Grand Committee

Monday 21st February 2022 Grand Committee

Monday 21 February 2022

Arrangement of Business

Monday 21st February 2022 Grand Committee

Announcement

15:45

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

My Lords, Members are encouraged to leave some distance between themselves and others and to wear a face covering when not speaking. If there is a Division in the Chamber while we are sitting, which seems unlikely, the Committee will adjourn as soon as the Division bells are rung and resume after 10 minutes.

Before we begin, I am told by one of the attendants that it is known that this Room is over-cold and they are trying to do something about it. Whether that will result in anything useful I am not sure, but it has been reported.

Building Safety Bill

Committee stage
Monday 21st February 2022 Grand Committee

Committee (1st Day)

Relevant document: 20th Report from the Delegated Powers Committee

15:46

Clause 2 agreed.

Schedule 1 agreed.

Clause 3: The regulator: objectives and regulatory principles

Amendment 1

Moved by

[Lord Foster of Bath]

1: Clause 3, page 2, line 13, at end insert—
“(aa) furthering the protection of property, and”Member’s explanatory statement
This amendment would require the building safety regulator to exercise its functions with a view to furthering the protection of property, which is intended to promote longer term protections for occupant safety and reducing fire damage and cost.

[Lord Foster of Bath (LD)]

My Lords, as we begin the Committee stage of this important Bill, born out of the tragic Grenfell fire, I reiterate my condolences to the families and friends of those who died in it.

I wish the Minister fortitude as he looks forward to what I suspect will be a very long period of the various stages of the passage of this Bill. We all wish him well and hope that he will have a sympathetic approach to many of the important amendments that we will be debating over the coming days, including Amendment 1 and the proposed new clause in Amendment 12, which I am moving today.

At Second Reading I argued that the Bill should address the perverse situation under the current building regulations in which, if all the occupants of a building escape safely from a fire but the building is totally destroyed, the outcome is considered a success. I believe that the life-safety limitation provided by the current regulations, which significantly influences the design of buildings, should be revised to take account of the protection of property.

My amendments would achieve that by adding furthering the protection of property to the list of purposes for which building regulations may be made; extending the requirements of persons carrying out works on a building to cover building resilience; and widening the scope of the building safety regulator’s functions to further the protection of property. The benefits would include longer-term protection with, therefore, more time for occupants to escape; improved safety for firefighters and reduced fire damage and environmental pollution; and reduced costs of rebuilding and replacing lost items.

At Second Reading I mentioned several recent fires in a range of building types as evidence of the need for such measures. Last week, the Sunday Times included an article looking back at one of the fires that I mentioned: the 2019 fire that destroyed the Worcester Park residential block in Richmond. The article noted that the London Fire Brigade arrived within nine minutes but could not save the building. Twenty-three flats were destroyed in minutes, and, although all 60 residents escaped safely, they lost everything. The article describes the impact: the girl who lost her A-level notes in the blaze and whose predicted grades dropped and she lost her university place; the social worker who received a fire brigade commendation for warning neighbours of the fire but who lost his job because of the trauma caused by the event; and several residents who invested their savings in shared-ownership flats in the block who now cannot find similar properties in the area because house prices have risen by over 13% since the fire. No lives were lost, but the impact was incalculable.

How did a relatively new building end up being destroyed in minutes, and at such risk to the occupants? The building owner claims that:

“The cause of the fire was never identified but the building ‘performed’ as it was supposed to, allowing everyone to get out safely.”


The owners of the Croydon self-storage warehouse gave a similar answer when challenged as to how a fire there in 2018 could completely destroy its warehouse and the possessions of 1,200 clients. They said the building met the fire safety building regulations. The same was said by those responsible for the Beechmere care home, Walsall’s Holiday Inn, Chichester’s Selsey academy, Northamptonshire’s brand-new 40,000 square meter Gardman warehouse, Bristol’s Premier Inn and countless other buildings. In each, the outcome was deemed a success, even though the buildings were destroyed and contents lost.

The current Bill does not address this failing. Indeed, it would not even have covered most of the buildings I mentioned, since they would anyway have been out of scope. But every time a home, a school or a business is destroyed by fire, lives are disrupted at great personal, social, environmental and economic cost. Fires do not need to be so dangerous and costly, but unfortunately it seems that the increased use of modern methods of construction and larger compartmental sizes in industrial buildings is resulting in larger, and hence more challenging, fire incidents. Moreover, at a time when we are striving to make buildings more sustainable, the regulations appear to allow for what are, in effect, disposable buildings.

In the other place, when this issue was raised, the Minister there said little, merely commenting that it would be wrong to complicate the role of the new regulator, yet as our Minister knows, the Government are already conducting research into property protection. I hope that when he responds the Minister will bring us up to speed on the progress of that research and how he sees property protection fitting into the regulations.

This is a wide-ranging Bill, primarily designed to address the failings highlighted by the Grenfell tragedy, and of course it must do so, but it should also be forward-looking and designed to secure the safety of people in or about all buildings. My amendments seek to ensure a safer, more resilient and sustainable built environment. I beg to move Amendment 1.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

The noble Baroness, Lady Brinton, is taking part remotely. I invite her to speak.

[Baroness Brinton (LD) [V]]

My Lords, I declare my interest as a vice-president of the Local Government Association.

I shall speak to a number of amendments in this group, broadly divided into two areas. The first follows on from my noble friend Lord Foster’s introduction to the protection of property and the powers of the regulator. The second relates specifically to the safety of buildings and disabled people.

On the first issue, much of the focus among the public and in the debate in the run-up to the Bill coming to your Lordships’ House has been on cladding and the height of buildings. As was discussed specifically at Second Reading, a far wider range of safety, construction and adaptation issues have emerged as secondary issues, generally meaning that too many buildings are not complying with even the old building safety regulations. Life safety is not the only issue: far too many new buildings these days are being constructed in an unsafe way. The level of complaints against builders is the highest it has ever been, and my noble friend Lord Foster of Bath outlined that very clearly.

Secondly, I want to focus on the issues that disabled people face when they are asked to get out of a building, in the event of either a fire or a fire alarm. I am really looking forward to hearing the contribution of the noble Baroness, Lady Grey-Thompson, after her excellent speech at Second Reading.

I have not always used a wheelchair, but I still use a stick on various occasions, and I have to say that there is nothing more frightening than trying to leave even a low-level building coming downstairs with a stick with people racing past you. It was probably the second time I had to come out of a building for a fire alarm when I realised that I was as much a danger to the people trying to race past me as I was to myself, because of the risk of falling. Over the years, I have twice been in hotels where the fire alarm has gone off in the middle of the night—once, when I was trying to use my stick. The second time, because I was in my wheelchair, I had been told to report to the safety zone, which I did, and was told that someone from reception or the fire officers would come up, transfer me to the evac chair and take me downstairs. Twenty minutes later, I was still sitting there.

I have to say to noble Lords that this also happened to me in Portcullis House about five or six years ago. As a result—all credit to the House authorities—that was remedied and there is now a new arrangement. But when you are sitting there and you do not know whether it is a fire or a fire practice, and you cannot get out of your own accord, it is extremely alarming.

The use of PEEPs—personal evacuation emergency plans—is excellent, provided that they work. I have used them in workplaces, homes, hotels and guest houses. I was in charge of building some new disabled accommodation at Selwyn College when I was bursar there more than 20 years ago, and although they were not called PEEPs in those days, creating a confident document so that students, their friends around them and the college staff understood the needs of that particular disabled person was vital to them having confidence about being able to evacuate the building in the event of an emergency. The difficulty that we face today, highlighted especially by Grenfell, is that these documents are not in place.

Many disabled people are very concerned that the Home Office has appointed safety consultants CS Todd & Associates, who have been given a new contract worth over £200,000. This organisation was responsible for drafting and editing a fire safety guide for the LGA that said it was “usually unrealistic” to expect landlords to put arrangements in place for disabled people to evacuate blocks of flats in the event of an emergency. That is an interesting turn of phrase, because, as we know, there were a lot of disabled people in Grenfell and flats are increasingly being built, so evacuation for disabled people is vital.

I especially thank disabled campaigning group Claddag, a leaseholder action group led by disabled people who have decided that they will take the Home Secretary to court on this contract. They and the Disabled News Service are really highlighting this issue. It is important to note that, six years on from Todd’s advice, two-fifths of the disabled residents in Grenfell Tower lost their lives because there were no special arrangements in place to get them out safely. The fire service has recognised that the “stay put” advice for residents in high rise blocks must be changed, but there is no evidence from either the Government or from CS Todd & Associates that things have changed. In fact, a further set of advice has been published by Colin Todd on behalf of BSI that repeated this same arrangement.

That is why we need the amendment in the name of the noble Baroness, Lady Grey-Thompson. There is an adage in the disabled world that says, “no decision about us without us”. This is fundamental to human safety and human life. It is vital that the specific needs of disabled people are taken into account in the Bill.

[Baroness Neville-Rolfe (Con)]

My Lords, I was not expecting to speak after the noble Baroness, Lady Brinton, so I will not comment on her proposals but will wait to hear other comments. I thank the noble Lord, Lord Foster of Bath, for introducing the first group of amendments, and very much endorse what he said about the sad victims of Grenfell. I was thinking that taking fire safety and buildings away from the fire brigade, as we did about a quarter of a century ago, may have had some sad and perverse effects. I refer to my interests in the register, notably as a non-executive director of Secure Trust Bank and as the owner of property that is sometimes rented out. I am also proud to be chair of the Built Environment Committee and to see distinguished colleagues here today.

I was sorry not to be able to speak in the long and interesting debate at Second Reading. However, I remind noble Lords of my involvement in the Fire Safety Bill and the concern I expressed very early on about the position of leaseholders and their inability to sell property because of the uncertainties and the problems with the dreaded EWS1 form, which we will come on to. I look forward to debating the Government’s recent package later, but for now I turn to the regulator and his or her functions, the subject of this group.

16:00

I very much agree with the noble Lord, Lord Kennedy of Southwark, in his remarks at Second Reading that it is right that the Health and Safety Executive should be the regulator. It has been much criticised in the past, not least on our side of the House when implementing EU regulations, but overall it does a good job. I have defended the HSE because it brought about a revolution in health and safety, notably in my childhood sector of farming, and has improved over the years in simplicity, professionalism and the ability to deal firmly but fairly with business.

I am less comfortable with the duties of the regulator set out in Part 2 of the Bill. Because of the background to the Bill, the duties are almost exclusively focused on imposing safety and are very light on the needs or expertise of the regulated. We must have balance in this life to avoid perverse effects. I am worried that the new regulator and the many overlapping provisions in this detailed Bill could have a chilling effect on housebuilding. This is at a time when my committee, in a unanimous report, agreed on the need to increase the supply of housing of all tenures and to tackle the many barriers that already exist, which of course include the quality of buildings.

That is why I have tabled an amendment requiring the regulator’s activities to take account of three things. First, the needs of builders and technicians must be taken account of by the regulator; working with them appropriately, as the HSE does in other areas, is likely to produce better results. Secondly, account must be taken of business—the Committee will see that, as always, I have highlighted the needs of small business, which does not have the risk capital available to the larger developers and has already seen its share of the housing market collapse from 39% in 1988 to 10% today. Thirdly, account must be taken of the need to minimise bureaucracy, with clear and simple rules that all involved in business and in the skilled and less-skilled trades in building safety can understand. This should be part of a framework that ensures the continuation of new building of all tenures, and indeed the repair and retrofitting of existing buildings—an issue close to the heart of the noble Lord, Lord Stunell, as I know from our discussions on this subject.

The tone of the debates so far—including what has been said by my noble friend the Minister, who has done so much to progress matters post Grenfell, for which I thank him—worries me. We must build in balance or we will live to regret the perverse effects of our good work on this Bill. I am not convinced that the provisions of Clause 3(2), on transparency, accountability, proportionality and consistency and the targeting at cases in which action is needed, or the committees in Clauses 9 and 10, will do enough. I hope that my noble friend will look at the matter again in the light of my comments.

[Lord Crisp (CB)]

My Lords, I will speak to Amendment 4. In doing so, I thank the noble Lords who have put their names to the amendment. I am very grateful to the noble Lord, Lord Young of Cookham, who is in his place but who I know cannot stay for the whole debate, and to the noble Lord, Lord Blunkett, who I believe is probably somewhere on the M1. I am grateful to the noble Lord, Lord Stunell, who will bring his great experience and insight to bear when he speaks.

As the awful tragedy of Grenfell revealed to us, and as those working in the industry already knew, the construction industry is in a very poor state on a number of different fronts, from quality and basic standards of all kinds to the supply of housing and the prevailing culture. Whether we worked in the industry or not, we were all deeply shocked by the Grenfell tragedy, and it is this that is the origin of the Bill. I recognise, therefore, that priority must be given to the immediate issues arising from Grenfell and that the Bill cannot address everything that needs to be done to tackle the problems in the construction industry. But it cannot ignore them either.

The Long Title says that the Bill makes

“provision about the safety of people in or about buildings and the standard of buildings”.

The Bill indeed picks up some of this, addressing the golden thread and cultural change, for example. Other noble Lords have addressed this in other amendments, including my noble friend Lord Lytton in his amendments on what is now called the perpetrator pays principle, on which I hope to speak later in Committee.

I originally wanted to press for a set of broad-based standards in construction, brought together around the aim of promoting health, safety and well-being. However, given the imperative of addressing the issues directly related to Grenfell—I am sure the Minister will appreciate this—I and the other signatories have gone for a deliberately simple amendment that makes only a start in that direction. Indeed, I hope that the Minister and the Government will welcome this amendment and see it as a contribution to their wider goals of levelling up and driving cultural change in the sector—something that I hope the Government will build on in levelling-up legislation and elsewhere.

Turning to the specifics of the amendment, it clarifies the meaning of “safety” to include health and well-being. It makes clear that the building safety regulator should consider human health and well-being in discharging its building functions. In practice, this means that the regulator, being part of the Health and Safety Executive, needs to consider health and well-being as part of safety when it exercises building functions under Clauses 4, 5 and 6 of the Bill and its functions under the Health and Safety at Work etc. Act 1974 and the Building Act 1984.

Even without our experience of Covid, there was growing evidence that showed that people’s homes and neighbourhoods have a direct impact on their physical and mental health. Cold, damp, overcrowded and cramped conditions, pollution and inaccessibility for older and disabled people all directly impact on mental and physical health and well-being and constrain opportunity. The quality of our homes and neighbourhoods is one of the foundations of our life and our life chances. The experience of Covid has simply dramatically reinforced all these points.

This is about opportunity for people, life chances and social justice. It is about enabling the people of this country to thrive. The way we organise and design our built environment matters to people and to a series of the Government’s policy initiatives, not least those dealing with health inequality, net zero and levelling up. These conditions also matter in considering our resilience as a country in the face of resurgent and indeed future pandemics. The problem is that the way we regulate homes now fails to secure the minimum standards vital to people’s well-being. This, as the Government’s levelling-up agenda recognises, is a major issue in securing social justice. People on the lowest incomes often suffer the poorest and most insecure housing conditions and live in neighbourhoods with the worst pollution.

This amendment is important because safety is currently undefined in the Bill, so it is simply not clear whether what I would call these common-sense aspects of safety relating to people’s health and well-being should be considered by the building regulator. This lack of clarity is unhelpful because the safety of people is generally defined as an absence of health risks or harms. I note that health and well-being have definitions in UK legislation, so their insertion into law would not be novel. It is also important to note that these issues are not covered by planning or other existing regulations; put simply, planning legislation has no legal obligations of any kind that relate to the health and well-being of people.

I will make one final point on cultural change before I sum up my argument. There is a problem with all regulation when it is written too tightly that people deliver on the specific and do not address the bigger issues—hitting the target but missing the point, if you like. I am sure there are people associated with Grenfell who are arguing that they followed the letter of the law while of course missing the far bigger point. We must not miss this opportunity to take a holistic view on safety. Do we want a future where we have regulated appropriately for fire but, to take just one example that the Committee will address, let people fall down unsafe steps, even though we know what can be done to prevent it? I believe it is necessary to make it clear that this wider definition will inform the decisions of the regulator. I believe that knowing that attention has to be paid to wider concerns of health and safety will also help drive cultural change in the sector as a whole. What I am proposing is about not more regulation but better regulation. Indeed, I believe that, in the longer term, going further and requiring developers to build homes that promote health, safety and well-being will help bring together some of the contradictory elements of the planning and building regulations. That, however, is for another time.

In conclusion, I well understand that the Government cannot make the level of change to the construction industry that is necessary within a single Bill or set of regulations, and I commend them for what is in the Bill. This is why I said at the beginning that we have deliberately added only this simple amendment. This definition allows for the consideration of people’s basic and common-sense needs such as freedom from pollution and damp; safety; access to green space and natural light; accessibility, including safe stairs; heat requirements; and security.

While the amendment is limited to clarifying the scope of the responsibility of the building regulator, it enables the beginning of a new approach to regulation in which human health and well-being are core to the delivery of building safety. I very much hope that the Minister will see this as a contribution to the Government’s goal of making appropriate provisions in the Bill about the safety of people in or about buildings and the standard of buildings.

I have heard it said that we are building the slums of the future. Here the Government have an historic opportunity—very sadly created by this dreadful tragedy—to reverse that trend and help create homes, buildings and neighbourhoods that we can be proud of. I hope that the Government will accept this amendment as an important step on that journey.

[The Earl of Lytton (CB)]

My Lords, as this is the first time that I have spoken at this stage of the Bill, I declare my interests as a chartered surveyor and member of various property-based organisations. I am also a patron of the Chartered Association of Building Engineers.

The noble Lord, Lord Foster of Bath, is absolutely right to say that, while the preservation of human life must be front and centre, by the same token buildings must be designed to retain their fundamental integrity for specified periods of time, at the very least—as set out, half an hour for this, one hour for that and so on. Noble Lords know this only too well. There are of course many reasons why this is necessary. The total destruction of a building was so graphically illustrated by the fire in Worcester Park, the downstream effects of which were described by the noble Lord, Lord Foster, in its destruction of livelihoods, life chances and, in particular, people’s confidence in their homes—I think this is the point the noble Lord, Lord Crisp, was getting at in his amendment. It casts a shadow across families and down the generations. Anybody who understands the concepts of trauma theories knows that; I am no expert, but I know that it happens. Beyond the utter undesirability, the cost, the insurance risk, the potential risk to firefighters and the general spread of contagion, there are compelling reasons why buildings must retain their integrity: structural, compartmentalisation, spread of flame and so on.

The building regulations, going back to 1965—which were the set of regulations in force when I was at the College of Estate Management studying what has become my lifelong trade and calling—include mandatory standards. There is a secondary aspect in parallel with those, which is the advisory approved documents and guidance. It is really important to understand that there were two different streams running in parallel.

One of the industry failings that has occurred—accompanied, I must say, by a failure of regulatory oversight—is on the part of those who were entrusted to make sure that buildings were constructed in accordance with the mandatory requirements and the best practice set out in the advice. The failing has been to assume that everything you needed to know was contained in this advisory guidance that went in parallel with the regulations. That is wrong. I can do no better than refer to, as I understood them, the opening remarks of counsel for the Government in the final stage of Sir Martin Moore-Bick’s inquiry, when he made precisely this point.

If you follow slavishly the approved documents under part B of the building regulations, which is principally to do with fire, you will lead yourself astray, because it says “should”, “could”, “might” and all those sorts of things. You are dealing with advisory documents concerned with how you may be able to do it this way, or you may be able to do it that way. In other words, the regulations produce the mandatory test first and foremost, but all these other advisory documents then provide suggestions on how you might achieve it.

I strongly support Amendments 1 and 4 because this is about people and the security of their homes. It is about inclusion, decent design and, ultimately, outcome-based policies. The noble Lord, Lord Crisp, kindly gave me a quick trailer on the “perpetrator pays” amendments, of which more anon. However, I finish by again following the noble Lord, Lord Foster, in saying to the Minister—who I know has really driven this policy forward; I give him great credit for producing this Bill—that I will do everything I can to assist him in making wise choices and accepting appropriate amendments when they are moved.

16:15

[Baroness Grey-Thompson (CB)]

My Lords, I declare my interests: I am the president of the Local Government Association and, when in London, I stay in a block of flats. I have a number of amendments in this group. Amendment 9 is the most substantive but my name is also attached to Amendments 4A, 7A, 7B and 147A.

I tried not to test the Committee’s patience by adding “and disabled people” to every part of the Bill I could, but I am looking for more specific recognition that disabled people need greater support and protection than they currently have. If they are not specifically mentioned, disabled people will be forgotten, however good the intention right now may be. There are several important parts where explicitly mentioning disabled people would add significant value, such as on residents’ panels. Of course, there are many types of impairment —we are not one homogenous group—but bringing in additional or different knowledge would be useful for a far greater number of people.

I listened to the experience of the noble Baroness, Lady Brinton. It is what disabled people think about every single day. In every building I go into, I automatically start thinking about how I would get out if there was a fire. The noble Baroness and I could probably spend most of the afternoon listing all the instances when we have been left near or on staircases, but I take my personal responsibility very seriously. I can still get down a flight of stairs in my wheelchair as long as I have a handrail to hold on to. I can do it reasonably quickly; when I was an athlete, I could do it incredibly easily. However, I know that, as I get older, it will get harder and my ability to get out will become more challenging.

One time, I was in an office block when the fire alarm went off. It was not a drill. There was one evacuation chair—absolutely fantastic—but there were two wheelchair users on that floor. We looked at each other and worked out who needed the evac chair the most. I went down five flights of stairs in my wheelchair. Since Second Reading, more disabled people have got in touch with me to explain their fears but also to let me know about some solutions they have been given. Quite frankly, they were ludicrous, which is why we need to have different things included in this Bill.

In situations like this, we often see that the solutions that non-disabled people come up with are very much based on the medical model, rather than the social model, of disability and do not take into account a disabled person’s reality or life. It was once suggested to me, not in relation to this Bill, that it would be far easier if disabled people had a curfew so that they went home at night and we knew where they were. It was a really serious suggestion; I struggled not to laugh at it, I am afraid. If anything vaguely approaches that in Committee, I hope noble Lords will understand if I push back on it quite strongly. Tagging disabled people is not a sensible solution to this problem either because it absolves us from our responsibility to change how we think about disabled people. We need to be more forward-thinking and, in essence, we need to future-proof the decisions we take.

Specifically on Amendment 9, in another place, the right honourable Mr Christopher Pincher said:

“The Secretary of State can already consider the vulnerability of residents when making regulations.”—[Official Report, Commons, 19/1/22; col. 435.]


However, I do not think that this goes far enough. I know that there are likely be suggestions about including information in a premises information box; that is interesting but, again, it does not go far enough. We need to consider the needs of disabled people. I very much welcome a discussion with the Minister and the Bill team to think about how we can find the right wording, not just by sticking “and disabled people” at every point in the Bill but by genuinely helping disabled people to make it better.

At Second Reading, I asked the Minister when the personal emergency evacuation plan consultation would be published. On 3 February I asked a Question for Written Answer about this, and the noble Baroness, Lady Williams, answered on 17 February that it would be

“once the views of all individuals and organisations who contributed have been carefully considered.”

She stated that the timeframe would be “shortly”. I know that “shortly”, in parliamentary terms, can be quite a wide timeframe. Can the Minister provide any update on what it means in this context? This piece of work would be incredibly useful in helping us navigate this Bill.

I am expecting some sympathy from the Minister, although possibly not much movement. Obviously, I will take away his comments from this debate, but will return on Report with amendments in this area and divide the House on ensuring that we have protection for disabled people.

I will speak very briefly to the amendment of the noble Lord, Lord Blencathra. He apologises for not being here today; he is trying to get down to London—when he spoke to me this morning he was stuck somewhere around Penrith. He is hoping to be here very shortly. He messaged me to say that, with his amendment, he wanted to add buildings below 18 metres that pose a special risk—not to tie the Secretary of State’s hands but to give the option of complete flexibility to define “buildings” and alter any of the definitions in the section. As he expressed passionately at Second Reading, we have no idea what will be found when proper inspections take place, but there are flats that have been converted from office blocks and box flats with no windows.

Most of his amendments are in the form of “regulations may”. He made it very clear that, when he chaired the Delegated Powers Committee, he would have deplored such a formulation of words, but he recognises that a number of provisions in the Bill must inevitably be skeletal. He also said that taking the power does not mean that it has to be used and it certainly does not imply a commitment to undertake fire remedial work on all buildings, even those under 11 metres which may still be four storeys high.

[Lord Stunell (LD)]

My Lords, it is a great privilege to follow on from what the noble Baroness has outlined. I strongly support what she has been saying. I will speak on a couple of other points that have been raised so far, particularly on Amendment 4 and what the noble Lord, Lord Crisp, said, and on what my noble friend Lord Foster proposes in his amendment.

However, I will first deal with the point just raised. It is not about a theoretical code; there are absolute, actual conflicts between the requirements which fire officers, for instance, dictate in relation to fire doors—how soon they should shut, and so on—and the requirements of what someone with mobility problems needs to pass through that doorway. These issues are not resolved at the moment; they are not just the subject for soft words but for reconciling the tensions and devising ways to find solutions to those problems. I could make the same point about railings and barriers, where what is required for fire safety is often in conflict with what disabled people need.

Apart from the generality of the points made by the noble Baroness, Lady Grey-Thompson, I say to the Minister that there are really specific regulatory pitfalls; things which, if you implement them very mechanically, have internal conflicts which need to be resolved. I very much hope the Minister can, at least during the passage of this Bill if not today, undertake to consult both fire officers and the disabled community on rational ways of solving or at least ameliorating those difficulties.

Amendment 4 was very ably proposed by the noble Lord, Lord Crisp. He has made the central point, which is that there is an important difference between having a set of regulations which are really a complicated algorithm or tick-box—where if you have got everything right you have simply passed, and that is it—and having legislation which sets out the overall purpose of having any regulations or rules at all in the first place. That is where this amendment comes fully into play. It says that safety has a wider import than simply what we mean by making a building fire safe; it is about what we mean by making it safe to live in in the long term.

When I looked at page 82, I was interested to see that Clause 60(8) says that regulations can be made under this provision where there is a significant risk of deaths or

“serious injury to a significant number of people.”

It is clear that, if you think about buildings as things which kill people, far more people are killed by buildings which are damp, leaky and dangerous than by buildings which catch fire. Asthma and bronchitis deaths caused by poor housing form a significant fraction of the health service’s burden during the winter months. That broader outlook or vision of what we actually mean by making a building safe—creating a safe home for people—lies at the heart of this amendment. I very much hope that the Minister will be able to respond to it with a very generous spirit.

I would perhaps urge the Minister on a more practical point: later in the Bill, we shall consider the establishment of residents’ engagement strategies for buildings. I am not sure quite how he envisages those will work, but at some point a large group of residents in a particular building will meet and tell its owners what they believe needs to be done to make their building safe. The Minister has led a council and been to residents’ meetings, so he knows the kinds of things which are raised at them. I would bet that, by 10 complaints to one, they will be about damp, draughts and leaks as against fire doors that do not close properly. Those residents’ engagement groups are going to give a lot of grief to those who run the system in the future. Including this overall vision of what safety and well-being mean within the compass of the Bill and the scope of the new regulatory environment would be one very good way to show that there will be a route for residents to have their complaints, whatever their nature, about their lack of well-being or safety in their home addressed by the legislation.

Having spoken on Amendment 4, of course I strongly support what my noble friend Lord Foster said about the property situation. My support may be irrelevant but I notice that the National Fire Chiefs Council strongly supports this provision, as do the Institution of Fire Engineers and the Association of British Insurers. They all support the inclusion of property risk alongside life safety risk in the regulatory structure that we erect for the Bill. I very much hope that, as with Amendment 4, the Minister will be able to give us a very satisfactory outcome on Amendment 1 from my noble friend Lord Foster.

[Baroness Hayman of Ullock (Lab)]

My Lords, first, I thank the noble Lord, Lord Foster, for his clear introduction to his amendments.

Noble Lords may remember that the Minister said at Second Reading that

“Dame Judith called for a complete overhaul of the system, and her recommendations underpin the Bill, with a golden thread that will ensure that, henceforth, people remain safe in the homes that we build for them. The Bill is unapologetically ambitious, creating a world-class building safety regulatory regime that holds all to the same high standard.”—[Official Report, 2/2/22; col. 916.]


We certainly applaud this ambition, but making high-rise residential buildings safe requires much more than action to stop fire spreading. There is also an urgent need to prevent those fires from starting in the first place and to look more broadly at what building safety means. We therefore support the amendments in the name of the noble Lord, Lord Foster, which are designed to make buildings safer and to increase resilience. As the noble Lord said, it is important to improve protections and safety for firefighters and for residents, to give people more time to evacuate the building and to make it less likely that the building itself will be completely destroyed.

16:30

Turning to Amendment 2, in the name of the noble Baroness, Lady Neville-Rolfe, the Bill sets out major regulatory and legislative reforms in the construction sector. Central to those reforms, as other noble Lords have said, is the golden thread policy that is intended to provide a framework to encourage transparency of information relating to all building safety matters, from the inception of a project to its completion.

The golden thread is also designed to encourage more collaborative working within the industry and to support much-needed culture change, and to increase competence and capability by the sharing of working practices, updated processes and information management control. The noble Baroness, Lady Neville-Rolfe, therefore raises an important point in her amendment, because if the Bill is to be truly transformative, and if we are to be truly successful, the Government need to bring industry with them and so need to take account of the needs of those running the businesses and working in the industry.

The Opposition strongly support Amendment 4, in the name of the noble Lord, Lord Crisp. Safety is currently undefined in the Bill, so it is simply not clear whether people’s health and well-being should be considered by the building regulator. This lack of clarity is unhelpful, because the safety of people is generally defined as an absence of health risks or harms. By broadening the definition of safety in this part of the Bill, the amendment provides an opportunity to look at the risks beyond high-rise buildings and fire and to address housing health and safety issues which the Bill’s title claims to address.

The Town and Country Planning Association’s written evidence on the Bill points out that health risks and harms such as air pollution, overheating and noise pollution, as well as more indirect issues such as poor accessibility or walkability, insecurity, lack of access to green space, and cramped living conditions, are not covered by the Bill but undermine people’s well-being and health and, ultimately, their safety. I therefore hope that, as the noble Lord, Lord Crisp, requested, the Minister will welcome the amendment.

It is a shame that the noble Lord, Lord Blencathra, has got stuck in Penrith and is unable to be here. He has my absolute sympathy; I struggled to get a train in from Carlisle this morning and was quite fortunate to make it here at all, so I wish him well. His amendments tie in with the amendments in the name of the noble Baroness, Lady Grey-Thompson, including Amendment 9, to which I added my name.

Higher risk is not just about height. It is about the actual construction of a building and its safety standards, and about who lives there—about the vulnerability of the residents and their ability to escape, particularly taking disability into account. The Bill leaves a range of fire safety issues unresolved, from the lack of a national strategy as to how to evacuate high-rise buildings to the absence of a requirement to plan for the escape of disabled residents. The noble Baroness, Lady Grey-Thompson, says that, whenever she enters a building, she immediately thinks about how she can get out. I am sure that that is not something that the rest of us do automatically. The noble Baroness also talked about the complete lack of understanding about the needs of people with disabilities and some of the ludicrous suggestions that have been put forward.

We need a change to the definition of high-risk buildings to ensure that the scope of the new system includes all supported accommodation as well as residential care homes, regardless of height. The profile of residents is a significant contributor to the risk of life, and we believe that all buildings with vulnerable residents must be adequately scrutinised. The definition of high-risk buildings has been modified in the Bill and now includes care homes and hospitals that meet an 18-metre height threshold, but that still excludes vulnerable people living in buildings below the threshold, and if that threshold is reduced, more buildings will still come in below that. That means that those people will not have access to vital protections under this new system. We know that supported accommodation tends to be more in low-rise and medium-rise buildings, so this issue needs to be looked at. I want to reinforce that point: the risk to building safety should be defined by actual risk, not by some arbitrary cut-off.

Amendment 9 seeks to ensure that the Secretary of State, when revising the definition of a high-risk building, has regard to the ability of residents to evacuate a building. I hope that noble Lords and the Minister have listened to the noble Baroness, Lady Grey-Thompson, and the powerful comments from the noble Baroness, Lady Brinton, and will recognise the importance of this provision. I urge the Minister to offer his support.

I was going to ask the same question that the noble Baroness, Lady Grey-Thompson, asked about when we are likely to see a response to the consultation on personal emergency evacuation plans. It would be extremely helpful if the Minister could provide an update on that. Does he also have any information as to whether the Government will commit to making PEEPs statutory requirements for any buildings covered by the fire safety order for residents who would have difficulty self-evacuating? With that, I hand over to the Minister.

[The Minister of State, Home Office and Department for Levelling Up, Housing & Communities (Lord Greenhalgh) (Con)]

My Lords, I was not expecting to be in what the Romans called a frigidarium for this stage of the Bill. It is positively bracing. I am sure that as the week wears on we will get a slightly more normal temperature. It is already slightly better, so it clearly just takes a bit of time.

I will try to capture each group of amendments in three words or fewer. I am going to call this group the “widening the scope” group of amendments—that is three words. I will go through each amendment in turn. In practice, I have sympathy with every idea that has been put forward. However, I would like noble Lords to consider that the more we widen the scope, the greater the risk that we will actually fail in the first duty of any Government, which is to keep people safe. Our focus has to be based on what it is reasonable to expect from a new regulator in the Health and Safety Executive. So, although I have sympathy, I will resist this group of amendments, because, when we talk about high risk, the scope has to be necessarily tight in order to give the HSE the chance to grow as a regulator and to implement this regime properly.

However, I thank noble Lords for their contributions to this first group of amendments. I believe that this is a landmark piece of legislation and a necessary one. I can feel the broad support that it has from all sides of the House, and I look forward to further debates in Committee. There has already been good discussion in this grouping, and I am grateful for the commitment from all noble Lords to improve the Bill and to reform building safety more generally. I have listened to the concerns raised by noble Lords and I thank them for their helpful contributions. As I said, I will respond to them all in turn.

I start by talking about the fire which the noble Lord, Lord Foster of Bath, mentioned. It is true that it was a staggeringly awful fire, even though there was no loss of life, and the noble Lord captured that very well in his speech. I have spent quite a bit of time trying to learn the lessons of the near misses, if you like, so I have met Geeta Nanda, chair of the G15, who I have known for some time. She is also the chief executive of the Metropolitan Thames Valley housing association, which manages Richmond House within Worcester Park, which consists of 23 households of shared owners. I have also met Dean Summers—on Zoom; I have not met him in person—who took over from Sean Ellis, and I had a meeting with him as the new managing director of St James.

It is fair to say that Richmond House, which was built in 2011 by the Berkeley Group—St James is part of the Berkeley Group—was built in a shockingly bad way. It was built without internal compartmentalisation and certainly would never have passed the building regulations at the time. There was also inadequate fire-stopping, which is one of the reasons why the fire spread so quickly. Candidly, it is absolutely right that the Berkeley Group pays for its replacement and addresses all the losses suffered by the shared owners. I am very interested in that, and I have asked for a report from the housing association and Berkeley on progress on doing precisely that. The building was not built in line with building regulations, so it should not have happened. It is a four-storey building and is under 11 metres, which, according to the building regulations, should not have been able to happen, so we have an example of someone having signed off a building that should never have been signed off. That is the lesson of Richmond House.

Sometimes regulation does not work. That, for me, is the lesson. The other lesson is that fire is a tragedy, not just when you lose lives but in the opportunities lost. This Bill does a lot to make housing overall safer, and we will have much better housing stock over the next 30 years than we have had in the previous 30 years.

[Baroness Neville-Rolfe (Con)]

Another problem at Worcester Park might have been the failure to implement the building regulations. I have found building regulation enforcement very patchy. There has been a lot of very aggressive enforcement of building regulations in my lovely county, yet here there has obviously been a disaster with building regulations. Is enforcement of the regulations not also important, and will that be improved by our work here?

[Lord Greenhalgh (Con)]

I think we need to ensure the competence of enforcement and that it works, and the competence of the people who assess buildings and sign them off as fit for human habitation. In the same way with crime where we want an absence of crime, we want an absence of these problems. Yes, we need to improve enforcement and there needs to be the strong arm of the law. That is why we want to have a strong regulator in this new regulator under the HSE. We have Housing Act powers for local authorities to intervene. The fire service has powers under the fire safety order. There are lots of powers and lots of regulators that can step in and do something about it. In this case, they all failed. Yes, we need to strengthen them. We understand a lot more about the inadequacies of some of the built environment, but my noble friend is right that we also need to strengthen enforcement.

I thank the noble Lord, Lord Foster of Bath, for his amendments. On Amendment 1, I hope noble Lords will agree that the regulator should exercise its functions in line with its first objective: to secure the safety of people in and around buildings. I am concerned that adding additional objectives for the new building safety regulator could distract from this mission. The Bill provides the regulator with a broader objective to improve the standard of buildings. Achieving this could involve the regulator improving regulatory standards relevant to property protection, such as security, resilience and fire safety, so the regulator’s remit already extends to considering these issues.

Adding a specific objective for property protection would have two main downsides. First, it would put property protection on a par with resident safety as a priority for the regulator. The Government believe that the regulator should prioritise residents’ safety and do not want the regulator to be distracted from that. There is a risk that a specific requirement always to consider property protection would result in the regulator favouring solutions that go beyond what is required for residents’ safety. The second downside is that this amendment risks skewing the building safety regulator’s oversight function. The Government intend the regulator to use evidence to identify emerging issues with the safety and performance of buildings and to make recommendations to Ministers on regulatory changes where needed. A property protection objective would distract the regulator from using evidence to identify and rectify the most pressing issues, which might, for example, relate to net zero and sustainability rather than property protection.

The pre-legislative scrutiny committee considered property protection but found that the existing objectives are a sensible starting point—I emphasise “starting point”. The committee suggested that the Government keep this under review. We are committed to doing this through the provision in Clause 135 for a regular independent review of the effectiveness of the regulator and the wider regulatory system.

Turning to Amendment 12, there are already powers for building regulations to cover specific aspects of building resilience. We believe that it is better that building regulations are targeted on specific issues rather than open-ended requirements. However, we recognise that, for residential buildings, further research into property protection is warranted. The impact of the loss of a home is significant, so we are taking this forward as part of the technical review of approved document B on fire safety. I thank the noble Lord for suggesting these amendments and respectfully ask him to withdraw Amendment 1.

16:45

I am grateful to my noble friend Lady Neville-Rolfe for her Amendment 2. I hope to persuade the Committee that we have provided adequate safeguards to prevent the building safety regulator becoming an overly bureaucratic regulator. The Government are clear that the new building safety regulator must follow regulatory best practice. Clause 3 sets out the principles that the regulator must operate proportionately and target action only where necessary. Clauses 4 and 6 ensure that the building safety regulator works proactively with businesses, both small and large, to facilitate the improvements to competence and safety that are needed. The Health and Safety Executive, which will deliver the building safety regulator, is required to have regard to the Regulators’ Code. The code stipulates that it must carry out its activities in a way that supports those it regulates—business, builders and technicians—to comply and grow. The Health and Safety Executive will build on its more than 40 years’ experience of delivering a proportionate and robust regulatory regime.

I have concerns about going even further and placing further duties to support business in the Bill. Dame Judith Hackitt’s independent review and the public inquiry are uncovering serious failures. I would not want Parliament inadvertently to send the message to the regulator that it does not have our backing to enforce robustly rules around safety, where business will not comply. In the light of my assurances, I hope that my noble friend will consider not pressing her amendment.

Turning to Amendment 4, on the definition of safety in Clause 3, I thank the noble Lords, Lord Crisp, Lord Blunkett and Lord Stunell, and my noble friend Lord Young for raising this important matter. Under Clause 3, the regulator has two objectives: to secure safety and, crucially, to improve the standard of buildings. Improving the standard of buildings extends to issues such as damp, thermal efficiency—including insulation—safe stairs and access to light. Section 1 of the Building Act 1984 ensures that building regulations can address welfare, convenience and health and safety in relation to buildings.

Turning to the safety objective, we want a focused objective to guide the regulator to prioritise preventing a tragedy such as Grenfell Tower happening again. It would confuse the regulator’s mission if Parliament instructed it to treat safety as encompassing well-being in Part 2 but, in Part 4, to treat safety as focused on preventing and mitigating serious risks to life. If the new Part 4 regime for safety in occupied high-rise residential buildings were expanded to cover well-being, buildings would need costly remediation for reasons going well beyond the physical safety of residents. This would not be proportionate. Finally, the safety objective can already cover risks to safety relating to the location, construction or management of buildings. The Health and Safety Executive acts as a statutory consultee in relation to high-rise residential buildings at the planning stage, and this Bill addresses both construction and occupation. I therefore invite the noble Lord to consider not pressing his amendment.

I am sad that my noble friend Lord Blencathra was unable to deliver his speech. I always enjoy his speeches; they are absolutely priceless. However, I thank the noble Baroness, Lady Grey-Thompson, for stepping into the breach at short notice and doing such a fine job. I turn to my noble friend’s Amendments 8 and 44. On Amendment 8, I thank him for raising this important matter through the noble Baroness, but I am afraid that the Government will not be able to accept this amendment. Unfortunately, I must point out that the amendment would mean that a simple change in design could result in a building meeting or no longer meeting the criteria to be a higher-risk building, which would risk uncertainty and confusion for the industry.

The clause already provides powers to allow the definition of higher-risk buildings to include buildings less than 18 metres in height. A recommendation or advice from the building safety regulator must be provided and a cost-benefit analysis undertaken to do this. Our approach to the definition of higher-risk buildings is proportionate to the level of risk potentially found in these buildings. It was chosen following extensive engagement with stakeholders and ensures that the regime can be delivered by the building safety regulator.

Amendment 44 relates to Clause 62. I am afraid our assessment is that, even with supporting secondary legislation, this amendment would have the unintended effect of causing uncertainty for building owners and residents. For example, if a fire detection system broke, then it would be inadequate and the building would become a higher-risk building. Once it was fixed, the building would no longer be a higher-risk building and subject to the new regime. The same scenario could apply to a broken sprinkler and smoke suppression systems, which could leave evacuation routes inadequate as they may have protected them. Finally, construction materials can be used in varying quantities and in various combinations, and whether they are appropriate is very context specific. We therefore concluded that it would be inappropriate to base the regime around the factors proposed in the amendment.

We are focusing on high-rise residential buildings, as the risk to multiple households is greater when fire spreads in buildings of this height. I assure my noble friend that the Government are taking action to protect all residents. This includes the building safety regulator having wider responsibilities for overseeing the safety of all buildings. This will drive continuous improvement in buildings’ performance to ensure the safety of occupants. In light of this, I ask him, through the noble Baroness, Lady Grey-Thompson, not to press his amendment.

Finally, I turn to Amendment 9. I recognise the concerns which have led to noble Lords laying this amendment and assure them that the Bill makes provision for the building safety regulator to consider a wide range of factors which influence the level of risk in categories of building before making recommendations or providing advice about which categories of buildings should be considered higher-risk. In addition, Clause 5 places a duty on the building safety regulator to keep the safety and standard of buildings under review. This could include considering the effect of factors, such as the general occupant profile for different types of buildings, on the safety of people in or about buildings. Where the regulator identifies an issue, it will consider whether it must recommend to the Secretary of State that a category of building should be defined as a higher-risk building, ahead of a change being made in regulations. In light of this, I ask that this amendment is not pressed.

I am particularly grateful to the noble Baronesses, Lady Grey-Thompson and Lady Brinton, for tabling Amendments 4A, 7A, 7B and 147A. I assure them that, where the Bill refers to residents, this includes residents with disabilities. The Government and the Health and Safety Executive are committed to providing residents with diverse backgrounds and lived experiences, including disabled residents, with a strong voice in the new regulatory system. The Health and Safety Executive is actively seeking representation of the disabled community on its statutory residents’ panel and is committed to working with and seeking the views of organisations that represent disabled interests. I engaged extensively with Claddag; I think it is a fantastic group that we need to continue to learn from.

In individual high-rise residential buildings in scope of the new regulatory regime, the Bill ensures that all residents will be kept informed about the safety of their building. Principal accountable persons must establish a residents’ engagement strategy, which will promote the participation of all residents in decision-making about their building’s safety. Residents will be entitled to raise building safety issues with the appropriate accountable person and escalate complaints to the building safety regulator where the accountable person has not resolved their safety concerns. Even in blocks where the new regulatory regime will not apply, the fire safety order requires fire risk assessments to include safety measures the responsible person has taken and any group of persons identified as being especially at risk. The Bill requires recording the assessment in full, supporting greater compliance with the order. In light of my assurances, I hope the noble Baronesses will not press their amendments.

A number of noble Lords, including the noble Baronesses, Lady Hayman of Ullock and Lady Grey-Thompson, asked when we will publish our response on PEEPs. I have been told that it will not be published shortly but that it will be published in the coming weeks.

[Noble Lords]

Oh!

[Lord Greenhalgh (Con)]

I am the Minister with responsibility for fire as well as for building safety, and I will ensure that it is published in weeks and not months or years. Noble Lords will know that we have consulted twice now on PEEPs. I am pretty clear about the way forward, and it is about time that we as a Government came forward with a response. I recognise the pressure to do so sooner rather than later, and thank the Committee for raising the issue.

I recognise the concerns that have led to noble Lords laying these amendments and assure them that the Bill makes provision for the building safety regulator to consider a wide range of factors that influence the level of risk in categories of building before making recommendations or providing advice as to which categories of buildings should be considered higher risk.

I thank noble Lords for their contributions, and I hope I have given reassurance to enable them to withdraw and not press their amendments.

[Lord Foster of Bath (LD)]

My Lords, we are at a very early stage of consideration in Committee of this Bill, but I have to say that it is following a pattern that I have experienced on many occasions during the passage of other Bills. It was summed up beautifully by two comments. The first was from the noble Lord, Lord Crisp, who said in his excellent speech, proposing an excellent amendment, that the Bill cannot do everything but that there are some issues that we simply cannot ignore. Some of those issues have already been raised. For example, the noble Baroness, Lady Grey-Thompson, made an excellent speech, backed up by my noble friend Lady Brinton, in which she talked about the need to give disabled people more protection than is currently the case.

My proposal relates to the inclusion in the Bill of the protection of property, and the proposal from the noble Lord, Lord Crisp, relates to the need for safety considerations to include health and well-being. I say to the noble Lord that, later on, I will move Amendment 121, which concerns one such health and safety issue, the improving of the energy efficiency of existing buildings—something I desperately wish could be implemented immediately because, like everybody else, I am absolutely freezing at the moment. Sadly, 13 million homes in this country are so badly insulated that a lot of people suffer every day, and it is not just the odd inconvenience like the one we face today.

The second comment that shows how typical this pattern is was from the noble Baroness, Lady Grey-Thompson. At the end of her remarks, she said that she is expecting sympathy but not much movement. That is what we have just heard from the Minister today: a lot of sympathy and a clear understanding of the issues, along with probably a personal desire to do far more, but, in reality, a resorting to the usual things that Ministers—I am guilty of having done it myself—say from the Dispatch Box. Excuses were used, such as that we should not extend the scope because that would cause confusion. I ask the Minister to look at what the Government are doing in relation to Ofcom, the one regulator the Government never say cannot have its scope extended, with 300 additional staff having just been added to deal with the internet safety Bill. The other excuses are that this will be kept under review and that something will be available in the coming weeks.

The Minister has asked us not to press our amendments and that I withdraw mine. I cannot speak for other people, but these are all important issues to which I am sure we will return at future stages of our deliberations in Committee. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 2 not moved.

Amendment 3

Moved by

[Lord Stunell]

3: Clause 3, page 2, line 22, at end insert—
“(3A) In exercising a building function (other than an excepted function) the regulator may exercise the powers given by virtue of section 8 (certification of work) and section 9 (Appointed Person and management of works) of the Sustainable and Secure Buildings Act 2004.”Member’s explanatory statement
This amendment would pass certain powers of the Secretary of State contained in the Sustainable and Secure Buildings Act 2004 to the regulator.

[Lord Stunell (LD)]

My Lords, I apologise to noble Lords; my usually invisible hearing disability got in the way there.

Amendment 3, in my name and that of my noble friend Lady Pinnock, joins up very neatly to what the Minister said in his speech winding up the previous debate. He wants the regulator to have a fire safety oversight of all buildings, not just the high-rise ones; he wants to see high standards in all buildings. That is exactly what I want to achieve, which is why I have tabled this amendment.

17:00

I must admit that when you look at the amendment it is not at all transparent what we are trying to achieve, so I hope your Lordships will excuse me for taking it back a little and explaining what it does. Essentially, it draws attention to the fact that it is already possible for the Minister to introduce a golden thread of certification and oversight for every building construction project in the country. That has been possible since 2004, with the passage of the Sustainable and Secure Buildings Act, and noble Lords will see that the amendment refers to Sections 8 and 9 of that Act.

The Bill before us imposes very firm and rigid guidelines on how fire safety should be dealt with in high-rise, high-risk buildings. I strongly support that, as of course did the report by Dame Judith Hackitt, on which the whole foundations of the Bill sit. Central to that is the idea of a golden thread whereby you can always find out who made the decision, who they passed it on to, and who made the next decision. It will therefore always be possible to find out and, if you put it the other way round, make somebody accountable for every decision made. Clearly, that is the central point of the Hackitt report and of the Building Safety Bill.

High-rise buildings, despite various attempts to widen the range, probably include about 40,000 buildings at the most, which is of course a large number, but the Minister has said that he wants the building safety regulator to look after the other 24 million. This amendment deals with what should happen with the other 24 million. It makes it as clear as it can, within the limits of parliamentary drafting, that there are existing powers that have lain dormant for 18 years, during which time it would have been possible for there to be regulations that set out that there must be a named, appointed person in charge of a building project and there must be a certificate of completion that is submitted to the building control authority to indicate that the building has been constructed according to the regulations. There is a track, if you like, already available there, but, as I say, 18 years later, it has not been implemented.

I should have said at the outset of the whole of this debate that not only have I failed to declare any interests at all, but I particularly did not remind the Committee that I was the Minister responsible for building regulations for two years between 2010 and 2012, so I am one of the people who did not implement this. We have all had good reasons why we did not do so. This amendment proposes that in future we do not leave it to Ministers with all their competing priorities, and that rather than the Secretary of State having this power already in legislation to make regulations on the golden thread, they are exercisable instead by the building safety regulator as and when it decides, based on its assessment of the proportionality and the necessity of doing so in any particular class or category of buildings, or any particular scope of building regulations, to ensure that this comes to fruition.

The alternative is that we do not do that and that it relies on the Secretary of State making a decision, which has not been taken so far, to bring into scope on a golden thread basis all 24 million buildings that, at the moment, are excused from taking that particular route.

This is not only about the fire regulations. There is evidence of regulatory failure in a wide range of construction matters, including damp penetration—indeed, the Minister has mentioned them himself. There are plenty of other examples; there is a whole lot of stuff to do with securing energy efficiency in buildings, for example, which is treated cavalierly by those who install it, so there is a shortage of performance on that, too. If we want to do anything to improve the safety, let alone well-being in the broader sense, of the inhabitants of the 24 million buildings that are outside the scope of higher risk, I put it to the Minister that he should consider this amendment.

Of course, there is an alternative approach. The Minister could say that, despite the powers lying dormant on the statute book for 18 years, it is the current Administration’s intention to exercise those powers and to make sure that those regulations come into force. That would be fully in accordance with Dame Judith Hackitt’s recommendations. I therefore look forward to hearing what the Minister has to say on that score.

In this string of amendments is Amendment 135, in the name of my noble friend Lord Shipley, which is about making sure that permitted development rights do not excuse any building from having to comply with the requirements of the Bill. I can deploy the arguments about the importance of securing that, but I would have thought that it was absolutely transparent to the Minister. Permitted development rights are resulting in construction of buildings, in particular homes, that are well below a suitable standard, and which would certainly not receive approval in the normal course of events and are at least feasibly creating significant fire risks for the residents in those blocks. I share the concern of my noble friend should we not deal with that particular loophole.

Again, I look forward to the Minister explaining how he will exercise the powers, which are already on his desk, to have a named person and a certified building at the end of every building project, and to him being able to satisfy me that no permitted development project will be allowed to transgress the fire safety rules that will be established through the Bill before us. I beg to move.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

The noble Baroness, Lady Brinton, wishes to take part remotely. I now invite the noble Baroness to speak.

[Baroness Brinton (LD) [V]]

My Lords, I support both amendments in this group so helpfully introduced by my noble friend Lord Stunell. We heard in our debate on the previous group of amendments about the wide range of safety concerns, from fire and flood to methods of construction and fitting out, which mean that some buildings are at risk. I should declare my interest as the vice-chair of the All-Party Parliamentary Fire Safety and Rescue Group, and I thank the many Fire Ministers who have appeared before it, including the current Minister and indeed a previous Minister, who spoke just now.

I support the ideas about the golden thread as outlined by my noble friend Lord Stunell. Amendment 3 does that. Frankly, I thank him for owning up to the fact that he did not do this when he was a Minister. The all-party group has, over the years, argued for this policy to be part of the fire safety protocol.

The amendments in the name of the noble Baroness, Lady Hayman, and supported by my noble friend Lady Pinnock, have a key safety issue: the power to prevent a developer’s ability to pick their own regulator. It is right that it is the public building regulator, the Local Authority Building Control, that is the sole regulator.

The bonfire of regulations just over a decade ago has meant that this field has become murky and filled with a lot of organisations that may indeed have close relationships. There was one day when the all-party group heard from a whistleblower who told us that, in the past, there has been unacceptable practice when the developer or owner of a building has had the ability to pick and choose the inspector, in this case, but it could have been a regulator. Fire safety inspectors were booked to come and check the fire safety doors—the front doors of flats and those on the stairwells—and that they were still the right ones that would manage the 40-minute fire safety tests. The managing agents for the building asked for a delay of a week, which was granted. The whistleblower said that it had been noticed by a number of residents that a series of doors were removed and replaced with other doors during that week—which of course passed all the tests—and, the week after the inspection, all the old doors were put back.

There has to be a mechanism for a regulator to start picking up on, and being concerned, when organisations are not playing by the rules. Those alarm bells can best be raised by the independent Local Authority Building Control.

[Lord Shipley (LD)]

My Lords, I will speak to Amendment 135 in my name, which was referred to a moment ago by my noble friend Lord Stunell, and which I intend as a probing amendment. I should say that I am a vice-president of the Local Government Association.

I raised this issue at Second Reading, as the Minister will recall, and the question of whether permitted development rights would continue as now when this Bill is enacted, in respect of the conversion of office blocks to residential accommodation of any height. Amendment 135 seeks to clarify the matter. It says that

“Nothing in the Town and Country Planning (General Permitted Development) (England) Order 2015 … permits development which would convert offices to residential accommodation if such development is contrary to the provisions of this Act.”


I am grateful to the Public Bill Office for the help in drafting those words.

I simply say to the Minister that I hope he will clarify that this is government policy. If it is, that fact should be in the Bill to avoid any doubt. I look forward to the Minister’s assurance, because it would be inappropriate—as my noble friend Lord Stunell said—if a different set of rules were to apply to a conversion from office to residential than would apply to a residential block always designated as that. This amendment aims to clarify that the permitted development route cannot be used where it would be contrary to the provisions of this Act. I hope the Minister will agree that this is a very important issue.

[Baroness Hayman of Ullock (Lab)]

My Lords, I will look briefly first at Amendment 3 in the name of the noble Lord, Lord Stunell. As we know, the proposed building safety regulator will be responsible for implementing and enforcing the new regime and will monitor the safety and performance of all buildings, with the aims of securing the safety of people in or about buildings and improving standards. The noble Lord, Lord Stunell, went into a lot of detail and clearly laid out all the reasons behind his amendment, so I will not go over the ground that he has covered.

I just make the point that amendments have been made to the Health and Safety at Work etc. Act to reflect this, so the amendment from the noble Lord, Lord Stunell, would also bring those necessary powers contained in the Sustainable and Secure Buildings Act into this Bill and would, as the noble Lord said, be in accordance with the recommendations of the Hackitt report. This seems a practical and sensible approach.

The noble Lord, Lord Shipley, in his Amendment 135, raises the issue of office to residential conversions, which are being actively encouraged by the Government. We need to consider any associated building safety issues with that policy. The noble Lord asked the Minister for clarification on this, and I think that this clarification is important so that we all know exactly what implications there will be. I will be interested in the Minister’s response to that.

I have a number of amendments in this group. I will first speak to Amendments 11 and 43 in my name—I thank the noble Baroness, Lady Pinnock, for her support on them. Combined, they will ensure that the more stringent building safety framework applies not just to buildings over 18 metres but to those under that, where they are multiple occupancy dwellings. We believe the Building Safety Bill, in its original draft and as amended in Committee in the other place, fails robustly to confirm whether the gateway system will apply to buildings under 18 metres where there are multiple occupancy dwellings. This will create a two-tier system where buildings below 18 metres will face less rigorous safety regulations than those over 18 metres.

17:15

Importantly, we need to avoid any capacity issues arising for the building safety regulator. For buildings under 18 metres, the local authority would be the building control authority, not the building safety regulator. Local authority building control would cover the operation of the gateway system at all heights below 18 metres—I hope I have made that clear.

Amendment 11 also removes developers’ ability to pick their own regulator for multi-occupancy buildings under 18 metres—meaning that the local authority building control will be the sole regulator—to prevent a two-tier system developing in building safety. I thank the noble Baroness, Lady Brinton, for her supportive words on this issue. We must ensure that the duties performed by the regulator under Clause 31 are performed by the local authority that exercises building control functions. The Hackitt report identified the ability of duty holders to choose their own building control body as a major weakness of the current regulatory regime. It is also worth pointing out that this amendment and what it aims to achieve are supported by the Local Government Association. The amendment removes concerns that the Government may fail, or take a long time, to expand the higher-risk regime to include more buildings.

Amendment 43 would extend the provisions of paragraph 1 of Schedule 1 to the Building Act 1984 to multiple occupancy dwellings.

My Amendment 127 is on a completely different issue to others discussed in this group, but it was chosen to be put here. It would force the Secretary of State to bring forward new flood resilience regulations. I have tabled it because I am increasingly frustrated by the Government’s seemingly laissez-faire approach to flood protection. It was barely mentioned during the passage of the Environment Bill, to which I also put an amendment on flood protection. We really need to introduce minimum national flood protection standards for new-build housing.

The reasoning behind this is the inevitable change to our climate and the fact that we will see more flooding in this country. We have seen some this weekend—look at all the storms we have been having, which unfortunately are becoming more frequent. Legislation is simply not keeping up with the reality of our climate future. In 2019, the Climate Change Committee published a report on housing in which it stated:

“UK homes are not fit for the future.”

It found that

“efforts to adapt the housing stock for higher temperatures, flooding and water scarcity are falling far behind the increase in risk from the changing climate”

emergency.

Currently, local authority planning departments can choose what property flood resilience measures they introduce as part of their pre-commencement conditions. In reality, this means that adjacent local authorities have different requirements for property flood resilience, flood mitigation and water management measures, even if they are rated within the same flood zone.

Over 6 million homes in the UK are currently at risk of flooding, without any property flood resilience measures. This should be a cause for extreme concern, yet the Government are failing to address it and flooding is not mentioned anywhere in the Bill. We believe it is irresponsible and reckless to allow new builds to continue to be built in this country without strong property flood resilience measures, because we need our homes to be fit for the future. It is also frustrating that Flood Re does not cover new builds built after the date it came in, on the basis that the planning reforms mean that no future houses could be built to be at risk of flood. Yet we know that is simply not the case; new-build houses still flood.

The Minister may well say that this is not a matter for this Bill because it is nothing more than a planning matter, but safety standards for buildings should cover building in resilience against flooding as well as resilience against other safety concerns. Without positive action from the Government, tens of thousands more homes will be built without the protection they need, so I urge the Minister to consider improving provisions on flooding as part of this Bill.

I feel passionately about this; I hope that comes across. I feel that I am constantly saying “We need to do this” in every debate on legislation where there is an opportunity, but it never actually happens. I hope that the Minister will listen to my plea with some sympathy.

[Baroness Pinnock (LD)]

My Lords, I apologise: I was not here at the beginning of Committee due to flooding on the track. There was no electricity on the lines so the north was cut off—my part of the north, anyway. I draw the Committee’s attention to my register of interests as a vice-president of the Local Government Association and a member of Kirklees Council. I will speak particularly to Amendment 11, which I have co-signed with the noble Baroness, Lady Hayman.

It is clear that the role of building inspector is absolutely critical in ensuring that buildings comply with approved plans and are built in accordance with building regulations. It is also evident from tragic incidents and residents’ concerns that some buildings have been constructed in breach of building regulations —we have already heard that this afternoon—and that the constructors have managed to get away with it. This Bill is an opportunity to scrutinise these issues and agree a more effective inspection process.

The Bill proposes the new role of building safety regulator to be the ultimate voice for inspection and advice on building safety. The regulator will be part of the wider Health and Safety Executive; that seems right to me. The HSE is a respected body with wide expertise in safety matters. Building safety and inspection need simplicity for clarity, as well as relevant expertise, training and access to advice.

The regulation and inspection of building safety in the Bill fall into two distinct parts: construction and post construction. It is the construction part that we are dealing with now. On the construction element, the Bill provides for the building safety regulator to be to building inspector for buildings over 18 metres. I can understand that, because such buildings are more complex and the safety risks are greater, but there has never been an explanation as to why it is 18 metres. I look forward to the Minister explaining why, apart from historical reasons, 18 metres is the cut-off point.

Of course, the definition of high-risk buildings—or “higher risk”, as they are now described—includes, as I understand it, care homes and hospitals. Can the Minister let us know whether the building safety regulator will be responsible for those buildings as well? It is positive that there will be a register held by the BSR for registered building inspectors, although it is not clear what qualifications and experience will be required to be such an inspector.

I turn to buildings under 18 metres, which do not have quite the same inspection regime, as we have heard. This complicates matters; we need simplicity. The BSR remains the final adjudicator. However, where the Bill falls short is in the complicated regime that is created for buildings under 18 metres. The Hackitt report made absolutely clear the need for accountable persons at each and every stage of construction—the gateway process—yet those waters are muddied for buildings under 18 metres. I thought I heard the Minister intimate earlier this afternoon that the powers of the building safety regulator may be extended to include buildings below 18 metres; perhaps he can make that clear.

Accountability is absolutely critical and, if the Committee gets my point, it should be an accountability that can be recovered. Building inspectors come and go but the one certain place where documents can be stored is in a local authority, because it has legal requirements to keep documents for a great many years. Given the argument from the noble Baroness, Lady Hayman, it seems to me that keeping building control within a local authority as the adjudicator for all buildings under 18 metres would be right. It is a question of having not just a regulator in a far-off place dealing with these buildings but people on the ground who know and understand the issues, the builders, the challenges in each area and how those challenges can be overcome. Some of that will be lost if there is this complexity about inspection in buildings below 18 metres.

On Amendment 43 in the name of the noble Baroness, Lady Hayman, the schedule absolutely should include buildings in multiple occupancy, which clearly have different challenges for building safety. Quite often, they can be older buildings that have been divided up into flats. Unless there is oversight of what goes on, those buildings could easily create building safety concerns. We all know of old buildings where we live—well, I guess a lot of us do—and where we have concerns about those that have been divided up. You fear for the safety of folk in them because of the lack of fire doors and escape routes, so this amendment, too, gets my wholehearted support.

The noble Baroness, Lady Hayman, has proposed Amendment 127 on flood resilience. I can tell the Committee that, certainly where I live, there will be more attenuation tanks under the ground than houses above it. I kid not; they were 10 or 15 metres long and three or four metres deep in a recent planning application. These issues are really important because more construction is taking place, if not exactly on flood plains, because that is not permitted, but where the flood risk is at level 2 or 3. Almost the worst thing that can happen to buildings is for them to be flooded. Where I live, the sirens went this weekend and people had parts of their homes flooded. That was in previously built homes; let us make sure that, in future, flood resilience for homes is part of the regulations under the Bill. Otherwise, we are just building homes to flood. Where I live, as I say, there is certainly a lot of concern on new-build estates that that will be the case.

17:30

On the amendment in the name of my noble friend Lord Shipley, he is absolutely right that permitted development has become the quick way to change a building to make a fast profit, I am afraid. I hope that the Minister will agree to review permitted development rights and the planning legislation that goes alongside them in the light of the elements and measures in the Bill. We cannot have regulations that fit one set of new developments yet allow permitted development to continue and create building safety concerns.

There is always somebody who knows—my noble friend Lord Stunell always seems to know—that there is already an Act. If we had just implemented the legislation that has been passed, perhaps some of this could have been prevented. The Minister has an easy task this afternoon. He can just say, “We have the Sustainable and Secure Buildings Act. I will be on to the Secretary of State this very day to get him to implement the powers in that Act so that we do not have to wait”. What could be better? This group of amendments is important and I look forward to the Minister’s response.

[Lord Thurlow (CB)]

My Lords, I want to say a few words on PDR. It has been well exercised. First, I should declare my interests: I have practised for many years as a chartered surveyor and have two buy-to-let properties.

PDR is mentioned specifically by the noble Lord, Lord Shipley, in Amendment 135 and in Amendment 43 by the noble Baronesses, Lady Hayman of Ullock and Lady Pinnock. I think that PDR is a time bomb, I am afraid; I am sorry to say that. Conversions of redundant office buildings allowed as of right led to poor-quality developments. They are multi-let properties with many risks involved, and they are very recent conversions. They are taking place as we speak with little supervision. Developers who ignore the simple standards of fenestration, minimum square footage for a decent life, thermal insulation and other such things, as is happening today, are unlikely to respect building safety issues. PDR was hasty legislation. It was poorly thought through, then there was a scramble to tighten it up as it was extended. It is essential that this Bill addresses the PDR problem. I started by saying that it is a time bomb. If the Bill does not address it, it will go off. There will be tragedies as a result of PDR and those in society who are least able to defend themselves often end up as the tenants.

[Lord Greenhalgh (Con)]

My Lords, I think I should start by dealing with something that probably relates to the previous group. I am sorry that so many noble Lords have had such arduous journeys to get to the Moses Room today and then, having journeyed so far and so slowly, come to a Room that is so positively chilling. It is quite arduous at the best of times.

Just for clarification, in answer to the noble Baroness, Lady Pinnock, the high-risk regime includes hospitals and those care homes of six storeys and above. Essentially, it is those around 18 metres—there or thereabouts—but not in occupation, because different regimes apply to them, although the fire safety order applies to the whole built environment. I hope that gives clarity on the current scope.

I set myself the task of trying to encapsulate quite a varied set of amendments in each group in three words or fewer. I have called this the “strengthening building regulations” group: I will try and get three words down to two the next time I have to do this. I thank noble Lords for their contributions to what has been an interesting debate. I will respond to each amendment in turn.

I thank the noble Lord, Lord Stunell, for his amendment giving the building safety regulator the power to make building regulations under paragraphs 4A and 4B of Schedule 1 to the Building Act 1984, as inserted by the Sustainable and Secure Buildings Act 2004. However, I am afraid that the Government will not be able to accept this amendment as his intention has already been met in the Bill. We are introducing a more stringent regulatory regime in design and construction for higher-risk buildings, as defined in Part 3. The higher-risk regime will be the responsibility of the building safety regulator. We are also making wider changes to the Building Act 1984 that will apply to all buildings.

I point out to your Lordships that Sections 8 and 9 of the Sustainable and Secure Buildings Act 2004, referred to in the amendment, insert paragraphs 4A, under “Certification of work”, and 4B, under “Appointed person and management of works” into Schedule 1 to the Building Act 1984. As part of our improvements to the 1984 Act, the Bill repeals those paragraphs and replaces them with more effective powers via Clauses 32 and 33. These are more effective, stronger and wide-ranging powers. Clauses 32 and 33 provide powers for building regulations to set procedural requirements relating to building control, the issue of notices and certificates and requirements regarding appointments. They include setting out duties to be imposed on relevant persons in relation to building work. We also consider that the power to make building regulations should remain with the Secretary of State. This will ensure a consistent approach to all buildings; the Bill already provides that the building safety regulator will be able to advise the Secretary of State should it consider changes to the building regulations to be necessary. I thank the noble Lord for suggesting these amendments and respectfully ask him not to press them.

I always get worried—this is a new combination, as they say—when an amendment brings the noble Baronesses, Lady Hayman and Lady Pinnock, together. On Amendment 11, it is the Workington warrior and the Yorkshire terrier combined. I am trembling in my boots at the thought of Amendment 11 but let us look at it carefully. I thank the noble Baronesses for raising this important matter but I am afraid that the Government will not be able to accept this amendment. The Bill takes a proportionate approach to building control. In the new system, all building inspectors, regardless of whether they work for local authorities, the building safety regulator or registered building control approvers, will need to register with the building safety regulator. As part of the registration process, they will have to demonstrate their competence by meeting certain criteria.

A new framework of operational standards rules will define the minimum performance standards that building control bodies must meet, and the building safety regulator will monitor and analyse the performance of building control bodies to drive up standards across the sector. Registered building control approvers and building control authorities will need to obtain and consider the advice of a registered building inspector before carrying out certain building control functions and use a registered building inspector to undertake certain activities. This greater scrutiny and accountability will provide greater incentive to ensure all buildings, including non-higher-risk buildings, are safe. With that explanation, I respectfully ask the noble Baronesses not to press their amendment.

I turn to Amendment 43. I thank the noble Baroness, Lady Hayman, for raising this important matter. I am afraid the Government will not be able to accept the amendment, as our assessment is that it would not achieve its intended effect. I assure the noble Baroness that paragraph 1 of Schedule 1 to the Building Act 1984 already allows for the making of provision in the building regulations for all categories of buildings, as do the new powers that we are taking in Clause 32.

We are introducing a more stringent regulatory regime in design and construction, led by the building safety regulator, for high-rise residential buildings, care homes and hospitals that are 18 metres or more in height, or at least seven storeys, known in the Bill as “higher-risk” buildings. Those buildings to which this more stringent regime applies have been chosen to ensure that the regulation is proportionate to the level of risk, should a spreading fire or structural failure occur. We do not think it appropriate to apply the entire regime to all buildings. However, where appropriate, we intend to make elements applicable to all buildings, such as the duty-holder and competence requirements, which will apply to all building work where building regulations apply.

I turn to Amendment 127. I again thank the noble Baroness, Lady Hayman of Ullock, for raising matters relating to flood resilience. I appreciate the passion with which she outlined her desire to get this issue addressed, particularly in new homes, but I am afraid the Government will not be able to accept this amendment. I assure her that there is already a well-established regulatory system in place to ensure new homes have necessary flood-mitigation measures in place. The National Planning Policy Framework is clear that inappropriate development in areas at risk of flooding should be avoided. Where development is necessary, it should be made safe and resilient without increasing flood risk elsewhere. Policies in that framework must be taken into account in preparing the local authority’s development plan and are a material consideration in planning decisions.

The new clause that the noble Baroness, Lady Hayman, has proposed would require flood resilience measures to be introduced into the building regulations. Statutory guidance to the building regulations, in approved document C, already promotes the use of flood-resilient and resistant construction in flood-prone areas. Part H of the regulations also sets requirements for the rainwater and surface water drainage of individual buildings. The main sewerage system for a development is governed by the sewerage undertaker for the area—for example, Thames Water. The sewerage undertaker has the ultimate responsibility for ensuring that drainage systems for new developments are built to a resilient standard that minimises flooding, and these duties sit outside the building regulations system.

I thank the noble Baroness for suggesting the amendment. I hope I have reassured the Committee that the Government already have well-established means of making sure that consideration of flood risk and flood mitigation is thoroughly accounted for in the planning system, and that approved document C already promotes flood-resistant and resilient construction. For these reasons, we believe that introducing new requirements into the building regulations is not necessary.

I thank the noble Lord, Lord Shipley, for reminding me that I should probably declare my commercial and residential property interests—none of which has any cladding issues—as set out in the register, specifically on the amendment around permitted development rights because I have benefited from those in the past, though probably will not do so in the future. I recognise the risk that he has outlined and that is why I thought I should declare those interests.

Amendment 135 seeks to ensure that homes delivered under permitted development rights—PDR—for change of use to residential meet the provisions of this Bill. I thank the noble Lord, Lord Shipley, for raising this important matter, but I am afraid the Government will not be able to accept this amendment. This is getting quite repetitive, really, is it not? However, the noble Lord is raising an important point and I assure him that planning permission, whether granted by a permitted development right or following an application to the local planning authority, does not remove the need to comply with other legal requirements. That means all new homes and buildings must meet, for example, the relevant building regulations and fire safety requirements, as well as any other legal requirements required under other legislation, regardless of whether they are permitted through a permitted development right or following an application for planning permission.

We introduced a number of new requirements into the planning system, called planning gateway 1, from 1 August 2021. These ensure that fire safety matters as they relate to land-use planning are incorporated at the planning stage for schemes involving a relevant high-rise residential building. For schemes that use permitted development rights, a similar requirement has been introduced. Through new prior approval processes, proposals to create a relevant high-rise residential building under the rights require submission of a statement about the fire safety design principles, concepts and standards that have been applied to the development. Consultation by the local planning authority with the Health and Safety Executive is required for residential buildings of 18 metres or more in height or seven or more storeys, whichever is reached first.

Once again, I thank noble Lords for this interesting debate. I hope that I have given some reassurance on each amendment, and that noble Lords will now withdraw or not press their respective amendments.

17:45

[Lord Shipley (LD)]

Can the Minister give us clarification on Amendment 135? He said that new homes and buildings are covered by existing legislation and will be covered by this Bill when it becomes an Act, but does the wording “new homes and buildings” include the conversion of offices, which are old buildings, to residential? I understand that this is a complex area but I wonder whether the Minister is willing to write on this point so that it is on the record.

[Lord Greenhalgh (Con)]

I thank the noble Lord for giving me that get-out. He is absolutely right that this is a complicated matter. You often have an old office building from which you create a new residential dwelling. We will check whether that is included in the purview of this Bill, and I will write to the noble Lord on that matter.

[Baroness Pinnock (LD)]

Permitted development rights are not about just the conversion of offices into homes. Where I live, many old mill buildings have been converted. Some of them, particularly the one called Titanic Mills, are very large. There are additional risks in those buildings. Will the elements in this Bill apply to those conversions as well?

[Lord Greenhalgh (Con)]

I will combine the letter for the noble Lord, Lord Shipley, and the noble Baroness, Lady Pinnock. Essentially, they want an answer to this question: “If you take a non-residential building, whether it is an office block or a Yorkshire mill, and you create a residential dwelling, will that be in scope when it comes to a new build?” The start point does not matter—it is non-residential—so is it included? I will answer both noble Lords in writing and lay a copy in the Library.

[Lord Stunell (LD)]

My Lords, we have had an interesting debate. It might be summarised by the Minister saying, “Don’t worry, it’s already all in the Bill and everything’s in hand.” I say to the Minister that we shall want to look very carefully to see the extent to which it is, or is not, in the Bill.

On the interaction between the two clauses to which the Minister referred—Clauses 32 and 33—with Clause 30, which is entitled “Higher-risk buildings etc”, the essence and nub of my amendment on this aspect is to ensure the capacity for the building safety regulator to get straight in as necessary with every building, not simply higher-risk buildings. The Minister seemed to tell me that Clauses 32 and 33 achieve this. I will look carefully at that. If that is the case, I will be absolutely delighted, but if it is not, I shall come back again.

I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Amendment 4 not moved.

Clause 3 agreed.

Clause 4: Duty to facilitate building safety: higher-risk buildings

Amendment 4A not moved.

Amendment 5

Moved by

[Lord Stunell]

5: Clause 4, page 3, line 19, at end insert—
“(3A) In any higher-risk building within the meaning of subsection (3)(a) where works are proposed to be carried out that would require the regulator to be the building control authority by virtue of Part 4 the regulator shall be deemed to be the building control authority for all of those works.”Member’s explanatory statement
This amendment would require that in any higher-risk building the whole of any works undertaken are within the scope of one building control authority only.

[Lord Stunell (LD)]

My Lords, I will try to do a little better than last time, when I completely ignored my noble friend Lord Shipley. I apologise to him.

I very much hope that the Minister will be able to dismiss this amendment with the same dispatch as he did on my previous amendment because it seeks to achieve that for each building there can be only one regulatory authority and there is no circumstance where a higher-risk building has another regulator at work—another person supervising and signing off completions. There seem to me to be two situations in which, as I understand it, the Bill is not absolutely decisive on that point, as set out in Amendments 5 and 10.

The first relates to a situation where comparatively minor works may be carried out in a higher-risk building which do not, of themselves, directly affect fire resilience. It would therefore seem quite possible for that application to be under the regulatory eye of somebody other than the building safety regulator. That might be a private regulator or a local authority building control body. There are circumstances, and we could examine them in more depth if we need to. The second is that there are currently a number of trades and businesses which are self-certified: electrical works and heating works are self-certified, as are drainage and plumbing works, to a significant degree, and rewiring, internet and IT networks are in the same situation. Those self-certified cases, including, incidentally, replacing windows and so on, may result in the piercing of firewalls, the cutting through of cavity barriers or a loss of airtightness. Of course, a loss of airtightness means a loss of smoke-tightness, which can be vital in a fire situation.

What I want to hear from the Minister is that this loophole—or area of concern—that I have briefly outlined to the Committee is in fact covered by yet another clause somewhere in the Bill that deals with the issue completely. I hope that the Minister can give us a very quick, simple and straightforward reply. It will all be worked out for him on his piece of paper, and I look forward to hearing that, but if it is not forthcoming, we will of course want to return to this later because it is of central importance that we do not have divided authority or, indeed, work sneaking through, if you like, under self-certification, which inadvertently contributes to a diminution of the safety of that building.

There are plenty of practical examples at the moment. The reports I have had from the Greater Manchester Fire and Rescue Service about fires in what used to be my constituency say that many residential fires of this sort are triggered by tradespeople who cause fires by their activities when they are carrying things out. Very often, they are the people who have cut through the cavity walls and the fire compartmentation, thus contributing to the damage that happens. This is not a hypothetical situation, and it is an important matter, which I hope the Minister will be able to satisfy us is covered by the drafting of the Bill. I beg to move.

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

My Lords, the noble Baroness, Lady Brinton, will be participating remotely, and I invite her to speak now.

[Baroness Brinton (LD) [V]]

My Lords, just before I speak to the two amendments in this group, I ask the Minister whether I might be copied into the answer about permitted development rights on the previous group. We had an interesting case in Watford three years ago, where a small industrial unit was converted under permitted development rights into 15 tiny flats, and not one of the upstairs flats had windows. At the time, the planning inspector, who overruled the borough council, commented that it was within the rules and that planning permission was not required. Even the size of the flats was outside of the scope: normally, the minimum should have been 39 square metres; the largest flat was 22 square metres and the smallest was 16 square metres. I would be grateful if I could see the Minister’s written response.

I support both Amendments 5 and 10 laid by my noble friend Lord Stunell and signed by my noble friend Lady Pinnock. Dame Judith Hackitt talked about the importance of absolute clarity on who is responsible for which element of safety and control. The mistake in recent years has been to allow a multitude of different arrangements that have enabled a culture where matters of safety are somebody else’s problem; hence Dame Judith Hackitt’s focus in her report on the golden thread.

My noble friend Lord Stunell has talked eloquently about the issues thrown up by self-certification. I will not repeat his points, other than to say that destroying compartmentation by remediation works much reduces all other safety features, if not makes them redundant. I echo his concerns about that, and I would welcome the Minister’s response in order to see whether that is covered by the new arrangements. If it is not, these amendments should be given serious consideration.

[Baroness Pinnock (LD)]

My Lords, I will just say how important these amendments are. Although they are brief and innocuous on the surface, they are fundamental to building safety. In the Grenfell Tower inquiry, it became clear that the window replacement was not as satisfactory as one would hope and that the gaps between the window frames and structure of the building were filled with a flammable material. That is why the second amendment in the name of my noble friend Lord Stunell is so important.

That is just one example. Electrical safety is also critical. Self-certification is all very well, but having oversight, as the Hackitt report points to, helps to create clarity and accountability and to ensure that there is proper documentation. I hope that the Minister will be able to put our minds at rest but, if not, it is certainly one of the areas that we will want to pursue at the next stage of this debate.

[Lord Khan of Burnley (Lab)]

My Lords, I speak very briefly to Amendments 5 and 10 in the names of the noble Lord, Lord Stunell, and the noble Baroness, Lady Pinnock. I thank the noble Lord for presenting his amendments in such an eloquent manner and just want to reiterate the case for clarity from government on these important amendments, which we on these Benches agree with.

These amendments are asking for the whole of the works to be considered under one building control authority. It is important to recognise the case that is made here, which is that, under the doctrine of self-certification, there is a big gap. By supporting these amendments, I hope that the Minister can address the concerns of the noble Lord, Lord Stunell. The noble Baroness, Lady Pinnock, provided a good example and emphasised the Hackitt report’s references to accountability and making things clearer.

I echo the concerns of the noble Baroness, Lady Brinton, about who is responsible. This amendment would put the whole of the works under one regulatory authority, and situations in which remediation works could lead to other building safety effects would be addressed clearly. This would be better overall for home owners and for the safety of citizens. I look forward to hearing from the Minister.

18:00

[Baroness Scott of Bybrook (Con)]

I thank the noble Lord and the noble Baroness for raising this important matter. I am afraid that the Government will not be able to accept these two amendments, but I assure your Lordships that their intention has already been met in the Bill. The building safety regulator will be the building control authority for building work on higher-risk buildings as defined under Part 3. Clause 32 provides new powers to set procedural requirements in building regulations to govern building work. These powers will provide the basis for the new gateways process for creating new higher risk buildings and a new refurbishment process when carrying out certain building work on higher-risk buildings.

The noble Lord, Lord Stunell, and the noble Baroness, Lady Pinnock, brought up very specific issues and situations. I will make sure that we write on those, because they are very specific and I do not have briefings on them, although I can say that minor works will still be covered by self and third-party certification, as the noble Lord, Lord Khan, said. However, the BSR can inspect those works if it wishes to, so it will keep an eye on them and will use its powers to do that. On trade and business self-certification and on window replacements, which the noble Baroness, Lady Pinnock, mentioned, I will get a specific answer to noble Lords and put a copy in the Library.

The building safety regulator will be solely responsible for overseeing compliance with all aspects of building regulations, not just fire and structure, when building work is carried out on higher-risk buildings. This responsibility will not be split between the building safety regulator and the relevant local authority. Furthermore, these amendments refer to the building safety regulator acting as

“the building control authority by virtue of Part 4.”

The meaning of the term “building control authority” is inserted into the Building Act 1984 by Clause 31 and does not relate to Part 4 of the Bill, which is concerned with higher-risk residential buildings when they are occupied. In addition, Clause 31 provides the legal framework to enable the building safety regulator to be the building control authority for building work carried out on higher-risk buildings. It also provides that on multibuilding sites where one or more of the buildings are higher-risk buildings, the developer may, for convenience, seek an agreement with the building safety regulator that it will be the building control authority for the whole site, including in respect of any low-rise buildings.

I thank noble Lords for suggesting these amendments, but with that explanation I respectfully ask the noble Lord to withdraw his amendment. I will write.

[Lord Stunell (LD)]

I thank the Minister for her reply and shall await the letters with the greatest interest. A central point here is who notifies who and who knows when stuff is going to happen. For instance, in the current situation, whether it is installing a new boiler or a new window or having some electrical work done, the work is not necessarily commissioned by the owner—it might be by the flat occupier or the leaseholder. On the completion of those works, a certificate is issued to the client and, as I understand it, a copy goes to the building control authority and goes on to its register. It is a post hoc situation; it is not cleared in advance.

I want to see what is in the letter and to understand clearly that we have not left any loopholes, perhaps literally loopholes through which smoke can go or fire can spread. If it is not already clear, we want to see an improved Bill, a strengthened Bill, and we in no way want to weaken it or make it more difficult to enforce or enact. We shall be watching. Having said that, I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

Clause 4 agreed.

Clause 5: Duty to keep safety and standard of buildings under review

Amendment 6

Moved by

[Lord Stunell]

6: Clause 5, page 3, line 26, at end insert—
“(2) The regulator must within two years of this section coming into force carry out and publish an assessment of the benefits and costs of measures on improving the safety of people in or about buildings relating to—(a) fire suppression systems;(b) safety of stairways and ramps;(c) certification of electrical equipment and systems;(d) provision for people with disabilities.(3) The regulator’s assessment may—(a) make proposals in accordance with section 7(2) for regulations in respect of any of these matters, and(b) identify and give notice of such other matters relating to safety of people in or about buildings that they determine require further examination.”Member’s explanatory statement
This amendment seeks to ensure that major issues of public concern about safety in buildings are addressed in a timely way.

[Lord Stunell (LD)]

With Amendment 6, we are in completely different territory. Second Reading produced many concerns felt by noble Lords about different aspects of the fire safety and building safety situation. Many arguments were advanced, with great strength, on what should be done about them. Some of those appear as one-off amendments which we shall debate subsequently; when we get to them, the Minister may say exactly what he has already said earlier today—that it is inappropriate to put into primary legislation some of the very specific matters people have been calling for.

Having that in mind, but not wishing to lose the importance of dealing with those concerns, we have tabled this amendment to set out a process whereby the building safety regulator will, in a timetabled review, look at each of those concerns raised at Second Reading and produce a report within two years with recommendations on what should happen. As the building safety regulator, it will also have the ability to give its views on other issues that merit investigation to improve building safety.

The list in proposed new paragraphs (a), (b), (c) and (d) is not necessarily exhaustive; we are trying to establish the principle that, for those matters which are clearly of public concern and in some cases the concern of authorities and regulators of systems themselves—chief fire officers being one example—there is a timetabled and formal way to take them forward and bring them back to the Minister and this Parliament for consideration.

I will also speak to Amendment 149 in this group, which refers to a regulatory audit from the building safety regulator, again to make sure that we hear in Parliament about the progress being made. We are very concerned to understand how the Government see that link between the regulator and the Secretary of State and between the Secretary of State and Parliament, to make sure that progress continues to be made in a measured but effective and rapid way to solve the problems we are tackling in this Bill.

Again, I look forward to hearing the Minister explain all the different reasons why it is not sensible to do this, but we will want to push the matter. I suggest that, if he is looking for a way to respond effectively to those advocating particular solutions, such as work on sprinklers, to be incorporated in the Bill, we have provided a process here which allows that to take place in an ordered, measured way. I beg to move.

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

My Lords, the noble Baroness, Lady Brinton, is participating remotely, and I invite her to speak now.

[Baroness Brinton (LD) [V]]

My Lords, I shall speak specifically to Amendment 6 but I endorse the others, for reasons that will become apparent. One thing we have all become aware of, post Grenfell and the Hackitt review, is concerns about repeat problems emerging, whether they are systemic ones to do with the way a building has been built or newly emerging issues. They happen time and again, and yet the industry, councils and Parliament do not seem to learn from them. I shall give one brief illustration to explain.

In my role as health spokesperson for my group in the Lords, I know that we are increasingly concerned about some of the mould and damp issues increasingly found in more recent 1960s buildings, to which landlords have been very slow to respond. There is clearly a public health issue where especially children and the clinically vulnerable remain at risk and become ill, and yet there does not seem to be a mechanism to provide a review to make sure that there is learning from this, especially since it is happening across the country.

The other amendments in this group set out a swathe of mechanisms to ensure transparency and accountability for the BS regulator, the Secretary of State and Parliament. Returning to Dame Hackitt’s review, these amendments would be a strategic element to push the culture change that she sought, to make sure that those who have some responsibility have to look at a higher level to make sure that buildings are safe and are dealt with, and that the costs, both in building and in human experience, are monitored.

[Baroness Neville-Rolfe (Con)]

Briefly, I support the idea of review clauses and of learning from mistakes. Obviously, I have not been a Minister in this area, but I was a Minister in other areas and I did agree, occasionally, to review clauses where people had concerns. I found that the reports that came along two years later—if one survived that long—were actually extremely useful, and ensured that the Civil Service system was behind the objectives of the Bill. Exactly what one would put in a review clause is another question. I would certainly want added some of the points I made earlier—which the Minister helpfully said were contained in a code of practice for regulators—bringing up the agenda the sort of good practice we have seen at some of our better regulators, such as the HSE. I hope the Minister will think about whether there is scope for a review clause to help on some of these issues.

We talked about sprinklers. As people know, I have run supermarkets, so I have had practical experience of all these different fire safety methods. Certainly, when sprinklers were put in, it took away a lot of headaches, provided you could secure the water supply. That sort of innovation—whatever the new ones are; AI or whatever—can form part of a review process two, four or six years later.

[Lord Foster of Bath (LD)]

My Lords, Amendment 129 in my name proposes to add a short new clause to the Climate Change Act 2008. Section 56 of the 2008 Act says:

“It is the duty of the Secretary of State to lay reports before Parliament containing an assessment of the risks for the United Kingdom of the current and predicted impact of climate change.”


All I am seeking is to put in something to make more precise the need to refer to the impact of climate change on buildings and to say something about the location of those buildings that will be affected. It would require the Secretary of State to include in a report an assessment of the risks and the locations of such threats to buildings caused by climate change. We all know only too well, just today, the real problems we are facing because of climate change, yet climate change is not mentioned in the Bill at all. The amendment aims to rectify that.

18:15

The noble Baroness, Lady Hayman, has already referred to flood resilience and our concerns. We all know the problems we have had, not only with Storm Franklin today but with Storms Dudley and Eunice before. Many of us have seen the flooding and heard the stories of people being moved from their homes, traffic chaos and so on, so we are well aware of all the issues around flooding. There is quite a lot of data around if you go out and search for it. The Climate Change Committee tells us:

“Surface water is the most widespread form of flooding in England, with around”—

here, it refers to buildings and properties—

“3.2 million properties at risk.”

NASA does these satellite things and flooding maps, which show us the huge areas of London that could have regular flooding as soon as 2030. Back in November last year, the property industry said that climate change will leave 1.5 million homes at risk of flooding by 2050.

That is just flooding; there are so many other risks, such as coastal erosion. We know, again according to the Climate Change Committee, that, by the end of this century, something like 80,000 additional homes are likely to be at risk of coastal erosion. We know from the British Geological Survey that the problem of subsidence is getting worse. Incidentally, we know that it has already cost us £3 billion over the past 10 years, but it will get significantly worse, rising from affecting around 3% of buildings back in 1990 to something like 10% of buildings by 2070. So a lot of properties in a lot of places are in a lot of difficulty because of climate change. It therefore makes sense for details of all that to be brought together, included in a report and so on.

We have been around these Committees, so we know how the Minister will respond, I think. Let me see if I can predict how he will respond and see how good I am at it. I may get it wrong, but we will see. The first thing he will say is, “The noble Lord, Lord Foster, has just given a ton of detail about all these things, so why do we need this report to be done? The information is already out there”. If that is the argument he is going to use, let me say that I had to spend a lifetime searching out all this information. It should be easy for people to find. It should be gathered together and made easily accessible so that local councils—those responsible for new buildings, looking after existing buildings and so on—can have easy access to it. The Minister is likely to say that but it is not a good enough excuse.

Of course, the Minister will also say that we already produce reports and point me to the climate risk assessment dated 7 January 2022; if he is not going to do that, he should do because it is well worth a read. On page 3, it says:

“Full details of the risk assessment are contained”

not in it but

“in a series of reports published by the CCC which are fully endorsed by both the UK government and devolved administrations.”

I went to have a look at those reports because, if the information was already there, why would I waste my time on this? They contain references to and a lot of detail on threats to buildings caused, for example, by erosion and the other things I have mentioned. However, you really have to dig through those reports to find it all. The problem is that they do not tell us anything about where those risks will occur. There is nothing about location and the details are hard to find.

It is important that the Government be required to produce a report under the Climate Change Act that would bring all that data together and make it easy and simple for people to access it. It would give details of what the risks are over the forthcoming period and say where they are going to occur. That seems a fairly simple thing to do and it would be really helpful and important for all sorts of people. I hope that the Minister will not use either of those excuses but just say, “Yes, it’s a good idea and we’re going to do it”.

[Baroness Hayman of Ullock (Lab)]

My Lords, Amendments 6 and 149 in the name of the noble Lord, Lord Stunell, draw attention to timing and delivery. For example, his Amendment 6 would ensure that safety is dealt with in a timely fashion. If we consider that this spring it is five years since the Grenfell tragedy and that progress on that has been painfully slow, with leaseholders waiting many years for any kind of justice to be done, people need to know that with the passing of this Bill there will be no further delays. We agree with the noble Lord and would certainly strongly support a regulator’s assessment within a two-year period that would aim to improve safety.

Amendment 149 looks at a requirement for regular reporting to ensure transparency and accountability to Parliament of the enhanced building regulations regimes. Again, we very much support it; it is similar to Amendment 134 in my name, which would force the Government to publish annual reports on data collected as part of the implementation and monitoring of this Act, when it is passed, as well as steps to increase transparency. I am sure all noble Lords would agree that transparency, accountability and monitoring are important to instil confidence and deliver the ambition in this Bill.

The noble Lord, Lord Foster of Bath, spoke to his Amendment 129. Having heard from him, it is very much in the same spirit as my Amendment 127 on flood resilience, which we debated in an earlier group. Of course, his amendment would force the Government to publish an assessment of the impact of climate change on building safety, including coastal erosion and flooding, both of which are huge concerns where I live in west Cumbria. I am sure he will not be remotely surprised to know that I am extremely pleased to offer our very strong support on this amendment.

Looking at the amendments in my name, first, Amendment 89 would force the Secretary of State to publish an estimate of how much leaseholders have spent on building safety remediation work each year for the past 10 years. We have tabled this because it is disappointing that there is still no robust legal protection for leaseholders who face ruinous costs for remediating historical cladding and non-cladding defects. We know that, despite the long catalogue of people and organisations who can be held to blame for many of the failings on building standards, up to now the leaseholder has been expected to foot the bill. These bills, as the Minister knows, involve huge sums on many occasions.

During Committee in the other place, evidence was taken from some of those who have been badly affected: Alison Hills, Stephen Day and End Our Cladding Scandal. They all talked about the enormous bills they face and the fact that they simply cannot afford to pay them. If we are to resolve this issue so that affected leaseholders are properly compensated, we need to know how out of pocket they really are. My Amendment 89, by forcing the Secretary of State to publish this estimate, would provide information and enable us to properly give full recompense.

My Amendment 126 would force the Government to publish an assessment of the effectiveness of the Homes (Fitness for Human Habitation) Act 2018, plus proposals to increase the number of homes which would comply with that Act. We need to ensure that all homes, existing and new build, are of the highest standards. We have heard many examples from people in our discussions and debate today where this simply is not the case and has not happened.

We think it is important that the Government should publish an assessment of the effectiveness of that Act. I hope that the Minister would in particular be sympathetic to this amendment because his Government brought in that important legislation, and any legislation has to be complied with to be truly effective. This amendment would provide that reassurance and remind rogue builders that minimum standards simply must be met, so I await the Minister’s response with great interest. I hope I will see him tearing up his speech to prove the noble Lord, Lord Foster of Bath, completely wrong.

[Lord Greenhalgh (Con)]

My Lords, we come to the—I am sorry, it is the turn of the noble Baroness, Lady Pinnock.

[Baroness Pinnock (LD)]

The Minister is far too eager.

During the course of the debate on this group of amendments, it has struck me that the challenge of this Bill is that it is primarily in response to a terrible tragedy. That has meant that the scope of the Bill is quite narrow, in response to the terrible Grenfell fire—perhaps rightly so but then, from what we have heard, opportunities to improve building safety do not come round that often. So it is not surprising that noble Lords across the piece are trying to say, “Why don’t we include this?” An opportunity to do so will not come again for a long time.

The passionate argument made by my noble friend Lord Foster is a case in point. Climate change is the most serious challenge facing all of us. If we do not address the building regulations to deal with the challenges it poses, we are definitely missing an opportunity. I apologise for my cough; it must be all this sitting and standing on crowded trains. Excuse me; I am okay. There is an opportunity for the Government to think about including the issues of the particular challenges of climate change as they relate to buildings during the debates on the Bill, otherwise it is an opportunity lost.

On Amendments 6 and 149 in the name of my noble friend Lord Stunell, who has spoken on them and to which I have added my name, building safety is not just about construction; it is about the safety of people once they live in them. Having been a councillor for a long time, I have heard about a number of issues from private sector and housing association tenants. The dangers of stairways in particular often come up. That is the reason for Amendment 6 in my name and that of my noble friend. We need to consider those risks and how they are going to be addressed. If people are concerned about them, what are we going to do about it? There is no obvious way of doing that at the minute.

Any new system—such as the one we have now, which is quite complicated in parts—ought to be reviewed. There is a huge gulf between theoretical improvements to building safety and actual improvements. Does the new system work? I bet that parts of it will not; that is almost inevitable. So let us agree to Amendment 149. I know that the Minister is going to stand up and say, “All the others I have said no to, but this one is such a good idea that we will agree to it”.

18:30

Obviously, I agree with Amendment 89 in the name of the noble Baroness, Lady Hayman, because, as the Minister will know, I have consistently and persistently gone on about the costs of building safety remediation that currently lie with leaseholders. I know that the Bill will alter that but some leaseholders have paid. It would be really helpful to the discussion on this Bill to understand the extent of those payments and the number of those who, worse still, have chosen to become bankrupt —I know at least one person has—to avoid the burden of huge, unwarranted bills for safety remediation that is not of their doing, as I know the Minister agrees. The least we can do is pursue this and find out how much leaseholders have already paid out—over and above waking watch, insurance and higher service charges—for structural improvements, which they should not have done. That is now the view of the Government, which is good. Let us find that out and see whether there are ways in which they can receive compensation for work done that they have paid for but which was clearly not their responsibility. This is a question of justice and I shall pursue it.

[Lord Greenhalgh (Con)]

My Lords, I am getting used to the free-wheeling nature of these debates. I apologise that I stood up before the noble Baroness, Lady Pinnock, had her say.

There is no doubt that a large part of this is focused on high-risk, high-rise residential buildings, not least because of the tragedy of Grenfell, which followed the tragedies in Lakanal House and Garnett Court. We have also had near misses, such as the Bolton Cube, which was just under 17 metres and is one of the reasons why we talk about the cut-off being six storeys or more as it was a very big near miss.

There is that focus but, equally, it is fair to say that the Building Safety Bill also encapsulates building regulations for the entire built environment and makes a contribution to increasing competence among key actors, such as approved inspectors, duty holders, the accountable person and the building safety manager, to ensure that buildings in occupation remain safe. There are contributions around competence that will have wider benefit but what the noble Baroness said is right: this is very much part of our response to a broken regulatory system that we need to fix. I think that we recognise the need to do precisely that collectively in this Committee.

I thank noble Lords for a lively debate. This group of amendments is essentially around new reporting requirements. I shall respond to each amendment in turn.

The noble Lord, Lord Stunell, opened this short debate with Amendment 6 and the noble Baroness, Lady Brinton, spoke on it. I thank them for raising this important matter but I am afraid that the Government will not be able to accept the amendment. I pay tribute to my noble friend Lady Neville-Rolfe with her background as a civil servant who took that expertise to play a leading role in a supermarket. She did not mention which one but I know it was Tesco—every little helps—because I remember when she was in that position. It is important to reflect on when we can hold the Civil Service to account, as she put it. I understand where my noble friend is coming from, even if I do not accept it on this occasion.

Our assessment is that this amendment would unnecessarily prescribe issues to which the regulator must attend. I must also point out the unintended effect that this amendment would have in effectively restricting the regulator’s work to a limited list of subjects. Such prescription could unwittingly narrow the scope of the regulator’s focus and efforts. Furthermore, the imposition of a time limit could have the perverse effect of constraining the assessments being sought only to factors that can be determined within the timescales afforded.

I assure the noble Lord and the noble Baroness, Lady Brinton, that their intention to ensure that major safety issues are reviewed and assessed by the regulator has been met through the measures in the Bill. The building safety regulator will have a duty to keep the safety and standard of buildings under review and to be transparent about its work, reporting annually on the delivery of its functions under the Health and Safety at Work etc. Act 1974, and Clause 3 stipulates that it must be transparent.

I can also assure your Lordships that the specific areas of building safety identified in the proposed amendment are actively being considered by the Government under research projects being undertaken with the help of academia and stakeholders. These projects include the technical review of approved document B, which includes research on means of escape in blocks of flats, including stairways and ramps, and means of escape provisions for people with disabilities. As I am sure the noble Lord and the noble Baroness are aware, the Government have already conducted an assessment of the effectiveness of sprinklers as a means of fire suppression and, in 2020, we changed the statutory guidance so that sprinklers should be provided in all new residential buildings more than 11 metres in height, as opposed to the previous 30-metre threshold. I want to thank the noble Lord and the noble Baroness for raising this important matter and hope that I have been able to assure them that all aspects of building safety are of importance for the Government.

Before turning to Amendment 89, I pay tribute to Alison Hills and Steve Day, who were mentioned by the noble Baroness, Lady Hayman of Ullock. I got to know Steve Day in particular, but also Alison Hills. They worked very hard on constructive amendments which will help the thinking around getting the polluter to pay, because they are victims. In the case of Steve Day, it is a sign of triumph, because he is part of a group of people who, in their spare time, without pay, essentially fought a big developer to get it to pay for the remediation of their building, bit by bit. We need to pay tribute to these heroes who work tirelessly on behalf of their fellow residents to get the polluter to pay; they are people for whom I have huge fondness and regard. It is right that some people have shelled out huge costs and have not been able to get the polluter to pay, and there are many orphaned buildings—if you like—for which we cannot easily find out who is liable to pay. The question is, how do we deal with that? That is something that we as a Government recognise that we need to have an answer to, but let us leave that until a later part of this Committee stage. I am sure we will return to it on Report.

Turning to Amendment 89, on which the noble Baroness, Lady Hayman of Ullock, spoke, I thank her for raising this important matter, but I am afraid that, again, the Government will not be able to accept this amendment. The Government remain committed to ensuring that those responsible are held to account to protect leaseholders from unaffordable costs, but our assessment is that the amendment would not constitute an appropriate use of the Government’s time and resources. The amendment would require the Secretary of State to quantify the impacts for any leaseholders who may have carried out remediation of cladding and fire safety defects over the past 10 years, regardless of the nature and scale of the works.

I draw the attention of the noble Baroness to the amendments tabled on 14 February, which make clear that freeholders with links to developers and those with the resources to fund remediation in full must do so. In other cases, the contributions of leaseholders will be subject to a legal cap. The new schedule to be inserted before Schedule 9, tabled on 14 February, also provides the Secretary of State with the power to make regulations providing for the recovery of sums due that have not been paid. These amendments ensure that leaseholders will no longer be susceptible to large costs. The supplementary requirements that would be introduced by Amendment 89 would therefore present an unnecessarily onerous task that would increase costs and burden to the Government, where resources could be better employed. I thank the noble Baroness for raising this important matter and assure her that this Government are committed to ensuring that those responsible are held to account to protect leaseholders from unaffordable costs.

Turning to Amendment 126, I again thank the noble Baroness, Lady Hayman, for raising this important matter. Unfortunately, the amendment would have the effect of unacceptably increasing the burden on the Government at a time when we are concentrating on our programme of reform and raising standards in rented homes.

The 2018 Act built on the existing regulatory framework and empowered tenants, for the first time, to take action in the courts for breach of contract if their home was unfit to live in. That is why we supported it. It is right that this is in addition to, but separate from, enforcement of standards by local authorities, which we also strengthened in 2016. There is therefore limited benefit in requiring officials to spend time interrogating court records when we are, at the same time, concentrating on building on the 2018 Act and further raising the standard of rented homes, higher even than the requirement introduced by the Act. We will do this by consulting on introducing a legally binding decent homes standard in the private rented sector and by reviewing the decent homes standard itself, and we will provide more detail in due course.

I now turn to Amendment 129. I wish the noble Lord, Lord Foster of Bath, had provided my speaking notes as he has such command of detail. It is quite incredible and testament to his long-term passion, commitment and interest in the subject. I certainly learned a lot about the almost dystopian future that certainly my children—probably not me—will to have to deal with. It is probably why school-age kids are so nervous about this. It is horrendous. Amendment 129 raises a very important issue and while the Government will not be able to accept this amendment, I hope to reassure the Committee that Clause 5 already makes appropriate provision for this and that risks to buildings as a result of climate change are already being dealt with through existing locally driven action.

Clause 5 places a duty on the building safety regulator to keep under review the safety and standards of all buildings. This would include advising industry and government on research into new or emerging risks, such as those presented by climate change. The regulator will also advise on and prepare proposals for changes to building regulations. Climate change mitigation and adaptation are intrinsic components of the building regulations and will remain so. We also recognise the importance of ensuring local authorities work with their communities to understand the risks buildings may face as a result of climate change. However, the amendment would duplicate existing locally driven action; for example, the requirement on lead local flood authorities to assess flood risks across their area through the local flood risk management strategy or the requirement for local authorities to develop the best approaches to managing the risk of coastal erosion and flooding through shoreline management plans and local planning policies.

I turn now to Amendment 134 and will respond to Amendment 149 at the same time. I thank the noble Lord and the noble Baronesses for raising how we monitor the effectiveness of the Bill and hope to reassure them that the Bill makes appropriate provision for monitoring. Dame Judith Hackitt’s independent review recommended that we ensure that the new system works through regular independent reviews. Clause 135 requires that these reviews happen at least every five years and that the resulting report must be published. In addition, the building safety regulator must report annually on the performance of its functions under the Health and Safety at Work etc. Act 1974. Clause 3 further stipulates that the regulator must be transparent and accountable. The Government intend that the regulator’s published strategic plan, required by Clause 17, will set out further detail on what it must report on.

Finally, the Bill ensures that crucial aspects of the new system are included in the regulator’s annual reporting, notably engagement with residents under Clause 19 and mandatory occurrence reports, which can help industry track safety issues, under Clause 20. Further reporting requirements risk duplication, complexity and additional bureaucracy. Amendment 149 would also require the Government to report on the exact number of certified building safety managers and fire risk assessors when certification is not a function of government under the Bill. In light of the strong existing provisions, I hope that I have provided sufficient reassurance and that your Lordships will be content that the Government have fully addressed the concerns raised in the amendments.

[Baroness Blower (Lab)]

I have a question about flooding in London. I am sure the noble Lord is aware of an article in the Observer yesterday—I declare an interest in that I live in Shepherd’s Bush, where a month’s worth of rain fell in one day in July last year. The point of this article was that in London very many people live in basements, which are at serious risk of flooding, and it suggests that people may drown in their own homes if there is flash flooding. The further aggravating point is that no one seems to be aware how many people live in such basements.

I simply ask the noble Lord whether there is any intention to take a strategic look across London; there are clearly responsibilities on local authorities but, at the London-wide level, there seems to be no requirement to look at this. I would be very interested to know what he thinks, particularly in light of Hammersmith and Fulham having been afflicted so badly.

18:45

[Lord Greenhalgh (Con)]

My Lords, I have some experience of this, having led the council that includes Shepherd’s Bush and Hammersmith and Fulham for six years. Even in that time, there were significant incidents of flooding in basements and quite serious concerns. It did not just happen in Shepherd’s Bush, but from Hammersmith and Fulham right up to Old Oak, and it is the same for many inner London boroughs that have basements as well. It was a very significant issue for local authorities, but I think it is quite proper that the mayor, as the first port of call, should have strategic oversight of how we develop the built environment in our capital city. I expect the mayor to take a lead role on this, if I were to pick any level of government. At a national level, I am the Resilience Minister and am happy to take away anything else we need to do to address the specific concerns the noble Baroness has raised, because it is important we recognise that this is a real risk to our built environment, which will get worse in the coming years.

[Lord Stunell (LD)]

My Lords, I listened carefully to what the Minister had to say. Here we are, on the first day in Committee, with one set of amendments dismissed for one set of reasons and an absolutely contrary set of reasons given to deal with this one. Previously, the case was that we should not add any extra duties to the list of requirements of the building safety regulator because it would confuse it; now the risk is that, by listing only four things, we are limiting the scope of the building safety regulator to take on additional things.

I would have thought that, if in two years we had reports before us on what to do about fire suppression systems and whether the safety of buildings would be enhanced—and, if so, to what effect—by making some changes to the current regulatory environment; if we had a similar thing on the safety of stairways and ramps, on which a number of noble Lords spoke eloquently at Second Reading; if we had the certification of electrical equipment and systems properly analysed by the building safety regulator, with the expertise it can bring, and a proper evaluation of their importance, or lack of importance, brought back to us; if we had provision for people with disabilities, which the noble Baroness, Lady Grey-Thompson, and my noble friend Lady Brinton spoke about so eloquently earlier; if all those matters could be brought back in two years, the building safety regulator would have done a real service to the safety of homes in which people live and would have answered many of the questions and put in train solutions to many of the concerns that noble Lords raised at Second Reading.

I absolutely do not believe that that limits the subjects the building safety regulator might be able to get to grips with. In case it did, the amendment goes on to say that it should also

“give notice of such other matters relating to safety of people in or about buildings that they determine require further examination.”

That is the “and anything else” requirement to go with those four. I do not accept that the Minister’s criticisms of this amendment are right—there may or may not be other criticisms he could have made, but he did not choose to do so. Although I will withdraw this today, I give notice that this will certainly come back at a later stage.

Amendment 6 withdrawn.

Clause 5 agreed.

Clauses 6 to 8 agreed.

Clause 9: Building Advisory Committee

Amendment 7

Moved by

[Lord Stunell]

7: Clause 9, page 4, line 20, at end insert “(and any other function that the regulator considers appropriate)”
Member’s explanatory statement
This amendment seeks to allow flexibility in the operation of the Building Advisory Committee.

[Lord Stunell (LD)]

My Lords, this amendment relates to the operation of the building advisory committee itself and of its constituent parts. Clauses 9 to 11 of the Bill put in place not just the building safety regulator but three components of it. One is the building advisory committee, the second is the committee on industry competence, and the third is the residents’ panel. All three will clearly exercise vital parts of the function of the building safety regulator, not just in relation to high-rise buildings—higher-risk buildings—but to the whole of the building stock of this country.

The Bill goes on to define what the functions and powers shall be of the various constituent parts. For instance, the committee on industry competence will establish and maintain a body

“with the competence of persons in the built environment industry … with the following functions”,

which are then listed,

“and any other function that the regulator considers appropriate”.

Those are the vital words saying that the committee on industry competence has a wide brief that can be widened further.

Clause 11, on the residents’ panel, says that the regulator will

“establish and maintain a committee with the functions mentioned in this section”,

which are all listed,

“and any other function that the regulator considers appropriate”.

The surprising thing about the building advisory committee, bearing in mind that what has triggered this whole Bill and the legislation that goes with it is all about buildings themselves, is that it has a much more limited brief. It has listed functions, but no capacity for any other function that the regulator considers appropriate. We are setting up in primary legislation a part of that body that cannot be modified as time goes on in the same way as the other two can be.

Therefore, this amendment would simply introduce the phrase

“and any other function that the regulator considers appropriate”

so that it applied to the building advisory committee as well as the other two parts. It will be fascinating to hear what the Minister believes is a good argument for the omission of those words in Clause 9—other than a drafting error—when compared with their use in Clauses 10 and 11.

Also in this group of amendments is the question of whether Clause 12 should stand part of the Bill. Clause 12 states that

“The Secretary of State may by regulations amend or repeal any of sections 9 to 11”,


which, in other words, is the three bodies underneath the building safety regulator: the building advisory committee, the committee on industry competence, and the residents’ panel. The Secretary of State may, by regulation, amend or repeal any of those, and

“The regulations may make consequential amendments of this Act.”


In other words, the Secretary of State will have the capacity to step in, independent of the primary legislation that sets this up, not just to change the functions of these bodies but to get rid of them completely. They could repeal any of Section 9 or delete it completely and then there would be no building advisory committee.

This is a detailed point but for me it comes to light because the building advisory committee takes the part of what used to be—and, for that matter, still is—the Building Regulations Advisory Committee. The new committee is the BAC; the previous one was the BRAC, and the interesting thing is that it was very nearly abolished in 2010. Ministers of the day did not know exactly what BRAC was or did but were very keen to get rid of extraneous organisations that they saw as being on the payroll and contributing to red tape.

As the Minister with responsibility for building regulations at that time, I had some idea of what the Building Regulations Advisory Committee did, which was to supply a great deal of free specialist advice to the department on the implications and likely consequences of regulatory change. When I discovered that its total budget was £20,000, of which something like £12,000 was actually a notional sum about the committee occupying space and having the very part-time use of the civil servants who serviced it, I resisted the abolition of BRAC. I am happy to report that it was not abolished. I would not say that it was either my greatest or only triumph as a Minister, but I can report that the Building Regulations Advisory Committee was rescued from ministerial interference at that point, by good fortune rather than good political management.

I should think the Government have subsequently been rather grateful that they did not abolish BRAC, because it has been a useful buffer between ministerial responsibility and the regulatory outcomes leading to Grenfell. Indeed, evidence has been given to the Grenfell inquiry about the role of BRAC leading up to the fire, and its role in the whole architecture of support to the department in its regulatory function.

I put it to the Committee that the building advisory committee is replacing the Building Regulations Advisory Committee, with the important difference that BRAC was statutory and could not be abolished by Ministers. The only reason why the debate came to light in 2010 was that there was a deregulation Bill and it was proposed, in a long list of bodies, to stick that committee in. So I ask the Minister: why are the Government restricting the committee’s scope? Why do they want the power to abolish it, behind the back of Parliament, when that committee’s predecessor was entrenched in statute and gave a great deal of good value, for no cost at all? This seems to be entirely against the grain, and indeed the reputational impact, of what we are trying to achieve with the Bill. I beg to move.

[Lord Khan of Burnley (Lab)]

My Lords, the noble Lord, Lord Stunell, has eloquently outlined Amendment 7 and Clause 12 to the Grand Committee. I want to ask the Minister—the noble Baroness, Lady Scott—a few questions about the wider committees.

We on these Benches welcome the establishment of the three committees: the building advisory committee, the committee on industry competence and the residents’ panel committee. It is important to ask what the work of these committees is and how will it be funded. This is quite a broad question, so the Minister may wish to come back to me at some stage. Could she also provide details of how the committees will be staffed? How will the Government ensure that this committee will be independent from government?

The noble Lord, Lord Stunell, outlined the concerns. We on these Benches also emphasise that Amendment 7 is very simple—it would basically just add an extra line to be consistent with Clauses 10 and 11 relating to the other two committees. I am sure that the Minister could add those words regarding the building advisory committee.

19:00

The noble Lord, Lord Stunell, made a pertinent point about the Building Regulations Advisory Committee—BRAC. It is a statutory committee and the Minister needs to reflect on that. The idea that the Secretary of State could just change the new committee, amend its regulations and abolish it does not make sense. This is a very important point. Tonight we have had a lot of sympathy and no movement; on this, I would rather have less sympathy and more movement to get this addressed.

[Baroness Scott of Bybrook (Con)]

My Lords, I thank the noble Lords, Lord Stunell and Lord Khan, for raising these important points, particularly the role of the building advisory committee and its functions.

I will first respond to Amendment 7. I hate to say this again, but I am afraid the Government will not be able to accept the amendment. We seem to have said this all afternoon, but I sincerely hope to reassure the House that the Bill already makes appropriate provision in Clause 9 for a wide set of functions for the committee.

Clause 9 provides for the establishment of a new expert advisory committee—the building advisory committee—as recommended by Dame Judith Hackitt in her independent review. The building advisory committee is to be established by the building safety regulator. That is important: it is a committee under the building safety regulator. It will provide expert advice and information to the regulator about matters connected with any of the regulator’s building functions, except those functions relating to the competence of persons in the built environment industry and registered building inspectors. This will include validating and assuring technical guidance, such as approved documents, to ensure that it is fit for purpose. Clause 9 will play an important part in ensuring that the building safety regulator has access to the support and expert advice required to enable it to deliver its critical work. That is why I respectfully ask the noble Lord, Lord Stunell, to withdraw his amendment.

I turn to the question of Clause 12 standing part of the Bill. I first thank the Delegated Powers and Regulatory Reform Committee and noble Lords today for their scrutiny of the delegated powers in the Bill. I am sensitive to the concerns that have been raised about Clause 12. The Government believe that the Bill sets up the right committees for the near future, but the Bill also needs to enable the building safety regulator’s committee structure to adapt and improve over the longer term through these delegated powers. We have heard many challenges about the future of building in Committee this afternoon and it is therefore important that there is flexibility within the system.

The Government included Clause 12 because of expert advice from the Health and Safety Executive, as the future building safety regulator, that this is needed to enable its committee structure to adapt and improve. This reflects HSE’s more than 40 years’ experience delivering regulation at an appropriate distance from government. Since 1974, HSE has needed to change its industry and subject advisory committees to reflect industrial, technical, legal and administrative developments. This has resulted in HSE having a rich mix of advisory and stakeholder-led bodies.

I hear the concerns about any use of this power to remove a statutory committee and so offer noble Lords additional reassurances. First, the Government would bring forward regulations to repeal a statutory committee only after a recommendation from the building safety regulator that this is needed as part of changes to improve the working of the regulatory system. Secondly, the Bill provides that such regulations would be subject to the affirmative procedure. Therefore, this House can hold the Government to their assurance that the regulations will not be brought forward without a specific recommendation from the regulator and a convincing case about how it will improve the regulatory system. With those assurances that this power is intended only to ensure the new regulatory system works well over time, I suggest that this clause should stand part of the Bill.

On the detailed questions from the noble Lord, Lord Khan, I do not know whether I have details on funding, staffing and independence. Oh, I have—that is very timely. The statutory committee sits within the building safety regulator. Its activities will be funded by the regulator through a mix of central government grant funding and fee income. Once the amount of funding is decided, we will make sure that noble Lords get a letter. I assume that the same will be the case on staffing—that how it is staffed will come down from the regulator to the committee—and that it will be independent.

[Lord Stunell (LD)]

My Lords, I slightly got the impression that I might even have got a draw on one of those, and I thank the Minister for her reply. In relation to Clause 12, we will want to see the detail of what the Minister has said. It is somewhat reassuring that she understood the concerns that have been expressed, and we look forward to examining it in more detail.

I have to say that she did not do quite such a convincing job on why the building advisory committee should be treated in a different fashion from the committee on industry competence or the residents’ panel. If the whole point of the procedure in Clause 12 is to stop the fossilisation of a set of structures in primary legislation and to give the possibility of changing them as time goes on, which is really the argument she deployed, it does not seem consistent with that line of reasoning that she has been resisting giving some flexibility to how the building advisory committee uses its functions, acting obviously under advice from the building safety regulator itself. That may well be something we come back to. Perhaps the Minister might like to think, in terms of her reply and the reason she gave for retaining Clause 12, about why that search for flexibility in the longer term is not an argument that also applies to Clause 9 in respect of its difference from Clauses 10 and 11.

[Lord Blencathra (Con)]

I am very grateful to the noble Lord, and I apologise for interrupting. I merely wish to apologise to the Committee for not having been able to speak to my amendments today. I got to London five hours later than I had planned. We had a bit of a breeze, and it was not a breeze getting here. I am very grateful to the noble Baroness, Lady Grey-Thompson, for introducing them and I apologise once again to the Committee. It is a pity in a way as they were my smallest amendments. I have a few larger ones later on, so I was hoping today that I could show the Committee that I can be very brief on occasion.

[Lord Stunell (LD)]

Before concluding, can I say that the Minister, if I can speak on his behalf, was very sad to have missed your speech, which he expected to be one of great eloquence? That having been said, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Clause 9 agreed.

Clause 10 agreed.

Clause 11: Residents’ panel

Amendment 7A not moved.

Clause 11 agreed.

Clause 12 agreed.

Clauses 13 to 19 agreed.

Clause 20: Statement of regulator’s engagement with residents etc

Amendment 7B not moved.

Clause 20 agreed.

Clause 21 agreed.

Schedule 2 agreed.

Clauses 22 to 26 agreed.

Schedule 3 agreed.

Clauses 27 to 29 agreed.

Clause 30: Higher-risk buildings etc

Amendments 8 and 9 not moved.

Clause 30 agreed.

Clause 31: Building control authorities

Amendment 10 not moved.

Clause 31 agreed.

Amendment 11 not moved.

Clause 32 agreed.

Amendment 12 not moved.

Clauses 33 to 37 agreed.

Committee adjourned at 7.12 pm.

House of Lords

Monday 21st February 2022 Lords Chamber

Monday 21 February 2022

14:30

Prayers—read by the Lord Bishop of Coventry.

Oaths and Affirmations

Monday 21st February 2022 Lords Chamber

14:36

Lord Strathcarron took the oath, following the by-election under Standing Order 9, and signed an undertaking to abide by the Code of Conduct.

Death of a Member: Lord Chidgey

Monday 21st February 2022 Lords Chamber

Announcement

14:37

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, I regret to inform the House of the death of the noble Lord, Lord Chidgey, on 15 February. On behalf of the House, I extend our condolences to the noble Lord’s family and friends.

Creative Professionals: EU Tours

Monday 21st February 2022 Lords Chamber

Question

14:37

Tabled by

[The Earl of Clancarty]

To ask Her Majesty’s Government what discussions they intend to have with the European Union concerning the post-Brexit position of the United Kingdom’s creative professionals touring in the European Union.

[Baroness Bull (CB)]

My Lords, on behalf of my noble friend Lord Clancarty, and with his permission, I beg leave to ask the Question standing in his name on the Order Paper.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)]

My Lords, the UK made proposals for permit-free touring and for specialist hauliers to be exempt from cabotage limits. Sadly, these were rejected by the European Union. We have raised touring at both the EU-UK Partnership Council and the EU-UK Trade Specialised Committee on Services, Investment and Digital Trade. Our focus is now on supporting the sector, including by working directly with member states. This approach has delivered results, most recently with Spain, meaning that 21 member states now allow some visa-free and permit-free touring.

[Baroness Bull (CB)]

My Lords, the music industry is frustrated that so little has been done to resolve touring issues in the 13 months since the TCA was applied, and is concerned that increased costs will rule out European touring for artists, companies and orchestras. Will the Government negotiate a cabotage exemption for the cultural and creative sector and an own-account exemption for groups that tour with their own trucks and now face extra costs of £16,000 per day? Does the Minister accept that dual registration, on which the Government are currently consulting, is not a workable solution for a UK orchestra with a single specialist touring vehicle?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, through our bilateral agreement, 21 of the 27 member states have confirmed that UK musicians and performers do not need visas or work permits for some short-term touring. As I say, we continue our discussions bilaterally with the six remaining member states. On own-account vehicles, such as those used by orchestras, the UK pushed hard for liberalised access for hauliers carrying equipment for cultural events during negotiations but the EU sadly did not agree to our requests. The Department for Transport continues to work across government and with the industry to consider what options may be possible for own-account operators.

[Viscount Stansgate (Lab)]

My Lords, have the Government considered what they can do to help youth orchestras? For many years, they have toured Europe during the summer, to the enrichment of those who have played in them and the audiences to whom they have played. I declare an interest: both my children were members of the Stoneleigh Youth Orchestra, which travelled all over Europe under its conductor Adrian Brown. I just hope that, when the Government consider the wider questions triggered by the Question from the noble Earl, they will also take into account the important need to continue the cultural and musical links between younger people and Europe.

[Lord Parkinson of Whitley Bay (Con)]

I strongly agree with the noble Viscount. It is important that people of all ages—professionals and amateurs alike—have the opportunities for cultural exchange. That is why the UK has a generous offer and is welcoming to musicians from around the world. Through our discussions with member states, we have clarified that arrangements are much more workable than at times has been reported—for example, splitter vans are not subject to the TCA market access rules. We continue to work with sector organisations, including youth orchestras.

[Lord Vaizey of Didcot (Con)]

My Lords, the creative industries are a huge success story in the UK. This year, the UK film industry is set to overtake Hollywood in its capacity. Will the Minister give an update on progress in building a website, so that people who want to tour in Europe can go to a one-stop shop to find out the requirements? Will he commit to publishing the papers that show the points that the UK Government are making to the European Union to try to unblock this blockage?

[Lord Parkinson of Whitley Bay (Con)]

My noble friend is absolutely right. As we emerge from the pandemic, our creative industries are leading the way in helping us to build back stronger. On GOV.UK, landing pages for each member state explain the rules and the outcome of our negotiations with the remaining six states. I will take his point about publishing documentation back to the department and let him know.

[Lord Ashton of Hyde (Con)]

The noble Lord, Lord Strasburger, wishes to contribute virtually and I think this is a good point to call him.

[Lord Strasburger (LD) [V]]

My Lords, the UK’s second largest industry, the creative arts, was left high and dry by the Government’s trade deal with the EU. Touring in Europe is now almost impossible for British musicians and other performers because of a mountain of new red tape and costs. Bilateral deals are not enough. When will the Government do what the Tongan Government were able to do for their performers and negotiate EU-wide cultural exemptions for visas, work permits and trucking restrictions?

[Lord Parkinson of Whitley Bay (Con)]

The case is not as gloomy as the noble Lord puts it. As I said, 21 of the 27 member states have already clarified their offer, and the UK’s offer to the rest of the world is very generous. We made a similar offer to the one that was rejected by the EU to the EFTA nations, which was agreed, showing that our proposals were not just possible but can be agreed and made to work. Regrettably, the EU did not offer a visa waiver for paid activities during the TCA negotiations and no major G7 economy has agreed to lock in its visa systems with the EU, which was the proposal that was on the table.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, the Minister will be well aware that the music industry, particularly the classical music industry, is predominantly freelance and very much depends on international reputations being built. What assessment have the Government made of the impact on individual UK performers of the restrictions that they now face when they are likely to be offered work in the European Union? My information is that they are far less likely now to be offered work than they used to be. Can the Minister confirm that? Does he have any information?

[Lord Parkinson of Whitley Bay (Con)]

The noble Baroness is right to point to the importance of freelancers in these sectors. Through my discussions personally with representatives of the music industry, including classical music organisations and orchestras, we have discussed the challenges faced by freelancers and the support that many organisations were able to give them, thanks to what went to them from the Culture Recovery Fund. As I say, GOV.UK makes clear the rules for travelling to each member state. Our own approach is very welcoming: we want people from around the world to come to the UK and perform here. The information that the noble Baroness seeks is on GOV.UK, listed by individual country.

[Lord Aberdare (CB)]

My Lords, this is the time of year when major, high export-earning European tours are planned, featuring performers such as Ed Sheeran and Harry Styles, but the current rules, particularly relating to cabotage, make the transport and logistical arrangements for such tours impossible. What are the Government doing to address these issues, which are both urgent and specific to the creative performing sector, so that tours such as these can go ahead this year?

[Lord Parkinson of Whitley Bay (Con)]

We do not believe that an EU-wide agreement would be feasible; instead, we are addressing each area in turn, including those mentioned by the noble Lord, working to provide clarity to the sector and implementing unilateral measures where relevant. For instance, on haulage, the Government are in the process of implementing dual registration to support specialist concert hauliers; and, on carnets, we have clarified that portable musical instruments, carried or in a vehicle, can be transported cost-free and should not require carnets.

[Lord Addington (LD)]

My Lords, does the Minister agree that we have got into a situation where musicians are knee-deep in red tape? What are the Government going to do to release them from this, particularly those who do not have major backing—that is, journeymen musicians?

[Lord Parkinson of Whitley Bay (Con)]

As I say, on GOV.UK, we make as clear as possible for those who are touring or are planning tours the position in individual member states. We are also working with the sector, including representatives from musical organisations of all types and sizes, so that we can understand the challenges that the industry still faces and make sure that we are tackling them.

[Lord Cormack (Con)]

My Lords, what are the main specific obstacles in coming to agreements with those countries with which we do not have agreements, such as Spain?

[Lord Parkinson of Whitley Bay (Con)]

We do now have an agreement with Spain—that is the most recent to be added to the list. One of the six which remains is Portugal, which of course had its general election last month. That has slowed down the negotiations there, but those are continuing at ministerial and official level.

[Lord Bassam of Brighton (Lab)]

My Lords, perhaps this is an apposite moment for the House to acknowledge the contribution and sad death of Jamal Edwards, who has done so much to promote a new wave of musicians and artists to a global audience. Awarded an MBE at 24, he was an inspiration to a new generation. With that in mind, perhaps the Minister can tell us what support Her Majesty’s Government are giving to young new artists who are not signed to a label but who want to tour and take their first steps towards performing to overseas audiences. The new Secretary of State has said that a package of specific help is coming. When will she deliver on that promise and help to resolve the EU’s continuing border issues?

[Lord Parkinson of Whitley Bay (Con)]

I was very sad to see the news about Jamal Edwards this morning, dying so tragically young. The Government are committed to making sure that emerging artists and new talent have opportunities. We are working on a refresh of the national plan for music education under the chairmanship of my noble friend Lady Fleet, and with the Department for Education to make sure that opportunities in schools as well as outside are available to everybody. Through our working group, we are engaging with the sector to make sure that those who face challenges in touring know that the Government are working to address them.

Europe: Foreign Policy and Defence Co-operation

Monday 21st February 2022 Lords Chamber

Question

14:48

Asked by

[Lord Liddle]

To ask Her Majesty’s Government what plans they have to deepen foreign policy and defence cooperation with European allies, in particular France and Germany.

[The Minister of State, Department for the Environment, Food and Rural Affairs and Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)]

My Lords, European allies are vital in building a network of liberty and in tackling shared challenges. The Foreign Secretary has spoken with many of her European colleagues in recent weeks, as has the Prime Minister, including on the situation in Ukraine. France and Germany are two of our closest partners, and we work with both countries at the highest levels. Our forces regularly operate alongside one another around the world, including defending NATO’s eastern flank.

[Lord Liddle (Lab)]

My Lords, I thank the Minister for his reply. I tabled this Question before the Ukraine crisis reached fever pitch. I was pleased a couple of weeks ago that the Prime Minister said that he would bring together Europe in a united stance against President Putin, but now all I read is government briefing that Britain stands four-square with the United States, in contrast to the alleged weakness of France and Germany. Despite the Government’s temptation to scratch away at the Brexit issues that remain unresolved, will they now restate clearly and firmly the supreme and overriding importance they attach to a common European and NATO position with our European allies and friends, which in this moment of great crisis should come above all other considerations?

[Lord Goldsmith of Richmond Park (Con)]

My Lords, European security is clearly directly linked to UK security, and I do not think anyone questions this. We share many security and defence interests with our European allies, from addressing climate change to tackling malign actors. As one of only two European nations with truly global military reach and the largest European spend in NATO, we remain an essential ally on foreign policy, security and defence for the wider European Union.

[Lord Hannay of Chiswick (CB)]

My Lords, does the Minister recognise—I pay tribute to what the Government are doing on this—that the key aspect of this crisis, in our hands and those of our European and NATO allies, is a tough sanctions response, if there is any invasion of Ukraine? Therefore, would it not have been rather more useful in the last few weeks if we had been part of the dialogue within the European Union—which we could have been if we had put that into the TCA—instead of having to operate purely from the outside on sanctions, which is an EU matter, not a NATO matter?

[Lord Goldsmith of Richmond Park (Con)]

The UK will continue to work with the EU and other international partners to tackle this shared global challenge. For example, on 2 December, alongside the US, Canada and the EU, the UK imposed fresh sanctions on eight Belarussian individuals responsible for repression and human rights violations. Our departure from the EU has meant that we are able to move more quickly than we could through multilateral channels, where it is in our interests to do so. Only a week ago, the UK Government laid legislation in Parliament to toughen and expand the UK sanctions regime, specifically in response to Russia’s aggression against Ukraine. These powers will go further than ever before.

[Lord Balfe (Con)]

My Lords, does the Minister accept that getting behind France and Germany, particularly on the issue of NATO expansion, would be a positive contribution towards building a European position on this matter?

[Lord Goldsmith of Richmond Park (Con)]

My Lords, we are already extremely closely aligned to both Germany and France on most overseas issues. Our defence relationship with France is closer than with any other country in the world, except the United States. We are working together to protect our people from shared threats. Germany is an essential ally and one of our most important international partners. We welcome the new German coalition’s description of the UK as one of Germany’s closest partners. The relationship is good and we have a shared interest in resolving this issue.

[Lord Morris of Aberavon (Lab)]

My Lords, while maintaining my deep concern for the sovereignty of Ukraine, I ask the Minister to confirm that no country has a right to join NATO and that allowing new members to join is a decision for all existing NATO members. By its nature, this imposes an obligation on any member to come to the aid of another, an obligation not to be undertaken lightly by any country.

[Lord Goldsmith of Richmond Park (Con)]

My Lords, as the noble and learned Lord knows, Ukraine is a sovereign nation with a long and rich history of cultural and political independence. Ukraine has the absolute right to determine its own future. The sovereignty and integrity of Ukraine, and other partners, are not remotely up for discussion.

[Lord Wallace of Saltaire (LD)]

My Lords, could the Minister take back to the Foreign Office the strong message that it does not help the cause of close co-operation with France and Germany if Cabinet Ministers make comments which suggest that they are weak and we are strong? For example, the suggestion that there was a whiff of Munich in President Macron going to Moscow was not helpful for Franco-British co-operation. I am well aware that the Blair Government did much the same in criticising the French in the run-up to the Iraq war. That damaged our co-operation with our major European partners, too.

[Lord Goldsmith of Richmond Park (Con)]

My Lords, I hope that what I have already said today in response to questions put to me reassures the noble Lord that we do not take lightly the importance of our relationship with major European powers when it comes to confronting these common challenges. What I have said today is a perfect reflection of the Government’s position.

[Lord Lamont of Lerwick (Con)]

My Lords, given that the official position, now established, is that NATO will not fight even if Ukraine is invaded, does it not effectively mean that Ukraine is not likely to become a member of NATO—and has not the President of the United States said that Ukraine is a long way from membership of NATO? Given that, why is it so difficult to come up with a formula that could assure Russia that the possibility of Ukraine joining NATO is very remote?

[Lord Goldsmith of Richmond Park (Con)]

My Lords, I am not in a position where I can assess the likelihood or otherwise of Ukraine being accepted as a member of NATO, but I shall convey the noble Lord’s message to the Foreign Secretary.

[Lord Boyce (CB)]

My Lords, does the Minister not agree that, notwithstanding Brexit, at the working level the relationships between our Armed Forces and those of other European countries, whether bilateral, trilateral or multilateral, are extremely strong and should be nurtured at all costs?

[Lord Goldsmith of Richmond Park (Con)]

I thank the noble and gallant Lord for his comment, but we have shown that we do not need a separate institutional treaty to work effectively with the EU on foreign policy, whether co-ordinating on sanctions, responding jointly to Russian aggression or on wider issues involving Iran. Although we have left the EU defence structures, we will continue to work closely with the EU across the common challenges that we face. We do so on a very wide range of issues, including Libya, climate change, Russia and so on, and the trade and co-operation agreement provides for future co-operation on emerging security challenges, where it is in the interests of both sides to continue to work together.

[Baroness Chapman of Darlington (Lab)]

My Lords, what is the Minister doing to improve co-ordination with our EU partners on sanctions against Russia? Can he also tell us what the Government are doing now, independent of the EU, to implement long-overdue measures to prevent money laundering, including reform of Companies House, regardless of any further Russian attacks on Ukraine?

[Lord Goldsmith of Richmond Park (Con)]

My Lords, we have cracked down on illicit finance through ground-breaking legislation in the Criminal Finances Act, and we have already published our ambitious economic crime plan. The National Crime Agency has increased investigations into corrupt elites, and the Government are reviewing all tier 1 investor visas granted before 5 April.

On the broader point that the noble Baroness raises, the UK will continue to work with the EU and other international partners to tackle shared global challenges. For example, on 2 December, alongside the US, Canada and the EU, we imposed fresh sanctions on eight Belarussian individuals responsible for repression and human rights violations. That was a consequence of co-operation with our European allies and those further afield.

[The Lord Bishop of Coventry]

My Lords, given the Minister for Europe’s comments yesterday that the conflict in Ukraine could lead to 5 million refugees fleeing to neighbouring countries, what forms of co-operation are Her Majesty’s Government preparing with European partners in response to this looming humanitarian crisis and other catastrophes on the world stage, caused through conflict, climate change or whatever?

[Lord Goldsmith of Richmond Park (Con)]

My Lords, the Foreign Office is supporting the Home Office in its diplomatic engagement with European partners and is looking to strengthen co-operation, including a possible new EU-UK migration agreement, and on the immediate concerns relating to Ukraine.

FCDO Nutrition Policy

Monday 21st February 2022 Lords Chamber

Question

14:58

Tabled by

[Lord Collins of Highbury]

To ask Her Majesty’s Government, further to their strategy papers on ending preventable deaths and global health systems strengthening, published on 14 December 2021, how they intend to implement the Organisation for Economic Co-operation and Development (OECD) Development Assistance Committee policy marker on nutrition across the Foreign, Commonwealth and Development Office portfolio.

[Baroness Merron (Lab)]

My Lords, on behalf of my noble friend Lord Collins of Highbury, I beg leave to ask the Question standing in his name on the Order Paper.

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, the Foreign Secretary has confirmed that the United Kingdom will spend £1.5 billion between 2022 and 2030 on nutrition, addressing the nutrition needs of mothers, babies and children, tackling malnutrition in humanitarian emergencies and making sure that nutrition is central to the FCDO’s wider work over the eight years to 2030. The marker will be embedded into FCDO systems later in 2022, recording relevant programmes making a contribution towards nutrition objectives from the point of programme design.

[Baroness Merron (Lab)]

I thank the Minister for that Answer. Of course, evidence shows that combining the humanitarian response with a longer-term focus on improving nutrition can help improve resilience to future shocks and crises, thereby decreasing the need for, and cost of, future humanitarian assistance. With the average time spent as a refugee on the rise, how would the UK’s nutrition for growth commitments advance the scaling up of successful approaches, such as nutrition-sensitive social protection, and will the department consider incorporating an impact commitment into the next nutrition for growth pledge?

[Lord Ahmad of Wimbledon (Con)]

My Lords, first I recognise the valuable work done by the noble Lord, Lord Collins, in his work on the APPG, and I wish him well—I understand he is recovering from Covid. In this respect, I also recognise that he has consistently raised this issue and our commitment, underlying the ongoing commitment from the UK, to this important priority. The noble Baroness asks a very valid question about how we can fulfil key objectives. The whole idea is to ensure that, right at the point of planning, all these elements within nutrition are incorporated—not just in the direct commitments on nutrition but that they are recorded as nutrition programme objectives in the wider work that the FCDO does. We constantly review impact assessments as well to see the effectiveness of our work and, of course, I will take back the question of the specific programming that we will be doing as this comes through. As I have said already, we hope the markers will be in place later this year, and at that point I am sure there will be further discussions.

[Baroness Sugg (Con)]

My Lords, I very much welcome the Government’s new eight-year commitment to nutrition. Can my noble friend the Minister share any more detail on this? What will be the split between nutrition-sensitive and nutrition-specific programming? And what will be the phasing of the spend? My noble friend will know the urgency of this work—by the end of this year, over 30 million additional children could be subject to wasting because of the impacts of Covid-19.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I fully recognise the importance of both elements of our programming and ensuring that our £1.5 billion commitment covers both nutrition-specific and nutrition-sensitive interventions and investments. We are currently going through the business-planning process, and we will then be able to provide more information on the expected nutrition investments for the 2022 to 2025 spending periods, and I will update my noble friend accordingly. But I can reassure her that we remain among the top 10 bilateral donors in investing in nutrition.

[Lord Ashton of Hyde (Con)]

My Lords, the noble Baroness, Lady Brinton, would like to participate virtually, and I think that this would be a good moment to call her.

[Baroness Brinton (LD) [V]]

My Lords, whilst the Government’s commitment to investing £1.5 billion in nutrition over the next eight years is a start, it is still less than one quarter of what the International Coalition for Advocacy on Nutrition has recommended. Will this reduced amount meet the UK’s commitment to achieve the WHO global nutrition targets by 2025, which include a 40% reduction in the number of children under five who are stunted, and a 50% reduction in anaemia in women of reproductive age?

[Lord Ahmad of Wimbledon (Con)]

My Lords, as I have already said, we remain fully committed to ensuring our key objectives on nutrition are met. We are working very closely with organisations, including the World Health Organization, to ensure that the pledges made recently at the Tokyo summit also go towards achieving the very objectives that the noble Baroness has laid out. Specifically, by having every programme of the FCDO in bilateral support that we provide to key countries also focus specifically on nutrition and fulfilling our reporting back on an annual basis to OECD, I think we will see much more focus spent on achieving the targets we are setting ourselves across the piece.

[Baroness Blackstone (Ind Lab)]

My Lords, the stark statistics—I am sure the Minister will agree—on the whole question of nutrition show that one 10th of the world’s population are suffering from being undernourished, and nearly half the deaths of children under five are caused by malnutrition. Does this not underline the need, yet again, to return to the 0.7% of GNI spent on overseas assistance, and not to wait any longer? Perhaps the Minister, in response to what the noble Baroness, Lady Sugg, has already said about the urgency of this and the size of the commitment that we need to make to deal with this problem or to help deal with this problem, could tell the House how much longer we have to wait for the promise the Government have made to return to 0.7% to happen?

[Lord Ahmad of Wimbledon (Con)]

My Lords, as I previously said, the Government are absolutely committed to returning to the 0.7% pledge. Indeed, my right honourable friend the Chancellor has already laid out the pathway towards that objective. However, notwithstanding the reduction in ODA spend, I believe we have again illustrated our commitment on nutrition. On the specific areas raised by the noble Baroness, we have examples of how our programming funding has assisted. In Bangladesh, for example, the Suchana multisectoral nutrition programme has targeted close to 240,000 households and impacted positively 1.4 million people. In Nigeria, our child development grant programme is a six-year investment that provides cash transfers to mothers during pregnancy. There are other, notable examples of in-country support specifically focused on nutrition. As I have already said, our commitment to ensuring that those markers are now integrated in all FCDO development programmes on nutrition going forward will also allow us to provide fully comprehensive reports to the OECD on our nutrition spend. I believe that some of the issues that the noble Baroness raised will be addressed quite directly.

[Baroness Finlay of Llandaff (CB)]

My Lords, can the Government confirm that they will continue to work with NGOs in areas of warfare, such as Myanmar, where the military regime is preventing any aid getting through but the Shan Women’s Action Network is able to get healthcare and food into areas that are otherwise not reached? The history of doing that in that country has been very good; we provided aid to Chin State during the mautam famine, which prevented some of the mass starvation that was going on.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I can give that commitment to the noble Baroness. I have seen over a number of years the direct impact of working with civil society organisations on the ground in terms of the support they can provide. I believe very strongly that it is part of our duty to support the infrastructure of their continued work. The noble Baroness talked of Myanmar. More recently, we have seen work of that kind in Afghanistan, Yemen and Syria. I now look after the civil society organisations portfolio within the FCDO, so I would of course be willing to hear any suggestions the noble Baroness may have relating to Myanmar and to work with her.

[Lord West of Spithead (Lab)]

My Lords, population and family size are of course a real problem. Could the Minister confirm that we are still helping women in poorer countries to be able to access proper family planning?

[Lord Ahmad of Wimbledon (Con)]

I can certainly give that reassurance to the noble Lord.

[Lord McColl of Dulwich (Con)]

Would the Minister agree that, although half the world is starving to death, the other half is gorging itself to death? Could he persuade the Department of Health and Social Care to stop advocating a low-fat diet when in fact the right kind of fat is what limits obesity?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I bow to my noble friend’s expertise in this area and totally concur with him. When one travels the world and sees the challenges of famine—I think the latest UN estimate was that 223 million people will face acute food shortages and insecurity—one sees that global actions on fighting famine and looking at dietary-specific solutions are a vital part of our work.

[Baroness Watkins of Tavistock (CB)]

My Lords, could the Minister say what further investment there will be in women’s secondary education, which is closely linked to preventing an increase in population numbers and improving the nutrition of children who are already alive?

[Lord Ahmad of Wimbledon (Con)]

My Lords, my right honourable friend the Foreign Secretary has put the whole issue of women and girls very much at the heart of our work. The noble Baroness will be aware of our commitments through the Global Education Summit. We currently provide £430 million for girls’ education. There was an earlier question on the World Health Organization; we are working with the WHO on fulfilling its recommendations about breastfeeding within an hour of birth and nutritionally adequate and safe complementary feeding methods. These are part of our quite extensive programmes, working both with international agencies and partners and bilaterally in support of development programmes focused on girls and women around the world.

State Pension Underpayments and Arrears for Women

Monday 21st February 2022 Lords Chamber

Question

15:09

Asked by

[Baroness Altmann]

To ask Her Majesty’s Government what progress they have made in correcting State Pension underpayments and arrears for women; what is their latest estimate of (1) the number of women who have had their State Pension increased so far, and (2) the proportion of the total affected by underpayments that this represents; and what steps they are taking to ensure such errors do not occur again.

[The Parliamentary Under-Secretary of State, Foreign, Commonwealth and Development Office and Department for Work and Pensions (Baroness Stedman-Scott) (Con)]

Between 11 January 2021 and 30 September 2021, 38,507 cases were reviewed, 9,491 underpayments identified and arrears of £60.7 million made. We cannot break this down by gender. A further update will be published around the time of the next fiscal event. The department has undertaken steps to prevent future error, including changes to the checking approach, additional learning for staff and, as a failsafe, regularly running a scan to pick up any cases that may have been missed.

[Baroness Altmann (Con)]

I thank my noble friend for her helpful response and for her department’s work. I have two questions: please could she explain why interest is not being added to back payments, as it was earlier for women whose underpayments were corrected after these official errors? Also importantly, I understand that the poorest women are at risk of losing benefits or social care funding when an arrears lump sum exceeds, for example, the £23,250 social care capital disregard. Most of these pensioners probably needed higher pensions and would also almost certainly have spent the money in past years but now risk the arrears being taken back in care fees straight after finally receiving the money. Will the Government consider introducing regulations—as happened after the Manchester bombing—requiring local authorities, to disregard these specific state pension back payments, not future higher pensions, from financial assessments for social care funding or means testing?

[Baroness Stedman-Scott (Con)]

Consistent with other large-scale LEAP exercises, special payments under the DWP discretionary scheme are not routinely made to those who have been underpaid state pension. However, under exceptional circumstances, such as where severe distress has been caused by the way an individual case has been handled, a case may be referred for consideration of a special payment.

On the point that my noble friend raises on social care and the impact of back payments, where a local authority charges a person for their care and support, regulations set limits below which a person’s income and capital must not be reduced by changes. Local authorities may take most of the benefits people receive into account unless it is specifically required to be disregarded by regulations. The responsibility for interpreting and applying the regulations and guidance tests rests with local authorities. I will take the point about legislation back to the department and write to my noble friend.

[Baroness Smith of Basildon (Lab)]

My Lords, that was quite a long response, but I think the short version is no—the Government are not going to make any special arrangements. The point was made very clearly by the noble Baroness, Lady Altmann, that these people, particularly women, were in very straitened circumstances and suffered and paid a high price for not receiving the pension to which they were entitled. Can the Minister reconsider this? This is a case where the Government got it wrong. Surely some special action should be taken to properly correct the errors that were made.

[Baroness Stedman-Scott (Con)]

The noble Baroness makes a very good point. All I can say at the moment is that the Government do not have any plans to change. However, I will take the point back to the department, because it is a very fair one.

[Lord Forsyth of Drumlean (Con)]

My Lords, should my noble friend not be taking the point back to the Treasury? Is this not an example of the Government hiding behind the skirts of local government? The Government provide guidance to local authorities; why can they not provide guidance saying that they should disregard these payments?

[Baroness Stedman-Scott (Con)]

I am very happy to take the point back to the Treasury, although I would not hold my breath—I will probably get told off for saying that. But again, I will take the point back to the department. My noble friend has made the point very clearly, as has the noble Baroness.

[Lord Rooker (Lab)]

Let us get some gender into this. The noble Baroness talks about “people” and “persons”, but we are talking about women. When was the last time tens of thousands of men were short-changed with their pension? I do not recall that happening. When the Government took their long-term holiday from paying into the National Insurance Fund, they deprived hundreds of thousands of women of the pension that they were entitled to. Why cannot that be redressed?

[Baroness Stedman-Scott (Con)]

My Lords, I have no idea about underpayments to men. In terms of underpayment to women, we are doing an exercise; we are going through the whole system to work out who should have had the money and we will get it to them as quickly as possible.

[Baroness Janke (LD)]

My Lords, the Government have explicitly ruled out divorced women from this exercise, yet divorced women’s pensions are really complex and the scope for error is huge. Does the Minister agree with me that to discriminate against divorced women in this way is indefensible? When will the Government act on this, as the Public Accounts Committee recommends, and put an end to such obvious injustice and discrimination?

[Baroness Stedman-Scott (Con)]

Even if somebody is divorced, their ex-husband’s contributions to NI will still be taken into account when deciding their pension award. That has always been the case and it will be the case on this.

[Baroness Wheatcroft (CB)]

My Lords, when more than £60 million that should have been paid has not been paid, surely somebody should be held responsible in the end for that error. In the private sector, the sum of £60 million would be taken very seriously. Can the Minister tell us, therefore, who was ultimately responsible for this failure to pay such a large sum of money?

[Baroness Stedman-Scott (Con)]

The shortfall or underpayment was identified as a result of a marker on the computer system not working correctly. We put it right and we are doing our best to pay people what they should have. It should not have happened, but ultimately the Government must take responsibility.

[Baroness Fookes (Con)]

My Lords, given that many of the people involved are particularly vulnerable and poor, what steps are the Government taking to ensure that those people are prioritised? Government departments do not have a good historical record in ensuring that people who suffer at the state’s hands get redress very speedily.

[Baroness Stedman-Scott (Con)]

I would like to take the opportunity to wish my noble friend a very happy birthday. To answer her question, resolving these errors is a priority for the department. We are committed to doing so as quickly as possible. We have started by reviewing cases where the individual is alive; in doing so, we are initially focusing available resources on older cases and on those people whom we believe are most likely to be vulnerable.

[Baroness Warwick of Undercliffe (Lab)]

My Lords, in her response, the Minister indicated that various steps had been taken by the department to put things right. That was welcome, except that the Public Accounts Committee made a series of very specific recommendations to the department in its very damning report. Can the Minister tell us exactly how much progress has been made specifically on those recommendations? If enough progress has not been made, will she ensure that she reports to the House on just how much the department is monitoring them?

[Baroness Stedman-Scott (Con)]

The department is considering the content of the report, including the recommendations. As is the case for reports such as this, the Government will provide their response to the House in due course through the publication of a formal Treasury minute. Until then, it is not appropriate for me to comment any further on the report, but I am prepared to make a commitment that, when such a decision is made and the response is ready, I will make sure that all noble Lords are appraised of it.

[Baroness Ludford (LD)]

My Lords, one of the points made in this very critical report last month by the Public Accounts Committee was that the DWP lacked any plan to contact the next of kin of deceased pensioners who were shamefully short-changed. Can the Minister tell me what is happening on that score? On the question from the noble Baroness, Lady Altmann, will the Government ensure that any sum ever paid—we live in hope—is not taken into account for, for instance, inheritance tax purposes?

[Baroness Stedman-Scott (Con)]

My understanding of the situation is that, where people have died, a payment will be made to their estate to make up for the underpayment. I cannot tell the noble Baroness when that will happen, but the department will be communicating with and contacting the various people. I have already given an answer in relation to the underpayment and the impact on other benefits and costs.

Nuclear Energy (Financing) Bill

2nd reading
Monday 21st February 2022 Lords Chamber

Second Reading

15:20

Moved by

[Lord Callanan]

That the Bill be read a second time.

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)]

My Lords, the Bill establishes a new funding model for new nuclear projects, known as a regulated asset base—RAB—model. This funding model would allow a company to receive funding from consumers through their energy suppliers in relation to the design, construction, commissioning and operation of a new nuclear project. By using a RAB model, a company’s investors share some of a project’s risks with consumers. This can lower the cost of finance for funding new nuclear plants, which is the main driver of project cost. This could deliver nuclear plants at a lower overall cost to consumers than if we relied on existing funding mechanisms alone.

As the National Audit Office observed in its 2017 report on Hinkley Point C, by using a model such as a RAB, which shares more project risk while providing the developer with a revenue stream, the required return to investors could be lower, resulting in lower project costs overall. As well as introducing a RAB model for nuclear, the Bill takes steps to remove barriers to private investment to further incentivise the development of new nuclear projects in the United Kingdom. These measures will reduce the UK’s reliance on overseas developers for finance and deliver better value for money for consumers. This legislation is vital in getting new nuclear projects off the ground and will help the UK meet its decarbonisation targets. As well as contributing to achieving our net-zero commitments, new nuclear will complement renewable energy to ensure that the UK has a resilient, low-cost, low-carbon electricity system for the long term.

With all but one of the UK’s current nuclear reactors scheduled to close by 2028, representing 85% of our existing nuclear capacity, the need for new nuclear projects is more urgent than ever. The UK was the first country in the world to establish a civil nuclear programme and the sector has a proud history of innovation and of creating high-skilled jobs across the length and breadth of the country. The Bill is an opportunity to boost this vital sector and its supply chain by getting projects off the ground, while supporting the Government’s recent levelling-up White Paper.

With construction of Hinkley Point C under way, the Government are aiming to bring at least one large-scale nuclear project to a final investment decision by the end of this Parliament, subject to value for money and all relevant approvals. The recent spending review provided up to £1.7 billion of direct government funding to support this objective. The Government have also provided further funding to support the development of future nuclear projects, including small modular reactors, led by Rolls-Royce.

This funding has been made available to develop and mature prospective projects. In addition, we need a new funding model that unlocks cost-effective nuclear power. This is the main objective of the legislation before us today. We must harness the potential of private capital to be partners in our nuclear sector and widen the pool of available finance for new projects. This will naturally take us away from reliance on single developers financing new projects at their own risk, something which has contributed to the cancellation of recent projects at Wylfa and Moorside. The effectiveness of the RAB model has been seen in the successful financing of other complex and large infrastructure projects, including the Thames Tideway tunnel and Heathrow terminal 5. With nuclear projects, the RAB model has the potential to bring in new sources of capital at a value for money cost to consumers.

In terms of international comparisons, it is important to stress that there are key differences between the RAB model and projects in the US that used the early cost recovery model. At projects such as those in South Carolina and Georgia, the economic regulatory approach taken was driven by unique company ownership models, which had implications for how costs were passed on to consumers. Other differences include the level of regulatory oversight and how incentives were established for projects to be delivered to cost and on schedule.

There were also several project-specific issues, including the maturity of design work at the start of major construction, the experience of the project supply chain, and the structures in place to manage the project. All potential nuclear projects in the UK will be subject to very rigorous due diligence, including the designation process set out in the Bill, which would mitigate against such issues arising in this country.

The Bill consists of four parts. Two of these establish the RAB model. The others take additional steps to incentivise investment and protect the interests of consumers. The first part of the legislation creates a framework for the implementation of an economic regulatory regime for the RAB model. The regime will be designed to share risk in a way that reduces the cost of financing projects, while incentivising investors to manage project costs and schedules.

This part of the Bill will allow the Secretary of State to designate a nuclear company for the purposes of the RAB model, as long as it meets specific criteria and relevant persons are consulted. The designation criteria require the Secretary of State to be of the opinion that the development of the relevant project is sufficiently advanced to benefit from the RAB model and that designation is likely to result in value for money. Once designation has occurred, the Secretary of State will be able to amend the nuclear company’s electricity generation licence, allowing it to receive a regulated revenue stream to support the design, construction, commissioning and, of course, the eventual operation of the nuclear project.

The second part of the Bill covers how funding will flow to a nuclear company that has been given access to RAB funding. This mechanism draws on the contract for difference model. Ofgem will calculate the nuclear company’s allowed revenue for a given period in accordance with its modified generation licence and how much will need to be collected from electricity suppliers. Suppliers will then pay their appropriate share of this to a counterparty, which will be responsible for passing the total amount on to the nuclear company. This will enable a steady flow of funding between domestic and non-domestic consumers and a nuclear company.

The third part of the Bill introduces a special administration regime, which will come into effect in the unlikely event of a project company’s insolvency. Unlike an ordinary administration, a special administrator must prioritise the commencement or continuation of electricity generation from a nuclear power plant which is benefiting from a RAB model. This seeks to ensure that consumers benefit from the investment they have made through RAB payments in the form of the electricity generation that the project will ultimately provide.

The fourth part of the Bill makes technical clarifications to the regime of funded decommissioning programmes in the Energy Act 2008. The Bill clarifies that entities such as security trustees and secured creditors will not be bodies “associated” with nuclear site operators simply by virtue of holding or exercising certain rights relating to the enforcement of security. This will facilitate these bodies’ involvement in the financing of nuclear projects. This part of the Bill also contains a financial provision that provides an indication to Parliament of the spending that may be incurred under the Bill’s provisions.

Finally, the commencement clause sets out the limited number of provisions in the Bill which are subject to early commencement. This is crucial in ensuring that the Government can bring at least one large-scale nuclear project to final investment decision in this Parliament, subject, as I said earlier, to value for money and all relevant approvals.

I have already touched on a number of the benefits that the Bill provides. As mentioned earlier, this legislation could significantly reduce the cost of financing new nuclear projects and reduce the UK’s reliance on overseas developers for financing new nuclear, while providing low-carbon, reliable energy. Consumers will therefore benefit from lower system costs than if the UK relied solely on intermittent power sources.

More broadly, this legislation also represents a significant opportunity for UK businesses. As Hinkley Point C proves, new nuclear build projects create jobs locally and nationally to support the supply chain and boost economic recovery. The nuclear sector employs approximately 60,000 people, which includes a significant proportion of highly skilled jobs, and the nuclear RAB model will help create thousands more.

In terms of the devolved Administrations, the nuclear RAB regime would extend to England, Wales and Scotland only. We understand that the Scottish Government do not share our position on the need for new nuclear projects. However, this Bill does not alter the current planning approval process for new nuclear projects. In addition, the Secretary of State would need to consult with Scottish Ministers before designating a nuclear company whose proposed project was wholly or partly in Scotland.

I was pleased to see the support expressed for this Bill by numerous MPs from all sides in the House of Commons representing constituencies in Wales. We will continue to work closely with the Welsh Government on options for a future nuclear project at Wylfa, and a RAB model remains an option for financing a nuclear project at this site. I was pleased also to see the support that the Bill got from Her Majesty’s Official Opposition as it passed through the other place. I look forward to further constructive engagement—indeed, we have already commenced it—and co-operation as the Bill proceeds through your Lordships’ House.

At Committee and Report stages in the Commons, there were broadly three key areas of debate. One of the issues raised was the role of foreign investment in the UK’s civil nuclear projects. The Government welcome investment but never at the expense of our national security. We recognise the importance of having appropriate protections and scrutiny in place to ensure that any investment aligns with our core interests. The National Security and Investment Act gives the Government significant oversight of acquisitions of control in a nuclear project. It is also important to note that national security considerations will form part of the wider approvals process.

Another issue raised in the Commons was costs to consumers. We recognise that the rise in global gas prices has increased the cost of energy for households. However, in the medium to long term the Government are clear that new nuclear is crucial to providing consumers with reliable, low-carbon and affordable energy.

The Bill also contains measures that will allow the Government to incentivise project developers to avoid cost overruns, providing protection to consumers prior to the approval of a project, as well as during its construction and operation. Ensuring that a project has matured to a suitable point of development will be a central criterion for approving a project under the RAB model. The Government will submit project proposals to a thorough business case process, and intensive due diligence will take place throughout project negotiations. This due diligence will allow the Government to produce a robust estimate of a project’s cost. Developers will then be incentivised to manage costs and timings effectively, overseen by the economic regulator.

Finally, the other place also had constructive debates around transparency. The Government fully recognise the importance of transparency, which is why the Bill places clear requirements on the Secretary of State to publish information and consult key stakeholders at each stage of the project.

The Government are clear that nuclear energy has a vital role in reducing our reliance on fossil fuels, thereby protecting us from volatile global gas prices. Nuclear power will need to play a significant role in the UK’s future energy mix to ensure reliable, low-cost, low-carbon power as we transition towards net zero. I hope that noble Lords will recognise the exciting opportunity that this Bill represents to further develop the UK’s civil nuclear sector, while stimulating economic growth and job creation in support of the Government’s levelling-up strategies. I beg to move.

15:33

[Lord Rooker (Lab)]

My Lords, I strongly support the Bill. I recall some years ago being on a boat on the Thames with Thames Tideway and being briefed about the massive new tunnel. When the financing was explained, I was not alone in asking whether it had been used for any other big infrastructure projects as, frankly, it seemed too good to be true. That sounds simplistic, but the fact is that I was sold, as were others, on the system of finance. An operational nuclear power station is not the same as a tunnel taking sewage away from London, but the cost, infrastructure and quality-of-life implications are very similar. At the end of the day, of course, the consumer will pay. You cannot hide that fact and nobody seeks to do so. But over the next 30 years, the use of electricity in the United Kingdom will double compared to the 2019 figure. The overall use of energy will go down, and we will use a smaller proportion of oil and gas, and, of course, introduce renewables and hydrogen. This this makes electricity absolutely fundamental. We will always need a baseload, and nuclear is the best form.

I do not think you can be taken seriously as a political party in 2022 if you are not in favour of civil nuclear power: it is as simple as that. I do not want to disparage people, but I am reminded of the brown bread and sandals brigade attacking nuclear not on a scientific basis but on an almost mythical, quasi-anti-religious basis, yet it is clean, green and cheap to operate. We know from our regulatory information powers that it is safe. We started it—we invented it—and we used it to make electricity. We cannot do nothing, given that our older Magnox stations will be phased out in a few years. We have to prove that we have learned the lessons from Hinkley Point C. The National Audit Office has given its approval for the use of alternative financing models, hence this Bill.

I want to be brief, and I have just two key points to make. One relates, as the Minister very fairly pointed out, to customers. The Government have to ensure that customers do not pay more than twice. They will pay twice for this, of course—that is the system; it is split—but they do not need to pay three times. Paying for construction and operation is one thing, but they should not pay for aborted projects or massive cost overruns. There has to be something which gives a degree of confidence. The Government have to prove that they have customers’ interests as a top priority, as energy policy requires that customers change their behaviour. We are asking the citizens of this country to massively change their behaviour, and they have to understand why. We know from the pandemic that behaviour will change if people understand why. We have to be transparent and open about this.

My second point concerns security. There is no reason at all why the UK, along with other democratic states, cannot ensure security and stability of nuclear technology and get control of it itself. My view is that there should be no finance from China or Russia at all. They cannot be trusted with commercial contracts these days. I remember someone once telling me, many years ago, that the Soviet Union had never reneged on a commercial contract. We do not have the Soviet Union now; we have Russia, and it is reneging on commercial contracts. Leave the security bit aside, if you will—I am worried about that as well—but it cannot be trusted on commercial contracts, and we are talking here about very long-term commercial contracts.

We started the process. Okay, it never came about that electricity was so cheap that it was not worth recording, but we are in a different age. We will not have coal and gas to fall back on for a quickie. Nuclear is going to take on an importance beyond keeping the lights on, whether it is the small modular reactors or new build.

I do not want to turn the clock back—it was never the “good old days”—but when I left school, you could get an apprenticeship with the Central Electricity Generating Board. What I cannot see today among the 20 or more different organisations is the replacement for that, so that we can upskill and give careers and a future to the people of this country. We have lost that. I would like to believe that this Bill could be one of the most important that the Government introduce. It could actually be a factor in restoring that from a bygone age.

15:39

[Lord Teverson (LD)]

My Lords, first, I declare my interest as a director of Aldustria Ltd, which is an energy storage company. I thought the noble Lord, Lord Rooker—who I have huge regard for—was back into Corbynism there for just a moment. I knew someone who worked for the Central Electricity Generating Board. It was a great time in history.

The Minister mentioned both value for money and zero carbon, and I want to come back to both. One of the basic things about zero carbon is the circular economy, and one of the first questions on the decision tree of circular economy is whether you need something or not. I will go down that route in a minute. I have always been favourable to nuclear power but, over the last decade, facts have changed. That is why I am sceptical about the need for this type of nuclear development altogether. Let me say why.

First, we still have not solved the nuclear waste issue—and it is a real issue. Conversations with local authorities and communities are going on throughout the UK about finding a way forward but, even if we do, those facilities will not be ready for many decades, as we have seen from previous experience in Finland. Secondly, I come to the area of baseload because this is, if you like, a 1990s argument. One thing about nuclear power—particularly with Hinkley C, which I have visited, and Sizewell C—is that, for it to be effective, it needs to operate consistently: it does not go up and it does not go down. If we have large renewables in this country, nuclear must go up and down from hour to hour, day to day, week to week. It is not a technology suited to that. It becomes inefficient. It is inefficient not only operationally but in terms of what the Bill is trying to do, which is minimise capital costs. I know from my experience in industry that, when you have capital, you work it day and night as long as you can: you sweat the assets. With a large renewable input into our electricity system, that becomes not possible with nuclear power after a certain threshold.

Also, you come to costs, and this is where facts come in: the cost curve for nuclear has gone up while the cost curve on renewables has come down significantly, as we know. I congratulate the Government on part of their work in making sure that is the case. In terms of value for money, which was the Minister’s caveat on this nuclear project, it seems to clearly fail. The trend is going that way, but we have the largest energy cost crisis that we have had in many years at the moment, and we are told that it is not going away any time soon. Yet the Bill actually adds costs to consumers, when we have a cost-of-living crisis—fuelled by energy—that is more of a problem than it has been for some time. If I was an adviser to the Government—which I never have been or will be—and I wanted to use nuclear power, I would probably go down the Korean route: you build a fleet of 20, you get your economies of scale and you finance it through the public purse, which has minimum interest cost. What do you have? You have a much cheaper capital cost, zero carbon and greater efficiency. The Government are not going down that route, but that has been shown as probably the only way that you can make nuclear power successful in the modern world.

There is an alternative—and, strangely enough, it is not renewables. It is that boring thing called energy efficiency. The Minister shakes his head, but every government publication with comparisons says that energy efficiency shows the highest return in terms of capital investment that there is. For the £20 billion that this will cost—probably more at the end of the day—it is my rough calculation that you can retrofit 2 million to 3 million homes; those would be some of the worst ones to bring up. This is important for social fuel poverty but also means that energy costs for consumers go down—whereas the Bill makes them go up. Page 55 of the 2019 Conservative manifesto says:

“We will help lower energy bills”—


somewhat ironic—

“by investing £9.2 billion in the energy efficiency of homes, schools and hospitals.”

Fantastic, but it is not enough. Here, twice that could be put towards it. I ask the Minister: how much of that £9.2 billion has already been spent, half way through the Parliament?

15:44

[Lord Howell of Guildford (Con)]

My Lords, I declare an interest, as I am advising a company involved in the power construction sector—Mitsubishi Electric—and a long-standing interest as a former Secretary of State for Energy. That was many decades ago, I am afraid, when I tried to get a nuclear power replacement programme going but failed, which is why we are back at the same issue now.

The Bill has excellent intentions and purposes, so I of course welcome it, as does the noble Lord, Lord Rooker, but some questions must be asked and, if not answered here in Parliament, will be asked again and again by investors. Let us be clear: the basic aim of the Bill is to make future nuclear power projects more widely attractive to private capital, such as pension fund money, of which there is plenty around to invest today. With the regulated asset base model, it is eventually consumers, via the licensed suppliers, who will find themselves bearing more of the risk from the start.

There are two key questions which investors, licensed suppliers and consumers will want answered. First, for how many years can consumers be asked to pay this extra levy on top of everything else and carry the risk of all the delays and vast cost overruns so familiar in this industry to date? Of course, the answer depends on what sort of nuclear plant is being financed and “on offer”. The one immediately before us and mentioned in the Bill is Sizewell C: a very large-scale project billed as a “replica” of the only other one being constructed in the UK, which is at Hinkley Point in Somerset. Is it a replica? Perhaps it is technologically, but definitely not financially. That is the reason we are here looking at a new financing model.

At Hinkley, the returns to the two main investors, Électricité de France and China General Nuclear, are due to come through by requiring that electricity produced, when it finally flows, is purchased by wholesale distributors at what looked at the time of the deal to be an enormously inflated “strike price”—although, ironically, it is not that inflated compared with the current soaring electricity prices which we are now suffering. Why will this so-called replica at Sizewell, or other future projects for that matter, look any better? These big plants take 10 to 15 years to get up and running, and it so happens that the history of Hinkley Point C, the evolutionary power reactor—evolutionary it certainly is—is not at all encouraging in that respect. None of its EPR design predecessors is successfully operating, has stayed anywhere near planned construction time or is anywhere near planned budget. Now at Hinkley Point C there is talk of parts having to be totally redesigned and further delays and costs. The reactor plant being constructed jointly by CGN and EDF at Taishan in China was meant to be the poster—the model—for being on time and working, but even that has now been closed for security reasons. As for the prototypes at Okliuoto in Finland or at Flamanville on the Cherbourg peninsula—which I visited some years ago with the noble Viscount, Lord Hanworth—one hardly dares look at their time overruns: years and years late.

Are investors ever going to wait that long for payback? However guaranteed the cash flow from consumer bills during construction—which may, incidentally, have to be jacked up to cope with construction risks—private money will not find that very attractive. Smaller scale, quicker built models, such as the small modular reactor type, or the advanced smaller reactors, are bound to be far more attractive when they can be built in series with lower waste, fabricated at factory level and begin operating and earning in two or three years. That means a much shorter period of risk for consumers paying up in advance and, of course, capital can be lent at cheaper rates because of a quicker return and less risk. That is obvious.

That is the first key decision, or choice, right now in our nuclear fleet replacement programme which confronts Her Majesty’s Government: a programme which has already had its share of setbacks. Do we plug on with these mammoths at Wylfa, Moorside, Oldbury and Sizewell or turn all our efforts to small and more advanced nuclear power plants? I appreciate that this is a choice the Government would rather not make.

There is a second and really awkward issue to be resolved; namely, how to deal with the Chinese involvement. There is not time in the allocated five minutes to go into detail, but 10 years ago the mood was to welcome everything Chinese and give them a central role in our nuclear replacement programme, and now the mood has swung 180 degrees. There will be little private investment attraction at all at Sizewell until all that is sorted out, even if the EPR design could be assured of working, which none of its predecessors is yet doing.

For this Bill to work and for the RAB model to function, there will have to be a major change of strategy here. Low-carbon nuclear replacement is vital for security, for climate, for cheap green hydrogen and to avoid the kinds of energy bill explosions we are suffering right now. This Bill should help get us back on the right track—eventually—but there are these key decisions to be taken before we can be anything like sure of that.

15:51

[Lord Whitty (Lab)]

My Lords, I broadly support the principle of this Bill and the mechanism proposed, but with some reservations and with the need to put this decision and decisions on nuclear policy in general in a wider context. I have long been a supporter of nuclear power, ever since, as a very young man, I worked at Harwell and was infected by the evangelical commitment of scientists to that alternative energy source. I did not entirely buy it, even then. I never really thought we were going to get completely free electricity; nor did I believe our colleagues down the road at Culham that fusion technology was only five years around the corner. Nevertheless, I think—much more so now than all that time ago, because we now need rapidly to move to a carbon-free energy system—that we do need nuclear power.

The problem has been that despite the investment in research and in earlier generations of nuclear power, for 30 years successive Governments have shied away from key decisions. The noble Lord, Lord Howell, mentioned examples during his time. There was a piece of evidence produced for us in a briefing for this debate that rather chilled me because it said the best time for nuclear investment is 20 years ago. That shook me, because 20 years ago, the Labour Government decided not to proceed with a new nuclear plant, just as their predecessors had. I was a junior Minister at Defra at the time and was party to that decision. It was taken largely because of the cost, which was then envisaged as being entirely on the taxpayer—whereas this puts the cost on the consumer and on business—but also because the enormous success of North Sea gas meant that we were going to have relatively cheap power for a long time and we did not need to take a decision at that time. The position of that Government was that we did not absolutely oppose nuclear power and that there would be new stations. We did not completely adopt the more extreme green agenda, although we did take it into account. We left it on the table, as it were.

We also made a number of provisos. I remember saying in the course of making that decision that while we may have not needed nuclear power at that time, we might eventually, and that even if the UK did not need nuclear power, the world would. So, we had to ensure that we retained the UK’s capability in industry and research, which was at that point—to use a phrase that is current now—still world leading. It had already been run down fairly substantially but we had a strong nuclear capability. The other provisos were that we needed to continue to identify potential nuclear sites, which we have started to do, continue to find options for dealing with nuclear waste, which the noble Lord, Lord Teverson referred to, and reduce the eventual cost of decommissioning, which has distorted our energy cost programme and the Government’s contribution to it over the last few years. These were important caveats but regrettably successive Governments ignored those caveats.

The research and operational expertise have been run down and dispersed, and we are almost entirely dependent on overseas technology, whether it is French, Japanese, Korean or, indeed, Chinese. Not enough new sites have been identified, and the public in those areas have not been fully consulted. Decommissioning costs of the AGRs, and now the Magnox, have soared, and we are still not clear on waste disposal. Instead of cost considerations reducing the upfront cost of nuclear projects, which is now met entirely by private capital, those costs have continued to escalate with the delays in the various schemes here and elsewhere in the world. Some of this is a worldwide issue, and some of it reflects non-decisions by previous Governments, as I say. But whatever form of finance that we adopt now has to be accompanied by addressing those other dimensions.

The Bill does not sufficiently protect consumers or small businesses. Interestingly, the impact assessment says that there will be no cost to small business. That is not true; there will be costs, and, particularly in the current climate, we will have to explain the fact that we are asking consumers and businesses to meet costs the benefits of which they will not see for many years.

So I am in favour of the Bill, but it needs to be extended and the Government need to surround it with some broader commitments. For example, if we are to have big nuclear sites such as Sizewell, we ought to require them to meet other objectives, such as attaching to such sites major provision for the production of hydrogen. There are other possibilities: CCS and storage. Some equivalent of Section 106, as was, needs to be applied to any nuclear projects, because other aspects of energy provision need to be addressed as we approve the provisions within the Bill.

15:57

[Baroness Neville-Jones (Con)]

My Lords, I support the Bill because it is both urgent and important. It is urgent because, as the history of Wylfa recently demonstrated, the lack of ability to provide funding for new nuclear energy has become a serious obstacle in the way of new building. That applies whether it is a big site or project or SMRs and AGRs.

We need the Bill because, as the Minister has said, it provides an alternative funding method that, as the noble Lord, Lord Rooker, pointed out, has been used for other utilities—it is not quite the same, but nevertheless there has been good experience. We need to get it on the statute book as soon as we can, with early commencement, so that the detailed work on financial flows via the RAB model can go ahead, with some prospect of Sizewell and other possible nuclear sites coming on stream in a reasonable timescale. It is not too much to say that, absent a Bill like this or the funding method that it would give us, it will be very difficult to support and fund Sizewell. So the stakes are high.

I am not an expert on funding mechanisms and will not compete with those who are more competent than I am in discussing them, but I will make a couple of points. As the Minister said, the RAB model enables private sector capital to be brought in, reducing the burden on the taxpayer. As has also been pointed out, we do this by getting a contribution from the consumer—this reduces the loan element and drives down the overall cost. There has been comment on this aspect both in this Chamber and in the other place, and I share the concern that the consumer should not be taken for a ride. The experience in South Carolina was cited, certainly in the other place. It is fair to say that any method of finance can be discredited by poor management and, indeed, fraud.

But the concern for protecting the consumer is legitimate, and I hope that the Minister can assure us that there will be due diligence on the project costing so that we are not faced subsequently with unprovided cost overruns. I hope that he can also tell us that incentives will be placed on the builders to keep costs down and that they will be real and effective.

I said that I thought the Bill was important as well as urgent. The truth is that this country is not going to achieve its statutorily embedded climate change goals of net zero by 2050, nor the decarbonisation of electricity production by 2035, without a contribution from nuclear energy generation, which, as has also been said, is at the moment declining. We need that base power when renewables are not performing. I know there is a big divide on this issue, but it is not just the Government who say we need it; so does the Climate Change Committee. We need the contribution of nuclear-generated power. Frankly, Parliament cannot deny the means to the end that it has ordained.

We need to bear in mind something else that is often forgotten. In a data world, we need a much greater quantum of electricity, above all, to power the world that we are going into, which is going to be so desirable and green. If we want the greenness, we need to provide the means to get there.

I also strongly suspect that, for the foreseeable future, which is quite some time, the era of cheap energy is over and that people will take a different view of what the appropriate strike price is likely to be in an upwards direction.

Lastly, I have a couple of thoughts on safety and security. The UK’s record on nuclear safety is of the highest order and we can have confidence in it. I do not come to the same conclusion as the noble Lord, Lord Teverson, who legitimately mentioned this issue. We already have sound methods for dealing with nuclear waste, but it is absolutely true that we must find a permanent solution. I hope the Minister will confirm that finding that solution remains a high priority. It is important for future generations to be able to cope with the outcome of nuclear power.

On security, if ever the world needed a demonstration that high dependence on international energy markets carries a considerable risk to the economy, Mr Putin is giving us a masterclass. Do we really need more persuasion that we must exploit our undoubted ability to become more self-reliant in energy? Secondly, as discussed in the other place, there is the participation of foreign state money in funding nuclear energy plants. I am not in favour of a blanket ban on this, but I am sure the Government need to be vigilant on the issue and use, if necessary, the power of the special share and the terms of the recently passed foreign investment Act. That is what those bits of legislation are there for. I hope the Minister can assure us that, if we are going to counter it, this would be the case.

16:03

[Lord Ravensdale (CB)]

My Lords, I first declare my interests as an engineer and project director in the nuclear industry, working for Atkins. I welcome the Bill, and given that finance and costs dominated the £92.50 per megawatt hour strike price agreed for Hinkley C—approximately two-thirds of that price—it is clear that the proven RAB mechanism will be transformative in reducing the costs of new nuclear. It will reduce the weighted average cost of capital in new nuclear and, as the Minister said, bring a new range of investors, including pension funds and other institutional investors.

It is worth reiterating why we need new nuclear. I have taken part in many debates in my time in Parliament on the need for nuclear in our energy system. I have always been struck by how often the argument is reduced to nuclear versus renewables, so I would like to say a few words on the economic case for new nuclear, to counter what the noble Lord, Lord Teverson, said.

I started my career a long time ago, as a systems engineer, using systems thinking to design, integrate and manage complex systems. Applying that thinking to the energy system shows that we cannot consider elements of the system in isolation. For example, renewables are achieving competitive costs of power at the generator, in levelised cost of electricity—or LCOE—terms. But as the percentage of renewables on the system increases, so, too, does the cost of system modification and back-up to cover those periods of low renewable outputs. At high penetration, when there are high percentages of renewables on the system, the marginal cost of renewables, measured on a whole-system basis, will be far higher than the reported LCOE. We should therefore be comparing costs on a whole-system basis, rather than on a simplistic comparison of levelised costs of electricity between technologies, and investigating the system architecture that minimises the costs of electricity to the consumer. A multitude of studies confirms that having reliable firm power on the grid, such as that provided by nuclear, working together with renewables—that is the important point—makes the system cheaper. With the further cost reductions provided by the RAB model, not to mention fleet build, which, it must be emphasised, led to the great cost reductions that we have talked about in renewables, nuclear will be a vital part of the 2050 energy system.

The Bill is critical for the future of the energy system, helping to ensure that it is low carbon, secure and cost effective. But I suggest to the Minister an opportunity that could be taken with the Bill, involving another aspect of the net-zero system—hydrogen production, to build on what the noble Lord, Lord Whitty, mentioned. The Minister may recall that in July last year I asked him to consider whether hydrogen produced from nuclear energy should be eligible for the renewable transport fuel obligation, or RTFO, alongside other low-carbon sources. He replied that the Government’s aim was to remain technology neutral but that energy change to RTFO sources would require primary legislation. Now we have an ideal vehicle, in the shape of the Bill, to undertake this change. Now that we have left the EU, we are free to determine our own definitions for clean, non-emitting sources of energy. I am sure that the Minister would agree that the Government’s strategy should be technology-neutral across all sectors, and that opening policies such as the RTFO to a wider range of eligible solutions would create more resilience and cost-effective outcomes.

I know that there are ambitious plans to use the construction of Sizewell C as a world-leading example of UK hydrogen-powered construction, using hydrogen buses, diggers and other construction equipment. The early large-scale use of these vehicles will help drive down manufacturing costs and increase hydrogen demand, helping UK companies to get ahead and invest in long-term job creation. A simple change, adding nuclear-derived hydrogen to the list of zero-emissions sources defined by the Energy Act 2004, could unlock millions of pounds of private investment into hydrogen production in the UK and accelerate the Government’s hydrogen production targets, while also supporting the nuclear industry. I would welcome the Minister’s thoughts on this and look forward to discussing further with him and his officials.

Finally, I support what the noble Lord, Lord Rooker, said—although maybe without wishing for the return of the Central Electricity Generating Board. However, I mentioned the system architect. Who defines the overall system architecture? It is not clear at the moment who that is. I agree with the noble Lord that that is something to which the Government need to give serious thought.

16:08

[Lord Wigley (PC)]

My Lords, I am delighted to follow the noble Lord, Lord Ravensdale. I agree very much with what he said, particularly his reference to hydrogen. I also wanted to comment on the speech by the noble Lord, Lord Rooker, who was spot on, not only in his content but in the passion with which he put forward his points.

I speak in a personal capacity, as Plaid Cymru, like most parties, has a spectrum of views on nuclear matters. Plaid MPs did not oppose Second Reading and the two local authorities, Gwynedd and Ynys Môn, which cover the nuclear power sites of Trawsfynydd and Wylfa, are both Plaid-led. Both councils support re-establishing nuclear energy generation on those sites, subject to safety, environmental, employment and community provisions. Indeed, we were moving towards securing Wylfa Newydd when Horizon proposals faltered on financial issues and Hitachi pulled out, so the Bill is very relevant. There is particular support for SMRs at these sites and, while I appreciate that the Bill is a facilitating measure, not tied to specific technologies, I hope that the Minister can indicate greater urgency by the Government for the SMR programme and for securing from the Nuclear Decommissioning Authority a freeing up of land at Trawsfynydd for Cwmni Egino, the site development company created by the Welsh Government, to facilitate an SMR demonstrator plant and develop medical radioisotope production there.

The main purpose of today’s Bill is to speed up investment in a new generation of nuclear power plants. I support the Government’s aim of fully decarbonising the generation of electricity by 2050, but will the benefits of this Bill be felt in time to meet the 2035 interim target of a 78% reduction in carbon emissions compared to 1990?

I accept that nuclear has a key role in guaranteeing electricity supplies for everyone in these islands when full decarbonisation is reached. This is implicitly part of the energy decarbonisation contract between government and the people.

We do not know what the constitutional relationships within these islands will be by 2050, but I believe that all four nations will be part of an integrated European electricity network through which the sale of low-carbon electricity will offer substantial financial returns.

Writing recently in Social Europe, Sarah Brown of the Ember think tank, warned:

“Europe is still in denial about fossil gas.”


She stated that there is an overwhelming consensus that limiting global warming to 1.5 degrees requires

“the rapid and complete decarbonisation of the power sector”.

A United Nations Economic Commission for Europe report, published in October, showed that for each kilowatt hour of electricity generated the grams of carbon dioxide released into the atmosphere are, for coal, 1,000 grams; for gas, 430 grams; for solar, 37 grams; for wind, 14 grams; and for nuclear, 5 grams. These full-life cycle figures include the carbon implications of mining, construction, operation and decommissioning of relevant plant.

We need a complete end to the use of coal, oil and gas for generating electricity and their replacement by dependable low-carbon sources of energy. There is an important role for renewables—solar power, wind generators and tidal and estuarial energy such as the Severn barrage—but they cannot generate all our electricity on the consistent, reliable, 24/7 basis necessary to meet in a timely fashion the needs of each household and place of work. Developments in hydrogen technology and battery capacity will play a role, but the basic challenge remains. Eventually, we may see a renewable, fully decarbonised electricity generation sector if we have the political will, but the clock is ticking towards a global warming profile in which human life on this planet will be snuffed out. Our present trajectory is unsustainable.

Over time, we shall see new clean sources becoming available. We have long awaited fusion as a better source than nuclear fission; recent developments at the Joint European Torus facility at Oxford are encouraging. I hope this Bill might facilitate nuclear fusion investment in due course, but we cannot base our 2050 target on the assumption that fusion will be in place. We have a period of perhaps half a century when the gap between low-carbon supply and demand must be met from a dependable source. Over that timescale, nuclear electricity is an essential part of the clean energy mix.

There are valid questions about the cost of nuclear power. If we are going to support nuclear with this type of financial intervention, how do we ensure that we maximise the UK’s industrial opportunities with technologies and manufacturing capabilities that can be exported as well as used for our own clean energy needs? With the UK taxpayer funding nuclear in this way, we must ensure that the UK economy benefits fully from the opportunity this affords. One major issue of concern relates to the cost of clearing up nuclear power sites; this must be factored into the equation.

I also want assurance that the Bill can cover a variety of sources of nuclear generation, including SMRs and eventually nuclear fusion. We must ensure that the model which has been developed can benefit other developers, and should not be seen as one customised solution for the benefit of EDF at Sizewell C. What commitment can the Minister give that other technologies and potential projects can benefit from this Bill?

I shall also be seeking greater clarity on the role of devolved Governments in designation, licence modification, consultation, transfer schemes and decommissioning.

Because of the pressing need for a new generation of safe, clean, low-carbon nuclear generation facility to underpin our carbon footprint commitments, I am content for this Bill to have a Second Reading.

16:15

[Lord Goodlad (Con)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Wigley. I remember with great pleasure visiting Trawsfynydd and Wylfa in his former constituency when I was a junior Minister of energy, almost four decades ago. I was pleased to hear from my noble friend the Minister that further investment up there is now envisaged.

I strongly support the Bill. We have no prospect of achieving a goal of net-zero carbon emissions by 2050 without new nuclear power. All but one of our current reactors are due to close and we urgently need to make up for lost time and get on with building their replacements, faced as we are with the doubling of electricity demand over the next 30 years.

We have discussed today the other sources—wind and solar power, which the Government have very successfully promoted and will continue to promote—but as we have seen, they are very much victims of the weather from time to time. Oil and gas currently provide a very large proportion of our electricity and will continue to do so, on a diminishing basis. I entirely agree that they should be sourced locally and domestically, rather than being imported, so far as is possible; I only wish more of my compatriots north of the border saw it that way. The Government are rightly supporting investment in small modular reactors—good luck to Rolls-Royce—but that is down the line, as are hydrogen and fusion, which are well down the line.

Increased energy efficiency—which we have heard about from the noble Lord, Lord Teverson—both domestic and industrial, has to my knowledge been a theme of government for at least four decades. That remains a work in progress; much low-hanging fruit has already been gathered, but there will always be room for new carrots and sticks. The Government have made commitments in that direction, which my noble friend the Minister may wish to comment on.

If we are to avoid electricity rationing as demand doubles, we do not have the luxury of time. We need the certainty of new baseload nuclear electricity very soon. That is what this Bill, through the proposed new financial arrangements, will enable, showing the project costs for consumers, investors and developers. The impact assessment has shown that the RAB model for building a large-scale plant is hugely cheaper than the alternative, and for that reason the Government are quite right to choose it.

In the debate on civil nuclear power in your Lordships’ House on 9 December, it was suggested in a most brilliant speech that alternatives to the present proposals could include the issuing of designated bonds backed by the security of the Government, or creating

“a supply of funds to enable the projects to pre-empt the necessary resources by increasing the supply of money.”—[Official Report, 9/12/21; col. 2078.]

Since the Government can borrow money more cheaply than anybody else, it is clear that there is some attraction in this. The noble Lord, Lord Teverson, referred to it as the North Korean model.

[Lord Teverson (LD)]

South Korean.

[Lord Goodlad (Con)]

South Korean! I beg his pardon. My hearing aid has been letting me down. The South Korean model. Well, that may be so, but that is not the way the Chancellor of the Exchequer sees it, faced as he is with an enormous borrowing requirement already, and that is not the proposal before us.

One of the lamentable side effects of the lack of investment in nuclear power in recent decades has been the serious reduction in this country’s relevant skills and expertise. Sizewell C, following Hinkley Point C, will be essential in keeping in existence this expertise. It is salutary to remember the role of British expertise in the construction of the pressurised water reactor at Daya Bay in China, the first nuclear reactor. How the world has changed, but we are where we are, and I hope that we can yet again lead the world in nuclear technology if we show the will to do so, as we can.

I hope that this Bill will enjoy a relatively swift passage through this House, as it did through the other place, with the encouragement of the noble Lord, Lord Rooker, who spoke as eloquently as ever in its support. I hope also that work can be carried out with the urgency that the situation requires.

16:21

[Viscount Trenchard (Con)]

My Lords, I declare my interests as a consultant to the Japan Bank for International Cooperation and as a member of the advisory board of Penultimate Power UK Limited.

I welcome this Bill, which adds to the range of financing structures available for nuclear power station projects. Construction of gigawatt-sized nuclear reactors involves enormous investments in excess of £20 billion, with very long periods before revenues begin to accrue. The nuclear sector deal of June 2018 set out an ambition to reduce capital costs by 30% by 2030. This Bill should facilitate a reduction in the cost of capital for such projects. As Humphrey Cadoux-Hudson, managing director of EDF UK, explains, out of Hinkley Point C’s contract-for-difference price of £92.50, only £12 to £13 was the cost of construction. Operation and waste management represented another £25, and the rest is the cost of finance.

The RAB model is already established in the UK as a way of financing large infrastructure projects. There were around £160 billion worth of RAB assets in the country in 2018, such as Thames tideway, a £4.2 billion project whose weighted average cost of capital will be 2.5% until completion of construction and testing. That compares with around 9% for Hinkley Point C, which is borne by consumers.

The RAB model increases the options for financing nuclear projects and supports the Government’s recognition of the essential role that firm baseload nuclear power must play in meeting both our rapidly increasing demand for electricity and our much bigger need for low-carbon industrial energy. Many people are not aware that the two are different and that currently only 20% of our total energy consumption is electricity, while 80% is domestic and industrial heat, transport, and industrial processes, which at present are principally supplied by gas. Renewable energy cannot replace fossil-fuelled industrial heat.

As I mentioned in the excellent debate on nuclear power introduced by my noble friend Lord Howell of Guildford on 9 December 2021, there are many reasons why the Government should prioritise any opportunities to collaborate with Japan on nuclear energy, to mitigate the damage caused by the cancellation of the Horizon project and Toshiba’s NuGen project at Sellafield Moorside.

The Government have committed to provide £385 million towards advanced nuclear research and development. I welcome their decision to support Rolls-Royce’s SMR programme. The 10-point plan committed the remaining £175 million to research and development of AMR technologies. My right honourable friend the Energy Minister confirmed on 2 December that the Government had decided to focus on high-temperature gas-cooled reactors as their technology choice moving forwards, with the objective of building a demonstrator by the early 2030s. I suggest that this is too modest an objective. As my noble friend Lord Goodlad said, we do not have the luxury of time.

The HTGR technology developed by the Japan Atomic Energy Agency is based on an early British design, the Dragon reactor, developed at Winfrith in Dorset in 1965. The 21st century version has been licensed and operating in Japan for more than 10 years. It is inherently safe and would complement Rolls-Royce’s SMRs well as HTGRs produce heat up to 950 degrees centigrade and would serve a different but essential sector of the UK economy, such as replacing fossil fuels in industrial processes, manufacturing and the production of green hydrogen. The reactors are much smaller than the relatively large Rolls-Royce SMRs, producing around 50 megawatts thermal or 22 megawatts electrical, ideal for embedding in industrial clusters.

Does my noble friend not agree that the Government are proceeding much too slowly in seeking only to establish a demonstrator? The Japanese Government and JAEA are keen to commercialise this already proven technology in the UK and would welcome ministerial engagement at an early date to discuss how this might be best achieved. The RAB model enabled by the Bill we are debating today will provide increased opportunities to finance smaller nuclear projects as well as very large ones such as Sizewell C.

However, I have reservations about saddling consumers with too much by way of additional levies on their electricity bill. Does the Minister agree that the allocation of risk must be fair, transparent and robustly regulated to protect the consumer if the burden is to be applied through regressive electricity bills rather than general taxation? I look forward to other noble Lords’ contributions and the Minister’s winding-up speech.

16:27

[Viscount Hanworth (Lab)]

My Lords, the recent history of the nuclear industry is evidence of the failure of the Government’s energy policy. The coalition Government of Clegg and Cameron recognised the need to renew Britain’s fleet of nuclear reactors. In 2010, it was agreed that the construction of eight new nuclear power stations should be called for. Several contactors expressed willingness to undertake the projects but one after another they withdrew. The list includes Scottish and Southern Electricity, the German companies RWE npower and E.ON, and the Japanese companies Hitachi and Toshiba.

This has left the French company EDF as the sole nuclear contractor, and at one stage it was doubtful whether it would be prepared to proceed with its project, given the difficulty in raising the necessary funds and the paucity of its own resources. The principal difficulty has arisen from the Government’s insistence that infrastructure investment in the nuclear industry should be financed by private capital.

One is reminded that the construction of our existing nuclear plants was invariably financed by central government. Money borrowed from private lenders is subject to burdensome surcharges comprised within exorbitant rates of interest. These charges consist of a risk premium, a scarcity premium and a discount rate. The discount rate reflects the time preferences of the lenders, whereby future receipts are valued at far less than current receipts. It is a consequence of this short-term perspective that half the cost of constructing a new nuclear power station, which can take as long as 10 years, will be attributable to interest charges. These will eventually constitute a massive transfer payment from the consumers of electricity to the financial sector.

As a provider of finance, the Government should be expected to take a long-term perspective. It should be one that envisages the consequences of global warming and the need to provide a stable baseload of carbon-free electricity, which only nuclear power can provide. The free market ideology of the Government has resulted in a system of contracts for difference, under which the guaranteed payments are entailed in a so-called strike price. Any returns to the investment that are below the strike price will be supplemented and any returns above it will be taxed.

This system has been an invention of neoclassical economists. It has accorded perfectly with their theoretical vision of how the economy ought to work, but it is at variance with reality. Among the economic fictions that support this system is a belief in the efficiency of intertemporal financial intermediation, whereby lenders can be prevailed upon to accept future repayments with little in the way of monetary inducements. In reality, it has proved impossible for prospective contractors to acquire the investment funds without incurring a heavy burden of payments to the financial sector.

The Government’s latest attempt to square the circle is represented by the Nuclear Energy (Financing) Bill. The Bill proposes to provide a stream of revenues to the contractor during the period of construction. The revenue will be derived from a charge levied on existing consumers of electricity. The supposition is that, with a guaranteed revenue stream and the alleviation of some of the risk, the contractors will be able to acquire capital funds from the private sector with greater certainty and at a reduced cost.

This begs the question of where the funds will come from and whether they will be adequate to cover the costs. The Government have also reserved the right to judge whether a proposed nuclear project will represent value for money and there is a risk that they will declare or decide that it does not. The common understanding is that the capital will come from the pension funds. I believe that this is the Government’s assumption. We have yet to hear any assessment of the likelihood that the funds will be forthcoming. Perhaps the Minister could address this point. To my knowledge, the Government have revealed no plans to meet the eventuality that the funds to sustain the regulated asset base will not be forthcoming from the private sector. Perhaps, in that case, the Government should derive funds by issuing designated nuclear bonds, as has been suggested.

In January, the Government announced £100 million of funding to support the continued development of the Sizewell C project, in the hope that this would attract further financing from private investors. This is a trivial sum. It might seem odd to describe £100 million as a trivial sum, but it is small in comparison with the £4.3 billion that is reported to have been lost through Covid-related fraud. The cost of the Hinkley Point C power station, which should open in 2026, is estimated to be between £22 billion and £23 billion. The cost of Sizewell C has been estimated at £20 billion. One should be mindful of the fact that, under existing arrangements, at least 50% of these sums will be paid to the financial sector in interest charges. Stripped of interest charges, the true cost of constructing a massive power station at Hinkley Point or Sizewell can be compared with the cost of the 2012 Olympic Games, which is supposed to have been £14.8 billion. These costs seem small when set beside the accumulated profits of banks and the tax paid by the banking sector.

These figures have been bandied about because I wish to pose a rhetorical question: can we afford to secure our future energy supply and fulfil our carbon reduction ambitions? The Government’s economic philosophy might suggest to them, absurdly, that both of these questions should be answered in the negative and that it will be too expensive to achieve these goals.

16:33

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Viscount, Lord Hanworth, with his arguments about the financial sector, although I would make the point that we of course cannot afford the cost of not having a liveable planet—there are no jobs on a dead planet. I feel I have to begin by restating the Green Party’s long-term opposition to new nuclear power, but I will focus today on particular elements of this Bill in the short time available to me. I am particularly opposed to the point made by the noble Lord, Lord Teverson, about forcibly adding to the debt burden of energy users—the same people who are already going to be made to pay for the Government’s cost of living “rescue” package.

I do not have time today to go into detail about all the excellent reasons why local campaigners are so vehemently opposed to a new nuclear plant in Suffolk or to revisit all the arguments about why new nuclear is a terrible idea. Top of the list is that it is way too slow to deal with our climate emergency, together with the demonstrable fact that it crowds out the investment and attention needed on renewables and energy conservation—a point that I will come back to. I will not list the woes of EDF: its shares down almost half in the last three years; its French reactors expected to produce 10% less energy than forecast this year; and its regulatory and safety problems.

Instead, I will focus on two short cautionary tales. One comes from South Carolina. The story starts in 2008 with a decision to build two new nuclear power plants commissioned from Westinghouse Electric Company, owned by Toshiba. I could go through a long and sorry tale, but I will cut it short and get to the final cost—$9 billion, which consumers in South Carolina will be paying for over 20 years; and, for that, they have got a hole in the ground that has now been filled back in. Commenting on the project, former US Nuclear Regulatory Commissioner Gregory Jaczko said:

“It used to be that you didn’t start charging for a plant unless it was done and operating. Whether it was a nuclear plant, or a coal plant”.


That is particularly relevant to our debate on this Bill because the former commissioner was talking about a time before the costs and risks were socialised and the profits were privatised—those profits going very much to the financial sector, as the noble Viscount said. It was interesting that the Minister acknowledged in his introduction that RAB shares risk and said, with an interesting use of the word, that it “could” deliver at lower overall cost.

I come secondly to a cautionary tale somewhat closer to home, to which a number of noble Lords have already referred: the filthy, incredibly dangerous UK former nuclear sites, which the Nuclear Decommissioning Authority acknowledges it still does not even fully understand. The Public Accounts Committee estimates the cost of the clean-up at £132 billion, a sum it has rightly described as “astronomical”. Other noble Lords have referred to the private contract to clean up the Magnox site. In 2018, four years after it had been let, the Government had to take it back; the cost of that alone was £140 million. It is interesting that we have not worked out what to do with the waste, and that we can have no idea of the final cost that will be charged to the public because we do not know how we will get rid of the waste—and that is part of the whole project.

Back in 2012, I attended a fascinating meeting of the local group in Cumbria opposed to deep nuclear waste disposal, chaired as I recall by the former Conservative head of the county council. I say “fascinating” because it was perhaps the most politically diverse meeting I have ever been at, ranging from representatives from the Allerdale and Copeland Green Party to fervent advocates of new nuclear power, but all were opposed to a nuclear disposal facility in Cumbria—and, of course, Cumbria, through its county council, said no. In the other place, the Minister said that they were looking to accelerate dealing with this problem. Well, you cannot accelerate something that is absolutely stationary; or not without an awful lot of force.

I come back to the point I started with, about nuclear crowding out other opportunities and ways of dealing with our climate emergency and poverty crisis. There is a sure bet for the future for people and planet: renewables and—as the noble Lord, Lord Teverson, said—energy efficiency. I note that the Office for National Statistics has just reported that these green industries have essentially flatlined between 2012 and 2020. While the Government have been focusing on their approach, they have utterly neglected the proven, certain practices that would deliver jobs in every community up and down the land.

What we should have is a “Green New Deal (Financing) Bill”, perhaps funded by those who could afford it, such as the private landlords who the Green Party proposed last autumn should face a one-off land value tax to help deal with our energy issues. That would be a Bill fit for our climate and poverty emergencies. Instead, we have a Bill trying to resurrect a failed, expensive, outdated industry—benefiting the few while we all pay the price.

16:39

[Lord West of Spithead (Lab)]

My Lords, I strongly support the Bill and agree very much with the things that were said by my noble friend Lord Rooker. There is no doubt that an energy crisis is looming, as we move towards net zero. Indeed, it could be argued that the energy crisis is already here. The amount of electricity used in this country will at least double, as my noble friend Lord Rooker says, if not increase by even more. The noble Lord, Lord Teverson, mentioned insulation, and I agree that it is very important. However, it is not that easy and straightforward. I have just visited one of my sisters in the West Country and she has had made her house amazingly well insulated. She had to basically demolish the house, almost rebuild it and put everything back together. It is now fantastically energy efficient. If we were to think that millions of people in this country could easily do that, we would have to be in cloud-cuckoo-land. When we are all driving around in electric vehicles, there will be that additional demand and those vehicles cannot be insulated.

Why are we in this position? It is because of the failure of successive Governments—as has been mentioned. It is a national disgrace, actually. We have gone from being the world leaders in civil nuclear—we made masses of money exporting this stuff to Japan—to a position where we cannot build even one of these large reactors ourselves. That is appalling. Reliance on the Chinese, for example, as has been mentioned by a number of speakers, is extremely dangerous and not good. In terms of Sizewell C, could the Minister let us know exactly what the Chinese involvement in finance will be with the new scheme? Will they still be involved in that? I presume so. Will he let us know whether there is any thought about Bradwell going ahead? I imagine that it cannot, because it is too dangerous in terms of our security.

Some people have said that nuclear should not be used because it is not safe. Let us not kid ourselves—more people die every year in the petrochemical and other energy industries around the world than have died in all the nuclear reactor accidents put together. This is nonsense; we have very strict regulations and do this very well. As regards—

[Lord Teverson (LD)]

I hesitate to interrupt, but I do not think that anyone in this whole debate has said it is unsafe, actually.

[Lord West of Spithead (Lab)]

The noble Lord is quite right. What I am raising is: why have we got to this position? It is partly because parties such as the Greens are so anti this, and one of the things they threw around casually was how dangerous this is. I do agree that, in terms of waste and its disposal, we are currently able to do it quite safely on a temporary basis—but there is a need to resolve the long-term issue. The noble Baroness, Lady Neville-Jones, is absolutely right, and I hope the Minister will say that this will be pushed forward. From what I have seen, it seems that we are moving down that route very quickly.

Basically, we need to pull our finger out and get going on this. Sizewell C and Hinkley Point C are absolutely necessary. Looking to the future, we absolutely have to go for SMRs, AMRs and the use of hydrogen. This can all be encapsulated somehow in this. I think we would all agree with that.

I ask the Minister: will the problems at the Taishan plant, mentioned by the noble Lord, Lord Howell, have an impact on Hinkley Point C or have those problems been resolved?

Finally, when I had responsibility for more than 20 nuclear reactors two decades ago, only the Navy was training people and awarding nuclear degrees, which universities in this country had stopped doing. I know that they have restarted, but a number of noble Lords have made the point that this is an opportunity for us to get apprentices and to start training people. I am not sure about a CEGB—but I must say that we need something like it. This sort of training is needed because, at the moment, they are nicking all the people we trained in the Navy to go and do these jobs, and that is not a good way to go ahead.

16:44

[Lord Oates (LD)]

My Lords, I declare my interest as the chair of the advisory committee of Weber Shandwick UK. I am very pleased to follow the noble Lord, Lord West, and to take part in what has been a very interesting and informative debate. It follows on from a debate we had just before Christmas where I found myself the only person on one side of the argument. I see a little bit more support here today.

The Liberal Democrats are opposed to the provisions of this Bill on two principal grounds. The first is that we believe that new nuclear power generation is neither feasible nor a desirable means of reaching our net-zero targets. Secondly, we believe that, even if new nuclear projects were a feasible mechanism for reaching our decarbonisation requirements, this Bill, and the regulated asset base funding model for new nuclear that it establishes, are fundamentally flawed. The Bill imposes a double whammy on consumers, hitting them both with the upfront cost of construction and then with the huge, uncompetitive cost of nuclear generation. It takes no account of the ability of consumers to pay. Costs will fall equally on the richest and the poorest; those already struggling with the massive spike in the energy price cap will feel the charges most acutely.

The Bill is completely opaque in relation to the assumptions and models used to arrive at the estimated RAB charges. In the discussions that we had ahead of the Bill, the Minister’s own department described some of this as “a little bit arbitrary.” It gives the Secretary of State unacceptable powers to prevent publication of relevant material simply on the grounds that it might prejudice a commercial interest, regardless of the public interest in such disclosure. We hope that the Minister will recognise the need for far greater transparency in these matters than is currently proposed.

The Bill takes no account of willingness to pay. Some consumers have contracted explicitly with electricity suppliers that they do not receive nuclear-generated power, but they will be just as compelled to pay as anyone else. It proposes a funding model that has been used for new nuclear only in the United States, where, as we have heard from the noble Baroness, Lady Bennett, it was an unmitigated disaster. It cost consumers billions of dollars, with not a single new plant coming online as a result. The Minister tells us that the circumstances for the RAB are different because of different company structures and a different regulatory approach, but at the heart of both is the fact that risk is being transferred from an unwilling private sector to the consumers, who will not be given a choice. These are just some of the flaws in the Bill that we will attempt to correct in Committee.

Liberal Democrats, for a number of reasons, have a more in-principle objection to new nuclear projects. The noble Lord, Lord Wigley, quite rightly pointed out that we need to rapidly decarbonise our energy sector, but the new projects envisaged in the Bill cannot feasibly come online in time to meet the target to decarbonise our electricity supply by 2035, which the Government themselves say is necessary if we are to hit our 2050 net-zero target. The noble Lord, Lord Howell, underlined the huge difficulties that face these large-scale reactor projects. Even the notoriously optimistic EDF does not believe that Sizewell C could start generating before 2034 at the earliest. Given that it was wrong by a factor of 12 years for Finland’s Olkiluoto EPR, and that in January of this year EDF announced yet another delay to its Flamanville 3 EPR, which is already running a decade late and at quadruple the cost of its first estimate, I hope the Minister can agree with me—on this, if on nothing else—that EDF’s predictions are not ones on which to bank our net-zero plans.

Nuclear is not a feasible global strategy for meeting net-zero targets. We cannot possibly envisage nuclear power being the solution across the world. It is just not going to happen, so we need to find other ways. Nuclear is also, as we heard from my noble friend Lord Teverson, a particularly bad technology for complementing renewables. It is designed for baseload generation and, despite the ability of PWRs to load-follow, it is limited. As my noble friend said, the astronomical costs of construction mean that it does not make economic sense to run these plants at less than full capacity.

However, we also have to take into account the fact that delayed completion and outages can leave huge holes in supply. When Hinkley Point C finally comes online, should it suffer further delay or an outage once operational, we would lose 7% of all UK power, so we have to have an ability to backfill that. We should be aware that at this present moment, 10 of the French reactors are currently offline—nearly 20% of their fleet.

Thirdly, new nuclear is a costly distraction from the urgent need to radically rethink our energy system. As the noble Baroness, Lady Bennett, said, with the Bill we will be crowding out capital that is vitally needed for rethinking and reshaping that energy system through demand reduction, demand repositioning, and energy storage and release. The Bill is stuck in outmoded thinking.

As we heard from my noble friend Lord Teverson, the most cost-effective way to reduce CO₂ emissions—I think I saw the Minister nodding his head in agreement—is to reduce energy use. For the amount that Hinkley Point C will cost we could retrofit enough homes to save all the energy it will produce.

[Lord West of Spithead (Lab)]

I mentioned that with regard to this sort of work that is very easily said, but the complexity of doing it is immense when you are talking about people packed into tower blocks and all the different houses. It is not easy and straightforward. It is very important, but it will not resolve that problem, in exactly the same way that over the last weekend renewables did not provide us with that much energy. Luckily—I suppose—power lines went down so people were not demanding it that way, but my goodness me, renewables were not providing it.

[Lord Oates (LD)]

A huge amount of work could be done. Huge numbers of homes that are in very poor housing stock and in very poor condition could easily be brought up to speed. That is the urgent thing that needs to be done now instead of becoming obsessed with huge power plants which are immensely expensive, highly complex and cannot possibly come online in time to meet the targets that the Government have set themselves.

[Baroness Bennett of Manor Castle (GP)]

Does the noble Lord agree with me that the noble Lord who just intervened on him—

[Lord West of Spithead (Lab)]

The noble Lord, Lord West.

[Baroness Bennett of Manor Castle (GP)]

I am sorry; I was trying to get the terms right. The noble Lord, Lord West, might like to go to Portsmouth to see where there was a wonderful passive house refurbishment of an entire council house block.

[Lord Oates (LD)]

I am grateful to the noble Baroness. I am sure that the noble Lord, Lord West, is very familiar with Portsmouth and that he will take the opportunity to visit such projects.

As we know, electrical use is highly cyclical, both in terms of daily peaks and troughs and annual swings. Therefore, we have to show much greater urgency about how we use smart pricing to reposition demand rather than simply piling on more production to meet peak load. We also have to invest in energy storage and integrate it into grid planning through batteries, green hydrogen production, pumped hydro, compressed gas storage and other solutions.

Finally, nuclear power generation produces high-level nuclear waste which is deadly for longer than any human civilisation has ever survived. It is notable how few noble Lords who contributed as nuclear proponents to this debate addressed that fundamental issue.

The Minister was keen to tell us, as other noble Lords were, how the UK was the first country in the world to begin a civil nuclear programme, yet decades after that and after promising that a solution to this problem is just around the corner, the Government and industry have still failed to supply one. It is our contention that, quite apart from the other powerful arguments against nuclear, it is morally unjustifiable to build new nuclear stations until we first have a geological disposal facility in operation for the long term to deal with the existing high-level waste we have produced. That is key.

In our view, the case for new nuclear generation projects falls down at every hurdle. They cannot contribute to our 2035 electricity decarbonisation target, they cannot effectively complement renewables, and they cannot even clean up the mess they have already created. So laden are these projects with risk, so staggeringly unable are they to keep to time or budget, and so eye-wateringly expensive is the electricity they generate that the only way to finance them is by passing the risks and costs to consumers and taxpayers who are given no choice over whether to accept them.

It is hard to improve such a fundamentally flawed project, but in Committee we will do our best to bring forward amendments to deal with the specific flaws in the Bill that I identified earlier. We look forward to working with noble Lords across all parties in the House to at least make the best of a bad job.

[Viscount Hanworth (Lab)]

Before the noble Lord sits down, may I ask him to clarify how he proposes that we should accommodate the variability of wind and solar power, which I believe are the sources of power that he prefers or proposes?

[Lord Oates (LD)]

If the noble Viscount had listened to my speech, I set out a range of areas in which we need to completely rethink our energy system, including significant investment in energy storage that we can bring online, demand repositioning and demand reduction. Those are the solutions, but I am happy to discuss them further with the noble Viscount outside the Chamber.

16:57

[Lord McNicol of West Kilbride (Lab)]

My Lords, I thank the Minister for his introduction and all noble Lords who have spoken in today’s short debate.

I start by declaring an interest—not a financial one, like many other noble Lords, but a personal one. I grew up in Thirdpart, west Kilbride, on a small holding about one mile from Hunterston nuclear power station. My dad, Iain McNicol, worked at the power station as an operator for 17 years in the 1980s and 1990s, so my experience is far more on a personal level.

I do not think there is a contradiction between encouraging and driving new nuclear build, investing in and expanding renewables, and retrofitting and insulating. All the different parts of creating a future energy system and the better use of energy can be complementary and fit together.

This Bill is about finance as much as it is about nuclear power. As my noble friend Lord Rooker said, Labour believes that new nuclear has an important supporting role to play in the future energy mix, alongside the decisive shift towards renewables that is needed to deliver the climate transition and secure our energy security. As my noble friend Lord West touched on, energy security for the future is critical.

If we are going to build new nuclear power stations—which we agree with—the fundamental question is: how are we going to fund them? We could use the Hinkley Point CfD model, but, as my noble friend Lord Rooker said earlier, if not discredited, the CfD model has at least had its value for money questioned and challenged. We saw that in the NAO 2016 and 2017 Hinkley Point review.

As the noble Lord, Lord Teverson, and my noble friend Lord Hanworth, said, we could fund it by direct government financing, which I am not opposed to. On the impact assessment, when the different funding models were considered, was direct government funding considered as one of them? If not, why not?

In front of us we have the system of the regulated asset base—RAB—model. As I said, Labour supports the building of new nuclear power stations for a number of reasons. Nuclear energy is the only proven technology that can supply low-carbon baseload electricity at scale, notwithstanding the comments and points made by the noble Lord, Lord Teverson. We heard that when Hinkley Point C comes on stream, it will provide 7% of the UK’s energy at any one time—that is from one station.

This is at a time when we face a global climate crisis. The further rolling out of nuclear energy will play a crucial role in the UK meeting its climate targets. Nuclear energy will help ensure that the UK has control over the transition to net zero, due to its small land footprint and it being a low-carbon generating technology, as the noble Lord, Lord Wigley, said.

Rebalancing—it is rebalancing—the use of nuclear energy could also see the further use of hydrogen, as my noble friend Lord Whitty and the noble Lords, Lord Ravensdale and Lord Wigley, mentioned. More specifically, the production of green hydrogen is another key to decarbonising our electricity economy. Hydrogen can be used, without any carbon emissions, as a vehicle fuel and industrial or domestic heat source, if produced using renewable or nuclear energy sources. Although there may be issues around the baseload and the effect of the use of energy across the grid, you can use both renewable sources and nuclear, through electrolysis, to change the hydrogen and create hydrogen that can be stored for use when required.

Although some renewable energy sources, such as solar and wind, are dependent on weather conditions, as we have just heard, nuclear energy has no such constraint: it does not matter if the wind is not blowing or if it is cloudy. Nuclear power plants are essentially unaffected by external climatic factors and can create predictable and steady energy output. Come 2028, Hinkley Point C—if it is constructed on time—and the existing Sizewell B station in Suffolk will be the only nuclear plants generating power in the UK.

We have not even touched on the energy security issues or the socioeconomic and financial reasons for the UK to continue the use of nuclear energy. Nuclear power stations sustain thousands of well-paid and highly skilled jobs, most of which are outside the south-east of England. They also support thousands of supply-chain jobs across the country.

As we have heard, the regulated asset base model is tried and tested. When delivered reliably, it can help to save on capital infrastructure costs, especially those encountered in the CFD model. We will scrutinise the Bill to guarantee fairness for bill payers, including protecting consumers against any potential cost overruns, protecting the poorest households and scrutinising the balance between public spending and the bill payers.

Sizewell C will supply 6 million homes with low-carbon energy for up to 60 years. It will bolster Britain’s network supply chain, providing up to 70,000 jobs and 1,500 apprenticeships. It can reduce Britain’s reliance on energy imports, which is critical for our energy future.

We of course need to proceed with caution in anything as costly and crucial as this. We must learn the lessons from Hinkley; some have been learned in the move from the CFD to the RAB model. But we always need to ensure that consumers are the ones who benefit from these projects in the long run.

This is why Labour had previously proposed amendments around foreign state control, which would mandate nuclear stations to use UK-manufactured fuel and stick to UK consumer charges. As the Bill progresses, the Government can expect Labour’s overall support but also a proper critical eye on aspects of the mechanisms they are adopting and an emphasis on protecting people.

I agree with the noble Lord, Lord Oates, on one point: transparency. We are debating transparency in the Subsidy Control Bill and there will be further such discussions on this Bill. The Government and the country will only benefit from wider and greater transparency. There is no time to waste. Nuclear and low-carbon energy projects are crucial for the future of our environment, economy and energy security. It is therefore critical that we act now.

17:07

[Lord Callanan (Con)]

I start by thanking all noble Lords who contributed to this excellent debate. I was encouraged by the widespread support for the Bill across the House, with the honourable exception of the Liberal Democrats and the Green Party. I particularly welcome the support of Her Majesty’s Official Opposition. These are long-term projects and it is good that the only two serious parties of government support the Bill and the need for new nuclear power.

Before I address the questions raised, I remind noble Lords of the importance of the Bill. The legislation will create a new funding model for future nuclear projects, which can reduce the cost of nuclear power stations when compared to existing funding mechanisms. This will substantially widen the pool of private investors in nuclear projects and, in turn, reduce the UK’s reliance on overseas developers for finance. The lack of a funding model has been the biggest barrier to nuclear projects getting off the ground in recent years and the Bill will help to resolve this issue.

The RAB model will help ensure a cost-effective approach to new nuclear projects, which will play a critical role in the UK’s future energy mix in support of intermittent renewables, such as wind and solar. That is the key point missed by contributions from the Liberal Democrats and the noble Baroness, Lady Bennett. Of course, we want to encourage renewables; they are good thing. We have some of the largest renewable capacity in the world but, by their very nature, renewables are intermittent and we need stable baseload power to keep the lights on. It is no good telling people that they cannot run their car or cook their dinner because the wind is not blowing in the North Sea. This is an unrealistic way to finance the future energy mix. I think this is the key point that the noble Baroness misses.

I also agree with noble Lords on the importance of home insulation schemes. The noble Baroness mentioned the figure herself; we are spending £9 billion on insulation schemes. I will come to that later. These are all important things that we need to do—and in fact are doing—but they are not either/or approaches; we need to do both.

I start by welcoming the support of the noble Lord, Lord Rooker. He does not often support my Bills, so I am pleased that he is doing so on this occasion. I am delighted that he agrees that the funding model will be of benefit to consumers and that he recognises the opportunities for new apprenticeships. As the noble Lord, Lord McNicol, remarked, Hinkley Point C has already trained 800 apprentices and it is on track to meet the EDF target of 1,000 apprenticeships during the construction phase of the project.

The noble Lord also raised some important questions, to which other noble Lords added, about protections for consumers under a regulated asset base model—a point also made by my noble friend Lord Howell and the noble Lord, Lord Whitty. My noble friend Lady Neville-Jones was particularly keen that the Government should adopt a rigorous commitment to value for money in their approach. Of course, that is a point I completely agree with.

The Government totally agree with noble Lords that consumers should be protected. Recognising the unique risks of nuclear construction projects, our proposals for the RAB model include multiple mechanisms for ensuring that consumers are protected from unacceptable costs. This includes undertaking robust due diligence before a final investment decision so as to ensure that the project will be effectively managed. As well as satisfying the requirements of the RAB designation process, for a project to reach a final investment decision it will need to undertake a successful capital raise, complete a government business case and satisfy all other relevant approvals from Her Majesty’s Government. I reassure my noble friend Lady Neville-Jones that any decision to commit taxpayer or consumer funding to a nuclear project will be subject to negotiations with staged approvals and value-for-money tests in line with the Treasury Green Book. Also, during construction a project will be incentivised to deliver to time and to estimated costs through an incentives regime overseen by the economic regulator. I hope that the assurances I have been able to give will provide some comfort to noble Lords that we are very much on the case.

The noble Lord, Lord Whitty, referred to the Bill’s impact on small businesses, which is indeed an important point. We addressed that in the impact assessment accompanying the Bill, which stated that, if a nuclear RAB model is implemented on a new nuclear power plant in future, it would impact small and micro-businesses by creating jobs in a supply chain and would indirectly impact them as a result of any costs or cost savings passed through to electricity suppliers and then to consumers. The illustrative analysis in the impact assessment shows that society as a whole, including small businesses, could save significantly on the cost of a generic large-scale nuclear power plant, using an RAB as opposed to existing fundamental mechanisms.

The noble Lord, Lord Rooker, asked me about the role of foreign financing in future projects, an issue also raised by the noble Lord, Lord West, and my noble friends Lord Howell and Lady Neville-Jones. It is important to point out that we welcome overseas investment in the UK’s nuclear sector. We value the important role that international partners have in our current nuclear programmes and potential new projects. Let me emphasise that this will not and should not come at the cost of our national security. The RAB model will help us to attract the significant amount of investment needed for new nuclear power plants, including from British pension funds and institutional investors, as well as from our closest international partners. In doing so, it will reduce our reliance on overseas developers for finance, and open opportunities for British companies and investors to work with our closest international allies to develop projects across the United Kingdom.

Investment involving critical nuclear infrastructure is subject to thorough scrutiny and needs to satisfy our robust national security and other legal and regulatory requirements. In particular, as my noble friend Lady Neville-Jones highlighted, the recent National Security and Investment Act 2021 allows the Government to scrutinise and, if necessary, intervene in qualifying acquisitions that pose risks to the UK’s national security. As well as that Act, the independent Office for Nuclear Regulation, the ONR, applies a range of strict regulatory requirements to all organisations seeking to operate nuclear sites in the UK. That includes assessments of the organisation’s capability, organisation and resources to manage nuclear material safely and securely.

My noble friend Lord Howell mentioned the history of EPR reactor constructions. The projects he highlighted, at Olkiluoto and Flamanville, are first-of-a-kind builds in each of those countries. This brings unique risks and challenges with the construction process. Developers have learned lessons from these projects and several EPR reactors are now under construction or in operation around the world, including, of course, at Hinkley Point C.

The noble Lord, Lord Teverson, made a number of points about the underlying economic case for new nuclear capacity. He asked specifically about the Government’s action on investment in energy efficiency. As I said earlier, I agree with the noble Lord. The Government recognise the importance of increasing the energy efficiency of homes. It is a difficult and complicated task, as the noble Lord, Lord West, pointed out, but we are spending considerable sums of money on insulating the country’s homes, particularly those of low-income families, both to reach our decarbonisation targets and to tackle fuel poverty in the longer term. That is why we have introduced, among many schemes, the energy company obligation, the value of which we have just increased, to provide energy-efficiency and heating measures for fuel-poor households. In the next iteration, which will run from April this year to 2026, the funding will go up to £1 billion a year.

We have also released today the results of the sustainable warmth competition. If I remember the figures correctly, another £980 million of investment will be delivered through local authorities to insulate homes up and down the country. A number of other schemes are contributing to the £9.2 billion insulation scheme that the noble Baroness, Lady Bennett of Manor Castle, mentioned. So these are not either/or decisions. We need to do both, and, indeed, we are.

The noble Lord, my noble friend Lady Neville-Jones and the noble Lord, Lord Oates, raised the important issue of the long-term solution for nuclear waste. It is important to remember that around 94% of the waste arising from nuclear power stations and other sectors is low in radioactivity and is disposed of safely every day in existing facilities such as the UK’s Low Level Waste Repository. The remaining higher activity waste is currently stored safely and securely in facilities around the UK. We have a process in place to identify a suitable location for a geological disposal facility to permanently dispose of higher activity waste. We are making good progress on four areas in discussions with the developer, Nuclear Waste Services, which is a division of the NDA. The vast majority of the higher activity radioactive waste to be disposed of in a geological disposal facility is waste that already exists.

[Baroness Bennett of Manor Castle (GP)]

I thank the Minister for giving way. Very briefly, can he identity those four areas?

[Lord Callanan (Con)]

When we have announcements to make on those areas, I am sure the noble Baroness will be here to question me, but I am not in a position to release the names at the moment.

The noble Lords, Lord Whitty, Lord Wigley and Lord Ravensdale, all made important points about nuclear projects’ potential for the cogeneration of hydrogen. As the noble Lord, Lord Ravensdale, said, the Sizewell C project is in the initial phase of exploring the potential of using electricity and low-carbon heat for a range of cogeneration applications such as the production of low-carbon hydrogen and direct air capture of CO₂ for carbon capture. While these cogeneration opportunities are currently outside the scope of consumer funding through the RAB model, they could provide benefits to consumers by enabling Sizewell C to be utilised as a more flexible asset. I look forward to exploring that further with the noble Lord. This could provide greater flexibility for the energy system, thereby facilitating a greater number of potential pathways to meet the net zero target by 2050. If used in this way, Sizewell C could become the first nuclear low-carbon heat source, setting an example that we can emulate at other future nuclear power plants.

The noble Lord, Lord Wigley, and my noble friends Lord Howell and Lord Trenchard asked about the application of legislation to small and advanced nuclear modular reactors, for which we see a vital role moving forward. The Prime Minister’s 10-point plan for a green industrial revolution highlighted that SMR technologies have the potential to be operational by the early 2030s in the UK. The recently published net-zero strategy committed to take measures to inform investment decisions during the next Parliament on further nuclear projects as we work to reach our net-zero target. This will of course include consideration of large-scale and advanced nuclear technologies, including SMRs and, potentially, AMRs. As part of this, the net-zero strategy announced a new £120 million future nuclear enabling fund to provide targeted support to barriers to entry. Let me reassure noble Lords that the Bill is not product-specific and could apply to all civil nuclear technologies, and we will make decisions on appropriate investment portfolios on a case-by-case basis when presented with specific project proposals.

The noble Lord, Lord Wigley, as he always does, asked me about the role of devolved Administrations in the process of designating a project company to benefit from the RAB model. Although the ultimate decision to designate a nuclear company for the purposes of the RAB model will sit with the Secretary of State, given that nuclear energy and electricity are not devolved matters for Scotland or Wales, the Bill takes steps to ensure there is both strong transparency in decision-making and involvement of the devolved Governments. The Secretary of State will need to consult the relevant devolved Government before designating a nuclear company where any part of the site of the relevant nuclear project is in Scotland or Wales. It is important to make the point that the Bill will not alter the current planning approval process for new nuclear or the responsibilities of the devolved Governments in the planning process. Nothing in the Bill will change the fact that devolved Ministers are responsible for approving applications for large-scale onshore electricity generation stations within their own territories.

To move on to address some of the points made by the noble Lord, Lord Oates—I addressed some earlier—renewables represent an important and ever-growing source of electricity, but it is important that we have a diverse mix of sources to ensure a resilient electricity system in which the lights do not go off. Just as consumers paid for the previous generation of nuclear power plants, which, according to EDF, have generated enough electricity to power all Britain’s homes for 20 years and saved something like 700 million tonnes of greenhouse gas emissions, it is right that all consumers should share the costs of these projects to help realise their overall longevity and ensure that future generators bear the cost of the low-carbon infrastructure that we need to reach our net-zero goals.

The noble Lord, Lord West—and, I think, the noble Lord, Lord McNicol—asked me about Chinese involvement. In a 2016 Statement to Parliament, the then Secretary of State, Greg Clark, set out Her Majesty’s Government’s intention to

“take a special share in all future nuclear new build projects.”—[Official Report, Commons, 15/9/16; col. 1066.]

This policy has not changed; as such, we intend to take a special share in the Sizewell C project at the suitable time and, of course, subject to negotiation.

[Lord McNicol of West Kilbride (Lab)]

My Lords, the Minister mentioned taking a special share in Sizewell C. Are the Government looking to take one in Hinkley as well?

[Lord Callanan (Con)]

These matters are subject to future negotiations. I will come back to the noble Lord on that.

I have addressed most of the points made in the debate. I am encouraged by the general support for the Bill across your Lordships’ House and I look forward to continuing the constructive engagement with all sides as it progresses. I therefore commend the Bill to the House.

Bill read a second time and committed to a Grand Committee.

Government Contracts: Randox Laboratories

Monday 21st February 2022 Lords Chamber

Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Thursday 10 February.

“In response to the greatest public health emergency that we have faced for a generation, the Government engaged with many businesses—big and small—as part of an unprecedented national effort. On 3 February, we responded to the humble Address and laid the documents before the House. We are committed to transparency and helping the House perform its valuable scrutiny, and the department dedicated significant resources to reviewing about 11,000 records to identify the 35 relevant documents. They show how we took every possible step to build the huge infrastructure for testing that we now have in this country—the biggest testing programme in Europe. The programme has done so much to stop the spread of this deadly virus and given us all hope that we can learn to live with Covid-19.

Randox has been globally recognised in the diagnostics industry for nearly 40 years, and even as early as March 2020 had lab-based PCR testing capacity for Covid-19. Robust rules and processes are in place to ensure that all contracts are awarded in line with procurement regulations and transparency guidelines, and that any potential conflicts of interest with respect to commercial matters are appropriately managed. Direct awards, such as in this case, are permitted by public contract regulations for reasons of extreme urgency brought about by unforeseeable events. I am sure that no honourable Member would deny that the situation was one of extreme urgency.

As the House would expect, Ministers of course have a role in approving contracts, but their approval relies on the impartial evaluation conducted by civil servants. I reinforce to honourable Members that Ministers are not involved in the assessment and evaluation process for contracts, and that the documents given to the House show no evidence that any of those principles has been breached. Instead, they plainly show that we did everything in our power to keep this country safe at a time of crisis, as the British people would expect.”

17:25

[Baroness Thornton (Lab)]

My Lords, at the heart of this Question is almost £500 million of public money, awarded in two public health contracts to Randox Laboratories without competition. My honourable friend asked this Question in the Commons and raised the dissonance in what has been said by the Government over the months since the issue was first raised. I have two questions for the Minister. Does he agree with the former Minister of State for Efficiency and Transformation, the noble Lord, Lord Agnew, that the Government were paying dramatically over the odds for Randox products? If so, can he explain why the Government then entered into a second, more lucrative, contract with the firm? Secondly, the chief operating officer for the Civil Service requested the restoration of competitive tendering by March 2021. Can the Minister set out how many further contracts have been issued after that date without tender and explain why the emergency procurement rules are still in place almost a year later, given that we are coming, as the Prime Minister just told the Commons “out of Covid”?

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)]

I start by thanking the noble Baroness for those questions. On her first point, we should remember the stage that the Government were at at the beginning of the crisis. People were dying every day and there were panics; they were not sure what was out there. Clearly, they were going out looking for suppliers for testing and other equipment. There were a number of approaches and different meetings, but one thing that has been quite clear is that all contracts were awarded according to the Public Contracts Regulations 2015. I have been reassured about this by officials. Authorities are permitted to procure goods, services and works via direct award, using Regulation 32 of the Public Contracts Regulations 2015, in exceptional circumstances, such as extreme urgency, without competing or advertising the requirement. I contend that the beginning of the Covid crisis was such an emergency, and that is one reason it was awarded without competition. There are clear procedures, we are committed to openness and transparency and details of the contracts are available online.

The decision on whether to procure a product from a supplier ultimately sits with departmental officials once the offer has cleared assurance steps. These include clinical acceptability and financial due diligence. I often get emails from people who have sat next to me somewhere who say, “I have this fantastic product”, but I have to reply to them and say, “I’m very sorry—I will copy officials into this but I can take no further part”.

I shall try to answer on the emergency procurement procedures, but I want to make sure I have the right note. Clearly, there are unforeseeable circumstances such as, for example, the rapid onset of omicron at the end of 2021. That also required UKHSA to act with extreme urgency. We used Regulation 32 in some cases at the end of last year to supply LFTs over the Christmas and new year period due to increased demand. The use of Regulation 32 was necessary because our DPS 2 procurement had reached its limit of extension and there was no time to run additional procurement. I am sure the noble Baroness and others will remember the end of last year, when people just could not get hold of testing equipment and we were trying to buy as much as we could on the world market.

[Baroness Barker (LD)]

My Lords, since the start of 2020, Randox has secured almost £620 million of government contracts and the firm has been shown repeatedly to produce goods which are faulty or do not work. It got those contracts using personal contacts. Will the Minister undertake that there will be an independent investigation of those contracts and recovery of any public money spent on faulty goods?

[Lord Kamall (Con)]

At the time of the award of the original contract in March 2020, almost no UK supply was available and Randox was able to provide an end-to-end testing service. The department then engaged with a number of suppliers in its effort rapidly to build from scratch the largest testing industry in UK history. That has played an important role in stopping the spread of Covid-19 and saving lives. The service that Randox provided was a very important part of that.

A number of Randox home testing kits were recalled in the summer of 2020 after tests found that swabs were not sterilised. A Public Health England investigation did not find any instances of swabs causing ill health. Randox agreed to provide new Covid-19 self-test kits. The contract was necessary to meet the increase in testing needed. An independent assessment in June 2020 had placed Randox ahead of other laboratories, and Randox was meeting its delivery targets by September 2020. Without Randox, we would not have been able to meet the volume of testing needed over the winter period.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, I declare an interest in that Randox Laboratories is a major employer in a constituency that I represented for 10 years in the other House. It cannot be challenged that Randox Laboratories has been globally recognised in the diagnostics industry over many years. Therefore, can the Minister place on record the Government’s appreciation for firms such as Randox that rose to the health emergency and exercised their best efforts to achieve our unprecedented national effort?

[Lord Kamall (Con)]

I thank the noble Lord for reminding us of the importance of all the companies that supplied equipment or scaled up at pace or were able to meet the initial requirements. It was a time of panic; thousands were dying, and we did not have equipment. This was a time before the vaccine. The department and its officials tried to speak to as many people as possible around the world to find out what was available, what could be done and what the timescales were. Clearly, as the noble Lord said, Randox played an important role in meeting the testing requirements initially.

[Lord Winston (Lab)]

My Lords, the Minister suggests that the Government were panicking. Does he agree that panic in a laboratory or when one is dealing with tests of this kind is not satisfactory? Is not one of the problems that it is clear that Randox’s methods were not satisfactory and would not stand up to absolutely accurate testing? Is it not the case that the Government still cannot tell us what percentage of its PCR tests were inaccurate or in some ways contaminated?

[Lord Kamall (Con)]

I used the word panic because I think everyone was panicking. People just did not understand what was going on. They did not understand the pace of coronavirus; they did not even understand the disease itself and the transmission of it. I was reading over the weekend a couple of books on the history of the virus so far, where it broke out and what people thought it was originally, and some of the reassessments of historical epidemiology. Clearly, we needed testing performance. Randox was the only company at that time, in March 2020, that was able to provide that capacity at the scale needed. As I said earlier, where we identified problems, we made Randox aware of them and it supplied new kit.

[Lord Robertson of Port Ellen (Lab)]

My Lords, the Government held a full-scale exercise in 2016 based on pandemic flu, Operation Cygnus. Anybody who reads the report of that exercise today can see that there was a looming problem with PPE. Between 2016 and 2020, the Government did nothing about that identified problem, so that, when 2020 came, we domestically produced only 1% of the PPE that was required in the NHS. Why was so little done to be ready for something that had been predicted in advance?

[Lord Kamall (Con)]

The noble Lord makes a point about predicting it in advance, but it is very easy to say that with hindsight. Let us look at a number of different countries and the WHO: some people argue that the WHO and Public Health England had only one job, and they were not prepared for it. Clearly, people were caught unawares; we were not the only country to be caught unawares.

[Lord Robertson of Port Ellen (Lab)]

We did the exercises.

[Lord Kamall (Con)]

There were countries all around the world which were not prepared. That is why everyone scrambled on to the international market; it is why prices were paid at the time that, with hindsight, would not be paid nowadays. It is important to remember where we were at that stage, what we were trying to get hold of, the world market and our understanding of the virus, and at a time when there was no vaccine.

Judicial Review and Courts Bill

Committee stage
Monday 21st February 2022 Lords Chamber

Committee (1st Day)

17:35

Relevant documents: 20th Report from the Delegated Powers Committee, 12th Report from the Constitution Committee, 10th Report from the Joint Committee on Human Rights

Motion

Moved by

[Lord Wolfson of Tredegar]

That the House do now resolve itself into Committee.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, I beg to move.

[Lord Scriven (LD)]

On a point of order, my Lords, questions on a Statement should have been for 15 minutes and not for 10 minutes.

[Baroness Penn (Con)]

My Lords, a Private Notice Question lasts for 15 minutes; a repeat of an Urgent Question lasts for 10 minutes. I believe we are now in Committee on the Bill.

Motion agreed.

Clause 1: Quashing orders

Amendment 1

Moved by

[Lord Pannick]

1: Clause 1, page 1, leave out line 9
Member’s explanatory statement
The purpose of this amendment, along with amendments to page 1, line 15, and page 2, line 2, in the name of Lord Pannick, is to remove the proposed power for the court to prevent a quashing order from having retrospective effect, thereby validating what would otherwise be quashed as unlawful.

[Lord Pannick (CB)]

My Lords, the reaction of most of your Lordships to Part 1 of this Bill at Second Reading was summed up in the memorable words of the noble Baroness, Lady Jones of Moulsecoomb, whom I am very pleased to see in her place:

“It is not as bad as I expected”.—[Official Report, 7/2/22; col. 1371.]


Part 1 could certainly have been worse, but that of course is no answer to the amendments that we are now debating.

I declare my interest as a barrister practising in the field of judicial review. My Amendments 1, 4 and 5 in this group are concerned with decisions of the court to quash a public law decision, whether in the form of a statutory instrument, a decision of a Minister or a decision of a local authority or any other public authority.

As your Lordships and the Committee know, when a public body is found to have acted unlawfully, the decision is usually—not always—quashed; that is, overturned. This is an important protection of the rights of the citizen and an important deterrent to unlawful action by public bodies.

Clause 1 gives the court a power to decide that the quashing order should not take effect until a date specified in the order—some later date—and a power to remove or limit any retrospective effect of the quashing. I am not troubled by the court being given a power to decide that the quashing order should take effect at a later date. That power was recommended by the noble Lord, Lord Faulks—who is in his place—and his team in their well-informed and wise conclusions in March 2021 after their independent review of administrative law which the former Lord Chancellor, Sir Robert Buckland, had asked the noble Lord to conduct. The noble Lord, Lord Faulks, explained in particular that there may be cases where the court considers it appropriate to suspend a quashing order to enable Parliament to decide whether it wishes to amend the law. That seems entirely acceptable, because it recognises the supremacy of Parliament in our constitution, so there is no difficulty about that.

What the noble Lord, Lord Faulks, and his committee did not recommend and what my Amendment 1 seeks to remove from this Bill is the power in new Section 29A(1)(b), set out in Clause 1, for the court to remove or limit “any retrospective effect” of a quashing order. New Sections 29A(4) and 29A(5) make clear that this would mean that the decision or policy which the court has found to be unlawful is nevertheless to be “upheld” and

“treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”

My Amendments 4 and 5 would remove those provisions.

What the Government are proposing would confer a remarkable power on our courts: a power for the court to say that what has been found to be unlawful shall be treated, and treated for all purposes, as having been lawful. Those adversely affected by the unlawful decision, including the claimant in the judicial review, would receive no remedy. If such a remarkable power is to be exercised, it should not be exercised by judges but by Parliament. Your Lordships will recall that one of the causes of the Civil War was Charles I’s use of a dispensing power. The monarch’s claim to such a power was abolished by the Bill of Rights 1689. I do not think it is wise to re-establish such a power in the hands of Her Majesty’s judiciary.

The decision on whether to validate what a court has found to be unlawful raises all sorts of policy considerations which are not for the judiciary to weigh up and determine. Indeed, to confer such an extraordinary power on our judges is, I suggest, inconsistent with this Government’s repeated expressions of concern that judges have or are exercising too much power. As my colleague at Blackstone Chambers, Tom Hickman QC, has pointed out, for the court to have this power to deny retrospective effect for its ruling and to do so permanently, not even only where the defect is technical, would be for the court to exercise a quasi-legislative power, including a power to override primary legislation —that is, the statutory provision which makes the impugned decision or policy unlawful.

Such a judicial power would undermine one of the key functions of judicial review, which is to encourage government to do its best to ensure that it behaves lawfully because it knows that illegality has consequences. It would deter judicial review applications: why bother to complain that the public body has acted unlawfully if the court may say that what was unlawful shall be treated as lawful? New Section 29A(1)(b) would have the effect—indeed, I suspect it has the intention—of seeking to protect government and other public authorities from the basic consequences of their own unlawful actions. I think that is a matter for Parliament and Parliament alone. I beg to move.

[Lord Anderson of Ipswich (CB)]

My Lords, I am slightly more relaxed than my noble friend Lord Pannick about the prospective-only quashing power in the new Section 29A(1)(b)—it is, in its essentials, already acknowledged in our law—but only so long as the courts are free to use it without constraint or presumption. In the Spectrum case of 2005, Lord Nicholls thought a prospective-only quashing order might be appropriate in some cases where a decision on an issue of law was unavoidable but a retrospective decision would have gravely unfair and disruptive consequences for past transactions. Each of his six colleagues agreed that it would be unwise to rule out the existence of such exceptional cases, even though Spectrum itself was not one of them.

17:45

One such case, to which the Minister referred at Second Reading, was the British Academy of Songwriters, Composers and Authors case of 2015. Regulations that had given the public a right to copy compact discs bought for their private use were found to be unlawful. The High Court quashed them with effect for the future, but noted that while they had been in force, when everyone assumed them to be lawful, numerous private individuals had made copies of their CDs for private use. By declining to quash the rules retrospectively, the court served the interests of legal certainty and left in place the legal protection that the rules had afforded to these blameless individuals. The case is a reminder that these specialised remedies are not only capable of assisting public authorities; they may help others as well, who relied justifiably on the law as it was assumed to be.

My noble friend Lord Pannick, with his incomparable experience of public law, suggests that the ability to grant a prospective-only remedy should be withheld from the judges because, as I understand, it would enmesh them in decisions falling outside their proper sphere. The short answer to his point is that his amendments would not remove the existing common law power to grant this remedy. The most that could be said is that placing the power in statute might make applications for its use more frequent. However, his point deserves to be answered as a matter of substance. It is true that a court deciding on an application for one of these exceptional remedies would need to have regard to the factors listed in new Section 29A(8), but there is nothing particularly unusual in that. Factors of that nature are balanced every time a court of judicial review considers, for example, whether to grant interim relief.

I would suggest that the greater judicial incursion into matters of settled policy may come not from a prospective-only quashing order but from a conventional quashing order with retrospective effect. Though judges notionally declare the law as it has always been, the reality is, as Lord Reid first put it in 1972, that this is a fairy tale and that their rulings often make new law. The noble and learned Lord, Lord Hope, cited in his speech in the Spectrum case an observation that

“to apply an admittedly new rule retrospectively is blatantly legislative however fair or otherwise normatively appealing this may be.”

The effect of the prospective-only quashing order in the British Academy of Songwriters, Composers and Authors case was to reduce, not increase, the policy impact of the court’s ruling.

So, for my part, I would not object to the place of prospective-only rulings in the judicial toolbox being confirmed by Clause 1 of the Bill, any more than I object to the inclusion of suspended quashing orders. But—here the Minister will stop nodding—that is so only for so long as there is no question of the Government seeking to dictate when these remedies should be used; that is the subject of Amendment 13 in my name, to which we will come in the third group. So, while I have not put my name to Amendments 1, 4 and 5 in the name of my noble friend Lord Pannick, I could be driven to support them if the new Sections 29A(9) and 29A(10) remain part of the package.

I will wait to hear from the noble Lord, Lord Ponsonby, on Amendment 3, but I must say that I am not persuaded in advance. As I mentioned at Second Reading, it is usual in some other jurisdictions for prospective-only quashing orders to be made only on condition that the benefit of the quashing extends to litigants who have already brought similar claims to that being adjudicated upon. For that specific reason and as a matter of general principle, I would not be in favour of diminishing the flexibility of the courts by removing their power to impose conditions. I like much better the noble Lord’s Amendment 6 and wait with interest to hear what the Minister has to say about it.

[Lord Beith (LD)]

My Lords, this is an area of complexity and difficulty and I think the difficulties are added to by the content of the Bill as the Government have brought it before us. It was not broken and it was not necessary to fix it in this respect. The noble Lord, Lord Anderson, has just explained how the previous use of common-law powers has dealt with this matter perfectly satisfactorily.

I share with the noble Lord, Lord Pannick, the dislike of anything that lessens the clear impact of the threat of judicial review on the public service. I say threat not because I am hostile to members of the public service but because it is a necessary discipline that things must be done within the law and they know that, if they are not, what they are bringing forward could well be nullified in the courts. The severity of judicial review is important to its role as the discipline for the rule of law.

There are, however, cases which do not fit easily into this pattern and which make an element of retrospection attractive. I think of licensing measures of various kinds—measures that render lawful things that would otherwise be unlawful. There are quite a lot of them in the area of game shooting, for example, and one caused quite a stir over the last couple of years: the power to shoot a predator bird if it is likely to enter an area where it would disturb the wildlife in a site of scientific interest which is subject to protection. In a recent example, there was indeed the threat of an action which did not take place in the end but which led Natural England to accept that its regulations were defective.

In those circumstances, you have people who have behaved in good faith and—they thought—lawfully, who, when the court in a judicial review determines that the action is not within the law, are left in a rather difficult position. You may say that nobody is going to prosecute them once it becomes clear that the law had been nullified. The case may already have started. However, in the real world, having been found to have acted unlawfully, even unwittingly, is not a good position to be in and not one that an employee wants to find themselves in. It presents some difficulties which I think Amendment 6, from the noble Lord, Lord Ponsonby of Shulbrede, attempts to address in so far as it affects regulations and delegated legislation. I will be interested to hear him set it out more fully and the Minister’s response to it.

That qualification—that we should remember the interests and concerns of people whose actions could unwittingly be rendered unlawful—is only a limited qualification to what, in my view, is the fundamental reason to object to what the Government are proposing, which is that the full rigour of the effects of judicial review should be something that the public service is always aware of.

[Lord Hope of Craighead (CB)]

My Lords, I find myself in the same position as my noble friend Lord Anderson and I would like to add just a few words to what he said.

One of the points made in the Explanatory Notes—and I am looking at paragraph 21—is that:

“The diverse circumstances of possible cases make it difficult to assume that any one remedy or combination of remedies would be most appropriate in all circumstances.”


My noble friend Lord Pannick invites us to address subsection (1), read together with subsection (4). If one asks oneself what these provisions are driving at, one has to bear in mind that there is a whole range of diverse circumstances, some of which may affect private individuals very much indeed; in which case, one would be very concerned that their remedies were not being cut out. Other cases deal with administration and circumstances where individuals probably are not affected at all, but the good administration or even the security of the country is very much at stake when a quashing order is made.

I hope I can be forgiven for coming back to the case of HM Treasury v Ahmed in 2010, which I was involved in. I mentioned it at Second Reading and when I was addressing this subject at an earlier stage. It is worth dwelling on that case because it is an illustration of a circumstance where the clauses that are under attack by these amendments could be valuable. It was a case where the Treasury had pronounced an order to give effect to our international obligations under the United Nations Act 1946, designed to freeze the assets of suspected terrorists. That was our international obligation and, understandably, the Treasury made the order. But when the case came before the Supreme Court, it was pointed out that there was no parliamentary authority for such an extreme measure. The Supreme Court unanimously decided that the order should be set aside.

I suggested in the course of the hearing and, indeed, at the end of my speech—the leading speech in the main case—that we should suspend the effect of the order to give time for the Government to remedy the situation in order to avoid the terrorists dissipating their assets. The risk was that the banks that were holding the assets under the order that was under attack would release them under demand from the terrorists. Clearly, that would not be desirable.

I was overruled by six to one for a reason which, I think, demonstrates why these provisions are needed. My noble and learned friend Lord Brown of Eaton-under-Heywood was in the majority of the six against me so perhaps he can explain more fully what their reasoning was. As I understand it, they were saying that if you quash the order you are declaring what the law always was; in other words, the Treasury order was of no effect at all—that was the effect of the order—and, as I think the noble and learned Lord, Lord Phillips, said, it would indeed undermine the effect of the quashing order to suspend it because it would be suspecting that there was something wrong with the decision to quash the order.

I could not understand that and I still cannot understand the sense of it. Indeed, one of the broadsheet papers, having spotted what was going on, asked: has the Supreme Court gone mad? I remember that certain people were rather discomfited by that but it was a very strange thing to do because there was no question of the banks releasing the money. But it was just as well to suspend the order so that they would be comforted by the fact that we were not actually making the order until Parliament had come in and produced a proper remedy to sort it out.

There you are. If you look at subsection (4), the “impugned act” was this order and what I wanted to do was to, in effect, allow the impugned act to be maintained—or, as subsection (4) puts it, “upheld”—so that the matter could be corrected. I cannot see anything objectionable to exercising the power in subsection (1)(b) in a circumstance of that kind. I wish we had had that power available to us at the time. It would have made my life a good deal easier in our discussions. It was not there and any idea that the common law could do that had really been exploded by the decision of the majority.

There is a problem and it would arise time and again if people were looking at the majority decision. There are, or could be, cases where for the protection of the public and in the interests of good administration the possibility of suspending the effect of the order so that the impugned act is regarded as valid until the defect can be corrected will be valuable. I suggest, with great respect to my noble friend, that it would be unwise to remove these provisions from the Bill.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I feel I have to rise at this juncture. I supported Clause 1 at Second Reading and continue to do so today. Like other noble Lords who have spoken since, the noble Lord, Lord Pannick, I suggest, puts the case against the clause altogether too high. I say that Clause 1 and the powers that it confers on the judiciary valuably would add to the judges’ discretion, their powers to do justice not just to the claimant in a particular case but on a wider basis. I, too, was in the Spectrum case—Lord Nicholls’ case with the noble and learned Lord, Lord Hope, and others—and it was not a case in which we thought at that stage and in that context we should exercise this power, assuming we had it, to develop the law.

I am going to disappoint the Committee because I have insufficient recollection—I shall come back to this on Report, I promise or threaten—to deal now with the point from the noble and learned Lord, Lord Hope. But I see the force of what he says and, in a rather different context, I, too, wish to reminisce. I go back even further, a quarter of a century, to a case called Percy v Hall. It was so long ago that Mr Keir Starmer was the second junior with a very white wig. It was a case about by-laws in respect of Menwith Hill, a listening post, a secure station for GCHQ and the Americans, and the by-laws, not surprisingly, precluded public entry.

18:00

However, Mrs Percy, a well-known lady at the time, and a lady friend of hers, on no fewer than 150 occasions within an 18-month period had, in contravention of the by-laws, entered the base and been arrested and detained for short periods. After that, the by-laws were held by a court to be void for uncertainty. She then sued the arresting police constables for damages, wrongful arrest, false imprisonment, and so forth. The case then came to us—I was presiding at the Court of Appeal. We held that the by-laws were sufficiently certain, so that aspect went, but we dealt with the case equally, for all the world as if the quashing order for the by-laws—the order in respect of the invalidity of the by-laws for uncertainty—had been rightly decided. Nevertheless, with some difficulty, we refused to give her damages for having been falsely arrested. Nobody appealed beyond that, but the value of the case for present purposes comes not in my judgment but in the judgment of Lord Justice Schiemann—Sir Konrad Schiemann—who thereafter became our judge for some years in the European Court of Justice in Luxembourg. I will read into the record a small part of his succinct judgment:

“The question is this: once a court has declared an enactment to be invalid, from what point in time does the abrogation apply, retroactively from the time of the court’s ruling (ex tunc) or only from the time of the court’s ruling (ex nunc)?… The ex tunc solution has an initial attractiveness.”

I pause here to say that this is the passage which the noble Lord, Lord Pannick, would very much like to stress:

“The law should never have been made and therefore one must proceed as though it never had been made. To do otherwise will in effect legalise the illegal and the courts are not in business to do that. Moreover, once the courts start to give some effect to illegal legislation, there will be less incentive for the legislator to refrain from such illegality.

The problem with the ex tunc solution is that it will often be the case that, between the making of the enactment in question and the declaration of its invalidity, many people will have regulated their lives on the assumption that the enactment was lawful. Society cannot function if all legislation has first to be tested in court for legality. In practice, money will have been spent, taxes collected, businesses and property bought and sold and people arrested and perhaps imprisoned on the basis that what appears to be the law is the law.”

Towards the end of the judgment, Lord Justice Schiemann pointed out that:

“It may be that, in the development of the law, future cases will draw on that part of our law which is applicable to cases containing a European Community element which shows a considerable amount of flexibility in dealing with this question. There are now many cases which examine the conflict which an ex tunc declaration produces with the principles of legal certainty, acquired rights and legitimate expectation.”

The time has now come for our consideration of that: it is in this very Bill. I continue to urge your Lordships to accept that we need the degree of flexibility that Clause 1 provides.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I love these debates with our legal eagles, especially when they disagree. My only reminiscence of a court was when I was in the dock for not paying my poll tax. Being a very respectable housewife, having made a statement, obviously I paid.

I am feeling a little generous toward the Government —perhaps that is just the effect of recess—so I will accept that there could be situations where a court might usefully add constraints to a quashing order that either delay its effect or limit its retrospective effect. However, the way in which the Government have done this in the drafting of Clause 1 is far too prescriptive. Rather than giving courts these options as tools to deploy in the interests of justice and good government, the Government are trying to force them into being the default position.

Obviously, my legal knowledge is zero, but I will try to inject a little politics into all this, because the reason that the Government are bringing this is, as the noble Lord, Lord Paddick, said earlier, that they are trying to stop their own mistakes. It is already difficult for people to bring judicial reviews. They must be brought as soon as possible and within three months of the decision being complained of. This new scheme in Clause 1 would mean that for many judicial review cases, even if a claimant wins, they lose. That does not make any sense.

The Government have approached the whole issue by seeing judicial review as an enemy to good governance rather than as a fundamental part of enforcing good government. Judicial review is a fundamental part of the checks and balances of the UK’s messy constitution, and the idea that public decisions which are either unlawful, irrational, or procedurally unfair should be left to stand is anathema to good governance. If the Government want to lose fewer judicial reviews, they should simply make better decisions. I know that is not easy for them. I have a lot of sympathy, but they are making a mess. If their decisions are lawful, rational, and procedurally fair, then the Government will not lose. That seems obvious to me. They should not be asking Parliament and the courts to validate their unlawful decisions. To do so is to unpick the rule of law and the delicate system of checks and balances, and now the Government seem absolutely determined to push the UK constitution to breaking point.

Of course, the Green Party’s view is that we should have a constitutional convention and produce a clear written constitution which can be understood by everyone. However, until then, we will oppose the Government’s attempt to stop exposure of their bad decisions. I do not understand why this has been put in when it is so clearly an effort by an elected dictatorship to shut people up.

[Lord Faulks (Non-Afl)]

My Lords, I have the disadvantage of being a lawyer, an interest which I declare, and I was the chairman of the Independent Review of Administrative Law. Our task, as we saw it, was to review whether the balance of our constitution was fairly reflected in particular by the scope of judicial review. We did not make radical suggestions, but one suggestion that we did make—and it was simply a suggestion—was that legislation on what remedies would be available in response to a successful application for judicial review would be required if the courts are to have the option of awarding a suspended quashing order, as the possibility of issuing a suspended quashing order in a judicial review case was ruled out by the UK Supreme Court in Ahmed—and of course, there was one noted dissension, from whom we have heard this afternoon, the noble and learned Lord, Lord Hope.

That was our suggestion. We were not prescriptive as to how best that power should be given to the courts, but what seemed important to us was that there should be some flexibility to stop some of the hard edges which can arise with a quashing order. What seems fundamental to the way the Government have framed this clause is the use of “may” on more than one occasion. The judge, when he or she looks at the act which is being impugned, has the power to do various things and to take into account the sort of things that a judge would probably take into account anyway. We suggested that that flexibility would help do justice to claimants and to defendants, and one should not lose sight of either party in these claims. We have heard the relevant quotation from the judgment of Lord Justice Schiemann on how third parties can be affected by these orders—people order their affairs—but, equally, I accept that it is very important that claimants should not have their remedies in any way frustrated by judges taking an overprescriptive view.

In one of the amendments put forward by the noble Lord, Lord Ponsonby, on behalf on the Labour Party, he is concerned, I think, about potential convictions based on something that might be regarded—retrospectively, at least—as invalid. We considered this in the report, and said the following on page 75:

“in the case where a claimant who brings a civil case against a public defendant, and the public defendant seeks to justify its conduct by reference to some rule or decision under which it operated, the ‘metaphysic of nullity’,

referred to by the noble and learned Lord, Lord Brown, at Second Reading,

“allows the claimant to argue that that rule or decision was null and void and cannot provide a defence to his or her claim.”

We were not concerned about this because, as stated in paragraph 3.67, the

“possibility of such collateral challenges could easily be retained under the more flexible approach to the consequences of unlawful administrative action that we favour. The courts could simply take the position that an administrative rule or decision cannot be relied on as a basis for criminal proceedings, or as a defence in civil proceedings, if it would have been the subject of a quashing order or a declaration of nullity had that rule or decision been the subject of a timely application for judicial review.”

So, I understand the concern; I simply do not think it exists in the way the clause is framed.

I am afraid I simply fail to follow why the noble Baroness says this clause is creating an elected dictatorship. It is giving judges a power to do what is appropriate in the particular case. In some ways, it may allow judges to make quashing orders they might have been reluctant to make before, because of the hard edges of a quashing order. As it is, they have sufficient flexibility to tailor the remedy to what is appropriate in the case in order to reflect the balance between the claimant and the defendant. I am disappointed too that the noble Lord on the Labour Front Bench opposes this clause entirely. Some of the rhetoric about the ability or desire to constrain judicial review did not seem to be reflected at all in the way this Bill is framed.

Governments of all colours, from time to time, to some extent resent judicial review. For example, we looked at a great many comments by the Labour Government—even that of the noble Lord, Lord Blunkett, who is no longer in his place—about the inappropriate comments by judges and restrictions on the ability of the Government to govern. There is the example of the Human Rights Act preventing the Government—so they said—from doing what they needed to do to deal with the threat of terrorism. All Governments from time to time find this irksome. Simply to oppose a provision in a Bill because it has the subject of judicial review does not seem to me to be a very scrupulous and sensible way to approach legislation.

[Baroness Jones of Moulsecoomb (GP)]

Before the noble Lord sits down, may I correct him? I did not say that this clause suggested an elected dictatorship. I am saying that an elected dictatorship is running the country at the moment, and we see that in every single Bill that comes to this House.

[Lord Faulks (Non-Afl)]

I am grateful for that clarification, but I am afraid to say that I still fail to follow how bringing forward a fairly balanced Bill is somehow the Government reflecting an elected dictatorship. But I hear what the noble Baroness says.

[Lord Falconer of Thoroton (Lab)]

My Lords, this is a very important debate and in this part of it, I will focus only on whether it is appropriate to empower a delayed quashing order—as proposed in new subsection 1(a)—and whether it is appropriate to give a power to say it shall be prospective only. My overall position is that if the courts want these powers, let the courts develop them. Do not do it by legislation.

18:15

In relation to the first of the two powers, a delayed quashing order that one should assume would have retrospective as well as prospective effect, I do not think that is too much of an incursion. That is not altogether unsensible. It deals with—if I may call it this—the Ahmed point. It avoids what the noble and learned Lord, Lord Hope, thought would be an affront, because in effect, it meant there was no protection against what most people would regard as a wrong. At the same time, it would force the courts to accept the illegality and say it has got to be got rid of, but it will only be got rid of in a month or two. As the judicial review by the noble Lord, Lord Faulks, identified, it also deals with the sort of case where the Government have done something in a way that fails to comply with a particular requirement. That requirement could be corrected, and it might be that the same conclusion is reached if you delay the effect of the quashing order until there is a chance to correct that. That may well do justice in the individual case. I can live with that.

What is terrible—the independent review of administrative law by the noble Lord, Lord Faulks, supports this view—is the idea that the court should have the power to say, retrospectively, that the fact that this act by the Executive was unlawful shall not have any effect going backwards. Drilling into the law, Clause 1(5) states:

“Where … an impugned act is upheld by virtue of subsection (3) or (4), it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”

I take that to mean, in relation to a subsection 1(a) case, that the act remains unimpaired until the quashing order takes effect, at which point it is unlawful forwards and backwards. But if it is a prospective only quashing order, then, for all purposes, it is lawful going backwards. So, every prosecution brought on the basis of the unlawful regulations stands. Every piece of tax raised in the past as a result of the unlawful order stands, even though the law has required that prosecutions can only be brought on a particular basis. Even though the law has required that tax can only be raised on a particular basis, the effect of the prospective only order is that those laws can be set at naught by the judges. That, in my view, is going much too far. It creates huge uncertainty, and I am strongly against it.

I believe that the sorts of wrong referred to by the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope, can be dealt with by prospective only. In the example the noble Lord, Lord Anderson, gave—the entirely bona fide but, as it transpired, unlawful copying in the British songwriters’ case—a suspended quashing order that gave the Government six months to validate would be the answer.

Do not give the judges the power to say everything going backwards is fine. That is for the legislature or the Executive to sort out, not the judges. Give the legislature or the Executive the time to sort it out by a suspended quashing order, but do not give the judges the power to set the law to one side for the past. That is not their role. Their role is to determine whether or not the Executive have acted in accordance with the law. Their job is to hold them to the law, not to free them from the law. So, my strong objection is to proposed new Section 29A(1)(b), which is very much a remedy too far.

[Lord Hope of Craighead (CB)]

The noble and learned Lord was kind enough to refer to the case that I was referring to. However, I was suggesting that the court should have power, in effect, to direct that the order made under the United Nations provisions be treated as valid until Parliament could introduce a measure giving authority to the making of the order. That is indeed what happened afterwards; Parliament had to remedy the problem and some time was needed to allow it to do that.

The banks were holding on to the money; of course, they were not going to release it unless it was demanded by these suspected terrorists, but had they demanded it, it might have been quite difficult for the banks to refuse to release some money. My point was that something should be done to prevent that happening. The last thing one wanted was to give these terrorists the opportunity to make off and dissipate all the assets that had been protected by the order made under the international obligation.

The problem that the noble and learned Lord is grappling with is that there is a huge range of circumstances in which these provisions may come into effect, some of which, I quite agree, would be offensive. I would hope that the courts would be sensible enough not to exercise the power. There are various provisions later in the Bill, which we will discuss and which might be better removed to preserve the court’s flexibility. The question is whether the power should be there at all. My point was that, yes, it should be there because there can be cases where the interests of good administration, and possibly national security, require the possibility of doing that to prevent the event—or whatever it was that the defective order was designed to prevent—taking effect.

[Lord Falconer of Thoroton (Lab)]

New subsection (1)(a) deals with that point. The effect of the order stood until the Supreme Court set it aside, and everybody would accept that that is the position. If the Supreme Court had had new subsection (1)(a)—which it could have—it could have said that the order freezing the money continues for six more months and in six months’ more time it is then quashed. That is my understanding of a (1)(a) order: the quashing order means getting rid of the restraint on dealing with the money and does not take effect until the date specified in the order.

If the Supreme Court had said, “This order stands until six months’ time”, and a bank had then been approached and told, “Excuse me, the terrorists want their money now”, the answer would have been no because there would still, in effect, be a restraining order. It would have dealt with the problem that the noble and learned Lord posits; I think Clause 1(1)(a) would have dealt with it.

[Lord Hope of Craighead (CB)]

I recommend that the noble and learned Lord refers to Treasury 2 because I made exactly the point that he was trying to make and I was overruled by the others. They said, “You can’t do that”, and they would not make the suspended order. We are in Committee and we cannot prolong the discussion, but that is the problem that I was faced with. I tried to do exactly what the noble and learned Lord suggested but I was overruled. That is the problem that I think the Government are trying to address; the Minister will correct me if I am wrong.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I enter this discussion with some trepidation. Nevertheless, it raises very important points of principle, which have been essentially analysed in the last few minutes and the last few exchanges. As we have heard, the effects of Amendments 1, 4 and 5, in my name and those of the noble Lords, Lord Pannick and Lord Ponsonby, would be to remove from the Bill the power to make a quashing order prospective only. That is the problem: it is prospective only. We are not arguing for the removal of the power to delay. I will come back to that in a moment, but I start from the position that I agree entirely with the analysis of the noble and learned Lord, Lord Falconer, that a (1)(a) order could solve all the problems outlined by the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson.

I venture to suggest that it is significant that when the committee chaired by the noble Lord, Lord Faulks, considered its recommendations for this type of order, it recommended only the power to delay, not the power to validate past unlawful action in the way that a quashing order made prospective only would do. Our amendments are premised on the proposition that, when the courts find that an Act, or a decision or regulation of any organ of government, is unlawful, it should not then be able to decide only to quash it with future effect. As the amendment’s explanatory statement puts it, and as the noble Lord, Lord Pannick, explained, the proposed power would thereby validate

“what would otherwise be quashed as unlawful”,

and unlawful for all purposes. The noble and learned Lord, Lord Falconer, emphasised the provisions in proposed new Section 29A(4) and (5) for the all-embracing effect of a prospective-only quashing order.

New subsection (4) makes it absolutely clear that the impugned act—which is ex hypothesi an unlawful act because a quashing order is being made—is to be upheld in any respect in which the provision under new subsection (1)(b) prevents it being quashed. That has no flexibility. If the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope—as well as the noble Lord, Lord Faulks, as referred to in his speech—are seeking flexibility, a (1)(a) order is not the way to do it. Our Amendments 1 and 4 do not seek to debar a court on judicial review from permitting either officials to put right a decision taken unlawfully by remedying the unlawfulness or, as the noble Lord, Lord Pannick, pointed out, Parliament to alter unlawful regulations without the need to wield the blunt instrument of a quashing order immediately.

We suggest that the power to suspend by delaying the quashing order eliminates that risk. It mitigates the risk that a quashing order would have the effect of indiscriminately overruling all government action, for example a regulation, without distinguishing between what was lawful, or ought to be lawful, and what was unlawful. We say that enabling a decision to take effect on a delayed basis would enable the law or the government action to be corrected so as to regularise the unlawful government action. So, the quashing order, if it took effect immediately, would be senseless, but it must stand once the delay is over, to deal with the past unlawfulness. It deals with the Ahmed point, as suggested by the noble and learned Lord, Lord Falconer, and it is a far cry from the courts permitting past unlawful action to go uncorrected.

The prospective-only quashing order power undermines the central principle on which judicial review jurisdiction is based: government action is required to be in accordance with law, and if it is not in accordance with law, it will be corrected. The noble Baroness, Lady Jones of Moulsecoomb, sensibly conceded in her speech that there may be conditions or limits but they can all be dealt with by the power to delay. A crucial point that a prospective-only order ignores is that “corrected” means corrected for everyone; that is, all litigants, future and potential, even those who have not yet brought cases.

18:30

The point about taxation or unlawful charges is very important in this context. It may be that many people, faced with small charges which they suspect are unlawful, do not bring action to challenge those charges on the basis that they are unlawful. When an action is taken by litigant A, however, it is only right that litigants B to Z, who have paid up their charges which turn out to be unlawful, ought to have them refunded because the basis on which they were charged was outside the limits of what the Government were entitled to charge. All citizens are entitled to the benefit of a successful challenge and are entitled to be treated lawfully.

Against this argument is essentially that the courts should not have the power to treat an unlawful act as if it had been lawful. The Minister mounts the argument, which he mounted at Second Reading, that it is entirely reasonable for the courts to have that power in their discretion. He argues that Clause 1 merely gives the courts discretion to suspend or to limit the temporal effect of a quashing order, that the courts would be entitled to find good reason not to exercise the Clause 1 powers and that that is all perfectly reasonable—but it is not. Leaving aside proposed new subsection (9), which is the presumption to which we will turn, and proposed new subsection (8), which seeks to dictate how the court should exercise its discretion, what the court is being expressly told to do by these provisions is in the default case to ignore the fact that a Minister or other government agency has acted outside their powers and ratify what is an abuse of power retrospectively.

Far from the Bill being directed, as has been suggested by its proponents, at protecting parliamentary sovereignty from busybody courts, it really is an attack on parliamentary sovereignty. The noble Lord, Lord Pannick, pointed out forcefully that it is the job of Parliament to correct parliamentary errors. If Parliament has put limits on government action that the Government have then ignored or exceeded, then it is for Parliament to correct those limits.

Amendment 6, in the name of the noble Lord, Lord Ponsonby, is a valiant attempt to deprive the court of the power to treat an unlawful act as lawful in certain—

[Lord Faulks (Non-Afl)]

I am most interested in the way in which the noble Lord analyses this. Is he essentially saying that this Bill is giving too much power to judges—power that ought to be vested in Parliament—and that a judicial review reform of this nature goes far too far and that judges should not be allowed to have these powers in case they exercise them inappropriately?

[Lord Marks of Henley-on-Thames (LD)]

It is a two-pronged attack. I do not believe that the judges should have the power to make lawful what they have already found is unlawful with retrospective effect. That means that prospective-only orders are, in principle, wrong. However, if there were a case for changing regulations or for altering government action so as to bring it within the limits that Parliament wanted, that is for Parliament; that is for legislation, as the noble and learned Lord, Lord Falconer, argued. It is not for the courts to say, “We find the act unlawful, but it is only going to take effect as unlawful for the future.” It is, in the example of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, an ex tunc approach; but an ex tunc approach, frankly, is right, whereas the removal of flexibility by ruling out the Part A power—the power to delay—would be a removal of flexibility, which would be unnecessary, and we support that. We do not support the presumption, but that is a different point.

The real important point, about retrospective charges and the points in Amendment 6, in the name of the noble Lord, Lord Ponsonby, is that they accept the unlawfulness—if that was the only amendment that was passed—but would go on to say, “You can rely on the unlawfulness as a defence in criminal proceedings and you can still apply for other financial remedies for judicial review, but the quashing order will only take effect prospectively.” That, in my respectful view, is to fudge the whole point of unlawfulness, and the universality and the universal application of judicial review, which lies at its heart.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I agree with the opening remarks of the noble Lord, Lord Marks—I too enter this discussion with some trepidation. I will first set out the Labour Party’s overall view, since the debate on this group has been fairly wide-ranging. We believe that the proposals for judicial review in Clauses 1 and 2, which we will come to in group 4, are regressive and uncalled-for. More especially, when many aspects of the justice system are in crisis, we do not believe that there is a need for this review in the first place. The Ministry of Justice is trying to fix something that is not broken, a point made by the noble Lord, Lord Beith. We believe that overall, the Government’s changes to the judicial review process will have a chilling effect on justice, deterring members of the public from bringing claims against public bodies and leaving many other victims of unlawful actions without redress. These are proposals that will make it harder for individuals to hold this Government to account. As a result, unlawful decisions made by this Government, or by any government or public body, will go unchallenged.

I put my name to Amendments 1, 4 and 5. The noble Lord, Lord Pannick, as ever, introduced those amendments very fully. The noble Lord, Lord Anderson, asked me about Amendment 3. In my brief, I am embarrassed to say, it says that Amendment 3 is consequential on Amendments 1, 4 and 5; I have had a look at it while the debate has been progressing, and I cannot add any more to that. It may be that what I have been provided with is wrong in that respect.

Amendment 6 would, as set out in the explanatory statement,

“protect collateral challenges by ensuring that if a prospective-only or suspended quashing order is made, the illegality of the delegated legislation can be relied on as a defence in criminal proceedings. This would prevent individuals from being criminalised under defective and illegal ministerial powers.”

The noble Lord, Lord Faulks, said that he did not think that the problem existed. It would be very useful if the Minister could confirm that he too does not think that the problem exists, because, in a sense, it is an inquiry about whether there is any potential for this problem existing. It would be helpful if the Minister were to confirm what the noble Lord, Lord Faulks, has said.

My noble and learned friend Lord Falconer entered into a very interesting debate with the noble and learned Lord, Lord Hope, about the development of suspended quashing orders through common law and whether that was appropriate. My noble and learned friend was very much against proposed new subsection (1)(b); he thought it was quite wrong to give power to judges to, effectively, change the law unilaterally and retrospectively. He argued very strongly that that was not the case.

That point was dwelled on by a number of noble Lords. It is not the point, really, that comes out in this group. We may return to some of the elements which were discussed on that point, but as I said, I enter this discussion with some trepidation, as I understand the amendments in my name—Amendments 1, 4 and 5—much more clearly. We will be debating further amendments to quashing orders in the next group, where we can further look at other prospective amendments. For now, I lend my support to the amendments in the name of the noble Lord, Lord Pannick.

[Lord Wolfson of Tredegar (Con)]

My Lords, the previous two contributors to the debate noted that they spoke on these matters with some trepidation. In responding to the amendments in this group, I declare a non-interest: unlike so many of your Lordships, I confess that I did not sit on, or even appear in, any of the various cases cited to the Committee. Therefore, with that significant handicap, I will instead start by reminding the Committee of the rationale for including Clause 1 in the Bill. However, in these remarks I will not address the list of factors in subsection (8), or the so-called presumption in subsection (9), because we will deal with those in later groups.

The clause aims to expand the remedies available in judicial review proceedings to provide more flexibility to the courts. As I put it at Second Reading, we want to put another couple of remedial tools into the judicial toolbox so that they can be used when appropriate. I say to the noble Baroness, Lady Jones of Moulsecoomb, that this has nothing to do with dismantling judicial review or an elective dictatorship. The Government and I recognise the importance of judicial review to good government, which is lawful government. But one also has to recognise that, as the noble and learned Lord, Lord Hope of Craighead, reminded us, we have lots of different sorts of cases where we want flexibility of remedy—and that judicial review applies to many decision-makers who cannot sensibly be described as “government” in the way that the noble Baroness was using that word.

The current position is that quashing is typically both immediate and retrospective, depriving the decision of ever having had legal effect. It is as if the decision had never been made; it is a legal nullity. This makes a quashing order something of a blunt instrument, and it can have unintended consequences when applied to nuanced problems.

The clause seeks to give the court a discretion to change quashing orders in two ways, as we have heard. The first is to allow the effects of a quashing order to be suspended for a period, as the court sees fit. The Independent Review of Administrative Law—I listened very carefully to the contribution of its chair, the noble Lord, Lord Faulks—recommended this additional remedial flexibility, and the clause therefore seeks to implement its recommendation. I agree with the noble Lord that the word “may” is critical to the way that this clause operates. The suspended quashing order allows courts to suspend the effect of an order for a period of time to allow the decision-maker to prepare for the effect of the quashing. This could give them time lawfully to make a new decision before the unlawful decision is quashed or to implement some other transitional arrangements.

The amendment in the name of the noble Lord, Lord Ponsonby of Shulbrede, which aims to remove the whole clause, would remove this new remedy, which I had thought was broadly supported. Although I heard the noble and learned Lord, Lord Falconer of Thoroton, say, “If the judges want this power, they can create it”, we have heard that it is far from clear, to put it at its lowest, that the common law would actually enable the judges to do this. More importantly, there are circumstances where suspending a quashing order will allow the court to provide a remedy that better serves the interests of justice, and we should therefore ensure that it is a tool available to the courts.

The second modification, which would be removed by Amendment 1 and the consequential Amendments 4 and 5 in the name of the noble Lord, Lord Pannick, is the ability to make a quashing order prospective only. I accept that that has been more controversial in the Committee this evening, so I will set out some of the parameters of the debate, as the Government see it.

We have heard examples from those in the other place, and indeed from some noble Lords this evening, where, prima facie, a prospective quashing order could cause significant injustice to the claimant, the applicant or third parties. There will be cases where a prospective quashing order could cause injustice, which is why we are not forcing the courts to use the powers in any case where it would cause injustice or, indeed, be inappropriate. Therefore, I suggest that we leave those discussions aside, because there is remedial flexibility, and concentrate on whether prospective orders make sense in principle, given the wide variety of cases that come before the courts. We could therefore answer the question: are there cases in which their use could be appropriate?

18:45

An in limine—I can use that sort of term in this Committee, I think—objection was put down by the noble Lord, Lord Pannick, at Second Reading and this evening. At Second Reading, he said:

“It cannot be right that a court should have a power to decide that something that is unlawful shall be treated as lawful”.

He went on to say that a prospective order would require the judge

“to assess the merits of competing policy factors that it is … inappropriate for the judiciary to assess.”—[Official Report, 7/2/22; col. 1369.]

Those are separate but, I accept, related points.

On the first point, and with apologies for getting into matters of semantics, the word “treated” is key in subsection (5). Subsections (4) and (5) stipulate that, when a prospective remedy is used, the decision in question that is upheld

“is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”

The Bill does not provide that, when a prospective quashing order is made, the judge is determining or deeming that the decision in question was in fact lawful. In fact, the judge is determining the precise opposite. We must be clear that what the court is doing here is not making an unlawful action lawful—we are thankfully not returning to the days of Charles I. The court, in this clause, is providing how the unlawfulness should be manifested or dealt with—“treated”. This goes back to the nature of remedies—

[Lord Falconer of Thoroton (Lab)]

If the court determines that regulations that impose a tax charge are unlawful but decides that this should be prospective only, is the consequence that the taxes raised before the date are “treated” as having been lawfully raised?

[Lord Wolfson of Tredegar (Con)]

If the noble and learned Lord will forgive me, I will come to precisely that point later in my speech, because it arises under the amendment put down by the noble Lord, Lord Ponsonby.

[Lord Falconer of Thoroton (Lab)]

I am raising it now because the noble Lord is placing huge emphasis on the word “treated”. I would be interested to know whether that word means that tax raised under unlawful regulations in the past remains treated as if it were raised lawfully.

[Lord Wolfson of Tredegar (Con)]

I will come to this point because these are two sides of the same coin. The short answer to the noble and learned Lord’s point is that it would be almost incomprehensible that a court would use a prospective order in circumstances where people have paid taxes that were necessarily unlawfully raised—so the question would not arise. It is a nice theoretical question, but it would not arise. That is why I will deal with it later, and I am happy to take further interventions at that stage, if we can try to deal with the points separately. I see where the noble and learned Lord is going, but at some point one has to live in the real world and consider whether a prospective-only order would be appropriate. Remember, the court has to look at the factors in subsection (8), including paragraph (f), which refers to

“any other matter that appears to the court to be relevant.”

It also has to look at where subsection (9) says

“unless it sees good reason not to do so.”

The idea that that could survive an unlawfully raised tax case is, I suggest, almost incomprehensible.

I will go back to where I was. We are not making an unlawful act lawful. The real question is: what is a remedy at all? In particular, what is a quashing order? This is something that has, frankly, bedevilled public law for some time. It is not clear that public lawyers, or indeed anyone else, have come up with a good answer to it. I suggest, however, that the remedy that the court gives, whether a quashing order or an order of prohibition, does not determine whether something was unlawful or not. It is the judgment and any declaration as to the state of the law that do that. The remedy decides what the effects of that unlawfulness should be, because there are cases where the court will declare that something was unlawful but not actually give a quashing order—but the action is still declared unlawful.

So this new power allows the court to modify the remedial effect of the quashing order so that, up to a point, the action or decision in question would be treated as being valid for all intents and purposes. The court is therefore doing its traditional job of declaring what the law is and what the law was, but it has greater flexibility in determining the real-world effects of its determination. I therefore respectfully agree with the way in which the noble Lord, Lord Anderson of Ipswich, put it. I heard his slightly in terrorem threat as to when we come to the presumption—but I will deal with that at that time.

That approach is consistent with public law as we understand it today. Judges are faced with situations where, despite a finding of unlawfulness, a quashing order does not issue, for a variety of reasons. I do not think therefore that it follows on principle that a finding of unlawfulness should always result in the voiding of the decision ab initio. I am grateful therefore for support on this point from the noble and learned Lords, Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood, although I will avoid getting into any relitigating in this Committee of either Spectrum or Ahmed—we will leave that for later groups and possibly further editions of memoirs.

We need to avoid an approach which would take us right back into the straitjacket of nullity, and the academically interesting but practically frustrating doctrines that characterised decisions from Anisminic to Ahmed. We are not giving the court a binary choice of quashing retrospectively or giving declarations that state the law but do not necessarily deal with the effects of the impugned decision, even if it is declared to be unlawful. That is my response to the first main point from the noble Lord, Lord Pannick.

His second contention is that the new powers draw the courts into policy questions. I say respectfully that we are simply not doing that. We are asking the courts to do what in many ways they do already, which is to assess the possible effects of their judgment on the parties and the public interest. It may well be the case that having given the courts these two new tools—I think the noble Lord, Lord Faulks, made this point—they do issue quashing orders in cases where they would not have done so if the only option open to them was an ab initio quashing order. Well, so be it. If Parliament has given them these extra tools, that is the way matters will work out. Subsection (8) sets out what we believe to be the pertinent factors, but we made it expressly a non-exhaustive list.

Courts have long recognised the principle that the administrative burden of rectifying the effects of a past decision can outweigh its potential benefits, especially if the Executive are rushed into action. Importantly, there are cases where the courts have recognised that regulations or policies that have a wide effect can create expectations for third parties: plans could have been made, contracts signed and money spent, all in pursuit of what everyone thought was a lawful policy.

We must not get lured into the example of somebody paying tax under regulation which turns out to be unlawful. People might have signed contracts on the basis of a regulation which turns out to be unlawful. They may have spent money or set up businesses. To undo all that could give rise to far more injustice than making sure that present and future situations are rectified. The example I gave at Second Reading, which the noble Lord, Lord Anderson of Ipswich, also mentioned, was the case of BASCA v Secretary of State for Business.

There is a further benefit to good administration, which is really what judicial review is all focused on anyway, which is that public bodies can make good a decision without having to revisit what can sometimes be long and drawn-out policy processes for the sake of a small error.

In cases relating to Heathrow expansion, for example, one point of contention was whether the Government had to take into account the Paris climate agreement. If the court had ended up finding that the decision not to take it into account was unlawful, it would surely have been far better to give a prospective order, so that the overall process of expansion was protected and the decision could be amended properly to take into account the relevant agreement. Quashing retrospectively would mean that the entire process would need to begin again from square one. A prospective remedy would allow the unlawfulness to be corrected at lower cost and in a shorter time, while still recognising—I underline this point—that the initial decision was unlawful.

I also emphasise the points in subsection (8)(c), which ask the court to have regard to

“the interests or expectations of persons who would benefit from the quashing of the impugned act”

and subsection (2), which allows the court to set conditions on the remedy. I hope that those provisions assuage any concerns that individual rights would be prejudiced—on the contrary, they ought to be taken into account by the court.

I have gone into some detail on that point because it was focused on by the Committee. I hope I can deal with the other amendments slightly more quickly with that background.

Amendment 3 removes the ability of the court to attach conditions to a suspended or prospective-only quashing order. These are intended to give the court maximum flexibility. For example, a court might want to make an order prospective only to reduce administrative chaos, but only on condition that parties who may have lost out financially are properly compensated. The conditions may not be necessary in every case, but it is an option for the court where appropriate.

Finally, Amendment 6 aims to ensure that the invalidity of quashed regulations can be relied on in criminal or civil proceedings. As I understand it, the concern of the noble Lord, Lord Ponsonby, is twofold. First, defendants could be prosecuted under regulations that have been ruled to be unlawful yet, because of the powers in this Bill, are treated as valid. That point was made by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks.

Secondly, this might mean that claimants or victims would be less able to obtain damages, restitution or compensation. As I have suggested already, the amendment is unnecessary. As the noble Lord, Lord Faulks, said, collateral challenge is not at issue. The Bill does not necessarily prevent such challenges, because it gives the courts powers to formulate the remedies appropriately. In circumstances where provisions which create criminal penalties are being challenged, and have been challenged successfully, I find it very unlikely that a court would decide to use a prospective-only remedy. That is not only because the list of factors includes in subsection (8)(c)

“the interests or expectations of persons who would benefit from the quashing of the impugned act”

and, in subsection (8)(f),

“any other matter that appears to the court to be relevant”.

That would, I think, mean that the court would certainly find a “good reason”—to use the language in subsection (9)—to use a retrospective quashing order, so that any persons, for example, who had paid tax would have a remedy in restitution.

In similar cases where a court considers a suspended remedy, the ability to set conditions on the order would also mitigate any risk of injustice. For example, a court could use a suspended quashing order with the condition that the authority in question does not take any further enforcement action. This goes back to my main point about maximum flexibility. For those reasons, I invite the noble Lords who have tabled these amendments not to press them.

19:00

[Lord Pannick (CB)]

I am very grateful to the Minister and to all those who have spoken in this interesting debate. It is important to emphasise that this is not a technical legal issue. We are concerned here about the integrity of judicial review—a vital safeguard of the rights of all citizens.

I agree with the noble and learned Lord, Lord Falconer of Thoroton, that what is objectionable about Clause 1 is the power of judges to wave a judicial wand and to say that what they have found to be unlawful shall be treated—the word emphasised by the Minister—as if it were lawful.

If there are cases of concern—the noble and learned Lord, Lord Hope, said that there are or may be—a suspended order is quite sufficient to give Parliament time to act. Those in Parliament, not judges, are the appropriate people to validate that which the court has found to be unlawful. New Section 29A(1)(a) meets that need. Indeed, that was the issue in the Ahmed case, where the noble and learned Lords, Lord Hope and Lord Brown of Eaton-under-Heywood, had, as judges say, the misfortune to disagree with each other. It was what the noble Lord, Lord Faulks, recommended in his review.

My noble friend Lord Anderson mentioned the comments of Lord Nicholls for the Appellate Committee in the Spectrum case that prospective overruling might—I emphasise “might”—be appropriate, although not in that case. That was in June 2005. Such a power has never been exercised or come close to being exercised in any case since.

There is an important difference between the common law not ruling out the possibility of prospective overruling and Parliament including such a power in this Bill. I cannot understand why this provision is in the Bill. As I said, it was not recommended by the noble Lord, Lord Faulks. What has provoked the need for new Section 29A(1)(b)? The Minister said that the Government want to put new tools in the judicial toolbox—but why this tool? What case has provoked the need for this provision? When have judges ever lamented the absence of such a power?

My noble and learned friend Lord Brown of Eaton-under-Heywood emphasised the need for flexibility, but Clause 1 is not flexible in an important respect. If this power in new Section 29A(1)(b) is exercised, then under new Section 29A(5), as the Committee has heard, the impugned act

“is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”

There is nothing flexible about that. With all due respect, the Minister’s reliance on “treated” is a matter of pure semantics; “for all purposes” means always and for all persons, whatever their circumstances, and even though they have not been represented before the court.

Therefore, I say to the Committee that there is no need for this power in new Section 29A(1)(b). It is inappropriate in principle. But for today, of course I beg leave to withdraw this amendment.

[Lord Anderson of Ipswich (CB)]

My noble friend just said that no case has come close to applying a prospective-only quashing order since a unanimous House of Lords said in the Spectrum case that they could imagine such cases. How does he explain the British Academy of Songwriters case, which he has heard both the Minister and I develop, and in which Mr Justice Green, as I read his judgment, gave precisely such an order? I should say that that is not the only case.

[Lord Pannick (CB)]

If he gave such an order, why is there a need for Parliament to step in and deal with the matter? In any event, such an order is more appropriately dealt with by a suspended quashing order so that Parliament, the appropriate authority, can deal with the matter if it sees fit to do so.

Amendment 1 withdrawn.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

Amendment 2, not moved?

[Lord Ponsonby of Shulbrede (Lab)]

No, I am moving Amendment 2.

Amendment 2

Moved by

[Lord Ponsonby of Shulbrede]

2: Clause 1, page 1, line 9, at end insert—
“(1A) Provision under subsection (1) may only be made if the court is satisfied that it is in the interest of justice to do so.”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will speak to my various amendments quite briefly, because while the detail of the amendments has not been covered, the overall debate around quashing orders has.

Amendment 2 seeks to limit the use of any new remedies issued under Clause 1 to where, in the court’s view, it is in the interests of justice.

Amendment 7 clarifies that the factors which the court considers before making a modified quashing order are a matter for the court’s discretion.

Amendment 8 removes one of the factors to be given consideration by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect. The removal of this factor is intended to rebalance the factors to be given consideration so as not to disadvantage the claimant unfairly.

Amendment 9 would make an addition to one of the factors to be given consideration by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect. This amendment would make it clear that the provision of a timely remedy to the claimant is a factor to be given consideration.

Amendment 10 would require the defendant to identify what the interests and expectations of persons who have relied on the impugned act are and to explain these to the court.

Amendment 11 would remove the requirement to take account of actions which the public body proposes or intends to take but has not yet taken. Such actions are too uncertain to form a basis for suspending a quashing order or making it prospective only. Any intentions indicated to the court could change in light of subsequent developments, leaving those affected potentially without any recourse.

The intention behind Amendment 12 is to clarify that the principle of good administration includes the need for administration to be lawful. The Executive and all public bodies are not entitled to act unlawfully. Therefore, in a society based on the rule of law, administration may rationally be categorised as fully good only when it is lawful.

Amendment 15 removes the extra weight which would otherwise be given to subsection (8)(e) by the courts when applying the test created in subsection (9)(b) to establish whether the statutory presumption is applicable.

This range of amendments looks at other aspects of Clause 1. I think we had a wide-ranging debate about Clause 1 in the first group, and I beg to move Amendment 2.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

I apologise for getting things into a state of confusion—or nearly—by thinking that Amendment 3 was to be moved.

[Baroness Chakrabarti (Lab)]

My Lords, I will take the opportunity to jump in briefly at this stage, even though the first three groups to some extent cover similar territory. I know that in the next group we will get into the presumption in particular.

I speak now having had the considerable benefit of listening to the debate on the first group, which the Minister described as being about just giving an extra tool to the judicial toolbox, to be used where appropriate. I think that was the thrust of his remarks. That begs the question of whether it is just a tool in the box and what is and is not appropriate.

It seems that we are dealing with a judicial review of administrative action—of executive action. I know that the Minister said, “Calm down, dears, it’s not all about government as we would understand it; it is about all sorts of administrative action”. I am sure that is right. However, the principle is the same. This is executive action. Some of it is very significant for citizens’ lives and some of it less so. However, it is the job of the judiciary and Parliament, together in different ways, to hold executive action to account.

The traditional method has worked rather well. There are discretionary remedies for the judiciary and the power to legislate for Parliament, including, in extremis, to legislate retroactively. We do not like that, but if anybody is going to do it, it should be Parliament, because it is sovereign and has the democratic legitimacy to do so. That is the debate between my noble and learned friend Lord Falconer of Thornton and the noble Lord, Lord Pannick, on one side, and the Minister and his supporters on the other.

To that, I think the response comes from the Minister, “Actually, the new Section 29A(1)(b) is not doing what you think it’s going to do. This is just remedies; it is not about rewriting history and saying that the unlawful decision or subordinate legislation was always lawful. It is just about the effect of the quashing, not about changing history”. If that is the genuine intention of the Government with this provision, I respectfully suggest to the Minister that some clarification and comfort other than reassurances from the Dispatch Box may be required. That is to deal with the fact that we are not actually giving a retroactive legislative power —let alone duty, to which we will come—to the court.

Maybe, if I can be helpful, there is some room for explicit clarification to that effect. Having listened to the previous group, I too do not see the point of new Section 29A(1)(b) if this is just about giving extra tools to the judicial toolbox to use where appropriate. In all this I am mostly worried about the people not in the courtroom—the people who are not the litigants in the particular case but who rely on that particular judicial review, brought by one individual or a small group of individuals who had the means, either because they had personal means or the benefit of legal aid, which is not widely available these days. I am worried about anything that would shut out the possibility of good administration being provided for all the people—there could be hundreds or thousands or millions—who were not in the room and could then be shut out from justice because of something that it was not appropriate for the court to do. Why? The courts, unlike Parliament, are not best suited to polycentric decision-making. If there is to be emergency legislation because of a particular decision around illegality of regulations and so on, it is better dealt with in Parliament because Parliament will be able to look at all the potential cases in the round and will have the legitimacy to so act. The Government cannot have it both ways.

By the way, I agree with the noble Lord, Lord Faulks: Governments of all stripes get irritated with judicial review from time to time. However, whoever is in power, it is not for politicians to have it both ways and criticise judicial overreach on the one hand but then ask the judges to do their dirty work for them when they have been found to act unlawfully on the other.

19:15

[Baroness Jones of Moulsecoomb (GP)]

I do not see this as a tool in the toolbox but as opening up a nest of snakes. When you use the phrase

“unless it sees good reason not to do so”,

it opens up some real complexity if people start to make further appeals on the basis that there was good reason not to do so or good reason to do so. I do not see that this is any sort of simplification. The Government will probably regret opening this system of quashing because it will add complications when the Government presumably want it to run more smoothly. I cannot see that there is any point to this. I hope that all those legal eagles over there will start circling round our little legal lamb here and explain to him that he has got this completely wrong.

[Lord Falconer of Thoroton (Lab)]

These are important amendments. They address the botched way that, if these powers are to come in, the exercise of discretion is to be applied. My noble friend Lord Ponsonby is saying that you would use what the noble Lord, Lord Wolfson, describes as the tools in the toolbox only if it is “in the interests of justice to do so”. That is the starting point. That sounds to me a lot more sensible a starting point than the very strange wording in new subsection (9), which is, if the court is to make a quashing order in accordance with new Section 29A(1),

“the court must exercise the powers in that subsection accordingly unless it sees good reason not to do so”,

and the condition is that

“as a matter of substance”

an order under new subsection (1) would

“offer adequate redress in relation to the relevant defect”.

Obviously, there is a difference between adequate redress on the one hand and what is the best order in the interests of justice overall on the other. Can the noble Lord tell us why this strange wording has been adopted if all that is intended is the broadest possible discretion in relation to using these two new tools in the toolbox?

My noble friend Lord Ponsonby’s amendments also relate to new Section 29A(8). The Minister said, in reference to prosecutions and taxation, that you would never make a new subsection (1) order, whether a delayed quashing order or prospective only one, and that is clear, he says, from new subsection (8). He relied in particular on new subsection (8)(c), which refers to

“the interests or expectations of persons who would benefit from the quashing of the impugned act”.

If I have been prosecuted under a regulation that was unlawful, I would expect my prosecution to be upheld. But then, new subsection (8)(d), refers to

“the interests or expectations of persons who have relied on the impugned act”.

Therefore, if, for example, it is made unlawful to do a particular thing and I have had my dog put down as a result or I have bought lots of expensive equipment to comply with the criminal law as I thought it was, my interests or expectations under new subsection (8)(d) would be “Let the law stand”. So new subsection (8)(c) points in one direction and new subsection (8)(d) in another. If it is the Government’s intention that all prosecutions brought under unlawful regulations or laws will never be prospective only, and if it is their intention that taxation raised under unlawful regulations will never be prospective only, in my respectful opinion—I may be wrong, in which case let me corrected by the noble Lord, Lord Wolfson—new subsection (8) does not get him anywhere near that. Indeed, it leaves the judge to decide and the judge has to decide on the basis of new subsection (9).

I therefore strongly agree with my noble friend Lady Chakrabarti. A bit more work needs to go into this to get to a point where there is clarity about what the Government intend, if their intention is that these are only two tools in the toolbox, with complete discretion over how to use them. If that is what they want, my noble friend Lord Ponsonby’s amendments are giving them quite a good opportunity of getting there.

[Lord Brown of Eaton-under-Heywood (CB)]

I hesitate, my Lords, to speak again. I feel that so much of what has been said has been dancing on the head of a pin. I have to say that I have come to see new subsections (1)(a) and (1)(b) in new Section 29A in Clause 1 not as dramatically different things but rather as a continuum. They cover a spectrum; indeed, there is an overlap in between them, in the middle. There is no question here of subsection (5), to which the noble Lord, Lord Pannick, objects so strenuously—the one about being treated, and so forth. It is always subject, be it noted, to new subsection (2) of new Section 29A. Any of these orders under new subsection (1)—in other words, whether it is an order under new subsection (1)(a) or (1)(b)—can be made subject to conditions. Those conditions clearly would control the extent to which there is to be any degree of retrospectivity or retroactivity, call it what one will.

I am a huge admirer and respecter of the noble Baroness, Lady Chakrabarti, but I do not see this as being, so to speak, comparable to Parliament infinitely rarely passing legislation retroactively. We must always remember, must we not, that judicial review is, at the end of the day, a discretionary remedy; you do not actually have to make these orders anyway. I still see this, as the Minister would urge, as a tool in our toolbox, giving us the maximum flexibility and discretion to do what justice requires to all—which includes, of course, to those who are not in the courtroom, who do not have legal aid, and all the rest of it. With criminal convictions—taxation and things—one trusts and assumes that the court is going to behave correctly. In the Percy and Hall case, with the good lady trespasser and PC Hall who was being sued for damages for having arrested people who on the face of it were invading this territory, contrary to apparently valid by-laws, I pointed out in the judgment that, if and insofar as she had actually had criminal convictions, of course they would be set aside. But that is merely an aspect of judges behaving, as one hopes and believes they will, in a judicial manner.

So I respectfully continue to support this clause. I said at Second Reading that I was agnostic or entirely relaxed—I think that was the term used by the noble Lord, Lord Anderson—as to whether it is “may” or “must” in new subsection (9), and I remain so. “Must” simply urges the judges to give attention to this new tool in their armoury or toolbox. But they do not have to, and they will not, unless by all the conditions that they wanted to impose, they have made it clear that what they are doing will not be contrary to justice.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, this group of amendments, tabled by the noble Lord, Lord Ponsonby, is designed to take the sting out of the provisions in Clause 1, both as to the circumstances on which suspended or prospective-only quashing orders may be made and as to the way in which the discretion should be exercised. If passed, the amendments would each mitigate the damage which in my view is inflicted on the rule of law inherent in Clause 1. However, if all were passed, they would still by no means eliminate it. As has been pointed out, the worst part of Clause 1—in a sense, the elephant in the room of the first two groups—is the presumption, which we shall come to in the next group, which has been spoken to by the noble Baroness, Lady Jones of Moulsecoomb, and the noble and learned Lord, Lord Falconer, and which is, I suspect, opposed by the overwhelming majority of those who have spoken. The noble Lord, Lord Anderson, spoke to it in the last group, and said that his support for the prospective quashing-order power was conditional on the removal of the presumption.

I suggest that there is also a flavour to Clause 1 that is inherently offensive. We are faced with a proposal that not only permits the suspension of a quashing order and the retrospective validation of unlawful acts—and we accept the power of suspension—but dictates to the court, by new subsections (8), (9) and (10), how the court should exercise its discretion. Once again, I have to say that I am impressed but dubious about the optimism expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that the Government are concerned only to give judges tools in their toolbox which they would not use, and that they can exercise their discretion in any way that they wish, because that is not actually how these new subsections work—and they are wrong in principle to dictate the way in which the discretion is exercised. The court when considering judicial review—

[Lord Faulks (Non-Afl)]

I thank the noble Lord for giving way. Of course, new subsection (8)(f) refers to

“any other matter that appears to the court to be relevant.”

So a court can decide that there are other matters that it thinks are important. This is not restricting or fettering the discretion of the court. Why is it so offensive?

[Lord Marks of Henley-on-Thames (LD)]

It is absolutely right that the court can consider any other matter, but it must consider all the factors in new subsection (8)(a) to (8)(e). That is mandating the court where some of those factors may not be of any interest to the court at all. The noble and learned Lord, Lord Falconer, was right to point out that there is a potential conflict between the factors in subsection (8)(c) and (8)(d). For Parliament to be telling judges how they should exercise their discretion and what factors they should have regard to without giving them the option of disregarding some factors is wrong.

The court is exercising, as we all know, a supervisory jurisdiction over executive action or the claimed abuse, or excess, of delegated powers. The noble Baroness, Lady Chakrabarti, was right to argue that the way in which judicial review has worked in practice—and I suggest that it is the most important development in civil or administrative law over the past 50 years, above any other development that we have had—is that the judiciary, the Executive and Parliament work not exactly together but in balance, so that the powers are exercised in accordance with the law. With respect to what the noble Lord, Lord Faulks, says, it is inappropriate and regressive for the Executive to tell Parliament what factors they should consider when performing that supervisory role. The courts should be left to consider executive action in accordance with the law passed by Parliament and to grant remedies accordingly. They do not need, and should not be tied down by, restrictive provisions that prevent them doing justice taking into account factors that they think are important.

Amendment 2, moved by the noble Lord, Lord Ponsonby, would at least limit the exercise of the provisions in Clause 1 to powers where the court was satisfied that it would be in the interests of justice to do so. I suspect that that amendment will be opposed on the basis that it would introduce an unnecessary fetter on judicial discretion—and I suggest that that is entirely ironic, because the whole of new subsections (8), (9) and (10) are precisely targeted at fettering the courts’ discretion, and it is to that that we object. It is also ironic that, if passed, this would be the only mention of the interests of justice in the clause.

Amendment 7 would make the new subsection (8) factors permissive, rather than mandatory. Therefore, it removes the point that I made in answer to the intervention of the noble Lord, Lord Faulks, that the court must consider factors which have an inherent conflict.

19:30

The noble Lord, Lord Ponsonby, has explained Amendments 8, 11 and 15, and I will not go further into them. However, Amendment 12 is important; it makes a point which is entirely obvious and it should be completely unnecessary. In deciding whether there is a detriment to good administration under new subsection (8)(b), the court must have regard to the principle that good administration is administration which is lawful. The noble and learned Lord, Lord Falconer, is right to say that where the Government suggest that this is only about remedies, and not about lawfulness, they miss the point that good administration requires the administration to be lawful. The clause, as it stands, detracts from that principle. It is, therefore, right that it should be reinforced in the way that these amendments suggest.

[Lord Wolfson of Tredegar (Con)]

My Lords, I will respond to the amendments in this group in grouping order. I start by making a point about the list of factors. The purpose of the list of factors in subsection (8) is, as I said in the previous group, to allow the court to respond flexibly in the interests of delivering justice. However, it is important that the court considers—I emphasise “considers”—whether the remedies to be used are appropriate. These are the factors to which the court must have regard.

[Lord Falconer of Thoroton (Lab)]

Is the Government’s intention that these two remedies—new subsection (1)(a) and (b)—should be in a different category from every other remedy the court has under judicial review?

[Lord Wolfson of Tredegar (Con)]

Yes and no, in the sense that this gets us into the argument about the presumption, because the presumption applies to only these two remedies. To that extent, the point made by the noble and learned Lord is correct: that is the nature of the presumption, which we will get to in the next group. We want the court to specifically consider whether these remedies are appropriate and to use them, as the ending of new subsection (9)(b) says,

“unless it sees good reason not to do so.”

Because these are new remedies, we have set out a list of non-exhaustive factors which the court must consider. These are the factors in new subsection (8)—and it is expressly non-exhaustive in new subsection (8)(f). I agree with the noble and learned Lord that, as he put it, these are important considerations. However, we want to encourage consideration of their use; we are certainly not mandating their use in any case.

The other thing we want to do, by putting these factors in the Bill, is to provide consistency in the jurisprudence from the start as to how the remedies are used in the cases which come before the court. I remind the Committee that we consulted on the sort of factors that should be included in the list. We received some very useful contributions in response to that consultation. However, the “must” in new subsection (8)—which is contrary to the proposal in Amendment 7 before the Committee—requires the court to consider each of the factors in the list. Coming to the point made by the noble Lord, Lord Marks of Henley-on-Thames, the “must” does not require the court to find that every factor in the list applies. It does not require the court to say that all the factors are relevant in the instant case. The court may consider that some of these factors in the case before it are not relevant at all; some might have very limited weight or only marginal relevance. All the court must do is to consider them. As the noble Lord, Lord Faulks, pointed out, the court may add to its consideration absolutely anything it wants under new paragraph (f).

[Lord Marks of Henley-on-Thames (LD)]

I am grateful to the noble Lord for giving way, but is that right in relation to new subsection (8)(c) and (d)? The court must have regard to the interests or expectations of persons who would benefit from the quashing and of persons who have relied on the impugned act. There is nothing voluntary about that. Those interests may be in conflict. Is it right that the court should always need to have regard to those interests?

[Lord Wolfson of Tredegar (Con)]

First, they may not apply at all, because there may, in a particular case, not be any person who would benefit from, or has relied on, the quashing. Secondly, the court must have regard to it, but only having regard to it, the court can give it such weight as it deems appropriate. Absolutely, some of these matters may be in conflict. That, as we have heard, is nothing novel in the field of judicial review when the court must consider what remedy to issue in every case. Indeed, it goes beyond judicial review. There is nothing new in principle here at all. What we are doing is setting out factors which the court should have regard to. The court can place such weight as it wants on any of these, and the court can have regard to any other factors as well.

[Lord Pannick (CB)]

I am very grateful to the Minister. He emphasises that the court can have regard to other factors. Does he accept that it would be permissible for the court to ask itself the question set out in Amendment 2? Is it satisfied that it is in the interests of justice to make one of these orders? Is it permissible for the court to say that it would not be in the interests of justice in the circumstances of this case, therefore it will not make one of these orders?

[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Lord. I was going to come to interests of justice slightly later, but let me take the point now. I do not want to drift into the presumption, but these issues are related to an extent. If it is not in the interests of justice to make the order, there would be good reason not to do so in new subsection (9). Therefore, the noble Lord’s question answers itself.

Amendments 2 and 9 add further factors to the list, including a condition that the court may use the new remedies only where it is satisfied that their use will be in the interests of justice. In addition to the point I have just made to the noble Lord, Lord Pannick—perhaps I am putting his question in reverse—I struggle to foresee a situation where the court, having considered new subsection (8) and the presumption, would think it appropriate to apply one of the new powers where the court none the less considered it against the interests of justice to do so. Indeed, I am making the same point: you do not get there, because if it is against the interests of justice, there must be “good reason” not to use one of the orders.

Furthermore, coming back to the amendments, if timeliness is relevant to the case, the court can consider that under the current drafting, in particular the factors set out in new paragraphs (c) and (f).

Those amendments sought to add some factors. Amendments 8 and 11 seek to remove a factor from the list and remove an important provision—the need for the court to consider

“any detriment to good administration that would result from exercising or failing to exercise the power”

and the need for the court to consider actions that a public body proposes or intends to take but has not yet taken. The point of clearly specifying that the court should have regard, not only to actions taken but to actions proposed to be taken, is that actions a public body proposes to take could sometimes be a relevant factor. For example, let us say that a government department recognises that regulations may be quashed but has already stated its intention to make new regulations and has announced the date by which they will be in force. This could help a court to reach a decision on whether a suspended quashing order is appropriate in principle and to determine how long the suspension period should be.

Amendment 10 seeks to modify the fourth criterion, paragraph (d), making it so that the defendant is responsible for identifying the interests of those who rely on legislation being quashed. I suggest this amendment is unnecessary. If a suspended quashing order, or a quashing order with limited retrospective effect or none, might be appropriate, it will always be in the interests of the defendant to set out why that is the case. The defendant would want to encourage the court to use that remedy rather than the ab initio quashing order. So, in effect, the onus is already on the defendant or respondent to demonstrate who will be affected if the impugned act is quashed immediately, ab initio; and that would obviously include identifying who has relied or is relying on the impugned act.

Amendment 12 seeks to modify the same factor in paragraph (d) by providing that the principle of good administration includes the need for administration to be lawful. I think I said in the previous group that that really is, if I may say so, motherhood and apple pie. Good administration is lawful administration. We all expect our Government and all decision-makers to abide by a set of lawful principles and duties that are conducive to effective administration. I am therefore not persuaded that legislating to say that good administration is lawful administration adds anything that is not already obvious or, indeed, inherent in the drafting.

Amendment 15 seeks to remove the requirement in subsection (10) for the court to take “particular” account of any action taken or proposed to be taken, or any undertaking given by a person with responsibility, in connection with the impugned act. This is intended to draw the court’s attention to any response the defendant may have already provided, or be in the process of providing, to the relevant defect. We see this subsection as a positive measure which could encourage a defendant to consider how to resolve matters proactively by offering suitable redress where it is appropriate, before the court need order it. It is also aimed at ensuring that the court takes particular care in considering any redress already provided so that defendants do not feel that they have to provide redress twice.

Finally, I come back to the point I was making about tax. I think the noble and learned Lord, Lord Falconer of Thoroton, asked me whether I was satisfied with the phrase “offer adequate redress”. I certainly am satisfied with that phrase, and I think the noble Lord, Lord Anderson of Ipswich, has an amendment in the next group that focuses on it. He certainly raised it at Second Reading, and I will be coming back to that. When I was referring to tax in the previous group, I was saying it would be very unlikely that a court would want to use a prospective remedy in that situation. I did not say “never” for two reasons. First, it is always up to the judge in any particular case. Secondly, one has to consider other effects even in tax cases. There could be cases where, for example, under tax legislation, somebody has not paid, but they have been given a refund, or they have a rebate or a tax credit. In those situations, it may be right, if it is positive to the taxpayer, so to speak, to use a prospective remedy even in tax cases. That is why I do not say “never” but in the case the noble and learned Lord was putting in the previous group, of when people have paid, in no circumstances does it seem likely that a prospective remedy would be appropriate.

I hope I have dealt with all the points raised. For the reasons I have set out, I invite the noble Lord to withdraw his amendment.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all noble Lords who have spoken in this debate. As my noble and learned friend Lord Falconer said, this suite of amendments was really an attempt to get clarity. Some of them were probing amendments, and some we may return to at a later stage. As my noble and learned friend said, there are potential conflicts, and he gave the example of that between subsection (8)(c) and (d). Those two elements would need to be considered within the broader context of the whole of subsection (8).

19:45

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, was more of relaxed, if I can say that, about this group of amendments. My understanding of what the noble and learned Lord said was that they wanted maximum flexibility. He was relaxed also about the words “may” and “must” in the legislation. But the noble Lord, Lord Marks, put his finger on it when he said this group of amendments is really aimed at trying to take the sting out of the Government’s proposals and provide greater clarity.

We have heard the Minister’s explanations regarding each of the amendments, and we will go away, read carefully what he has said and consider our position for the next stage of the Bill. But for now, I beg leave to withdraw Amendment 2.

Amendment 2 withdrawn.

Amendments 3 to 12 not moved.

Amendment 13

Moved by

[Lord Anderson of Ipswich (CB)]

13: Clause 1, page 2, leave out lines 24 to 32
Member’s explanatory statement
This amendment would remove the presumption that where a suspended or retrospective-only quashing order would offer adequate redress, such a quashing order should be made in preference to an ordinary quashing order.

[Lord Anderson of Ipswich (CB)]

My Lords, I rise to speak to my Amendment 13. Two of the greatest joys of practice at the Bar are finding oneself on the same side as the noble Lord, Lord Pannick, and feeling that the noble and learned Lord, Lord Etherton, might possibly be with you. On this amendment, I am experiencing both those joys, because both noble Lords, along with the noble Lord, Lord Ponsonby, have signed it.

Amendment 13 would remove the proposed new subsections (9) and (10), by which the Government seek to enlist our aid in watering down the remedies judges might grant in the unfettered exercise of their discretion. Such interference is unjustified as a matter of principle. Judges are skilled technicians who know that every case turns on its particular facts. The Clause 1 remedies are specialised tools, the uses of which are best judged not by remote control but by those dealing on the ground with the infinite variety of cases that human ingenuity throws at them.

Two factors should incline us to particular caution. The first factor is that the Government are themselves a party to most judicial review cases. Subsections (9) and (10) look very like an attempt to tilt the playing field against those who seek to hold public authorities to account for their unlawful actions. The judges can and should be trusted to serve the interests of justice without presumptions designed to serve the interest of their promoters.

The second factor is that the remedies in respect of which the presumption applies have always been treated by the courts themselves as suitable for exceptional cases only, not just in this jurisdiction but in other jurisdictions where they are used; in other words, the Government are attempting to reverse a presumption that the judges have themselves developed in the interests of justice.

Even apparently benign fetters on judicial discretion may have unanticipated consequences. So, despite the good intentions behind it, I am a little wary of the words that would be substituted by Amendment 14 in the name of the noble Baroness, Lady Chakrabarti. Had this been the law, it would no doubt have been argued that the rights-holders must have their pound of flesh from the innocent copiers of CDs, since to restrict the scope of the quashing order could have denied them an effective remedy. I am not sure that would have been a just result.

The Minister, as the consummate advocate he is, knows that his best chance of defending this presumption is to minimise its significance. Indeed, the first time he mentioned it this evening, he described it as a so-called presumption, although the adjective was later dropped, and his Second Reading speech scarcely acknowledged its existence. He preferred to emphasise that it is

“ultimately up to the judge to decide”

whether to take out the tools provided by Clause 1, that

“this does not limit the flexibility of the court”,

and that subsections (8) and (9) are simply

“there to ensure a consistent but rigorous approach to identify the appropriate remedy in each case.”—[Official Report, 7/2/22; col. 1380.]

Yet subsection (9) is not as benign as that. It creates a rebuttable presumption in favour of the Clause 1 remedies in any case where they would offer adequate redress—a phrase whose meaning, as we discussed at Second Reading, is highly uncertain and obscure.

Yes, a robust interpretation by the highest courts might confine it to very limited circumstances. However, such an interpretation would take time to achieve and, in the meantime, the steer inherent in this proposed new subsection will, I am afraid, be picked up and will retain its power to influence and even intimidate the less experienced judge.

Proposed new subsection (10) makes it worse by singling out for a special weight the factor identified in proposed new subsection (8)(e)—a factor that is itself uncertain and problematic, for reasons we have already heard. Particularly troublesome, going back to Amendment 11, is the weight that would have to be placed on action proposed to be taken by a public authority in respect of which no binding undertaking is, however, offered to the court.

However, my point is wider ranging. The particular weight given to one set of factors is in itself objectionable in principle, as a further limitation of the court’s discretion. I sum it up in this way: if proposed new subsections (9) and (10) constrain the free exercise of judicial discretion, they should be resisted on that ground alone; if they do not constrain it, they are pointless clutter and, for that reason, should be removed from the Bill. The underlying point is that there should be nothing in the Bill to discourage judges from holding the Government accountable, where the interests of justice require, for the past consequences of their unlawful acts. I hope that by the time we have finished with it, that is what we shall have.

[Lord Beith (LD)]

My Lords, if I were to give my apprentice joiner grandson a tool for his toolbox, I would not say, “In all circumstances, other than quite limited circumstances, this is the tool you must use and ignore the ones you already have”. The Government’s toolbox analogy does not seem to work. I am glad to have the opportunity to raise a question before the noble Lord, Lord Faulks, contributes to the debate—as I hope he will—because perhaps he can throw further light on the clarity of the recommendations of the Independent Review of Administrative Law on the issue we are debating. Paragraph 3.69 considered what would happen if the committee’s recommendation for a non-presumed format for these circumstances were followed and stated that, if Section 31 were amended in this way,

“it would be left up to the courts to develop principles to guide them in determining in what circumstances a suspended quashing order would be awarded, as opposed to awarding either a quashing order with immediate effect or a declaration of nullity.”

It was a very clear recommendation, and the Government should have taken that advice, as they took much other advice from the excellent document produced by the Independent Review of Administrative Law.

I will enter one other point into the debate. It was referred to by the former Lord Chancellor, the noble and learned Lord, Lord Falconer of Thoroton: the issue of adequate redress. The way the phrase appears in proposed new subsection (9)(b)—

“offer adequate redress in relation to the relevant defect”—

worries me. It may not have been drafted with this intention, but there is a very great danger if “adequate redress” is seen as a matter which concerns only the person pursuing the action. It is perhaps too rash to say “most”, but many judicial review cases, by their very nature, have a far wider effect than simply on the individuals involved in the case. That is, indeed, recognised in the Government’s own formulation of proposed new subsection (8). It refers both to those

“who would benefit from the quashing of the impugned act”

and those who had expectations and

“relied on the impugned act”.

There will be large numbers of people in many judicial review cases who will be affected by the outcome, either because an action they have already taken will be deemed to have been unlawful at the time it was taken or, indeed, because the law on which they have relied to enforce a regulation has now been found not to have been good or effective law at the time. The breadth and implications of judicial review cases—which is why the subject arouses such widespread interest—is potentially threatened if the concentration becomes on “We’ve fixed it for the unfortunate person who appears before us in this case” without having proper regard to the very large number of people who will be affected. Now, courts do have regard to it and that is a feature of many of the cases referred to in the debate. I am suspicious that the Government wording appears to discourage them from doing so.

[Lord Etherton (CB)]

My Lords, as the noble Lord, Lord Anderson of Ipswich, indicated, I am happy to join myself with the amendment. Both the Law Society and the Bar Council oppose the inclusion of proposed new subsection (9), as do many others and for very good reasons. It is worth pointing out at the outset that the provision is not based on any recommendation of the Independent Review of Administrative Law headed by my noble friend Lord Faulks. To my mind, this part of new Section 29A is the critical provision because it colours the appropriateness or otherwise of what has gone before: in particular, the powers under the proposed new subsection (1)(a) and (b). It is objectionable, I suggest, for three reasons: it is unnecessary, it is wrong in principle, and it is potentially dangerous in practice.

It is unnecessary because proposed new subsection (8) sets out a comprehensive list of matters to be taken into account by the court, including, most importantly under (f)

“any other matter that appears to the court to be relevant.”

There is simply no need for any other guidance or mandatory direction to the court if the courts are to be left to choose the most appropriate remedy to right the wrong that has been committed. A problem would arise only if what is intended is that in certain circumstances the judge should not be left to choose the most appropriate remedy but one of the other quashing remedies to be found in the proposed new subsection (1).

As I understood the Minister’s answer to a point raised by my noble Lord, Lord Pannick, if the judge feels it would not be appropriate to impose a quashing order, notwithstanding the trigger in proposed new subsection (9) that would

“as a matter of substance, offer adequate redress”,

because the judge felt there would be injustice, that would be good cause. Well, if the judge feels that the appropriate remedy in all the circumstances to remedy the wrong committed by the public body is different from the quashing orders in proposed new subsection (1)(a) and (1)(b), that would be an injustice. So one asks oneself, “What on earth is the point of it all?” since the answer given by the Minister that I have just mentioned indicates that what one is left with is a free-ranging discretion to be applied in an appropriate judicial manner, having regard to all the circumstances to rectify the wrong that has been committed. So I am afraid I am left at a loss to understand exactly what it is that makes the proposed new subsection necessary or logical.

I have also said that proposed new subsection (9) is dangerous and wrong in principle. First, it provides a precedent for interference by the Executive with judicial discretion. In effect, it politicises the exercise of judicial discretion in carrying out the judicial function of selecting the most appropriate remedy to right, so far as possible, the wrong that has been committed.

Secondly—a point I raised at Second Reading—the trigger for the mandatory direction in proposed new subsection (9), that the court must exercise its powers under subsection (1), the new quashing powers, if that would

“as a matter of substance, offer adequate redress”

is bound to be the subject of dispute and appeals. It introduces a hard-edged objective test, quite different from the judge’s discretion, which will enable disappointed litigants an opportunity to litigate and appeal further, and that surely is something we must avoid if possible.

20:00

[Lord Pannick (CB)]

My Lords, I agree with those who have spoken, and particularly with the noble and learned Lord, Lord Etherton, who said that these provisions will provoke litigation. Speaking as counsel practising in judicial review, these provisions will give ample opportunity for those representing disappointed litigants to bring appeal proceedings based on failures by judges to apply the provisions in a proper way.

I have added my name to Amendment 13, moved by the noble Lord, Lord Anderson, because, if judges are to be given the powers set out in proposed new Clause 29A(1)(a) and (b), it is because Parliament has decided that judges can be trusted to exercise the new functions widely and justly. The Minister emphasised at Second Reading and again today that the exercise of the new powers should cause Parliament no concern because it will be for judges to decide. If Parliament follows that approach, it is then surely unnecessary and inappropriate for Ministers to seek to tilt the balance by creating presumptions to try to influence the judges as to which tools from the toolbox—to use the Minister’s expression—it is appropriate for them to pull out and use. The more the Minister seeks to suggest—as I think he will in replying to this debate—that the presumption is weak, the less clear it is why it is included at all.

I make one other general point. We are considering an important Bill and the amendments we are debating this evening are significant. The Minister, as always, is addressing all relevant points in a most constructive and helpful manner, but it is, at least to me, surprising and regrettable that there are now, and have been for almost all of our debate this afternoon, no noble Lords on the government Back Benches.

[Lord Hope of Craighead (CB)]

I shall say just a few words. It is very strange that there is nothing in the Explanatory Notes to explain why this presumption is in the Bill at all. I have searched the notes for guidance and can find nothing. That point aside, I stress the point made by my noble and learned friend Lord Etherton about the danger that lurks in proposed new subsections (9) and (10). If one is sitting in a court trying to work one’s way through the various phrases set out there, they create a number of traps—and certainly opportunities for the disaffected litigant to challenge the decision. There are value judgments to make about what is “a matter of substance”; you must address your mind to what is meant by the phrase “adequate redress”; and you must find whether there is a “good reason” for doing or not doing something. These are all things you must face up to, and you must explain yourself, because it is all qualified by the words “is to do” or “must do”. A judgment that is going to stand up to scrutiny in the Court of Appeal will have to work through all those phrases and explain what decision the judge has taken in order to support the decision that is ultimately made.

This remedial tool is being encrusted with so much stuff that it is almost unusable. It really is ridiculous to overwork to this extent the amount of directions being given to the judge. It is not necessary, it is bad legislation and it is extremely dangerous. It is not a remedial tool at all; the Government are trying to create something in their own interest, as has been pointed out already, and make it as difficult and dangerous as possible for judges to use this tool. It should certainly not be legislated for in this form. Therefore, I strongly support the removal of these two subsections.

[Lord Faulks (Non-Afl)]

My Lords, I feel tempted to respond to the contribution of the noble Lord, Lord Beith. It is absolutely true that this particular form of words does not find its way into our report in any way. That, of course, does not necessarily mean that it is a mistake to include it in the Bill.

The noble Lord, Lord Anderson, gives a choice that is not very inviting: either this is a mere surplusage, in which case it should go, or it is potentially something that an inexperienced judge might get wrong or feel compelled by to make an order that he or she would not otherwise want to make. I wonder if that does not slightly overstate the case. I should say that I am not wholly convinced of its necessity, but I do not think it anything like as damaging as has been described.

After all, before you even get to the question of whether the court is to make a quashing order, a considerable number of hurdles have to be surmounted, as do a number of considerations which we have canvassed during the course of the debate. So, if the “interests of justice”, or whatever term that the judge directs himself or herself to, have allowed them to reach the conclusion that it is not appropriate to make a quashing order, this question of a presumption, whether it is a weak or a strong one, simply does not arise. Of course, the judge can also simply say, “Well, I take into account subsection (9), but I don’t see a good reason for making the order”, having regard to whatever it might be. I do not see it as quite the same hurdle race that the noble and learned Lord, Lord Hope, described it as.

I will listen carefully to the Minister on why it is in there. I do not think it particularly harmful, but there is, as it were, enough here to allow the judges to do what is fair without necessarily including this particular presumption.

[Baroness Chakrabarti (Lab)]

My Lords, I congratulate the noble Lord, Lord Anderson of Ipswich, on his Amendment 13. He rightly suspected that my Amendment 14 is a little more in the way of a probing amendment. I tabled it because of the concern I expressed earlier about the people not in the room when, by definition, a judicial review is brought by one party against a government department.

My Amendment 14 would be far less preferable to his Amendment 13 if we could clear up the problem with proposed subsection 29A(1)(b). As I said earlier, there is the question of whether that starts engaging the court with a more legislative function in deciding exactly who is and is not to benefit from the wider class of citizens not in the room.

So, we are back to the Minister’s saying that this is just about putting some extra discretionary tools in the judicial toolbox, to be used where appropriate. If that is the case and we could clear up the issue with paragraph (b), I would have no problem with allowing this extra tool, so that, in some cases, the quashing could not take effect until a future date, and the department could sort itself out and effect new regulations or, if necessary, even come to Parliament with emergency legislation. As a former government lawyer, I would have no problem with that possibility—but why all the rest of it?

On the one hand, the Minister talks about trusting the courts; on the other hand, we are all to be tied in knots with our various interpretations of all the various differently tilted tests that follow. That is probably the difference between me and the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I say that because I have genuinely changed my mind about various aspects of this during Committee. If it is just a tool in the toolbox, make it an open-textured discretion that allows the suspended quashing order, and leave the rest to the court.

I shall make two further points. The noble Lord, Lord Anderson, made an essential point that is worth repeating: central government is a party to most judicial reviews and certainly the ones that are going to cause concern to the Government. So the Government can relax a little at this stage, knowing that any crucial arguments about the effect of particular discretionary remedies on wider public administration will be put by government lawyers to the court. Finally, the noble Lord, Lord Pannick, talked about the risk of litigation with an overly complex provision. That has to be taken seriously. I hope it will not be said in response that that amounts to a threat. That has been said to me in the past when I have suggested that a convoluted provision will lead to litigation. It is not a threat; it is based on experience of what happens when discretion is tied in knots in that way. Inevitably, that leads to more litigation, not less.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I entirely support the amendments put forward, for the reasons that have been given. I do not want to add to them. It seems odd to give judges discretion and say that we trust them, then immediately circumscribe what they can do.

That leads to my concern about new Section 29A(10). When listening to the Minister earlier, I asked myself why new Section 29A(8) was there because all the points are perfectly obvious. I wonder whether we are looking at a new technique here being laid down for future use. Do you list perfectly obvious things in new subsection (8) to bring in the killer in new subsection (10)? I hope the Minister can assure us that we are not going to see in any future legislation dealing with judicial review—who knows whether there will be any—the codification of perfectly obvious principles as a means of bringing in by the back door what one sees here in new subsection (10).

[Lord Faulks (Non-Afl)]

Perhaps I might briefly add to that point before the noble and learned Lord, Lord Falconer, speaks. An absolutely classic example of legislating for discretion would be Section 33 of the Limitation Act, which courts are applying every single day of the week, which lists a large number of factors which the court may take into account and concludes by saying that it may take any other thing into account. Although I absolutely take the point made by the noble and learned Lord, Lord Thomas, there is nothing particularly unusual about setting out in detail the discretion and then, nevertheless, allowing the court to take into account other matters.

[Lord Falconer of Thoroton (Lab)]

I have just two points. First, I agree with the noble and learned Lord, Lord Hope, that no reason is given as to why there is the presumption, but it is worth emphasising that the Explanatory Notes accept that there is a presumption. What is being said is, and it is the intention of the Government, that, if a quashing order is to be made—certain sorts of judicial review will always lead to a quashing order; for example, if a power to prosecute people has been given without justification from primary legislation—there is to be a presumption that the quashing will be delayed and that, subject to the condition in new Section 29A(9), you will use either the delay or prospective-only power.

20:15

I find that odd, because the position is surely that when the court has found that something is unlawful, the norm should be “Set it aside now, set it aside for the past, set it aside for the future.” Yes, there may be circumstances where you delay that and, yes—although I am very opposed to it—if this Bill goes through, there may be circumstances where it is prospective only, but you would have thought that the position would be that, if there are special circumstances that justify not doing what the courts are there to do, which is to give remedies for unlawfulness, then do not do the normal quashing, do a delayed or prospective-only quashing. But no, what the Government wish to say is that the norm is delay or forwards only.

Secondly, my other experience in relation to this is that I was a Minister for 10 years. Ministers and the officials who serve them, who are all dying to comply with the law, will nevertheless be having different debates with their lawyers now; they will be rubbing their little hands, as I would be rubbing my little hands, and saying, “Well, there are problems in this”—and Mr David Anderson, as he was, and Mr David Pannick, as he was, would be saying, “Well, you have got a bit of a problem here. This is unlawful but if you could restrict it to this case only, you can leave in place all the things you’ve got already.” They will further say, “What is more”—and the noble and learned Lord, Lord Thomas of Cwmgiedd, was right to raise this—“you can go to the court and say in accordance with new Section 29A(10) that we’ll sort out all the other people in the past.” For example, if lots of people have put something special on their roofs unlawfully to protect themselves against climate change, say to the court, “We’ll go and try to find them all and give them some sort of remedy”, and the court is specifically allowed to take that into account in determining whether or not to give relief.

That is what subsection (10) is about. The Minister is looking confused by me saying that, but that is what it is aiming at, and it is why the noble and learned Lord, Lord Thomas, is raising it as a potentially sinister measure. If we are to have new Section 29A(1)(a) and (b)—I can live with subsection (1)(a), but I cannot live with subsection (1)(b)—and if the Minister is true to his word, it is a tool in the toolbox; let the judges decide in accordance with a wide discretion. That is why my noble friend Lord Ponsonby’s suggestion of saying “in the interests of justice” is more than adequate. Let the judges decide in accordance with that sort of principle whether they use it. Let us not tilt it in favour of the Government. This provision looks to be biased legislation; it is not legislation that is genuinely and objectively trying to improve judicial review.

[Lord Judge (CB)]

My Lords, I had no intention of intervening in this debate, but the question that seems to arise is this: why are we giving a presumption which is in favour of the wrongdoer?

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I entirely support the removal of the presumption. I will never try to achieve the brevity of the noble and learned Lord, Lord Judge, but he is absolutely right: this is a presumption in favour of the wrongdoer.

The only reason my name is not on Amendment 13 in the name of the noble Lord, Lord Anderson, is that I failed to secure a place among the first four supporters who were rushing to support the amendment. There is no getting away from the fact that, by new Section 29A(9), the Bill proposes making the exercise of the Clause 1 powers, prima facie at least, mandatory. If the “adequate redress” condition is met, and unless the court sees good reason not to do so, it must exercise both powers—not just one of the powers, according to the statute—both to suspend to suspend or delay the quashing order and to make it prospective only.

I agree with the noble and learned Lord, Lord Etherton, that this presumption colours the approach that is required to be taken by judges. I believe that understates the position. He was also right to say that it was dangerous and wrong in principle.

The Minister’s position on behalf of the Government is that the court is not bound to exercise these powers if it sees good reason not to do so. It follows from that that these are therefore wide discretionary powers and that any judges worth their salt—if I may paraphrase what he was saying at Second Reading—would find ways of not applying the presumption. If that is right then the noble Lord, Lord Anderson, is right that subsection (9) is entirely unnecessary. If the judge were to be entitled to exercise a wide discretion, there would be no reason to mandate the exercise of the powers in any particular way and we would be back to the position taken by the noble Lord, Lord Pannick, that the Government should trust the judges. I fear that the only reason the Government want to have the powers exercised on a mandatory basis is to ensure that there is a default position. That is why it has been correctly labelled a presumption. My noble friend Lord Beith’s analogy is absolutely right: if you have a toolbox, you should not be bound to use any particular tool, whether it is right or wrong for the job in hand.

My noble friend Lord Beith was also right on the question of “adequate redress” as an unsatisfactory and difficult-to-interpret test. Not only would it encourage unnecessary appeals, as the noble Lord, Lord Pannick, said, but it is also entirely unclear for whom the redress has to be adequate. The natural meaning of the words would be adequate for the applicant, but that is wrong in a public law case; it has to be adequate for every person materially affected. That is the point made in the amendment put forward by the noble Baroness, Lady Chakrabarti, although she modified her position on it slightly in addressing it today. Other parties affected need to be protected, not just because that is at the essence of public law but because those other parties are, by definition, not before the court and not personally represented when the judicial review application is made.

The Minister’s approach that judges will not regard themselves as bound by the presumption because they have this wide discretion, I suspect, underestimates the loyalty to the law felt by judges. Where there is a paradigm case that calls for the exercise of the power, under the compulsory wording of the Bill judges will strive to give effect to the will of Parliament and the principle that the law is there to be obeyed. That is embedded in their DNA. Therefore, the Government’s view that judges will bend over backwards to find ways around the presumption so as to avoid legalising unlawful acts of government is deeply cynical. It may shed significant light on the Government’s view of the rule of law, but it is completely inaccurate about the approach of the judges, who will apply the presumption if it becomes law lawfully and in so doing will considerably weaken the effect of judicial review.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by noting that my noble friend Lady Chakrabarti said that Amendment 14, to which I have my name, is a probing amendment and I think that she rightly said it is less preferable to Amendment 13 if we can clear up the element of new Section 29A(1)(b) about removing retrospective quashing. I agree with her point on that.

I want to address a different point. It was actually raised in the House of Commons by the government Minister at the time when he talked about unintended consequences. I will read out the briefing I have on this. In Committee, the Minister suggested that limiting the retrospective effect of remedies could mitigate the potential negative and unintended consequences that some public interest judicial reviews could have. For example, if a statutory instrument concerning social security is quashed, immediately it could remove all the social security protections provided for in that statutory instrument because they would no longer have any legal effect. But the argument is not convincing. The mere fact that some judicial reviews could potentially produce unintended consequences does nothing to argue in favour of a presumption. I was amused by the noble Lord, Lord Anderson, picking up that the noble Lord, Lord Wolfson, referred to a so-called quashing order. In the vast majority of cases, a court will not issue a quashing order in any event. In most cases, a court merely declares a statutory instrument to be unlawful and leaves it to the Government to amend the instrument in a way thought necessary by the Government. Indeed, even where human rights were violated between 2014 and 2020, the courts have quashed only four statutory instruments out of 14 successful challenges.

So we are not talking about very many cases and the points made by the noble Lord, Lord Anderson, and in support of his amendment, I think, are absolutely right. I shall listen with interest to the Minister’s response.

[Lord Wolfson of Tredegar (Con)]

My Lords, I begin by responding to the noble Lord, Lord Pannick, to whom I am grateful for his characteristically kind words and his tender concern that I am replying to these matters not so much on my own and without a Leader as on my own and without any juniors. That is, I am without much support from those Peers who also take the Government Whip. I would not want to make this point publicly, but in the undoubted privacy of these discussions I can perhaps venture the suggestion that the undoubted attraction of a debate with the noble Lord, Lord Pannick, and others, about the finer points of judicial review might possibly have failed to outshine the annual dinner—which has now been awaited for a couple of years—of the Association of Conservative Peers. But that is mere speculation.

More substantively, let me turn to Amendments 13 and 14. These amendments seek to remove subsections (9) and (10), which have come to be known as the presumption, but I stand by calling it a so-called, or low-level, presumption, for reasons that I will set out. As I explained in answer to the question put to me in the previous group by the noble Lord, Lord Pannick, if the court regards there as being good reason not to apply either of the new remedies, then it does not have to; the presumption essentially falls away. The question then put to me, which I will come to, is: why have it in the first place? That is the either/or which a number of contributors have put to me this evening.

The aim, as I have said in previous groups, of Clause 1 is to aid good administration and provide greater flexibility to the court in giving remedies. The new remedies are a very useful addition to the courts’ toolbox —to use that metaphor again—and the presumption, we believe, allows the courts to consider their use and will make sure that a body of case law develops quickly around the appropriate use of new remedies.

The policy intention, therefore, behind the inclusion of the presumption is to encourage judges to use the new remedies where appropriate, and for that I really do make no apology. I do not see that as any fetter on judicial discretion or as the Government intruding into places where they should not be. The independent review, as we have heard, recommended that courts should be given a statutory power to make suspended quashing orders, as it thought that they would be beneficial if used appropriately. We believe that the suspended quashing order and the prospective order are useful additions, but they can only be beneficial to the jurisprudence if the court considers their use.

The presumption is therefore phrased in a way which encourages the court to consider their use, but we are not trying to fetter judicial discretion or to steer—I think that was the word used by the noble Lord, Lord Anderson of Ipswich—the courts to a particular decision. As now, it will remain very much up to the court to decide what remedy is appropriate in the individual circumstances of the particular case.

20:30

There are two important safeguards. The first protection is that subsection (9) makes it clear that where a court considers that the new modified quashing orders

“as a matter of substance, offer adequate redress in relation to the relevant defect”,

it should use them

“unless it sees good reason not to do so”,

which is the second. There are two important safeguards, so to characterise the presumption as an attempt by the Executive to control the courts or remove their discretion is misleading. We want to make the decision-making process thorough and consistent and, as I say, to enable a body of jurisprudence to arise, which will be in the interests of justice because it will lead, ultimately, to more legal certainty for both claimants and defendants.

[Lord Beith (LD)]

On the basis of what the Minister has just argued, do I understand the Government’s position to be that unless this presumption is included, insufficient use will be made of these provisions and case law will not develop appropriately? Is that the Government’s position?

[Lord Wolfson of Tredegar (Con)]

The Government’s position is that the presumption will enable the case law to develop more quickly, perhaps, than it might otherwise do, because in each case the court will consider whether these remedies are appropriate. But there will be no case in which the remedy is provided where the court sees a good reason not to do so. In other words, we will not be in the position of Ahmed; that was the opposite. That was where at least some members of the court—in fact, the majority—wanted to do something and could not. We are not—I underline “not”—putting the court in a position where it will say, “We have to do this. We really don’t want to, but we have to”. You simply do not get there under subsections (9) and (10).

[Lord Falconer of Thoroton (Lab)]

Surely the courts will consider it when it is raised by the Government, and the question of the amount of time and how often the courts consider it will be dependent on the number of times it is raised as a proposition. I do not see why we need the presumption to get the courts to consider this.

[Lord Wolfson of Tredegar (Con)]

There are two parts of the answer to that. First, there are, as I said earlier, many judicial reviews in which it is not “the Government” in the way that the phrase “the Government” is used.

I am grateful to the noble and learned Lord, because the second point ties into a point I was going to come to. It is, I am afraid, a longer response than the speech which provoked it from the noble and learned Lord, Lord Judge, who said that this is a presumption in favour of the wrongdoer. I will try to answer the two points together. With great respect, I disagree for this reason: the presumption is not a presumption in favour of the wrongdoer. It is a presumption in favour of finding the appropriate remedy for the facts of the case. As we have heard, rightly, from a number of noble Lords, the claimant might not be the person who is actually most affected by the decision in question. There could be a whole class of people who are very severely affected by the decision in question who are not before the court. The claimant, who is before the court, is affected because they are sufficiently affected to have standing, but they may not be affected to the same degree. Therefore, it may not matter too much to the claimant as to whether the remedy is given. It may, on the facts of the case, not even matter too much to the defendant whether this remedy is given, but it may well affect third parties.

Another benefit of the presumption is that the court, so to speak, has to go through that thought process of whether this would be the appropriate remedy, thinking about people—we talked about the factors in subsection (8) earlier—who are not before the court, because on the facts of a particular case, the claimant may not actually be too bothered about whether these remedies are used. The defendant may not be too bothered whether the remedies are used, but it could well affect the position of third parties. Therefore, with respect, I dispute the proposition that this is a presumption in favour of the wrongdoer. It is in favour of the appropriate remedy.

[Lord Judge (CB)]

Why is the interests of justice test not quite sufficient for your purposes?

[Lord Wolfson of Tredegar (Con)]

I think I replied to that point in the previous group. The interests of justice test is subsumed here because you can use these remedies only where there is no good reason not to do so; in other words, if there is a good reason not to do so, you cannot use the remedies. Therefore, necessarily, every time you are considering whether to use the remedies, it is in the interests of justice to do so.

If I may repackage the noble and learned Lord’s question, it really is: why not just say, “in the interests of justice”, or have a freestanding discretion? That point was put by a number of members of the Committee and gets me back to my point that we want jurisprudence to develop, and we want the court positively to consider these remedies. This is not least because there could be cases—the music copyright case is one—where these remedies would be very helpful to third parties, while the instant parties to the case may not be too bothered whether they are used or not.

[Baroness Chakrabarti (Lab)]

Does the Minister understand that his comments about third parties are now making me feel more nervous again about proposed new section 29A(1)(b)? We are effectively opening the door to judicial legislation in relation to immunising the Secretary of State from further challenges by a whole class of people who are not currently in the court; we are therefore doing the legislative thing in removing or limiting any retrospective effect of the quashing, as opposed to just delaying the quashing for the future.

[Lord Wolfson of Tredegar (Con)]

With respect, no. The noble Baroness is looking at this in a very negative way. The whole point about the music copyright case was that the prospective-only remedy was there to protect people who have relied on the regulations. One must not look at these cases with the view that you have all these people out there with claims against the Government and the prospective-only remedy insulates the Government from all these other claims. There are lots of cases where a local authority, or the Government, or some other public body has made a decision and people have relied on it. Businesses have been set up, people have taken out bank loans and made investments. In those cases, I ask rhetorically, should all those third-party interests be disregarded merely because in the case of the claimant bringing the judicial review, his bank loan has not been drawn down yet, so he does not mind whether they are upheld, so to speak, prospectively or retrospectively?

As the noble and learned Lord, Lord Hope, said in the very first debate, there is a wide gamut of cases that come before the courts, and we have to give remedial flexibility; that is what all of this is seeking to do.

[Lord Falconer of Thoroton (Lab)]

That is an interesting answer. If there are two judicial reviews going on and one holds, for example, that the regulations are unlawful—not in accordance with a statutory power—but says prospective-only, it is presumably open to a second judicial review, which might be going on in parallel, to say, “It is unlawful, and I argue for it not to be prospective-only, for the following reasons.” Would it be open to two judicial review courts to come to different conclusions on the same unlawfulness?

[Lord Wolfson of Tredegar (Con)]

We all know that judicial reviews have to be brought within three months of the act. Therefore, I suggest to the noble and learned Lord that it is highly unlikely that one will have two separate courts adjudicating on the same decision. If there were separate judicial reviews, they would be consolidated.

[Lord Falconer of Thoroton (Lab)]

Scotland and England?

[Lord Wolfson of Tredegar (Con)]

The position would still be that proper case management can deal with all of this. The point that the noble and learned Lord makes is no different from the proposition that could apply now. You could have two judicial reviews where one court decides to give a quashing order and the other does not. That point is already out there, so to speak. There is nothing new conceptually added by this Bill.

[Lord Pannick (CB)]

I am grateful to the Minister for giving way. He expresses the hope that these provisions will enable the judiciary to build up a body of precedent in this area. Can he direct the Committee to any other statutory context which sets out in the way we see here a list of factors that judges are obliged to take into account, and then directs them by way of a presumption as to how discretion should be exercised? I cannot think of any. While I am on my feet, I thank him for being here tonight to deal with these amendments and giving up what would otherwise, I am sure, be an important date in his diary.

[Lord Wolfson of Tredegar (Con)]

I know that my right honourable friend the Prime Minister is still recovering from my absence from the dinner, but I am sure he will provide the usual entertainment and speech that my colleagues would expect.

On the wording of the new clause, there are two separate points. First: do we have statutes with presumptions? Well, of course we do. Secondly, do we have statutes which set out a list of factors to which the court must have regard on either an exhaustive—rare, I think—or, much more commonly, non-exhaustive basis? Yes, of course we do. My noble friend Lord Faulks gave the example of the Limitation Act—in Section 33, I think, from memory. The noble Lord’s real question is, therefore, do we have an instance where those two are put together? There is a short answer and a longer one. The short answer is that I cannot think of one off the top of my head, but I will have a look. The longer answer, however, is, with great respect: so what? If a presumption is not objectionable in itself, and if a list of factors on a non-exhaustive basis is not objectionable in itself, what, I ask rhetorically, makes it objectionable when those two features are put together? There is nothing objectionable about it.

I suggest that the real point put to me is not that this is objectionable, wrong or sinister, but that it is unnecessary. The answer to that is that it is beneficial for two reasons. First, to repeat the point, the court’s considering these powers will encourage the growth of the jurisprudence. Secondly, as I said to the noble and learned Lord, Lord Judge, the fact that the court has to consider them means that they will be considered in all cases, because there may well be cases where it is not in the interests of the party to the case that they be used, but it could be in the interest of third parties.

That ties into the point I was coming to on Amendment 14 in the name of the noble Baroness, Lady Chakrabarti. I heard what she said—that she would prefer the other amendment but tabled this one on a probing basis—but let me respond to it. In addition to removing the presumption, it would replace it with a precondition that, before exercising the new remedial powers, the court must be satisfied that the modified quashing order would offer an effective remedy to the claimant and any other person materially affected by the impugned act. This proposed precondition is superfluous, because the remedies available in the Bill are more effective and tailored, taking into account the interests of both claimant and third parties. The problem with the wording of her amendment is, as the noble Lord, Lord Anderson, pointed out, the copyright case. The wording used is not very good for third parties.

However, in that context, I should pick up a point made by the noble Baroness and by the noble Lords, Lord Marks and Lord Beith, concerning the phrase “adequate redress”, which was first made by the noble Lord, Lord Anderson of Ipswich, at Second Reading, if I remember correctly. We have heard the argument that we should replace that phrase with the phrase “effective remedy”, as also used in Amendment 14. I said in my closing speech at Second Reading, in response to the noble Lord, Lord Anderson, that I would reflect on this point with officials, and, of course, we have. I hope I can take a moment to explain the rationale behind the drafting.

20:45

We believe that “adequate redress” is not a narrower but a broader term than “effective remedy”. Our assessment and concern were that “effective remedy” could more readily be interpreted as something specific to the particular claimant before the court. By using the phrase “adequate redress”, the Bill—I am conscious that I am saying this from the Dispatch Box—does not seek to confine the court only to considering any disadvantage suffered by the particular claimant. Instead, it allows the court to consider the impact on other parties who may have been affected by the impugned act. To that extent I agree with the points made by the noble Lords, Lord Marks and Lord Beith, but we suggest that the wording in fact has the opposite effect to that which they feared.

This is consistent with the operation of public law—I think the noble Baroness, Lady Chakrabarti, made this point—where the courts will consider all the implications of the relevant defect. The inclusion of the phrase

“as a matter of substance”

and linking “adequate redress” to the relevant defect—the noble Baroness will have picked up that it is not “adequate redress” in relation to the claimant or the parties before the court but in relation to the relevant defect—further emphasises that the imperative is for remedies to be practical and suited to the circumstances, including those of third parties, and not arbitrarily constrained—

[Baroness Chakrabarti (Lab)]

I am hugely and genuinely grateful to the Minister for that, because it cuts to the heart of my residual concern about proposed subsection 29A(1)(b). It is that the Government are thinking of circumstances—copyright and others have been cited—where granting the immediate quashing order, which may be what the applicant in the particular case is seeking, would cause all sorts of problems for other people not in the courtroom, certainly in the Government’s view. Of course, it is the job of the elected Government to think about all of those other classes. Therefore, in that case, the Government would seek to invite the court to make all sorts of detailed delineations to remove or limit any retrospective effect of the quashing, but that would be the Government inviting the judiciary into a quasi-legislative role that it is not best placed to discharge, given that it would be just the Government’s view of those wider interests, not challenged in Parliament, as the Government are.

So, although I am so grateful to the Minister for making that genuine point about the need for polycentric decision-making, there is a limit to what you can ask the court to do. Remember, this would not even be the substantive judicial review hearing; this would just be the argument about remedies.

[Lord Wolfson of Tredegar (Con)]

I would not say that it is “just” about remedies; as this debate shows, remedies are very important. But I do not think that Mr Justice Green, in the music copyright case, felt that he was legislating in any way. As we heard in the first debate, this issue goes back to Lord Reid and indeed further.

There are two separate issues here. First, should we have prospective-only quashing orders as a matter of principle? We dealt with that in the first group, and I set out the reasons why. Secondly, in this group, should there be any sort of presumption? That is the point that I am seeking to address. But I hope that what I have said on third parties assuages the noble Baroness on both the presumption and prospective quashing orders generally.

The noble and learned Lord, Lord Thomas of Cwmgiedd, asked me whether this will become a standard approach for future legislation. There, I really would be going well beyond my remit. However, going back to what I said earlier, there is nothing conceptually unusual here in either a presumption or a list of factors. There is certainly nothing sinister—a word that was used by someone in that context.

I hope that what I have said goes at least some way to clarifying the concerns that have been raised on the presumption. Of course, I have listened very carefully to what has been said, and I shall reflect on it further. For the moment, I invite the proposers of the amendments not to press them.

[Lord Anderson of Ipswich (CB)]

I thank all noble Lords who have contributed to this notable debate—notable not just for its quality but for the rare and even forceful unanimity that it evoked among nearly all lawyers who spoke. I exempt, of course, the Minister, who was paid, or possibly not paid, for taking the opposing view.

I thought that the noble and learned Lord, Lord Etherton, put it most pithily when he said that the presumption was unnecessary, wrong in principle and potentially dangerous in practice. He was swiftly outdone by the noble and learned Lord, Lord Judge, who, if I may say so, correctly described it as a presumption on favour of the wrongdoer—the person against whom a quashing order is to be made. Even the noble Lord, Lord Faulks, who attempted a characteristically fair-minded defence of the presumption, confessed that he was not persuaded that it was necessary.

Of its necessity, I was not persuaded by the Minister in his speech. He still seemed unsure whether it is a presumption at all—but if it is not a presumption, what on earth is it, save for a sort of fertiliser for, as he put it, encouraging the growth of jurisprudence, which I think we are all agreed it would be? I hope that the Minister is right that “adequate redress” is broader than “effective remedy”, but, sadly, neither his words, or still less mine, are any substitute for the authoritative judicial ruling that would no doubt take great time and effort to achieve. These subsections are not something that we should have in this Bill, and they would be a damaging precedent for other Bills.

Finally, we are in the extraordinarily privileged position in this Committee to hear from very senior judges whose lives have been devoted to the interpretation of such laws what the practical defects of proposed laws would be. I hope that we will not only hear them but act accordingly when, as we surely will, we come back to this on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

Amendments 14 and 15 not moved.

Clause 1 agreed.

Clause 2: Exclusion of review of Upper Tribunal’s permission-to-appeal decisions

Amendment 16

Moved by

[Lord Ponsonby of Shulbrede]

16: Clause 2, page 3, line 19, at end insert—
“(1A) Notwithstanding subsection (1), subsections (2) and (3) do not apply where the party refused permission (or leave) to appeal by the Upper Tribunal was the appellant before the First-tier Tribunal and—(a) that party was without legal representation and the appeal before the First-tier Tribunal was not within legal aid scope;(b) that party was not of full age or capacity;(c) the appeal before the First-tier Tribunal was not an in-country appeal;(d) the appeal before the First-tier Tribunal was subject to any accelerated procedure;(e) the decision of the First-tier Tribunal was subject to any statutory restriction or direction concerning how that tribunal was to evaluate the credibility of the appellant or the evidence before it; or(f) the application to the Upper Tribunal raises a point of law concerning the construction of any statutory provision for interpretation of an international agreement.”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, a Cart judicial review is where the High Court can, in exceptional circumstances, review a decision of the Upper Tribunal to refuse permission to appeal a decision by the First-tier Tribunal. The purpose of Clause 2 is to oust, or abolish, this type of judicial review. Cart judicial reviews are mostly used in immigration and social security cases to identify serious errors in law; they have prevented the removal of people to hostile regimes, where they risk torture and murder, and have brought justice to benefits claimants who have been treated unlawfully. Cases where Cart judicial reviews have been used concern matters of life and death and are a safeguard, costing a relatively modest amount of money.

On Report in the House of Commons, the Lord Chancellor moved a new amendment to Clause 2 which would narrow the small number of exceptions to the abolition of Cart judicial reviews even further. In particular, the consequences of the amendment are that a legal error made by a tribunal would be regarded as a fundamental breach of natural justice only if that breach related to a procedural defect. The amendment is problematic, because it would exclude courts from considering issues such as actual or perceived bias in a tribunal, or a tribunal’s failure to assess obviously relevant considerations in its decision-making.

There are a range of arguments why Cart judicial reviews should remain, including arguments about the volume and cost of cases and whether it is a proportionate use of judicial resource. Indeed, there are arguments about the criminal courts’ backlog, and how it would be affected—I think the Government make this argument—if judicial resource was used in this way.

Another argument, which I am calling the “bites of the cherry” argument, and which was referred to by the noble Lord, Lord Faulks, at Second Reading, is where a claimant has already had two separate hearings but wishes—the argument says illegitimately—to have a third hearing. This is not an accurate or fair representation of how the process works. A claimant can only pursue such a judicial review when the First-tier Tribunal has made a serious error of law and when the Upper Tribunal has wrongly refused permission to appeal against that error of law; in other words, the Upper Tribunal has taken no steps to correct a serious error in law by the First-tier Tribunal. This is exactly why the Administrative Court must step in. A Cart judicial review represents a situation where a claimant has not had a proper first bite of the cherry—one might say that the first bite was sour—rather than that they are seeking a third bite. Therefore, the reasons given for abolishing Cart cases proceed on a false characterisation and should be reconsidered. It is for this reason that we are against Clause 2 and believe that it should be removed from the Bill.

Returning to my amendments, Amendments 16 and 21 seek to provide a further list of exceptions to the ousting of the High Court’s jurisdiction under Clause 2. These are examples of circumstances in which there must be particular concern about the capacity of the First-tier Tribunal to deliver an effective appeal for the appellant for reasons beyond the control of the tribunal. Amendment 17 seeks to clarify that to find a breach of the principles of natural justice, the High Court need not focus only on procedural defects. Amendment 18 would change the test to judicially review a decision of the Upper Tribunal to refuse permission to appeal from a “fundamental” breach of the principles of natural justice to a “material” breach of those principles. Amendment 22 in my name would require the Lord Chancellor to carry out and publish a review of the operation and the consequences of the ouster of Cart judicial reviews.

There are a number of other amendments in this group which I support, but the process of this group is to look at the overall intensions of the Government and then to further look at the individual ameliorating effects, if I can put it like that, within the amendments which I have tabled in this debate. I beg to move Amendment 16.

[Lord Faulks (Non-Afl)]

My Lords, I do not want to repeat what I said at Second Reading. Suffice it to say that I referred to what Lord Carnwath said in a lecture, essentially that the decision in Cart was incorrect and needed to be reversed. That line of argument was supported by the recently departed—in the physical sense, I hasten to add—noble and learned Lord, Lord Brown of Eaton-under-Heywood, and by the noble and learned Lord, Lord Hope of Craighead.

The question is whether the decision was correctly reached. If one follows the story of Cart, which we did with some care, looking at the decision of the Court of Appeal, Lord Justice Laws was the first judge to break what had been a consensus that the decisions of the Upper Tribunal should not in any way be subject to challenges by way of judicial review.

21:00

Lord Justice Laws took a different view but made the point that it would be only in rare and exceptional circumstances that such a challenge would happen. He described

“the grossly improbable event that”

the Upper Tribunal

“were to embark upon a case that was frankly beyond the four corners of its statutory remit … a wholly exceptional collapse of fair procedure: something as gross as actual bias on the part of”

the court. Therefore, he was envisaging it as extremely unusual for such a challenge to take place, having regard to the fact that all the arguments would already have been rejected on two occasions, including the sorts of arguments that feature in the amendments; that is, the risk to an individual seeking asylum, that when he or she went home they might receive gross treatment under Article 3, a breach of Article 8, or whatever.

The problem was that Lord Justice Laws was wrong in terms of predicting how frequent such a challenge should be. We produced evidence, which has not in any way been challenged, and there were 779 applications of these gross errors per year—the highest number of challenges of any challenge by way of judicial review. This hardly fits the sort of description that Lord Justice Laws had in mind. When the noble and learned Lord, Lord Brown, was dealing with the matter in the Supreme Court, his speech did not evince much enthusiasm for keeping these challenges. He was a little concerned that there might be endless challenges which did not have merit:

“The rule of law is weakened, not strengthened, if a disproportionate part of the courts’ resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff”—

a vivid metaphor.

Of course, every case is important to the individual, and one does not want to deny proper remedies. But sometimes there has to be an end to litigation, and one has to take into account the administration of justice and the many hours that judges spend conscientiously looking through a very substantial number of documents to find that there is essentially no limit to the challenge. Of course, if there is the possibility of a challenge of the sort that a judicial review might involve, people will take advantage of it—one can hardly blame them. However, we respectfully submit that to say that this particular provision should not be part of the Bill, which is the Labour Party position, is not reasonable.

Incidentally, the noble Lord may know that the shadow Foreign Secretary, the former shadow Secretary of State for Justice, when he was a Minister, wanted to get rid of these sorts of challenges altogether—I think the noble Lord knows that that was the case—whereas, in this provision, there is in fact a qualified clause, making it far less rigorous than was proposed by Mr Lammy on that occasion.

I echo what I said on previous occasions. These are modest suggestions and the Labour Party should not take the view that any change to judicial review is per se bad. It is a change that is welcomed by the judges as a whole—of course, I cannot speak for all of them—and to say simply that this whole section of the Bill should go is not a responsible act of opposition.

[Lord Ponsonby of Shulbrede (Lab)]

Before the noble Lord sits down, just to put the record straight, it is right that David Lammy said that when he was in a previous position. However, what he says now is that he has changed his mind and that he thinks that the whole of Clause 2 should go.

[Lord Faulks (Non-Afl)]

He is in opposition.

[Lord Falconer of Thoroton (Lab)]

I disagree quite strongly with what the noble Lord, Lord Faulks, said about how suggesting that this part of the Bill be removed is irresponsible. As the impact assessment put forward by the Government indicates, if this part of the Bill goes forward, between 173 and 180 Upper Tribunal and High Court days would be saved, which they calculate at £400,000. We are talking about a saving of £400,000 if this goes through, according to figures advanced by the Government.

As the briefings we have received from a number of organisations indicate, the effect of Cart judicial reviews has been quite significant. Points of law have been established as being wrongly decided by the First-tier Tribunal and the Upper Tribunal. No criticism of those two tribunals is intended, but that is what happened. They have been of some considerable importance, particularly in relation to human trafficking, duress and asylum status.

In relation to the point about Lord Justice Laws, his judgment in Cart in the Court of Appeal utterly exploded the theory that, simply because it was a superior court of record, there could not be judicial review. It exploded that proposition—which had been the basis of saying that Cart was not the subject of judicial review—so totally that in the Supreme Court, the judges who gave reasoned judgments indicated that he had done such a great job in relation to that that nobody now sought to restore that argument.

I am against this provision in relation to Cart because it does two things which are bad. First, it removes the High Court from considering whether or not the Upper Tribunal has got it wrong. In England—I say nothing about Scotland—it is the High Court that is the absolute cadre that determines the development of the law and the quality of the law, and I am not in favour of it being removed from this for £400,000.

Secondly and separately, as Cart in the Supreme Court said, there are a range of options open to the Supreme Court as to what the test should be for allowing judicial reviews from the Upper Tribunal’s refusal of permission to appeal from the First-tier Tribunal. It considers the ranges, such as exceptional circumstances, or asks whether it should be on the basis of, “We will give judicial review when the Upper Tribunal should have given leave to review it”, or some combination of the two, or a breach of natural justice—something like that. It said that the Supreme Court had a quite broad discretion to determine what the filter should be.

In the report of the group that he chaired, the noble Lord, Lord Faulks, said that the way that judicial review should develop should be on the part of appropriate deference by Parliament to the courts, and by the courts to Parliament. What I took that to mean is that the courts should be very careful to make sure that, in every case they can, they give effect to what Parliament wants. I took the noble Lord’s reference to deference by Parliament to the courts to mean: let the courts develop the precise ambit of the process by which they will judge illegality or not.

I object to Clause 2, because what is happening here is that inappropriate deference is being shown to the courts. The courts have the power to decide what the filter should be. They made that clear in Cart. The Supreme Court can revisit Cart; it is seven years old and, anyway, it can revisit it if it is 10 minutes old. It, not the legislature, should decide what the filter is in relation to this.

The key thing about judicial review is that it is the main means—not the only means, but the main means—by which the courts uphold the rule of law. Our constitution is based on democracy and the rule of law. Although there are functions within government that determine, or try to protect the state from, breaches in the rule of law, the key vindicator of the rule of law is the courts. Why on earth, for £400,000, is the legislature galumphing in to this area when the courts themselves can give the precise limits of this? It is—perhaps the noble Lord will let me finish.

It is such a mistake to do this. It sets out an ouster clause; that may be used in future, but I am pretty confident that the courts will construe ouster clauses against the background, so the wording in one case may well not work in another case. What is wrong here is that the Executive should not be doing this, because the courts have the power to sort it out themselves, and they should. I apologise for not taking the intervention from the noble Lord straightaway.

[Lord Faulks (Non-Afl)]

The noble and learned Lord does not mischaracterise the conclusions we reached at all. Quite rightly, we emphasised the respect of the various parts of the constitution to each other and the importance of that. However, he omits to mention a fact we stressed: none of the judges who made a submission to us ever suggested that, when Parliament thought a decision was wrong, it was not appropriate to legislate to reverse the effect of that decision. To suggest that does not do violence to any of the principles that we identified—I think the noble and learned Lord and I would agree about those principles. As for the hourly rate of judges, with great respect, whether they are remarkably good value for what they do does not alter the fact that, if something is bad law, it needs reversing.

[Lord Falconer of Thoroton (Lab)]

There is a fundamental misunderstanding there. Of course, Parliament can reverse a judicial review on its substance. If the courts conclude that some social security regulations do not meet a particular provision, they can change those regulations and come to the same result they wanted to all along, which is fine. I am talking about the fundamental role of the court in relation to determining whether the Government are acting lawfully. In relation to that, namely the ambit in which the court will operate Anisminic onwards, as it were, do not interfere with it. Let the courts determine that. Ultimately, the limits of that have to be set by the courts and not Parliament.

[Lord Pannick (CB)]

The noble and learned Lord has raised a number of very valid points in opposition to Clause 2. I offer another, in response to the noble Lord, Lord Faulks, who emphasises that there must be finality in litigation. The problem with that argument is that Clause 2 itself recognises the need for exceptions. New Section 11A(4) specifies exceptions, in particular for a

“fundamental breach of the principles of natural justice.”

In my Amendment 19, I suggest we need a further exception for where the Upper Tribunal has made a fundamental error of law. The noble and learned Lord, Lord Falconer, gave a number of examples where there may be important areas of law that raise fundamental issues that go to the safety of the individual who is going to be removed to a place where they may face persecution or torture. I for my part do not understand why a fundamentally unfair procedure is a greater mischief in this context than a fundamental error of law by the tribunal system. In each case, the Upper Tribunal and the Court of Appeal will have declined to intervene. If the judicial review route is nevertheless to remain open, as Clause 2 recognises, for fundamental procedural defects, surely it should remain open for fundamental substantive defects.

I accept of course, as again the noble Lord, Lord Faulks, emphasised, that there will be claimants with no legitimate point who seek to argue that they fall within the exception, but that is equally true of an exception for fundamental procedural defects. In any event, the answer to that concern is to ensure that any application for judicial review, whether of substance or procedure, is looked at and addressed by the judge on the papers and within a very brief time period.

21:15

Unless the judicial review judge thinks there is something of merit in the complaint, it should be and will be thrown out very swiftly. Or to adopt the amendment of the noble Lord, Lord Etherton, Amendment 23—which I hope he will speak to—would, as I understand it, make final a decision of the court of supervisory jurisdiction, thereby preventing any appeals. There are ways of dealing with the problem that does not involve preventing a litigant who does have a valid complaint, who can raise a substantial issue of law of a fundamental nature, and who is threatened with removal to another country where he or she is going to be persecuted or tortured from having the opportunity to make their complaint by way of judicial review. So, I agree with the noble and learned Lord, Lord Falconer. I too take the view that Clause 2, as presently drafted, is inappropriate.

[Lord Etherton (CB)]

My Lords, may I follow my noble friend Lord Pannick, who has referred to my Amendment 23, which would replace Clause 2 with what I have called a middle course? It is intended to be a middle course between, on the one hand, the provisions of Clause 2 which would abolish—subject to limited exceptions—the Cart supervisory jurisdiction of the High Court in England and Wales and the Court of Session in Scotland and, on the other hand, leaving the full Cart supervisory jurisdiction as it currently exists.

Amendment 23 is tabled on the basis that to abolish all Cart supervisory jurisdiction, subject only to the three limited categories of case specified in subsection (4), could give rise to injustice. On the other hand, it recognises, from my own experience as Master of the Rolls for over four years, that applications for permission to appeal to the Court of Appeal, from the High Court’s exercise of its Cart supervisory jurisdiction, are almost invariably utterly hopeless but nevertheless involve the Court of Appeal judge in question in a considerable amount of work ploughing through the decision of the First-tier Tribunal, the decision of the Upper Tribunal and the decision of the Administrative Court.

The middle course that I am proposing is to retain a supervisory jurisdiction at the level of the High Court, but to prohibit, first, an application to renew or appeal a refusal of permission to bring judicial review; secondly, to prohibit any appeal from a dismissal of the substantive judicial review application; and, thirdly, to prohibit any challenge to, or renewal of or appeal from, any other decision of the High Court such as, for example, in respect of interim relief.

In his reply at the Second Reading debate, the Minister said that he would consider this middle course but that the Ministry of Justice had calculated that abolishing the Cart supervisory jurisdiction would save 180 days of judicial resource in the Administrative Court. I have subsequently had a useful exchange of correspondence about that assertion, and I am extremely grateful to the Minister for answering a large number of questions that I have raised, probing that claim of 180-day savings. I hope the Minister will not take it amiss, but I regard it as perfectly clear that the Minister’s estimate of the saving of judicial time is greatly overstated.

The Ministry of Justice relies on a number of different sources, including a 2015 time and motion study from which it has extrapolated various assumptions. I am very doubtful about the accuracy of the statistics I have been provided with and the extrapolation provided by the ministry’s correspondence but, for what it is worth, the Minister’s response includes a breakdown of Cart cases from 2012 to 2020. It shows that over that nine-year period, 99% of Cart applications for permission to bring judicial review were dealt with on the papers and not at an oral hearing. The Minister’s letter allowed just over 1.3 hours for a judge to consider a paper application. In short, the figures supplied show that on average over the nine-year period, approximately 130 judicial days each year were spent on Cart applications in the Administrative Court.

At full complement and ignoring a substantial number of deputy judges, there are 71 full-time judges of the Queen’s Bench Division available to sit in the Administrative Court, which would mean just under two Cart applications each year per judge. Of course, there are plenty of people here, including the noble and learned Lord, Lord Thomas of Cwmgiedd, who has been Chief Justice, who will say that that is not how the world works because only a certain number of judges sit in the Administrative Court at any one time. On the other hand, it is not the way the world works having a single judge deal with all the Cart cases in a year. The truth is that they are spread among all the judges.

Furthermore, proposed new Section 11A(4) in Clause 2 provides three exemptions for the abolition of the Cart supervisory jurisdiction. I have been told by the Minister that there are no statistics to show how many of the Cart cases in the period 2012-20 fell within one or more of those three categories. In the absence of that information, it is not only utterly futile to suggest that Clause 2 would result in the saving of a specific amount of judicial time; it is clear that any saving would be less, perhaps far less, than even 130 days.

The middle course in the amendment I have tabled would help to avoid injustice while providing a useful curtailment of the Cart supervisory jurisdiction. I suggest that this is a sensible and just solution.

[Lord Thomas of Cwmgiedd (CB)]

May I add a couple of observations? It seems to me that experience has shown that it was difficult for the Supreme Court to find the right balance. On the other hand, this Bill goes too far and, if I may respectfully agree with the noble Lord, Lord Pannick, it is very easy for a judge to think in the particular circumstances of a case that a point of law is just nonsense. Therefore, having a check where points of law can be brought forward is essential.

I tend to feel that the suggestion made and the amendment put forward by the noble and learned Lord, Lord Etherton, is probably the most pragmatic solution and I would support that. But one thing we cannot do is to leave out of the equation the ability to have a review where there has been a fundamental error of law. Experience has taught me that many people, when looking at the facts of a particular case, think that they are so against it that it is hopeless, but actually there is often something there, and we must preserve that. However, I commend, if I may, the solution of the noble and learned Lord, Lord Etherton.

[Lord Trevethin and Oaksey (CB)]

May I just ask a question about the middle way proposed by the noble and learned Lord, Lord Etherton? Would the bar he is proposing—which would, as it were, place a lid over the High Court so that matters could not travel from the High Court to the Court of Appeal or the Supreme Court—operate even in a case where the High Court judge who had heard the point that arose in relation to the other tribunal’s refusal to grant permission to appeal considered that it raised an issue of general importance which ought, in fact, to travel upwards for consideration by the Court of Appeal or the Supreme Court? Should there perhaps not be a proviso in the middle-way amendment that would permit the High Court judge, if he or she thought it appropriate, to grant permission so that the matter could go upwards?

[Lord Pannick (CB)]

That is a very important point. If the noble and learned Lord, Lord Etherton, brings back his amendment on Report, as I hope he will, he may wish to add in a provision along the lines of what we see in relation to criminal matters and under the Administration of Justice Act: that if the judge or the Supreme Court certified that it was a matter of public importance, either the judge or the Supreme Court could give permission for the matter to go straight to the Supreme Court. The judge at first instance may throw out the point, but may nevertheless recognise that it is a point of some significance that perhaps the Supreme Court may wish to consider.

[Lord Hacking (Lab)]

My Lords, I apologise for the croak in my voice. As two noble Lords have already recognised, the ultimate issue in this batch of amendments is whether Clause 2 remains part of the Bill. Therefore, we should look with some precision at the Bill. Proposed new Section 11A(2) states in respect of the decision of the Upper Tribunal:

“The decision is final, and not liable to be questioned or set aside in any other court.”


That means that any appeal from the Upper Tribunal will now be forbidden. There is a proviso a little further down, in new subsection (4), which can be summarised as “if the Upper Tribunal has behaved improperly or ultra vires”, and there lies an exception, but it is a very strong provision in new subsection (2), as inserted by Clause 2.

At Second Reading, which was the first time I addressed this House after 22 years, I made two points on that issue. I said that, as a matter of principle, it was wrong to shut this out of the judicial process, because no appeals would actually go into the judicial process of our law courts. I argued that it was as a matter of principle wrong, because many of the applicants concerned—and this provision will absorb all the asylum applicants—are among the most vulnerable people who will ever want access to our courts. I argued, secondly, that the processes already in existence were good enough to pick out the unmeritorious applications, which far exceed in number the meritorious applications and which will find no further favour through the judicial process.

Therefore, we should look quite precisely at the decision-making as it now stands. We move from the Home Office decision—asylum or not asylum—to the First-tier Tribunal, then to the Upper Tribunal and then, in limited circumstances, to the single judge, who will make a decision on paper. We then move to an oral hearing, which I think will be in front of the Court of Appeal, and a journey, or a door, into our judicial process. What are the limitations in the present system, which I say are sufficient to sort out the difference between the meritorious and the unmeritorious application?

On the first issue, on the rules relating to the first tier, all issues of fact and law are to be considered by the First-tier Tribunal—but once it has made its decision, there are great limitations on the rights of appeal, and the right to appeal from the First-tier Tribunal is only on errors of law and on the permission of the Upper Tribunal. Of course, that throws out something that is very important, which is any further consideration of the merits of the application. When the matter goes to the Upper Tribunal, there are much more severe restrictions; it is only a paper application and only on the grounds of important principles of law and practice, or for some other compelling reasons. That then brings us, if that can be satisfied, and the law courts accept it, to a single judge—and then it is very limited, with only a paper application and only on the grounds of important principles of law and practice, or for some other compelling reason.

21:30

Indeed, the court has adjusted itself to changes in the CPR and High Court rules that were introduced in October 2016. One test provided there was whether the appeal had a real prospect of success—but it goes further than that. Other provisions were brought in in October 2016, such as a short, 16-day deadline for making the appeal from the Upper Tribunal, instead of the ordinary three months. There is no right of appeal or for an oral hearing after permission has been refused. It also goes further in that a high test that is provided: there must be an arguable case that both the decision of the Upper Tribunal refusing permission to appeal was wrong in law and the decision of the First-tier Tribunal being appealed was also wrong in law.

Under the present procedures, these applications are restricted and clamped down. It is quite wrong, in the Government’s approach to this issue, to cut out further the rights of these appeals, as well as being unnecessary, because the proper defence is already there.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I do not have enough experience to talk about this first hand, but I get a lot of very useful briefings from campaign groups. On Clause 2, Liberty summed up the arguments extremely compellingly. I shall not read out the whole paragraph, but I shall read out three sentences.

“Cart judicial reviews are only given permission to proceed where there is ‘an arguable case, which has a reasonable prospect of success”


—that seems perfectly reasonable. Cart reviews

“allow egregious injustices and errors to be caught not just to the benefit of the individual claimant, but the benefit of the system as a whole.”

As the noble and learned Lord, Lord Phillips, put it in the Cart judgment itself, they

“guard against the risk that errors of law of real significance slip through the system”.

I cannot really see any proper way forward than removing Clause 2 in its entirety.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, if I may, I shall speak first to my Amendment 20, to create an exception to the ending of Cart JRs in cases where the refusal of permission to appeal the decision of the Upper Tribunal

“is likely to lead to the deportation of the applicant to a country where the applicant is likely to be tortured or subjected to inhuman or degrading treatment”.

In such cases, the Cart JR of that refusal is the last hope that an applicant has. If the refusal of permission is wrong in law, I argue that in such a case the decision to refuse permission should not be exempt from review.

These cases are not academic; the injustices are very serious. In the case of G and H against the Upper Tribunal and the Home Secretary in 2016, reported in EWHC 239, Mr Justice Walker considered the case of a Nigerian woman, G, who was a victim of FGM and sex trafficking, who also had a child, H.

The Home Secretary’s decision to deport G and H was appealed to the First-tier Tribunal. It was common ground that, before coming to the UK, G had been the victim of FGM and sex trafficking. The Upper Tribunal dismissed an application for permission to appeal the FTT’s decision. That decision was challenged on an application for JR and the High Court gave permission for a review and found that the decision refusing permission should be quashed, both on grounds of a failure of procedural fairness in the Upper Tribunal decision and that the Upper Tribunal’s refusal of permission to appeal

“involved a material misunderstanding or misapplication of the law.”


In a Scottish case last year of CM v Secretary of State for the Home Department—2021 Court of Session Inner House Cases 15—the Inner House of the Court of Session, on a judicial review application, overturned a decision of the Upper Tribunal refusing permission to appeal an order of the FTT. In that case, the petitioner was a Venezuelan who came to the UK with his wife and young son in 2017, seeking asylum after his friend had been shot in the face by members of the Venezuelan armed forces while they were protesting together. The petitioner had been a witness to the shooting and the security services who had shot his friend knew he had been a witness and had threatened him with dire consequences if he reported their involvement in the shooting. In overturning the refusal, the Court of Session held that the Upper Tribunal had misapplied the law and misunderstood the effect of the evidence.

We know that the vast majority of Cart JRs—92.4% from 2013 to 2020—involve immigration and asylum cases. We also know that a very high proportion of those involve deportation orders and that those orders are often to countries where the country guidance issued by the UK Visas and Immigration section of the Home Office indicates that there is a very high risk of maltreatment on return, not necessarily by the authorities—although often they may be the source of the danger or condone it—but often by traffickers or criminal elements within the countries concerned.

The Government’s arguments—and those of the noble Lord, Lord Faulks, and his committee—in favour of Clause 2 rest largely, first, on the high resources in money and judicial time said to be consumed by Cart JRs and, secondly, on their apparent low success rate. The noble and learned Lords, Lord Falconer and Lord Etherton, have answered conclusively both the points relating to money and judicial time.

As to success rates, it is true that there have only been nine High Court decisions in favour of the applicant on Cart JRs. However, there have been only 13 decisions made at hearings over the relevant period, so 70% of those that have gone to a hearing have succeeded. That puts into perspective the level of success or failure of these JRs. The high failure rate overall is, of course, a reflection of the very high bar that applicants must surmount as a result of the decision in Cart before they get permission to apply for JR.

That explains why, of the balance of nearly 6,000 applications that reach the permission stage, only 6% of 366 were granted permission. The other 94% were refused permission, almost all on the papers. Of the 366 granted permission, 336—approximately 92%—were closed without a hearing, and many of those will have been settled. We do not have the exact statistics on settlement, but I invite the Minister to write to me before Report setting out how many of the applications where permission has been granted have been settled, how many have involved deportation orders, and in how many cases such deportation orders have not been implemented as a result of a challenge being lodged.

I have also added my name to Amendment 19 in the name of the noble Lord, Lord Pannick, which would permit Cart JRs where the Upper Tribunal acts in reliance on a fundamental error of law. I agree with him that there is no justification for a distinction between a fundamental procedural defect and a fundamental error of law. The noble and learned Lord, Lord Thomas, put the same point forcefully when he explained how judges often ignore a fundamental point of law or at least lead themselves to the belief that it does not exist when the facts are strongly one way.

No doubt the Minister will argue that the use of “fundamental” is elastic and that there will be cases where it is open to argument whether there is an error of law which is fundamental. That may be, but judges are very used to considering and determining questions of degree, and it is not hard to leave this one to them. I draw support for that point from the preceding exception in the subsection where

“the Upper Tribunal is acting or has acted … in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice.”

If the judges are to determine what constitutes a fundamental breach of natural justice, they can properly be asked to consider what constitutes a fundamental error of law.

Before I turn to the question of whether Clause 2 should stand part of the Bill more generally, I mention that I support the amendments spoken to by the noble Lord, Lord Ponsonby, for the reasons he gave.

I oppose the clause altogether for two fundamental reasons. First, I am simply not persuaded that the reasons for removing the Cart supervisory jurisdiction, limited as it has been by the decision in Cart itself—as pointed out by the noble Baroness, Lady Jones—justify this step. The Government’s argument starts by accepting that the ending of the jurisdiction will cause injustice in some cases. That is not acceptable. I repeat that these are serious cases. What is more, they involve an important principle that decisions should be made lawfully. The limitations on the Cart jurisdiction fully take account of the fact that the Upper Tribunal is an independent specialist tribunal, often presided over by a High Court judge, and that its jurisdiction should not be lightly usurped by interference from the High Court. But usurpation should not be confused with supervision, and I believe the decision in Cart got the balance right. Even if the Government’s presentation of the figures on cost and success rates are exaggerated, they are presented in a one-sided way that does not give sufficient weight to the importance of the issues of principle at stake.

Secondly, as I indicated at Second Reading, I fear that the Government are using Clause 2 as a stalking horse for other ouster provisions in future; this point was taken up by the Minister when I made it. On any view, this is an ouster clause. I see that the Government are trying out new categorical and, they assume, bomb-proof—or at least judge-proof—drafting for this clause in subsections (2) and (3). I note that the Government’s press release indicated that they see these subsections as a template for ouster clauses in the future.

With a few limited exceptions, such as proceedings in Parliament, we on these Benches are against ouster clauses, because they hand power to the Executive to act contrary to law and outside the limits of what the law permits the Executive to do. In that way, they are inimical to the rule of law. In this Bill, I see the Government as having picked a soft target, because this concerns, they say, the ending of challenges to decisions of senior tribunals refusing permission to appeal. However, the drafting of subsections (2) and (3) could be used to frame other exemptions from challenge to Executive action, more unprincipled and more dangerous, in the future. This Bill would then be available to be relied upon as a precedent in the future for such ouster clauses. We should not underestimate the power of precedent. It is a useful tool for lawyers and drafters alike, but in the wrong hands and in the wrong place, precedent can be dangerous for principled lawmaking.

That is why I am attracted to Amendment 23 in the name of the noble and learned Lord, Lord Etherton, which proposes a compromise which does not risk future use as a template. The noble and learned Lord’s proposal that there should be no appeal from a decision of a supervisory court on a Cart JR, but that supervisory jurisdiction should be retained, has much to commend it, but I agree with the proviso proposed by the noble Lord, Lord Trevethin and Oaksey, and supported by the noble Lord, Lord Pannick. That formula would be far less amenable to misuse in later legislation to exempt government action or decision-making from judicial supervision. That protection is not afforded by the present Clause 2.

21:45

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I want to comment on Amendment 23 in the name of the noble and learned Lord, Lord Etherton. The amendment retains the Cart supervisory jurisdiction but bars

“any appeal from the court exercising the supervisory jurisdiction or any other challenge to decisions of that court whether by way of renewal or otherwise”,

and the decision of the High Court will be final. As the noble and learned Lord put it, this is a middle way. In a way, it is a shame that it was not degrouped from this group of amendments because, essentially, we have been having two debates in parallel. Also, it might have been more appropriate as a Report stage amendment.

By way of introduction to my comments on the amendment itself, one of the experiences of being a magistrate is that a lot of legal advisors leave magistrates’ courts to go and work in the administrative courts; it is a career progression for a number of them. Some, who I would count as friends, have said to me how utterly hopeless are many of the cases they have to deal with and prepare for the judges; so, interestingly, a number come back to the magistrates’ courts because they prefer the work there. Anyway, that is an aside.

The noble and learned Lord, Lord Etherton, questioned the figures presented by the Minister. I would be interested to hear the Minister’s response to that. A number of noble and learned Lords proposed further amendments. The noble Lords, Lord Trevethin and Oaksey and Lord Pannick, also proposed further amendments, which may come back on Report; we wait to hear. I noted that the noble Lord, Lord Marks, also supports the approach taken by the noble and learned Lord, Lord Etherton. I think that an encouraging statement has been made by all these noble Lords.

As I said earlier, we oppose Clause 2 standing part. I am grateful for the support of the noble Baroness, Lady Jones, and the noble Lord, Lord Evans, on that, but I intend to withdraw my amendment after the Minister has spoken.

[Lord Wolfson of Tredegar (Con)]

My Lords, I will begin by addressing the clause as a whole before dealing with specific amendments, as a number of Members of the Committee have indicated that they believe the clause should be wholly removed from the Bill.

As the Committee is aware, Clause 2 overturns the Cart and Eba judgments, removing the route of challenge known in short hand as a Cart judicial review. Let us be clear exactly what that is: it is a challenge of a decision of the Upper Tribunal to refuse permission to appeal a First-tier Tribunal decision. The claimant has already had a case before the First-tier Tribunal, which the claimant has lost, and the claimant has then been refused permission to appeal by both the First-tier and Upper Tribunal. A Cart judicial review allows an applicant to challenge in the High Court the Upper Tribunal’s refusal of permission to appeal—and that is not the end of the matter. If permission to apply for judicial review of the Upper Tribunal’s decision is refused by the High Court, that itself opens a route to the Court of Appeal, as we heard from the noble and learned Lord, Lord Etherton.

It should not surprise anyone that the Upper Tribunal, which is a senior and specialist tribunal, in some cases presided over by a High Court judge, appears to get over 96% of its determinations on permission to appeal right. In this context, “right” means that, sometimes, another High Court judge sitting on an application for a judicial review did not give permission. That should not come as a surprise because the Upper Tribunal is a senior court with a specialist jurisdiction, with senior judges sitting on it, so it is well suited to determining those questions of law.

I have heard it argued that we are removing a lifeline for claimants, but that argument can be extended to any system that has a limit—and there must be a limit. The question for Government and Parliament is where to draw the line. It is commonplace in our judicial system, so far as applications for permission to appeal are concerned, for that application to be considered by the original judge and the putative appellate judge, but no more. That is what the tribunal system does already.

Some members of the Committee may remember the decision in Board of Inland Revenue v Haddock, a decision of the Court of Appeal, comprising the Master of the Rolls, sitting with Lord Justice Ratchet and Mr Justice Apple, but reported only by one AP Herbert in his collection Uncommon Law. Subtitled

“Why is the House of Lords?”—

referring, I hasten to add, to this House in its former judicial capacity—the report posed the question why there should be three tiers of appeal: judge, Court of Appeal and then what he referred to, somewhat impertinently, as the

“wild wager on the final race”,

as he described the former Judicial Committee of this House. This metaphor meant that the Court of Appeal was relegated to

“a minor handicap taking place at 3.30”.

However, we have moved on since then. There is often now one tier of substantive appeal. If you want to appeal from a master to a judge, and then from the judge to the Court of Appeal, there are very special rules for second substantive appeals, and even showing that the judge was probably wrong is not enough to get you a second appeal. This is not even a substantive appeal; it is a question of permission to appeal where both the First-tier Tribunal and the Upper Tribunal have refused permission.

As I have said, the Upper Tribunal does not err often, with only 3.4% of claimants who were refused permission to appeal being granted an appeal and then having that appeal found in their favour. That can usefully be compared to a general 30% to 50% success rate for judicial review cases. Due to this, and the sheer number of Cart JRs per year—around 750—the IRAL recommendation was for Parliament to legislate to remove the Cart judicial review process.

I obviously listened very carefully to what the noble and learned Lord, Lord Etherton, said about the time and motion study and the assumptions set out therein. I know that he and my officials have had a number of useful exchanges on this. We have striven to count as accurately as possible the days taken at each point in the process, and we set that out in our impact assessment. I think that the noble and learned Lord omitted the time taken by the Upper Tribunal for reconsideration, which is not insignificant. Whatever the number of cases that reach the Court of Appeal, it must be more than zero. Therefore, I argue that there is a risk that we are actually underestimating the judicial time spent on Cart reviews. But, for present purposes, I can say that I am very happy to continue discussion on these matters ahead of Report. I will also write to the noble Lord, Lord Marks, about the data, if there is any—I do not know whether there is—on the settlements and the other points that he mentioned.

The second contention put against me is that the means by which we propose to implement the recommendation is a dangerous one. There are two points here. First, are ouster clauses appropriate in principle? I know that I will not persuade the noble Lord, Lord Marks, on this but, to put it briefly, parliamentary sovereignty means that an ouster clause can be appropriate in principle, I suggest. Legislation can change any aspect of the law and can also include an ouster clause. Although I respect and understand the argument that they are wrong as a matter of principle, I and the Government do not agree with this argument, and we consider that they are appropriate in particular circumstances.

The question now is: in this case, is the ouster clause the proper measure? We say it is: this is the best way to make Parliament’s intention clear vis-à-vis the relative and respective competences of the Upper Tribunal and the High Court. I absolutely accept that the clause’s drafting has been influenced by the arms race, one might say, between Parliament and the courts on ouster clauses in a series of cases. Parliament says X; the court says, “Did you really mean X? Maybe you meant Y.” Parliament says, “No. We are now saying Y.” “Well, what about Z?” You can see that development of the cases from Anisminic through Privacy International and thereafter. That is why the clause must in the form it is: otherwise, the point from Privacy International will be put: “Why does it say ‘purported’?” I think that was the Privacy International point. That is why the clause is drafted in the way it is.

Amendment 23 in the name of the noble and learned Lord, Lord Etherton, creates a procedural bar, providing that the decision of the High Court or any other supervisory court in reviewing an Upper Tribunal permission to appeal decision is final, preventing any escalation of that point to the Court of Appeal. Although I accept that that approach would create some efficiencies compared with the status quo, they would be significantly fewer than the approach we are taking. It also does not address the conceptual issue, with the High Court overseeing permission to appeal decisions of the Upper Tribunal, which is a senior court of record with specialist subject knowledge.

I am also concerned that some of the nuance in the original ouster clause, which still allows review in certain circumstances, has been lost in that revised version. The procedural bar proposed by the noble and learned Lord would seem to be absolute, not only on the refusal of permission point but, as was identified in the debate, in the substantive disposal were permission granted. As the debate went on, it seemed to me that the lid would not be as tight-fitting as he intended. Indeed, it sounded to me that as more additions and exceptions were built into the amendment, we would be back at either square one or, perhaps at best, at square two. Therefore, although I appreciate that the noble and learned Lord seeks a compromise solution, his amendment, especially with the additions accreted thereto, would not meet the Government’s policy intent.

Amendments 16 and 20 in the name of the noble Lord, Lord Ponsonby, and Amendment 21 from the noble Lord, Lord Marks, add a variety of exemptions to the ouster clause in particular cases but, in short, the Upper Tribunal is well placed to know the circumstances. It deals with matters of immigration law on a regular basis, and I therefore see no justification for treating those circumstances as exceptions to the ouster clause.

Amendments 17 and 18 apply to the natural justice exemption. This provision was amended by the Government on Report in the other place to read in the words now in the Bill. That was not, as my colleague James Cartlidge explained, a change of policy. Our intention is for substantial procedural impropriety to remain reviewable but for errors of fact or law within the Upper Tribunal’s remit to be ousted. The new wording is intended to be clearer. The amendments would undo the clarification on that point. As to whether fundamental breach is particularly different from material breach, that is perhaps something of a moot point. The intention is to set a high bar which will not be susceptible to erosion over time or cause an unnecessary number of applications, which would undermine the entire purpose of the ouster.

In that context, Amendment 19 in the name of the noble Lord, Lord Pannick, which would allow the High Court or the other supervisory jurisdictions to carry out a JR of an Upper Tribunal permission to appeal decision where there is a “fundamental error of law”, risks taking us back, I am afraid, almost to where we started. That amendment attempts the same thing the Supreme Court attempted in Cart itself—to create a route for judicial review on errors of law but with a sufficiently high bar not to create a flood of cases. That attempt obviously failed, and I fear the noble Lord’s amendment will take us back and, essentially, repeat the same mistake.

22:00

Finally, Amendment 22 would require the Lord Chancellor to publish a review of the operation and consequences of the Cart ouster clause within two years of Royal Assent. It is unnecessary because we have already committed, in the impact assessment, to monitoring the effect on the data provided in that assessment of that new system, including the impact on those identified as affected groups. Creating a legislative duty to review and publish the outcome of that review within two years would be disproportionate. This legislation does not apply retrospectively, so it is unlikely that we would see the full effect in a review published at that relatively early juncture.

I therefore consider that Clause 2 is both appropriate and proportionate. It supports the efficiency of our justice system and forms an important part of the Bill. I understand that the noble Lord, Lord Ponsonby, will be withdrawing his amendment, and I invite other noble Lords not to press theirs.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, it is clear we will return to a number of issues on Report. But for this evening, I beg leave to withdraw Amendment 16.

Amendment 16 withdrawn.

Amendments 17 to 23 not moved.

Clause 2 agreed.

House resumed.

House adjourned at 10.03 pm.