respectfully ask him to withdraw this amendment.
Lord Beecham
I will withdraw the amendment, but I would like to ask for a little clarification. Is the review concerned with new or existing development? Drainage issues are something many of us can see in our neighbourhoods. Front gardens are concreted over for car parking purposes and other things, with adverse consequences for drainage. Is that sort of issue part of the review which the Government are conducting?
Lord Bourne of Aberystwyth
My Lords, I think the noble Lord is asking about the first of the reviews—either the one on the Housing and Planning Act 2016 or the National Flood Resilience Review. In any event, I think the former of those—in connection with sustainable drainage—will certainly encompass that. I will double check that and be in touch with the noble Lord on that point. The second of the reviews is already complete. It was published in September last year, but I will ensure that he gets a link on that particular review if it is helpful.
Baroness Parminter
“Carbon compliance standard for new homes
(1) The Secretary of State must, within one year of the passing of this Act, make regulations which require a local planning authority to refuse planning permission for the building of any new home which would not achieve the carbon compliance standard.(2) For the purpose of subsection (1), “carbon compliance standard” means an improvement on the target carbon dioxide emission rate, as set out in the Building Regulations 2006, of—(a) 60% in the case of detached houses;(b) 46% in the case of attached houses; and(c) 44% in the case of flats.”
Baroness Parminter
My Lords, we clearly need new homes but we need to future-proof them. With homes accounting for nearly a quarter of our total greenhouse emissions in the UK, we need new homes to contribute cost-effectively to meeting our greenhouse gas targets, but also to lower fuel bills for home owners and avoid the costs of retrofitting. That would also enhance quality of life. All the evidence is that the frail and elderly, and indeed young children, face significant hardships and challenges from insufficiently heated homes. The Minister knows the strength of feeling on this matter from across the Chamber during the passage of the Housing and Planning Act. This is therefore a probing amendment to ask what the Government are doing on this extremely important matter in advance of the review that was alluded to at the time of the Housing and Planning Act. Given the time, I am not going to revisit the arguments that we went through on the Housing and Planning Act. However, since then there have been a number of places—Oxford, Cambridge, Wales and Scotland—where homes have been built and large developments put up showing where zero-carbon homes can be delivered at scale.
I have three questions for the Minister. First, following the Housing and Planning Act, what are the Government’s plans to meet our carbon emission reduction targets if they do not introduce zero-carbon homes? We have seen no indication in the industrial strategy or in any other government plans of how the Government intend to meet their carbon emission reduction targets if we do not deliver the savings on new buildings, which, as the Minister knows, the climate change committee says are absolutely fundamental.
Secondly, can the Minister confirm that the Government will not prevent local councils requiring higher building standards? There is some lack of clarity about whether local authorities can carry on insisting in their local plans on higher standards. Prior to the withdrawal of the zero-carbon homes standards, places such as Brighton required in their local plans higher building standards. Will the Government confirm that they will not prevent local authorities including a requirement for higher building standards?
Thirdly, and again another standing cycle, the cost optimality review of building regulations is imminent—I believe it will be completed some time in the summer. Will the Minister say a few words about that? When will it be forthcoming? In particular, will there be public engagement and a public call for evidence so that all interested parties can play their full part in making sure that we move forward?
Higher regulatory standards in this area should not be considered as burdensome red tape but as an essential requirement to reduce both energy poverty and the threat of catastrophic climate change. There should be no exemptions. The big volume housebuilders have the scale and resources to take it forward and the smaller housebuilders are fleet of foot and able to cope. Unless we do something soon on housebuilding requirements, this Government are not going to be able to live up to the commitments that they so proudly and rightly trumpeted following their achievements at Paris last year. I beg to move.
Lord Beecham
My Lords, we support the amendment of the noble Baroness. It is regrettable that having started off by beginning to tackle this issue, the coalition Government, it must be said, reduced the carbon standard requirements instead of building on what was a sensible approach. I hope that the Government—
Baroness Parminter
Just to confirm, it was the Chancellor of the Exchequer, George Osborne, who, after we had moved out of coalition with our partners, withdrew the zero-carbon home standards.
Lord Beecham
I am happy to accept that plea from the noble Baroness and put the entire blame on the Government. In all fairness, it is usually the case. Of course, George Osborne is now history and perhaps some of his policy decisions can be reviewed—I certainly hope so in this particular context. It is outrageous that we lag so far behind most European countries on environmental provision and space standards for properties. I hope that the White Paper—tomorrow or whenever it comes—is going to address those issues. If it does not then they will certainly be raised when we eventually come to discuss the White Paper. I am happy to support the amendment.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Baroness, Lady Parminter, for moving this amendment in group 24, and the noble Lord, Lord Beecham, for speaking to it.
First, I will set the context, which is partly the Paris climate change agreement. To take credit for it, it was of course concluded at a time when there was a Conservative rather than a coalition Government—although, to be fair, it was supported by all parties. It was a step forward, and we worked closely with many countries, not least in Europe. From the outset, I remind noble Lords that the standards for new homes were strengthened by 30% in the last Parliament, when there was a coalition Government, saving £200 on energy bills compared to standards before 2010, when there was a Labour Government. To meet those standards, homes will have A-rated condensing boilers, double-glazed windows with low-energy glass, and high levels of insulation and air tightness in their construction—they are very energy-efficient homes.
A very similar amendment was debated at length during the passage of last year’s Housing and Planning Act. That Act placed a duty on the Secretary of State to undertake a review—to which reference has been made—of energy performance standards for new homes under Section 2C of the Building Act 1984. We have commenced costings analysis to underpin this review, and our aim is to publish the final review in the summer. It aims to identify what improvements are cost-effective and feasible for new homes. We plan to extend it to cover non-domestic buildings and work to existing buildings, seeking further potential reductions in carbon emissions and fuel bills. The noble Baroness asked about progress in meeting our climate change targets. Obviously, domestic compliance and measures are important, but it is not limited to them; hence we have extended it to other buildings, for example. Transport also makes a significant difference to emissions, so the Inter-Ministerial Group on Transport and looking at what we can do with regard to electric cars is significant. There have been massive changes in California in particular, which the Government have taken note of and are progressing, because that will make a significant difference.
Over recent years, we have seen reduced costs of technologies and energy efficiency measures, such as solar panels, which were discussed in detail in last year’s debates. I emphasise that it is important that we consider only the very latest information and data on costs—that is crucial. The carbon compliance standards proposed in this clause are, so far as I can see, not based on the latest data—I think some of them are some six years old—although I appreciate that that can be looked at. Obviously, we are looking at all these issues in the round. To prescribe standards without up-to-date information would be difficult. I can confirm that changes to the building regulations flowing from the upcoming review will be subject to a full consultation. That will include draft technical guidance on how to meet the changes, which will cover all homes from detached houses to high-rise flats. The noble Baroness asked specifically whether local authorities are able to set higher standards than the national ones, and I can confirm that they are able to do just that.
The new clause also proposes putting in place new powers in the planning regime to set the carbon compliance standards. This is unnecessary, as there are already powers to set such standards through the building regulations. I appreciate and understand that the noble Baroness said that this is a probing amendment, but the powers are already there. Also, the technical expertise to ascertain whether a building meets a particular energy performance or carbon compliance standard already exists in building control bodies. However, this technical knowledge is unlikely to be available within a planning department. Our position is that minimum energy performance standards should be set through the building regulations, with compliance being demonstrated through building control bodies. That is what we are looking at.
I hope I have reassured noble Lords that the proposed clause is unnecessary, although I appreciate that this was a probing amendment in the understanding that the review is moving. The review will use the latest costs and evidence, and any cost-effective changes proposed will be workable for all home types, across the range. I am happy to share information on the review with noble Lords at appropriate points as we take it forward, if that is helpful. On that basis, I therefore ask the noble Baroness to withdraw the amendment.
Baroness Parminter
I thank the Minister for his responses and the clear answers to two of my questions. The public call for evidence for the review is very welcome, as is the commitment for local authorities if they wish to set higher standards. It is helpful that those answers have been set on the record in that way. On my third point, I appreciate that housing makes up only one component of the UK’s greenhouse gases, but it is still one-quarter. When we had a Department of Energy and Climate Change, it was looking at producing an updated road map that showed how much would be delivered by savings in transport and housing. That has clearly been booted into the long grass, but at some point the Government will have to come clean on the issue. With that in mind, I beg leave to withdraw the amendment.
Baroness Andrews
“Compulsory acquisition: payments from charitable trusts involved in conservation
In a case where—(a) a local planning authority has the power to compulsorily acquire a listed building or a building in a conservation area; and (b) a charitable trust whose objectives include the conservation of such property has given an obligation by deed to the local authority to pay to the local planning authority the costs of such acquisition;the planning authority must exercise its powers to compulsorily acquire the relevant building.”
Baroness Andrews
My Lords, I declare an interest as deputy chair of the National Heritage Lottery Fund and chair of the Heritage Lottery Committee for Wales. We live in a time when every national and local asset needs to work for its living. Across the United Kingdom there are abandoned, and often derelict, properties, many of high heritage value and well loved by the community, that could be providing much-needed homes and spaces for businesses and enterprise and injecting new economic activity into communities. In other words, the amendment is a step towards enhancing the means by which these liabilities can be turned into assets. I am grateful for the help I have received from the Heritage of London Trust Operations, Diana Beattie and Colin John, and Ian Morrison of the Architectural Heritage Fund. They have much fine work to their credit.
What opportunity is this amendment seeking to create? Many of the buildings I am talking about are already on the Historic England buildings “at risk” register. They range from rare surviving industrial buildings such as mills or colliery buildings to historic theatres, cinemas, schools, piers, magnificent town halls, hospitals and domestic buildings such as a concrete house in Lordship Lane. Buildings such as these have been at the heart of communities. They occupy a very important, familiar and well-loved place. When they are abandoned, the cost of saving them and putting them to use rises exponentially and they deteriorate fast. Owners cannot be traced and local authorities find it impossible to acquire them. Year after year they look worse and become more dangerous, and the community feels their loss even more acutely.
This problem has been in the “too difficult” box for too long. It is no exaggeration to say that when these buildings come back into life, they galvanise the entire area: they can act as a catalyst and a confidence builder. I think particularly of Middleport Pottery in Stoke, the last surviving example of a pottery using the transfer method. After a long struggle by the Prince’s Regeneration Trust and English Heritage to keep it alive, it is now bringing in apprentices and its order books are full.
The amendment, which to my knowledge is the first of its kind to be proposed in primary legislation, is designed to tackle this problem. It confronts the fact that both the country’s heritage and its economic performance are, as the Architectural Heritage Fund puts it,
“suffering from an embedded culture of impunity for private property owners who are not upholding their responsibilities”.
At the moment, the system colludes with both negligent property owners and risk-averse local authorities. Owners are sitting on their property waiting for land values to increase and for the degree of deterioration which, in many cases, justifies demolition. Some of these owners cannot afford to put the building right; some refuse to do anything and they disappear. There are many ways in which a recalcitrant owner can resist a CPO. Some owners fail to respond and disappear. They are particularly threatened by any attempt by a community organisation to engage with them. That is frustrating, since to win a CPO case the public body has to be able to show that it has tried and failed to resolve the future of the property by negotiation with the owner. But the owner may be in a tax haven overseas and the property in the hands of a nominee. Alternatively, the owner may launch a series of frivolous appeals or put forward new and ludicrous planning proposals. He can try to block a CPO by claiming that he is about to start work—but the work is never begun, or sometimes it is started and then the owner just walks away.
The 2015 locality investigations under the Community Assets in Difficult Ownership project illustrate how easy it is for ownership to become a block on action. Local authorities have powers to act, of course, including compulsory purchase powers, but many feel that the process is simply too complex, too expensive and too slow. The costs are high because in addition to the compensation to be paid, the CPO may also have to be fought through the courts or at a lengthy public inquiry. There is every incentive for the owner to prolong the case. The risks arise from the possibility of the case being lost, the delays and the unpredictable costs; and sometimes by the time the CPO is confirmed, the other policy objectives which drove the process may have changed.
Another issue is that community organisations lack specialist knowledge and advice, which is a particular problem when what is needed is investment to establish the viability of a project in the first place, so it is all the more to the credit of organisations like the Heritage of London Trust, because when such bodies undertake a project like saving St. George’s Garrison Church, it is very hard work and a triumph when it is achieved. We have other outstanding local authorities like Great Yarmouth, which has made tremendous progress in bringing its buildings back to life.
The new clause is very simple and I commend it to the Minister. In effect, it means that where a charitable body that could be a buildings preservation trust or any form of charitable body, such as a community interest trust with conservation objectives, has given a deed of obligation to the local planning authority to pay the costs of acquisition, which are set by the district valuer, the local authority must exercise a CPO. The deed would be in effect a form of contract, even though I understand that it can be a unilateral undertaking such as those attached to planning applications. The costs of acquisition will involve all the transaction costs, thus removing any risks associated with taking over the building itself. In some cases of extreme negligence, the costs have been assessed as nil. Clearly, no sensible charity would enter into such an obligation without having the capacity to cover the costs, and a local authority will do its due diligence as well. Once the deed of obligation is in place, the local authority is then required to exercise the compulsory purchase order that will enable the conservation charity to acquire the building, which will then be restored and brought to life. Ultimately, the decision will rest with the Secretary of State, who will decide on the basis of the risks removed and the possibilities raised.
The amendment would achieve two things. It would first break the logjam of no one wanting to undertake any initiative because of the costs of acquisition. Secondly, it would provide a greater degree of certainty for community groups to enable them to undertake creative projects for the benefit of all. The amendment is carefully crafted and has been the subject of a great deal of legal advice and consultation with conservation and heritage bodies. It is also central to the principles of this Bill, and to localism as a political construct. It would free up resources for housing and enterprise and for vital community development at the heart of communities. It would serve our heritage in the best possible way by making it part of the future, and it comes with the moral backing of all the national heritage bodies.
The housing White Paper is imminent, and I will be amazed if there is no reference in it to this issue. We know the scale of the challenges facing the country, including those of Brexit, so this is a very timely and plausible proposition. I very much hope that the Minister agrees with me, and I beg to move.
Viscount Trenchard (Con)
My Lords, although I have taken no part in the previous stages of the Bill, with the leave of Members of the Committee I feel that I should now intervene in support of this amendment which has been so sensibly and compellingly moved by the noble Baroness, Lady Andrews. Councils in their development plans published so far are still some way away from delivering the Government’s target of 1 million new homes by the end of this Parliament. That is why the green belt is now about to be sacrificed as never before to make way for new housebuilding on a large scale, even if many of the new settlements are euphemistically called “garden villages”. I greatly regret that this is happening while there remains a very significant amount of land designated as brownfield sites, wasteland and former industrial sites.
The amendment draws attention to another excellent source of buildings which can be restored and converted to provide new homes. Up and down the country, there are a great number of listed buildings and buildings within their curtilage which have fallen into a serious state of disrepair. Councils have the power to place compulsory purchase orders on such properties, but most councils never use their powers because they lack the legal expertise to act, they have better claims on their funds, and there are risks that initiating a purchase will drag on for a considerable time, diverting their human resources as well as their available funds.
The example of 549 Lordship Lane, acquired by Southwark Council and restored by Heritage of London Trust to provide five attractive and affordable homes, is typical of the many opportunities which this amendment is designed to unlock. Councils will be compelled to use their compulsory purchase powers where the costs have already been guaranteed by a committed charitable trust. They would quickly develop the necessary legal and other professional skills and be emboldened actively to approach charities seeking to commit funds to restore derelict buildings, thus removing eyesores which blight the landscape and alleviating pressure on the green belt. To place a duty on councils to exercise their powers under the circumstances covered by the amendment, it follows that there would be an increased need to assist councils by the creation of a central advisory body to help them obtain access to the relevant expertise. Perhaps the Minister might tell the Committee whether he thinks the Government could assist with this. It is to be welcomed that heritage organisations are already working together to provide an evidence base which will justify and promote interventions of the kind the amendment is designed to enable. I hope that the Minister will recognise the benefits that the amendment would provide, and I look forward to hearing his response.
Lord Beith (LD)
My Lords, I declare an interest as president of the North of England Civic Trust and of the Historic Chapels Trust. Both organisations restore historic buildings and put them to use in very much the way that the noble Baroness, Lady Andrews, described. I welcome her amendment, because it draws attention to a particular problem: the reluctance of local authorities to use their compulsory purchase powers when listed buildings are in advancing disrepair, which in the end will lead them to a state where it is claimed that they can no longer be put right.
I have experienced that in Northumberland, with a notable building called Surrey House, which was a 17th-century building rebuilt in the 18th century, in which the Earl of Surrey was alleged to have stayed on the eve of the Battle of Flodden. I have not yet seen the evidence for that claim, but it is widely made. I imagine he got a good night’s sleep, because he had a pretty good day the following day—from his point of view. There was an application to demolish the building in 1970, and the whole thing dragged on for year after year. The local authority then was a local authority of 26,000 people, and was very ill-resourced to tackle something like this. I thought the problem might be resolved when we moved to a unitary system, where we had a much larger local authority, but it still felt the same constraint. It might go to the extent of urgent works notices, it would be reluctant to go to the extent of a full repairs notice, and it would be extremely unwilling to go to the extent of compulsory purchase.
The lack of legal expertise and the fear of uncertain court costs that may result act as a very severe deterrent to local authorities to use their powers. The result is that you have a meaningless sanction, where owners know that local authorities are reluctant to take the ultimate sanction against them; they can just play the system. It is appalling that this should happen in the type of case particularly covered by the amendment, where there is a charitable organisation in position, ready even, to guarantee the costs of restoring the property. We should not allow that situation to continue.
More generally, even if the Minister is reluctant to accept the amendment in the terms in which it appears, I hope he will recognise that there is a problem here. We have left the system for dealing with neglected historic buildings without a realistic sanction. The sanction has effectively been destroyed by the reluctance of many authorities to take these difficult steps. I wish they had not been so weak in this respect, although I understand some of the reasons, particularly with very small authorities. Unless we do something about it, we will continue to waste wonderful buildings which should be retained and can be of great service to the community.
Lord Kennedy of Southwark
I support the amendment in the name of my noble friend Lady Andrews. She ably outlined why the Government should give a sympathetic response to it. I was pleased to hear the noble Viscount, Lord Trenchard, talk about 549 Lordship Lane. I know the property, referred to as the Concrete House. The council has won an award for its work there: it bought it, did a good restoration and now uses it for shared ownership. I support the amendment. I am conscious of the time and I hope that the Minister will also want to respond quickly.
Lord Young of Cookham (Con)
My Lords, at this stage of our flight, the co-pilot takes over. After a very smooth passage with my noble friend at the controls, there may well be some turbulence. I am grateful to the noble Baroness for moving this amendment. She chaired English Heritage for four years, so she has a proud record in the conservation world. I applaud the way she is carrying forward that commitment by tabling the amendment to insert a new clause. She is well qualified and well informed on this issue. As she said, listed buildings are an important part of our environment: they create a sense of identity in a locality and support local economies by attracting visitors. As my noble friend Lord Trenchard said, this offers the opportunity to provide housing in some restoration projects. I also commend the intervention from the noble Lord, Lord Beith, and the work done by him in his particular field.
We all support the objectives of the amendment, but there may be alternative routes to the common destination. The noble Baroness has been a CLG Minister herself, so she may feel some empathy for someone who, having listened to a popular and powerful case for a well-argued amendment, picks up the departmental brief which has at the top, “Resist”. I have two points of my own to make. Listening to the debate, I wondered if there had ever been a case where a charitable trust had done exactly what the noble Baroness had suggested—raised all the funds and then presented the local authority with an indemnity—and the local authority had refused to go ahead with a CPO. If there was such an example it would be relevant to the case that is being made.
My other thought was that, having sat patiently through the debate on this Bill, I have noticed a recurrent criticism that we are fettering the discretion of local authorities. We are accused of not trusting them, of passing primary legislation which makes them do things. The amendment does have the words “a planning authority must”. What is the view of the LGA, which is very well represented in the Committee? Does it welcome the discretion of its members being fettered in the way that the amendment seeks to do? Having said that, the noble Baroness was quite right to remind us that local authorities have the ability to compulsorily purchase listed buildings that are in need of repair. It is an important weapon in their armoury to protect our built heritage.
If one looks at the guidance provided by the Government, paragraph 16 of the compulsory purchase guidance notes states that it specifically provides for local authorities to consider requests from community groups—which could include heritage trusts—to use their compulsory purchase powers to acquire community assets that are in danger and, under the guidance, local authorities are required to consider such requests and to provide a formal and reasoned response.
In a sense, the onus is already on the local authorities to explain why—were they presented with the sort of offer that we have just heard—they feel they cannot accept it. It is also the case, as the noble Baroness said, that heritage trusts have access to grant funds and other sources of income to enable them to carry out the preservation of listed buildings and bring them back into use. What this amendment seeks to do is, in effect, to lock in a statutory embrace the heritage trusts on the one hand with the resources and the local authorities with the CPO powers on the other. I am slightly worried that this might undermine the collaborative approach which I think works quite well at the moment. As has already been said, the CPO power exists, but I am not convinced that the relationship between the local authority and the trust would be assisted if the local authority knew that the trust had this sanction behind it to compel it to do something.
On the point made by my noble friend Lord Trenchard, Historic England is working with local authorities and giving them advice and financial and technical support in many cases where listed buildings are falling into disrepair, enabling a satisfactory solution to be arrived at. That collaborative approach is the way forward. A good example, which if it were not 7.56 pm I would share with the Committee, is Hastings Pier which was restored in exactly the way that has been outlined.
The noble Baroness has commented that absentee owners are difficult to deal with or if the owners or reputed owners do not engage with the compulsory purchase process it can proceed without them, and the acquiring authority only has to make a reasonable attempt to find them. That attempt includes information in CPO notices simply displayed on site, as well as being sent to the last known address of the owners—then they can proceed.
So far as the trust is concerned, the cost of compulsory purchase is not always easy to assess. There could be court challenges and it could end up in the High Court. The defence of a legal challenge would fall to the trust and any failure of a trust to meet its responsibility to indemnify the local authority would put the trust’s future in jeopardy and the local authority would be liable for those costs.
In a nutshell, the Government are not convinced that the noble Baroness’s amendment to compel a local authority to proceed with a compulsory purchase would have a significant effect on the use of the CPO legislation. The current process provides a balanced approach, allowing local authorities and heritage trusts to enter into mutually acceptable arrangements. It encourages collaboration between local authorities and heritage trusts, and as I have said, that approach could be jeopardised if an element of compulsion were to be introduced.
I am happy to reflect on the dilemma which the noble Lord, Lord Beith, outlined about local authorities’ reluctance to take things forward. In the meantime, with the greatest respect, I ask the noble Baroness to withdraw her amendment.
Baroness Andrews
My Lords, I am very grateful to the Minister. I detect a sympathy beneath his detailed rebuttal. I am also very grateful to Members who supported the amendment. The points the Minister made are worth reading properly and I will go on to do some research in connection with the heritage bodies about the response of local authorities and the effectiveness of the guidance. There is an argument which says that advice and guidance are fine as far as they go, but what we are looking at here is case after case across the country of deep frustration, of failure of capacity and of fairly old resources. I take the point about an element of compulsion, but there comes a point in all forms of policy where something more draconian needs to be considered as part of a conversation about what the alternatives are, otherwise we will never move away from the sort of stasis that we have had over sometimes magnificent buildings but which are a blight and an eyesore when they could be so productive in the community. We will rise to the challenge and see whether we can come back. We may be back before Report with evidence, but in the event, I certainly withdraw the amendment.
House of Lords
Her Majesty The Queen’s Sapphire Jubilee
The Lord Speaker (Lord Fowler)
My Lords, on behalf of your Lordships’ House, I take this opportunity to congratulate Her Majesty the Queen on the 65th anniversary of her accession to the Throne.
Brexit: Customs and Border Staff
(7 years, 10 months ago)
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Lord Wallace of Saltaire
To ask Her Majesty’s Government what estimate they have made of the number of additional public employees needed to meet the requirements of Brexit, in particular in customs and border control.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the White Paper published last week set out the Government’s priorities and the broad strategy for exiting the EU. There is a number of options as to how EU migration and customs checks might work once we have exited the EU. We are considering these options, so it would be wrong to set out a further position at this stage.
Lord Wallace of Saltaire (LD)
My Lords, half of Britain’s trade is currently within the single market, so presumably customs checks and the space needed for them will have to be considerably expanded. Two-thirds of visitors come from the EU and the EEA, so I assume that the long queues that we already have at the external border for people going through hard border controls will be immensely lengthened and that we will need to treble the number of border staff. Are the Government already beginning to plan for the extra space and staff they need? If they cannot recruit enough, perhaps we will need to recruit border agency people from eastern Europe.
Baroness Williams of Trafford
My Lords, the Government will certainly be prepared, if need be, in the way that the noble Lord said. However, the advent of e-passport gates at airports has made it quicker to get through the border, and of course the facial recognition checks at those gates have proved to be very efficient.
Lord Anderson of Swansea (Lab)
My Lords, if there is a range of options, there must surely be a range of costs—guestimates—available to the Government. What are they? Perhaps the Minister can help me but I cannot recall the costs used by the Brexiteers during the referendum campaign. Perhaps she can refresh my memory.
Baroness Williams of Trafford
My Lords, of course there will be a range of options, none of which am I in a position to cost or comment on today, but they will become clearer. I am sure that the noble Lord has read the White Paper on the broad principles as we go forward.
Lord Bilimoria (CB)
My Lords, does the Minister agree that removing exit checks from our borders in 1998 was a huge mistake? Does she also agree that, Brexit or no Brexit, we now need to bring back immediately exit checks to our borders so that we are on top of things from a security point of view and from the point of view of being in control of immigration, with EU and non-EU citizens being scanned in and scanned out? In fact, I could recommend a whole list of Indian IT companies that could do the job.
Baroness Williams of Trafford
I thank the noble Lord. He is right about exit checks. They were reintroduced last year and will provide some very useful information, not least on immigration.
Lord Forsyth of Drumlean (Con)
My Lords, can my noble friend tell me how many additional public employees are employed by the Government to answer questions from people who do not accept the result of the referendum?
Baroness Williams of Trafford
The figures differ at various times. I can say to my noble friend—and I am sure he will agree with me—that we will be well equipped to deal with our borders when the time comes.
Lord Rosser (Lab)
My Lords, what exactly do the Government mean when they say that under Brexit we will have control of our borders? Does it mean that people who should not do so will not enter this country? If so, how will the Government achieve that, bearing in mind that we are not in a position to stop illegal immigration at present—as the road haulage industry makes clear—despite the present level of co-operation with the French authorities?
Baroness Williams of Trafford
My Lords, there is more than just the French authorities to consider, although we have worked very hard and in good co-operation with the French. Control of our borders means just that—control of who comes in and who goes out. However, I accept that no system is perfect.
Lord Watts (Lab)
My Lords, would not the introduction of ID cards be the cheapest way to try to deal with this problem? Would not the Government’s time be better spent looking at the proposals and seeing how effective they would be in introducing controls on our borders?
Baroness Williams of Trafford
In short, no. We have moved beyond the ID card in terms of the amount of information we have on passenger movement. Technology now has almost negated the need for what the noble Lord talks about, which was quite some time ago.
Lord Paddick (LD)
My Lords, there has been a 25% reduction in funding per passenger for the UK Border Force since 2011. The Minister mentioned that e-gates—automatic gates—at airports for EEA nationals mean that the reduction in funding has not resulted in a lessening of security. Can she say what will happen when we leave the European Union and EEA nationals will no longer be subject to this, rather worryingly termed, soft border regime?
Baroness Williams of Trafford
My Lords, the number of full-time Border Force employees has ranged from approximately 7,600 to 8,100 in the past few years. As I said earlier, there may have been a reduction perhaps last year in workforce because it is within that range but e-gates and other infrastructure improvements have improved the system. In 2016-17 we invested £68 million in capital for infrastructure improvements.
Lord Pearson of Rannoch (UKIP)
My Lords, have the Government worked out how much we will be saving by not having to send an endless stream of Ministers and their civil servants over to Brussels to nod through its useless and damaging legislation and by not having to enact it thereafter? Did not the British people vote specifically for more border control, which therefore becomes something of a priority, does it not?
Baroness Williams of Trafford
The British public certainly did vote for more border control and this Government are very clear that we need to balance immigration with the skills that we need to provide services in this country. In terms of the savings, experts have given all sorts of figures and I will not at this point try to guess.
Baroness McIntosh of Hudnall (Lab)
My Lords, does the Minister agree that asking rational and legitimate questions about process is not the same as not accepting the result of the referendum?
Baroness Williams of Trafford
Asking rational questions is perfectly legitimate; noble Lords tend to ask rational questions, and that is totally legitimate. There is a wide range of views in both your Lordships’ House and the other place but I think we all accept the outcome of the referendum.
Viscount Waverley (CB)
My Lords, is the Minister aware that a UK border official at Charles de Gaulle airport once told me that when a passport on occasion appears in front of them that is illegal, they give it back to the French authorities and that passport often reappears, carried by somebody else, in order to try to get access to the UK?
Baroness Williams of Trafford
The noble Viscount tells me something that I did not know, but the e-gates are actually very accurate at marrying up the person with the identity in the passport.
Brexit: Aerospace Industry
(7 years, 10 months ago)
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Lord Soley
To ask Her Majesty’s Government what assessment they have made of the impact of Brexit on the aerospace industry.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Prior of Brampton) (Con)
My Lords, we have engaged with the UK aerospace sector and are aware of the potential issues that the UK’s exit from the EU may have. Our aim is to keep the UK the leading aerospace nation in Europe and we will continue our long-standing support for the sector. That includes a matched co-funding of some £3.9 billion for a research and development programme to 2026.
Lord Soley (Lab)
Are the Government aware of the cross-border problems with the supply chain in aerospace? I am concerned about the European Aviation Safety Agency—where we play a key role—which certifies the safety of aircraft products. That is a profoundly important area. I am not sure—and this applies to other agencies, too—how the Government plan to move that forward in agencies, particularly where we play the lead role and will no longer be able to do so after Brexit.
Lord Prior of Brampton
My Lords, the EASA is indeed extremely important, as are other European agencies. We will negotiate with those agencies over the next two years to come to a sensible arrangement.
Lord Trimble (Con)
My Lords, does the Minister agree that it is a shame that the party opposite is so slow in catching up with its leadership?
Lord Prior of Brampton
I wonder what leadership my noble friend is referring to. I am sure that the party opposite is wholly united behind its leader.
Lord Ashdown of Norton-sub-Hamdon (LD)
My Lords, as the Minister well knows, a defence strategy refresher paper is to be published in the middle of the year. Never mind Brexit; is he aware that if that paper fails, as did the national strategy, to make a clear commitment on behalf of the Government in favour of retaining and preserving Britain’s capacity to design and manufacture its own helicopters, as we have done for 70 years for the benefit of our Armed Forces and our export markets, there is a real danger that that capacity will be lost, together with hundreds of jobs in Yeovil and elsewhere and a crucial part of the national aerospace asset? Why can everybody else see that danger but the Government seem blind to it?
Lord Prior of Brampton
My Lords, I do not agree with the last part of the noble Lord’s question. The capacity to manufacture helicopters in the UK is extremely important and the MoD is very much committed to doing that. As the noble Lord says, we will publish a refresh strategy later in the year, which I am sure will make that clear.
Lord Kinnock (Lab)
My Lords, will the Minister confirm that the European Aviation Safety Agency plays a crucial role in excluding from European airspace and European airports any aircraft that originates from countries or companies that have poor safety records? By that means it safeguards the security and well-being of people right across this continent. Because of the importance of that, will the Minister give me an undertaking now that, whatever the other outcomes of Brexit, we will retain full participation in the European Aviation Safety Agency?
Lord Prior of Brampton
My Lords, I can confirm that safety is absolutely paramount. How that is achieved between the workings of the CAA and the EASA will have to be resolved over the next two years.
Baroness Hayman (CB)
My Lords, another European agency of crucial importance to safety, which the Minister will know about from his previous role, is the EMA—the medicines evaluation agency currently located in London. It is important not only for the NHS but for the pharmaceutical industry. When the Minister is looking at future co-operation and arrangements, will he ensure that that agency and our relationships with it are also safeguarded?
Lord Prior of Brampton
My Lords, the relationship between the MHRA and the EMA, similar to that between the CAA and the EASA, is absolutely critical. The MHRA, from my memory, does 40% of the work of the EMA—so the relationship between those two organisations will indeed be very important.
Lord West of Spithead (Lab)
My Lords, as one of the largest contributors to the European Investment Bank, what influence have we had over the money that it has just given to the European Defence Fund, which was set up in November, and the subsequent allocation by the European Defence Agency for defence and aerospace procurement all around Europe?
Lord Prior of Brampton
The noble Lord raises such an interesting question that I cannot actually answer him, so I will have to write to him afterwards.
Lord Berkeley (Lab)
My Lords, will the Minister explain why, in the case of the air and the medical agencies that have just been discussed, the Government are looking into how this can be integrated with Brexit, but they have already made a decision to leave Euratom without any debate at all? They are all the same kind of safety regulators: what is the difference?
Lord Prior of Brampton
My Lords, I think that the difference is that the Euratom treaty was inextricably linked to the original European Communities treaty. When we exercise Article 50, it will automatically have an effect on the Euratom agreement, whereas the other issues that we are looking at are regulatory issues in which we have a much greater degree of discretion about how we work together in the future.
Residential Care
(7 years, 10 months ago)
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Baroness McIntosh of Pickering
To ask Her Majesty’s Government what estimate they have made of the number of residential care home beds that were available in (1) 2005, and (2) 2015.
The Parliamentary Under-Secretary of State, Department of Health (Lord O'Shaughnessy) (Con)
My Lords, I am informed by the Care Quality Commission that, as of 31 March 2015, there were 464,110 nursing and residential care home places in England. According to the annual reports of the Commission for Social Care Inspection, the predecessor to the CQC, the equivalent figure as of 31 March 2005 was 451,288.
Baroness McIntosh of Pickering (Con)
My Lords, I thank the Minister for that Answer, but will he ensure that the number of care home places remains at a sufficiently high level to enable people to be discharged from hospital when it is deemed safe to do so? If there is currently a shortage of care home beds in, for example, rural counties such as North Yorkshire, will his department work very closely with local authorities up and down the country to ensure that people can leave hospital and go to a care home when that is appropriate?
Lord O'Shaughnessy
I thank my noble friend for making a very important point. Clearly, the capacity in the care home sector is important for ensuring that there is a proper flow of patients out of hospitals and into a more appropriate setting. In regard to the county that she was talking about, North Yorkshire, I think the overall number of beds has been broadly flat over the period in question, but there has been an increase in domiciliary and supported accommodation, which is increasingly the way that care is being structured across the country.
Baroness Pitkeathley (Lab)
My Lords, does the Minister agree that where there is a shortage of residential or, indeed, nursing home care beds, the onus on care falls on the families? Will he take this opportunity to update his honourable friend in the other place, the Minister for Health, who last week exhorted the nation to care for its elderly relatives? He apparently forgot that there are 6.5 million people who already do so at great personal cost to themselves.
Lord O'Shaughnessy
The noble Baroness is quite right to highlight the work that carers do. There is now, of course, a national carers strategy to support those who are supporting their families, often in very difficult circumstances. The point that my honourable friend in the other place was trying to make was that there is an important role for families to continue doing so—in the way that parents care for children, children should do the same for their parents in return.
Baroness Brinton (LD)
My Lords, it is absolutely evident that the care homes are facing an existential problem. Their costs have increased by 30% in the last year with the introduction of the national living wage, and their profits have significantly reduced. Some 1,500 homes have closed over the last six years. There is a major problem going on, and it is not good enough to exhort local councils to pick up the gap when their funding has been severely curtailed, which is also not helping care homes. When will the Government get a grip of this very serious crisis?
Lord O'Shaughnessy
I am pleased that this Government have introduced the national living wage, which is supported, I believe, across this House and the other place. The noble Baroness is quite right that there is an impact on social care home providers, many of the staff of which are paid at that level. The truth is that there is a cost pressure, of course, in the social care sector—that is one of the reasons that the precept is rising quicker than it would have done otherwise—and the better care fund has been created to support more care provision in the appropriate setting that people want to have it in.
The Lord Bishop of St Albans
My Lords, with applications for nursing degrees having gone down by 10,000 and with planned immigration restrictions being imposed, what are Her Majesty’s Government doing to ensure that we have not only sufficient beds but the caring and nursing staff to look after those who are using the beds?
Lord O'Shaughnessy
The number of workers in the social care sector has increased by about 165,000 over the last five years: there is an increased demand because we have a growing population. I think that we are going to have another opportunity to talk about the impact on nursing degrees tomorrow, so I do not want to spoil the party. As for the impact of the European Union, of course, a significant section of the workforce comes from the European Union but we are increasing the number of nursing training places and there is also now a nursing apprenticeship scheme which is providing 1,000 places for people who want to enter the profession by that route.
Baroness Greengross (CB)
My Lords, does the Minister agree that people in acute hospitals would not need to be there if there was somewhere they could go very soon after being admitted to hospital, such as rehabilitation centres? Many countries have small, nurse-led rehab centres; many of our smaller hospitals which are being closed down could be used in this way. People could go there as soon as they can out of the acute hospital sector. If we did that, we could solve some of the problems and we would have the right sort of care for a lot of frail people who are at the moment accused of blocking hospitals—they do, but it is not their fault.
Lord O'Shaughnessy
The noble Baroness raises an incredibly important point. Patients end up in hospitals for a variety of reasons and it is not always the best setting for them. The kind of care she describes is important; it might be rehab centres or cottage hospitals. Indeed, what we are seeing through the sustainability and transformation plans are ideas for intermediate care and step-down care that provide exactly the sorts of things she is talking about.
Lord Lansley (Con)
Does my noble friend recognise that when care users go into a residential care home their own home is very often included in the means test, even if subject to deferred payment? However, if they receive their care at home, their own home is exempted. This both reduces the resources available to support care and also creates a disincentive to go into care homes for people for whom it might be the best result. Does my noble friend recognise this as an issue we should look at?
Lord O'Shaughnessy
The most important thing when providing care is that it is in a setting that people want and feel comfortable with. There is, of course, a trend towards more domiciliary and supported housing for precisely that reason.
Baroness Wheeler (Lab)
My Lords, what is the Minister’s view of Disability United’s recent FOI finding on NHS continuing care that a large number of CCGs are saying they will not support the care of chronically ill people in their homes if it is cheaper for them to be in residential care? How does this sit with the reality of the state of the residential care industry, with bed shortages in many areas so that patients cannot be transferred from hospital, and with the Government’s aim of giving chronically and terminally ill people choice about where they want to be cared for, particularly at the end of life?
Lord O'Shaughnessy
The noble Baroness makes a very good point. There is clearly a need for additional capacity, because there is a much greater population. The number of people aged over 85 has increased by about 25% in the last five years and that will increase at a similar rate over the next five years, so more capacity is needed both at hospital level, in residential and nursing homes, and at a domiciliary level too.
Lord Cashman (Lab)
My Lords, there are worrying trends of discrimination suffered by people in vulnerable groups, people with HIV, those who are ageing and others. Therefore, will the Minister work with care providers to ensure that such discrimination, ignorance and stigma are absolutely outwith the provision of such services?
Lord O'Shaughnessy
I completely concur with the noble Lord’s point. He is right, of course: there should be no such discrimination on those grounds or any other. I will certainly investigate that and see if there is anything worrying going on and write to him.
UK Sports: Funding
Lord McConnell of Glenscorrodale
To ask Her Majesty’s Government whether they have assessed the funding allocations to individual sports from 2017 onwards announced by UK Sport following the Rio Olympics in 2016.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, decisions on elite funding allocations are for UK Sport. Its no-compromise approach has delivered our greatest Olympic performance in a century. However, it is crucial that funding is invested strategically in the right sports, the right athletes and the right support programmes. Team GB’s historic medal haul in Rio was an amazing achievement and our athletes made the country very proud. I hope that this success will continue through to Tokyo 2020.
Lord McConnell of Glenscorrodale (Lab)
My Lords, badminton is enjoyed by over half a million people regularly in this country because it is one of the most accessible and affordable competitive sports. Those half a million people cheered when Team GB’s badminton team won the medal that they had targeted in Rio last summer. Yet all their funding—all of it—has been dismissed by UK Sport for the period up to the Tokyo Olympic Games, while sports that won no medals have received millions of pounds. This is surely wrong, and while I recognise and support the view that government should not routinely intervene in the decisions of UK Sport, there is surely a case, on this issue, for Ministers to haul in UK Sport, ask it what is going on and make sure that it makes the right decisions in the public interest for sport in this country in the future.
Lord Ashton of Hyde
I start by acknowledging that Chris Langridge and Marcus Ellis did a fantastic job in winning a medal at the Olympics, and deserve a lot of credit. The problem is, first, that this is a matter for UK Sport; and, secondly, that it is not right that Ministers should be involved when the appeals process is still going on. The next stage of the appeals process is going on today and there is yet another stage that badminton can go on to. One reason that those athletes did so well was the potential for winning medals in badminton: since it has been an Olympic sport, Britain has won three medals, China has won 41 and Korea and Indonesia 19 each. So UK Sport took this very difficult decision on that basis purely of the ability and likelihood of winning medals.
Lord Mackay of Clashfern (Con)
My Lords, can the Minister say whether UK Sport is obliged to give reasons for its decisions, and how the appeals process works?
Lord Ashton of Hyde
My Lords, first, UK Sport deals with the national governing body of the sport before the decisions are made—so there is a lot of consultation with the individual sport. These decisions, therefore, do not come as a surprise—or at least they should not. With regard to the appeals process, the sport can make a presentation to the board of UK Sport; that is taking place for several sports—eight, I believe—today and tomorrow. If that does not go the way that the sport wants, it can go to a three-man independent board of Sport Resolutions.
Lord Addington (LD)
My Lords, does the Minister agree that the funding of sport is crucially linked to the lottery? What steps will the Government take to ensure that the National Lottery retains its pre-eminent position? The first step might be a statement that the other competitors have to pay out at least as much to good causes as it does.
Lord Ashton of Hyde
The noble Lord is right that funding for sport is crucially dependent on the lottery. The other problem that UK Sport has is that it has to make its allocations four years in advance for the Olympic cycle. That is why DCMS has underwritten the potential lack of funding from the lottery so that it can produce a plan for the athletes for 2020.
Lord Elton (Con)
My Lords, does my noble friend recognise a tension between the desirable objectives of engaging as many people as possible in health-giving and character-building sport, and of getting as many gold medals as possible? If so, which has priority in the minds of both the sporting executive and the Government?
Lord Ashton of Hyde
There is of course a tension. UK Sport’s no-compromise approach is purely about delivering the maximum number of medals. That is not necessarily what is good for public health, for example, but the two are interrelated. I think everyone realised at London and Rio that when Team GB did well, there was a great incentive to get out and participate in sport. Sport England, which has roughly four times the funding, has a new strategy encouraging people to get active. That may or may not include sport—the main thing is to get out of the front door and take some exercise.
Baroness Billingham (Lab)
UK Sport has the role of making sure that we have excellence internationally. But what the Government are thinking about, because some of their decisions surely have to be about increasing the number of participants, particularly young people? Given that that is the case, what is the Government’s view of the fact that there is no allocation to team sports, which are what schools provide? Surely it is time that we looked now at having more participation by young people in team sports in schools.
Lord Ashton of Hyde
I completely agree with the noble Baroness. That is why the Government’s sports strategy included allocating responsibility to Sport England for those aged from 14-plus down to five-plus. The stress, as I said, is not only on sports but on activity. At the moment, just under 40% of the over-16 population are either inactive or insufficiently active.
Lord Bilimoria (CB)
My Lords, will the Minister confirm that, after the fantastic performance of Britain in the Rio Olympics, there was, as I heard, a shortfall of £3 million or £4 million for our athletes to go to the Commonwealth Games in Australia? Can he assure us that this shortfall no longer exists and that our athletes will be fully funded to go to the Commonwealth Games?
Lord Ashton of Hyde
I was not aware of the shortfall but I will find out from my department and write to the noble Lord.
Parking Places (Variation of Charges) Bill
Monday 6th February 2017
(7 years, 10 months ago)
Lords ChamberRead Full debate Parking Places (Variation of Charges) Act 2017 View all Parking Places (Variation of Charges) Act 2017 Debates Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 3 February 2017 - (3 Feb 2017)
Broadcasting (Radio Multiplex Services) Bill
Monday 6th February 2017
(7 years, 10 months ago)
Lords ChamberRead Full debate Broadcasting (Radio Multiplex Services) Act 2017 View all Broadcasting (Radio Multiplex Services) Act 2017 Debates Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 3 February 2017 - (3 Feb 2017)
Digital Economy Bill
Monday 6th February 2017
(7 years, 10 months ago)
Lords ChamberRead Full debate Digital Economy Act 2017 View all Digital Economy Act 2017 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 80-IV Fourth marshalled list for Committee (PDF, 161KB) - (6 Feb 2017)
Baroness Janke
“Review of sale on the internet of counterfeit electrical appliances
(1) Within six months of the coming into force of this Act, the Secretary of State must commission a review of the sale on the internet of counterfeit electrical appliances.(2) The review must consider whether operators of trading websites that allow individual sellers to use those websites to sell electrical items should be required to report to the police and trading standards authorities any instances of the selling of counterfeit electrical appliances which are arranged through their website.(3) The Secretary of State must publish the report of the review, and lay a copy of the report before each House of Parliament.”
The Lord Speaker (Lord Fowler)
My Lords, it might perhaps be for the convenience of the Committee if we had a short pause so that those not engaged in the next business may leave the Chamber.
Baroness Janke (LD)
My Lords, I shall speak to Amendments 75 and 76, which deal with the sale of counterfeit electrical goods on the internet. There is growing concern about this practice, which has increased massively over the past 20 years—by 10,000%—and is continuing to increase at around 15% a year. The industry of counterfeit goods is worth something like £1.3 billion, according to the Electrical Safety Council, and 64% of these goods are sold on the internet. People believe that they are buying reputable brands, as they are dealing with an online retailer that is well known and they assume that the goods are genuine.
The fact that there are so many accidents and so many problems with these goods is another reason that we are bringing these amendments today, as we see this Bill as an opportunity to do something about this practice. The goods are often dangerous. The Electrical Safety Council calculates that something like 7,000 domestic fires are caused by faulty goods, and many of these are counterfeit goods. The practice of selling these goods undermines genuine brands and causes great difficulty within the industry. Faulty goods can also cause great harm directly to individual people.
These amendments seek to give some responsibility to online retailers to report to trading standards and the police goods that they know to be counterfeit. The second amendment requires the Government to provide a review and report on the extent of this practice as well as its impact on the economy. I beg to move.
Lord Tope (LD)
My Lords, my name is also to this amendment, so I support my noble friend Lady Janke. I declare that I am a patron of Electrical Safety First.
My noble friend has stated the problem very well. The ask from this amendment is very modest: we are asking the Government to establish a review. It may not be appropriate for that to be in the Bill, but it gives us an opportunity at this stage for the Government to come back and tell us what they are going to do about counterfeit goods, which are clearly a fast-growing problem.
Our particular concern is with electrical goods, although I could probably add gas goods as well. Counterfeiting clearly is a problem, and I do not minimise it, but a counterfeit handbag is unlikely to kill you; counterfeit electrical goods most certainly can, and do, kill people. I happened to spend my Sunday reading the trading standards journal TS Review, as I imagine many of your Lordships would have been doing. I read that,
“More than 99 per cent…fake Apple chargers failed a basic safety test. Twelve were so poorly designed and constructed that they posed a risk of lethal electrocution to the user”.
On the same page, it is reported that the London Fire Brigade has stated that,
“Across London, 2,072 fires involving white goods have been recorded since January 2011, with more than £118m estimated to have been lost from London’s economy as a result”.
This clearly is a problem, not only to those who produce the products legitimately. Indeed, I noticed that eBay, of all places, is setting up an authentication scheme so that the proper producers can have their goods authenticated by experts as being not counterfeit. This indicates a huge problem.
The purpose of these amendments is to seek a commitment from the Government that they will establish reviews into goods sold and, in particular, goods sold on the internet. I hope that the Minister will be able to tell us, first, that the Government recognise this increasing problem and, secondly, if they do, what they are going to do about it.
Baroness Buscombe (Con)
My Lords, I reassure the noble Lord, Lord Tope, that we recognise this problem, although I have to admit that I certainly did not spend my Sunday reading the trading standards review.
Amendments 75 and 76 seek to impose a commitment to review and report on the sale and cost of counterfeit electricals being sold online. The sale of counterfeit goods of all kinds, not just electrical goods, has, as noble Lords said, the potential to cause consumer and economic harm by damaging legitimate traders and often supporting organised crime.
This is an issue the Government take extremely seriously, and that is why the Intellectual Property Office is committed to tackling counterfeiting of all kinds. We do this by working through our IP attaché network in manufacturing countries, targeting import routes in conjunction with UK Border Force and targeting UK sellers and distributors along with trading standards and police services across the UK.
We have heard reference to the challenges of the online world and sales via social media. We absolutely recognise that, and that is why we have supported some very successful work through Operation Jasper, working with police and trading standards to tackle the sale of counterfeits through social media sites.
The full range of work undertaken by government in this area is outlined in the IPO’s IP enforcement strategy, which was published last year. This strategy makes a number of commitments that are very relevant to the ideas proposed in these amendments. The strategy commits the Government to further improving the reporting of IP crime as well as to developing a credible methodology to measure the harm caused. Work is also ongoing with academics to build the structures necessary for commercial entities to share information that they hold about levels of infringement in a safe manner. The IPO also hosts the IPO crime intelligence hub, which is able to receive, develop and disseminate intelligence on IP crime, whether online or physical. The hub is in regular contact with the UK’s leading online sales platforms, and they are continually developing better mechanisms for sharing information about sellers and products.
In addition to this, the IPO, on behalf of the IP crime group, which is a collection of government departments, industry bodies and enforcement agencies which work to tackle IP crime, publishes an extensive report each year on a wide range of IP infringement, including counterfeit electrical goods. The IPO is also working with Citizens Advice to see how it can offer better information to consumers so that they in turn can make more informed purchasing choices. Finally, the IPO is working to encourage trade associations voluntarily to share information about sales of counterfeits that raise safety concerns.
In light of all the things that the Government and others are involved in, I hope the noble Baroness will withdraw her amendment.
Baroness Janke
I thank the Minister for the information she has shared with us. It is very encouraging. However, there is a feeling that this issue has been around for a very long time and that perhaps stronger enforceability is needed to do something about it. I read that eBay is now producing its own mechanism for preventing the sale of counterfeit goods and that other online retailers will be looking at that, but it still seems that the ability to enforce action on this is missing. I hope to look at the work the Government are already doing on this and consider its future contribution and then consider whether to return with this matter at a later stage. I beg leave to withdraw the amendment.
Lord Foster of Bath
“Copyright and the role of active hosts
(1) The Electronic Commerce (EC Directive) Regulations 2002 are amended as follows.(2) At the end of Regulation 19 insert—“(2) Where an information society service is storing and providing access to the public copyright protected works, and is playing an active role, including the promotion and optimising the presentation of those works, sub-paragraph (1) shall not apply.(3) The service provider of an active host under sub-paragraph (2) is required to secure licensing agreements with rightsholders.””
Lord Foster of Bath (LD)
My Lords, in moving Amendment 77, I shall speak briefly to Amendment 79. Amendment 77 probes the Government’s intentions with regard to the recent proposals for an EU directive on copyright in the digital single market. The amendment would clarify that the hosting defence contained within paragraph 19 of the Electronic Commerce (EC Directive) Regulations 2002 does not apply to digital services that play an active role in the provision of online content, specifically those user upload services that optimise the presentation and promotion of copyright-protected works. The amendment would require those services to secure licensing agreements with rights holders.
To explain in more detail, many services are passive hosts, which are defined in EU law as those that provide a,
“technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient”.
Examples would include internet service providers such as BT, TalkTalk or Virgin, cloud locker services such as Dropbox, Microsoft’s One Drive or Google Drive, and online bulletin boards such as HootBoard or MyBB. Services such as these are accepted as essential to the operation of the digital market and so quite reasonably have what is called “safe harbour protection”—that is, a limitation of their copyright liability on the basis that they have no knowledge of copyright infringement. On the other hand, there are sites that also give access to works made available by third parties, but actively provide functionality that promotes works, makes recommendations and optimises the upload for the purpose of presentation. It is this functionality that provides users with the ability to find what they want when they want it. These are active hosts. They directly compete with licensed providers. Examples include Facebook, YouTube, Dailymotion, Bandcamp, Vimeo and Metacafe. They should not have safe harbour protection and should be required to secure licencing agreements with rights holders.
Therefore, while there was, and in some areas continues to be, justification for exemptions for passive hosts, like all exemptions they must reflect the balance between the rights of rights holders and users. There is a strong argument that the existing provisions are not sufficiently defined and as a result are open to deliberate misinterpretation. This means that some services can use copyright-protected content to build their businesses without fairly remunerating rights holders. UK Music’s recent report Measuring Music highlighted that the user-uploaded service YouTube, the most frequently used global streaming platform and one that currently benefits from the safe harbour provisions, increased its payments to music rights holders by only 11% in 2015 despite consumption of the service growing by 132%. This further underlines what is called in the trade the “value gap”. The current legal ambiguity and imbalance has created distortions in the digital market with services like YouTube benefiting from these exemptions whereas Apple Music and Spotify, providing similar services, do not. The growing significance of the music streaming market must not go unremarked. Over a four-year period, the UK music industry has grown by 17%, and during the same period, there has been a massive shift from consumers owning music to streaming it. The value of subscription streaming services jumped from £168 million in 2014 to £251 million in 2015.
There has been a number of legal cases seeking to clarify the situation. In 2011, in the L’Oréal v eBay case, the Court of Justice of the European Union held that online marketplaces cannot benefit from the hosting exemption where they play an active role, for example by promoting and optimising content. This amendment seeks merely to clarify what should already apply in the law right across the EU, including in this country. However, some services are still arguing that they are not active hosts, and as a result, avoid licences or are underlicensed, hence the need for the clarification that may be provided by this probing amendment.
There is another reason why we need greater clarity from the Government. Initially, the Government made it clear that they believed:
“Clarification of terms used in the Directive would, we believe, help to address … concerns”,
about the active/passive host issues. However, in a letter to the EU institutions in April last year, the then intellectual property Minister, the noble Baroness, Lady Neville-Rolfe, argued in relation to digital services that,
“we should avoid introducing legislation that might act as a barrier to the development of new digital business models and create obstacles to entry and growth in the European digital market”.
This probing amendment seeks to ensure that that sort of view does not preclude strong and robust positions being taken in support of safe harbour clarification. The proposals in the draft EU directive in this regard are welcome, and we ask that the UK Government continue to support the clarification in the law that the draft directive seeks and that they continue to engage in this important process.
The referendum result and the path towards Brexit raise many issues in relation to these proposals. It is highly conceivable that we will be Brexiting at the very time that Europe begins to adopt copyright rules for the digital age, so an opportunity to clarify UK law will be lost as a consequence of other factors. It is therefore necessary to consider how we can take this opportunity of having a Digital Economy Bill to safeguard these important principles once we leave the European Union. I hope very much that the Minister will confirm that the Government are committed to implementing the draft directive, and Article 13 and Recital 38, into UK law, if they are not implemented by the point that we leave the European Union. Finally, I am well aware that the Government have been consulting stakeholders on these issues. I hope we get a commitment from the Government to publish the consultation and that the new IP Minister, Jo Johnson, will commit to a meeting with representatives of the music industry and others to discuss these issues.
Briefly, we on these Benches fully support Amendment 79 in the name of the noble Lord, Lord Stevenson, which my noble friend Lord Clement-Jones and I have also signed. I have no intention of stealing the thunder of the noble Lord, Lord Stevenson, and will leave him to explain the importance of the amendment, which seeks simply to help the Government achieve their own manifesto commitment to reduce copyright infringement and ensure that search engines do not link to the most offending sites.
I will say merely that the Government have already hosted a number of round tables to seek ways forward, and some sources are telling us that a voluntary agreement for a code of practice is close to finalisation. If that is true then I am delighted to hear it, but this amendment would not preclude a voluntary agreement. Already many have argued to us that tabling the amendment may have helped to speed up the process towards a voluntary agreement with teeth, but the amendment would not do anything other than ensure that we had a backstop mechanism in the event of a failure to get a voluntary agreement or if the voluntary agreement fails. I hope that on that basis Amendment 79 will also be considered seriously by the Government.
Lord Stevenson of Balmacara (Lab)
My Lords, it is extremely kind of the noble Lord, Lord Foster of Bath to introduce my amendment for me, saying that he was not going to speak to it and then covering all the points I was going to make. That means we will move a little faster than we would otherwise have done. I think I can limit my speech to three points, in the sure and certain knowledge that the noble Lord, Lord Clement-Jones, will cover any points that I do not cover in great detail.
We understand that there is a voluntary code in circulation that has been offered to all parties, and it is thought that it might be signed some time this week—at least, that is the deadline that the Government have given. If that is the case, as the noble Lord, Lord Foster, says, then that is obviously good news and takes us a step down the road, but my amendment would be necessary if not everyone who has been offered this signs up to it, which I think is quite likely. There may be new entrants and other companies that participate in this area for which the activities that facilitate copyright infringement by users will remain a problem, and of course there may be changes in technology that we cannot even anticipate at this stage that may make it necessary, as adumbrated by the amendment, for the Secretary of State to return to this issue in future. For all the reasons given by the noble Lord, Lord Foster, this is a helpful amendment, intended to ensure that this long-running problem gets solved. I hope very much that the Government feel able to accept it.
Baroness Buscombe
My Lords, on Amendment 77, over recent years the UK has made great strides in the enforcement of intellectual property, and we are now judged to have one of the best IP enforcement regimes in the world. This is definitely a position that we are keen to maintain, and the Bill sends a clear signal that the Government believe copyright infringement is a serious matter, irrespective of whether it is online or offline. This includes measures to increase the penalty for online copyright infringement from two years to 10 years. We understand that there are concerns in the music industry particularly that online intermediaries need to do more to share revenues fairly with creators, which the amendment seeks to tackle. However, we need to find balanced solutions that provide clarity without undermining basic freedoms or inhibiting the development of innovative digital models.
As the e-commerce directive is EU single-market legislation in origin, we will in effect have to wait until after we exit the EU and then possibly initiate a debate as to whether this regime, or indeed the e-commerce regulations as a whole, is still fit for purpose. We are also wary of making piecemeal changes to this important regime that has helped to foster the development of online services and has been helpful to the development of the UK’s burgeoning tech sector without a proper debate involving all parties.
That said, the current law, including the exemptions from liability, has fostered an open and innovative internet, giving online services the legal certainty required to start up and flourish. This has been good for creators, rights holders, internet businesses and consumers alike. Platforms, like all businesses, have a role to play in helping to remove copyright-infringing material, and there is no place for a system that encourages copyright infringement online. However, the UK Government are fully committed to ensuring that our creative industries receive fair remuneration for their work. We want to see creators remunerated fairly, while encouraging investment in new content and innovative services. We will carry forward these principles when engaging at policy level with the EU while considering our own UK-based solutions.
The Government are clear that we must maintain our rights and obligations as members of the EU until we leave. That means that we carry on making arguments within the EU concerning our preferences for EU law. Once we leave the EU, we may choose to reconsider a range of issues, including the limited liability regime, but for now, government policy remains unchanged. The European Commission has recently published a series of copyright proposals in that area, and we are in the process of carefully considering those proposals. While we remain a member of the EU, we will continue to engage with policy development in this space, alongside considering the development of our own copyright framework.
Amendment 79 would mean that the Government take a power to impose a code of practice on search engines, to dictate how they should work to prevent copyright infringement. The return of that suggestion, which was also discussed in another place, gives me an opportunity to update noble Lords on progress in this important area. Since the idea was last discussed in the other place, IPO officials have chaired a further round-table meeting between search engines and representatives of the creative industries. While there are still elements of detail to be settled, the group is now agreed on the key content of the code and I expect an agreement to be reached very soon. All parties have also agreed that the code should take effect, and the targets in it be reached, by 1 June this year. The search engines involved in this work have been very co-operative, making changes to their algorithms and processes, but also working bilaterally with creative industry representatives to explore the options for new interventions, and how existing processes might be streamlined. I understand that all parties are keen to finalise and sign up to the voluntary agreement, and so we believe there is no need to take a legislative power at this time.
Surely it is better to act on a co-operative basis now, and start tackling this serious issue right away. If, however, a voluntary deal cannot be achieved, we will re-evaluate our options. I hope therefore that the noble Lord is reassured, and feels able to withdraw the amendment.
Lord Foster of Bath
My Lords, I thank the Minister for her response. On the second amendment, my concern is that although she is optimistic that we will have a robust agreement in place, if that does not happen—or if the agreement breaks down at a future date, for whatever reason—she has said merely that the Government will re-evaluate their position. She will be as aware as I am of the difficulty of bringing new legislation before your Lordships’ House to address any decision they might make at this time. The amendment would provide that backstop mechanism if it is needed in the long run, which is why I hope we will have an opportunity to discuss that at further stages of the Bill.
On the first amendment, the Minister has not been able to reassure me that the Government are committed to introducing appropriate legislation if the EU legislation has not been finalised at the time we leave the European Union. I hope therefore that we will have an opportunity to discuss that matter in more detail on a future occasion. For the time being, however, with an opportunity for us to reflect on what the Minister has said, I beg leave to withdraw the amendment.
Lord Clement-Jones
“Transparency and fairness obligations
(1) Authors, artists and performers (“creators”) shall receive on a regular basis timely, adequate and sufficient information on the exploitation of their works and performances from those to whom they have licensed or transferred their rights as well as subsequent transferees or licensees, and the information shall include information on modes of exploitation, revenues generated and remuneration due. (2) The obligation in subsection (1) may be met by complying with a code of practice collectively bargained between relevant representative organisations of creators and the representative organisations of those who exploit their works, taking into account the characteristics of each sector for the exploitation of works.(3) Any such code of practice is to provide that each creator is to be entitled to a statement of income generated under such licence or transfer arrangements at regular intervals during each annual accounting period, and provide an explanation as to how the creator’s remuneration has been calculated referencing any contract terms relevant to the calculation.(4) In the event of failure of a transferee or licensee mentioned in subsection (1) to comply with a code of practice, or in the absence of such a code of practice, the creator shall be entitled to apply to the Intellectual Property Enterprise Court for a detailed account of revenues due to the creator generated from the modes of exploitation referred to in subsection (1), and in the event of failure, the Court may award damages in the amount of any shortfall in the total amount due to him.”
Lord Clement-Jones (LD)
My Lords, my noble friend Lord Foster of Bath has referred to the draft directive on copyrights on the digital single market. Many authors, writers and artists welcome the provisions to balance the playing field for creators announced in that draft directive and would like to see them incorporated in our domestic law through the Digital Economy Bill. Some of my concerns about the timing of the adoption of the directive mirror exactly those mentioned by my noble Friend, Lord Foster.
The directive proposes in article 14 one particularly important safeguard—namely, transparency: a right to regular, timely, adequate and sufficient information on the exploitation of their works and performances from those to whom they have licensed or transferred their rights, including details of modes of exploitation, revenues generated and remuneration due. This right will apply even if copyright has been assigned and will allow authors and performers to assess how their work has been used.
Some assignees and licensees are exemplary, but by no means all. Authors and performers under these provisions will have a right to detailed and full statements on the uses of and revenues from their work, unless such reporting is disproportionate. That in itself would be an enormous improvement on the present situation, whereby authors and artists often do not know how widely their work is used and have no way to check whether payments made to them are correct. This problem can become more acute in the digital age, when work can be disseminated in many ways and there is no physical stock which can be counted to ensure that accounting is correct.
As for music, subscription streaming is set to become the most significant revenue stream for the recorded music market in the near future. Streaming requires a fundamentally new licensing model from those who control the recording and song—lyrical and musical—copyrights, which the digital service providers wish to exploit. A complex model was developed, and is now utilised by most subscription services. The evolution of this licensing process for streaming music has resulted in a number of transparency issues for artists and songwriters which have not yet been fully addressed—not least, the presence of non-disclosure agreements between the digital service providers and the record labels, distributors, publishers and collective management organisations, which mean that artists and songwriters are not always allowed to know the revenue share and minimum guarantee arrangements that each digital service provider uses to calculate what the copyrights from which they benefit are due each month. There is also a lack of clarity over how labels and publishers apply contract terms that impact on how creator payments are calculated.
The amendment would work in a similar fashion to the proposals in the draft directive, ensure that creators can audit the royalties they receive from streaming and other services, and assess the relative merits of different services and business partners. Licensees and assignees already have systems in place for recording usage and revenues and reporting to creators. These systems are increasingly detailed in the digital age, and could easily be adapted to take account of any increased requirements. According to a medium-sized book publisher, reporting on 600 titles on the basis of spreadsheets takes 80 man hours per year, and the average time required for compiling and sending a report on a title is eight minutes. Simpler cases can be dealt with in two to three minutes, while the more difficult ones can take 10 to 15. The advantages far outweigh any cost and would help to make creative careers more attractive. Greater transparency would give a powerful message to consumers as they are generally more willing to pay for copyright-protected works if they know that fair remuneration would reach the original creators.
The directive itself is now subject to further consideration and review and may take 12 to 18 months, at best, to adopt, and perhaps even longer, as my noble friend indicated. As the Minister, or the Minister’s noble friend, reminded me recently, the Government have published a call for evidence on the copyright proposals. When will they take a definite view on the proposals, including these transparency provisions? The UK has an unparalleled opportunity to create a fairer playing field for creators by incorporating these provisions into the Digital Economy Bill, irrespective of whether we want to or can sign up to the directive. The question is whether it will. I beg to move.
The Earl of Clancarty (CB)
My Lords, I fully support the amendment of the noble Lord, Lord Clement-Jones. I do not have much to add to his thorough analysis of the issue other than to say that the right of artists, authors and performers to know what is being done with their work, and to obtain fair remuneration for the exploitation of it, is incontestable. This amendment would, in an effective manner, enshrine that right.
In one sense, information is money. This amendment will doubtless have hidden benefits in that anything that can be of further help to artists, particularly those who are less well off, to survive and thrive, and, perhaps, to become the high earners of the future, is a worthwhile long-term investment and can only be good for the individuals, the creative industries and the UK economy as a whole.
Baroness Buscombe
My Lords, I thank the noble Lord, Lord Clement-Jones, for raising this issue. Our creative industries ultimately depend on the efforts of authors, musicians and other creators, and I agree with the principle that they should be fairly remunerated when their works are used. We want to create an environment where the UK’s creative industries can continue to thrive and retain their world-leading edge. The creative content tax reliefs are one of the Government’s flagship policies, and the film tax relief alone supported over £1 billion of expenditure in the UK in 2015-16. The Government are also investing in skills to create a pipeline of future talent. Since 2013, we have made available up to £20 million match funding to the skills investment fund to help employers address priority skills needs in the screen sector. Over the last 18 months, this has supported more than 500 graduate placements.
The amendment would require those organisations exploiting copyright works via licences to provide the relevant creators with regular information on their use and the revenue they generate, and states that this obligation could be met by complying with a code of practice determined at sector level. It would also provide creators with recourse to court if these requirements are not adhered to. The principle of transparency is an important element of well-functioning markets. I am aware that some creators and their representatives find it difficult to access information on the use of their works owing, for example, to difficulties in negotiating suitable contractual terms. I am, however, happy to confirm to your Lordships’ House that the Government are already engaged in discussions to address this issue. The European Commission has made proposals in this area as part of its current draft directive on copyright, and the UK will actively engage in these debates while we remain a member of the European Union. As such, I hope the noble Lord, Lord Clement-Jones, will understand the Government’s wish to allow this process to develop before considering the case for domestic intervention.
I welcome the noble Lord’s recognition in his amendment of the important role that collectively agreed industry standards can play in this space. Creators and publishers alike have highlighted the role that such standards can play in improving transparency and fairness. Examples in the UK include the Publishers Association’s Code of Practice on Author Contracts, and the fair digital deals declaration operated by the Worldwide Independent Network. I believe that it is worth giving careful consideration to the part that these industry-led initiatives can play, and I hope the debate at EU level will be a chance to explore that. With this explanation, and the assurance that these issues are under active consideration, I hope the noble Lord will withdraw his amendment.
Lord Clement-Jones
My Lords, I thank the Minister for an extraordinarily well-crafted response—it seemed to throw bouquets in various directions, but I am not quite sure where the petals will fall at the end of the day. It was splendidly positive at the outset, and I felt a speech on industrial policy for the creative industries might be coming on. I thank the noble Earl, Lord Clancarty, for his very supportive contribution.
The Minister talked about transparency being an important element of a well-functioning market and went on to talk about codes of practice, the Government’s active engagement in discussions of elements of the EU draft directive, and so on, but she never actually agreed that the principle of transparency should be incorporated into UK law. Clearly, if the EU directive is passed within the two-year period after notice of Brexit is given, it may well be incorporated into UK law. However, the Minister did not say, “Yes, and moreover, given the call for evidence, we have heard the evidence on transparency and we fully support that element of the directive”. It was rather a case of saying, “Let’s keep talking and actively engaging”, and so on and so forth. I suspend disbelief slightly given that the Minister supported the principle but I am not sure she went so far as to support its incorporation into law. That is a rather different matter. We may well return to this issue on Report. In the meantime, I thank the Minister and beg leave to withdraw the amendment.
Lord Collins of Highbury
“( ) Information disclosed from one specified person to another specified person should be used for the purposes of a specific objective only.( ) Where the information is to be used for purposes other than the specified objective, additional approval must be provided.”
Lord Collins of Highbury (Lab)
My Lords, this group includes a wide range of amendments and our debate on it will be one of our key debates on this section of the Bill. Clause 30 allows specified persons to share data for a specified objective. Our amendments seek to define and limit this and to ensure that additional approval is required where there is broadening or leakage
My honourable friend Louise Haigh thoroughly scrutinised this provision in the other place. Certainly, it took me most of Saturday to read what was said in that Committee stage. I do not intend to repeat all the arguments that were made—but I give fair warning that it will take me some time to go through these key elements, given that the principles in these clauses have given rise to concern, certainly in your Lordships’ Delegated Powers and Regulatory Reform Committee.
I start by saying that we on these Benches are completely in favour of effective data sharing across government to achieve public sector efficiencies, value for money, improved public sector services, improved take-up of benefits for the most vulnerable such as the warm home discount, free school meals and, most importantly, an improved experience for those who use public services. We will come to a lot of those issues in later groups today where we have tabled specific amendments.
The public also support these objectives, but their trust is fragile. In recent years we have seen a number of failures in managing data. The Information Commissioner said in her recent briefing distributed to all noble Lords:
“Transparency and a progressive information rights regime work together to build trust”.
This part of the Bill gives the Government considerable powers to share data. But those building blocks in restoring trust that the Information Commissioner and just about everyone else agree are needed are sadly not mirrored in the Bill. That is the crux of today’s debate.
Instead, the building blocks are covered in regulations and codes of practice. As I said, many, including the Information Commissioner and your Lordships’ DPRRC, have stressed the importance of including such measures in primary legislation as opposed to codes of practice. Having read through all the codes of practice, I sometimes asked myself what we were dealing with. Is this Bill really at the stage of being submitted for parliamentary consideration? So much of it needs further work and further consultation that I really do wonder whether it should be in this House at all at this stage. This is something that we may have to return to.
A specified objective to permit disclosure must meet conditions set out in subsections (6) and (10) of the clause, but they are so all-encompassing that it is difficult to see anything that the public sector does that is not covered by the clause. The published codes give examples of objectives that would fall foul of these criteria, including those that are punitive, and it is useful to see those examples. But it is a real concern that such a clarification of the power is not in the Bill. Why does the Bill not explicitly contain or exclude a punitive objective? What are we avoiding here?
The codes also give examples of objectives that are too general rather than too specific, and it would help if the Minister could say exactly where that line could be drawn. Not only are the objectives not limited in the Bill but the bodies that can share or receive data are not particularly limited either. Subsection (3) states:
“A person specified in regulations under subsection (2) must be … (a) a public authority, or (b) a person providing services to a public authority”.
This is another area that gives people a lot of concern.
In the Government’s original consultation on the Bill, they stated their intention to proceed with proposals to enable non-public sector organisations that fulfil a public function on behalf of a public authority to be in scope of the powers. In that consultation, they said:
“We will strictly define the circumstances and purposes under which data-sharing will be allowed, together with controls to protect the data within the Code of Practice. We will set out in the Code of Practice the need to identify any conflicts of interest that a non-public authority may have and factor that information in the decision-making”.
I read the code of practice. Paragraph 71 refers to this and mentions non-public sector organisations. It says that,
“an assessment should be made of any conflicts of interest that the non-public authority may have”—
but it does not give any examples of what those conflicts of interest might look like. I hope that in his response the Minister will be able to give more examples of what they might look like. We will come back to this issue in our consideration of other groups of amendments to this section.
The code also states that data-sharing agreements should,
“identify whether there are any unintended risks involved with disclosing data”,
to an organisation. In the Commons, my honourable friend Louise Haigh—I congratulate her on this work—raised the behaviour of Concentrix, which was mentioned again on the radio today. It was contracted by HMRC to investigate tax credits and fraud. But the code of practice does not list any examples of risks or set out how specified persons might go about ascertaining them. We heard on the radio today that that contract and the mismanagement of the data has caused huge distress to tens of thousands of people, and that it is ongoing.
The code also states:
“Non-public authorities can only participate in a data sharing arrangement once their sponsoring public authority has assessed their systems and procedures to be appropriate for secure handling data”.
It does not give any sense of what conditions they will be measured against and how officials should assess them. I hope it is not going to be on the same basis that the HMRC gave the contract to Concentrix. It is that that we need to know about. This draft code—and I will keep coming back to it—is in an extremely draft form and needs substantially more work done on it. I hope that the noble Lord will assure us that these codes will be revised and I hope that, within the revisions, he will acknowledge that substantial improvements will be made.
Baroness Janke
My Lords, I, too, wish to speak to this group of amendments, many of which are in my name and that of my noble friend Lord Clement-Jones. As the noble Lord, Lord Collins, said, we on this Bench support the sharing of information. I have been a local councillor for many years and I certainly see the benefits of being able to share information. It would make people’s lives a great deal easier and enable them to access benefits and exemptions that they have not easily been able to in the past. We feel, however, that far more privacy safeguards are needed in this part of the Bill. The amendments introduce some tightening of the terms of the Bill, but more clarity is needed, with a number of principles involved in this.
Many of the people to whom the information relates are among the most vulnerable: they are people who are unemployed or on benefits, perhaps with children involved, and not necessarily in a position to understand what is happening if there is no transparency and some idea of consent in sharing the information. It is also important that we are assured that data being shared are minimised—that as little as possible is shared. There needs to be a clear justification for sharing data; the purposes must be clear and the definitions governing that must be tight.
The noble Lord, Lord Collins, mentioned Concentrix. We know that there have been other issues with the Government’s breaches of information and that government departments are not always as well equipped to deal with sensitive information as they might be. It is therefore all the more important that we have much more tightly defined terms in the Bill. I agree with what the noble Lord, Lord Collins, said about our not having those before us at the moment and about what is needed to reassure us on that if we cannot see them at the moment. The codes of practice are dealt with in the next group of amendments, and we will want to say a few words about them then, but there needs to be much more rigour and clarity, and many more conditions and safeguards to protect vulnerable people of the future, not just from wilful misuse of their personal information but from errors that could pursue them throughout their lives. I hope the Minister will be able to reassure us about this and I look forward to his comments.
Baroness Byford (Con)
My Lords, I shall speak to my Amendment 85, which is linked with this group. I thank the noble Lord, Lord Collins, for his introduction. I believe in data sharing; I declare that straightaway. However, it needs to be well managed, because, as the noble Baroness has just stressed, we do not want information to be used in a way that is, unfortunately, not fair to some of the very vulnerable families of which she has spoken.
Although the amendment moved by the noble Lord, Lord Collins, deals with Clause 30, my amendment relates to Clause 33. I have asked that Clause 33(2)(c) to (f) be deleted, if only to give me an opportunity to express my concerns about this aspect of the Bill. In these two clauses, we are talking about information being disclosed by gas and electricity companies and information being given by other authorities to gas and electricity suppliers. That is why one or two of my thoughts went searching as to why they would be in this group.
My amendment is very much a probing amendment and seeks clarification. The Explanatory Notes state that these paragraphs are included to enable personal information to be used in,
“criminal investigations, civil or criminal legal proceedings or the prevention or detection of crime or the prevention of antisocial behaviour”.
My amendment refers particularly to subsection 2(c) in that group. Will the Minister explain in what way the gas and electricity suppliers will be involved in such activities other than reporting persons and their behaviour to the police? I do not quite see what responsibility the gas or electricity suppliers have with this part of the Bill in that context.
I also confess considerable alarm at the prospect of power suppliers having access to very personal and private information to enable them, as I understand it, to investigate, detect, prevent or prosecute anything outside the realm of their normal expertise. Surely, their original expertise was the supply, maintenance and, where necessary, repair of power lines and pipes, but in this part of the Bill it seems to go very wide. I shall speak to other amendments later, so I will not go on at great length at this stage, but this part of the Bill raises questions for me. I can see some of the advantages of data sharing, but how do we define antisocial behaviour and what does that have to do with gas and electricity boards? I may be wrong; I look forward to hearing from the Minister.
Baroness Hamwee (LD)
My Lords, I come rather late to the table with the Bill, but fresh, if that is the term, from the Investigatory Powers Act, as does the noble and learned Lord. Like me, he may have reflected on the fact that one of our basic documents in debating the Investigatory Powers Act was called by David Anderson A Question of Trust; the issue of trust is equally relevant to the provisions in the Bill. Like other noble Lords, I see the value of sharing information but—and for me it is a big “but”—with constraints, limits, conditions, checks. I would say balances but I do not think they always do the job. It would be too easy in this area to let convenience obscure other considerations. I have concerns about fundamental issues and I have difficulty, as I suspect do other noble Lords, knowing quite what to raise where, but my most fundamental concern is about respect for privacy. The use of bulk data, which we will come to, is bound to raise this.
I share concerns which have been raised about providers—not the public authorities and public services themselves, but the providers. Maybe we have to be realistic, as our public services are now provided so much through commissioning and procurement but, as I read the Bill, the regulations will not be required to list specific providers. I may be wrong about that. If providers have to be included, it would be appropriate for the public to be reassured, for instance, that the public authority in question maintains a register of its providers and publishes it. Maybe, also, all records of information held under these provisions should be destroyed at the termination of the provider’s contract.
The purposes set out here include well-being, which includes the contribution to society. I am not going to let this pass without saying that that risks being read, and I read it, as very paternalistic. I cannot see how it properly covers anything that is not covered by the other well-being provisions. Others have suggested that Clause 30 might lead to profiling. There is certainly a concern over health information, which we will come to separately. I also find it quite hard to think: if you are not contributing to society, are you not deserving of or entitled to public services? I think it is a very unfortunate term to use in legislation.
I share the concerns about Clause 33. At the very least, to share personal information to prevent anti-social behaviour which is not a crime—we know it is not a crime; you do not even need to go to the legislation about anti-social behaviour to know that, because it is referred to separately from crime—is going several steps too far. I start—I am not suggesting that others do not—from the premise that personal information should be kept confidential unless there is good reason not to do so, and if it is not confidential it needs to be treated with the greatest care and sensitivity. Respect for private life is one of our basic values. The Minister would be able to quote Article 8 of the European Convention on Human Rights—as I will do—without reading it. It says that there are “necessary”—I stress that word—exceptions in the interests of national security, public safety, the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals or the protection of the rights and freedoms of others. I support the amendments—I think they are in this group—that would import the term “necessary”.
Article 8 refers to disorder and crime, but—I will not be surprised if the Minister quotes some case law at me on the definition of “disorder”—I would have thought that in this context it must refer to something a good deal more serious than what may fall within “anti-social behaviour”.
The Investigatory Powers Act includes the much-welcomed and much-discussed “privacy” clause; during the debate on that we considered the requirements of both necessity and proportionality. The Act also refers specifically to the Human Rights Act and to crime as a consideration when it is a serious crime, and it refers to using “less intrusive means”. These points are all relevant to this debate.
For my part, this amounts to support for all the amendments in the group and a concern to persuade the Government to look at the issues through the lens of rights to privacy as well as efficiency. Most citizens accept—indeed, expect—that in a digital age government departments will share information, but with narrower purposes and stricter checks than the Bill offers.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I am obliged to noble Lords for their observations on this group.
The powers in Chapter 1 of Part 5 will support the delivery of better services to achieve specified objectives, such as providing assistance to those suffering, for example, from fuel poverty. Your Lordships would all appear to be agreed on the need for effective data-sharing, but when we talk about that we must mean data-sharing that is secure and commands the trust of the general public—that is sufficiently ring-fenced to give confidence in the whole process. No one would take issue with that.
In that context I make this observation at the outset. It applies not only to this group of amendments but to further groups that we will come to this afternoon and perhaps much later this evening. We have to look at the provisions in this Bill in the context, first, of the Data Protection Act 1998, because the provisions of that Act apply in the context of this Bill. Therefore, as we look at the Bill, we must remember the protections that already exist in law with regard to data in this context. First, processing of personal data must always be fair and lawful. Secondly, data cannot be processed in a way that is incompatible with the purpose for which they were gathered. Thirdly, personal data must be,
“adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed”.
The personal data should be “accurate”, so a subject may be in a position to demand that they should be corrected.
Furthermore, on the point made by the noble Baroness, Lady Hamwee, personal data can be kept no longer than is necessary for a particular objective. Where, therefore, they have been employed for a particular objective—or a party has received them for a particular purpose—and a need to keep the data for that purpose can no longer be displayed, they cannot be retained.
Baroness Hamwee
My Lords, will the noble and learned Lord address—in a later group, if not this one—why the terminology in the Bill is “personal information” rather than “personal data”, which might have made the marrying-up of the legislation a bit easier?
Lord Keen of Elie
Indeed I can. The reason is that in the present context, personal information extends to bodies corporate and other personalities that are not otherwise covered by the first definition. I will elaborate upon that later but that is why there is a distinction between the two terms. We can see that the two terms substantially overlap but it is only because of that technical distinction that they are employed in this way. I hope that that satisfies the inquiry from the noble Baroness, Lady Hamwee.
The Data Protection Act not only circumscribes the use of data in very particular ways—for example, personal data must be processed in accordance with the data subject’s rights under the Act and be held securely to guard against unlawful or unauthorised processing, which addresses a point that many of your Lordships referred—but provides remedies in the event that those obligations are not adhered to. Generally speaking, that involves a complaint to the Information Commissioner.
Of course there have been lapses in data control. We are well aware of many of them. The noble Lord, Lord Collins, alluded to Concentrix, where there clearly appeared to have been lapses such that the Revenue terminated its contract without further notice in November of last year. We recognise that there are risks associated with data and data-sharing. That is why we emphasise the need to look at the provisions in the Bill not only alone but in the context of the Data Protection Act.
Lord Collins of Highbury
There were obviously risks associated with the contract for Concentrix and the fall-out from that contract is certainly ongoing, because of the people who have suffered hardship. The Government will undoubtedly have to investigate even more because at the moment, we are dealing only with the people who have appealed. Can the Minister tell us exactly why the existing provisions for a risk assessment did not stop this contract from going sour?
Lord Keen of Elie
As the noble Lord is aware, Concentrix was not the only incident in which there were data breaches. They have happened not only in the context of parties operating with government but also entirely in the private sector. So far as I am aware, no one has made a claim for infallibility where data protection is concerned. Albeit that we aspire to the highest standards in data protection, we are not making claims of infallibility.
The noble Lord, Lord Collins, also referred in the present context to the GDPR, which will come into effect as a European regulation in May 2018. I reiterate that the provisions in Part 5 of the Bill are compatible with the GDPR. The noble Lord appeared to take some issue with that term, but let me be clear: the provisions of Part 5 are drafted in such a way as to be compatible with the regulation. When the regulation comes into direct force, we will look at the provisions of the Act and the codes of practice to ensure that they are consistent with it. That is the way in which these things are done. The regulation is not yet in force and will be applied to the existing statutory structure from May 2018. I reassure him that it has always been intended that Part 5 of the Bill should be compatible with the regulation, for very obvious reasons.
Then there is the matter of the draft codes of practice. At this stage they are, of course, a draft. Those drafts have incorporated comments and advice from practitioners right across the public sector, from the Information Commissioner and from the devolved Administrations, so they have brought in that body of knowledge at this stage.
Baroness Byford
I specifically asked why the responsibility has been placed on gas and electricity suppliers to have regard to some of the things stated in the Bill, and I would be grateful for an answer. I do not mind if the answer is not given now, but if that could be clarified I would be grateful.
Lord Keen of Elie
I am perfectly prepared to write to my noble friend to clarify that point, and I will place a copy of any letter in the Library.
Lord Collins of Highbury
I thank the Minister for his response. One of the things that we will encounter as we go through this section is the fact that the 1998 Act has some fundamental principles but that we have the Bill before us because there is a need for greater clarity. The world has changed in the past 20 years, certainly in the way that we handle and interrogate data. We no longer simply say that this set of data will go to that person and so on. We do not necessarily even have to share the whole dataset. The point is about how one might interrogate data. It is a very different world. I am not suggesting for one moment that errors do not occur, accidents do not happen and mistakes cannot happen, but in the modern world we conduct risk assessments to understand how we can minimise those things. That is what I want properly addressed when we come back to some of these issues.
The Minister says that the Government will consider the report of your Lordships’ committee. If there are to be further amendments, I hope that we will have time to consider them and even to put down our own amendments to ensure that the principles about which we are concerned will be able to be addressed. With those comments and, if you like, fair warnings, I beg leave to withdraw the amendment.
Informal European Council
(7 years, 10 months ago)
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The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)
My Lords, with the leave of the House, I shall now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows.
“Mr Speaker, before I turn to the European Council, I am sure the whole House will want to join me in sending our congratulations to Her Majesty the Queen as she marks her Sapphire Jubilee today. It is testament to Her Majesty’s selfless devotion to the nation that she is marking becoming our first Monarch to reign for 65 years not with any special celebration but, instead, by getting on with the job to which she has dedicated her life. On behalf of the whole country, I am proud to offer Her Majesty our humble thanks for a lifetime of extraordinary service. Long may she continue to reign over us all.
Turning to last week’s informal European Council in Malta, Britain is leaving the European Union but we are not leaving Europe—and a global Britain that stands tall in the world will be a Britain that remains a good friend and ally to all our European partners. So at this summit, we showed how Britain will continue to play a leading role in Europe long after we have left the EU, in particular through our contribution to the challenge of managing mass migration, through our special relationship with America and through the new and equal partnership that we want to build between the EU and an independent, self-governing, global Britain. Let me take each point in turn.
First, on migration, the discussion focused in particular on the route from Libya across the central Mediterranean. As I have argued, we need a comprehensive and co-ordinated approach, and that is exactly what this Council agreed. This includes working hard in support of an inclusive political settlement to stabilise Libya, which will help not only to tackle migration flows but to counter terrorism. It means working to reduce the pull factors that encourage people to risk their lives, building the capacity of the Libyans to return migrants to their own shores, treat them with dignity and help them return home. It means looking beyond Libya and moving further upstream, including by urgently implementing the EU’s external investment plan to help create more opportunities in migrants’ home countries and by helping genuine refugees to claim asylum in the first safe country they reach. It also means better distinguishing between economic migrants and refugees, swiftly returning those who have no right to remain and thereby sending out a deterrence message to others thinking of embarking on perilous journeys. The Council agreed action in all of these areas.
Britain is already playing a leading role in the region and at this summit I announced further steps, including additional support for the Libyan coastguard and more than £30 million of new aid for the most vulnerable refugees across Greece, the Balkans, Egypt, Tunisia, Morocco, Algeria, Sudan and Libya. Britain is also setting up an £8 million special protection fund to keep men, women and children in the Mediterranean region safe from trafficking, sexual violence and labour exploitation as part of our commitment to tackle modern slavery. The Council agreed with my call that we should do everything possible to deter this horrific crime, including by introducing tough penalties for those who trade in human misery and by working together to secure the necessary evidence for prosecutions that can put these criminals behind bars where they belong.
Turning to America, I opened a discussion on engaging the new Administration, and I was able to relay the conversation I had with President Trump at the White House about the important history of co-operation between the United States and the countries of Europe. In particular, I confirmed that the President had declared his 100% commitment to NATO as the cornerstone of our security in the West. But I also made clear that every country needs to share the burden and play its full part, meeting the NATO target of spending 2% on defence. It is only by investing properly in our defence that we can ensure we are properly equipped to keep our people safe.
I was also able to relay my discussions with President Trump on the importance of maintaining the sanctions regime on Russia in response to its actions in Ukraine. I very much welcome the strong words last week from the new US ambassador to the United Nations, Nikki Haley, in confirming America’s continued support for these sanctions.
Of course, there are some areas where we disagree with the approach of the new Administration, and we should be clear about those disagreements and about the values that underpin our response to the global challenges that we face. I also argued at the Council, however, that we should engage patiently and constructively with America as a friend and ally—an ally that has helped guarantee the longest period of peace that Europe has ever known. We should be clear that the alternative of division and confrontation would only embolden those who would do us harm, wherever they may be.
Finally, on Brexit, European leaders welcomed the clarity of the objectives that we have set out for the negotiation ahead. They warmly welcomed our ambition to build a new partnership between Britain and the European Union that is in the interests of both sides. They also welcomed the recognition that we in Britain want to see a strong and successful European Union, because that is in our interests and the interests of the whole world.
On the issue of acquired rights, the general view was that we should reach an agreement which applied equally to the other 27 member states and the UK, which is why we think a unilateral decision from the UK is not the right way forward. As I have said before, however, EU citizens living in the UK make a vital contribution to our economy and our society, and without them we would be poorer and our public services weaker. So we will make securing the reciprocal agreement that will guarantee their status a priority as soon as the negotiations begin, and I want to see this agreed as soon as possible, because that is in everyone’s interests.
Our European partners now want to get on with the negotiations. So do I, and so does this House, which last week voted by a majority of 384 in support of the Government triggering Article 50. There are, of course, further stages for the Bill in Committee and in the other place, and it is right that this process should be completed properly, but the message is clear to all: this House has spoken, and now is not the time to obstruct the democratically expressed wishes of the British people. It is time to get on with leaving the European Union and building an independent, self-governing, global Britain. I commend this Statement to the House”.
Baroness Smith of Basildon (Lab)
My Lords, I thank the noble Baroness for repeating the Statement today and concur with her congratulations to Her Majesty the Queen on her 65th anniversary as the nation’s monarch. I hope that Her Majesty is able to commemorate the event in some way, but I suspect for her that this is an anniversary also tinged with sadness at the loss of her father. He endeared himself to the nation, and his early death was a terrible shock. She had not expected to be Queen at such a young age. That was at a time of great change in the world, which is also the case today. It was also a time when, following the war, there were many refugees across Europe. Here we are, 65 years later, and with yet another European summit discussing how to prevent further refugees and mass migration, this time from the Middle East and north Africa.
The Statement talks about the pull factors that lead to people seeking safety and a better life away from their homes. We should always keep in our mind the desperation that leads people to risk their lives and those of their families in leaving their homeland, often leaving behind all their possessions, other family and friends, and often paying large amounts to criminals. In looking at the push factors too, can I ask the noble Baroness about the EU external investment plan? The Statement refers to creating more opportunities in migrants’ home countries. Can she expand on that? I am not sure of the details at all. Is it limited to economy and employment opportunities or is it more linked to security? It would be helpful to have some more information and also to know how it is going to be implemented and monitored, and how success will be measured.
Can the noble Baroness say more about the conversations the Prime Minister had with President Trump when she was at the White House? She said she was able to relay the conversations that she had with the President on the relationship between the USA and European countries. I think we are all quite interested in that conversation and would be interested to hear more. The Prime Minister’s assurance that the President had declared his 100% support from NATO was particularly welcome, but we have not yet heard it from his own lips—or, perhaps more importantly, from his own Twitter account. What was the response from her European colleagues on this point?
The Minister had a number of side meetings but apparently not with the German Chancellor Angela Merkel, as they were able to discuss their issues informally in the margins outside the arranged meetings. Those all-important private discussions can be very productive in building relationships and being frank and open with European leaders, so it makes the situation even more difficult that the Prime Minister then had to pack her bags and leave while the remaining 27 countries further considered other issues relating to the EU that we cannot be part of. What plans do the Government have to ensure that we do not lose out by not being at the table, not just for the formal parts of the meeting where they are discussing the EU post Brexit but for those informal discussions that lead to trust and develop the relationships that will be all-important as we move forward?
Malta has been a close and important ally of the UK over many years; it is the only instance of an entire country being awarded the George Cross. Obviously it is important that we maintain what we would call that “special relationship”, so what are the Government’s plans to ensure that that relationship continues post Brexit? The Prime Minister met the Prime Minister of Spain. Did she discuss Gibraltar, and had she met the Gibraltarian First Minister before she was able to raise any such issues with the Spanish Prime Minister?
On the issue of EU citizens, I do not think today’s Statement gives anything like the reassurance they require so that they can continue with their lives, their jobs, their homes and their families in this country. It is in the Prime Minister’s gift to say so. Even UKIP said so on television yesterday, so why the Prime Minister cannot make such a commitment I have no idea. It is about time we heard something stronger from the Prime Minister on this issue.
The section in the Statement regarding Brexit says the European leaders,
“warmly welcomed our ambition to build a new partnership between Britain and the European Union that is in the interests of both sides. They also welcomed the recognition that we in Britain want to see a strong and successful European Union”.
I hope that is not an overoptimistic view. We have some tough negotiations ahead in which we have to get the best possible deal that we can in the interests of the UK and UK citizens. If there is any complacency at all that these negotiations are going to be easy, I do not see how we can get the best deal. I hope the noble Baroness can assure me that this is not an overoptimistic view and that there is awareness of the difficult discussions and negotiations that are going to take place.
On the last part of the Statement, I am sure I am not the only one in your Lordships’ House who is getting tired of the Government going on and on about not “obstructing”—I think that is the latest phrase—“the democratically expressed wishes of the British people”. I do not know how many times this has to be said about blocking, obstructing, wrecking or whatever is the latest word the Prime Minister has found in her thesaurus. I say to the noble Baroness that asking questions and making suggestions for amendment is not blocking, obstructing or wrecking; it is called parliamentary democracy. That should be welcomed by the Government because that is the way in which we will get the best deal, not just by accusing people who ask questions of blocking. I do not know why those who are in charge of the negotiations are so frightened of questions, because time and again we hear that only by questioning and scrutiny do we get better legislation, and that is all this House would ever seek to do.
Lord Newby (LD)
My Lords, I join the Prime Minister and the Leader of the House by congratulating the Queen on her Sapphire Jubilee—a truly remarkable achievement.
With every passing Council meeting, we see the influence of Great Britain and the Prime Minister diminishing. In October, she made a five-minute speech at 1 o’clock in the morning. In December she was pictured standing alone, desperately looking for someone to talk to. This time, she was rebuffed as she offered to act as a bridge between Europe and the USA. One does not need to be an engineer to know that, to be sustainable, a bridge needs firm foundations on both sides of the stream. At the moment the UK is demolishing one set of foundations—namely, those on the European side of the stream—and therefore is it surprising that countries within the EU, from the largest to the smallest, have treated with almost total disdain the Prime Minister’s suggestion that, in our new semi-detached state, we might act as a bridge?
One of the more useful parts of the Prime Minister’s visit to Malta might have been the formal meeting on her agenda with the Chancellor of Germany. Could the Leader of the House explain why that formal meeting was cancelled? Admittedly, the two of them did chat briefly while walking down the street, but frankly that does not constitute a sensible degree of conversation with the most important of our EU partners. Will the noble Baroness say what plans the Prime Minister has to have a substantive discussion with Angela Merkel, to make good the fact that they had very little time, while walking down the street on a sunny day in Valletta, to talk about anything of great substance? This was an extremely short visit by the Prime Minister. As at previous Council meetings, she had to leave after the pudding and probably even before the coffee was served. Not surprisingly, perhaps, she was not present as the other leaders of the EU discussed how they might make preparations for the 60th anniversary of the Treaty of Rome. Will the Leader of the House say whether she expects the UK Government to be represented at those celebrations when they eventually take place and, if so, by whom?
The most substantive part of the discussions in Malta were about migration from Libya. We welcome the fact that it was possible to make progress, and the Prime Minister takes great satisfaction from the fact that she played a significant part in those negotiations. May I echo the question asked by the noble Baroness, Lady Smith, about how the Government expect to play such an important, useful part in future, when they are not even at the table at which those discussions take place? Of course, the vast bulk of the refugees from Libya is going to Italy. We have discussed before in your Lordships’ House the extent to which her Majesty’s Government are making good their commitment under the Dubs amendment to bring child refugees who find themselves in Italy to the UK. I apologise if I have got the figure wrong, but I think that when it was last discussed the Government said one person from the Home Office had been sent to Italy to help in that process. Will the noble Baroness confirm whether that is indeed the case, whether she thinks that to be an adequate response to this humanitarian crisis, and how many children have come to the UK from Italy under the provisions of the Dubs amendment?
Finally, on Brexit and the vexed question of acquired rights, many people in the country just do not understand the Government’s attitude in denying EU citizens living in the UK the knowledge that they will be able to remain post Brexit. The Government seem to be unaware of the crisis that is developing as a result of this policy. Those who saw the BBC news in London will have seen what is happening to the recruitment of EU staff in hospitals in London. Again, I will be corrected if I am wrong, but I think that the figure given of the number of nurses coming to London hospitals has, since last year, fallen by approximately 90% That is an extraordinarily worrying phenomenon, given that we are far from meeting the staffing requirements that the NHS has set itself, and it is by no means clear where else the Government expect those nursing numbers to be made up.
One reason why people are unwilling to come at the moment is that they feel that the attitude of the Government in respect of existing EU citizens gives them no confidence that they will be welcome. Another is that they have no sense of how the rules are going to operate in future. So while the Government have many things about which they do not want to give a detailed account, could they say how they intend to approach the question of migration from the EU of people whose skills we need—whether they are the brightest and the best, at a very high skill level, whether they are medium-skilled people or whether they are the kind of people whom we will require in future to enable our agricultural, horticultural and hospitality sectors to survive and prosper?
Baroness Evans of Bowes Park
I am sorry to start on a discordant note, but I am afraid that I disagree with the noble Lord’s assessment of the Prime Minister’s role at the summit. In fact, it showed that, once again, while we are a member of the EU, we will continue to play a full part. The Prime Minister opened the discussion on migration and was specifically asked to lead the discussion over lunch about the new American Administration. That is quite clear evidence that, while we remain in the EU, we will continue to play a central role in discussions. As I have said, we will also continue to make sure that we have a strong relationship with our EU partners as we go forward.
On some of the other comments and questions raised, the noble Baroness, Lady Smith, asked about the EU’s external investment plan, which, as she will know, was agreed in late 2016. It is now being considered by the European Parliament, and we are eager for it to be implemented as soon as possible. It is focused on creating economic opportunities in countries of origin and transit to reduce push factors.
The noble Baroness also asked about the conversations that the Prime Minister had about NATO. While I cannot speak for the President’s Twitter account, I can say that the Prime Minister was quite clear that she did get confirmation from President Trump that he is 100% behind NATO, and this was very much welcomed by our European partners.
On the Prime Minister’s discussions with Chancellor Angela Merkel, part of the reason that they were able to have full and frank discussions during the walkabout was that the initial meeting on migration finished quite early, so they had more time. As two women who get to the point, it is quite a good sign of the positive relationship that they have that they can discuss what they need to in a timely fashion.
Both the noble Baroness and the noble Lord asked about our relationship with the EU. Once again, I can say that we are absolutely committed to maintaining good relations with our EU partners; we want the best deal for Britain and the UK, and we believe that it is only right that the 27 continue to discuss their approach to our negotiations. We want to make sure that both sides have the most fruitful negotiations possible, and they need to prepare for those just as we are preparing for them in this country.
On the status of EU nationals living in the UK and UK nationals living abroad, as we have said, we are very keen to try to come to an agreement as soon as we can. In conversations with EU leaders, they have made it very clear that they want to discuss the status of nationals as part of the negotiations. There is good will on all sides, and I believe that the readout of some of the conversations that the Prime Minister had with the Prime Minister of Spain shows that. That is the position that the EU leaders have taken and one that we have to respect, but it is certainly a priority, and the Prime Minister once again showed that by raising it with her counterparts.
I assure the noble Baroness that we are all very clear that discussions and negotiations will be difficult and challenging, but we believe and are confident that it is in in the interests of the EU and of this country to come to the best deal that we can. We are starting from a strong position of wanting the best for the EU and for this country, so we are confident that we will get to a deal that we can all be happy with.
In terms of parliamentary scrutiny, the noble Baroness and all noble Lords will be aware that there has not been a sitting day since the referendum when Parliament has not discussed, debated or scrutinised Brexit in one form or another. There have been 70 parliamentary debates already on Brexit, as well as over 30 Select Committee inquiries. We understand and want the scrutiny of Parliament and Parliament’s involvement in helping with these negotiations. As I have said, I think that we are making good progress on that already.
Baroness Goldie (Con)
My Lords, before we proceed to Back-Bench questions, I invite your Lordships to observe the normal rotational pattern of posing questions to try and ensure fairness of opportunity across the Chamber.
Lord Howell of Guildford (Con)
My Lords, I very much welcome the Statement and, in particular, the congratulations that were offered to Her Majesty. I also welcome the very robust response that the noble Baroness gave. Does she agree that there seems to be a delusion in the other place, and maybe even in parts of this House, that ahead lies some neatly tied-up and bundled bespoke deal that will comprehensively cover all of our problems? Would it not be better to explain at this stage that we will see a whole range of sector-specific trade deals? For example, there will be deals on defence—such as those the Prime Minister addressed in Malta—on migrants and refugees, and on crime. These are all practical arrangements, which will be required in order to build a new relationship with the European Union and other independent states. Would it not be better to explain this than for us to believe that a marvellous, complete deal will emerge after the negotiations? It will not.
Baroness Evans of Bowes Park
I thank my noble friend for that question. I think that we are all under no illusion about the breadth and depth of the relationship we have with Europe at the moment and the scope of the negotiations. Some areas will no doubt be easier to come to an agreed position on than others, but we are determined to go in with a positive and optimistic frame of mind and to achieve a deal that works best for this country. We believe that our European partners will want to work with us to ensure that we create a new and positive partnership for both sides.
Lord Liddle (Lab)
My Lords, did the Prime Minister, in her introduction to the European Council on the relationship with the United States, or in her walk with the Chancellor of Germany around the streets of Valletta, congratulate Mrs Merkel on her telephone call with President Trump, in which Mrs Merkel very clearly said that we all have to respect our international obligations to refugees? Did the Prime Minister not feel a certain sense of shame that, in her own encounter with President Trump in the White House, she did not have the courage to make that point when he told her of his impending executive orders?
Baroness Evans of Bowes Park
The Prime Minister has been very clear that we believe the ban is divisive and wrong and that it is absolutely not a policy that we would pursue. She had a good conversation with Chancellor Merkel which covered a whole range of issues.
Lord Hannay of Chiswick (CB)
My Lords, when the Prime Minister introduced her White Paper and Lancaster House speech—the Statement said that it was welcomed, particularly the reference to a new partnership, which I think is a very good label to give it—did her colleagues indicate whether they would start negotiating on the new partnership as soon as Article 50 is triggered, or do they still hold to the Commission’s point of view that the negotiations on divorce have to come first and that the other negotiation can only be consecutive? Secondly, did she find that all 27 of her colleagues agreed with the view held by herself and the Home Secretary that President Trump’s travel ban is not only wrong but also extraordinarily likely to lead to increased radicalisation in Muslim countries, which can only put European countries at greater risk?
Baroness Evans of Bowes Park
As I said in the Statement, the Prime Minister has said that our European partners want to get on with the negotiations. We all want to move on so that we can come to a good deal. As I have also said, we have been very clear that we believe the ban is divisive and wrong.
Baroness Ludford (LD)
My Lords, will the noble Baroness the Leader of the House, whom I thank for repeating the Statement, tell us what words President Trump used when he gave his commitment to NATO? My understanding is that the Prime Minister said that he gave a 100% commitment to NATO, but I have not seen the words used by President Trump. It is rather similar to the occasion when Mr Gove asked the President whether Britain would be high up in the queue for a trade agreement. I do not think that I saw the words used. This is more than quibbling, because we need to know what the real commitment and intentions of the President of the United States are. Secondly, will the noble Baroness explain why it is a sequitur that, because we want an agreement with the 27 on acquired rights, the UK cannot therefore make a unilateral start on that? I suggest that that is just another pretext. If the UK showed good will by giving a unilateral guarantee, which morally and economically is the right thing to do, that would be the basis for an agreement. As the noble Baroness well knows, there is cross-party support in this House and way beyond it for the Government to do that rather than keep finding new excuses.
Baroness Evans of Bowes Park
As I was not in the room when President Trump and the Prime Minister had a conversation, I cannot give the noble Baroness a verbatim account. However, I can tell her what the Prime Minister has told us: that President Trump confirmed that he was 100% behind NATO. I believe that he nodded and agreed with that when he was standing at his podium. However, I am afraid that I was not there any more than she was.
As I have said, I cannot say any more about the situation regarding the status of EU nationals. We have been very clear that this is a priority for us and that we want to come to an agreement as quickly as possible. However, we also have to respect the position of our EU partners. We will try to address this issue very quickly. The Prime Minister has been extremely clear, as have I and all my Front Bench colleagues, that we hugely value the contribution of EU citizens here, and that this is a priority for us.
Lord Pearson of Rannoch (UKIP)
My Lords, further to that point, the Statement says that the general view was that mutual recognition should take place. Which of the 27 member states do not agree with that? Is it not rather depressing that the Prime Minister has already made weeks ago an offer of mutual recognition for their 3.5 million-plus people living here and our 1.2 million people living there? Is it not very disappointing that they have not already agreed that? On the question of NATO, could the noble Baroness tell us which of the EU nations are actually refusing to pay their 2% of GDP? Is not President Trump quite right in insisting that they should?
Baroness Evans of Bowes Park
As I have said, we believe there is good will on all sides to look at the status of both EU nationals in the UK and UK nationals in member states. We consider this a priority. We believe it is something on which we will have very constructive early discussions with our European partners. We have also said in relation to NATO—the Prime Minister discussed this over lunch—that we want to encourage other European leaders to deliver on their commitment to spend 2% of their GDP on defence. We believe that a number of European countries are actively considering that and will be looking to do it in due course.
Lord Forsyth of Drumlean (Con)
My Lords, is it correct, as reported in the newspapers, that the Spanish leader has indicated that he would be very happy for British residents in Spain to enjoy the same rights as they do at present? If that is the case, is it not wrong to criticise the Prime Minister for arguing that we should get on with moving Article 50 so that there is an opportunity for those negotiations to continue? Could not the criticism that the Prime Minister should take a moral lead apply equally to the Spanish Prime Minister or to any of the other European leaders? The problem here is Europe refusing to guarantee the position of British citizens in Europe. My right honourable friend the Prime Minister is surely right to think about them as well as EU citizens living here.
Baroness Evans of Bowes Park
Certainly, the fact that the Prime Minister and the Prime Minister of Spain had constructive discussions is very positive. As I said, it shows that there is good will on all sides to try to resolve this matter as quickly as possible.
Lord Hain (Lab)
My Lords, is it not striking how often government Ministers say how very, terribly, extremely influential the Prime Minister is? I do not recall that ever being said about Tony Blair, Gordon Brown or, for that matter, Margaret Thatcher. They always were very influential.
Baroness Evans of Bowes Park
I am telling you she is influential because you are asking me.
Baroness Smith of Newnham (LD)
My Lords, is not the point of a negotiation or a package of negotiations of the sort we will see with withdrawal that we will start the negotiations but nothing will be agreed until everything is agreed? Is not the danger of looking at reciprocal agreements on the rights of EU and UK citizens that nothing will be decided until the day we leave the European Union, which will be far too late to give certainty to EU nationals currently resident in the United Kingdom—something that we could do unilaterally?
Baroness Evans of Bowes Park
I can only repeat what I have said in answer to all the questions on this, which is that we are looking for an early agreement.
Lord Kilclooney (CB)
My Lords, I welcome the Statement repeated to the House this afternoon, especially the assurance given by the Prime Minister that President Trump will be 100% behind NATO. As almost one-quarter of the European Union countries refuse to join NATO, when can we have a 100% guarantee that the nations of the European Union will also support NATO?
Baroness Evans of Bowes Park
We are very clear that NATO is the cornerstone of the UK’s defence and security, and our commitment remains as strong as ever. As I said, during the lunch the Prime Minister discussed our commitment and that of our European partners to NATO. I think that there was general agreement on the importance of the organisation going forward.
Lord Cunningham of Felling (Lab)
My Lords, last week in public session, evidence was given to one of this House’s sub-committees of the European Union Select Committee to the effect that, going forward, agricultural industries will require between 90,000 and 100,000 workers annually on a temporary, not a permanent, basis—people who come for seasonal work and then return to their countries. Therefore, it is not just the matter of the people in our universities, schools and hospitals or the City of London that needs to be resolved; this particular question, affecting, as it will, the whole future of much of the agricultural and horticultural industries in this country, also needs an urgent resolution.
Baroness Evans of Bowes Park
The noble Lord is right that we need to address the issues and needs of all sectors. That is why the work of the House’s EU committees is so important. I look forward to reading the report and am sure that excellent suggestions will be put forward about the kinds of issues that we need to think about during our negotiations.
Lord Callanan (Con)
My Lords, I thank my noble friend for repeating the Statement. Does she find it strange that many Members of this House and another place are threatening to vote against the imposition of Article 50 after voting in favour of holding the referendum in the first place? Does she recall any of them saying during the referendum campaign that, however people voted, they would ignore the result of the referendum, whatever it was?
Baroness Evans of Bowes Park
My noble friend is right. The Article 50 Bill is indeed a straightforward Bill: it is not about whether the UK should leave the European Union—that decision has been made—but about triggering Article 50.
Viscount Waverley (CB)
My Lords, I have never understood why Gibraltarians would not wish to have feet in both camps, although that is clearly a matter for them. The Prime Minister was absolutely right to draw attention to the economic well-being of LEDCs—less economically developed countries. Have the Government decided which competent UK authority will be responsible for preferential access negotiations post Brexit?
Baroness Evans of Bowes Park
I am afraid that I do not know the answer to that question and will have to write to the noble Viscount.
Lord Cashman (Lab)
My Lords, I thank the noble Baroness for repeating the Statement. Does she agree with me about the importance of EU agencies such as FRONTEX, which protects our external borders along with those of other member states, the European Fundamental Rights Agency and the European Medicines Agency? Does she believe in the effectiveness of these organisations and their benefit to the United Kingdom? If so, why are we putting that at risk by going for a hard Brexit?
Baroness Evans of Bowes Park
The noble Lord is absolutely right. As we discussed in Questions today, many European bodies play an extremely important role and are highly valued in terms of the standards, co-operation and everything else that we get out of them. All of these will be up for negotiation, and we will obviously want to maintain very close relationships with those organisations that add huge value. However, this will also give us an opportunity to look at how we can perhaps improve standards and quality in this country, because we will be free to do that.
Lord Campbell of Pittenweem (LD)
My Lords, when considering the quality of the commitment of the President to NATO, are we entitled to look at his continuing favourable ambiguity towards Mr Putin, whose avowed intention is the undermining of NATO?
Baroness Evans of Bowes Park
The Prime Minister has been extremely clear to both President Putin and, indeed, the President of the United States that our relationship with Russia cannot be business as usual, as a result of its actions in Ukraine and Syria. Where there are issues that we disagree on, we should hold Russia to account, but we also need to have hard-headed engagement where we can move forward. As the Prime Minister was very clear and said to the President, we need to engage but beware.
Lord Marlesford (Con)
My Lords, can I clear up a small point? I notice in the printed version of the Statement—or the Statement from the other place—that in “Global Britain” the “Global” is in upper case. Is this a renaming of Great Britain, a typo or more of a marketing slogan like “Cool Britannia”? On a more substantial point, I am glad that the EU recognises that Libya is the place in which refugees and migrants should be concentrated so they can be properly assessed and helped as necessary. The crucial thing in my plan, which I produced in 2015 and have subsequently mentioned, is that there should be a military presence of NATO to protect these people and make sure that they are not ill-treated in Libya. I hope that the military presence would be United Nations sanctioned, with NATO in blue helmets, through a Security Council resolution because, without that, the ideas that the EU is floating about Libya could end in disaster.
Baroness Evans of Bowes Park
I assure my noble friend that the UK is working with the international community to support the Government of National Accord’s efforts to deliver security and stability for the Libyan people and to tackle the flow of illegal migrants through Libya. We have allocated more than £10.5 million this year for assistance to Libya and technical support to its Government.
Baroness Royall of Blaisdon (Lab)
My Lords, I am glad that the Statement and the noble Baroness herself stressed the need for a positive partnership with the European Union. Is the noble Baroness not concerned then that the President of the United States is not well disposed towards the European Union? Indeed, he wants it to fall apart—likewise his nominee for ambassador to the European Union. Does that not give the noble Baroness cause for concern?
Baroness Evans of Bowes Park
One of the things discussed over the lunch was exactly how we can ensure that relationships between the United States and the European Union remain as strong as ever. We are very keen to make sure that that is well understood and that the EU along with us plays an important international role as we always have done.
Lord Stoddart of Swindon (Ind Lab)
My Lords, on the sapphire jubilee of the Queen, can I say how pleased I am that we are in the process having a realm for her and her successors to rule over? My second point is in relation to the sort of hate campaign going on against the United States simply and solely because it has, for four years, elected a different sort of President—if I can put it that way. Did the Prime Minister remind Europe that it is protected against people who wish it ill by the enormous economic and military power of the United States through NATO?
Baroness Evans of Bowes Park
As I said in the Statement, the Prime Minister discussed with our European partners the need to engage patiently and constructively with America as a friend and ally—an ally that has helped guarantee the longest period of peace Europe has known. Certainly we are and remain close partners on trade and security of defence. Also, as friends, where we have differences we need to be honest about them.
Lord Pearson of Rannoch (UKIP)
Can I follow up the question from the noble Baroness, Lady Royall, and repeat a question that I have put to the Government many times since 1999? Does it matter if the European Union falls apart and the democratic nations of Europe go back to their own currencies, freely trading together and supporting NATO together and so on? What is the point of the European Union now? Why do we need it at all? Should we not be very grateful if it falls apart?
Baroness Evans of Bowes Park
We are clear that we want to see a strong Europe and we want to have a strong partnership and relationship with Europe, but we will do it as a global and independent Britain.
Lord Lea of Crondall (Lab)
Contrary to the implications of the last question, is it not the case that the most likely immediate result of the geopolitical circumstances of the time, with the attitude of President Trump and the Brexit proposition, is that France and Germany will have much closer defence co-operation? The very thing that Britain has always been wary about will probably result in terms of very close defence co-operation within the European Union.
Baroness Evans of Bowes Park
As I have said repeatedly during this discussion, we want a strong Europe. We want a strong relationship and a new partnership with Europe. How Europe takes itself forward once we have left is for Europe to determine, but while we are still involved, we will play our strong part. I am much more optimistic, by the sound of it, than most noble Lords in this House that we will achieve a good deal for both us and our European partners.
Digital Economy Bill
Monday 6th February 2017
(7 years, 10 months ago)
Lords ChamberRead Full debate Digital Economy Act 2017 View all Digital Economy Act 2017 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 80-IV Fourth marshalled list for Committee (PDF, 161KB) - (6 Feb 2017)
Lord Collins of Highbury
Lord Collins of Highbury (Lab)
My Lords, I have no doubt that we will constantly return to codes of practice, especially about the need for them to be revised and, I hope, improved. But the purpose of these amendments, particularly Amendment 81, is to ensure that when they are finally agreed they have strength and a statutory basis to ensure that they are properly applied. It is important that the principles and safeguards that we have debated so far are included and statutory. I am concerned that having “regard to” provides too many loopholes that will undermine the very public confidence that we seek in passing the Bill. I hope that the Minister will be able to reassure all sides of the House, once again, about how we can consult broadly on these codes and ensure that they are properly referenced in legislation and properly complied with.
In Amendment 107B, we know that what is important is that corrective action can take place if there is a breach of the code. We know that measures are also in the Bill, including criminal sanctions, where data protection is breached. But what about those areas and cases where public authorities exceed those powers for supposedly public good? Will the Minister tell us what adequate measures would be in place? The Minister in the other place said that the wording “had regard to” already follows common practice in legislation, as illustrated in Section 25 of the Immigration Act 2016 and Section 77 of the Children and Families Act 2014. He argued that as the power covers a range of public authorities and devolved territories, the Government want flexibility about how the powers can be operated so that we can learn what works and adapt the code as necessary. This comes to the crux of the matter once again and why so many noble Lords have concerns about these provisions. It is this open-ended flexibility and uncertainty about where this is going to lead to that raise concerns. We are told that to put these matters into the Bill would hamper the ability to adapt for future purposes. If bodies fail to adhere to the code, the Minister will make regulations that remove their ability to share information under that power.
Part 11 of the code states:
“Government departments will expect public authorities wishing to participate in a data sharing arrangement to agree to adhere to the code before data is shared. Failure to have regard to the code may result in your public authority or organisation being removed from the relevant regulations and losing the ability to disclose, receive and use information under the powers”.
Is that really sufficient? Is that enough? What about the cases that we have heard? As the Minister said in the previous debate, departments are not infallible. I do not think that this is sufficient. We know that the Information Commissioner wants changes; we know that they want these codes not only to be improved but to have proper force. I beg to move.
Baroness Janke (LD)
My Lords, I, too, shall speak to this group of amendments, having put my name to some of them. The noble Lord, Lord Collins, has already raised the issue about the permissive approach in the Bill, which we have rather rejected, and the question of inserting “complied with” rather than “had regard to”. Many of the amendments deal with that issue across the various agencies involved. When you consider that this is operated in relation to various criteria to do with improving people’s physical health, their emotional well-being, their contribution to society and their social and emotional well-being, the breadth of those areas is really rather daunting. You could justify almost anything under those four areas, and I do not really believe that the code of practice could be remotely enforceable if those were the criteria that were used.
Worse still, they could be used in a rather punitive way. For example, it could be argued that it is improving people’s well-being by making them work; and if they are disabled, pursuing people who have disabilities or difficulty in getting work could be used to penalise vulnerable groups. It would affect people who are on benefits or are pensioners—all sorts of vulnerable people. There needs to be somewhat more rigour in the Bill than criteria such as those that we see there now.
Moreover, these amendments deal with a minimum consultation period, which we support. Finally, the code of practice should be laid before Parliament, which, again, would be another safeguard. We must have much more transparency and greater rigour of application, enforceability and consistency across all the agencies and with other rules of disclosure. I would like to hear what the Minister has to say about these concerns. We believe that these matters must be answered and wish to understand the Government’s approach in order to decide whether we need to take this forward at a later stage.
Baroness Hamwee (LD)
My Lords, I, too, support the various amendments in this group. “Having regard to” a matter always seems to leave some wriggle room. If there should be exceptions to compliance—because I think we are talking about compliance here, not about consistency—then those should be spelled out. I accept that having codes of practice outside primary legislation allows for flexibility, which might be useful, for a response to experience of the operation of the code and, perhaps, for changing circumstances. However, there is so much reliance on codes of practice here that an inclusive process for constructing and finalising them is very important, as well as transparency in operation.
The noble and learned Lord will probably have a better recollection than I have of the discussion during the passage of the Investigatory Powers Bill about providing transparency by way of ensuring that people who were affected by the transmission of information knew about it. This was rejected for security reasons, but that would not be the case here. The overall objective has to be transparency and inclusiveness.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, Amendment 81 and the other amendments in this group are intended, of course—and I understand this—to strengthen enforcement of the codes of practice in relation to the public service delivery, debt and fraud, and research powers by requiring authorities who use the powers to “comply with” rather than “have regard to” these codes. The noble Lord, Lord Collins, has sight of a loophole, and the noble Baroness, Lady Hamwee, has encountered wriggle room, but I would take issue with those descriptions.
There is common ground here. We, too, believe that the codes are an important part of the data-sharing powers. However, the Government believe that “have regard to” is the right level of obligation for a code of practice. This is a legal obligation. Such persons when disclosing or using information will be expected as a matter of law to take the codes seriously and follow their requirements in all cases unless there are cogent reasons why they should not do so. It is, of course, common practice for legislation to set out the critical limitations on a power while codes of practice—which are more adaptable, as the noble Baroness, Lady Hamwee, acknowledged—are advisory tools that supplement with regard to best practice, principles and guidance.
The noble Lord, Lord Collins, alluded to a situation in which an authority exceeds its powers for the public good. In such a situation—without going into the detail of it—the authority would be exceeding its powers and it would have to answer for that, whatever the public good might justify in other circumstances.
Key conditions for the disclosure and use of information are set out in the Bill, including what can be shared, by whom and for what purpose. We have followed a common approach taken by government and others, including the Information Commissioner, to provide more detail on how data are to be shared in a code of practice. That does not mean that the code is to be treated lightly. Legal consequences may follow if the code is disregarded, as the Delegated Powers and Regulatory Reform Committee pointed out in its report on the Bill. The relevant Minister can make regulations to remove a body’s ability to share information under the power if it fails to adhere to the code. The noble Lord, Lord Collins, raised the question as to whether that is considered sufficient in the circumstances. We do consider that that is a sufficient safeguard in the circumstances. I also remind noble Lords—in particular, the noble Baroness, Lady Janke—that the first requirement of the Data Protection Act is that processing of data should be fair and reasonable. That underpins in existing legislation the whole approach that should be taken to this Bill.
The noble Baroness, Lady Hamwee, sought to draw a distinction between the provisions here and those in the Investigatory Powers Act about knowledge of data transfers. Of course, although we are not necessarily dealing here with national security, we are dealing with issues such as fraud, where it would be wholly inappropriate to give people advance notice of data sharing, particularly if one were going to address issues of criminal conduct.
Amendment 107B would require breaches of the code of practice on the public service delivery power to be reported to the Investigatory Powers Commissioner. It also places a duty on the Investigatory Powers Commissioner to investigate serious breaches and, where necessary, to inform the relevant individual of the breach. In doing so, the commissioner would have to ask the person in breach to make submissions before making a decision. With respect, the amendment would impose a considerable additional function on the Investigatory Powers Commissioner, where he or she would be bound to deal with breaches of a code of practice on information sharing which in no way relates to the commissioner’s remit of investigatory powers.
Indeed, placing such duties on the Information Commissioner would effectively be broadening the Information Commissioner’s remit without appropriate consultation. It would, as with Amendment 81B, cut right across the functions of the Information Commissioner, as distinct from the Investigatory Powers Commissioner; the Information Commissioner being responsible for upholding the Data Protection Act 1998, and also the safeguards and procedures for dealing with breaches of the code, which are already set out in various provisions. Such an amendment would blur the lines between the responsibilities of the Information Commissioner and the Investigatory Powers Commissioner and potentially lead to confusion and unnecessary duplication. If, in making those observations, I referred to the Investigatory Powers Commissioner when I meant the Information Commissioner and referred to the Information Commissioner when I meant the Investigatory Powers Commissioner, that simply underlines how easy it is to cause confusion in this area.
Amendments 108, 115, 134 and 151 call for the codes to be subject to approval by Parliament. A similar requirement was also raised by the Delegated Powers Committee in its recent report. We are carefully considering that proposal and I assure noble Lords that we will be responding to it shortly. Amendments 109 and 135 would introduce a requirement for the Minister to consult publicly on the code for a minimum of 12 weeks before issuing or reissuing it. Amendments 110, 152 and 190 would require that the Minister demonstrate that responses to the public consultation,
“have been given conscientious consideration”.
The policy in respect of these powers, and much of the content of the codes of practice, have been developed over two years of open policy development with a range of public authority and civil society organisations. The code sets out procedures and best practice drawn from guidance produced by the ICO and Her Majesty’s Government. We amended Clauses 36, 45, 53 and 61 in the other place to ensure our code will be consistent with the Information Commissioner’s data-sharing code of practice. The clauses contain a requirement that the Minister consults the devolved Administrations, the Information Commissioner and any other person the Minister considers appropriate prior to the issue or reissue of the code. I assure noble Lords that these other persons will include civil society groups and experts from the data and technology areas. It is, indeed, our intention to run a public consultation before laying the code before Parliament. I need hardly add that all consultations are taken seriously by the Government and all responses considered with appropriate conscientiousness.
I understand the interest in the codes and the desire to make sure they are effective. The codes will provide a strong safeguard for the use of the power, backed up by real consequences if they are not adhered to. With that, and while we consider the recommendations of the Delegated Powers Committee further—as I have indicated, we intend to do that in the very near future—I invite the noble Lord to withdraw his amendment.
Baroness Hamwee
The noble and learned Lord warned us against giving advance notice to potential fraudsters, but I think we are talking in these amendments about notice which may be in retrospect. I am looking at the noble Lord who has tabled the amendments. There are different issues, I think, about giving notice in advance and telling people that you have transferred information. Maybe we need to come back to the distinction between the two at the next stage. On the requirement to have regard but not necessarily to comply, does that not point up the real weakness of a code that is not approved by Parliament? These two bits of fragility seem to me to go hand in hand and undermine the security, as it were, of the regime.
Lord Keen of Elie
I am content that we return to the noble Baroness’s first point if she feels that there is a point of distinction to be made. On her second point, I do not accept that there is fragility in this context. We are well aware, by virtue of past practice, that this formulation is appropriate to the application of codes of practice. Indeed, the noble Baroness herself observed that when applying one’s mind to a code of practice, a degree of flexibility is necessary. One cannot freeze them. That is why we consider that the wording here is appropriate.
Lord Collins of Highbury
I thank the Minister for his response. Obviously, the codes of practice are key to giving a sense of security and to building public confidence. They are critical, which is why noble Lords want to see exactly how they will end up. I am very happy with the reassurance that the Minister gave regarding parliamentary involvement and consideration of the report of your Lordships’ committee. That is very welcome and we will return, obviously, to some of the issues, particularly on medical information and other information set out in other groups. We will return to the subject of the Investigatory Powers Commissioner in the next group and I will explain in that discussion why we see, perhaps, a distinct role, arising from the debate this House had on the Investigatory Powers Act. In the meantime, I beg leave to withdraw the amendment.
Lord Collins of Highbury
“( ) The effective maintenance of the electoral register must be specified as an objective in regulations under subsection (6).”
Lord Collins of Highbury
Are we dealing with Amendment 81ZA? I would hate to give the wrong speech on the wrong group, although I suspect that noble Lords would notice. I have been in other forums where people have not noticed, but that is another matter.
Amendment 81ZA focuses on the extension of sharing objectives to include the electoral register. A number of amendments in this group address concerns that have been raised about living in cold homes or school meals provision: basically, how we make this sharing of data more effective. I have no doubt that the Minister will say in response that the Bill will allow for this, but we want to raise on the Floor of the House the importance of these extensions of sharing objectives to the overall, broad objectives set out in Part 5.
Focusing on the electoral register, we know that the Electoral Commission has said that up to 1.9 million people could lose their right to vote as we transition to the individual registration of electors. Of course, until 2009 one person in each household completed the registration for every resident eligible to vote. It was a Labour Administration who accepted the principle, and there may be very good reasons, but the way the changes are introduced could be a disaster for our electoral system. That is why it is fundamentally important that we see data sharing as a positive way to address this potential effect on our democratic system. My noble friend Lord Stevenson has tabled an amendment to the higher education Bill that seeks to enhance the responsibility of higher education institutions to remind students of their right to register to vote—and particularly to decide where to vote. In this amendment we are trying to ensure that institutions have proper powers to share data to that end.
It must be understood that this transition to individual registration has put a huge burden on cash-strapped local councils, who need to contact 46 million people instead of 20 million. Some people have been unable to register, many of them because they simply do not have the required access that they would previously have had. This amendment focuses on people who are vulnerable, who need help, or who have not previously taken up their rights, perhaps because they do not have the necessary access or are not fully aware. That comes back to the issues—many other noble Lords will pick up the point—of fuel poverty and access to free school meals. The right to free school meals is important not only for the individual child—for the benefits the child will get—but for the funding of the educational institutions. I hope, therefore, that the Minister will accept these amendments, which are about ensuring that we can do these things and that these issues are addressed, even if he does not think that they should necessarily be in the Bill.
Lord Storey (LD)
My Lords, I shall speak to Amendment 82. This Bill is an opportunity possibly to enhance the lives of the most disadvantaged and vulnerable people in our society. The words of our Prime Minister always come to mind:
“a country that works for everyone”.
This amendment will help the country work for everyone. Currently, the parent of a child wishing to have a free school meal must apply for it. Not only does that provide a free school meal, which is hugely important for children because hungry children are not good learners, but it ensures that the school gets a pupil premium—a substantial sum of money—to help those disadvantaged pupils.
This simple amendment would ensure that local authorities automatically enrol those entitled to receive free school meals. Local authorities currently administer a number of benefits, such as council tax and housing benefit, so they are aware of families that would be eligible to claim free meals and would automatically contact the school. This would ensure that parents who, for a host of reasons, fail to claim would be able to do so.
It is estimated that a family with a child receiving free school meals can save up to £400 a year. Noble Lords may imagine that if the parents have more than one child the saving is quite substantial. As well as the family saving money and the child getting a free school meal it ensures that the school gets a substantial amount of money—the pupil premium—to help disadvantaged pupils.
The Minister will probably reply—as did the Minister from the other place—that the department’s own electronic eligibility checking system means that the clause is not really needed. That, however, is only a system which enables a school to check whether the parent is on the free meals register: it has speeded up the process but does not do the job that this amendment hopes to do.
I make a further point about this, at a time when we are all sensitive about the amount of private data that circulates: there is perhaps a fear that leads people to question why schools should have private data on pupils entitled to free meals. For that reason the amendment clearly states that parents will be notified before this information is made available and that there will be opt-out arrangements. I hope, therefore, that the Minister will be sympathetic to this very important amendment.
Lord Kirkwood of Kirkhope (LD)
My Lords, it is a pleasure to follow my noble friend. I support his Amendment 82 and shall speak to Amendment 92, which is in a similar vein but relates to the warm home discount. I am grateful to the right reverend Prelate the Bishop of St Albans and to the noble Baroness, Lady Massey, who have other duties in the House and would otherwise be here.
It is my pleasure to speak to Amendment 92, which seeks to test the possibilities that Clauses 30 to 32 open up. For years I have been banging away at the Department for Work and Pensions to make proper and better beneficial use, in terms of client well-being, of the vast amount of data that it has on families. That, together with the data held by HMRC, and particularly the data generated when universal credit comes in, will give the Government as a whole immensely enhanced abilities to promote well-being, particularly in our low-income households. I warmly welcome Clauses 30 to 32.
I am listening carefully and correctly to some of the interrogation that is being properly directed at the Government, because we have to get this right; it is very important that the protections are there. Subject to those protections, I am an enthusiast for making use of these provisions. I am slightly surprised that there have not been more attempts—like mine and that of my noble friend—to prise open new opportunities as the Bill goes through. This amendment tries to test the willingness, enthusiasm and ingenuity of Ministers in seeing how they can expand public services to our citizens under Clauses 30 to 32.
Amendment 92 simply seeks to improve the use of data-sharing powers to extend the reach of the warm home discount. The provenance of this amendment is work that I have been doing over months and years for the Children’s Society, and I acknowledge and pay tribute to the work it does with families, particularly with children in fuel-poor households. The Children’s Society has been making the argument to me about the importance and urgency of getting the issue of fuel poverty dealt with more adequately. We need only look at the announcement from npower last week, and indeed some of the wider economic indicators that are showing that this group of fuel-poor households is likely to find things getting a lot worse before they get any better. We need to pay attention to that.
I am told by the Children’s Society that, according to the Government’s own figures, families with children are now the biggest group affected by fuel poverty: 45% of households that can claim the warm home discount are now families with children under 18. The Children’s Society has some valuable survey evidence of a project that it carried out in Bradford and in other places, which indicates clearly the distress caused by fuel poverty. For instance, there is the fact that parents in these households are frightened to turn up the heating in cold winter months because they fear the level of the increased bills it would occasion. Some of those same parents believe that their children’s health is potentially affected by not doing so, so it is a real concern for the parents involved.
Lord Whitty (Lab)
My Lords, like those of the noble Lord, Lord Kirkwood, my three relatively small amendments in this group relate to fuel poverty. I was not at all surprised when my noble friend Lord Collins of Highbury was a bit confused at the beginning of this rather mixed-up group. It covers not only my subjects but voter registration and free school meals; most of the government amendments seem to relate to water and sewerage. I was tempted to say that it covers electoral rolls, bread rolls and toilet rolls. However, my amendments deal with something entirely different and their intention is very much the same as those of the noble Lord, Lord Kirkwood. I will not repeat all that he said.
My aim here is to make the system of data sharing more effective. I recognise all the concerns expressed around this Committee about the dangers of data sharing by public bodies and I understand them, because in different circumstances I have been deeply suspicious of the gas and electricity companies, as the noble Baroness, Lady Byford, clearly was a couple of groups ago. To make identification of the fuel poor more effective, we need more effective and comprehensive data sharing, along with the ability of different authorities and companies to share them, but this must be subject to all the safeguards. One safeguard is clearly stated in the Bill: that the information that can be used and shared in this way relates to the health of those affected by fuel poverty because they live in cold, draughty and damp homes. I do not need to spell out the effects of fuel poverty on those people’s health. It is quite important that in addition to the provisions in Clause 30(8) for helping the delivery of services and benefits, the clause should also refer to improving the health of those affected by it. My first amendment would do that.
My second and third amendments simply extend those gas and electricity operators which need to be engaged in it and will be subject to the same safeguards. It is increasingly the case that consumers and householders, including the fuel poor, have a closer affinity with the distribution networks than with their sensible supplier, which sends them the bill. To improve their situation, they will have to deal with the electricity distributor and, shortly, with the gas network distributor company. These amendments to Clause 31 deal with putting those distributors in the same category as gas and electricity suppliers. These are tidying-up amendments but they will make data sharing in this important area of fuel poverty more effective. The noble Lord, Lord Kirkwood, spelled out why that is necessary and, in particular, why those not automatically assigned to the warm home discount need to be identified and automatically put on the list of those who receive it. If we achieve that via the Bill, it will be a very important improvement and a step towards eliminating fuel poverty in our society.
Baroness Hamwee
My Lords, I want to ask a question about government Amendments 83A and 83B, which are about water and sewerage. Will these provisions apply only where there is a water meter? I am struggling to understand how they can work if the customer does not have metered water, and whether the information would be relevant—and how it could be used—if that is not the case. I am quite prepared to be told that I have not understood this properly but if I am right, should the provision not spell out that it is confined to that situation? That would make it clearer.
Lord Hunt of Wirral (Con)
My Lords, I declare my interest as a partner in the global insurance law firm DAC Beachcroft and as chair of the British Insurance Brokers’ Association, along with other interests set out in the register.
In speaking to Amendment 196A, I seek to address a small but important point on the operation of the Employers’ Liability Tracing Office, or ELTO. Colleagues may recall that I also raised this when we debated the Enterprise Bill in 2015. Although it has been grouped with amendments to Clause 30—I am happy to accept the grouping—it seeks to insert a new clause after Clause 65 in Chapter 6 of the Bill, which deals with Her Majesty’s Revenue and Customs.
In 2010, the Department for Work and Pensions identified the need for a tracing office, and ELTO was established in the same year. Sadly, former employees continue to contract industrial diseases, including cancer, due to workplace exposure many years earlier. All too often, the employer is no longer in existence by the time the disease is diagnosed. This was considered by our colleagues at the Department for Work and Pensions as a major obstacle to the former employees’ obtaining compensation.
ELTO was established, and the insurers are now required to provide to ELTO details of all employers’ liability policies that have been issued since April 2011. According to the information I have received, ELTO is working well. In the 11 months to the end of November last year, there were more than 178,000 successful searches of the Employers’ Liability Database, but it could be working better.
The piece of the jigsaw that is often missing is the employer’s PAYE reference number. This number is now used to identify an individual employer in the Pay as You Earn system. Each employer is given a unique reference number. If this unique reference number could be applied to the Employers’ Liability Database, it would make searches more accurate, as it would avoid problems of company names’ changing over time. Generally speaking, it would enable the correct employer to be traced.
One major obstacle is that by law ELTO is unable to gain this information under the Commissioners for Revenue and Customs Act 2005, which prevents HMRC from sharing information except in specified circumstances. Alternatives to primary legislation have already been explored with HMRC. Although we often think of employers as large companies, many are sole traders or family partnerships. For them, the reference number could well amount to personal data, which are rightly protected from general disclosure.
The measure, which I now understand is supported by ELTO and HMRC, is proportionate. HMRC has a ready-made database of these unique reference numbers to which ELTO could be given limited access. All ELTO needs is the reference number itself and the name and address of the employer as a cross check. The amendment would permit ELTO and HMRC to set up, at no cost to HMRC, a facility to share this limited information. It will help make the ELTO database fit for the future.
Many noble Lords will know that I have the honour to be an officer of a number of all-party groups, including not only the Occupational Safety and Health All-Party Group but also the All-Party Group on Insurance and Financial Services, so I should also declare those interests because this amendment is strongly supported by my colleagues on those groups.
This amendment would provide great benefit to employees, employers and insurers alike. I hope my noble friend the Minister will feel able to accept it.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, I am grateful to all noble Lords who have spoken. It is refreshing that, after the debate that we have had on all the concerns and worries that noble Lords have on data sharing, we now hear proposals on how data sharing can benefit various groups. This is our ambition. This is why we set the Bill up as we did and also why the devolved Administrations are so supportive. The noble Lords, Lord Collins, Lord Kirkwood, Lord Storey, Lord Whitty and my noble friend Lord Hunt all made valuable suggestions. I will come to some of the reasons that we agree or disagree with them, but fundamentally the principle is exactly why we set the system up.
Amendment 81ZA, in the name of the noble Lord, Lord Collins, seeks to require the effective maintenance of the electoral register to be specified as an objective in regulations under the public service delivery power. Electoral registration officers already have extensive powers to seek access to information in public records, providing it is for the purpose of ensuring that electoral registers are as complete and accurate as possible. Under current provisions, they would not be able to seek access to other public records for the purposes of identity verification if an applicant’s details cannot be matched against DWP records or local data sources.
Lord Collins of Highbury
I thank the Minister for his response. The problem is that these issues are not simply about entitlement but about a system in which people have to choose. The point is how you make that easier. With individual voter registration, which is a new system, there is a possibility that people will be removed from the electoral roll and therefore denied the opportunity to vote. We talk about a positive outcome. It might be one for one particular party. The boundary reviews will be based on registers that will be removing people and therefore on numbers of electors that are not necessarily the real numbers. I find it a bit disappointing that the Minister sees it as simply an administrative step.
This comes back to the fundamental point that everyone who has spoken, whether about school meals or the warm home discount, sees that this is an opportunity to improve governance and outcomes for people, obviously with the required safeguards. I think all of us in this Chamber will want to return to these issues because they are vital for the well-being of our people. In the light of the Minister’s comments, I beg leave to withdraw the amendment.
Lord Collins of Highbury
“( ) The Investigatory Powers Commissioner has a duty to ensure that the data protection rights of citizens are considered and protected for the purpose of the powers provided by this section.”
Lord Collins of Highbury
The Minister gave me some preliminary notice of the Government’s attitude to this amendment and alluded to the potential confusion of different roles and different names. No doubt I might even make the mistake of using the term “Information Commissioner” rather than “Investigatory Powers Commissioner”.
However, there is an important point here on which we want to probe the Government, and that is about the changing world and how we respond to it to make sure that the interests of the individual are properly thought of and protected. The point is about restoring public confidence. We have a legal framework that is structured around the Data Protection Act and a regulatory framework that allows breaches to be investigated and matters to be determined where there has been a breach. It is a system that protects the individual after the event. What we are trying to do here is what the Investigatory Powers Act, which became law at the end of last year, sought to do—that is, it does everything possible to ensure that intelligence agencies and law enforcement use only such powers as Parliament approved after a careful and well-informed debate. We cannot revert to a world in which the Government understand and apply the law in ways that were not foreseeable to the rest of us, still less to a world in which our freedoms depend on the potentially harmful activities of whistleblowers.
This amendment seeks to ensure that, in this fast-changing world, in the plans for the future use of powers identified in the Bill, the rights of the individual are not only safeguarded but are put at the head of the agenda rather than considered as an afterthought. That is why we have used the framework of the Investigatory Powers Act to raise this issue. With regard to future changes or extension of powers, who is thinking of the rights of the individual? It is important that the Government, if they are unable to deal with this consideration in today’s group, return to this subject in future provisions.
Baroness Janke
My Lords, our amendments in this group add safeguards. The noble Lord, Lord Collins, referred to some of these: that sharing of information be minimal; that the authorised conduct be proportionate to the object of the exercise; that a privacy impact assessment be conducted; and that proposed measures be subject to public consultation.
In addition, we support the amendments advocated by the BMA. Amendment 89 would remove the subsection through which sharers of information are not bound by the principle of confidentiality. Amendment 93 is a further safeguard preventing an authorised sharer of information from disclosing identifiable health information. I look forward to the Minister’s response.
Baroness Byford (Con)
My Lords, in this group I tabled Amendments 100 and 196. Within this group we are debating data sharing and the putting in place of safeguards that make us confident in the next move to make life better for the majority of people. I have one or two direct questions, particularly on the level of data that will be supplied from one authority to another. For example, does the Bill intend that information be supplied on the number of households in a given postal area where child benefit is being claimed and/or where all adults are unemployed? Would it be up to the users of the data to extract a summary picture from details of, for example, names, addresses, whether benefits are received, whether householders are unemployed or any other data?
At any level of inquiry, I presume data will be transferred such as dates of birth and marital status that, were they to fall into the wrong hands, could be used to perpetrate private fraud. No one today has mentioned private fraud, but it can come about as a result of lack of security and safeguarding. Again, perhaps the Minister will indicate what relevant provisions there are. I am unsure whether I have missed some. At earlier stages of the Bill I mentioned the amount of fraud going on and it is horrifying. If the Bill can in any way tighten up on that, it would be an advantage.
For example, will personal information cover things such as whether an individual has a diagnosis of dementia or whether a family has been a cause of concern to the social work department in their own area? Who makes these judgments? At what stage are these activated? I may not have read the Bill carefully enough to find the missing answers. I pose these fairly simple questions to make sure that our safeguarding of this information is secure.
Amendment 100 is a probing amendment that seeks to complete the explanation of what information HMRC would disclose, providing examples of the circumstances under which it would be disclosed and a complete list of the groups or persons whose information would be handed over. This relates to Clause 30, of which we spoke earlier. Subsections (9) and (10) specify the well-being of persons or households and define well-being in terms of physical or mental health, contributions to society—which we have covered slightly earlier on and which is difficult; I should be glad of clarification on that—and emotional, social and economic well-being. The latter are easier to understand.
Clause 31 refers to people living in fuel poverty. Again, we debated this previously. Fuel poverty has been defined as,
“living on a lower income in a home which cannot be kept warm at a reasonable cost”.
Clause 32 also refers to people living in fuel poverty. I do not understand what is intended, nor what will be involved for those deemed to be affected. Defining well-being in terms of well-being suggests that definitions of those covered by this legislation could depend on the personal and political stance of those making those decisions. What is “lower income”? Within what limits do homes qualify under these clauses and who will rule that they cannot be kept warm at reasonable cost? What will be the limits of powers of such a decision-maker over, for example, someone who prefers to wrap up for three months of the year so they may enjoy their garden for nine; in other words, somebody who is living in a bigger house that costs more to heat? Will an individual be able to opt not to have personal information shared within local authorities and/or with gas and electricity suppliers?
Turning now to my Amendment 196 in this group, I do not pretend to know anything about the structure, organisation or responsibilities of HMRC. Hence, I do not understand whether an “official” is someone equivalent, say, to a board member in a quoted company. I fear, however, that that is unlikely to be the case. In this era of Facebook, Snapchat and the substitution of public opinion for demonstrable fact, I am unhappy—I do not know whether other noble Lords are—that perhaps a more junior member of HMRC could decide that disclosure would be in the public interest. In other words, where does the buck stop?
Disclosure of personal information, even supposedly non-identifying, should be done only on the authority of the head of the organisation. He or she presumably will have the knowledge, experience and breadth of understanding to be sure that it cannot be combined with other data to name individuals. He or she will also, presumably, be less likely to make errors of judgment, and of course a claim of ignorance of any such disclosure would not stand up to scrutiny, as they would obviously be at the most senior level.
Baroness Hamwee
My Lords, I will just pick up the noble Baroness’s last point about who is an official. There are examples, in other legislation, of references to “senior officials” and “designated officials”, which might be somewhere between the junior official she has in mind and the Permanent Secretary, but she is right to draw the issue to the Committee’s attention.
On an earlier group, the noble and learned Lord indicated that he was going to speak at greater length—I assume that may be on this group—on the reason for using the term “personal information” rather than “data”. Perhaps I may use my noble friend’s Amendment 213 to ensure that we get to share more of Government’s thinking. I understand the point about corporations, since in the one case, they come within the group covered, and in the other they do not. But I am still puzzled as to why such efforts have had to be made to deal with personal information and then to add in references to the Data Protection Act, rather than starting from the DPA—with any necessary exclusions—which would have taken us straight to the involvement of the Information Commissioner, the data protection principles and so on.
I wondered during the Statement whether to have a go at some alternative drafting for Report, but thought I had better wait for this discussion. But perhaps part of it boils down to a question on Clause 33(8), which says, in wording replicated elsewhere, that,
“nothing in section 30, 31 or 32 authorises … a disclosure which … contravenes the Data Protection Act”.
To look at it from the other end of that telescope, is there any personal information which is the subject of the Bill that would not fall within the DPA and therefore not be protected by that clause?
Lord Clement-Jones (LD)
My Lords, I thought I would intervene to see if it might help the Minister. The code of practice does not make things any clearer. With reference to my noble friend’s very apt point about information versus data, paragraph 4 of the code says:
“The definitions of ‘personal information’ contained in the Bill are intended to ensure that the information shared through these powers is handled carefully”.
That does not sound like a particularly good legal answer to the question. It goes on:
“Though the definition of ‘personal information’ for the purposes of the Bill may differ from the definition of ‘personal data’ in the DPA, all information shared and used under the public service delivery, debt and fraud provisions must be handled in accordance with the framework of rules set out in the DPA”.
Where is that explicitly set out? It would be very helpful if the Minister, in answering, could advert to that as well.
Lord Keen of Elie
My Lords, Amendment 81B seeks to place a duty on the Investigatory Powers Commissioner to ensure that the data-protection rights of citizens are considered and protected under the public service delivery power. The effect of this amendment would be to impose similar duties on the Investigatory Powers Commissioner as are already carried out by the Information Commissioner. It is for that reason that we do not consider that this amendment is necessary. I understand the points that the noble Lord, Lord Collins, has made in this context. We are all concerned to ensure that these powers are ring-fenced as far as is reasonably practicable and that any breach should be policed to the extent required. However, in our view, the Investigatory Powers Commissioner is not the appropriate party to deal with this matter. The Bill is not about investigatory powers, and accepting this amendment would result in a substantial and, as I sought to indicate earlier, confusing addition to the portfolio of the Investigatory Powers Commissioner.
We are of course concerned that there should be public confidence in the provisions of the Bill and in the whole body of data-sharing powers. I understand the observation of the noble Lord, Lord Collins, that the Investigatory Powers Act does everything possible to ensure security is there, so that only the given powers are exercised and that the rights of the individual are put at the head of any agenda, but that is clearly the intention of this Bill as well. That can be achieved by having regard to the position of the Information Commissioner in the context of the present provisions.
I understand and indeed admire the noble Lord’s suggestion that we should in some sense be seeking to future-proof the Bill. There are limits to our ability to do that, but I will return to that point in the context of the regulations that come into force in May 2018. We have already had regard to that in order to try to ensure that the provisions of the Bill will comply with imminent regulations, such as those I have just referred to.
The noble Lord also raised the question of confidentiality and the concerns that have been expressed by the medical profession in that context. Let us be clear that, as noble Lords will recollect, common-law obligations of confidentiality are rarely if ever absolute. We know that various common-law issues of confidentiality tend to be subject to one qualification or another. Concerns have been expressed over the interaction between the provisions of the Bill and medical confidentiality, primarily in respect of the statutory override within the Bill. The provisions of the Bill are clear that sharing data under the powers in the Bill does not breach any existing duty of confidentiality. That includes the common-law duty of confidentiality to the extent that it applies to patient information.
The use and processing of medical information is governed by common law, but also by the Data Protection Act 1998, by the provisions of the Human Rights Act 1998 and indeed by specific legislation which allows, requires or prohibits certain uses of such data. There is no blanket ban on the use of medical information outside the patient-doctor context, and it is not the case that every instance of sharing such information will constitute a breach of confidentiality. Indeed, the General Medical Council’s 2017 guidance expressly states personal information can be disclosed,
“without breaching duties of confidentiality”,
in particular circumstances, one of which is where the disclosure is,
“approved through a statutory process that sets aside the common law duty of confidentiality”.
So it is acknowledged by the General Medical Council itself that this may occur from time to time, and the provisions of the Bill are structured to reflect this. They override duties of confidentiality only in order to ensure that public authorities have clarity in terms of what they can and cannot share under the powers of the Bill. I hope that goes some way to meeting his concerns about confidentiality in that context.
Amendments 84, 87, 119, 138 and 213, which are also in this group and were referred to by the noble Baroness, Lady Janke, cover a broad range of suggested additional safeguards and restrictions on the use of the powers. They seek to introduce, among other things, an express data minimisation rule, a requirement to conduct and publish a privacy impact assessment and provisions extending the Information Commissioner’s powers in respect of enforcement notices. They also introduce a provision enabling data subjects to request that inaccurate personal data disclosed under the powers be amended. We are firmly of the view that while all of these requirements represent important safeguards on the use of our powers, they are already provided for in different ways under the Bill, the codes of practice or existing legislation, including in particular the Data Protection Act 1998. Indeed, under the DPA only the minimum personal data necessary may be shared to achieve the particular objective, and all personal data that is held must be accurate. I hope that that goes some way to meeting one of the points made by my noble friend Lady Byford about excess data being given to public authorities. That is simply not permitted in the existing legislation, particularly the requirements of the Data Protection Act 1998. Over and above that, the Information Commissioner already has a range of mechanisms to enforce compliance with the DPA. Amendment 213, which would insert a new clause on enforcement notices, would not add to those powers in any material way.
Further, Amendment 213 requires certain information to be gathered in respect of the benefits of data-sharing arrangements. Again, that is not necessary: bodies wishing to exercise the powers in these provisions must consider benefits as part of their privacy impact assessment. We acknowledge the importance of privacy impact assessments and, following discussions with the Information Commissioner’s Office, will look to return to this matter on Report to address concerns about public authorities’ adherence to the Information Commissioner’s specific guidance on privacy impact assessments, as well as privacy notices. I hope noble Lords will accept our willingness to return to that matter in due course.
Amendment 213 would bar the processing of personal information under the powers for particular purposes. With respect and understanding of what lies behind the amendment, our approach is simpler and more complete. There are specific limited purposes for which personal information can be disclosed under Part 5 of the Bill. Other than a few limited exemptions, the disclosure or use of personal information for other purposes is not permitted. Tough new criminal sanctions will apply to all unlawful disclosures.
Amendment 87 seeks to introduce a duty to review in the public service delivery power, akin to the existing duty in the debt and fraud powers. All data-sharing arrangements under the debt and fraud powers have to be piloted and reviewed after three years to ensure that the powers deliver demonstrable benefits. The public service delivery powers are different in kind, being more conventional data-sharing powers, constructed specifically to improve the delivery of services to citizens in cases of acknowledged need, such as assisting those suffering from fuel poverty.
On that point, my noble friend Lady Byford essentially raised the question of definitions—what do we mean by “fuel poverty”, “well-being” and “warm home discount”, as mentioned in Clause 31? All this is dealt with in Part 2 of the Energy Act 2010, which contains the schemes referred to in Clause 31(3)(a). I hope further consideration of those provisions of the Bill may go some way to meeting her concerns about those definitions.
On the question of private fraud, of course we are alert to the idea that where there is data sharing there may be data intrusion, and we are determined to guard against that. That is why we seek to ring-fence these powers in the way that we do in the Bill. We have not claimed that any system we introduce will inevitably be infallible; history tells us that where we ring-fence, people will seek to go under, over or through such a fence. However, we shall try to ensure that all data that are shared in this context are kept as secure as we reasonably and practicably can keep them.
Amendment 88 would change the definition of “personal information”, a point raised by the noble Baroness, Lady Hamwee. The point here is that in the current draft “personal information” includes “a body corporate”. The existing definition is intended to capture all persons, including all corporate bodies, to ensure that taxpayer information, including that of bodies corporate, is protected irrespective of the size of the organisation. Narrowing the definition would limit the protections for HMRC data under these powers, which would be likely to affect significantly HMRC’s willingness to make use of the powers. I am sure the noble Baroness is aware that the disclosure of data by HMRC is subject to additional statutory controls quite distinct from the provisions of the Bill, and these have to be factored in. This is where the term “official” comes into use because the existing statutory legislation uses that term in the context of data and disclosure. Therefore, for the purposes of consistency, that term is used in this context. It is not an attempt to suggest that the janitor, or anyone else, should be responsible for disclosing relevant information—certainly not the commissioners of revenue in isolation.
Amendments 87 and 93 are also in this group. Clause 33(7) provides that a disclosure under the public service delivery power does not breach any obligation of confidence or any other restriction on the disclosure of the information. This provision ensures that public authorities can be confident that their disclosure is lawful, provided that they comply with the strict requirements of this legislation. To remove that subsection would undermine a primary objective of providing authorities with the legal certainty required to ensure efficient and effective data sharing under these powers. In other words, where they satisfy the requirements of this legislation, they do not have to go back and worry about any aspect of the common law of confidentiality on individual occasions, which would effectively make the provision unworkable.
Amendment 93 seeks to expressly exclude health data from the public service delivery clauses. I have already touched upon this. The Government believe that this amendment, while well intentioned, is unnecessary and would lead to the kind of legislative barriers that the Bill is designed to overcome. As I have indicated before, the Government recognise the particular sensitivities around identifiable health information, and indeed this was highlighted in the National Data Guardian’s recent review of data security, consent and opt-outs. For this reason, health bodies in England are not included in the draft list of bodies that will be permitted to use the powers in the Bill. Health and adult social care information, however, could potentially be of considerable assistance in bringing benefit to individuals, as this power aims to do. I acknowledge that we may wish to bring such bodies within the scope of these powers in future, but we will form a view on this after the implementation of the National Data Guardian’s recommendations and public consultation on the issue. We believe it would be wrong to rule out that possibility until that debate has been concluded. However, I underline the point that at present health bodies in England are not included in the draft list of bodies that will be permitted to use these powers.
I turn to Amendment 100. Clause 34(8) provides that the prohibition on onward disclosure, and its associated provisions, do not apply to personal information disclosed by HMRC. The amendment seeks to remove that provision. There was a suggestion that someone was seeking consistency here. Throughout Part 5 of the Bill, in order to take account of HMRC’s statutory duty of confidentiality and maintain consistency with the existing statutory framework in respect of HMRC information, the Bill contains separate provisions for the disclosure of information by HMRC. Criminal sanctions apply to the disclosure of HMRC information, but it is all framed slightly differently in order to be consistent with earlier statutory provision. I refer in particular to the Commissioners for Revenue and Customs Act 2005, which already covers these areas. The effect of the noble Baroness’s amendment would be to create two regimes for disclosing HMRC information under this power. We suggest that that would undermine consistency between Part 5 of the Bill and the provisions that already exist under the Commissioners for Revenue and Customs Act 2005. I hope that that goes some way to explaining why HMRC, though not a special case, is dealt with slightly differently within Part 5.
The noble Baroness, Lady Byford, then referred to Amendment 196. Again, in the context of accountability for public interest disclosures of non-identifying HMRC information, the aim of Clause 65 is to enable Her Majesty’s Revenue and Customs to meet requests from external organisations to provide aggregate statistics or general information, which is what other government departments do. Safeguards for disclosure of personal information will continue to apply for the reasons I have already alluded to. This amendment, again, would be inconsistent with HMRC’s existing statutory framework which authorises officials to act on behalf of the commissioners of revenue. It would not be practicable for the commissioners of revenue to have to deal with each of these requests. Indeed, it would be an unnecessary use of public resources if that was the case.
The noble Lord, Lord Clement-Jones, raised a point that appears to have prompted a note from the Box which I have not yet read. I shall scan it now. And I will undertake to write to the noble Lord. On that occasion, I will use typescript.
In those circumstances, I invite noble Lords not to press these amendments.
Baroness Hamwee
My Lords, the noble and learned Lord may have already answered this, as his response was inevitably very full and quite dense, but on my question about Clause 33(8)—and the words are repeated in other clauses—although nothing in the sections authorises a contravention of the DPA, is there personal information within the Bill that would not be within the DPA and therefore not protected by that subsection?
Lord Keen of Elie
I am obliged to the noble Baroness, Lady Hamwee. Although the definition of personal information differs from the definition of personal data in the DPA, all personal data shared and used under the public service delivery provisions must be handled in accordance with the framework of rules set out in the DPA, and in particular with the data protection principles, because the DPA is not overridden by this chapter. To the extent that the class of personal information is wider than personal data, although the DPA does not directly govern such information, we still expect that information will be handled in accordance with that framework because of the requirements of the codes of practice under Part 5. I hope that answers the noble Baroness’s question.
Lord Collins of Highbury
My Lords, I thank the noble and learned Lord for his comprehensive response. Clearly, there is a lot in the codes of practice, so we await the response. I welcome, too, his commitment to come back to report on the issues that the Information Commissioner and we have raised.
Both the GMC and the BMA raised the issue of confidentiality and the common law. They obviously have legitimate concerns about the future impact. Confidentiality is not simply an issue of administration and protection administratively; it is a fundamental issue about the nature of the relationship between doctor and patient, where trust is absolutely vital for medical treatment, ongoing treatment and so on. We may have to come back to this issue at Report. In the meantime, I beg leave to withdraw the amendment.
Lord Collins of Highbury
“Review of the collection and use of data by government and commercial bodies
(1) Within six months of the passing of this Act, the Secretary of State shall commission an independent review of the collection and use of data by government and commercial bodies and shall lay a report of the review before each House of Parliament.(2) The review under subsection (1) shall consider—(a) the increasing use of big data analytics and privacy risks associated with big data;(b) the adequacy of current rules and regulations on data ownership;(c) the collection and use of administrative data;(d) any other matters the Secretary of State considers appropriate.(3) In conducting the review, the designated independent reviewer must consult—(a) specialists in big data, data ownership and administrative data;((b) those who campaign for citizens’ rights in relation to privacy, personal information and data protection; (c) any other persons and organisations the reviewer considers appropriate.(4) In this section “big data analytics” means the process of examining large datasets to uncover hidden patterns, unknown correlations, market trends, customer preferences and other useful business information.”
Lord Collins of Highbury
My Lords, as one of my colleagues in the trade union movement used to say, there may be a sense of déjà vu: we are going to be repeating issues in these amendments. As we have said, transparency is a vital ingredient in building public confidence. If we do not have public confidence we will not have effective data sharing and therefore the aims and objectives of the Bill will not be met. That is why we are very keen to focus on the elements of how we build that confidence, with transparency as the vital ingredient. That is why we are proposing to have an independent review of the collection and use of data by government and commercial bodies. A report of that review would be put before Parliament.
Having spent a considerable part of the weekend reminding myself about the Data Protection Act—I was responsible in the trade union movement for elements of implementation of data protection—I was struck by how complex the law can be and how different elements impact on each other. That is where we need to do more to build public confidence. People are concerned, asking. “Why do they want it? How are they going to use it? Have they used it? Have they done it without my knowledge? Have I given consent? Shouldn’t I be allowed to give consent?” All those issues need explanation. That is why transparency provisions in the amendments are really important. Where there has been a breach it needs to be effectively reported and dealt with. Some of the episodes we have seen in the private sector are scandalous—breaches of data have occurred and nothing has been said for years, let alone weeks and months. Whether we like it or not, those breaches in the commercial and private sector will impact on people’s confidence about the Government’s ability to share data fairly. That is why we need to be open about how we are dealing with problems. I come back to the Minister’s point on infallibility. Of course we are not infallible; but whenever mistakes happen, we want to make sure we learn from them and minimise the risk of them happening again. That is what we seek to do in these amendments.
The more we move towards digital government, the more we need to ensure that all these issues are properly recorded. Again, that is why we are proposing mandatory transparency in the public register of data-sharing agreements. It is about building trust in the process, with people knowing they will have to be accountable for their decisions in this area.
Transparency must be central to the process, alongside privacy and security. It is one of the arguments that we would make strongly in this group of amendments. No doubt we will hear from the Minister about it being mentioned in the code of practice and how that will be vital. I agree that we have seen a lot of movement; what we want to do as we move forward is to receive reassurance that the principle of building confidence will be openness and transparency. I beg to move.
Baroness Janke
I am drawn to recall the words of the noble Baroness, Lady Buscombe, when she spoke on some of these issues. She said that the technology was moving so quickly that we need to be aware that things are changing—and that it would be important for the public to trust these procedures. A review of these processes is a good thing. Equally, government sometimes changes very slowly, so it may be a better opportunity to revisit some of the issues during a review. We would certainly support that. Again, it has been drawn to our attention by a number of data breaches that have not been notified, ever—so we certainly support the processes that have been outlined in the amendments about putting these on record to have the trust and confidence of the public. Our Amendment 111 in this group is to do with individuals being notified that personal data have been disclosed about them. Again, we feel that this is very important to engender public trust in the processes that we are introducing.
Baroness Finlay of Llandaff (CB)
My Lords, I would like to speak to Amendments 213A to 213C, which explore the Government’s commitment to transparency and how people can know about information-sharing agreements that are in place and, looking to the future, how the equivalent of a subject access request could work, explicitly to assist with fraud detection.
I draw the Committee’s attention to the comment from the Delegated Powers and Regulatory Reform Committee at paragraph 52, which noted that, without even allowing for parliamentary scrutiny, the powers in Clause 39 as drafted are as “inappropriately wide” as those in Clause 30, and seem to be deliberately so. Those very wide powers are of great concern. As an increase in digital technology emerges, the public need to be informed to understand how to use the resources available to them—and they need to know how data on them, as citizens, are being used. They must have confidence in the safeguards in place, otherwise we will have a population that increasingly refuses to engage with any kind of data registration.
It is unclear where health issues sit in this Bill. I declare all my interests in relation to health, as in the register. The powers can include, in Clause 30(10)(a), individuals’,
“physical and mental health and emotional well-being”.
That suggests that health data must fall within the remit of this clause, whether held originally by the NHS or whether they are then held by other bodies. It was in an interview that the Government Digital Service director-general gave as an example the large databases between the NHS and the DWP, commenting that these are large databases of citizens’ records and that we really need to be able to match them, which would suggest a read-across between the two. So while there is a prohibition in the Bill on the use of health and social care data for research, the approach may not have a prohibition in relation to data otherwise disclosed. The NHS bodies, for example, hold the data and, although the Secretary of State is not currently listed in the regulations as published, it is difficult to see how the Secretary of State could not be added to regulations at a later point.
Lord Keen of Elie
My Lords, the noble Lord, Lord Collins, should make no apology for revisiting the issues of transparency and public confidence because they lie at the heart of what this Bill is attempting to achieve and are contained in Part 5. It may be déjà vu again but that is perfectly justified by the circumstances. We are all concerned to ensure that there is such transparency within these provisions as to maintain, and perhaps even restore, public confidence in the use and sharing of data.
Amendment 82ZA proposes that, within six months of the Act coming into force, an independent review of the collection and use of data by the Government and commercial organisations is conducted. With respect, the scope of the review appears extremely broad and goes much further than the provisions of Part 5. The Royal Society and the British Academy are undertaking a review to consider the ethical and legal frameworks needed in the United Kingdom as data technologies advance. We intend to consider the findings of that review when it is published. In addition, I mentioned that the general data protection regulation will come into effect in the United Kingdom in May 2018. The implementation of that regulation will represent a significant change to the data protection legal framework for both the public and private sectors, including strengthening rights for individuals so that they have more control over their personal data. We intend to work with the Information Commissioner to explore how we can best meet these requirements, as well as to improve transparency in this space. As such, we do not see the value in commissioning a further major review of data ahead of preparing to implement the new data protection framework when the regulation comes into force in May 2018.
Amendment 103 also seeks to improve the transparency of data sharing under the powers in Part 5. As I have indicated, we support this intention as transparency, along with the protection of personal data, is clearly at the heart of all these proposals. There are, however, a number of real problems with the proposed new clause. Setting the requirement and contents in primary legislation would significantly restrict our ability to explore and consider the benefits and consequences of publishing a register. For example, there may be a need to exempt the inclusion of certain types of data sharing for reasons such as national security or commercial confidentiality.
Ahead of the 2018 regulation coming into force, we will work with the Information Commissioner’s Office and other interested parties to explore how we can best meet its requirements and improve transparency. In our view, the statutory codes of practice in the Bill are a more appropriate vehicle for setting out requirements to support greater transparency. We will run a public consultation on the codes of practice as well as the required statutory consultations and we propose, as part of that, to gather views on the type of information about data sharing that should be captured and made public, as well as the risks and benefits. In addition, the draft codes already contain requirements for privacy impact assessments to be prepared and published. Further, we are continuing to explore with the Information Commissioner whether more can be done in this Bill to ensure that his codes of practices on privacy impact assessments and privacy are fully considered when data are shared under Part 5. I hope to return to this point later in the proceedings.
Amendment 104 proposes an obligation for organisations to report data breaches and submit associated audit returns to the Information Commissioner’s Office. As I have indicated, the EU general data protection regulation will apply in the United Kingdom from May 2018. The new regime will introduce tough measures on breach notification, making it a requirement for all data controllers and data processors to report breaches to the Information Commissioner’s Office if they are likely to result in a risk to the rights and freedoms of individuals, and the individuals affected must also be notified where there is a high risk. The new regime will also allow tougher penalties to be imposed on organisations in breach of the rules. I believe these will be penalties of up to 4% of the organisations’ total global annual turnover, or €20 million.
Under current arrangements, the Information Commissioner’s civil monetary penalties guidance says that he can take into account what steps, if any, the person or organisation had taken once they became aware of the contravention, when determining the amount of the monetary penalty to be issued, so there is provision for those who delay or defer the reporting of data breaches. At this stage, we are confident that the Information Commissioner has the necessary powers to take action against those organisations that are in breach of the rules so, while I accept the spirit of the amendment and understand the need for transparency, I do not believe it is necessary as the new tougher rules under the EU regulations will apply from May 2018. As I stated, under the current regime, the commissioner can and does take into account what steps, if any, an organisation has taken in addressing breaches and in deciding penalties under the Data Protection Act.
Amendment 111 would require a secure audit record to be compiled specifying the personal information shared under the public service delivery power. This well-intentioned amendment is also considered unnecessary. The code of practice that has been drafted in support of the public service delivery provisions already requires an audit to be kept by data controllers of information shared under this power, and the Information Commissioner’s data-sharing code of practice similarly requires organisations to keep records of information shared. In addition, the EU general data protection regulation will apply to Part 5 and place further specific legal obligations on organisations to maintain records of personal data shared and of processing activities. Organisations will now make the necessary preparations to comply with that regulation.
For the benefit of the noble Baroness, Lady Finlay, I emphasise that the processing of personal data under the public service delivery power must already be in accordance with the Data Protection Act. The Information Commissioner is responsible for enforcing and promoting compliance with the Data Protection Act. The commissioner undertakes a programme of consensual audits across the public and private sector to assess their processing of personal information. The commissioner also has the power to conduct compulsory audits of public sector entities to evaluate compliance with the data protection principles. The commissioner has powers to obtain access to the information she may need to conduct those assessments.
Lord Collins of Highbury
I thank the Minister for his response. We await the revised and improved codes of practice, which will be a fundamental ingredient in building confidence in data sharing. If there are existing powers with regard to the requirement to report breaches, I think most people in this country will wonder why Yahoo was not picked up for failing for 10 years to report a breach which could have impacted on its confidential financial information. I welcome the fact that we will come back to these issues at later stages following consultation with the Information Commissioner. We know what is in the GDPR and what we are required to do. It will come into force in May 2018 and it is very important that the Government commit to the principles in it. We may have to come back to that issue at later stages of the Bill. In the meantime, I beg leave to withdraw the amendment.
Lord Ashton of Hyde
“Disclosure of information to water and sewerage undertakers
(1) If the first and second conditions are met, a specified person may disclose information held by the person in connection with any of the person’s functions to— (a) a water or sewerage undertaker for an area which is wholly or mainly in England, or(b) a water or sewerage undertaker for an area which is wholly or mainly in Wales.(2) The first condition is that the disclosure is for the purpose of assisting people living in water poverty by—(a) reducing their water or sewerage costs,(b) improving efficiency in their use of water, or(c) improving their health or financial well-being.(3) The second condition is that the information is disclosed with the intention that it will be used by the undertaker in connection with provision in the undertaker’s charges scheme under section 143 of the Water Industry Act 1991 which is included in that scheme—(a) in compliance with regulations under section 143A of that Act which impose requirements within subsection (2)(d) of that section (power for regulations to require charges schemes to make special provision for particular classes of individual), or(b) by virtue of section 44 of the Flood and Water Management Act 2010 (social tariffs).(4) In the case of a person (“P”) who is a specified person merely because of providing services to a public authority, the reference in subsection (1) to the functions of a specified person is limited to the functions P exercises for that purpose.(5) For the purposes of this Chapter a person lives in water poverty if the person is a member of a household living on a lower income in a home which—(a) cannot be supplied with water at a reasonable cost, or(b) cannot be supplied with sewerage services at a reasonable cost.”
“Disclosure of information by water and sewerage undertakers
(1) If the condition in subsection (2) is met, a person to whom information may be disclosed under section (Disclosure of information to water and sewerage undertakers) may disclose information held by that person to a specified person.(2) That condition is that the disclosure is for the purpose of assisting people living in water poverty in England and Wales by—(a) reducing their water or sewerage costs,(b) improving efficiency in their use of water, or(c) improving their health or financial well-being.”
Lord Ashton of Hyde
Brexit: Transport
(7 years, 10 months ago)
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Baroness Randerson
To ask Her Majesty’s Government what assessment they have made of the impact of Brexit on the transport sector in the United Kingdom.
Baroness Randerson (LD)
My Lords, across the world trade normally takes place most intensively with our neighbours. There are exceptions to that, of course—not much passes between North and South Korea, for example—but, setting aside countries with major ideological and diplomatic differences, it is obviously sensible to concentrate on trade with your neighbours. Distance costs time and money.
Even the vote of 23 June did not totally undermine those basic truths. It was possible for us to leave the EU while remaining in the single market, leaving intact the basic principles of successful international trade. However, the Government have decided to go for a very hard Brexit dressed in the clothes of bold internationalism. We are turning our back on Europe and seeking friends across the other side of the world.
Whatever the agreements made for trade in goods or services with the remaining EU and the rest of the world, trade will grind to a halt if we can no longer transport our goods or personnel. Our international trade stands on the shoulders of our airlines, HGVs, shipping and ports and our railways, so transport agreements must be prioritised. We are part of EU transport agreements which will have to be unpicked and hopefully replaced. There is a host of agreements with countries beyond the EU to which we belong as EU members, and these too will have to be replaced. That is the first step to stay where we are at the moment. The transport industry’s economic impact underpins all the rest. Get this wrong and nothing functions properly, from the City of London to the car industry in Sunderland.
I start with aviation, worth £52 billion a year to our economy. We have the third-largest aviation network in the world, and 54% of scheduled commercial flights from the UK go to the EU. The single aviation market has revolutionised the way people travel, with the advent of cheap flights. Airlines can have a base in one member state and operate on a cabotage basis between other member states. Therefore, easyJet can fly not just between the UK and Italy but between Germany and France or between airports within Italy, for instance.
Obviously, airlines want to carry on doing this. Post Brexit, they want the UK to become part of the European common aviation area, but this would require acceptance of EU aviation law. They also want us to remain a member of the European Aviation Safety Agency. Unless our airlines continue to get unfettered access to EU markets, they warn of inevitably rising air fares. They need to continue to employ staff from across Europe, with current employment rights protected. There is a host of other issues, such as security, repair and maintenance arrangements, pilot licensing, the availability of slots, air traffic management and so on.
Then there is the open skies agreement between the EU and the US. We are a member by virtue of being an EU member. We are part of a single airspace block with Ireland, which will of course remain in the EU. Therefore, continuing as a part of the open skies agreement will require obvious compromise, as it will involve sharing competence with EU institutions.
The road haulage industry has a similarly complex reliance on an open EU market. Even our domestic road hauliers will be impacted by withdrawal from the EU because 60,000 EU nationals now work in UK domestic transport. Any EU operator with an international operator’s licence can transport goods between any EU countries. EU rules underpin much of the regulatory regime for the road haulage sector, covering qualifications and licensing, drivers’ hours and tachograph standards, vehicle standards, roadworthiness and so on. There is significant co-operation between enforcement agencies across Europe, and safety on our roads is dependent on EU agencies and EU standards.
The main concern of the industry is that new certificate of origin rules, permits or quota systems would lead to delays at ports and add to the cost of goods. It points out that our ports have physically developed without the space or systems to allow significant amounts of paperwork to be processed. To transport a lorry load of goods from London to Milan in 1988 required 88 separate documents; it now requires one. I think that that says it all. UK ports handle 95% of imports and exports by weight. About half our maritime trade is with the EU. The British Ports Association estimates that, based on current trade levels, HMRC will have to process about 300 million additional customs declarations each year. There is a major fear of bottlenecks and disruption at ports.
I come now to railways, where there is concern about the bedrock of staff employment rights, passenger rights and safety. Mostly, of course, trains run entirely within our borders, but the obvious exceptions are Eurostar and the freight trains running through the Channel Tunnel. The tunnel carries a quarter of the UK’s trade in goods with the EU. Of course, the dream of the Channel Tunnel is far older than the EU, but it has been built and run as part of the EU. The possibility of tariffs and quotas will have the same impact on its operators as it will on the ports. Eurostar is a UK company and its whole purpose is to link us with Europe. It has thrived on the free movement of people. The EU directive establishing a single European railway area, with common rules and principles, has opened up markets in Europe. The costs are reduced by mutual recognition of qualifications and a consistent approach to safety. Eurostar wants to continue to recruit strongly from within the EU and to work closely with rail operators in Europe.
The themes I have spoken of are echoed by the bus and coach industry. It too wants to be able to trade freely with the EU—to take passengers without needing a visa and to bid for contracts in other states. It too values the simplicity that the EU has brought and the rights of access to those markets.
I want to make a final point on infrastructure development and the Trans-European Transport Network. It developed a transnational approach to infrastructure development and is a vital source of funding. It was expected to provide between 4% and 6% of the overall cost of HS2, for instance—a significant black hole for the Government now to fill.
There are some recurring themes: free access to markets with no tariffs or barriers; free movement of labour; a common and consistent approach to maintaining security, safety, regulation, employment rights and consumer rights; the right to invest on equal terms throughout EU member states; and common environmental standards. I have not had time this evening to explore the need to work together across the European Union on vehicle standards in order to improve air quality.
Those are not my demands; they are all taken from statements made by the major transport trade bodies and companies. The transport industry wants the future to look as much like the present as possible. It believes that the EU has in general enabled its businesses to expand and thrive. I have no doubt that the Minister will talk this evening of alternative markets—a big, bold, beautiful Brexit, with Britain trading with the US, China and Australia. However, I am not comforted by last week’s White Paper.
I have no doubt that major shipping companies and the big airlines will adapt and prosper over time, but there are huge parts of the transport industry which cannot do that: the markets of HGV operators have to be among their close neighbours; for ferry companies, long-distance options are not possible; markets in China are no use for bus operators which currently take tourists down the Rhine valley; and for Eurostar and the Channel Tunnel, trade with Europe is their whole purpose. For all of them, the Government’s decision to leave the single market cuts at the roots of their business.
Lord Patten (Con)
My Lords, rising as though from the Bench of Bishops, I take as my text this evening what the Latvian Prime Minister, Mr Maris Kucinskis, said during the weekend summit in Malta:
“What is most important is to think about a beneficial partnership … Every member state is looking to build the best possible trading relationship with the UK and I think that the whole Union will also benefit from a strong trading relationship”.
Those remarks certainly apply, as the Prime Minister of Latvia said, to transport as to everything else economically. He represents the new generation of younger, realistic EU leaders—still, small voices of calm who should be listened to very carefully.
In the end, my assessment of the impact of Brexit on the transport sector is that it will not be very great. That is because I think that the European weather is changing. Increasingly, grown-up voices, also since Christmas, have been urging the need for a change in the European weather, urging amicable separation, and no one more economically grown up—and, to me anyway, personally more admirable—than the brave German Finance Minister, Dr Wolfgang Schäuble. He was saying just that at Davos, as well as in a very carefully worded interview over the weekend in Tagesspiegel. He said that the euro was overvalued in relation to the German economy, continuing:
“We want to keep Britain close to us. London’s financial centre serves the whole European economy. London offers a quality of financial services that are not to be found on the continent”.
I respectfully agree with the man who has been German Finance Minister so successfully since 2009. What he says is critical for UK transport and much else in other economic sectors post Brexit. Flows of capital into and out of the City, where I work, are critical to the domestic economy. Had Dr Schäuble said the opposite, panic would probably have set in in the media overnight, and I think it is strange that the good news of his very positive views going forward have not yet been any more than scantily reported.
For the generality of people in the country at the moment, although the noble Baroness, Lady Randerson, made her points so well, the transport matters following from Brexit are not of much concern yet—perhaps they will be later. People are more concerned about the chaos on British railways and on the Underground. That really need rapid attention. TfL and the mayor need to get going and sort out what is going on in London Underground. Above all, we need to bring about existential changes in industrial relations in the transport sector.
That said, the biggest benefits for the transport sector, by comparison, are not to be found in detailed Brexit negotiations but by our remaining stalwartly open to foreign direct investment, in a way largely unknown to most of our current EU partners. They do not necessarily welcome FDI in the same way as we do. Take the 1 February announcement of UK manufacturing figures for January 2017. It was a cracking start to the year in transport and other sectors—as my noble friend the Minister will know—and where German and French companies have long been players. We rightly regard our transport infrastructure and services as vital, but we do not protest against foreign direct investment and instead welcome it into this country. We do not adopt a protectionist attitude, unlike the French a few years back when they declared their yoghurt manufacturer, Danone, a strategic asset when it was receiving possible takeover attention from foreigners. We take a much more enlightened approach. The US has well-developed institutions governing the transport sector, and the professional consensus is that market liberalisation is well developed compared with many other member states.
Following Brexit, foreign direct investment into transport should be welcomed, whether in manufacturing or indeed service provision. Take rail services and the bidding for franchises: public procurement arrangements and international trade rules operate on the reciprocity principle. In these changing times, both sides will wish to see UK operators in the UK mirroring the treatment of EU operators wanting to win franchises in this country. It is totally mutually self-destructive not to do that. In the EU, all rail franchises must be competitively tendered in the 2019 to 2022 period, so all that is needed is for operators to continue to comply with regulations concerning safety and technical standards—ditto for UK operators wishing to compete outside the European Union, for the UK will remain an active member, and I welcome that, of the Intergovernmental Organisation for International Carriage by Rail.
I move to a second and last example, from rail to road transport. The noble Baroness, Lady Randerson, in the closing words of her very important and interesting speech, raised the issue of vehicle standards and emissions. In my closing words, I agree with her. Here, I think Brexit will allow us to show leadership to the rest of Europe on the approval processes and procedures for vehicles and their emissions. Not only is the UK happily one of the world leaders in car manufacture, but our companies have played it straight throughout on emission measurements in this country. They have certainly played it very straight compared to the emissions scandals affecting some German and French manufacturers, which are an utter European disgrace. I think the world’s consumers will look very favourably on any additional UK approvals as backing up the global reputation of our motor manufacturers. We can take a leadership role in honesty, which will be a great selling point for the UK, its cars and transport sector and so many other areas of transport policy.
Lord Whitty (Lab)
My Lords, the noble Lord, Lord Patten, has a very overoptimistic view of the position. I agree that transport is likely to be one of the sectors least affected by Brexit, but the hope for a positive mood among the politicians of Europe, which was certainly still there after the initial shock two or three months ago, has been sadly disappointed by the way in which the Prime Minister’s definition of the UK’s bargaining position has excluded us from any form of membership of the single market and any form of real participation in the customs union. Both of those seriously affect the transport sector.
I thank the noble Baroness, Lady Randerson, for introducing this interesting debate. She and I are both members of the same sub-committee of the EU Select Committee, which has been looking at trade. When we looked at the options for trade, at that point we still considered partial membership of the single market at least as a potential option, as with at least temporary continued membership of the customs union. We have received evidence from and talked to, formally and informally, representatives of manufacturing and of goods and services, and we are now looking at services in more detail, including transport services. The initial reaction of those industries, after the shock of the referendum vote, was panic, and then they came back with the view, sector by sector, that, “Okay, we are where we are, but we could do a sectoral deal on this front and still retain all the key issues of membership of the single market”. I am afraid the Lancaster House speech, followed by the White Paper and the Statement with the White Paper last week, have cut off that possibility.
As the noble Baroness pointed out, transport has been hugely integrated across Europe for the past 40 years—not totally but to a significant degree. A regulatory structure applies to the whole of European transport, including on issues of safety, ownership, routes and vehicle standards, as has been said. These are all easy to deal with within the single market; they become much less easy outside the single market.
In aviation, there is probably greater scope for doing a bespoke deal than there is for the other sectors. European airspace already extends to some extent beyond the European Union—to Norway, Iceland and some of the Balkan countries—but it is very important that we establish early on in the negotiations that aviation is dealt with as a one-off. Not only does it define the use of European airspace and our access to European airspace, which at the moment also includes issues of establishment and whether UK-owned airlines or UK-domiciled airlines can operate effectively in other countries and within other countries, but it also defines our relationship with the rest of the world, including the open skies agreement with the United States. We need to retain that. That can probably be dealt with in a separate deal. Whether it could be dealt with in a separate deal entirely within a free trade agreement—which appears to be now where we are in terms of narrowing down our options, which we have, unfortunately, done over the past couple of months—is not entirely clear.
If we were to take the jump off the cliff, concluding that no deal is better than a bad deal, and go to WTO standards, we would still probably be able to do a separate deal on aviation, but that would require a lot of negotiation, hard bargaining and recognition of what the key British interests are in terms of retention of routes, slots, airline establishment and so forth. Aviation is somewhat different from the other modes of transport. Its regulatory system is very much an EU responsibility and competence.
I could argue that, if we reverted to control of the rail system with renationalisation of the railways, which I think is still the Labour Party’s policy, that would be more easily achieved outside the EU. It is not completely banned by the fourth railway package that we are currently negotiating, but it would be more difficult were we to remain members of the EU. However, the through routes to which the noble Baroness referred, such as the Eurostar and the large amount of freight that is carried by railways and so forth, all affect the railway sector. That is an essential part of the single market mechanism, and we will be outside the single market mechanism.
In road transport, there are a whole range of regulatory structures involving driver hours, vehicle standards, vignettes and cabotage arrangements and so forth. Drivers are an international workforce, so getting control of migration may limit the degree to which British operators and foreign operators trying to trade import and export from the UK have access to a skilled workforce. Once again, road transport arrangements are a key part of the single market, and we will be outside the single market.
On shipping, a lot of shipping is between ourselves and Europe and there will be arrangements on safety, standards and routes that are part of the single market. But the far more important aspect of the maritime situation is ports. It may be beneficial for the owners of UK private ports, which are by and large privately owned within the UK, to be free of the regulatory structure that exists within Europe, which is largely geared to publicly owned ports. The problem for ports is not ownership or regulation but that, outside of the customs union, we will face all sorts of additional responsibilities on port administration, port space and the cost at the port level. If we are to be outside of the customs union, the movement of people and goods through our ports will be a much more complex issue. It will require space to check, and it will require administration and bureaucracy. Some of it can be subject to electronic arrangements these days, but much of it cannot. In the end, because of the configuration of most UK ports, it will be difficult to extend the time, parking space and so forth which, even under the current arrangements, have been under some considerable strain, as we have seen particularly in Dover, over recent years. The need for additional space, checks and bureaucracy and the delays in shifting goods by road, rail through our ports and through our shipping will significantly increase.
All that is because we have taken a decision in principle that we will move away from the customs union. The ambiguous words in the Lancaster House speech have now been whittled down to mean that any continued co-operation is on administrative arrangements. Desirable as those may be, they will not stop all the pressure on our ports, our roads, our shipping and our rail systems. The narrowing down of the options by the Lancaster House speech has put a greater burden on transport than looked like being the case a few weeks ago.
Lord Bradshaw (LD)
My Lords, I will add some burdens to the Minister in his reply by mentioning other factors that must be taken into account. I will talk about the British bus building industry. It is one of our great successes, with Wrights of Ballymena, Alexander Dennis in Scotland and Optare in Leeds. They are world leaders in the manufacture of buses. When we talk about buses, we always talk about all the components that go into building buses. I want to know that these people will be able to trade with countries in Europe on the same basis as they do now. If they are not, it will immediately deal a blow to employment prospects here. There are plenty of other people waiting to fill the gaps that we create for bus purchases.
Secondly, I am concerned about road safety. Figures published in the last couple of days show that serious road casualties of children are going up again, quite steeply. In statistics published by the Department for Transport, little coloured markers show each road user—pedestrians, cyclists, motorcyclists and cars. But lorries are missing. The need to keep the strictest control on lorries is vital if road safety is to be enhanced. Most serious casualties involve one or more heavy goods vehicles. Any race to the bottom that may be envisaged to allow the road haulage market to be liberalised must be balanced very carefully with the damaging effects of that on road safety and on the environment.
The existing railway franchise competitions, which when the railways were privatised were envisaged as something quite separate from the state, are now populated heavily by not only European Governments but foreign Governments. To that extent, I suppose they are nationalised. However, if they withdrew from competitions, which is a possibility, there would be very little competition left in the British market. Very often, they are one of two bidders, or two out of three, for franchises. They mostly run the trains very well and bring a lot of experience, but if we cut ourselves off, that element of competition will not be available to us.
Lastly, I turn to the position of Airbus. It is a joint venture between France, Germany, Britain and, I think, Italy. A huge number of skilled workers in Cheshire depend on Airbus for their living. If the Airbus consortium were broken up in any way, Cheshire could lose out very heavily because there are manufacturers on the continent of Europe that will willingly step into the void left by our withdrawal, and there will be tremendous casualties. That applies in a lot of other areas besides transport. A lot of employment depends on our remaining in the European Union. The examples that I have cited involve transport—I have tried to stick to this particular debate—but I am sure there are many others in many other areas.
Lord Berkeley (Lab)
My Lords, I am grateful to the noble Baroness for securing this debate because there are interesting and important issues that we have to discuss. The noble Lord, Lord Patten, mentioned the leadership of the UK on emissions. He may or may not be right, but when it comes to the production of emissions, which is the dirty air that we breathe in our major cities, the European Union has launched infraction proceedings against the British Government because we have not cleaned up the air that we should have under European regulations. There are two sides to this. On so many environmental things, I do not believe that our Governments—of whichever party—would have done as much as they have or should without pressure from European legislation.
I declare an interest as chairman of the Rail Freight Group. I am also on the board of United Kingdom Trade and Investment in Europe, which is a small group of companies and people in Brussels whose aim is to facilitate the knowledge of what UK organisations need to work in the European Union generally. Now, of course, they are also trying to get a feel for what the position of the European institutions might be when it comes to negotiations. The first comment from there—which I quote often as I am sure it is right—is that the White Paper, which many noble Lords have discussed this evening, will be seen in Brussels and many other national capitals as the UK Government picking and choosing from a menu and wanting to retain access to the single market while gaining more control over migration. I am sure Angela Merkel will remain unwavering, as she has said on many occasions that Europe’s four freedoms are inseparable.
When it comes to transport, the White Paper helpfully shows on page 53 that 40% of our exports are to the European Union. It is as well to remember that this is not just a one-way export, because over the last 40 years with the single market, freight has gone backwards and forwards many times in the course of its manufacture or distribution. As other noble Lords have said, it generally moves without too much obstruction and it has become extremely efficient in the way that it has been done.
I find it surprising that the White Paper does not mention rail, maritime or ports. It mentions air and road, and the problems might be much the same, but perhaps the solutions are not. If we think that one of the important issues is for our freight operators to be able to operate across Europe, we need to recall that it was only 25 years ago that cabotage was abolished, which was particularly enforced in France and prevented our own hauliers bringing back loads from France to the UK. That was abolished as part of the negotiations on the Channel Tunnel, on which I worked, and is not something we want to go back to.
Turning briefly to railway legislation, as noble Lords have said, it is very important, if we are to use railway traffic across Europe from here, which I hope we will continue to do, that the standards of the legislation are Europe-wide. I recall about five years ago, a manufacturer of some excellent railway wagons in this country wanted the wagons to be able to operate in France. Because they had to be approved by the French standards agency, many things were found wrong with them and they never went there. If they had been manufactured in France, I am convinced there would have been no problem at all. One of the successes of the European work in the last few years has been the creation of the European Railway Agency, which now has the ability to approve rolling stock on a Europe-wide basis. That is incredibly useful for our manufacturers and I hope it will continue.
As other noble Lords have said, the biggest problem will come on the frontiers themselves. I understood from a colleague today that, if there were a 24-hour traffic jam at Dover, it would stretch up the M20, the M2 and the A2, and round the M25 as far as Stansted airport. This is the importance that we must attach to getting the traffic through Dover on time and as freely as possible. The noble Baroness mentioned 390 million filings a year, and she is absolutely right, but how is this to be done? I am told that the French customs authorities already employ three times the number of staff that we do. We get delays. The incredible thing is that the number of units of freight going through Dover has increased by 32% in four years. Depending on what happens to our trade generally with the rest of the European Union, that might not matter very much; it may not go on. The free flow of the documentation—it all seems to go through Dover at the moment, apart from what goes through the Channel Tunnel—is vital for our future trading and prosperity.
The biggest problem—which is not identified in the White Paper, although other noble Lords may have referred to it—is the uncertainty. Companies, operators, exporters, importers and forwarders want to know what is happening, when it will happen and how much it will affect their business. Do they have to change their manufacture or distribution from the UK to France or somewhere else? All the big sheds that have been built around this country for distribution might have to go back; perhaps there will be more in France. I hope the Government will tell us very quickly what is going to go on, what is happening and when, for the sake of our industry.
Lord Roberts of Llandudno (LD)
My Lords, I appreciate the opportunity to speak in the gap on this particular issue. Many will know that, over the years, I have asked many questions about road traffic accidents and so on along the A55 in north Wales. The proposal, if we leave the European Union, that we will have different road regulations leads us to think that the situation is even more worrying and causing more concern than it has in the past.
When we consider the borders of the European Union, we speak of the border between the south and the north of Ireland, a border that does not seem to be causing a great deal of anxiety—and yet, who knows? But there is another border; that of the Irish Sea. It is the border between Holyhead and Haverford West and the Irish ports. The Irish Sea will be a border. How will we tackle that border? We have large vehicles coming from, say, Dover. They will be under different regulations, European regulations, up to Dover; and then from Dover to Holyhead they will be under UK regulations. I suggest that the regulations from Europe have saved many serious accidents along the A55 and other roads affected.
When we consider the overloading of lorries, the length of drivers’ hours, poor roadworthiness and other abuses of regulations, these are all regulated from Europe. VOSA staff have the power to stop a lorry if the driver has exceeded his allotted hours, or the lorry is overloaded or in poor mechanical condition. Many serious accidents have been avoided because of these European regulations. Will the Minister tell the House how these arrangements with the European regulations are working at present and what traffic arrangements will apply if we leave the European Union?
Lord Rosser (Lab)
I thank the noble Baroness, Lady Randerson, for securing this debate on an issue that is not necessarily at the top of the list when we consider the implications for this country of leaving the European Union, despite the fact that transport plays a critical role in supporting our economy. For that reason, there needs to be some clarity over what we are seeking to achieve in the forthcoming negotiations on our exit from the European Union in respect of each of the major sectors of our transport industry. The priority should be, at the very least, to avoid any adverse impact on jobs, the economy and living standards. Are those the Government’s priorities or do they consider other objectives more important? If so, what are those different priorities?
Our aviation sector is the largest in Europe and the third largest in the world, supporting some 1 million jobs. Airlines that operate from within the UK are able to rely on the EU single aviation market, which allows any airline owned and controlled by nationals of EU member states to operate freely anywhere within the EU without restrictions on capacity, frequency or pricing. Additionally, EU carriers are able to take advantage of the traffic rights contained in the many air services agreements that the EU has negotiated on behalf of all member states with non-EU countries.
At present, we are a de facto signatory to these agreements as an EU member state. When we leave the EU, and if we do not retain any form of European common aviation area membership, our airlines will need to negotiate new rights, from outside the EU, to operate freely within the EU and to operate transatlantic routes. What are the Government’s objectives in relation to protecting, or not protecting, the existing rights of our airlines over where they can fly under existing European aviation agreements? The Government’s White Paper is not as clear as it might be on this point, referring in paragraph 8.32 to,
“a clear interest for all sides to seek arrangements”.
Between 2011 and 2015, a quarter of all European Investment Bank lending to the United Kingdom was for transport projects. Transport for London, for example, borrowed £1 billion from the EIB to part-finance Crossrail. In addition, the European Commission provides direct funding for transport infrastructure projects. Half the cost of the ground investigation works for phase 1 of the HS2 route between London and the West Midlands was funded from Europe, and potential EU funding formed part of the Government’s case for giving HS2 the go-ahead. Will the Government confirm that they will make up any shortfall in investment in the rail network arising from the loss of direct EU funding or loans from the European Investment Bank? Will the Government also say what they estimate that shortfall in investment is expected to be?
The main European Union legislation as it relates to railways is contained in the three railway packages that have been passed, and in the latest fourth railway package. The individual pieces of legislation which make up these packages are wide-ranging and include prescribing how railways can be structured, financed and run. To what extent do the Government see these packages, and the measures they contain, as relevant and applicable to our rail industry beyond the immediate term, once we have left the European Union? On road haulage, will the Government seek to ensure, as part of the Brexit negotiations, the continuation of the practice that enables British hauliers to carry goods between EU member states? Or do the Government not see this as a priority once we have left the European Union?
Will the Government also seek to ensure that British driving licences will continue to be exchangeable with those of EU member states after we have left the EU, so that UK nationals, for example, who migrate to a country in the EU will not have to take another test in the new country? Or will this issue not be a priority for the Government? More than one-fifth of UK international trade involves transport by ship to and from EU countries, and more than 90% of UK trade in weight is handled by ports. If it is the Government’s expectation that we will no longer be part of the single market and the customs union, what guarantees can the Government give that this will not involve establishing new customs checks on imports and exports, which could cause considerable congestion at UK and mainland European ports and will potentially have an adverse impact on maritime trade and our maritime transport sector, as well as on road, rail and airline freight traffic?
However, it is not just the movement of goods that could be an issue following Brexit. The main transport sectors have been affected by the movement of people across mainland Europe seeking to come to this country. One unauthorised method of trying to reach this country has been through seeking to travel undetected on a heavy goods vehicle. Certainly until recently, some leading figures in the road haulage industry considered that the number coming to this country in this way ran into the tens of thousands per year despite, for example, the checks undertaken, and co-operation given, at ports on the other side of the English Channel.
Can the Minister indicate what the Government’s estimate is of the number of people gaining unauthorised entry to this country per year, and how they intend to address this situation during the negotiations on our withdrawal from the European Union, bearing in mind the current impact on our transport industry despite the checks and co-operation, and the potential impact after we have left the European Union? Will our withdrawal from the European Union lead to the need for more extensive and time-consuming checks at our own ports to control and stop unauthorised entry into this country, or is it envisaged that the existing co-operation and support we receive from adjacent mainland European countries over checking for unauthorised entry to this country will continue after we have left the European Union?
If that existing co-operation and support is less likely to be offered when we break away from, and cease to be part of, the European Union, what do the Government consider could be the consequences for border checks at our points of entry and for those sections of the road haulage, rail and maritime transport industries in this country that are involved in the international carriage of goods and passengers?
There are other potential impacts of Brexit on the transport industry in this country that I have not touched on, including impacts in the fields of the environment and health and safety. I hope, however, that the Minister will be able to provide some answers to the questions I and other noble Lords have raised in this debate about the potential impact of Brexit, and the Government’s objectives and priorities for the different sectors of our transport industry in the forthcoming negotiations on our withdrawal from the European Union.
The Parliamentary Under-Secretary of State, Department for Transport (Lord Ahmad of Wimbledon) (Con)
My Lords, I join other noble Lords in thanking the noble Baroness, Lady Randerson, for this opportunity to discuss the important issue of the UK’s exit from the European Union and related transport matters. I am also grateful for the chance to respond to the points raised during this debate, and if there are questions that I am unable to answer within the time limits I shall write to noble Lords about them.
First I will address the general points raised. It is the Government’s very strong view that, as my right honourable friend the Prime Minister herself articulated in her speech of 17 January, we should be “a truly global Britain”. What does this mean? As she explained, it means a “stronger, fairer, more united” country, one that is outward-looking, open for business and a magnet for international talent. It will be,
“an ambitious country that goes out into the world to build relationships with old friends and new allies alike”.
The noble Lord, Lord Whitty, made the role of the single market quite clear. He is right: as the Prime Minister has made clear, Britain will not be a member of the single market. As EU leaders have themselves made clear—it was also a point made by two noble Lords during the debate—staying in the single market would mean accepting the four freedoms and a role for the European Court of Justice. In the Prime Minister’s words:
“It would to all intents and purposes mean not leaving the EU at all”.
The noble Lord, Lord Rosser, in the various questions he raised, asked about the priorities, and I agree with him that transport is vital in realising this vision of a global Britain. These principles will inform our approach for transport in the negotiations ahead.
There have been a number of points about how different modes of transport will be affected by Brexit. As we all acknowledge, transport providers move huge numbers of passengers by air, road, rail and sea, and our logistics providers ensure that vital goods are moved efficiently. Let me be clear: we want them to continue doing that with minimum hindrance. Of course, I acknowledge that when we leave the European Union our relationship will be different. As the Prime Minister has explained, when we leave the EU we will leave the internal market. Our focus as we discuss our future relationship with our EU partners will therefore be on finding sensible ways to allow transport operations to continue. I am sure that noble Lords will accept that it is too soon to say precisely what those arrangements will look like, but I believe that all citizens and businesses in Europe have a shared interest in finding arrangements that work for us here in the United Kingdom and for the remaining members of the European Union.
I will address the point raised by the noble Lord, Lord Berkeley, in his contribution on the White Paper and its specifics on different modes of transport. He acknowledged that air and road haulage are mentioned, but he should not infer from that that other modes have been forgotten, namely sea and rail transport. We are making thorough preparations for negotiations covering all modes. As I have said to noble Lords during Questions, we continue to meet practitioners and industry representatives across all modes of transport to ensure that their priorities are reflected in the negotiations with our European partners.
If I may address this issue sector by sector, I will start with my own portfolio as Minister for Aviation. The UK aviation industry is of course world leading. As noble Lords have acknowledged, our airports service the third-largest aviation market in the world and the largest in Europe. Demand for flights continues to grow and UK airlines have seized opportunities globally, including those offered through European aviation markets. The Prime Minister made it clear, as did last week’s White Paper, that we will seek new strategic partnerships with the European Union, including wide-reaching, bold and ambitious free trade agreements. Aviation should be a part of that, so that citizens in the UK and the EU can continue to access air travel as they do now.
I assure your Lordships that the Government are working closely with the aviation industry to ensure we understand its priorities and needs as we start discussions with the EU. I have attended very constructive, pragmatic and positive meetings with representatives from across the aviation industry, along with my right honourable friend the Secretary of State for Exiting the European Union, David Davis. We stressed the point then that our air connections with Europe are important, but we also have an opportunity to widen our horizons. Leaving the European Union gives us more freedom to make our own aviation agreements with countries beyond Europe. Last year, after my appointment as Aviation Minister, I signed a deal with China that will more than double the number of flights operated between our two countries, boosting trade and tourism.
The noble Baroness, Lady Randerson, talked within the aviation context about the importance of the European Aviation Safety Agency, or EASA. As she will be aware, the UK has played a pivotal and active role in developing air safety standards. Our expertise is valued and recognised. We therefore hope and expect that all sides will value our continued participation—a sentiment which my noble friend Lord Patten reflected in his contribution.
Britain is open for business and open to the rest of the world. The connectivity provided by aviation is essential to making this happen. Whether it is new agreements such as that with China, our support for a third runway at Heathrow or the new aviation strategy, we will do what is necessary to support our future prosperity and growth. I assure the noble Lord, Lord Bradshaw, that this includes ensuring the prioritising and protection of jobs. He mentioned the example of Airbus, a corporation which we continue to work with not just in the UK but across Europe to ensure its presence on the global market.
If I may turn to road haulage, I mentioned the importance of the logistics industry in my opening comments. We are of course very much dependent on road hauliers. The noble Lord, Lord Berkeley, makes sure that we are fully aware of the importance of road haulage across many areas when we discuss it in this House. It should not be understated as, without those hauliers, our shops would be empty and our industry would grind to a halt. The logistics industry plays an important role by doing a first-class job in transporting goods to where they need to go.
The vast majority of lorries on our roads undertake domestic deliveries and never leave the country, yet a number make international journeys. Over 80% of these lorries are owned by European firms, not UK ones. Both the UK and the EU will want sensible arrangements in the future that allow goods to flow freely from and to the UK. I also want to ensure that UK hauliers have fair opportunities to win international business. I assure your Lordships that we are working hard on this objective as we prepare for negotiations.
The noble Lord, Lord Bradshaw, raised the important issue of lorries and strict controls on road safety, as did the noble Lord, Lord Roberts, on the particular issue that he raised about the A55. I assure both noble Lords and the House that, as the Government have stated before, the great repeal Bill will act as the basis for ensuring that all EU legislation is transposed into UK legislation. The transition will ensure that those kinds of safety regulations are sustained and maintained.
The maritime sector has been operating successfully for many centuries, as many noble Lords noted, trading freely between ports across the world long before the European Union came into being. There is no reason why that will not continue after we leave. The UK has always been a leading maritime nation, and we will continue to build on this, taking a higher profile in the International Maritime Organization. Of course, as noble Lords will know, that is based in London. We will be facilitating international maritime trade, helping attract more maritime business to the UK and promoting the UK flag. The Government and industry have been working together to identify a shared goal of continued growth over the coming year and beyond. Given our exit from the EU, we will drive forward this work through the maritime growth study.
I turn briefly to railways. The creation of the EU internal market for rail services has been slower than for other modes, but the past 20 years have seen the opening up of international services. The British railway network is essentially a domestic network, so the effects of leaving the EU will be limited. However, we of course have one international connection with continental Europe—the Channel Tunnel. Let us not forget the Belfast-to-Dublin link too. We will focus on ensuring that these services can continue as now. I say to the noble Baroness, Lady Randerson, that we will ensure that, in everyone’s interest.
Across the transport sector we are determined to agree the best arrangements for Britain. The Government will continue to listen to our transport industries as their views develop. The noble Lord, Lord Bradshaw, raised the issue of rail franchising. We will not want to limit EU bidders in bidding for franchises. That will be part of the message to ensure that we are truly open for business.
We have world-class expertise in this country across many sectors, as my noble friend Lord Patten noted—in the automotive sector, in aerospace, in logistics, in transport engineering and much more. We must be confident in offering this to the world. We have every reason to be confident. Anyone who has seen the work on Crossrail—and I am proud to be the Minister for Crossrail—in this city will know that this country is capable of world-class engineering. It is recognised internationally. Country delegations visiting the UK want to see what Crossrail is all about.
Our departure from the EU is an unprecedented opportunity to shape our future. We must take advantage of all the opportunities it offers. We will get out into the world and do business right across the globe. Yes, I say to the noble Baroness, it is a bold and ambitious vision. The message we take to the world is this: the UK remains open for business. We are the same positive, pragmatic, outward-looking, globally minded nation we always were. We will continue to strengthen our role and our international partnerships on the global stage.
Digital Economy Bill
Monday 6th February 2017
(7 years, 10 months ago)
Lords ChamberRead Full debate Digital Economy Act 2017 View all Digital Economy Act 2017 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 80-IV Fourth marshalled list for Committee (PDF, 161KB) - (6 Feb 2017)
Baroness Buscombe
(a) is likely to cause harassment, alarm or distress to any person, or(b) is capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.”
Baroness Buscombe (Con)
My Lords, this group consists of mainly technical amendments to make sure the Bill works in the way it is meant to. Although they are technical, they are important. They fall into four broad subject areas: whistleblowing and journalistic freedoms; the meaning of “anti-social behaviour”; references to the Investigatory Powers Act; and the description and powers of devolved authorities.
In relation to whistleblowing and journalistic freedom, the first series of amendments relates to the new criminal sanctions for unlawful disclosure of personal information disclosed under the powers. Concerns were raised that the clauses as drafted could criminalise disclosures made by whistleblowers and journalists making disclosures in the public interest. This was never the Government’s intention. These amendments make sure that disclosures made by whistleblowers and journalists will not be subject to criminal sanctions.
There is a distinction here in terms of how the amendments address HMRC information and non-HMRC information. In respect of non-HMRC information, the amendments introduce additional exemptions to the general prohibition on further disclosure to cover “protected disclosures” under the Employment Rights Act 1996, which will protect whistleblowers pursuing the proper channels for disclosure. Disclosures made for the purposes of journalism are also removed from the criminal sanctions, provided that the disclosure is in the public interest.
There are already separate provisions in each of these chapters for personal information disclosed by HMRC. These amendments make clear that the criminal sanction for unlawful disclosure applies only to an official who wrongfully discloses HMRC information outside the permitted scope of the information gateways in Part 5 of the Bill at Chapters 1, 3, 4 and 5. This brings the provision into line with HMRC’s statutory regime in the Commissioners for Revenue and Customs Act 2005 and its other statutory information gateways.
I am conscious that the noble Lords, Lord Stevenson of Balmacara and Lord Collins of Highbury, have two amendments that relate to this section, Amendments 138A and 146A. I suggest that I reply to those amendments separately after hearing from noble Lords.
The second series of amendments concerns the definition of anti-social behaviour. Chapters 1, 3, 4 and 5 of Part 5 all contain a general rule restricting the use of information disclosed under these powers to the particular purpose for which it was shared and a general prohibition on further disclosure. There are a number of exceptions to these rules. A previous amendment added an exception enabling disclosures made for the prevention of anti-social behaviour. The definition as currently drafted needs to be adjusted to work in Scotland and Northern Ireland. These amendments provide a revised definition that works across the UK.
In relation to reflecting the enactment of the Regulation of Investigatory Powers Act, the third series of amendments is also minor and technical in nature. The public service delivery, debt, fraud, research and statistics clauses provide that information cannot be disclosed under these powers if that would contravene the Data Protection Act 1998 or if it is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000—commonly known in your Lordships’ House as RIPA. The Investigatory Powers Act 2016 received Royal Assent last December and will replace RIPA. These amendments replace the references to RIPA with references to the equivalent provisions in the IPA, with a provision for RIPA until that Act is fully in force.
Regarding devolved public authorities, the final series of amendments facilitates information sharing across the United Kingdom, including by and with public authorities in devolved Administrations. The amendments broadly fall into two categories, which I will take in turn. The first category provides personal information disclosed by Revenue Scotland and the Welsh Revenue Authority with equivalent protection to that given by Clause 60 to personal information disclosed by HMRC. In order to protect information relating to taxpayers, these two new clauses provide, as is the case for personal information disclosed by HMRC, that persons who are processing Revenue Scotland or Welsh Revenue Authority information cannot further disclose that information without the consent of Revenue Scotland or the Welsh Revenue Authority, as applicable. Secondly, reflecting the Government’s amendments to Clause 60, the amendments provide that persons who receive Revenue Scotland or Welsh Revenue Authority information under Clause 57(1) also cannot further disclose that information with the consent of Revenue Scotland or the Welsh Revenue Authority, as applicable.
Amendments 171 and 172 are consequential amendments to those tabled separately in respect of preventing unlawful disclosures under the research power. The first of these amendments is necessary to ensure that the separate safeguards regime for HMRC that has been maintained throughout Part 5 also applies to the criminal offence as amended. The second ensures that the separate arrangements for HMRC will be mirrored in respect of Revenue Scotland and the Welsh Revenue Authority.
The second category ensures that the definition of “Welsh body” in Part 5 is consistent with the definition of “devolved Welsh authority”, as will be enacted by the Wales Bill. The amendments will ensure that no devolved Welsh authority will be inadvertently excluded from the relevant Part 5 powers. The amendments also provide for Welsh Ministers to commence the provisions which relate to the disclosure of information by the Welsh Revenue Authority. This reflects the fact that the Welsh Revenue Authority is not yet operational. I beg to move.
Lord Stevenson of Balmacara (Lab)
My Lords, I thank the Minister for a very well-read response to the questions we all had about these technical amendments, although some of them were not quite technical of course. In terms of the four categories, I listened to three very carefully, and I will read what she said in Hansard, but we have no further comments to make on them at this stage.
She touched on the issue in relation to which we have two amendments down. I am grateful to the Government for responding so quickly to the discussion in another place on this issue, because as originally drafted, the Bill would have criminalised disclosures by whistleblowers and investigative journalists revealing matters of legitimate public interest. The point was picked up and discussed at some length, and had attracted interest from a wide range of people such as Sir Peter Bottomley and Helen Goodman, who raised it. The Minister in another place undertook to take it back, and we have now had the amendments put forward.
Those of your Lordships who have bothered to read the amendments in Clauses 50 and 51 will recognise that the wording is very similar in both cases. The difference, narrowly put, is that the amendment that we were advised would take the trick in this area included not just print journalism but also broadcast journalism. I am not certain whether that is necessary or not, but the Government have come forward with a slightly narrower point of view. I think we agree the aim, and it may just be a question of the correct wording, so unless there is any particular issue, we can do this either by correspondence or perhaps in a quick meeting, and I do not think there is anything on this point that need detain the Committee further. We are agreed and are delighted that the Government are making the move. It is just a question of trying to use what time we have to make sure that we have absolutely nailed it down completely.
Having said that, what has proved difficult in other pieces of legislation is how one defines whistleblowers. There is no attempt to do that here; the test is simply whether or not what has been disclosed was in the public interest. Again, there might just be something around that where we might look at other discussions and come back on it. But for the moment, I will leave it.
Baroness Buscombe
I thank the noble Lord for that. The opposition amendment makes specific reference to broadcast transmission when the government amendment on this topic does not. However, the word “publication” in our view can be construed sufficiently broadly to cover broadcast media. Section 32(6) of the Data Protection Act 1998 provides that:
“For the purposes of this Act ‘publish’, in relation to journalistic … material, means make available to the public or any section of the public”.
The ICO guidance on this indicates that publication for these purposes would therefore cover broadcast. As a result these additional changes are not necessary.
Lord Stevenson of Balmacara
It is quite an interesting point. The world has moved on since those original drafts, and we have to think a bit more carefully about what happens on YouTube and whether disclosure on social media will be covered by this. I do not dissent from what is being said but would just like to be certain that we have used this opportunity, which may not come again, to make sure we have this nailed.
Baroness Buscombe
I thank the noble Lord for what he has said and absolutely understand where he is coming from.
Baroness Buscombe
Baroness Buscombe
Baroness Buscombe
“( ) Until the repeal of Part 1 of the Regulation of Investigatory Powers Act 2000 by paragraphs 45 and 54 of Schedule 10 to the Investigatory Powers Act 2016 is fully in force, subsection (8)(b) has effect as if it included a reference to that Part.”
Baroness Buscombe
Baroness Buscombe
Baroness Buscombe
“( ) which is a protected disclosure for any of the purposes of the Employment Rights Act 1996 or the Employment Rights (Northern Ireland) Order 1996 (SI 1996/1919 (NI 16)),( ) consisting of the publication of information for the purposes of journalism, where the publication of the information is in the public interest,”
Baroness Buscombe
(a) is likely to cause harassment, alarm or distress to any person, or(b) is capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.”
Baroness Buscombe
Baroness Buscombe
Lord Arbuthnot of Edrom
“Cyber-security reporting
(1) The Companies Act 2006 is amended as follows.(2) After section 416 insert—“416A Contents of directors’ report: cyber-security(1) The directors of a company must prepare a cyber-security report for each financial year setting out measures the company is taking to address cyber-security risk.(2) This report should include—(a) cyber-security audits undertaken by the company,(b) details of breaches notifiable under the General Data Protection Regulation,(c) measures in place to ensure the confidentiality and integrity of data processing systems, and(d) processes in place to test and evaluate data protection measures and information technology systems.(3) Cyber-security audits must be undertaken by organisations accredited by the Secretary of State.(4) The cyber-security report must be approved by the board of directors and signed on behalf of the board by a director or the secretary of the company.(5) If a report is approved that does not comply with the requirements of this section, the directors commit an offence.(6) A person guilty of an offence under this section is liable on summary conviction to a fine.””
Lord Arbuthnot of Edrom (Con)
My Lords, I draw noble Lords’ attention to my interests in the register, particularly to the fact that I am chairman of the Information Assurance Advisory Council, chair of the advisory board of Thales UK and a member of the advisory board of IRM, among other cyber-interested companies.
This Bill is about the digital economy, but it contains very little mention of security. Yet cybersecurity is essential, both to the proper functioning of the internet, on which we so rely, and to the trust we place in the digital economy. Global research has been done by the Information Systems Audit and Control Association of the United States of America, and I am indebted to it for its help on these amendments. That research has shown that two-thirds of chief executives of major corporations do not have confidence in their workforces to deal with anything beyond the simplest of data breaches. We all know that there has been no shortage of high-profile data breaches on both sides of the Atlantic over the last 12 months. That has damaged the economic performance of companies and their stock price, and has significantly reduced consumer and business confidence.
I congratulate the Government on making real progress in this area. They have introduced Cyber Essentials, which has been helpful in boosting implementation of cyber controls. I suggest, though, that the uptake of Cyber Essentials has been disappointing. It is not always a requirement that companies observe even the relatively low level of assurance that Cyber Essentials suggests. I use the word “suggests” because of course it is not compulsory. Equally, the new cybersecurity strategy has brought £1.9 billion into developing a capability across the whole of society to address everything from the biggest companies to individual citizens. The Minister of State for Digital and Culture recently indicated in another place that the Government intend to implement the General Data Protection Regulation in full. That is a good thing, but I very much doubt that businesses—and probably even government departments—are anywhere near ready for the GDPR, nor as far along as they really should be by this stage.
In view of the existential nature of our reliance on cyber nowadays, I therefore suggest that we need to go further. Consumers, investors, executives and government alike all need confidence that businesses are taking appropriate steps to safeguard their data and their IT systems—and those of their supply chains as well—from malicious activity. So, I have decided to be helpful. I propose these amendments, which introduce the notion of a cyber audit. They are probing amendments: their wording creates obligations that are perhaps more imperative than I would like to see, because I believe we should start with encouragement rather than requirement.
Everyone is now accepting of, and accustomed to, the notion of external independent financial audits, which have become the norm throughout the world. I believe that a similar approach now needs to be followed in relation to cybersecurity. My suggestion is that we should undertake cyber audits—perhaps as part of financial audits, or perhaps separately; it does not really matter. Those audits could be based on standards that could be evolved by industry, rather than by government, because government legislation never manages to keep up with the astonishing pace of technological change. These cyber audits should include external stress tests of a company’s cybersecurity in areas such as email, and possibly even in relation to a company’s products.
I think the entire House knows that, in 2013, the Target chain of 1,800 stores in the United States of America was hacked by people who broke into its air conditioning system, which was supplied by a third party. Everybody knows about last autumn’s botnet attack by rogue webcams. So if we did this and went for cyber audits, we could gradually begin to address the issue of cybersecurity, so that over time no longer would it create quite the existential threat that it does now. It would need to start on a voluntary basis and be driven by business, not by government, but, in time, I believe it would spread internationally, so that the United Kingdom would not be disadvantaged in competitive terms. It would also ensure that the United Kingdom was in the vanguard of global best practice. I beg to move.
Baroness Jones of Whitchurch (Lab)
I expected more people to be inspired by the contribution of the noble Lord, Lord Arbuthnot, and to join in the debate. I am rising to give my support to Amendments 105 and 106 and to thank the noble Lords, Lord Arbuthnot and Lord Carlile, for highlighting this simple failure in company policy, which can lead to much bigger dangers and threats. As the noble Lord said, it can have commercial implications, personal privacy implications and, ultimately, national security implications. While we all have a part to play setting the highest standards of data protection, it is true that all too often we put the focus on national Governments without recognising the equal responsibilities of the private sector and private companies to play their part. This is particularly vital, given the number of private sector organisations which access data for government contract work. However, it also extends into other realms of commercial activity, such as commercial personal profiling, in which companies build vast data banks of our shopping habits, our friends, our movements—literally, where we are moving around in cities and towns—and our vulnerabilities, all of which have huge value both in their own hands and in the hands of cyber-thieves. These are issues which we have also flagged up in other amendments tabled today, and we have tried to build in more safeguards. My noble friend Lord Collins has said that we believe that individuals should have the right to know what information is being held about them, for example. They should have the right to be able to withdraw permission for the data to be held, and they should have the right to know immediately if a data breach has taken place.
We welcome the amendments, which would begin to address some of our concerns, by putting a straightforward obligation on companies to prepare a cybersecurity report each year, detailing the measures being taken to ensure that data are being kept safely. It is a simple ask, and it should not really be necessary, but the all too frequent security breaches taking place underline why a legal requirement has to be imposed. An Institute of Directors report last year showed that companies tend to keep quiet when there has been a security breach. As a result, there are no accurate figures on the extent of this crime, or the extent to which companies are being held to ransom. A survey of business leaders found that only half had a formal strategy in place to protect themselves and just 20% held insurance against an attack. Yet we also know that companies are also losing confidence in their encryption systems, their staff capabilities and awareness and the ability of their software to withstand a deliberate assault.
This is a huge issue. Of course, we have a vested interest in sorting this out, as often it is our personal data which are being stolen. But on a wider sphere it impacts on everything from company finances to sensitive market data and research and development. So we very much welcome the initiative set out in these amendments, and agree with the noble Lord, Lord Arbuthnot, that they are helpful. In itself, they will not completely solve the problem, but they represent another small step in getting companies to act responsibly in managing the data that they hold.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, Part 5 of the Bill requires public authorities and specified persons to specify and meet specific legislative conditions and controls on the handling of personal information. As I have said on a number of occasions this evening, these provisions will be underpinned by codes of practice setting out data security requirements, including cybersecurity. A body that fails to meet these could be prevented from using the data-sharing powers. That is the context in which I turn to Amendments 105 and 106.
Amendment 105 would require all but the smallest of companies to conduct audits on their cybersecurity and to report annually on it and their data protection measures. Clearly, the Government recognise that effective cybersecurity risk management is important to the success of the economy and, indeed, to ensuring the safety and integrity of private citizens’ data. The Government conducted the Cyber Security Regulation and Incentives Review in 2016 to consider whether we need additional regulation or incentives to boost cyber risk management in the wider economy and it showed strong justification for regulation to secure personal data.
The Government will seek to improve cyber risk management through our implementation of the EU general data protection regulation in May 2018. Its requirement to report breaches to the Information Commissioner and individuals affected, and the fines that can be issued under it, will represent a significant improvement. These will be supplemented by a number of measures to more clearly link data protection with cybersecurity, including through closer working of the Information Commissioner and the National Cyber Security Centre. However, we will not seek to pursue further general cybersecurity legislation for the wider economy as would be required by Amendment 105.
We believe that mandating the inclusion of cyber risk information in annual reports, or the introduction of legal provisions for cyber audit, is unlikely to be an effective way of encouraging large-scale change in cyber risk management. Instead, the National Cyber Security Centre plans to work with stakeholders to develop guidance for investors. The long-term aim of the organisation is to include cybersecurity in the guidance it provides to businesses on the kind of information it wants to see in an annual report, and in the reports it provides to investors each year on every listed company.
Amendment 106 is very broad in its aims and, as such, could have unintended consequences for the diverse range of grants that the Government fund each year. The supporting audit and insurance regime would be costly and challenging to enforce given the diversity of grant recipients, including those from voluntary and research communities. Furthermore, this amendment is unnecessary as many of these checks are in place as a matter of routine. The level of cybersecurity risk in grants will continue to be monitored and consideration given to how recently launched grant standards could be used to strengthen guidance in this area. This provides a far more flexible and proportionate solution than legislation.
With respect to subsection (2) of the proposed new clause in Amendment 106, the Government are already taking tangible steps to reduce the level of cybersecurity risk in their supply chain. As of October 2014, suppliers of central government contracts that involve the handling of personal data or the supply of IT products and services must demonstrate they have met the technical requirements set out as part of either the government-owned Cyber Essentials scheme or a suitable equivalent. The scheme was developed jointly with GCHQ and industry to support organisations of all sizes and across all sectors in getting a good, basic level of online security in place. In response to my noble friend Lord Arbuthnot I would observe that, as of the end of December 2016, nearly 5,500 certificates had been issued under the scheme, and we have a strategy in place to significantly increase the adoption of the scheme over the coming year. With that explanation, I hope my noble friend will withdraw his amendment.
Lord Arbuthnot of Edrom
My Lords, I am grateful to my noble and learned friend for his comments. From what he says I suspect that the Government are not quite there yet. However, I hope that my amendments will help to encourage them along a path of some form of regulation in this area. I suspect that the arguments my noble and learned friend used were similar to those that were first used when financial audit was suggested. However, I am grateful for what he has said. I am also particularly grateful to the noble Baroness, Lady Jones, for what she said and for the gracious way in which she said it. However, my amendments were aimed not so much at government as at business. I suspect that this will be part of a long-term campaign, so, with those words, I beg leave to withdraw the amendment.
Lord Ashton of Hyde
Lord Ashton of Hyde
Lord Ashton of Hyde
“( ) a devolved Welsh authority as defined by section 157A of the Government of Wales Act 2006, or( ) a person providing services to a devolved Welsh authority as defined by that section.”
“( ) References in this Chapter to people living in water poverty are to be construed in accordance with section (Disclosure of information to water and sewerage undertakers) (5).”
Lord Clement-Jones
“(a) the authority or civil registration official to whom it is disclosed (the “recipient”) requires the information to enable the recipient to exercise one or more of the recipient’s functions, and(b) the data subjects whose information is being disclosed have given valid consent under data protection legislation.”
Lord Clement-Jones (LD)
My Lords, I wish to speak also to Amendment 116.
This issue is extremely straightforward. My remarks may anticipate some of the points that the noble Baroness, Lady Byford, will make in due course on the clause stand part question, for which we have considerable sympathy. However, we on these Benches and many others outside the House are deeply concerned that Chapter 2 of Part 5 contains no safeguards against bulk copying of civil registration data. We accept the case for a power to disclose civil registration information where an individual has consented. A citizen should, of course, be able to choose to let the registrar inform other bodies of changes. However, new Section 19AA in Clause 39(2) appears to remove any limit to copying registration data in bulk. As regards the draft civil registration code of practice, there appears to be no explicit limit on that sharing of data in bulk, and certainly no requirement for individual consent. Therefore, the essence of this amendment is quite simply to require that there should be express consent of the data subject.
As regards Amendment 116, approximately 1.3 million births and deaths are registered each year under legislation dating back to 1953, which consolidated provisions going back to the start of civil registration in 1837. In 2009, a system was introduced to allow registrars to register births and deaths electronically but it is the hard copy which this generates which is the legal copy that will be used to issue the certificates. Registrars also have to use the electronic system to submit an electronic copy of each event to the superintendent registrar. Primary legislation is required to make the electronic copy the legal copy and to remove the need for paper altogether, although individuals could still order hard-copy certificates should they so choose.
It has been estimated that such a move would save the local registration service and the Home Office around £2.5 million a year, primarily through removing the routine creation of registers containing loose-leaf, watermarked registration documents. Local authorities currently have to pay to store hard copies of all documents, so the change would reduce future storage costs. Provided that sufficient checks are in place, electronic documents are more secure than paper ones, which is particularly important when loose-leaf documents are being moved.
I hope that I have made the case for this amendment, which is very much supported by many in this field, and I hope that the Minister will look favourably on it. I beg to move.
Baroness Byford (Con)
My Lords, my opposition to Clause 39 standing part of the Bill forms part of this group. I have listened carefully to what the noble Lord, Lord Clement-Jones, has just said. I come to this from a slightly different angle but the conversation goes round and round in a circle, and here we are trying to introduce protections again.
I tabled my opposition to the clause for probing reasons. I wonder whether it is possible to have examples of when and why a civil registration authority would disclose information. The definition in new Section 19AA(6)(e), introduced in Clause 39, lists as civil registration officials those local authority classifications which also appear as specified public authorities. Do the disclosure powers mean therefore that a civil registration official in, for example, my home county of Leicestershire may disclose information to other personnel employed within the county council, or do they empower him to disclose information to any or all of the other specified public authorities? From my reading of the subsection, that is not quite clear.
Would the regulations be used to divulge information specific to a person or perhaps a family, or could they ever cover everything registered at a particular time or relating to a particular location? For example, why would the NHS have an interest in receiving such information?
Could this chapter result in a large-scale information exchange between civil registration officials and public authorities using the internet? If so, how will such data be protected both in transit and at the receiving end? Do all public authorities use the same methods to guard against data theft and hacking? I shall be interested to hear the Minister’s response.
Baroness Hamwee (LD)
My Lords, perhaps I may ask a couple of questions which arise from the fact sheet on this issue. On civil registration, it says:
“The Bill establishes a framework, with appropriate safeguards, to share bulk registration information where there is a clear and compelling need”.
I wonder whether the Minister can help the Committee in understanding where that is translated into the Bill. The fact sheet also says:
“There are no intentions to share data with the private sector or for data to be used for any commercial purposes”.
It then goes on to say that,
“the powers would not permit this”.
However, I am sure that the Minister will understand my querying the words “no intentions”, because they suggest that there could be a change, and possibly one with which Parliament is not hugely involved. I am going to assume that the points made by the Delegated Powers and Regulatory Reform Committee are in the rather large pile of items that it raised and which the Government will reply to before Report, so I am referring to that only in passing, but it would be very helpful to understand how the points in the fact sheet, which is where many people would start, move over into the legislation.
Lord Keen of Elie
My Lords, the proposals in Chapter 2 of Part 5, which are being addressed here, will ensure that citizens are able to access future—can I have a moment to sort out my own speaking notes?
Lord Maxton (Lab)
While the Minister is doing that, can I ask whether this amendment covers Scotland? He is replying as the noble and learned Lord, Lord Keen of Elie. Registration of births, deaths and marriages was not introduced in Scotland until 1855 rather than 1837—I think—so does this amendment cover Scotland?
Lord Keen of Elie
It does not extend to Scotland. It is a provision pertaining to England and Wales. I am obliged to the noble Lord for giving me time to find my place in my notes. It is greatly appreciated.
As I said, the proposals in Chapter 2 of Part 5 will ensure that citizens are able to access future government digital services efficiently and securely, while removing the current reliance on paper certificates. I will address the two amendments first before addressing the clause stand part aspect of this debate.
Amendment 113 would add a requirement for a civil registration official to be satisfied that the information is required by a recipient to fulfil one or more of their functions before disclosing data and also seeks to add a requirement that an individual must have given valid consent under data protection legislation prior to any disclosure of their personal data. With respect, this amendment is unnecessary because disclosure of personal data under these clauses will already be subject to the provisions of the Data Protection Act. To require explicit consent in all cases would exceed the requirements of the Data Protection Act and the purpose of this clause. Disclosure will take place without consent only if to do so would be consistent with the Data Protection Act, which governs fair disclosure. Examples of how the powers would be exercised in practice include allowing registration officials to disclose information within and across local authority boundaries in order to safeguard children. Being able to share information will ensure that children are known to the local authorities in which they reside and action can be taken to address any needs of the child or the parent. That is what lies behind this matter.
Amendment 116 seeks to amend the Births and Deaths Registration Act 1953 to introduce an electronic register for the registration of births and deaths. However, the proposed amendment to Section 25 of the 1953 Act as currently drafted does not go far enough. The legislation which provides for the registration of births and deaths is based on legislation in place in 1836—or 1837—and very little has changed to the process of registering births and deaths since then. The Act would need more amendment in order to introduce an electronic register. Moving to an electronic register would remove the requirement for hard-copy registers and the electronic register of births and deaths would be the legal record instead of the paper registers. It is certainly an area of reform that the Government are keen to take forward. However, we need more time. I reassure noble Lords that the Government will look in more detail at what changes need to be made to the Act in order to bring in this change and we will consider legislating in due course. We recognise the benefits that the noble Lord, Lord Clement-Jones, suggested could be achieved once that entire process is completed. In light of those points, I hope that the noble Lord will agree not to press that amendment.
I turn to my noble friend Lady Byford and her opposition to the clause standing part of the Bill. Unless there is a specific statutory gateway, information from the records of births, marriages, civil partnerships and deaths may not be disclosed by registration officials other than in the form of a certified copy of an entry, such as a birth or death certificate, on payment of the statutory fee. As I have indicated, the system is outdated and based on paper processes from the 19th century. This clause introduces new data-sharing powers that allow registration officials to share data from birth, death, marriage and civil partnership records with public authorities for the purposes of fulfilling their functions. However, only the minimum amount of data will be provided to enable the public authority to fulfil the function.
My noble friend asked for examples of the benefits of sharing such registration data. Being able to share data about deaths with local authorities would assist in combating housing tenancy fraud. The National Fraud Authority estimates that housing tenancy fraud costs local authorities £845 million each year. An example of this is when someone continues to live in a property following the death of the tenant even when they have no right to do so. The sharing of birth data within the local authority would assist social services, for example, if they wanted to engage with one of the parents in the interests of a child. Sharing marriage data would help to target those living together if there were a fraudulent claim to be single for the purposes of claiming benefits. Sharing death data within local authorities would help them to recover medical equipment following the death of an individual.
There are many examples where such data sharing would be of assistance. It paves the way for citizens to access government services more conveniently, efficiently and securely, for example, by removing the current reliance on paper certificates to access services. This will provide more flexibility and will modernise how government services are delivered. An example is where registration officials will be able to share data on births that have occurred in one district, but where those concerned live in a neighbouring district with no hospital. This would allow local authorities more accurately to plan the provision of health care, school planning and other local services. Being able to share death data across boundaries will also help to prevent unwanted mail being sent to the family of a deceased person.
Registration officials will be able to share registration data only with the public authorities defined in new Section 19AB of the Registration Service Act 1953. Any data sharing will of course be carried out strictly in accordance with the requirements of the Data Protection Act. The sharing of registration data will be underpinned by a statutory code of practice as required by Section 19C. One of the requirements in the code will be that the Registrar-General must personally approve any request for the sharing of large amounts of data.
Before data are shared, the code of practice requires privacy impact assessments and data-sharing agreements to be drawn up and agreed with public authorities to include such things as how data are to be used, stored and retained. Data will be able to be used only for the purpose they have been provided and retained only for as long as necessary. Data-sharing agreements will forbid the creation of a database or the linking of registration data in any way. Any breach would be reported to the Information Commissioner, who has the power to impose penalties where it is appropriate to do so. I hope that that deals with the fears expressed about the bulk use of such registration data.
Lord Clement-Jones
My Lords, I am not sure whether the Minister has dealt with the questions raised by my noble friend.
Lord Keen of Elie
I apologise for omitting to respond to the questions asked by the noble Baroness, Lady Hamwee, by reference to the fact sheet. Rather than poring over the provisions of the Bill, I will undertake to write to her pointing out the cross-reference between the terms of the fact sheet and the relevant provisions in the Bill. I will place a copy of that letter in the Library.
Lord Clement-Jones
My Lords, I thank the Minister for his response, but I am a little bit baffled. Here we are—and I am talking here particularly with reference to Amendment 116—discussing the Digital Economy Bill. It should be doing what it says on the tin. I put forward, in my name and in the name of my noble friend Lady Scott, who is the inspiration behind the amendment, something that would make sure that it was the electronic copy that was the legal copy. Here is the Minister saying—and I do not think I have ever had a Minister say this to me—that the amendment does not go far enough. That is a very joyous response, but on the other hand he wants more time and “it will all happen in due course”. This is the Digital Economy Bill: what other opportunity are we going to have to ensure that our Registrar-General and so on—the General Register Office and local authorities—are under a legal obligation to hold electronic copies rather than the old, steam-driven paper copies? We have been doing this since 1837 or 1836, as we heard earlier. Is it not about time that we changed our practices, and is it not possible that we have been cooking up an amendment over the last 50 years that might suit the book and be able to appear on Report? That is my response on Amendment 116.
My response on Amendment 113 is a little bit dustier. I have read the code of practice, and I accept the Minister’s assurances; throughout this process he has given a lot of assurances about the impact of the Data Protection Act. There is no doubt about that: either explicit consent or, where no explicit consent is given, it is in accordance with the Data Protection Act and so on. There are some very worthy purposes in terms of data sharing: safeguarding children was an absolutely splendid example for the Minister to produce, and he produced some very good examples to the noble Baroness, Lady Byford, as well. Of course, there are some very good examples, but the code of practice is very opaque in that respect. It really does not get into any of that kind of worthy purpose: it simply talks about disclosing in accordance with the Data Protection Act. I looked through when the Minister was talking to see whether it was the Registrar-General who was the one person who was going to authorise disclosure, and it seemed to me that there were an awful lot more people who were authorised to disclose than simply one person.
There is something defective about these codes of practice. They seem to be far too bland and they do not give the public the reassurance that they should. We have talked about public trust right across the Committee, and the fact is that the reason why so many amendments have come forward from a variety of different sources to this part of the Bill is precisely that lack of trust. I suggest that the Minister and his colleagues look again at whether these codes of practice are doing their job.
That is another reason why, at the end of the day, these codes of practice should be approved by Parliament. That has also been a running theme of the Delegated Powers and Regulatory Reform Committee, which had it absolutely right in every single chapter that it dealt with. These codes of practice should be approved by Parliament. Otherwise, I do not believe that the Government are going to build that public trust in this data sharing, which is absolutely essential. The Minister should look again at that aspect, but in the meantime, having given the Minister a hard time at this time of night, I beg leave to withdraw the amendment.
“Data sharing for the purpose of supporting better debt management
In addition to the purposes set out in section 41(3), information about debt may be shared by specified persons under this Chapter for the purpose of helping individuals to manage their debts, including by provision of a breathing space.”
Lord Stevenson of Balmacara
My Lords, in an idle moment, a moment of complete frivolity, I looked up GOV.UK to check facts—I thought that would be a useful contribution to the debate. The date we have all been searching for is 1837: the General Register Office is part of Her Majesty’s Passport Office and contains records dating back to 1837. I thought that would be useful.
I beg to move Amendment 117A in my name. This stems from my period of service as chairman of a wonderful charity called StepChange, which deals with individual debt owed by ordinary people. In the time I was there—I resigned about two years ago—we had about 600,000 people a year contacting the telephone helpline or going online to try to seek solutions to their debt problems, so it is a very significant problem in British society and something we must take a great deal of care about. Most people who came to us were struggling with multiple debts; in other words, they owed money to a variety of different sources, ranging from local authorities, mobile phone companies, debt collection agencies, Revenue & Customs, payday lenders, utility companies and catalogue lenders—there is a very large number of them.
A median client would be aged about 45, female and owing about £20,000 to eight different creditors, so it is a significant problem that people get into. Within that, with a tremendous requirement now for debt advice, with lots of people struggling with debt, one worrying trend has been how bad central and local government have been in dealing with people, particularly those with multiple debts. A recent survey of about 1,000 StepChange clients found widespread aggressive enforcement from local authorities even when people were asking their authority for help. Clients were more than twice as likely to be threatened with court action or bailiffs than to be offered an affordable payment option. This is despite guidance being issued by central government about how debts should be treated.
Of course, what happens when people face strong demands, very often from central or local government, is that they tend to go to people who can lend them money quickly, probably from an existing credit line, almost certainly, until recently—but even today it is still happening—taking out a payday loan. They try to borrow more to try to pay back original debts and get themselves into a worse situation than they were before. The same survey asked clients to rate what their creditors had done to them and whether they treated them fairly or unfairly. I am afraid to say that public sector creditors came out very badly, occupying three of the top six places in the unfair treatment table. It is interesting to note that HMRC, for instance, scored no better than payday lenders, which the Government, through the FCA, have spent a lot of time trying to sort out over recent years.
That is the background of our concern. We welcome the provisions in the Bill to think again about how debts owed to the public sector are collected. In that light, these amendments are put forward for suggestion, they are probing amendments at this stage, and I hope that they will elicit a response, because it is not just StepChange, the debt charity, that has been concerned about this. Citizens Advice has also raised concern about public sector debt collection practices, finding that public sector creditors are,
“mostly out of step with financial services and utilities companies when it comes to setting affordable repayment rates, and that our clients can suffer detriment when public bodies have uncoordinated and inconsistent approaches to debt collections ... central government debt collection lags behind the higher standards expected of other creditors”.
This is focused on individuals who have problems with their debts, but of course there is a wider cost to society as a whole which, through relationship breakdown, homelessness and difficulties with maintaining concentration at work, et cetera, has been estimated at about £8 billion a year. The Bill contains clauses that relate to this and they seem to suggest that central government as a whole—but in this case HMRC—are thinking about how the data-sharing powers that are coming should be used to allow them to collect several debts at once, but also to do it in a slightly different way. I hope that is the case. We are back with our old friend, the code of practice, because what is said in the code of practice will determine whether this will work.
I have, then, four things I invite Ministers to respond to. First, Clause 45 is limited to departments that seek data-sharing powers and says only that they should “have regard to” the code of practice. This has, I think, been picked up in other amendments that we have considered today. It would be good if the code of practice were also embedded in a much stronger statutory provision, to give it real bite. We have seen examples of guidance—I mentioned one involving central government issuing guidance on council tax collection methods—but such guidance does not work, because it is non-binding and only advisory. If there is a code, it should be embedded in the statute and people affected by it should be able to refer back to it to make sure that it works properly.
Secondly, the public body itself must believe that this is the way in which it needs to operate. Within the amendments are a range of issues that central government bodies might pick up that would match the best practice in utilities, banks, credit cards and store cards—all of which have been through the cycle of trying to get money out of individuals who owe them and other people money, and have recognised that you have to deal with people with multiple debts in a completely different way from those who just owe money directly. That is gradually changing the way people operate. There is further to go, but it is a lesson that should be learned. I hope that the codes can be adapted to reflect that.
Thirdly—this may be too much of an ask, but it should be recognised—this Bill applies only to public bodies, and their creditors, when they are seeking to use the data-sharing powers. The problem is, of course, wider than the data-sharing powers. Problems with central and local government debt collections are widespread: practices need to be reformed and this is not likely to relate only to places where data sharing is used. The Government should think ahead about this and try to set out an understanding for all their agencies that poor debt-collection practices can harm the rate at which they get their money back and the time it takes, and it will also harm the financially vulnerable people. Taking account of that across all their practices would be a very good thing.
These amendments, therefore, try to raise those points, but there is one other thing that the Government should try to do, which is in the first amendment. It is to take a lesson from Scotland—I am sure that the noble and learned Lord from Scotland will wish to pick this up and think harder about it—where, when you have a private or a public debt and seek guidance from the state agency that operates that scheme, you are given statutory protection from excess charges and your interest rates are frozen, providing you stick to your debt repayment plan. That means that people get a breathing space, time to organise their finances, think about their budgets and work out what they are going to do, without the terrible pressure from those who are owed money to start repaying it. It is only when all those issues have been brought together, and an agreement reached between the creditors and the agency, that repayment begins. That has a very much higher rate of success than any other scheme. England lags way behind on this, and it would be no skin off the Treasury’s nose if it took a leaf out of the Scottish Government’s book and brought in their procedures—with a statutory breathing space that gave some hope to people who want to repay their debts but cannot do so because the practices are not as good.
Lord Keen of Elie
My Lords, I acknowledge the point made by the noble Lord, Lord Stevenson, that this is a significant issue, and I understand that this is a probing amendment to allow us to consider some of the wider issues that he has touched on in the debate.
Amendment 117A seeks to include in the Bill an additional purpose: to enable debt information to be shared under the powers provided by Clause 41. It seeks to state explicitly that debt data can be disclosed,
“for the purpose of helping individuals to manage their debts”.
There is also a reference to the breathing space, and I will come back to that point in a moment in response to the questions posed by the noble Lord.
In the first instance, we would venture that the amendment is not necessary. The provisions as drafted enable information to be shared,
“for the purposes of the taking of action in connection with debt owed to”,
a public authority or the Crown. This includes but is not limited to, for example, identifying or collecting debt. The provision is sufficiently broad to enable sharing for the purpose set out in this amendment. That is the position of the Government. The Government are considering the recommendations that have been made following work to look into the merits of introducing a breathing space for customers, which we are aware is available in other jurisdictions. While the Government are considering these recommendations, it would be premature to incorporate a reference to this initiative in the Bill at this time. I hope the noble Lord will accept that the matter is being looked at.
Lord Stevenson of Balmacara
I thank the Minister very much for his considered response. I am grateful to him for that. The breathing space proposal has been around for some time, so I was hoping to get a bit of an edge on it but we will clearly have to wait and see. It would provide a very big step forward for how public debts are organised. As I said, how the code of practice is framed is the main issue and I am grateful for the Minister’s thoughts that there might still be opportunities to influence it. What was said today might do that trick but we will certainly look at it carefully. With that, I would like to withdraw the amendment.
Lord Ashton of Hyde
(a) is likely to cause harassment, alarm or distress to any person, or(b) is capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.”
Lord Ashton of Hyde
“( ) Until the repeal of Part 1 of the Regulation of Investigatory Powers Act 2000 by paragraphs 45 and 54 of Schedule 10 to the Investigatory Powers Act 2016 is fully in force, subsection (8)(b) has effect as if it included a reference to that Part.”
Lord Ashton of Hyde
“( ) which is a protected disclosure for any of the purposes of the Employment Rights Act 1996 or the Employment Rights (Northern Ireland) Order 1996 (SI 1996/1919 (NI 16)),( ) consisting of the publication of information for the purposes of journalism, where the publication of the information is in the public interest,”
Lord Ashton of Hyde
(a) is likely to cause harassment, alarm or distress to any person, or(b) is capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.”
Lord Ashton of Hyde
Lord Ashton of Hyde
“( ) a devolved Welsh authority as defined by section 157A of the Government of Wales Act 2006, or( ) a person providing services to a devolved Welsh authority as defined by that section.”
Lord Ashton of Hyde
(a) is likely to cause harassment, alarm or distress to any person, or(b) is capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.”
“( ) Until the repeal of Part 1 of the Regulation of Investigatory Powers Act 2000 by paragraphs 45 and 54 of Schedule 10 to the Investigatory Powers Act 2016 is fully in force, subsection (8)(b) has effect as if it included a reference to that Part.”
Lord Ashton of Hyde
“( ) which is a protected disclosure for any of the purposes of the Employment Rights Act 1996 or the Employment Rights (Northern Ireland) Order 1996 (SI 1996/1919 (NI 16)),( ) consisting of the publication of information for the purposes of journalism, where the publication of the information is in the public interest,”
Lord Ashton of Hyde
(a) is likely to cause harassment, alarm or distress to any person, or(b) is capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.”
Lord Ashton of Hyde
Lord Ashton of Hyde
“( ) a devolved Welsh authority as defined by section 157A of the Government of Wales Act 2006, or( ) a person providing services to a devolved Welsh authority as defined by that section.”
Lord Ashton of Hyde
“( ) Information may be disclosed under subsection (5)(b)—(a) only with the consent of the Commissioners for Her Majesty’s Revenue and Customs, if it is information to which section 60 (2) applies;(b) only with the consent of the Welsh Revenue Authority, if it is information to which section (Information disclosed by the Welsh Revenue Authority)(5) applies;(c) only with the consent of Revenue Scotland, if it is information to which section (Information disclosed by Revenue Scotland)(5) applies.”
Lord Ashton of Hyde
“( ) any person (including the public authority) who is involved in processing the information for disclosure under subsection (1);”
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, these amendments apply to the research power, and there is an additional amendment which applies to the statistics power. Together, they add clarity and strength to the set of robust safeguards that have been developed to facilitate the processing and safe disclosure of personal information provided by public authorities for research purposes. To encourage greater use of publicly held data for research in the public interest, it is important that everyone concerned can have confidence that personal information is appropriately protected, while at the same time researchers are able to interrogate the information to produce research findings that further the public interest. These amendments further help strike that balance.
The amendments fall into four categories. First, Amendment 155, to Clause 57(9), makes clear, for the avoidance of doubt, that a public authority that processes another public authority’s personal information must be accredited to do so, as well as to process its own information.
Secondly, Amendments 159 to 180 and Amendment 191 correct defects in the drafting of Clauses 59 and 60. The defect in each clause prevents persons who receive processed information from processors under Clause 57(1) disclosing that information at all if that information meets the wide definition in Clause 57(12), whereas it was always intended that researchers would be able to disclose the information that they receive under the power to other researchers for the purposes of peer review. The amendments also strengthen the unlawful disclosure provisions by adding a new offence which applies to disclosure of a defined category of personal information by a person who has received processed information under Clause 57(1). The information that is protected is consistent with Section 39 of the Statistics and Registration Service Act 2007. The amendments have been drafted in a way that will enable researchers to submit their findings for peer review and for publication in a similar way to current practice under that Act. These amendments have been developed with the assistance of the UK Statistics Authority, which has considerable expertise in this area.
Thirdly, Amendments 183 to 189 and Amendments 192 to 195 tidy up a drafting error by which the code of practice currently applies to the disclosure, holding or use of both personal information and information that is not, or never has been, personal. To apply the code or any other safeguards in this power to information that does not identify or risk identifying individuals would be unnecessarily bureaucratic.
Finally, Amendment 210 to new Section 53A supports devolved statistics by giving the UK Statistics Authority a mechanism to share information with its statistical counterparts in the devolved Administrations. In Northern Ireland, the principal statistical department is the Northern Ireland Statistics and Research Agency, or NISRA. Some of NISRA’s functions are held specifically by its parent department, the Department of Finance. Other statistical functions are held only by the Registrar-General for Northern Ireland. New Section 53A(2) does not currently list the Registrar-General for Northern Ireland as a devolved authority, meaning that UKSA cannot share information with NISRA relating to the Registrar-General’s statistical functions. This amendment resolves this difficulty by adding the Registrar-General for Northern Ireland to the definition of devolved authority in new Section 53A(2). I beg to move.
Lord Ashton of Hyde
“( ) Until the repeal of Part 1 of the Regulation of Investigatory Powers Act 2000 by paragraphs 45 and 54 of Schedule 10 to the Investigatory Powers Act 2016 is fully in force, subsection (2)(b) has effect as if it included a reference to that Part.”
Lord Ashton of Hyde
“(A1) Subsection (A2) applies to personal information—(a) in which the identity of a particular person is specified or from which the identity of a particular person can be deduced, whether from the information itself or from that information taken together with any other published information, and(b) which is received by a person (“P”) under section 57 (1)(disclosure for research purposes).(A2) Personal information to which this subsection applies may not be disclosed—(a) by P, or(b) by any other person who has received it directly or indirectly from P.(A3) Subsection (A2) does not apply to a disclosure—(a) to a person by whom the research referred to in section 57(1) is being or is to be carried out, or(b) by a person by whom such research is being or has been carried out—(i) for the purposes of enabling anything that is to be published as a result of the research to be reviewed before publication, and (ii) to a person who is accredited under section 62 as a person to whom such information may be disclosed for that purpose.”
“( ) Subsection (2) does not apply to a disclosure—(a) under section 57(1) or (5), or(b) of information previously disclosed under section 57(1), where the disclosure is made by—(i) the person to whom the information was disclosed under that provision, or(ii) any person who has received the information directly or indirectly from the person mentioned in sub-paragraph (i),(but subsection (A2) may apply to such a disclosure).”
Lord Ashton of Hyde
Lord Ashton of Hyde
“( ) which is a protected disclosure for any of the purposes of the Employment Rights Act 1996 or the Employment Rights (Northern Ireland) Order 1996 (SI 1996/1919 (NI 16)),( ) consisting of the publication of information for the purposes of journalism, where the publication of the information is in the public interest,”
(a) is likely to cause harassment, alarm or distress to any person, or(b) is capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.”
Lord Ashton of Hyde
“(A1) Subsection (A2) applies to personal information—(a) in which the identity of a particular person is specified or from which the identity of a particular person can be deduced, whether from the information itself or from that information taken together with any other published information, and(b) which—(i) is disclosed under section 57 (1)(disclosure for research purposes) by the Revenue and Customs, or(ii) is disclosed under section 57 (1) by a person other than the Revenue and Customs and is derived from information disclosed under section 57 (5) by the Revenue and Customs,and is received by a person (“P”) under section 57(1).(A2) Personal information to which this subsection applies may not be disclosed by P.(A3) Subsection (A2) does not apply to a disclosure—(a) to a person by whom the research referred to in section 57 (1) is being or is to be carried out, or(b) by a person by whom such research is being or has been carried out—(i) for the purposes of enabling anything that is to be published as a result of the research to be reviewed before publication, and(ii) to a person who is accredited under section 62 as a person to whom such information may be disclosed for that purpose.”
“( ) Subsection (2) does not apply to a disclosure under section 57(1).”
Lord Ashton of Hyde
“Information disclosed by the Welsh Revenue Authority
(1) Subsection (2) applies to personal information—(a) in which the identity of a particular person is specified or from which the identity of a particular person can be deduced, whether from the information itself or from that information taken together with any other published information, and(b) which—(i) is disclosed under section 57 (1)(disclosure for research purposes) by the Welsh Revenue Authority, or (ii) is disclosed under section 57 (1) by a person other than the Welsh Revenue Authority and is derived from information disclosed under section 57 (5) by the Welsh Revenue Authority,and is received by a person (“P”) under section 57(1).(2) Personal information to which this subsection applies may not be disclosed by P.(3) Subsection (2) does not apply to a disclosure—(a) to a person by whom the research referred to in section 57 (1) is being or is to be carried out, or(b) by a person by whom such research is being or has been carried out—(i) for the purposes of enabling anything that is to be published as a result of the research to be reviewed before publication, and(ii) to a person who is accredited under section 62 as a person to whom such information may be disclosed for that purpose.(4) Subsection (5) applies to personal information which—(a) identifies a particular person, and(b) is disclosed by the Welsh Revenue Authority under section 57 (5)(disclosure for processing) and received by a person (“P”).(5) Personal information to which this subsection applies may not be disclosed—(a) by P, or(b) by any other person who has received it under section 57 (5).(6) Subsection (5) does not apply to a disclosure under section 57 (1).(7) Subsection (2) or (5) does not apply to a disclosure which is made with the consent of the Welsh Revenue Authority (which may be general or specific).(8) A person who contravenes subsection (2) or (5) is guilty of an offence.(9) It is a defence for a person charged with an offence under subsection (8) to prove that the person reasonably believed—(a) that the disclosure was lawful, or(b) that the information had already and lawfully been made available to the public.(10) A person who is guilty of an offence under subsection (8) is liable—(a) on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine, or to both;(b) on conviction on indictment to imprisonment for a term not exceeding two years, to a fine or to both.(11) In the application of subsection (10)(a) to an offence committed before the coming into force of section 154(1) of the Criminal Justice Act 2003 the reference to 12 months is to be read as a reference to 6 months.”
“Information disclosed by Revenue Scotland
(1) Subsection (2) applies to personal information—(a) in which the identity of a particular person is specified or from which the identity of a particular person can be deduced, whether from the information itself or from that information taken together with any other published information, and(b) which—(i) is disclosed under section 57 (1)(disclosure for research purposes) by Revenue Scotland, or(ii) is disclosed under section 57 (1) by a person other than Revenue Scotland and is derived from information disclosed under section 57 (5) by Revenue Scotland,and is received by a person (“P”) under section 57(1). (2) Personal information to which this subsection applies may not be disclosed by P.(3) Subsection (2) does not apply to a disclosure—(a) to a person by whom the research referred to in section 57 (1) is being or is to be carried out, or(b) by a person by whom such research is being or has been carried out—(i) for the purposes of enabling anything that is to be published as a result of the research to be reviewed before publication, and(ii) to a person who is accredited under section 62 as a person to whom such information may be disclosed for that purpose.(4) Subsection (5) applies to personal information which—(a) identifies a particular person, and(b) is disclosed by Revenue Scotland under section 57 (5)(disclosure for processing) and received by a person (“P”).(5) Personal information to which this subsection applies may not be disclosed—(a) by P, or(b) by any other person who has received it under section 57 (5).(6) Subsection (5) does not apply to a disclosure under section 57 (1).(7) Subsection (2) or (5) does not apply to a disclosure which is made with the consent of Revenue Scotland (which may be general or specific).(8) A person who contravenes subsection (2) or (5) is guilty of an offence.(9) It is a defence for a person charged with an offence under subsection (8) to prove that the person reasonably believed—(a) that the disclosure was lawful, or(b) that the information had already and lawfully been made available to the public.(10) A person who is guilty of an offence under subsection (8) is liable—(a) on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine not exceeding the statutory maximum or to both;(b) on conviction on indictment to imprisonment for a term not exceeding two years, to a fine or to both.”
Lord Ashton of Hyde
Lord Ashton of Hyde
Lord Ashton of Hyde
Lord Ashton of Hyde
“(ca) may accredit a person as a person to whom such information may be disclosed for the purposes of a review of the kind mentioned in section 59(A3)(b), 60(A3)(b), (Information disclosed by the Welsh Revenue Authority)(3)(b) or (Information disclosed by Revenue Scotland)(3)(b),”
Lord Ashton of Hyde
( ) a register of persons who are accredited under subsection (1)(ca).”
Lord Ashton of Hyde
“( ) Until the repeal of Part 1 of the Regulation of Investigatory Powers Act 2000 by paragraphs 45 and 54 of Schedule 10 to the Investigatory Powers Act 2016 is fully in force, subsection (9)(b) has effect as if it included a reference to that Part.”
Baroness Byford
“(2) Subject to subsection (1) of this section and section 45E, the Board may, by notice in writing to a public authority to which this section applies, require the authority to disclose to the Board information which—(a) is held by the authority in connection with its functions, and(b) is specified, or is of a kind specified, in the notice.(3) A notice under subsection (2) may require information to be disclosed on more than one date specified in the notice within a period specified in the notice.(4) A notice under subsection (2) other than one within subsection (3) must specify the date by which or the period within which the information must be disclosed.(5) A notice under subsection (2) may specify the form or manner in which the information to which it relates must be disclosed.(6) A notice under subsection (2) may require the public authority to consult the Board before making changes to—(a) its processes for collecting, organising, storing or retrieving the information to which the notice relates, or(b) its processes for supplying such information to the Board.(7) The reference in subsection (6) to making changes to a process includes introducing or removing a process.(8) The Board may give a notice under subsection (2) only if the Board requires the information to which the notice relates to enable it to exercise one or more of its functions.(9) The Board must obtain the consent of the Scottish Ministers before giving a notice under subsection (2) to a public authority which is a Scottish public authority with mixed functions or no reserved functions (within the meaning of the Scotland Act 1998).(10) The Board must obtain the consent of the Welsh Ministers before giving a notice under subsection (2) to a public authority which is a Wales public authority as defined by section 157A of the Government of Wales Act 2006.(11) The Board must obtain the consent of the Department of Finance in Northern Ireland before giving a notice under subsection (2) to a public authority if—(a) the public authority exercises functions only as regards Northern Ireland, and(b) its functions are wholly or mainly functions which relate to transferred matters (within the meaning of the Northern Ireland Act 1998).(12) A public authority to which a notice under subsection (2) is given must comply with it. (13) But the public authority need not comply with the notice if compliance—(a) might prejudice national security,(b) would contravene the Data Protection Act 1998,(c) would be prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000, or(d) would contravene directly applicable EU legislation or any enactment to the extent that it implements EU legislation.”
Baroness Byford (Con)
My Lords, I rise to move the amendment tabled by my noble friend Lord Willetts, who apologises that he could not be here tonight. I have the two other amendments in the same group. Clause 68 makes mandatory the provision of data by Crown bodies to the ONS for defined statistical research purposes. An alternative approach might be for an organisation such as the Information Commissioner’s Office to provide arbitration on contentious requests.
Clear insight into whether the Bill directs Crown bodies to share data from statistics is needed in Clause 68. At the Bill’s Committee stage in the House of Commons, where there was a long discussion on this, Chris Skidmore, Minister for the Constitution in the Cabinet Office, said it would be possible for a Crown body to refuse an ONS request for data and,
“where necessary, have their refusal put before Parliament”.—[Official Report, Commons, Digital Economy Public Bill Committee, 27/10/16; col. 379.]
The Royal Statistical Society’s primary objection to this is that it provides no subsequent mechanism for the ONS to secure access to the data. It is also unclear to it what the process means in practice, which part of the legislature will deal with that correspondence, what it is expected to do with it and what sanctions it can apply for non-disclosure. The RSS has been asking why this is in place and whether it is justified, especially as other countries, such as Canada, operate with less burdensome arrangements. I should say that I am very grateful to the Royal Statistical Society for its briefing, otherwise I would be really lost. The RSS says:
“Including the Minister’s contribution, we have heard two arguments thus far … The Minister explained the different treatments for Crown bodies and other public authorities as being due to conventions: ‘That way of working, set out in sections 45B and 45C, ensures consistency between how a Crown body interacts with another on the one hand, and how a Crown body interacts with a non-Crown body on the other’ … We have also been privy to a different, earlier argument that due to the indivisibility of the Crown, one Crown body cannot give directions to another”.
If we thought earlier discussions were difficult, I think it is getting even more so.
The briefing continues by saying that,
“we have sought and obtained legal advice, which suggests that Parliament could technically direct departments to do what it deems fit. The government’s position, although it is not unprecedented, appears politically or culturally based. It may be that the government has heard objections from some departments to a mandatory approach. We are aware that there could be reluctance on the part of some departments to share data generally, and with ONS and researchers in particular. However, problems of risk aversion to data sharing ought to be addressed without obstructing the proposed right for ONS to access data for statistical purposes, which has been more widely supported and called for, for example, by the Public Administration Select Committee (2013) and the Science and Technology Select Committee (2016), and in other reports described in the House of Commons Library’s analysis”.
There is much more material here but I shall not push the matter further. I hope I have given my noble friend enough to respond to.
My Amendments 208 and 209, which are linked to this, are much simpler and more direct as far as I am concerned, because I am not technically astute on the other topic. Large, well-known charities employ many people using many skills and who are occupied full-time in their jobs. Little charities rely on unpaid volunteers who may not have a wide range of skills and who use their free time to work purely for the charity. I have two examples in mind. The first is Freddie’s Wish, which commemorates a little boy who died in a car crash. His mother set up the charity to help local bereaved families and to raise money for the children’s hospital and the air ambulance. In two years it has raised over £50,000 and trained more than 100 volunteers in paediatric first aid.
The second example is Evelyn’s Gift, which has been a registered charity for less than a year although its founder and volunteers have been working for nearly four years. It is in memory of a seven year-old girl who died of respiratory illness. Its aims are to arrange CPR training and to continue her practice of doing little acts of kindness. The list of acts done in her name and in the name of people and the organisations that support them is inspiring. The charity employs no one and all the work is carried out by unpaid volunteers.
Organisations such as these have no resources to supply the Statistics Board with information. An unpaid voluntary worker would have to give time to filling in forms instead of doing the work he or she has signed up for and dearly wishes to do. It could be difficult to persuade anyone to donate even more time in this pursuit. A small charity with irregular income but making an important local contribution could well be destroyed by a fine levied under new Section 45F(3).
Most people nowadays have heard of charitable shoe boxes. These are sent, filled with practical gifts—hand-knitted hats, scarves and gloves, pens and paper, recycled soft toys, tennis balls and so on—to underprivileged children in Africa and eastern Europe, and, indeed, in our own country. Those who fill them spend their own money and devote much time to making up these boxes. The work is carried out throughout the year and each box going abroad to Africa costs at least £2.50 to transport in November and December. Villages, primary schools, care homes and religious groups donate goods, money, time and effort to reclaiming, recycling and packing huge quantities of otherwise unwanted items. They also raise funds for basic toiletries, small packs of sweets and things such as pens and paper, without which some children cannot go to school. I know of one village that last year sent 1,326 boxes to the central depot.
Who is to fill in the forms for the Statistics Board, and is that really necessary for these very small charities? The boxes come from all over the country. They must not contain liquids, chocolate or sweets dated for expiry before the end of March of the following year. Beyond this, there is no record of contents, value or hours worked. With such charities, my concern is that the figures available to the Statistics Board will be solely to do with the transport of the finished items. That would surely distort the results of any study by the board. I suggest that we should therefore exempt such charities from the Bill. I beg to move.
The Deputy Speaker (Viscount Ullswater) (Con)
I must advise your Lordships that, if this amendment is agreed to, I will not be able to call Amendments 200 to 202 because of pre-emption.
Baroness O'Neill of Bengarve (CB)
My Lords, I rise briefly to support this amendment. There seems to be something quite perverse in obstructing the access of the Statistics Board to datasets that are in the hands of other public bodies. That is a very simplified account, but it is a curious place in which to have an obstacle. I hope that the Minister can consider this clause very seriously.
Lord Keen of Elie
I am obliged to the noble Baronesses for their interest in this part of the Bill. As your Lordships will be aware, Clause 68 gives the UK Statistics Authority the powers to access important data needed to produce official statistics to support decision-making.
On Amendment 199, new Section 45B gives UKSA a right of access to information held by Crown bodies. A Crown body must respond in writing to a formal notice issued by the UK Statistics Authority and explain any refusal to give the authority information. If the Crown body’s explanation is inadequate or it fails to respond or comply, the UK Statistics Authority may lay the request and any response before the relevant legislature. A Crown body must therefore either comply with the notice or explain its refusal in writing. Where the Statistics Authority puts that correspondence before Parliament, then Parliament can judge the body’s actions openly and transparently. We consider that this is the right approach, creating effective, proportionate accountability and transparency.
Of course, my noble friend Lady Byford would argue that the amendment is a more effective means of requiring a Crown body to give the Statistics Authority the information. We cannot accept that it is either necessary or desirable. The Statistics Authority is part of the Crown, as are government departments. As my noble friend anticipated, it would be extremely novel, and possibly unprecedented, to legislate to compel one part of the Crown to obey another. Even the Health and Safety at Work etc. Act 1974 excludes the Crown from being subject to enforcement measures such as prosecution, instead providing long-standing structures to help departments to work with each other administratively. In this context, new Section 45B strikes the right balance. I hope that explanation reassures my noble friend.
Baroness Byford
I am very grateful to my noble and learned friend for his response. I am unable to really comment properly on Amendment 199, because I would like my noble friend Lord Willetts to have a chance to read and reflect on the Minister’s response to that issue.
On my own two amendments, I thank him for his comments. One thing that has always troubled me with charities is that sometimes you have a small charity that has a large income, but at the other end you have a large charity with a very small income. I am not totally clear, but I shall read very carefully on whether the lay-down that we have at the moment on micro and small is correct for what I am trying to suggest the Government should think about. However, I thank the Minister for his full response, which I shall read carefully in Hansard. In the meantime, I beg leave to withdraw the amendment.
Lord Ashton of Hyde
“( ) Until the repeal of Part 1 of the Regulation of Investigatory Powers Act 2000 by paragraphs 45 and 54 of Schedule 10 to the Investigatory Powers Act 2016 is fully in force, subsection (3)(b) has effect as if it included a reference to that Part.”
“( ) Until the repeal of Part 1 of the Regulation of Investigatory Powers Act 2000 by paragraphs 45 and 54 of Schedule 10 to the Investigatory Powers Act 2016 is fully in force, subsection (13)(c) has effect as if it included a reference to that Part.”
“( ) Until the repeal of Part 1 of the Regulation of Investigatory Powers Act 2000 by paragraphs 45 and 54 of Schedule 10 to the Investigatory Powers Act 2016 is fully in force, subsection (9)(c) has effect as if it included a reference to that Part.”
Lord Ashton of Hyde
( ) the Registrar General for Northern Ireland.”
“( ) Until the repeal of Part 1 of the Regulation of Investigatory Powers Act 2000 by paragraphs 45 and 54 of Schedule 10 to the Investigatory Powers Act 2016 is fully in force, subsection (10)(c) has effect as if it included a reference to that Part.”
“Creation of a digital system for lasting power of attorney
(1) The Secretary of State must by regulations make provision for a fully digital process to apply for and create a lasting power of attorney, and for the verification by appropriate bodies of attorneys appointed under this process.(2) Regulations under subsection (1) may in particular—(a) provide for the use of secure electronic signatures in place of any requirements for physical signatures;(b) use electronic online methods to verify the identify of donors and proposed attorneys, either in conjunction with or in place of electronic or physical signatures;(c) require at least one other person to be notified automatically when an application is made;(d) permit in-depth checking of selected applications; (e) require the involvement of a solicitor in the application process;(f) create an offence of knowingly or recklessly providing false information in relation to an application for a lasting power of attorney, subject to a maximum penalty on summary conviction of a term of imprisonment not exceeding six months;(g) provide for appropriate bodies to use secure online methods to verify the identity of an attorney or donor; and(h) cover both health and welfare lasting power of attorney, and property and financial affairs lasting power of attorney.(3) Regulations under this section must be made by statutory instrument and may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”
Baroness Finlay of Llandaff (CB)
My Lords I declare my interest as chair of the National Mental Capacity Forum, and in that role I have been working closely with the Office of the Public Guardian.
For some time the Public Guardian has wanted to move away from the wet signature requirement for the creation of lasting power of attorney for both health and welfare, and property and financial affairs decisions, as laid out in the Mental Capacity Act 2005. This amendment would allow that process to be purely electronic and carried out online, with the safeguards it outlines. A digital process should now be secure given the advances in technology since the original provision was made, and the amendment would simply allow the Secretary of State to make appropriate regulations rather than creating the process.
As the hour is late I am inclined to ask the Minister, if he has any reservations about this amendment and the powers it would give to the Secretary of State, to curtail the debate by meeting with me and the Public Guardian before Report. However, I am rather pre-empting the Minister’s decision. If he decides to accept my amendment, that would be just wonderful. I beg to move.
Lord Keen of Elie
My Lords, in view of the hour, it occurs to me that it would be appropriate to give a lengthy and detailed analysis of powers of attorney, and, indeed, to take us back to the Powers of Attorney Act 1971 and the subsequent developments of the law. Nevertheless, and despite the enthusiasm from the Opposition Benches, I am perfectly happy to accept the kind invitation advanced by the noble Baroness, Lady Finlay, and to meet with her to explain the Government’s position on this matter. I would be obliged if she could at this stage withdraw the amendment.
Baroness Finlay of Llandaff
My Lords, in light of the forthcoming meeting—which I am sure the Public Guardian will wish to join—I beg leave to withdraw the amendment.